GUNTER v. SOUTHERN HEALTH PARTNERS, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID RAY GUNTER, )

)

Plaintiff, )

)

v. ) 1:16CV262

)

SOUTHERN HEALTH PARTNERS, INC., )

et al., )

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Motion to Reconsider filed

by Defendant Manuel Maldonado, (Doc. 179), to which Plaintiff has

responded, (Doc. 184), and Defendant Maldonado has replied, (Doc.

185). Plaintiff David Ray Gunter has also filed a Motion for

Reconsideration, (Doc. 181), to which Defendants Southern Health

Partners, Inc. (“SHP”), Jason Junkins, Sandra Hunt, Fran Jackson,

and Manuel Maldonado (collectively, “Medical Defendants”) have

responded, (Doc. 183), and Plaintiff has replied, (Doc. 186).

These motions are ripe for resolution.

For the reasons stated herein, Defendant Maldonado’s motion

will be granted in full, and Plaintiff’s motion will be granted

in part and denied in part. This court will reopen summary

judgment to address three narrow issues.

I. BACKGROUND

Plaintiff alleges state and federal law claims against

Medical Defendants, healthcare providers at jails in Stokes and

Davie counties, based on injuries Plaintiff sustained from blood

clots shortly after his release from these jails in November

2012. (See Doc. 178 at 6-14.)1 The instant motions arise out of

this court’s Memorandum Opinion and Order issued March 23, 2021.

(“March 23rd Order” (Doc. 178).) That order granted Medical

Defendants’ Motion to Strike, (Doc. 142), and granted Medical

Defendants’ Motion for Summary Judgment, (Doc. 123), as to all

claims against Defendants SHP, Junkins, Hunt, and Jackson,

(March 23rd Order (Doc. 178) at 75.) The order also granted

Medical Defendants’ Motion for Summary Judgment as to the claims

of medical malpractice, negligent supervision, violations of

§ 1983, false imprisonment, and intentional infliction of

emotional distress against Defendant Maldonado, but denied the

motion as to the claim of negligence against Defendant

Maldonado. (Id.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

II. STANDARD OF REVIEW

The parties style their motions as arising under Rules

54(b) and 59(e) of the Federal Rules of Civil Procedure. (See

Def. Maldonado’s Mem. in Supp. of Mot. to Reconsider

(“Maldonado’s Br.”) (Doc. 180) at 2-3; Pl.’s Mem. in Supp. of

Mot. for Recons. (“Pl.’s Br.”) (Doc. 182) at 1.)

Although the Fourth Circuit has not specifically

articulated the standard for evaluating a motion for

reconsideration under Rule 54(b), see Am. Canoe Ass’n v. Murphy

Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003), district

courts in the Fourth Circuit routinely look to the standards

governing the reconsideration of final judgments under Rule

59(e) for guidance in considering a motion for reconsideration

of an interlocutory order under Rule 54(b). See Volumetrics Med.

Imaging, LLC v. Toshiba Am. Med. Sys. Inc., No. 1:05CV955, 2011

WL 6934696, at *2 (M.D.N.C. Dec. 30, 2011); Hinton v. Henderson,

No. 3:10cv505, 2011 WL 2142799, at *1 (W.D.N.C. May 31, 2011);

Pender v. Bank of Am. Corp., No. 3:05-CV-238-MU, 2011 WL 62115,

at *1 (W.D.N.C. Jan. 7, 2011); Directv, Inc. v. Hart, 366

F. Supp. 2d 315, 317 (E.D.N.C. 2004).

A motion for reconsideration under Rule 59(e) is granted

only in three circumstances: “(1) to accommodate an intervening

change in controlling law; (2) to account for new evidence not

available at trial; or (3) to correct a clear error of law or

prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire

Ins. Co., 148 F.3d 396, 403 (4th Cir. 1993). See also Zinkand v.

Brown, 478 F.3d 634, 637 (4th Cir. 2007). Manifest injustice is

defined as “an error by the court that is direct, obvious, and

observable.” Register v. Cameron & Barkley Co., 481 F. Supp. 2d

479, 480 n.1 (D.S.C. 2007) (internal quotations omitted). “Clear

error occurs when [a court is] ‘left with the definite and firm

conviction that a mistake has been committed.’” United States v.

Woods, 477 F. App’x 28, 29 (4th Cir. 2012) (citing United States

v. Harvey, 532 F.3d 326, 336 (4th Cir. 2008)).

A motion for reconsideration under Rule 59(e) is improper

where “it only asks the Court to rethink its prior decision, or

presents a better or more compelling argument that the party

could have presented in the original briefs on the matter.”

Hinton, 2011 WL 2142799, at *1 (internal quotations and citation

omitted). See also Pac. Ins. Co., 148 F.3d at 403 (“Rule 59(e)

motions may not be used, however, to raise arguments which could

have been raised prior to the issuance of the judgment, nor may

they be used to argue a case under a novel legal theory that the

party had the ability to address in the first instance.”);

Directv, Inc., 366 F. Supp. 2d at 317 (holding that motion to

reconsider is not proper to “merely ask[] the court to rethink

what the Court had already thought through — rightly or

wrongly”) (internal citations and quotations omitted).

