United States District Court, D. New Mexico
KYLE BRISBIN, Individually, and as Personal Representative of the Estate of ROBERT F. BRISBIN, Deceased, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER 
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
Kyle Brisbin brings this medical malpractice action in
connection with the death of her late husband, Robert
Brisbin. Mr. Brisbin presented to the VA Medical Center in
Albuquerque reporting stroke signs and symptoms. Mr. Brisbin
was transferred to UNM Hospital a few hours later,
unconscious and on ventilation. Approximately 18 days after
this, he was transferred to hospice, where he passed away.
Plaintiff brings this suit against the United States of
America, arguing that the VA nurses and staff should have
ensured a timelier transfer of Mr. Brisbin to UNM Hospital.
Plaintiff disclosed an expert witness who opined only on the
negligence of contract doctors rather than on the negligence
of any United States employee, the United States filed the
present motion for summary judgment (Doc. 58), arguing that
Plaintiff must have expert testimony to support her claims,
and that summary judgment is appropriate where her expert did
not offer any opinions that the VA nurses and staff were
negligent. In response to the motion- well after the deadline
to produce expert reports and after the close of
discovery-Plaintiff disclosed a “supplemental”
affidavit from her expert, this time opining that the VA
nurses and staff were partially responsible for the delay in
transfer and their conduct fell below the standard of care.
In reply, the United States moved to strike the untimely
supplemental affidavit and argued that the opinions therein
are so conclusory that the supplemental affidavit is not
competent evidence to defeat summary judgment. On surreply,
Plaintiff did not contest the untimeliness of his
supplemental affidavit but proposed a sanction less severe
than striking the affidavit. For the reasons explained below,
the Court will defer ruling on this motion until after a
filed her Complaint for Medical Negligence and Wrongful Death
on February 7, 2018. Doc. 1. It contained five counts: (1)
Medical Negligence of Defendant New Mexico VA Health Care
System; (2) Professional Negligence of Defendant New Mexico
VA Health Care System; (3) Wrongful Death; (4) Loss of
Consortium; and (5) Negligent Hiring, Supervising And/Or
Retention of Defendant New Mexico VA Health Care System.
Id. Defendant United States filed its Answer on
April 16, 2019. Doc. 12. On May 23, 2018, I entered an Order
regarding a related case Plaintiff also filed in federal
court, captioned Brisbin v. AB Staffing Solutions,
LLC, Civ. No. 17-1183 WJ/SCY. See Doc. 18. I noted that,
“[g]enerally speaking, both the present case and the
companion case arise from allegations of negligent medical
treatment received by Robert Brisbin at the Raymond G. Murphy
VA Medical Center on the night of December 28, 2014.”
Id. at 1. The defendants in No. 17-1183 WJ/SCY are
Dr. Parmjit M. Singh and his employer, AB Staffing Solutions,
whereas the defendant in the instant case is the United
States, who runs the VA Medical Center and contracted with
Dr. Singh to provide medical care at that facility.
defendants in No. 17-1183 WJ/SCY filed a motion to
consolidate discovery, noting that Plaintiff did not oppose
consolidation but that the United States, a party in No.
18-128 SCY/LF, did oppose consolidation. No. 17-1183 WJ/SCY,
at doc. 28 (filed Apr. 18, 2018). The United States, however,
later withdrew its opposition. Doc. 22. I entered an
order consolidating the cases for discovery purposes. Docs.
25 & 26. I then entered an Amended Scheduling Order
applicable to both cases, setting Plaintiff's expert
disclosure deadline for September 3, 2018; a discovery
termination date of November 15, 2018; and a pretrial motions
deadline of December 5, 2018. Doc. 27. On September 6,
pursuant to a request by all parties in both cases, I entered
an Order Granting Joint Motion To Extend Pretrial Deadlines.
