United States District Court, E.D. Louisiana
INELL TUCKER, ET AL.
UNITED STATES OF AMERICA
ORDER AND REASONS
B. VITTER UNITED STATES DISTRICT JUDGE.
the Court is the Government's Motion for Summary
Judgment. The Motion is opposed. For the reasons
that follow, the Motion is DENIED.
April 18, 2018, Inell Tucker, Tanya Craft and Chukym Tucker
(collectively, “Plaintiffs”), filed a Complaint
in this Court, seeking damages under the Federal Tort Claims
Act for the death of Terry Tucker. Plaintiffs sued the United
States of America as the operator of the Southeast Louisiana
Veterans Healthcare Services healthcare facility in New
Orleans (the “VA Hospital”), alleging that Mr.
Tucker died of esophageal cancer due to the medical
malpractice of his healthcare providers at the VA Hospital,
including Dr. Urszula Moroz, who failed to timely diagnose
and treat his condition.
Government filed the instant Motion on July 17, 2019, seeking
dismissal of Plaintiffs' lawsuit with prejudice under
Federal Rule of Civil Procedure 56. The Government argues that
expert testimony is required to establish the essential
elements of Plaintiffs' medical malpractice claim against
it, and, if the Court grants both of the Government's
motions in limine filed contemporaneously with the instant
Motion,  Plaintiffs will not have an expert witness
to establish these essential elements of their
claim. Thus, the Government asserts that,
“The Court should only consider this motion if it
grants the two motions in limine filed by the United States
regarding the testimony of Terry Tucker's treating
physicians, R. Doc. 33, and the written report and testimony
of Plaintiffs' retained expert witness, Dr. Thomas Waits,
R. Doc. 34.” The Government then asserts that,
“If the Court denies either of those motions,
particularly R. Doc. 34, the Court should deny this motion as
oppose the Motion, asserting that they have submitted
competent expert testimony to establish a prima facie case of
medical malpractice. Plaintiffs point out that their expert,
Dr. Thomas Waits, a board certified internist and medical
oncologist, has reviewed Mr. Tucker's medical records and
opined that the five-month delay in diagnosis and treatment
of his esophageal cancer diminished Mr. Tucker's survival
and/or length of life. Plaintiffs assert that Dr. Waits has
provided an expert report and that his deposition is
scheduled for August 14, 2019. Plaintiffs then provide a
detailed review of Mr. Tucker's medical treatment between
August 2015 and his death on March 4, 2016 before addressing
Dr. Waits' qualifications and opinions. Plaintiffs
argue that nearly all of the expert and/or physician
witnesses who have been deposed in this case substantially
agree with Dr. Waits' opinions regarding the standard of
care in this case, which was not followed by Dr. Moroz at the
VA Hospital. Plaintiffs maintain that Dr. Waits is
the only expert qualified to testify regarding medical
causation in this case, and that he has opined that the
negligent delay in diagnosing and treating Mr. Tucker's
esophageal cancer caused Mr. Tucker to lose the chance of a
better medical outcome. As such, Plaintiffs argue that the
Motion must be denied.
Law and Analysis
to well-established legal principles, summary judgment is
appropriate where there is no genuine disputed issue as to
any material fact, and the moving party is entitled to
judgment as a matter of law. A party moving for summary
judgment must inform the Court of the basis for the motion
and identify those portions of the pleadings, depositions,
answers to interrogatories and admissions on file, together
with affidavits, if any, that show that there is no such
genuine issue of material fact. If the moving party
carries its burden of proof under Rule 56, the opposing party
must direct the Court's attention to specific evidence in
the record which demonstrates that the non-moving party can
satisfy a reasonable jury that it is entitled to a verdict in
its favor. This burden is not satisfied by some
metaphysical doubt as to alleged material facts, by unsworn
and unsubstantiated assertions, by conclusory allegations, or
by a mere scintilla of evidence. Rather, Rule 56 mandates
that summary judgment be entered against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case and on which that
party will bear the burden of proof at trial.
judgment is appropriate in any case where the evidence is so
weak or tenuous on essential facts that the evidence could
not support a judgment in favor of the non-moving
party. In resolving a motion for summary
judgment, the Court must review the facts and inferences in
the light most favorable to the non-moving party, and the
Court may not evaluate the credibility of witnesses, weigh
the evidence, or resolve factual disputes.
instant case, it is clear that summary judgment is not
proper, as genuine issues of material fact remain in dispute.
One of the most obvious material facts in dispute is whether
Dr. Moroz, the physician who treated Mr. Tucker at the VA
Hospital, breached the standard of care in this case. This
fact goes to the crux of Plaintiffs' medical malpractice
claim, and cannot be ascertained on the material submitted.
For this reason, the Government's Motion for Summary
Judgment must be denied.
the Government has repeatedly advised the Court that it
should only consider this Motion if the Court grants the
Government's two motions in limine filed
contemporaneously with the instant Motion, regarding the
testimony of Mr. Tucker's treating
physicians and the written report and testimony of
Plaintiffs' retained expert, Dr. Waits. The
Government has specifically requested that, “If the
Court denies either of those motions, particularly R. Doc.
34, the Court should deny this motion as
moot.” Because the Court has denied in part R.
Doc. 34, denying the Government's request to exclude the
written report and testimony of Plaintiffs' expert, Dr.
Waits,  the sole basis for the Government's
Motion for Summary Judgment - Plaintiffs' lack of expert
testimony to establish the essential elements of their
medical malpractice claim - is now moot. Accordingly, the
Motion must be denied.
foregoing reasons, IT IS HEREBY ORDERED that
the Government's Motion for ...