“[I]f a party relies on newly discovered evidence . . . ,

the party must produce a legitimate justification for not

presenting the evidence during the earlier proceeding.” Pac.

Ins. Co., 148 F.3d at 403 (internal quotations omitted). See

also Zinkand, 478 F.3d at 637 (“If the court elects to look at

additional evidence represented as having been unavailable at

the prior hearing, the court must satisfy itself as to the

unavailability of the evidence and likewise examine the

justification for its omission.”).

Courts apply the test from a Rule 59(e) motion when

amending an interlocutory order, but the elements are not

applied with the same force, Beyond Sys., Inc. v. Kraft Foods,

Inc., Civil Action No. PJM-08-409, 2010 WL3059344, at *2 (D. Md.

Aug. 4, 2010); Long v. O’Reilly’s Auto. Stores, Inc., Civil

Action No. 6:12-902-MGL, 2014 WL 2864589, at *2 (D.S.C. June 23,

2014), because “[m]otions for reconsideration of interlocutory

orders are not subject to the strict standards applicable to

motions for reconsideration of a final judgment,” Am. Canoe

Ass’n, 326 F.3d at 514; see also Fayetteville Invs. v. Com.

Builders, Inc., 936 F.2d 1462, 1472 (4th Cir. 1991) (“[A] review

of an interlocutory order under Rule 54 is not subject to the

restrictive standards of motions for reconsideration of final

judgments . . . .”).

III. ANALYSIS

A. Defendants Maldonado’s Motion to Reconsider

Defendant Maldonado argues that this court should

reconsider denying the motion for summary judgment as to

Plaintiff’s ordinary negligence claim against Defendant

Maldonado because this court’s decision “arises from an error of

law that would cause manifest injustice to Maldonado because of

inconsistency with the Court’s proximate causation holdings in

the [March 23rd] Order.” (Maldonado’s Br. (Doc. 180) at 3.)

In its March 23rd Order, this court granted summary

judgment to Medical Defendants as to Plaintiff’s medical

malpractice claims because this court found that Plaintiff’s

medical experts did not testify with a reasonable degree of

medical certainty, as required to establish proximate cause for

medical malpractice claims under North Carolina law. (March 23rd

Order (Doc. 178) at 41-56.)

Defendant Maldonado argues, in the instant motion, that

medical expert testimony is also required under North Carolina

law to establish proximate cause for ordinary negligence actions

when the alleged injury involves complicated medical questions.

(Maldonado’s Br. (Doc. 180) at 4-5 (citing Taylor v. Shreeji

Swami, Inc., 820 F. App’x 174, 177 (4th Cir. 2020); Shaver v.

United States, 319 F. Supp. 2d 649, 664 (M.D.N.C. 2004); Ward v.

Borum Healthcare, LLC, No. COA12-418, 2012 WL 5864382 (N.C. Ct.

App. 2012); Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753

(1965)).) Defendant Maldonado argues that “Plaintiff’s failure

to establish proximate cause on the medical malpractice claim

requires this Court to conclude that Plaintiff likewise failed

to establish proximate cause for the negligence claim.”

(Maldonado’s Br. (Doc. 180) at 4.)

Plaintiff appears to concede that medical expert testimony

is necessary to establish proximate cause in some ordinary

negligence claims, (Pl.’s Resp. to Def. Maldonado’s Mot. for

Recons. (“Pl.’s Resp.”) (Doc. 184) at 1), and instead, argues

that this court was incorrect in finding that Plaintiff’s

medical experts did not forecast evidence of proximate cause,

(id. at 2-10).

This court finds that Defendant Maldonado had every

opportunity at summary judgment to present authorities for the

proposition that medical expert testimony is required to

establish proximate cause for certain ordinary negligence claims

under North Carolina law. Not only did Defendant Maldonado not

present these authorities to this court at summary judgment,

(see Docs. 124, 144), but also, this court did not even reach

this issue because Defendant Maldonado had “not met [his]

initial burden of demonstrating ‘that there is an absence of

evidence to support [Plaintiff’s] case,’” as to the element of

breach of duty for Plaintiff’s ordinary negligence claim. (March

23rd Order (Doc. 178) at 64 (citing Celotex Corp. v. Catrett,

477 U.S. 317, 325 (1986)).) As this court found in its March

23rd Order, Defendant Maldonado offered only brief arguments

with regard to Plaintiff’s ordinary negligence claim. “In [his]

opening brief, [Defendant Maldonado’s] only arguments regarding

negligence are that ‘Plaintiff’s negligence claim is actually a

claim for medical malpractice,’ and thus, should be dismissed.”

(Id. at 63 (citing (Doc. 124) at 22).) Similarly, in Defendant

Maldonado’s reply brief, even after Plaintiff had offered

evidence in support of his argument that Defendant Maldonado

breached a duty related to continuity of care, (Doc. 137 at 6,

19-20), Defendant Maldonado did “not provide any argument as to

why Defendant Maldonado is not liable for the alleged

negligence,” (March 23rd Order (Doc. 178) at 63 (citing (Doc.

144) at 9-10)).