Doc. 34. I set the new deadline for Plaintiff's expert
disclosure for October 3, 2018; the new discovery termination
date for December 15, 2018; and the new pretrial motions
deadline for January 17, 2018. Id. On October 3,
2018, I granted another joint motion to extend deadlines,
setting Plaintiff's expert disclosure deadline for
December 3, 2018; the discovery deadline for February 15,
2019; and the pretrial motions deadline for March 18, 2019.
Doc. 38. Plaintiff filed a Certificate of Service of his
Expert Witness Disclosure on December 3, 2018, disclosing
Robert W. Derlet, MD and Kevin Yoo, MD, F.A.N.S., F.A.C.S. as
expert witnesses. Doc. 43. Plaintiff filed an identical
disclosure in No. 17-1183 WJ/SCY on the same date. See No.
17-1183 WJ/SCY, at doc. 52 (filed Dec. 3, 2018).
the cases were briefly stayed during the federal government
shutdown in January 2019, Judge Fashing conducted a status
conference on February 13, 2019. The parties in No. 17-1183
WJ/SCY informed her that they reached a negotiated
settlement. Doc. 57. The parties in that case submitted
closing documents and Judge Johnson granted the stipulated
motion to dismiss. No. 17-1183 WJ/SCY, at doc. 61 (filed Mar.
in the present case, Judge Fashing extended the discovery
termination date to April 22 and the pretrial motions
deadline to May 23. Doc. 51. The parties also jointly moved
to vacate a settlement conference before Judge Fashing,
preferring to instead obtain a decision on dispositive
motions the United States planned to file. Docs. 53 & 55.
On July 3, 2018, Plaintiff filed a notice of withdrawal of
Counts II and IV of her Complaint, Doc. 29, and on May 15,
2019, filed another notice withdrawing Count V of her
Complaint, Doc. 57.
22, the United States filed the instant Motion for Summary
Judgment And/Or To Dismiss. Doc. 58. In its motion, the
United States argues that it is entitled to summary judgment
in this medical malpractice case because Plaintiff's
claims require expert testimony, and Plaintiff did not
disclose any expert opinions on the subject of the United
States' negligence. Plaintiff did disclose expert
witnesses under Fed.R.Civ.P. 26(a)(2) in accordance with the
Court's Scheduling Order. Doc. 43. But, according to the
United States, the expert reports only disclosed opinions
regarding the negligence of a contract doctor, Dr. Singh, for
whom the United States is not liable. Doc. 58 at 9.
Therefore, the United States argues, Plaintiff has no expert
testimony to establish any negligence by the United States.
response in opposition to the Motion, filed June 12, 2019,
Plaintiff attaches an affidavit from Dr. Derlet offering
opinions regarding the United States' alleged negligence
and argues that these opinions meet her burden to provide
expert testimony in support of her claims. Docs. 63 &
63-1. The United States filed its reply on June 26, 2019.
Doc. 64. In reply, the United States observes that these
opinions were not contained in the original disclosure, and
argues the affidavit attached to Plaintiff's response is
therefore an untimely expert disclosure under this
Court's Scheduling Order, Doc. 38, and Federal Rule of
Civil Procedure 26(a)(2)(D). Doc. 64 at 4-7. The United
States moves to strike the supplemental affidavit of
Plaintiff's expert. Id. The United States also
argues that Dr. Derlet's supplemental affidavit does not
meet Plaintiff's burden to establish medical malpractice
because it offers conclusions with no explanations. Doc. 64
Plaintiff attached Dr. Derlet's supplemental affidavit to
her response brief, the arguments the United States raised in
reply concerning that affidavit were new (not presented in
the United States' original motion). On that basis, the
Court invited Plaintiff to file a surreply to address the new
arguments raised in the United States' reply brief. Doc.
68. Plaintiff filed her surreply on July 17, 2019. Doc. 69.
In her surreply, Plaintiff argues that the United States
should have been on notice of Dr. Derlet's opinion that
the United States was negligent because Dr. Derlet's
original affidavit “made it clear that the delay in
transport was negligent” and “did not say that
all the fault lay with Dr. Singh.” Doc. 69 at 2.
