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Ward v. Hanger Prosthetics and Orthotics Inc.

United States District Court, D. New Mexico

March 28, 2018

SYLVIA R. WARD, Plaintiff,


          M. CHRISTINA ARMIJO United States District Judge.

         THIS MATTER is before the Court on Defendant Hanger Prosthetics and Orthotics, Inc.&#3');">39;s Motion for Summary Judgment on Plaintiff&#3');">39;s Claims of Negligence and Consolidated Memorandum of Law. [Doc. 52] The Court has considered the submissions and the relevant law and has otherwise been fully informed in the premises. The Court hereby grants the Motion.


         Consistent with the standard of review governing summary judgment, the following facts are either undisputed, or, where disputed, construed in the light most favorable to Plaintiff as the non-movant. See Koch v. City of Del City, 660 F.3');">3d 1228, 123');">38 (10th Cir. 2011). In May of 2006, Plaintiff Sylvia Ward was diagnosed with Buerger&#3');">39;s Disease (BD), a progressive peripheral arterial disease that compromises the blood flow to Plaintiff&#3');">39;s extremities and skin. [Doc. 52, Defendant&#3');">39;s “Statement of Undisputed Facts” (hereafter, UF) 1, 2] From 2006 through 2013');">3, Plaintiff required several amputations due to her BD, including one toe, seven fingers, and both of her legs below the knee. [Doc. 52, UF 5, 6, 12-23');">3] Plaintiff underwent a below the knee amputation (BKA) of her left leg on November 14, 2007, and a BKA of her right leg on October 20, 2011. [Doc. 52, UF 6, 19] Several of the amputations required a “re-amputation” or a “revision.” [Doc. 52, UF 11, 14, 16] Her left leg stump required first a debridement[1] and later a revision [Doc. 52, UF 9, 11], and her right leg stump required a debridement [Doc. 3');">3');">53');">3, Plaintiff&#3');">39;s “Additional Facts” (hereafter AF) 64-66]. This lawsuit pertains only to the debridement required on the right leg stump, which Plaintiff alleges was due to Hanger&#3');">39;s negligence in acting as the “provider of prosthetic devices to Plaintiff.” [Doc. 3');">3');">53');">3, p. 17');">p. 17]

         On May 10, 2012, Jeff Pilgrim, a Hanger employee, evaluated Plaintiff and determined that she had a functional level assessment of K3');">3 (this score is also referred to as a mobility predictor in the record), which means that Plaintiff “had the ability or potential to ambulate with variable cadence; perform activities beyond simple locomotion.” [Doc. 52, UF 3');">37] Mr. Pilgrim recommended a Harmony brand vacuum suspension prosthesis for Plaintiff&#3');">39;s right leg. [Doc. 52, UF 3');">36] Hanger was not the manufacturer of the prosthesis.[2] [Doc. 54');">54, Defendant&#3');">39;s Reply to Plaintiff&#3');">39;s Statement of Additional Facts (hereafter, RAF) 13');">3] On the recommendation of Mr. Pilgrim, Plaintiff&#3');">39;s surgeon, Dr. Joseph Lopez, signed a prescription for the vacuum suspension socket for Plaintiff&#3');">39;s right leg. [Doc. 52, UF 3');">39; Doc. 3');">3');">53');">3, AF 4, 5, 77-79] In mid-July, 2012, Hanger employee Danny Tatum, a prosthetist, cast and fit Plaintiff with the vacuum suspension prosthesis. [Doc. 52, UF 40, 41] On February 15, 2013');">3, Mr. Tatum noted that Plaintiff had blisters on her right leg. [Doc. 52, UF 46] At some point in or after June of 2013');">3, Plaintiff needed an ulcer on her right leg stump to be debrided. [Doc. 3');">3');">53');">3, Ap. 63');">3-66]

         Defendant challenges the admissibility of “expert” testimony from Danny Tatum [Doc. 54');">54, RAF 7] and the admissibility and sufficiency of testimony from Dr. Lopez to the extent it pertains to causation. [Doc. 54');">54, RAF 4 & pp. 11-12] Based on these challenges, Defendant argues that Plaintiff has not presented evidence supporting her prima facie case of negligence. [Doc. 52, p. 1] The Court agrees with Defendant&#3');">39;s argument with regard to Mr. Tatum, discussed below, and the Court agrees that Plaintiff cannot produce evidence of the violation of a duty without Mr. Tatum&#3');">39;s testimony. Accordingly, the Court needs not address, and does not set forth herein, the disputed testimony of Dr. Lopez.

