Cullum v. Siemens, et al., No. SA-12-CV-49-DAE (W.D. Tex. February 10, 2014)(Ezra, D.)

In an action against the police officers involved in the shooting death of plaintiffs’ son, the Court denied defendants’ Motion to Dismiss for failure to serve process within the 120-day time period required by Federal Rule of Civil Procedure 4(m). Order at p. 1.

Plaintiffs claimed that good cause existed for their failure to timely serve process on two police officers because they had mistakenly sent the waivers for process to the wrong police department. Id. at 7. But the Court held that plaintiffs failed to satisfy Rule 4(m)’s good cause exception because they had been informed of the police officer’s correct place of employment 17 months before service was finally effectuated. Id. at 8.

Relying on Thrasher v. City of Amarillo, 709 F.3d 509, 511 (5^th Cir. 2013), the Court applied a “heightened standard” to determine whether to exercise its discretion to dismiss the action for failure to serve process. Id. at 9. Under this standard, the Court was required to determine if there was “a clear record of delay” or “contumacious conduct” by the plaintiff, and if so, whether any aggravating factors supported dismiss. Id. The Court found that there was a “clear record of delay” by plaintiffs’ counsel, but that the lack of any aggravating factors warranted imposing a lesser sanction than dismissal. Id. at 8-11. The Court also noted that defendants’ counsel admitted that there had been no actual prejudice to the defendants as a result of plaintiffs’ delay. Id. at 16.

Garcia v. EHealthScreenings, L.L.C., et al., No. SA:12-CV-1213-DAE (W.D. Tex. February 7, 2014)(Ezra, D.)

Plaintiff brought suit alleging that defendants engaged in retaliatory behavior in violation of the Fair Labor Standards Act after plaintiff inquired about her legal right to overtime pay. Order at pp. 1-3. Defendants moved for partial summary judgment, arguing that plaintiff admitted in her deposition that she “never thought that Mr. Morgese was retaliating against [her]” and this admission precludes plaintiff from pursuing any claims for retaliation against Defendant Morgese. Id. at 8. In response, plaintiff argued that her admission only demonstrates that she did not think Defendant Morgese retaliated against her after she was terminated, supporting this contention with an affidavit. Id.

In determining whether the plaintiff’s admission in her sworn deposition was a judicial admission (which is binding) or an evidentiary admission (which she may later attempt to contradict or explain), the Court relied on Martinez v. Bally’s La., Inc., 244 F.3d 474, 476–77 (5th Cir. 2001) and Johnson v. Idexx Labs., Inc., No. 3:06-CV-381-M, 2007 WL 1650416, at *1 (N.D. Tex. June 4, 2007). The Court found that the plaintiff’s testimony constituted a binding judicial admission because it was “clear, unambiguous, and intentional” and plaintiff did not provide any independent purpose explaining why she made this statement. Id. at 11-12. Therefore, the Court granted summary judgment in favor of Defendant Morgese.

Spears v. United States of America, No. SA:13-CV-47-DAE, slip op. (W.D. Tex. Jan. 23, 2014)(Ezra, J.)

In this medical malpractice case under the Federal Tort Claims Act (FTCA), the Government acknowledged that an 81 year-old patient received an overdose of a drug intended to boost his blood pressure, but denied that the drug was the cause of his death an hour later.  Slip op. at 2-6.  The orthopedic surgeon who performed the initial procedure for the patient was hospitalized wrote the family a letter opining that the drug was cause of death, but he did not explain the how and why of the matter.  Slip op. at 22-27.  Likewise, another plaintiff’s expert cited the overdose, but did not amplify on causation.  Id.  The surviving family filed a motion for summary judgment on liability.  The government moved to strike the orthopedic surgeon as a witness.  Id. at 6. 

The government’s motion did not take issue with the sufficiency of the surgeon’s letter or argue that the letter fell short of Rule 26(a)(2)(B)’s report requirement.  Slip op. at 19 n.4.  Nor did the government argue that the report fell short of Rule 702’s expert requirements.  See Fed. R. Civ. P. 26(a)(2)(B); Fed. R. Evid. 702.  Rather, the Government maintained the surgeon’s expert testimony violated an army regulation restricting physician testimony in litigation.  Slip op. at 8-9 (quoting 32 C.F.R. § 516.49(a)).  The District Court concluded, however, that the regulation did not operate as a privilege or other evidentiary limitation, based in part on another Western District case, Young v. United States, 181 F.R.D. 344 (W.D. Tex 1997). 

The District Court then turned to the family’s motion for summary judgment and found that partial summary judgment was appropriate on breach of the standard of care—based on the admitted overdose.  Slip op. at 20-23.  But the District Court found that the how-and-why vacuum in the plaintiffs’ expert opinions foreclosed a similar finding on causation.  Id. at 23-27.  Notably, the District Court granted the family leave to file another motion for partial summary judgment on causation.”  Id. at 28.