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United States District Court, S.D. New York

December 9, 2004.

EVETTE NIN, Plaintiff,

The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


This case concerns a personal injury claim by Evette Nin against Dr. Brian Hun Liao, a dentist, and the United States of America (the "Government"). Dr. Liao has made a motion for summary judgment, and in the alternative, has moved for an order dismissing the action due to the spoilation of evidence critical to his defense. He has also requested permission to amend his answer to add an affirmative defense of culpable conduct by the plaintiff. Both the Government and the plaintiff have likewise made motions for summary judgment. In addition, the plaintiff has moved for imposition of monetary sanctions against Dr. Liao's attorneys, Daniel Nessim, Esq. and Aaronson, Rappaport, Feinstein and Deustch, LLP, for violating Rule 11(b) of the Federal Rules of Civil Procedure. The parties have agreed to the disposition of this case by a United States Magistrate Judge in accordance with 28 U.S.C. § 636(c). For the reasons that follow, Dr. Liao's motion for summary judgment and his request for a dismissal of the action are denied, while permission to amend his answer is granted. The Government's motion for summary judgment is denied. The plaintiff's motion for summary judgment is also denied, as is the plaintiff's motion for the imposition of Rule 11 sanctions.


  On September 14, 2001, Evette Nin initiated this case as a medical malpractice action in the Supreme Court of the State of New York, Bronx County. (Verified Complaint, attached as Exh. A to Dr. Liao's Notice of Motion for Summary Judgment ("Def. Liao Mot.")). Ms. Nin alleges that the defendants "departed from accepted and proper dental practices and standards and [were] negligent and committed malpractice" in extracting one of her wisdom teeth. (Complaint ("Compl."), ¶ 8, attached as Exh. A to Declaration of John P. Cronan dated July 16, 2004 ("Cronan Decl.")). Specifically, she charges that Dr. Liao failed to take proper x-rays, which prevented him from identifying the location of a nerve that was ultimately severed during the surgery. (Compl., ¶ 8). This nerve damage caused the plaintiff to suffer a permanent parasthesia. (Compl., ¶ 8). Ms. Nin also claims that Dr. Salyk, Dr. Liao's supervisor, is liable for her injuries, as he improperly reviewed the films and failed to advise Dr. Liao to order additional x-rays. (Compl., ¶ 9). In addition, Ms. Nin asserts that Dr. Salyk is responsible because he failed to refer her to a qualified surgeon once aware of her parasthesia, even though this could have rectified the problem. (Compl., ¶ 9). Ms. Nin further alleges that the defendants failed to obtain her informed consent with respect to the dental treatment by not notifying her of the possible consequences of the surgery and not identifying alternatives to the procedure. (Compl., ¶¶ 13-17). According to Ms. Nin, the treatment period in which the dental malpractice occurred ran from May 18, 2000, through November 2, 2000. (Compl., ¶ 7).

  Ms. Nin originally named Dr. Liao and Morris Heights Health Center ("Morris Heights"), the clinic at which she was treated, as defendants. (Def. Liao Mot., Exh. A). On October 18, 2002, the Government filed a Notice of Removal to the United States District Court for the Southern District. (Notice of Removal and Substitution, 02 Civ. 8308, attached as Exh. D to Def. Liao Mot.). It moved to substitute the United States for Morris Heights, as the Government is the proper party when a suit is filed under the Federal Tort Claims Act. The Government also moved to dismiss the plaintiff's claims against it without prejudice due to Ms. Nin's failure to exhaust her administrative remedies. These motions were granted in an Order dated May 5, 2003. (Memorandum Opinion and Order, dated 2003, attached as Exh. E to Def. Liao Mot.). After complying with the exhaustion requirements, the plaintiff filed a new action against Dr. Liao and the United States of America on June 27, 2003. (Def. Liao Mot., Exh. F). That action was consolidated with the original action by Stipulation and Order dated October 30, 2003. (Def. Liao Mot., Exh. H). Following the completion of discovery, the parties filed the instant motions.


  A. Summary Judgment

  1. Legal Framework

  Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

  In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). But the court must inquire whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party," Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. Id. at 249-50. "The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful." Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir. 1997) (internal quotations and citations omitted); accord Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (a nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts"); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995) (nonmovant "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible"). In sum, if the court determines that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288 (1968)). 2. Government's Jurisdictional Motion

  The Government contends that the Court lacks subject matter jurisdiction over the plaintiff's claims against it because the United States, as sovereign, is generally immune from suit except insofar as it has consented to be sued. See United States v. Mitchell, 463 U.S. 206, 212 (1983); United States v. Testan, 424 U.S. 392, 399 (1976). In the absence of a waiver of sovereign immunity, a federal court lacks subject matter jurisdiction over a case against the Government. United States v. Sherwood, 312 U.S. 584, 586 (1941); Williams v. United States, 947 F.2d 37, 39 (2d Cir. 1991). Accordingly, the boundaries of the court's jurisdiction are defined by the scope of any waiver of sovereign immunity. See Mitchell, 463 U.S. at 212.