A motion for reconsideration may not ordinarily be used “to

argue a case under a novel legal theory that the party had the

ability to address in the first instance.” Pac. Ins. Co., 148

F.3d at 403. Defendant did not raise this argument in his

summary judgment briefs, (see Docs. 124, 144), nor has he

presented any reason why this argument could not have been

raised, (see Maldonado’s Br. (Doc. 180); Doc. 185). For this

reason, under a Rule 59(e) analysis, this court would be

compelled to deny Defendant Maldonado’s motion. Pac. Ins. Co.,

148 F.3d at 403.

Nevertheless, this court cannot ignore that, if correct,

Defendant Maldonado’s arguments might cause this court to

reverse its findings from the March 23rd Order regarding

Plaintiff’s ordinary negligence claim and enter complete summary

judgment as to all claims, eliminating the need for a trial.

“[D]istrict courts have the inherent authority to manage

their dockets and courtrooms with a view toward the efficient

and expedient resolution of cases,” Dietz v. Bouldin, 579 U.S.

____, ____, 136 S. Ct. 1885, 1892 (2016), and “a district court

retains the power to reconsider and modify its interlocutory

judgments, including partial summary judgments, at any time

prior to final judgment when such is warranted,” Am. Canoe

Ass’n, 326 F.3d at 514-15; see also Dietz, 136 S. Ct. at 1892-93

(“[A] district court ordinarily has the power to modify or

rescind its orders at any point prior to final judgment in a

civil case.”); Moses H. Cone Mem’l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 12 (1983) (“[E]very order short of a final

decree is subject to reopening at the discretion of the district

judge.”); Fed. R. Civ. P. 54(b) (district court can revise

partial final judgment order absent certification of finality).

For this reason, although this court uses the test from Rule

59(e) motions as a guide, Rule 54(b) motions are not subject to

the same “heightened standards for reconsideration.” Am. Canoe

Ass’n, 326 F.3d at 514.

Thus, although this court might deny Defendant Maldonado’s

motion for reconsideration if this court’s March 23rd Order was

a final judgment, see Pac. Ins. Co., 148 F.3d at 403, under a

lessened standard for reconsideration appropriate for

interlocutory orders, this court finds that reconsideration is

appropriate in order to ensure “judicial economy,” and to

promote “[t]he ultimate responsibility of the federal courts, at

all levels,” namely, “to reach the correct judgment under law.”

Am. Canoe Ass’n, 326 F.3d at 515. Accordingly, this court finds

that reconsideration is appropriate pursuant to Rule 54(b) and

will reopen summary judgment for the parties to address the

issue of proximate causation under Plaintiff’s ordinary

negligence claim.

B. Plaintiff’s Motion for Reconsideration

1. Ms. Banas’ Testimony

Plaintiff asks this court to reconsider its findings

regarding the testimony of one of the medical experts, Nurse

Tammy Banas. (Pl.’s Br. (Doc. 182) at 1-6.) Plaintiff argues

that reconsideration is necessary to avoid a “manifest

injustice.” (Pl.’s Reply to the Medical Defs.’ Resp. in Opp’n to

Pl.’s Mot. for Recons. (“Pl.’s Reply”) (Doc. 186) at 2.)

a. Testimony Regarding Defendant Hunt

In its March 23rd Order, this court found that Ms. Banas

did not express an opinion as to whether Defendant Hunt had

breached the standard of care:

Ms. Banas, when asked as to whether she had an opinion

as to whether Defendant Hunt breached the standard of

care, answered, “No.” (Banas Dep. (Doc. 171) at 110.)

Although Ms. Banas expressed, referring to Defendant

Hunt’s conduct, that “it’s unfortunate for the

patient” that someone could be “in a jail on a Friday

and not have a nurse available until a Monday,” Ms.

Banas ultimately agreed with counsel that Defendant

Hunt “handled that the way it should be handled.”

(Id.)

(March 23rd Order (Doc. 178) at 31.)

Plaintiff argues that, following her deposition, Ms. Banas

offered an opinion that Defendant Hunt breached the standard of

care. (Pl.’s Br. (Doc. 182) at 5-6.) In support of Plaintiff’s

arguments, Plaintiff seeks to introduce Banas’ expert report,

(Doc. 182-1), which was not included in Plaintiff’s Response to

Medical Defendants’ Motion for Summary Judgment, (see Pl.’s

Reply (Doc. 186) at 1). Plaintiff argues that Medical

Defendants’ counsel “misrepresented to Nurse Banas that no

intake of any kind was done on Friday and that ‘SHP did not have

a nurse available until Monday,’” (Pl.’s Br. (Doc. 182) at 5

(quoting (Doc. 171) at 109-10), and that these

misrepresentations caused “Nurse Banas to testify that ‘under

the circumstances, [Nurse Hunt] handled that the way it should

be handled,’” (id. (quoting (Doc. 171) at 109-10)). Plaintiff

argues that Medical Defendants withheld a fax from Plaintiff

during discovery “that provided concrete evidence that SHP’s

healthcare providers had been made aware that Mr. Gunter had a

valid prescription for Coumadin at the time he was first placed

into custody,” (id. at 5-6), and as a result, “Nurse Banas’

criticisms at the time of her deposition were limited,” (id. at

5).

