United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
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.
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.
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.
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.
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.
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.
Summary Judgment Standard
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).
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.
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).
Undisputed Material Facts
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 ...