  The Federal Tort Claims Act (the "FTCA") waives the immunity of the United States with respect to torts committed by Government employees. 28 U.S.C. §§ 1346(b), 2671; see Guttridge v. United States, 927 F.2d 730, 731 (2d Cir. 1991). The Federally Supported Health Centers Assistance Act ("FSHCAA") defines an "employee" as including "any officer, governing board member, or employee of [a covered] entity and any contractor of [a covered] entity who is a physician or other licensed or certified health care practitioner." 42 U.S.C. § 233(g)(1)(A). An individual is considered a contractor only if:

(A) the individual normally performs on average at least 32 1/2 hours of service per week for the entity for the period of the contract; or
(B) in the case of an individual who normally performs an average of less than 32 1/2 hours of services per week for the entity for the period of the contract, the individual is a licensed or certified provider of services in the fields of family practice, general internal medicine, general pediatrics, or obstetrics and gynecology.
42 U.S.C. § 233(g) (5). The Government argues that Dr. Liao was neither an employee nor a contractor of Morris Heights, as he was employed through Lutheran Medical Center and does not meet the FSHCAA definition of a contractor. The plaintiff does not contest this, but rather contends that this Court has subject matter jurisdiction because the Government is liable for Dr. Ronald Salyk's actions. While neither party disputes that Dr. Salyk is an employee under the FSHCAA, the parties differ as to whether or not Dr. Salyk played a role in causing the plaintiff's injuries. If liability can be imputed to Dr. Salyk, this Court has clear subject matter jurisdiction; however, if Dr. Salyk is in no way implicated in the plaintiff's injuries, this Court must grant the Government's motion for summary judgment, as the Government cannot be held liable for Dr. Liao's acts.

  The Government argues that Dr. Liao is exclusively responsible for any alleged negligence. However, the plaintiff's medical expert has cited Dr. Salyk's failure to refer the plaintiff to an oral surgeon as a cause of the plaintiff's continued parasthesis. (Deposition of John McIntyre dated May 19, 1999 ("McIntyre Dep."), attached as Exh. E to the Declaration of Anastasios Tonorezos dated Aug. 17, 2004 ("Tonorezos Decl."), at 50-51). Consequently, it is disputed whether all acts of negligence may be imputed to Dr. Liao or whether Dr. Salyk bears any responsibility. Dr. Salyk may also have caused the plaintiff's injury through his alleged failure to properly supervise Dr. Liao. (McIntyre Dep. at 51). The Government argues that Dr. Salyk's supervision falls under the FTCA "discretionary function" exception, which provides that no claims may be brought against the Government to the extent that they are "based upon the exercise or performance of the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). This exception ensures that the principle of separation of powers is protected, as it prevents "the judiciary from deciding questions consigned to the executive and legislative branches of the government." Caban v. United States, 671 F.2d 1230, 1233 (2d Cir. 1982); see Canadian Transport Co. v. United States, 663 F.2d 1081, 1087 (D.C. Cir. 1980); Hendry v. United States, 418 F.2d 774, 780-83 (2d Cir. 1969). In United States v. Gaubert, 499 U.S. 315, 324 (1991), the Supreme Court set out a two-prong test to determine whether this exception applies. The first inquiry is whether the conduct violated a mandatory regulation, and the second is whether the decision at issue was a permissible exercise of policy judgment. Id.; Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). There was no mandatory regulation at issue in the instant case; therefore, only the second prong must be addressed.

  An activity involves an exercise of policy judgment when "the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency." Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D. Pa. 1978). Determining the method and extent of supervision constitutes an exercise of discretionary authority. See United States v. Varig Airlines, 467 U.S. 797, 819 (1984); Moreno v. United States, 965 F. Supp. 521, 527 (S.D.N.Y. 1997); Berghoff v. United States, 737 F. Supp. 199, 204 (S.D.N.Y. 1989). This does not mean, however, that the medical advice given by a supervisor to a contractor is not subject to the standards of due care:

