reviewing district court’s “decision to exclude expert testimony for an abuse of discretion”
How later courts described this case
- reviewing district court’s “decision to exclude expert testimony for an abuse of discretion”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KENYON J. GARRETT CIVIL ACTION NO. 5:17-0784
VERSUS JUDGE TERRY A. DOUGHTY
UNITED STATES OF AMERICA MAG. JUDGE KAREN L. HAYES
RULING
Pending before the Court is a Motion to Amend Judgment: FRCP 59 and FRCP 60
(“Motion to Amend”) [Doc. No 127] filed by Plaintiff Kenyon J. Garrett (“Garrett”).
Garrett brought this action, pro se, after the death of his father, Clarence Garrett. He
contends that his father received substandard medical care while being treated at Overton Brooks
V.A. Medical Center (“OBVAMC”) and that substandard care culminated in his father’s
premature death on August 28, 2015.
On July 18, 2016, Garrett filed an administrative claim with the Department of Veteran
Affairs (“VA”), alleging that medical malpractice by OBVAMC health care providers caused his
father’s death.
After exhaustion of his administrative remedies, on June 6, 2016, Garrett brought suit
against the United States of America, through the Department of Veteran Affairs and OBVAMC
and individual Defendants Kenneth Booth, Larry G. Thirstrup, Robert Lukeman, Agmasie B.
Woldie, Arvind Yekanath, Furqan Mahammad, and other known and unknown medical staff,
alleging that they were responsible and liable for the death of his father. Garrett alleged that
Defendants were responsible for abuse, negligence, false imprisonment, intimidation, and
medical malpractice, which resulted in Clarence Garrett’s psychological injury, emotional
distress, and wrongful death. Garrett requested compensatory damages totaling $4 million.
As a result of motion practice and stipulations, Garrett amended his complaint more than
once to include additional claims, but eventually dismissed all Defendants except the United
States.
In November 2018, the parties filed cross motions for summary judgment, and the United
States filed a related Motion to Strike. On February 19, 2019, the Court issued a Ruling and
Judgment [Doc. Nos. 116 & 117], granting in part and denying part the United States’ Motion to
Strike, denying Garrett’s Motion for Summary Judgment, and granting the United States’ Motion
for Summary Judgment. The Court dismissed the case with prejudice.
On February 22, 2019, Garrett filed a Notice of Appeal [Doc. No. 118] to the United
States Court of Appeals for the Fifth Circuit.
On September 12, 2019, the Fifth Circuit issued an Opinion denying the appeal and
affirming the Court’s granting of summary judgment. On November 12, 2019, the Fifth Circuit
denied Garrett’s petition for rehearing.
On November 19, 2019, Garrett filed the instant motion in this Court.
On November 20, 2019, the Fifth Circuit denied Garrett’s motion for stay of the mandate
pending petition for writ of certiorari. [Doc. No. 128].
Federal Rules of Civil Procedure 59 and 60 apply to final judgments. Under Rule 59, a
party may move to alter or amend a final judgment within twenty-eight (28) days of its entry.
FED. R. CIV. P. 59(E) (“A motion to alter or amend a judgment must be filed no later than 28 days
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after the entry of the judgment.”). That Rule clearly does not apply in this case as the motion
was filed more than eight (8) months after entry of judgment.
A party may also seek relief from judgment under Rule 60. “The purpose of Rule 60(b)
is to balance the principle of finality of a judgment with the interest of the court in seeing that
justice is done in light of all the facts.” Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (5th
Cir.2005). Under this rule, a court may relieve a party from a final judgment on the following
bases:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation,
or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it
prospectively is no longer equitable; or
(6) any other reason that justifies relief.
FED. R. CIV. P. 60(b)0.
Garrett, a layperson, argues that this Court erred by dismissing his claims against the
United States “employees who were nurses, certified nurse aids, healthcare administrators, and
others non-medical employees who played a major role in causing my father’s premature death
from their substandard medical care.” [Doc. No. 127, p. 2]. He points out that he is a nurse with
special medical skills, and the United States was aware of that and could have deposed him. He
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contends further that there is no requirement that a plaintiff acting as his own expert provide an
expert report.
Garrett cites to Rule 60(b)(3), contending that the United States’ conduct in this case
constitutes obstruction of justice and fraud and was in “clear violation of [his] due process under
the Fifth and Fourteenth Amendment[s].” Id. at p. 3. He then reiterates previous claims that
the United States sought to intimidate him from offering evidence.