This court finds that Plaintiff should have anticipated at

summary judgment that Medical Defendants were challenging

Ms. Banas’ testimony. Medical Defendants explicitly argued in

their summary judgment brief, filed July 6, 2020, that Ms. Banas

did not testify that Defendant Hunt breached the standard of

care, stating “[a]s shown in the deposition testimony, none of

Plaintiff’s experts opined that nurse Hunt . . . breached the

standard of care.” (Doc. 124 at 13.) Medical Defendants also

specifically cited Ms. Banas’ deposition testimony, summarizing

her as stating that “Nurse Hunt did not breach the standard of

care.” (Id.) If Plaintiff believed that a misrepresentation had

occurred and that Ms. Banas had actually stated in her report,

dated April 17, 2019, (Doc. 182-1 at 2), that Hunt breached the

standard of care,2 Plaintiff should have submitted this expert

report as an exhibit to his response brief at summary judgment

when he filed it on July 30, 2020. (Doc. 137.) Local Rule 56.1

is clear: a party responding to summary judgment must set out

“the specific, authenticated facts existing in the record or set

forth in accompanying affidavits that would be sufficient to

support a jury finding . . . .” LR 56.1(e); see also Fed R. Civ.

P. 56(c)(1)(A). Plaintiff has not offered a reason why this

report was not submitted at summary judgment. (See Pl.’s Br.

(Doc. 182); Pl.’s Reply (Doc. 186).)

Moreover, even if Plaintiff had submitted Ms. Banas’ expert

report, this court does not find that it would have changed this

2 This court notes that Ms. Banas did not name Defendant

Hunt in the expert report, instead stating generally that “[i]n

my professional opinion, to a reasonable degree of medical

certainty, the care provided to Mr. Gunter was a breach in the

standard of care applicable to a Licensed nurse.” (Doc. 182-1 at

2.)

court’s findings in the March 23rd Order. The Fourth Circuit has

held that “[a] genuine issue of material fact is not created

where the only issue of fact is to determine which of the two

conflicting versions of the plaintiff’s testimony is correct.”

Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984); see

also Williams v. Genex Servs., LLC, 809 F.3d 103, 110 (4th Cir.

2015) (“It is well-settled that a plaintiff may not avoid

summary judgment by submitting contradictory evidence.”); In re

Family Dollar FLSA Litig., 637 F.3d 508, 513 (4th Cir. 2011)

(holding that where a plaintiff’s deposition testimony and later

affidavit were “inconsistent,” the court would “disregard her

affidavit and rely on the testimony she gave in her

deposition”). “If a party who has been examined at length on

deposition could raise an issue of fact simply by submitting an

affidavit contradicting his own prior testimony, this would

greatly diminish the utility of summary judgment as a procedure

for screening out sham issues of fact.” Barwick, 736 F.2d at 960

(internal quotations omitted). For this reason, this court finds

that Plaintiff’s expert report3 may not be used to contradict her

deposition testimony and to create a genuine dispute of material

3 This court notes that the expert report is not sworn

testimony, (see Doc. 182-1 at 3), falling short of the

reliability standards that would be present in an affidavit.

fact as to whether a medical expert testified that Defendant

Hunt breached the standard of care.

Accordingly, this court will deny Plaintiff’s motion to

reconsider Ms. Banas’ testimony regarding Defendant Hunt is

improper and unnecessary.

b. Ms. Banas’ Standard of Care Testimony

Plaintiff further argues that this court should have

accepted Ms. Banas’ testimony as to the standard of care at the

jails. (Pl.’s Reply (Doc. 186) at 1-3.) In its March 23rd Order,

this court found that although Ms. Banas “opined whether

Defendant Jackson breached the standard of care owed to

Plaintiff,” (March 23rd Order (Doc. 178) at 34), Plaintiff had

not “provided evidence that Ms. Banas [was] sufficiently

familiar with the standard of care in correctional nursing for

pre-trial detainees in North Carolina jails such that she could

testify to any possible breach . . . , in accordance with North

Carolina Rule of Evidence 702 and N.C. Gen. Stat. § 90-21.12,”

(id. at 38).

Plaintiff argues that this court misapplied North Carolina

law in concluding that “there is a different standard for

nursing in a North Carolina detention center than there is for

other North Carolina healthcare institutions,” (Pl.’s Br. (Doc.

182) at 2), citing authorities not previously cited in

Plaintiff’s summary judgment response, (see Doc. 137). Plaintiff

seeks to introduce Ms. Banas’ expert report, (Doc. 182-1),

excerpts from the deposition of Defendant Hunt, (Doc. 182-2),

and new authorities, (Pl.’s Br. (Doc. 182) at 1-4), to argue

that there is not a different standard of nursing in a North

Carolina detention center than in other North Carolina

healthcare settings and that Ms. Banas is qualified to testify

as to a breach by Defendant Jackson, (id. at 2-4).

Plaintiff argues that he did not submit this evidence at

summary judgment because “[w]hile the Medical Defendants’

memorandum did make quick mention of the fact that Nurse Banas

has never worked in a detention center setting, they never once

asserted that she was unqualified and should not be permitted to

testify.” (Id. at 2-3.) Plaintiff further argues that Medical

Defendants did not challenge Ms. Banas’ qualifications “because

the standard of care issues that are [] pertinent to this case

are not dependent upon the specific setting,” analogizing the

legal issues in the instant matter to those in Diggs v. Novant

Health, Inc., 177 N.C. App. 290, 296, 628 S.E.2d 851, 856

(2006). (Pl.’s Br. (Doc. 182) at 3.)