[T]he judgments arrived at by the doctors are not different in kind or complexity from those which courts are accustomed to entertain when tort suits are bought [sic] against private physicians. The fact that judgments of government officials occur in areas requiring professional expert evaluation does not necessarily remove those judgments from the examination of courts by classifying them as discretionary functions under the Act. To the extent that the medical profession establishes no set rules to accommodate the handling of a particular medical case, the individual doctor's judgment in that case should be measured by the standards of due care.
Hendry, 418 F.2d at 783. Therefore, while Dr. Salyk was acting within his discretionary authority when determining whether or not to supervise Dr. Liao, the actual advice he rendered to Dr. Liao is not covered by the discretionary function exception. There is a question of material fact as to whether Dr. Salyk correctly reviewed and assessed the x-ray(s) taken by Dr. Liao, and whether Dr. Salyk properly instructed Dr. Liao on how to make an incision so as to avoid the lingual nerve. (Deposition of John McIntyre, attached as Exh. J to Cronan Decl., at 36-37). Dr. Salyk's negligence with respect to these issues would render him responsible for the plaintiff's condition. (McIntyre Dep. at 22, 51). Since the Government may be held liable for the negligence of its employees, this Court retains subject matter jurisdiction.

  3. Motions Addressed to Proximate Cause

  Dr. Liao claims that there are no triable issues of fact as to the causal relationship between his alleged negligence and the plaintiff's injuries, and the Government adopts this argument as well. The plaintiff, on the other hand, argues that she has conclusively established negligence and proximate cause, and thus is entitled to summary judgment.

  To establish a prima facie case of medical malpractice, the plaintiff must show "(1) deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of injury or damage." Prete v. Rafla-Demetrious, 224 A.D.2d 674, 675, 638 N.Y.S.2d 700, 702 (2d Dep't 1996) (citation omitted); see Bloom v. City of New York, 202 A.D.2d 465, 465, 609 N.Y.S.2d 45, 45 (2d Dep't 1994). In order to prove these elements, the plaintiff must provide expert testimony, unless "the matter is one which is within the experience and observation of the ordinary juror." Prete, 224 A.D.2d at 675-76, 638 N.Y.S.2d at 702; see Weiss v. Zuckerman, 114 A.D.2d 895, 495 N.Y.S.2d 69 (2d Dep't 1985); Paul v. Boschenstein, 105 A.D.2d 248, 249, 483 N.Y.S.2d 870, 872 (2d Dep't 1984); Meiselman v. Crown Heights Hospital, 285 N.Y. 389, 396, 34 N.E.2d 367, 370 (1941).

  The experts retained by Dr. Liao and the plaintiff express divergent views on whether there was any deviation from accepted medical standards. Dr. Liao's expert, Dr. Rodney Liebowitz, opines that the plaintiff's injuries could occur during the normal course of an extraction, that there were no alternatives to the procedure, and that, while a second x-ray could have revealed the location of the nerve, it would not have prevented the plaintiff's injuries. (Affidavit of Rodney Leibowitz dated July 20, 2004 ("Leibowitz Aff.") at 3, attached as Exh. K to Def. Liao Mot.). Therefore, according to Dr. Liebowitz, there was no departure from accepted practice, and thus no negligence. On the other hand, the plaintiff's expert, Dr. John McIntyre, testified that Dr. Liao should have taken a panoramic or lateral oblique x-ray, which would have shown the location of the plaintiff's nerve. (McIntyre Dep. at 19-20). Without this x-ray, Dr. Liao could not have known how to perform the surgery in such a way as to avoid severing the nerve. (McIntyre Dep. at 20). According to Dr. McIntyre, therefore, Dr. Liao was negligent, and this negligence was the proximate cause of the nerve damage. The experts also disagree whether Dr. Liao obtained informed consent and whether Dr. Salyk was negligent in not referring the plaintiff to an oral surgeon when she returned to the clinic complaining of parasthesia. (Liebowitz Aff., ¶ 5; McIntyre Dep. at 22). These contradictory opinions demonstrate that there is a genuine issue of material fact to be resolved at trial, and thus summary judgment may not be granted.

  The Government moves to dismiss the plaintiff's claims of lack of informed consent and of negligent hiring and supervision, asserting that the plaintiff relies exclusively on Dr. Liao's non-licensed status in support of the claims. Were this true, the claims would have to be dismissed, as the experts agree on the fact that, while Dr. Liao was practicing under a limited permit and not a license, this was not a deviation from the standard of care. (McIntyre Dep. at 79-80). However, the plaintiff's contention that she did not provide informed consent is supported by other alleged facts, namely the defendants' failure to properly inform her of the possible consequences of the surgery. (Deposition of Evette Nin at 212-13, attached as Exh. B to Tonorezos Decl.). Consequently, these claims cannot be dismissed based solely on the experts' agreement that practicing under a limited permit is consistent with the accepted standard of care.