Finally, he objects that he asked for a jury trial, and he should have received one.
“A party making a Rule 60(b)(3) motion must establish (1) that the adverse party engaged
in fraud or other misconduct, and (2) that this misconduct prevented the moving party from fully
and fairly presenting his case.” Hesling, 396 F.3d at 641 (internal citations omitted). “The
moving party has the burden of proving the misconduct by clear and convincing evidence.” Id.
(internal citations omitted). “Unlike Rule 60(b)(2), 60(b)(3) does not require that the
information withheld be such that it can alter the outcome of the case.” Id. (internal citations
omitted). “Rule 60(b)(3) is aimed at judgments which were unfairly obtained, not at those
which are factually incorrect.” Id. (internal citations and quotations omitted).
In this case, Garrett has failed to present the Court with evidence that the United States or
its counsel engaged in any misconduct at all. The United States had no duty to depose him
merely because of knowledge of his occupation. The burden is on the plaintiff to produce the
necessary medical evidence to support his case. While a nurse may opine on certain medical
conditions as an expert, Garrett never presented the Court with appropriate summary judgment
evidence demonstrating that he had the ability to do so and was in fact offering an expert
opinion. Garrett previously raised this claim on appeal to the Fifth Circuit, which observed:
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Because this is not an obvious case in which medical negligence could be inferred
by a layperson, Garrett was required under Louisiana law to prove causation
through expert testimony. Schultz [v. Guoth], 57 So. 3d [1002, 1008 (La. 2011)];
Pfiffner [v. Correa, 643 So.2d [1228, 1234 (La. 1994)]. Garrett failed to do so.
Furthermore, we find no abuse of discretion in the district court’s refusal to
consider Garrett’s own filings as expert opinions. See, e.g., United States v.
Clements, 73 F.3d 1330, 1334 (5th Cir. 1996) (reviewing district court’s “decision
to exclude expert testimony for an abuse of discretion”); Cleveland [v. United
States, 457 F.3d 397, 404 & n.4 (5th Cir. 2006)] (discussing standards under
Louisiana Revised Statute § 9:2794(D) for qualifying as an expert in a medical
malpractice case).
Garrett v. United States, 776 F. App'x 882, 883 (5th Cir. 2019). This argument does not suffice
to support Garrett’s motion for relief from judgment.
Further, to the extent Garrett claims that the United States committed fraud because it
obstructed justice by intimidating him, his motion fares no better. Garrett previously provided
the Court with copies of the emails between him and the United States’ counsel. See [Doc. No.
77-5, pp. 101-102, 106, & 109]. The emails speak for themselves, but the Court finds nothing
obstructive about them. Given Garrett’s prolific filings in this case, it is difficult for the Court
to see how Garrett was intimidated at all.
Finally, given Garrett’s pro se status, the Court has considered whether his arguments
provide any other basis for relief. However, all of Garrett’s arguments are based on information
known to him prior to entry of the Court’s summary judgment and most were actually made to
this Court and/or the Fifth Circuit. Thus, even under Rule 60(b)(6), which authorizes relief for
any reason other than those listed in clauses (b)(1) through (b)(5), United States ex rel. Garibaldi
v. Orleans Parish Sch. Bd., 397 F.3d 334, 337 (5th Cir. 2005), the Court finds no “extraordinary
situation” or “extraordinary circumstances.” Id. (internal citations and quotation marks omitted).
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Accordingly, the Court will deny Garrett’s motion.
MONROE, LOUISIANA, this 21‘ day of November, 2019.
TERRY A. DOUGHTY
UN (ep STATES DISTRi@’JUE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
KENYON J. GARRETT CIVIL ACTION NO. 5:17-0784
VERSUS JUDGE TERRY A. DOUGHTY
UNITED STATES OF AMERICA MAG. JUDGE KAREN L. HAYES
ORDER
For the reasons set forth in this Court’s Ruling,
IT IS ORDERED that Plaintiff Kenyon J. Garrett’s (“Garrett”) is DENIED.
MONROE, LOUISIANA, this 21 day of November, 2019.
CAA. (\ oo
RRY A. DOUGHT t )
UNITED STATES DISTRICTJUDG