United States District Court, S.D. New York
September 16, 2005.
EDWARD SMITH, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
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.
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
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
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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