Plaintiff also argues that there is no prejudice to the
United States from the supplemental affidavit, because there
is no trial setting. Id. at 3. Plaintiff offers to
have Dr. Derlet deposed at Plaintiff's expense.
Id. Plaintiff does not respond to the United
States' argument that Dr. Derlet's supplemental
affidavit does not meet Plaintiff's burden to show
medical malpractice because it offers conclusions with no
Defendant's Statement of Material Facts
Brisbin presented to the Veterans Administration
(“VA”) Hospital's Emergency Department on
December 28, 2014 after a reported fall and reported stroke
signs and symptoms. Doc. 58 ¶ 1; Doc. 63 at 2. Dr.
Parmjit M. Singh was an emergency medical physician employed
by AB Staffing Solutions, LLC, working as an independent
contractor at the VA on December 28, 2014. Doc. 58 ¶ 2;
Doc. 63 at 2. Mr. Brisbin was evaluated by Dr. Singh and sent
for a CT scan without intravenous contrast. Doc. 58 ¶ 3;
Doc. 63 at 2. The CT scan revealed Mr. Brisbin was suffering
a left thalamic hemorrhage approximately 3 x 3.6 cm in size,
with associated intraventricular hemorrhage predominantly on
left side; 2.3mm left to right midline shift. Doc. 58 ¶
4; Doc. 63 at 2. Dr. Singh consulted with the VA's
attending neurosurgeon, Dr. Suguna Pappu. Dr. Pappu
recommended Mr. Brisbin be transferred to UNM Hospital
(“UNMH”) for higher level care. Doc. 58 ¶ 5;
Doc. 63 at 2. Before Mr. Brisbin was transported to UNMH, he
became unstable, unresponsive to verbal cues and lost
consciousness, requiring he be intubated. Doc. 58 ¶ 6;
Doc. 63 at 2. Mr. Brisbin was transported to UNM Hospital
unconscious and on ventilation, where he stayed for
approximately 18 days, before being transferred to hospice,
where Mr. Brisbin died on January 25, 2015. Doc. 58 ¶ 7;
Doc. 63 at 2.
accordance with the Court's scheduling order, Plaintiff
disclosed his expert witness under Rule 26(a) on December 3,
2018. See Doc. 43; see also Doc. 38 (order extending deadline
for expert witness disclosure to December 3, 2018). Plaintiff
disclosed an emergency medicine expert, Dr. Robert W. Derlet,
who opined in his report that “Dr. Singh failed to take
appropriate action to stabilize Mr. Brisbin prior to
transfer.” Doc. 58 ¶ 8; Doc. 63 at 2; Doc. 58-4 at
2. According to Dr. Derlet, in the absence of the immediate
availability of prothrombin complex concentrate, known as the
brand name Kcentra, “Dr. Singh should have administered
Fresh Frozen Plasma.” Doc. 58 ¶ 9; Doc. 63 at 2;
Doc. 58-4 at 2. “Either agent would rapidly reverse the
anticoagulation, and stop the bleeding into [Mr.
Brisbin's] brain.” Doc. 58-4 at 2. Dr. Derlet
opines that Dr. Singh's failure to do so falls below the
standard of care. Id. at 2-3.
delay in transfer is also below the standard of care.”
Id. at 3. “Dr. Singh had the primary
responsibility to ensure timely transfer of Mr. Brisbin to
UNMH. It is below the standard of care for an ED physician to
hand off a patient to an administrative employee to ensure
timely transfer.” Doc. 58 ¶ 10; Doc. 58-4 at 3.
Dr. Derlet concludes that “Dr. Singh had full
responsibility for care of the patient until he departed from
the ED.” Doc. 58 ¶ 11; Doc. 58-4 at 3. Plaintiff
concedes that this is an accurate ...