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United States District Court, S.D. New York

September 16, 2005.

EDWARD SMITH, Plaintiff,

The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge


[fn*] This Memorandum Decision was prepared with the assistance of Christine Chuang, a student at the University of Pennsylvania Law School, who served as an intern in my Chambers this summer.

1. Introduction

  Pro se plaintiff Edward Smith ("Smith") brings this medical malpractice action to recover damages allegedly arising out of his treatment at a Veterans Administration Hospital in East Orange, New Jersey ("VA Hospital"). (Compl. ¶¶ 1, 19). The United States of America has now moved, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. (See Docket No. 24).

  For the reasons set forth below, the motion is granted. II. Background

  On January 30, 2003, Smith commenced this action pursuant to the Federal Tort Claims Act ("FTCA"), claiming that the VA Hospital performed a "right total hip replacement" "in a careless, reckless and negligent manner," which caused his medical condition to "deteriorate and/or worsen resulting in severe and lasting injuries to his body, as well as shock to his nervous system." (See Compl. ¶¶ 13, 15; see also Decl. Of Ass't U.S. Att'y Benjamin H. Torrance, dated July 26, 2005 ("Torrance Decl."), Ex. A (Medical Records) at 983).

  On May 26, 2005, Smith's then attorney, Giulio S. Frasciello, Esq., moved to be relieved as counsel because he and Smith were "at loggerheads as to how this case should be handled." (Docket No. 20). On June 6, 2005, this Court granted Mr. Frasciello's application and ordered that Smith have successor counsel file a notice of appearance within thirty days. (Docket No. 21). Since then, Smith has been unable to secure successor counsel even though I referred his case to the Pro Se Office of this Court to see whether any volunteer attorneys wished to represent him.

  During a telephone conference on July 6, 2005, Smith confirmed that he did not have the funds to obtain an expert witness for trial. (Torrance Decl., Ex. B (Tr. of July 6, 2005, Telephone Conference) at 2-3). Because of this evidentiary lacuna, the United States has moved for summary judgment. III. Discussion

  A. Summary Judgment

  Summary judgment is appropriate only when "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." Fed.R.Civ.P. 56(c). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial,'" and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

  In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-57 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55; accord Anderson, 477 U.S. at 247-49. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citing Cities Serv. Co., 391 U.S. at 290; Dombrowski v. Eastland, 387 U.S. 82 (1967)).

  Although the same summary judgment rules apply to a party proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Morris v. Citibank, N.A., No. 97 Civ. 2127, 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998); see also Estelle v. Gamble, 429 U.S. 97, 106 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pro se pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). By the same token, however, "a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, No. 95 Civ. 9941, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1995)); accord Jorgensen v. Careers BMG Music Publ'g, No. 01 Civ. 0357, 2002 WL 1492123, at *3 (S.D.N.Y. July 11, 2002). B. Medical Negligence Claim

  Under the FTCA, the Government's liability is determined "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994); Holland v. United States, 918 F. Supp. 87, 89 (S.D.N.Y. 1996). Because the acts or omissions in this case — which relate to Smith's hip replacement surgery — occurred in East Orange, New Jersey, the law of New Jersey governs Smith's claim.

  In New Jersey, to establish a prima facie case of medical malpractice, a plaintiff ordinarily "must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury." Teilhaber v. Greene, 727 A.2d 518, 524 (N.J. Super. Ct. App. Div. 1999) (quoting Gardner v. Pawliw, 696 A.2d 599, 608 (N.J. 1997) (citations omitted)). Such expert testimony is required because the jury usually lacks the "requisite special knowledge, technical training and background to be able to determine the applicable standard of care without the assistance of an expert." Rosenberg v. Cahill, 492 A.2d 371, 374 (N.J. 1985) (quoting Sanzari v. Rosenfeld, 167 A.2d 625 (N.J. 1961)).

  A plaintiff will be permitted to prove his case without expert testimony only in limited circumstances where the defendant's deviation from the standard of care is common knowledge. See, e.g., Rosenberg, 492 A.2d at 374-75 (common knowledge doctrine allows plaintiff in medical malpractice action to forego expert testimony "where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience"); Lucia v. Monmouth Med. Ctr., 775 A.2d 97, 103 (N.J. Super. Ct. App. Div. 2001) (common knowledge doctrine applies only "where the knowledge and experience of ordinary lay persons would enable a jury to conclude without expert testimony that a standard of care applied and was breached."). Thus, in Magner v. Beth Israel Hosp., 295 A.2d 363, 365 (N.J. Super. Ct. App. Div. 1972), the common knowledge doctrine was applied where the defendant doctor applied sterilizing alcohol to the plaintiff's face before using an electric cauterizer which sparked, igniting the alcohol and burning the plaintiff. Similarly, in Steinke v. Bell, 107 A.2d 825 (N.J. Super. Ct. App. Div. 1954), the doctrine was applied because a dentist extracted the wrong tooth.

  Here, Smith contends, among other things, that the VA Hospital used the wrong size hip replacement. The common knowledge exception consequently is inapplicable because the standard of care relating to hip replacements and the defendant's alleged deviations therefrom obviously are beyond the ken of ordinary persons. See Risko v. Ciocca, 812 A.2d 1138, 1141 (N.J. Super. Ct. App. Div. 2003) (common knowledge doctrine inapplicable where a leaking carotid endarterectomy allegedly caused a fatal stroke). Without expert testimony to support his claims, Smith consequently cannot make out a prima facie case of medical malpractice. There is no indication that Smith has retained a medical expert. Furthermore, he recently informed the Assistant United States Attorney that he does not intend to file papers opposing the government's motion for summary judgment. (See Letter from Ass't U.S. Att'y Michael J. Garcia (September 6, 2005)). The defendant United States of America therefore is entitled to summary judgment. IV. Conclusion

  For the foregoing reasons, the defendant's motion for summary judgment is granted and the complaint dismissed. The Clerk of the Court is respectfully requested to close this case.



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