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Puckett v. United States

United States District Court, D. Maryland, Southern Division

September 2, 2016

MARY PUCKETT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          Charles B. Day United States Magistrate Judge

         Before this Court is Defendant's Motion for Partial Summary Judgment (ECF No. 36) (the “Motion”). The Court has reviewed the Motion, related memoranda, and applicable law. No hearing is deemed necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court GRANTS in part and DENIES in part the Motion.

         I. Factual Background

         Plaintiff Mary Puckett (“Plaintiff”) alleges that on May 7, 2012, Dr. Henry Lin, staff surgeon at the National Naval Medical Center in Bethesda, Maryland, performed a laparoscopic Roux-En-Y gastric bypass (“RYGB procedure”), a procedure Plaintiff had not consented to. Pl.'s Compl. 2-4. However, on April 20, 2012, Plaintiff had signed a consent form to have a laparoscopic sleeve gastrectomy (“LSG procedure”) performed on the scheduled surgery date. Id. at 3. As a result, Plaintiff alleges that Defendant's staff surgeon was negligent when he failed to use reasonable and ordinary care on May 7th and performed the wrong surgical procedure. Id. at 5. Plaintiff further alleges that as a direct and proximate result of Defendant's negligence, she suffers and will continue to suffer from permanent medical and lifestyle changes, including but not limited to vitamin deficiency, malabsorption, inability to use certain medications, and dumping syndrome. Id.

         Defendant has stipulated to the fact that it breached the standard of care when its health care provider performed the RYGB procedure. Mot. 1. The sole issue before the Court at this moment is the extent of Plaintiff's economic damages. Id. at 2. Specifically, Defendant has moved for summary judgment on Plaintiff's claim seeking the cost of certain vitamins, nutritional supplements, and medications. Id.

         II. Standard of Review

         Under the Federal Rules of Civil Procedure, “[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 dispute is deemed genuine only if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” and a fact is deemed material only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Supreme Court has explained that the burden of proof lies with the movant to identify “those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A court reviewing a motion for summary judgment must view the evidence in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         III. Analysis

         A. Whether RYGB and LSG patients have the same nutritional deficiencies is a genuine dispute as to a material fact and summary judgment is denied as to this issue.

         Defendant argues that Plaintiff does not have any admissible evidence establishing that she is entitled to economic damages as a result of the breach. Mot. 11. In this regard, Defendant argues that Plaintiff does not have any admissible evidence demonstrating a causal connection between having had the RYGB procedure (the breach in this case) and the need to take multivitamins, iron, calcium citrate, vitamin D, vitamin B complex, and protein shakes, because if Plaintiff would have had the LSG procedure, she would have taken the same lifelong minimal daily nutritional supplements. Id. Defendant also argues that Dr. Allen Blosser, a gastroenterologist, is not qualified to opine as to the nutritional recommendations for RYGB and LSG patients, and his opinion that Plaintiff should take nutritional supplements for the rest of her life as a result of the RYGB procedure, should be excluded as mere speculation. Id. at 12. In addition, Defendant contends that contrary to Dr. Blosser's opinion, the American Society for Metabolic and Bariatric Surgery's Clinical Practice Guidelines for Perioperative Nutritional, Metabolic, and Nonsurgical Support of the Bariatric Surgery Patient (the “Guidelines”), published March 2013, recommend that both RYGB and LSG patients receive the same lifelong nutritional supplements. Id. at 12-13. Defendant further claims that Plaintiff lacks admissible evidence establishing that she is required to take protein shakes as a result of the RYGB procedure, or that she would not be taking protein shakes if she had the LSG procedure. Id. at 13. Defendant argues that the American Society for Metabolic and Bariatric Surgery states that after weight-loss surgery, most patients will require 60-80 grams of protein daily, which can be obtained through meats, eggs, dairy products, beans, as well as protein shakes or bars. Id.

         In response, Plaintiff argues that her testimony and Dr. Blosser's deposition testimony, which are admissible evidence, establish that Plaintiff's daily regimen of nutritional supplements is more extensive and more expensive than it would have been if she had the LSG procedure done. Pl.'s Opp'n, ECF No. 37, 7-8. Plaintiff also contends that the Guidelines Defendant refers to are inadmissible hearsay under Fed.R.Civ.P. 56(c)(1)(B). Id. at 9. Even if the Guidelines were admissible, Plaintiff argues, they apply to recommendations for nutritional supplements in the “early postoperative care” period rather than to the “follow-up” period that lasts a lifetime. Id. Plaintiff further claims that Defendant seeks to exclude the cost of the daily protein shake by relying on hearsay statements from the Guidelines, as well as a hearsay website article. Id. at 9-10. Plaintiff claims that her deposition testimony, which the medical records corroborate, established that Defendant's nutritionist instructed her to start taking, for life, a daily protein shake as part of an “aggressive supplementation” strategy. Id. at 10. Plaintiff does concede that she would be taking multivitamin and vitamin D pills if she had the LSG procedure done. Id. As a result, excluding the cost of the multivitamin and vitamin D reduces the damages related to the nutritional supplements from $56, 568.44 to $53, 604.41. Id.

         In its reply, Defendant responds to Plaintiff's position that the Guidelines are inadmissible hearsay by arguing that a party is entitled to introduce statements contained in a publication if it is relied upon by the expert, or alternatively, the statement may be admitted upon judicial notice under Fed.R.Evid. 803(18). Def.'s Reply, ECF No. 38, 3, n.2. Defendant further claims that Plaintiff has failed to demonstrate that Dr. Blosser is qualified to provide an opinion as to the standard of care and/or recommendations made to patients after the LSG procedure. Id. at 3.

         The Court finds that for purposes of the present motion, Dr. Blosser is qualified to opine as to the nutritional recommendations for RYGB and LSG patients. The Court further finds that Dr. Blosser's opinion that Plaintiff has to take additional nutritional supplements as a result of the RYGB procedure, is admissible. Under Rule 702 of ...


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