  B. Spoilation of Evidence

  Dr. Liao claims that two x-rays were taken on June 16, 2000, and that Morris Heights Health Center can only locate one. He further contends that the second x-ray is critical to his defense, and that the action against him should consequently be dismissed or that he should be indemnified by the Government as a result of the loss of the x-rays. However, it is unclear whether this second x-ray ever existed. When asked specifically whether another x-ray was taken, Dr. Liao responded ambiguously, stating "[t]here should be another x-ray of that tooth." (Deposition of Brian Hun Liao ("Liao Dep.") at 102, attached as Exh. H to Cronan Decl.). He went on to state that the quality of the x-ray presented at the deposition was so poor that he could not have made a diagnosis, and that the x-ray that he and Dr. Salyk reviewed "was diagnostic." (Liao Dep. at 103). This seems to indicate that another x-ray did exist. However, when asked if any other x-rays were ordered, Dr. Liao answered unequivocally that none were. (Liao Dep. at 101). Given the conflicting testimony, whether this second x-ray was taken is a disputed issue of fact. Since Dr. Liao cannot establish that the claimed x-rays existed, it is impossible to say that spoilation occurred. Consequently, the action against him cannot be dismissed, nor can the Government be required to indemnify him.

  C. Sanctions

  Rule 11(b) of the Federal Rules of Civil Procedure provides that:

By presenting to the court . . . a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
Sanctions may be imposed "upon attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation [of subdivision (b)]." Fed.R.Civ.P. 11(c). The Plaintiff asserts that Dr. Liao's counsel violated Rule 11(b) (3) by failing to make a reasonable inquiry regarding the facts underlying the claim of spoilation, and that sanctions should consequently be imposed. (Plaintiff's Memorandum of Law in Support of Rule 11 Motion at 2). However, "[w]ith regard to factual contentions, `sanctions may not be imposed unless a particular allegation is utterly lacking in support.'" Storey v. Cello Holdings L.L.C., 347 F.3d 370, 388 (2d Cir. 2003) (quoting O'Brien v. Alexander, 101 F.3d 1479, 1489 (2d Cir. 1996)). Given the ambiguous nature of Dr. Liao's testimony, it cannot be said that his motion for dismissal due to spoilation of evidence was totally unsupported by evidence. It would thus be inappropriate to impose sanctions upon Dr. Liao's counsel.

  D. Leave to Amend

  Dr. Liao seeks permission to amend his answer to assert an affirmative defense of contributory negligence by the plaintiff. A motion to amend is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). Notwithstanding the liberality of the general rule, "it is within the sound discretion of the court whether to grant leave to amend," John Hancock Mutual Life Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation omitted), and for the proper reasons, a court may deny permission to amend in whole or in part. See H.L. Hayden Co. v. Siemens Medical Systems, Inc., 112 F.R.D. 417, 419 (S.D.N.Y. 1986). In discussing the use of this discretion, the Supreme Court has stated: In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should . . . be "freely given."

 Foman v. Davis, 371 U.S. 178, 182 (1962).

  The plaintiff argues that Dr. Liao unduly delayed in moving to amend. However, even if the defendant has been dilatory, that alone would not warrant denying the motion. Delay, absent bad faith or prejudice, is not a sufficient basis for denying leave to amend. See Parker v. Columbia Pictures Industries, 204 F.3d 326, 339 (2d Cir. 2000); Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993); Richardson Greenshields Securities, Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987); In re Horizon Cruises Litigation, 101 F. Supp. 2d 204, 215 (S.D.N.Y. 2000).

  A motion to amend may be denied if the amendment would prejudice the opposing party by (1) requiring that party to expend significant additional resources to conduct discovery and prepare for trial; (2) significantly delaying the resolution of the case; or (3) allowing the assertion of a claim or defense after the non-moving party's ability to rebut it has been compromised by the passage of time. Block, 988 F.2d at 350. The plaintiff argues that the first of these factors is applicable, as Dr. Liao raised this defense after the plaintiff has deposed the defendant and the defendant's two experts. (Plaintiff's Memorandum in Opposition to Defendant Liao's Motion for Summary Judgment at 20). However, when the plaintiff deposed one of the defendant's experts, Dr. Leibowitz, she inquired at length as to the expert's opinion of the plaintiff's potentially culpable conduct. (Deposition of Rodney Leibowitz ("Leibowtiz Dep.") at 113-16, attached as Exh. E to Affirmation of Debra S. Reiser dated August 16, 2004). As the plaintiff has already deposed the defense's expert witness on the issue, there is no basis for her claim that she will need to conduct additional discovery. Consequently, the plaintiff will not be prejudiced by allowing Dr. Liao to amend his answer.


  For the reasons set forth above, all three parties' motions for summary judgment are denied. Dr. Liao's motion to dismiss the action as a sanction for spoilation of evidence is also denied, as is the plaintiff's motion to impose Rule 11 sanctions. Dr. Liao's motion for leave to amend his answer is granted. Counsel shall submit the joint pretrial order within thirty (30) days.



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