         During the course of these proceedings, Plaintiff identified Mr. Tatum as an expert witness. [Doc. 41, p. 1; Doc. 52, ¶ 51] Defendant filed a Motion to Strike the Expert Report of Plaintiff&#3');">39;s Disclosed Expert Witness Danny Tatum. [Doc. 41] The parties reached an agreement on the dispute: Plaintiff agreed to withdraw Mr. Tatum as an expert witness and not to attempt to qualify him “as an expert witness in the future in this matter, ” and Defendant agreed to withdraw its Motion to Strike. [Doc. 44] The Court entered an order granting the parties&#3');">39; Joint Motion to Withdraw Defendant&#3');">39;s Motion to Strike the Expert Report of Plaintiff&#3');">39;s Disclosed Expert Witness Danny Tatum, ordering that Mr. Tatum could only testify as a fact witness, and ordering that Plaintiff “shall at no time hereafter attempt to qualify Mr. Tatum as an expert witness.” [Doc. 45]

         Now, at the summary judgment phase, Plaintiff cites to the deposition testimony of Mr. Tatum in several respects. Plaintiff cites to Mr. Tatum&#3');">39;s testimony for the proposition that “[g]enerally when someone is missing both limbs, the mobility predictor would begin at K-2, ” and that the elevated vacuum device was a K-3');">3 component and thus was improper for Plaintiff&#3');">39;s K-2 level of functioning. [Doc. 3');">3');">53');">3, AF 13');">3, 48-52] Mr. Tatum further testified that he spoke to another prosthetist, who “is well regarded by our industry, ” and who told Mr. Tatum that the elevated vacuum was contraindicated in a patient with Buerger&#3');">39;s Disease “[b]ecause of the cells and the chance of them clotting.” [Doc. 3');">3');">53');">3, AF 52; Doc. 3');">3');">53');">3-3');">3, p. 6] Finally, he testified “I don&#3');">39;t believe there was anybody who did” any research to determine whether the device was appropriate for a person with Buerger&#3');">39;s Disease. [Doc. 3');">3');">53');">3, AF 80; Doc. 3');">3');">53');">3-3');">3, p. 13');">3]

         Defendant objects to these statements as expert testimony, and asserts that Plaintiff agreed not to attempt to qualify Mr. Tatum as an expert. [Doc. 54');">54, RAF 7] Defendant further argues that without expert testimony, Plaintiff cannot explain the applicable standard of conduct, and thus cannot survive summary judgment. [Doc. 54');">54, p. 11]


         Standard Governing Summary Judgment

         “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Jones v. Kodak Med. Assistance Plan, 3');">3d 1287');">169 F.3');">3d 1287, 1291 (10th Cir. 1999) (internal quotation marks and citation omitted); see also Fed. R. Civ. P. 56(a), (c). “A disputed fact is ‘material&#3');">39; if it might affect the outcome of the suit under the governing law, and the dispute is ‘genuine&#3');">39; if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” MacKenzie v. City & Cnty. of Denver, 3');">3d 1266');">414 F.3');">3d 1266, 1273');">3 (10th Cir. 2005) (internal quotation marks and citation omitted).

         “[W]hen a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (internal quotation marks omitted). “Once the movant demonstrates no genuine issue of material fact, the nonmovant is given wide berth” to demonstrate that a factual controversy exists. MacKenzie, 414 F.3');">3d at 1273');">3 (internal quotation marks and citation omitted). The Court views the evidence in the light most favorable to the nonmovant. Ward v. Jewell, 3');">3d 1199');">772 F.3');">3d 1199, 1202 (10th Cir. 2014). “Unsupported conclusory allegations, however, do not create an issue of fact.” MacKenzie, 414 F.3');">3d at 1273');">3.

         Plaintiff&#3');">39; ...

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