Judge Ezra Denies Unusual Expert Motion and Nudges Med-Mal Case Towards Liability Summary Judgment

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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.

Judge Sparks Grants Summary Judgment for the Texas Department of Insurance Citing Sovereign Immunity and Finds Racial Discrimination and Retaliation Claim Fails

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Allbritain v. Texas Department of Insurance, No. A-12-CA-431-SS (W.D. Tex. January 23, 2014)(Sparks, S.)

Allbritain was discharged by the Texas Department of Insurance (TDI) after allegedly committing insurance fraud on an insurance claim involving her home. Order at p. 1. Criminal charges against Allbritain were ultimately dismissed, and she filed a wrongful termination suit against TDI, alleging racial and age discrimination, retaliatory discharge, defamation and intentional infliction of emotional distress. Id. at 2-3. The Court granted TDI’s motion for summary judgment on all claims. Id. at 3.

The Court found that Alibritain’s claims under the Age Discrimination in Employment Act and her state law claims for defamation, negligence, and intentional infliction of emotional distress were barred by sovereign immunity. Id. at 6. Judge Sparks also concluded that Allbritain’s racial discrimination claim failed because (i) her supervisor’s refusal to allow Allbritain to telecommute was not an “adverse employment action”; (ii) the failure to reassign Allbritain her preferred support staff was not an “adverse employment action”; (iii) the refusal to allow her to run out her vacation and compensatory time after being fired was not an “adverse employment action”; (iv) Allbritain failed to provide evidence demonstrating she “was treated less favorably than other similarly situated persons outside the protected class”; and (iv) Allbritain failed to rebut TDI’s evidence of a legitimate, non-discriminatory reason for the termination of her employment. Id. at 6-16. Finally, the court rejected Allbritain’s retaliation claim because she failed to identify with specificity the “protected activity” or the “adverse employment action.” Id. at 16-17.

Judge Rodriguez Narrows the Claims in Civil Rights Case

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Texas Indigenous Council v. Simpkins, No. SA:11-CV-315-XR, slip op. (W.D. Tex. Jan. 22, 2014)(Rodriguez, J.)

This section 1983 litigation springs out a small protest in front of a hospital over a man’s alleged mistreatment at the hands of San Antonio Police Department officers.  Slip op. at 2-3.  The District Court concluded that the Texas Indigenous Council, whose structure and membership were shown to be ethereal, lacked associational standing and dismissed its claims by summary judgment.  Id. at 2-9.  Additionally, neither the association nor individual plaintiff could show the need for injunctive relief that afforded them standing to pursue such a remedy, so that claim was dismissed as well.  Id. at 9-10.  On the other hand, the District Court found a fact issue with respect to the officer’s summary judgment evidence on qualified immunity.  Id. at 10-15.  While acknowledging the latitude officers have in the area of probable cause, the District Court pointed to the small number of protestors—seven—and the location of their peaceful gathering—a wide sidewalk in front of a hospital—in concluding that there was an issue for trial on qualified immunity.  Id. at 10-13.