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Salzman v. United States

United States District Court, D. New Mexico

January 13, 2020

HOLLY SALZMAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Holly Salzman's Motion for Partial Summary Judgment Establishing Negligence of Dr. William Skelly in Failing to Send Fluid Aspirated from Plaintiff Holly Salzman's Knee for Laboratory Analysis (“Ms. Salzman's Motion”), (Doc. 53), filed November 5, 2019; Defendant United States of America's Response to Plaintiff's Motion for Partial Summary Judgment (Doc. 53) (“Defendant's Response”), (Doc. 55), filed November 19, 2019; and Ms. Salzman's Reply on Motion for Partial Summary Judgment Establishing Negligence of Dr. William Skelly in Failing to Send Fluid Aspirated from Plaintiff Holly Salzman's Knee for Laboratory Analysis (“Ms. Salzman's Reply”), (Doc. 57), filed December 10, 2019.

         This matter is also before the Court on Defendant's Motion for Summary Judgment (“Defendant's Motion”), (Doc. 56), filed November 19, 2019; Ms. Salzman's Response in Opposition to Defendant's Motion for Summary Judgment (“Ms. Salzman's Response”), (Doc. 60), filed December 10, 2019; and Defendant's Reply to Plaintiff's Response (Doc. 60) to Motion for Summary Judgment (“Defendant's Reply”), (Doc. 64), filed December 20, 2019.

         In accordance with Federal Rule of Civil Procedure 73(b), all parties have consented to the Undersigned to conduct dispositive proceedings and issue a final judgment in this matter. See (Doc. 17); 28 U.S.C. § 636(c). Having reviewed the parties' filings and the relevant law, the Court finds Ms. Salzman's Motion, (Doc. 53), is not well-taken and shall be DENIED. The Court further finds Defendant's Motion, (Doc. 56), is not well-taken and shall be DENIED.

         I. Introduction

         This case arises from medical care Plaintiff Holly Salzman received from the Raymond G. Murphy Medical Center (the “VA”) in late October and early November 2016. (Doc. 1 at 2-3). Ms. Salzman filed this lawsuit against Defendant United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, alleging medical malpractice. Id. at 2. Specifically, Ms. Salzman alleges the VA physicians failed to diagnosis and treat her knee infection, resulting in septic shock and septic arthritis in her left-knee joint. Id. at 8. In addition, Ms. Salzman claims she will need future knee-replacement surgery because of the VA physicians' failure to properly diagnosis and treat her knee pain, and her life has been “drastically altered” as a result of the VA physicians' malfeasance. Id. at 10-11.

         After the close of discovery on October 30, 2019, this case was set for trial in Albuquerque, New Mexico, and is scheduled to begin on April 21, 2020. (Doc. 49). On December 30, 2019, the Court granted in part and denied in part Defendant's Motion in Limine to Exclude Expert Testimony, (Doc. 54). Relevant to this Motion, the Court denied Defendant's attempt to strike Ms. Salzman's retained expert, Dr. Neil C. Small, MD, and her treating physician, Dr. Dustin Richter, MD, from testifying at trial. (Doc. 66). However, the Court limited Dr. Small's testimony to exclude any opinion on Ms. Salzman's need for cosmetic surgery, and further concluded that Dr. Richter may only testify within the scope of a non-retained treating physician under Rule 26(a)(2)(C). Id. at 21. In all other respects, the Court denied Defendant's motion to exclude Ms. Salzman's experts. Id.

         The parties have now each filed a motion for summary judgment, alleging they are entitled to judgment as a matter of law on Ms. Salzman's medical malpractice claim. (Doc. 53 at 7); (Doc. 56 at 1). In support of her Motion, Ms. Salzman contends her expert, Dr. Small, has sufficiently demonstrated that the VA physicians should have tested her knee aspirate for infection, and their repeated failure to heed her concerns resulted in a delayed diagnosis. (Doc. 60 at 11). In both its Response and its cross-motion for summary judgment, Defendant argues Ms. Salzman has failed to articulate a standard of care, and she fails to proffer any evidence of how the VA physicians' conduct departed from that standard. (Doc. 55 at 9-11). In addition, Defendant contends Ms. Salzman's expert testimony lacks evidence of a causal connection between her injury and the VA physicians' conduct. Id. Therefore, Defendant argues, Ms. Salzman cannot establish negligence as a matter of law and, thus, summary judgment must be granted in its favor. Id. at 14.

         II. Summary Judgment Standard

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it could have an effect on the outcome of the lawsuit. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 538 (10th Cir. 2014) (citation omitted). A dispute over a material fact is “genuine” if the evidence presented could allow a rational jury to find in favor of the non-moving party. E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (internal citation omitted). In considering a summary judgment motion, the court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir. 2007).

         A party seeking summary judgment bears the initial burden of showing that there is no genuine dispute as to any material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). When the movant does not have the burden of persuasion at trial, it can satisfy its burden at the summary judgment stage by identifying a lack of evidence on an essential element of the claim. Id. at 671. If the party seeking summary judgment satisfies its burden, the burden then shifts to the non-movant. Id.

         The party opposing summary judgment cannot rest on the pleadings but must “designate specific facts so as to make a showing sufficient to establish the existence of an element essential to that party's case in order to survive summary judgment.” Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). The non-movant must set forth specific facts from which a rational trier of fact could find in the non-movant's favor, identifying those facts in affidavits, deposition transcripts, or incorporated exhibits. Adler, 144 F.3d at 671. The party cannot rest on ignorance of the facts, speculation, or unsubstantiated conclusory allegations. Harvey Barnett, Inc. v. Shidler, 338 F.3d 1125, 1126 (10th Cir. 2003). “A fact is ‘disputed' in a summary-judgment proceeding only if there is contrary evidence or other sufficient reason to disbelieve it; a simple denial, much less an assertion of ignorance, does not suffice.” Grynberg v. Total S.A., 538 F.3d 1336, 1345 (10th Cir. 2008).

         III. Undisputed Material Facts

         The parties agree on the following undisputed material facts, presented in chronological order. Ms. Salzman began seeking treatment for left-knee pain in late 2010 and early 2011. (Doc. 56 at 3); (Doc. 60 at 2). Over the years, Ms. Salzman underwent a series of medical procedures, but after each procedure, her knee pain would return. Id. Since 2015, Ms. Salzman's knee ...


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