Medical Defendants do not explicitly contest Plaintiff’s

assertions that Medical Defendants did not raise this issue in

their summary judgment motion. (See Med. Defs.’ Resp. in Opp’n

to Pl.’s Mot. for Recon. (“Med. Defs.’ Resp.”) (Doc. 183) at

10-11.) Instead, Medical Defendants argue that this court

correctly found that Ms. Banas’ deposition testimony did not

demonstrate that she was familiar with the standard of care for

correctional nursing. (Id. at 11.)

As this court found in its March 23rd Order, (Doc. 178 at

26-27), and neither party materially disputes, (see Pl.’s Br.

(Doc. 182); Med. Defs.’ Resp. (Doc. 183)), under Rule 702(d) of

the North Carolina Rules of Evidence, an expert witness must

testify regarding the applicable standard of care. Wood v.

United States, 209 F. Supp. 3d 835, 842 (M.D.N.C. 2016); N.C.

Gen. Stat. § 8C-1, Rule 702(d). “Although it is not necessary

for the witness . . . to have actually practiced in the same

community as the defendant, the witness must demonstrate that he

is familiar with the standard of care in the community where the

injury occurred, or the standard of care in similar

communities.” Billings v. Rosenstein, 174 N.C. App. 191, 194,

619 S.E.2d 922, 924 (2005) (internal citations omitted)

(emphasis added). The North Carolina Court of Appeals has

clarified that the “community standard allows for consideration

of the effect that variations in facilities, equipment, funding,

etc., throughout the state might have on the standard of care,”

Tucker v. Meis, 127 N.C. App. 197, 199, 487 S.E.2d 827, 829

(1997), and that “the concept of an applicable standard of care

encompasses more than mere physician skill and training; rather,

it also involves the physical and financial environment of a

particular medical community,” Henry v. Se. OB-GYN Assocs.,

P.A., 145 N.C. App. 208, 211, 550 S.E.2d 245, 247 (2001). If an

expert does not establish that they are familiar with the

applicable standard of care, their testimony is inadmissible.

Tucker, 127 N.C. App. at 199, 487 S.E.2d at 829.

This court has doubts about Plaintiff’s arguments that

“Plaintiff had no reason to suspect that there would be any

challenge to Nurse Banas’s ability to testify.” (Pl.’s Reply

(Doc. 186) at 2.) As Plaintiff concedes, “North Carolina does

recognize that the way healthcare is practiced can differ from

one community to another and that an expert must have

familiarity with the way it is conducted in a particular region

. . . .” (Id.) North Carolina law is also explicit that an

expert must “demonstrate[] specific familiarity with and

express[] unequivocal opinions regarding the standard of care.”

Crocker v. Roethling, 363 N.C. 140, 146, 675 S.E.2d 625, 630

(2009). Moreover, although Medical Defendants did not explicitly

challenge Ms. Banas’ qualifications to testify as to the

standard of care in a jail, Medical Defendants did offer a

citation to Lewis v. North Carolina Department of Public Safety,

No. 1:15-cv-284-FDW, 2019 WL 177480, at *2 (W.D.N.C. Jan. 11,

2019), for the proposition that the standard of care must be

consistent with community standards at a defendant’s prison.

(Doc. 124 at 12.) Similarly, Medical Defendants noted that Nurse

Ms. Banas had “never worked in a jail or a prison,” yet

“provided two complaints against nurse Jackson.” (Id. at 13.)

Given Plaintiff’s knowledge of North Carolina law, as well as

Medical Defendants’ allusions as Ms. Banas’ lack of personal

experience with jails and prisons, this court struggles to

understand how Plaintiff did not anticipate that Ms. Banas’

qualifications would be an important issue that this court would

need to resolve at summary judgment.

The burden at summary judgment is upon Plaintiff, in

responding, is to “file with the Court a response that sets out

. . . authenticated facts existing in the record or set forth in

accompanying affidavits that would be sufficient to support a

jury finding . . . .” LR 56.1(e) (emphasis added). Even if Fed.

R. Civ. P. 56(c)(2) requires an objection before a court can

find evidence irrelevant, Fed. R. Civ. P. 56(c)(4) requires an

affidavit opposing a motion for summary judgment “set out facts

that would be admissible in evidence . . . .” “[D]istrict courts

may enter summary judgment sua sponte ‘so long as the losing

party was on notice that she had to come forward with all of her

evidence.’” Penley v. McDowell Cnty. Bd. of Educ., 876 F.3d 646,

661 (4th Cir. 2017) (citing Celotex, 477 U.S. at 326).

Here, Medical Defendants moved for summary judgment on all

claims against them. (See Doc. 124.) One of the claims against

Medical Defendants was for medical malpractice, for which expert

testimony with experience in a similar community is essential to

proving the element of breach of the standard of care. See N.C.

Gen. Stat. § 8C-1, Rule 702(d). Plaintiff was on notice that

Medical Defendants contended that Plaintiff’s evidence “failed

to establish a breach of the applicable standard of care.” (Doc.

