The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
INELL TUCKER, ET AL. CIVIL ACTION
VERSUS NO. 18-4056-WBV-MBN
UNITED STATES OF AMERICA SECTION: D (5)
ORDER AND REASONS
Before the Court is the Government’s Motion for Summary Judgment.1 The
Motion is opposed.2 For the reasons that follow, the Motion is DENIED.
I. Background
On April 18, 2018, Inell Tucker, Tanya Craft and Chukym Tucker (collectively,
“Plaintiffs”), filed a Complaint in this Court, seeking damages under the Federal Tort
Claims Act for the death of Terry Tucker.3 Plaintiffs sued the United States of
America as the operator of the Southeast Louisiana Veterans Healthcare Services
healthcare facility in New Orleans (the “VA Hospital”), alleging that Mr. Tucker died
of esophageal cancer due to the medical malpractice of his healthcare providers at the
VA Hospital, including Dr. Urszula Moroz, who failed to timely diagnose and treat
his condition.4
1 R. Doc. 35.
2 R. Doc. 58.
3 R. Doc. 1.
4 Id.
The Government filed the instant Motion on July 17, 2019, seeking dismissal
of Plaintiffs’ lawsuit with prejudice under Federal Rule of Civil Procedure 56.5 The
Government argues that expert testimony is required to establish the essential
elements of Plaintiffs’ medical malpractice claim against it, and, if the Court grants
both of the Government’s motions in limine filed contemporaneously with the instant
Motion,6 Plaintiffs will not have an expert witness to establish these essential
elements of their claim.7 Thus, the Government asserts that, “The Court should only
consider this motion if it grants the two motions in limine filed by the United States
regarding the testimony of Terry Tucker’s treating physicians, R. Doc. 33, and the
written report and testimony of Plaintiffs’ retained expert witness, Dr. Thomas
Waits, R. Doc. 34.”8 The Government then asserts that, “If the Court denies either of
those motions, particularly R. Doc. 34, the Court should deny this motion as moot.”9
Plaintiffs oppose the Motion, asserting that they have submitted competent
expert testimony to establish a prima facie case of medical malpractice.10 Plaintiffs
point out that their expert, Dr. Thomas Waits, a board certified internist and medical
oncologist, has reviewed Mr. Tucker’s medical records and opined that the five-month
delay in diagnosis and treatment of his esophageal cancer diminished Mr. Tucker’s
survival and/or length of life. Plaintiffs assert that Dr. Waits has provided an expert
report and that his deposition is scheduled for August 14, 2019.11 Plaintiffs then
5 R. Doc. 35.
6 See R. Docs. 33 & 34.
7 R. Doc. 35-1 at pp. 1-2.
8 R. Doc. 35 at p. 1; R. Doc. 35-1 at p. 1.
9 R. Doc. 35 at p. 1; R. Doc. 35-1 at p. 1.
10 R. Doc. 58.
11 Id. at pp. 1-2. The Court notes that Plaintiffs’ filed their Opposition brief on August 13, 2019.
provide a detailed review of Mr. Tucker’s medical treatment between August 2015
and his death on March 4, 2016 before addressing Dr. Waits’ qualifications and
opinions.12 Plaintiffs argue that nearly all of the expert and/or physician witnesses
who have been deposed in this case substantially agree with Dr. Waits’ opinions
regarding the standard of care in this case, which was not followed by Dr. Moroz at
the VA Hospital.13 Plaintiffs maintain that Dr. Waits is the only expert qualified to
testify regarding medical causation in this case, and that he has opined that the
negligent delay in diagnosing and treating Mr. Tucker’s esophageal cancer caused
Mr. Tucker to lose the chance of a better medical outcome. As such, Plaintiffs argue
that the Motion must be denied.
II. Law and Analysis
Pursuant to well-established legal principles, summary judgment is
appropriate where there is no genuine disputed issue as to any material fact, and the
moving party is entitled to judgment as a matter of law.14 A party moving for
summary judgment must inform the Court of the basis for the motion and identify
those portions of the pleadings, depositions, answers to interrogatories and
admissions on file, together with affidavits, if any, that show that there is no such
genuine issue of material fact.15 If the moving party carries its burden of proof under
Rule 56, the opposing party must direct the Court’s attention to specific evidence in
12 Id. at pp. 2-13.
13 Id. at pp. 23-24.
14 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202
(1986).
15 Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552.
the record which demonstrates that the non-moving party can satisfy a reasonable
jury that it is entitled to a verdict in its favor.16 This burden is not satisfied by some
metaphysical doubt as to alleged material facts, by unsworn and unsubstantiated
assertions, by conclusory allegations, or by a mere scintilla of evidence.17 Rather,
Rule 56 mandates that summary judgment be entered against a party who fails to
make a showing sufficient to establish the existence of an element essential to that
party’s case and on which that party will bear the burden of proof at trial.18
Summary judgment is appropriate in any case where the evidence is so weak
or tenuous on essential facts that the evidence could not support a judgment in favor
of the non-moving party.19 In resolving a motion for summary judgment, the Court
must review the facts and inferences in the light most favorable to the non-moving
party, and the Court may not evaluate the credibility of witnesses, weigh the
evidence, or resolve factual disputes.20
In the instant case, it is clear that summary judgment is not proper, as genuine
issues of material fact remain in dispute. One of the most obvious material facts in
dispute is whether Dr. Moroz, the physician who treated Mr. Tucker at the VA
Hospital, breached the standard of care in this case. This fact goes to the crux of
Plaintiffs’ medical malpractice claim, and cannot be ascertained on the material
16 Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
17 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
18 Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552.
19 Little, 37 F.3d at 1075.
20 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
submitted. For this reason, the Government’s Motion for Summary Judgment must
be denied.
Additionally, the Government has repeatedly advised the Court21 that it
should only consider this Motion if the Court grants the Government’s two motions
in limine filed contemporaneously with the instant Motion, regarding the testimony
of Mr. Tucker’s treating physicians22 and the written report and testimony of
Plaintiffs’ retained expert, Dr. Waits.23 The Government has specifically requested
that, “If the Court denies either of those motions, particularly R. Doc. 34, the Court
should deny this motion as moot.”24 Because the Court has denied in part R. Doc. 34,
denying the Government’s request to exclude the written report and testimony of
Plaintiffs’ expert, Dr. Waits,25 the sole basis for the Government’s Motion for
Summary Judgment – Plaintiffs’ lack of expert testimony to establish the essential
elements of their medical malpractice claim – is now moot. Accordingly, the Motion
must be denied.
III. Conclusion
For the foregoing reasons, IT IS HEREBY ORDERED that the Government’s
21 R. Doc. 35 at p. 1; R. Doc. 35-1 at p. 1.
22 R. Doc. 33.
23 R. Doc. 34.
24 R. Doc. 35 at p.1; R. Doc. 35-1 at p. 1.
25 R. Doc. 75.
Motion for Summary Judgment?* is DENIED.
New Orleans, Louisiana, September 5, 2019.
—E Vetter
WENDY B. VITTER
United States District Judge
26 R. Doc. 35.