United States District Court, D. Maryland, Southern Division
Charles B. Day United States Magistrate Judge
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.
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.
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.
Standard of Review
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).
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).
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.
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.
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.
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.
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 ...