124 at 12.) Accordingly, this court finds that Plaintiff was on

notice “to come forward with all . . . evidence” relevant to his

medical malpractice claim, see Celotex, 477 U.S. at 326; see

also Penley, 876 F.3d at 661 (finding adequate notice where

defendant moved for summary judgment on all claims against him);

Allstate Ins. Co. v. Fritz, 452 F.3d 316, 323 (4th Cir. 2006)

(finding adequate notice where one of two defendants moved for

summary judgment on a claim), which includes affidavits, see LR

56.1(e); Fed. R. Civ. P. 56(c)(4).

Nevertheless, Medical Defendants do not contest Plaintiff’s

justification that the issue was not raised in summary judgment

briefing. (See Med. Defs.’ Resp. (Doc. 183) at 10-12.) Because

the standards for reconsideration of interlocutory orders are

less strict than those applicable to motions for reconsideration

of a final judgment, Am. Canoe Ass’n, 326 F.3d at 514, this

court finds that Plaintiff has presented an adequate

justification for this court to reconsider whether there is a

different standard for correctional nursing in jails, compared

to other medical settings, (see Pl.’s Br. (Doc. 182) at 1-6;

Pl.’s Reply (Doc. 186) at 1-3). For these reasons, this court

will reopen summary judgment to permit the parties to address

the issue of whether Ms. Banas was qualified to testify

regarding Defendant Jackson’s possible breach of the standard of

care.4

2. Testimony Regarding Proximate Causation

Second, Plaintiff asks this court to reconsider its

findings that Plaintiff’s proximate cause experts, Dr. Virginia

Yoder and Dr. Damian Laber, did not testify with a reasonable

degree of medical certainty that Medical Defendants’ conduct was

not the proximate cause of Plaintiff’s injuries. (Pl.’s Br.

(Doc. 182) at 6-13.)

4 This court will not permit Plaintiff to address why

Ms. Banas would be qualified to testify as to whether Defendant

Hunt breached the standard of care, as Plaintiff has not met his

burden in showing that Banas offered an opinion regarding

Defendant Hunt’s possible breach. See discussion supra Part

III.B.1.

Under North Carolina law, “expert opinion testimony is

required to establish proximate causation of the injury in

medical malpractice actions,” Cousart v. Charlotte-Mecklenburg

Hosp. Auth., 209 N.C. App. 299, 303, 704 S.E.2d 540, 543 (2011);

see also Taylor, 820 F. App’x at 178. For a medical expert’s

causation testimony to reach a jury, there must be evidence on

the record that establishes “(1) the likelihood that defendant’s

conduct caused plaintiff’s injury (which must be more probable

than not), and (2) whether the expert expressed this ‘more

likely than not’ opinion to a reasonable degree of medical

certainty.” Riggins v. SSC Yanceyville Operating Co., 800 F.

App’x 151, 156-57 (4th Cir. 2020). Courts look to the “entire

substantive evidence of causation” to determine the sufficiency

of the expert’s opinion. Fitzgerald v. Manning, 679 F.2d 341,

354-56 (4th Cir. 1982).

Plaintiff first argues that “[b]oth Plaintiff’s experts

. . . expressly offer their opinions to a reasonable degree of

certainty,” and that this court “discounts Plaintiff’s expert

opinions, requiring them to establish a baseline INR prior to

his incarceration in order to opine regarding the Medical

Defendants’ neglect.” (Pl.’s Br. (Doc. 182) at 9.) Plaintiff

further argues that, “[i]n doing so the Court expressly rejects

Plaintiff’s testimony that he was getting INR checks and

warfarin prescriptions from a different physician in the months

prior to his incarceration and that he habitually took warfarin

every day until he was confined.” (Id. at 10.) Plaintiff argues

that the Davie County jail’s intake records show that “as of

November 8, 2012 Plaintiff had a valid prescription for warfarin

7mg daily.” (Id. (citing (Doc. 137) at 4).) Finally, Plaintiff

argues that, “by requiring Plaintiff’s experts to provide

opinions as to Plaintiff’s INR levels prior to his

incarceration,” this court has improperly placed the burden of

“proving and assessing Plaintiff’s alleged noncompliance,” on

Plaintiff, when it is Medical Defendants who bear the burden of

proving the affirmative defense of contributory negligence. (Id.

at 11.)

This court finds that Plaintiff’s arguments regarding

whether Dr. Yoder and Dr. Laber offered their opinions to a

reasonable degree of certainty primarily rehash arguments and

facts that Plaintiff raised at summary judgment. (Compare Pl.’s

Br. (Doc. 182) at 6-13, and Pl.’s Reply (Doc. 186) at 4-5, with

(Doc. 137) at 12-14.) Similarly, Plaintiff’s arguments regarding

the differences between the affirmative defense of contributory

negligence and proximate causation were also raised at summary

judgment. (Compare Pl.’s Br. (Doc. 182) at 11, with (Doc. 137)

