United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
C. Coggins, Jr.United States District Judge.
matter is before the Court on Plaintiffs' Motion for
Partial Summary Judgment on Standard of Care and Causation.
ECF No. 54. Defendant filed a Response in Opposition, ECF No.
61, and Plaintiffs filed a Reply, ECF No. 62. Accordingly,
the Motion is ripe for consideration.
filed a medical malpractice action against Defendant pursuant
to the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 2671-80. ECF No. 1. Plaintiffs'
Complaint alleges that Plaintiff George Egan (“Mr.
Egan”) received medical care at the William Jennings
Bryan Dorn Veterans Administration Medical Center in
Columbia, South Carolina (“VAMC”) for a back
injury received during the Vietnam War. Id. at 1-3.
In October 2010, Mr. Egan's primary care physician at the
VAMC ordered an MRI of the lumbar spine, which showed a
severe disc extrusion that was causing compression of various
nerves. Id. at 3. Mr. Egan was then evaluated and
treated by a number of VAMC medical providers for worsening
back pain and eventual neurological deficits. In April 2012,
a neurosurgery nurse practitioner on staff at the VAMC
diagnosed Mr. Egan with cauda equine syndrome. Id.
at 22. Immediately after this diagnosis, Mr. Egan underwent
decompression surgery at a non-VA hospital. Id. This
surgery was not successful in restoring Mr. Egan's
neurological strength or function below his waist.
Id. Mr. Egan now alleges that this delay in
diagnosis and treatment caused his permanent neurological
disclosed ten retained experts and served the applicable expert
reports on Defendant. ECF No. 31. Defendant filed an expert
disclosure, stating as follows:
The United States names the following expert medical
providers pursuant to Rule 26(a)(2)(C). These providers will
testify as to their treatment of Mr. George Egan. These
witnesses are not required to provide a written report:
(1) Dr. Jeswinder Chauhan, Dr. Jay Ginsburg, Dr. Richard
Killingsworth, Dr. Amy Lucus, Dr. Emett Maas, Dr. James
McCallum, Dr. Richard Osborne, Dr. Amit Singh, Dr. John
Steedman, Dr. Joseph Thompson, Dr. Yedatore Venkatesh, all
providers at Dorn Veteran Affairs Memorial Center.
(2) Health care providers at Augusta Veteran Affairs Memorial
(3) All other health care providers of George Egan.
ECF No. 34. Believing these expert disclosures to be
deficient, Plaintiffs filed a Motion to Exclude Defendant
from Offering Expert Testimony. ECF No. 40. The Court held
that Defendant's expert disclosures were insufficient
under Federal Rule of Civil Procedure 26(a)(2)(A) and (C) as
well as the Fourth Amended Scheduling Order because Defendant
did not adequately identify its proposed experts and did not
disclose “a summary of the facts and opinions to which
the witness is expected to testify.” ECF No. 48 at 6
(quoting Fed.R.Civ.P. 26(a)(2)(C)). However, the Court held
that “these insufficiencies do not warrant the sanction
of dismissal and can be cured.” Id. Thus, the
Court limited Defendant to calling at trial those experts
specifically named in the expert disclosure and directed
Defendant to cure the deficiencies in its disclosures within
twenty days. Id. at 9. On the twentieth day after
the Court's order, Defendant filed “Defendant's
Court Ordered Response Pursuant to Rule 26(a)(2)(C).”
ECF No. 49. This disclosure includes the names, addresses,
and phone numbers for each of the treating physicians
previously designated by Defendant. Id.
Additionally, the disclosure includes a short description of
each physician's involvement in Plaintiff's
Plaintiffs filed a Motion for Partial Summary Judgment on
Standard of Care and Causation. ECF No. 54. Plaintiffs argue
that, “[i]f Defendant intended for the Dorn VAMC
providers to contend that the standard of care is different
than what Plaintiffs' experts have established it to be,
that they otherwise complied with the standard of care, or
that no violation of the standard of care harmed Mr. Egan,
then Defendant was required to provide the statements and
summaries required by Fed.R.Civ.P. 26(a)(2)(C).” ECF
No. 55 at 23. Plaintiffs include an extensive factual
recitation in support of their Motion, ECF No. 55, and
include substantial documentary support by way of affidavits,
medical records, and deposition testimony. See ECF
Nos. 55-1-55-13. Defendant filed a Response in Opposition in
which it argues that its amended expert disclosures were
sufficient, and contends that Rule 26(a)(2)(C) contains no
requirement that Defendant provide Plaintiffs with any
information about its non-retained experts' opinions. ECF
No. 61. Additionally, Defendant references several short
excerpts of deposition testimony, which it contends create
genuine issues of material fact. Id. at 8-10. In
Reply, Plaintiffs argue that, irrespective of the sufficiency
of Defendant's amended disclosures, Defendant has failed
to adduce any evidence to rebut Plaintiffs' experts'
opinions on standard of care or causation. ECF No. 62.
the principal purposes of summary judgment “is to
isolate and dispose of factually unsupported claims . . .
.” Celotex Corp. v. Catrett, 477 U.S. 317,
323-24 (1986). It is “not a disfavored procedural
shortcut, ” but is instead the “principal tool by
which factually insufficient claims or defenses [can] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Id. at 327. To that end,
“Rule 56 states “[t]he court shall grant summary
judgment 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 proof of its existence or
non-existence would affect disposition of the case under
applicable law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). An issue of material fact is
“genuine” if the evidence offered is such that a
reasonable jury might return a verdict for the non-movant.
Id. at 257. When determining whether a genuine issue
has been raised, the court must construe all inferences and
ambiguities against the movant and in favor of the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654,
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving
party must demonstrate specific, material facts exist that
give rise to a genuine issue. Id. Under this
standard, the existence of a mere scintilla of evidence in
support of the non-movant's position is insufficient to
withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials,
without more, are insufficient to preclude granting the
summary judgment motion. Ross v. Commc'ns Satellite
Corp., 759 F.2d 355, 365 (4th Cir. 1985), overruled
on other grounds, 490 U.S. 228 (1989). “Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson,
477 U.S. at 248.
Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),