at 13-16.) A motion for reconsideration may not be used to

rehash arguments previously made in motions or supporting

memoranda. See, e.g., Mascone v. Am. Physical Soc’y, Inc., Civil

Case No. RWT 07-966, 2009 WL 3156538, at *3 (D. Md. Sept. 25,

2009) (“[A] motion for reconsideration is not a proper vehicle

for an entreaty for the Court to change its mind . . . by

rehashing the arguments made in the motions, supporting

memoranda, and oral arguments before the Court at the summary

judgment hearing.”); Consulting Eng’rs, Inc. v. Geometric

Software Works LLC, No. 1:06cv956 (JCC), 2007 WL 2021901, at *2

(E.D. Va. July 6, 2007) (“A party’s mere disagreement with the

court’s ruling does not warrant a Rule 59(e) motion, and such

motion should not be used to ‘rehash’ arguments previously

presented or to submit evidence which should have been

previously submitted.”); see also Directv, Inc., 366 F. Supp. 2d

at 317 (holding that motion to reconsider is not proper to

“merely ask[] the court to rethink what the Court had already

thought through — rightly or wrongly”) (internal citations and

quotations omitted). Accordingly, these arguments may not serve

as a basis for reconsideration.

The only unique aspect of Plaintiff’s arguments is his

allegation that, after the close of discovery, Medical

Defendants produced a document that allegedly shows that

Plaintiff had a valid prescription for a critical medication at

the time that he entered the Davie County jail. (Pl.’s Reply

(Doc. 186) at 4-5.) Plaintiff has attached that document as an

exhibit to Plaintiff’s reply, (Doc. 186-1). Plaintiff asks this

court to reconsider Dr. Yoder and Dr. Laber’s testimony because

it was “based upon factual representations that have later

proven to be false,” and “a manifest injustice would result” if

this court rewarded Medical Defendants for not having produced

the record in a timely manner. (Pl.’s Reply (Doc. 186) at 5.)

This court finds that argument somewhat misleading.

Plaintiff should have anticipated before the filing of the

Surreply that the document would be relevant evidence of

proximate causation. In their opening brief in support of their

motion for summary judgment, Medical Defendants explicitly

argued that “Plaintiff did not have a valid prescription for two

months before incarceration, and from May 2012 until

incarceration, he did not have a provider treating him for

Coumadin therapy and he did not have an INR test.” (Doc. 124 at

16.) Yet, Plaintiff did not mention the existence of this

document or its late discovery in his response, filed on

July 30, 2020, (see Doc. 137), one week after Plaintiff is

alleged to have learned of the document’s existence, (Pl.’s

Reply (Doc. 186) at 4). Plaintiff also did not request an

extension of time in which to respond to Medical Defendants’

motion for summary judgment.5

Instead, as this court noted in its March 23rd Order,

Plaintiff relied on his deposition testimony to establish that a

physician checked his INR levels and prescribed him medication,

which this court found did not establish the dosage of Coumadin

5 Plaintiff notes in his Reply that he originally attached

the medication information to his Surreply as part of the

summary judgment briefing, and the Surreply was not accepted.

(Pl.’s Reply (Doc. 186) at 4 n.1 (citing Doc. 149-3).) The point

of this comment by Plaintiff is not clear.

The exhibit at issue was attached to a Surreply offered in

response to a summary judgment motion filed by a different set

of defendants – the municipalities and public officials who

operated the jails where Plaintiff was confined (“Public

Defendants”). (See Doc. 149.) Plaintiff offered the medication

record in support of his arguments regarding municipal

liability, for the proposition that “Maldonado prescribed a

lower dosage than the prescribed amount.” (Id. at 4.)

Yet, the document was not supported by an affidavit; it

offered no source for the information contained in the document,

nor did it explain where the prescriptions came from or when

they were last filled. (See id.) Furthermore, the Surreply was

filed in response to the Public Defendants’ motion for summary

judgment. (See id. at 1 (“Surreply Brief to Public Defendants’

Motion for Summary Judgment”).) That motion for summary judgment

was separate from, and involved different issues, (see Docs.

125, 126), from those at issue as a result of Medical

Defendants’ summary judgment motion, (see Docs. 123, 124).

If Plaintiff, through his footnote as described herein,

(Pl.’s Reply (Doc. 186) at 4 n.1), is suggesting the document

was part of the summary judgment record as to Medical

Defendants, Plaintiff’s suggestion is a gross distortion of

Local Rule 56.1. It is not this court’s responsibility to comb

the record and identify relevant facts; it is Plaintiff’s

responsibility to set out “the specific, authenticated facts

. . . sufficient to support a jury finding . . . .” LR 56.1(e).

he was taking or whether he was taking medication properly prior

to his incarceration. (March 23rd Order (Doc. 178) at 47-48.) It

is beyond this court’s comprehension to understand why Plaintiff

would not have presented these prescription records if it was

relevant to contest a material fact.

Here, Plaintiff asks this court to consider a filing that

Plaintiff should have presented to this court at summary

judgment. A motion for reconsideration is ordinarily improper

where “it only asks the Court to rethink its prior decision, or

presents a better or more compelling argument that the party

could have presented in the original briefs on the matter.”

Hinton, 2011 WL 2142799, at *1 (internal quotations and citation

omitted). Despite this court’s concerns, however, this court

will grant Plaintiff’s motion as to its finding that Dr. Yoder

and Dr. Laber did not hold their opinions to a reasonable degree

of certainty. This court finds that reconsideration is

appropriate not only because the standards for reconsideration

of interlocutory orders are less strict than those applicable to

motions for reconsideration of a final judgment, Am. Canoe

Ass’n, 326 F.3d at 514, but also because this court will reopen

summary judgment as to evidence of proximate causation for the

claim of ordinary negligence, see discussion supra Part III.A.,

and the evidence and arguments for that claim will likely be

similar to those that the parties would raise for proximate

causation under a medical malpractice claim. In the interest of

“judicial economy,” and “reach[ing] the correct judgment under

law,” Am. Canoe Ass’n, 326 F.3d at 515, this court will exercise

its discretion to reopen summary judgment for the parties to

address whether Dr. Yoder and Dr. Laber held their opinions to a

reasonable degree of medical certainty.

3. Plaintiff’s Negligent Supervision Claim

Third, Plaintiff asks this court to reconsider its finding

that Defendant SHP is not liable for the acts or omissions of

Defendant Maldonado, an independent contractor. (Pl.’s Br. (Doc.

182) at 13-14.) In its March 23rd Order, this court granted

summary judgment as to Plaintiff’s negligent supervision claim

against Defendant SHP for Defendant Maldonado’s conduct because,

under North Carolina law, an employer is generally not liable

for the negligent acts of an independent contractor. (March 23rd

Order (Doc. 178) at 68-69.) This court also found that N.C. Gen.

Stat. § 153A-225(a) did not create a nondelegable duty on

Defendant SHP to provide medical care to inmates. (Id.)

In his motion, Plaintiff first argues that Defendant SHP is

liable for negligent supervision on the grounds that Defendant

SHP has a nondelegable “duty in tort to Plaintiff created by the

contracts it has entered into to provide medical care to inmates

if the jails in question . . . .” (Pl.’s Br. (Doc. 182) at 13.)

Second, Plaintiff argues, without citation, that “there are

exceptions to the general rule that an employer is not liable

for the acts of independent contractors such as where employer

retains the right to control the way the contractor performs his

work.” (Id. at 14.) Plaintiff argues that because there is

evidence that Defendant SHP “retained the right to control and

supervise Maldonado’s conduct,” this court should find that

there is an exception to the rule that employers are not liable

for the acts of independent contractors and that Defendant SHP

is liable for Defendant Maldonado’s conduct.

Third, Plaintiff argues that North Carolina courts have

recognized a public safety exception to the general rule that

employers are not liable for independent contractors’

negligence, and that “SHP should not be permitted to escape

liability for its physician assistant’s negligence in providing

care to Plaintiff.” (Id. (citing Medley v. N.C. Dep’t of Corr.,

330 N.C. 837, 412 S.E.2d 654 (1992); State v. Wilson, 183 N.C.

App. 100, 643 S.E.2d 620 (2007)).)

This court finds that reconsideration is not proper.

First, to the extent that Plaintiff argues that he is an

intended third-party beneficiary of the contract between

Defendants SHP and Maldonado and that this creates an

independent legal duty in tort, this court finds that is a new

argument that Plaintiff did not raise at summary judgment. (See

Doc. 137.) Because Plaintiff has not offered a justification for

why it was not raised previously, (see Pl.’s Br. (Doc. 182)),

reconsideration is improper, Hinton, 2011 WL 2142799, at *1.

Moreover, even if Plaintiff had raised this argument at

summary judgment, the North Carolina Supreme Court has

consistently held that “[a]n omission to perform a contract

obligation is never a tort, . . . unless that omission is also

the omission of a legal duty.” Council v. Dickerson’s, Inc., 233

N.C. 472, 475, 64 S.E.2d 551, 553 (1951) (striking a plaintiff’s

claim in which the plaintiff alleged a duty in tort arising out

of breach of contract between a defendant highway contractor and

the state highway commission); see also Toone v. Adams, 262 N.C.

403, 407, 137 S.E.2d 132, 135 (1964) (“A failure to perform a

contractual obligation is never a tort unless such

nonperformance is also the omission of a legal duty.”). In

Council, for example, the North Carolina Supreme Court ordered a

plaintiff’s claim arising out of a breach of contract between a

defendant highway contractor and the state highway commission be

struck, as the contract between the two parties did not create a

duty to plaintiff. Council, 233 N.C. at 475-76, 64 S.E.2d at

553-54. Accordingly, this court finds that an independent

contractor agreement between Defendant Maldonado and Defendant

SHP does not, as a matter of law, create an independent tort

duty owed to Plaintiff.

Second, this court finds that Plaintiff’s arguments that

Defendant SHP retained the right to control Defendant Maldonado

are also a new argument not raised at summary judgment, (see

Doc. 137), and thus, improper for reconsideration without

adequate justification. Pac. Ins. Co., 148 F.3d at 403. Even if

this court were to consider the excerpt from Defendant

Maldonado’s deposition which Plaintiff seeks to introduce,

(Pl.’s Br. (Doc. 182) at 14 (citing Doc. 182-3 at 2-11)),

Plaintiff has not offered this court legal authority for the

proposition that employers may be liable for the acts of

independent contractors where the employer retains the right to

control the contractor’s work. (See id.) In the absence of legal

authorities to support that proposition, this court does not

have a basis for reconsideration.

Third, this court finds that Plaintiff’s arguments

regarding a public safety exception to the general rule

regarding liability for independent contractors is merely an

attempt to rehash what Plaintiff already argued at summary

judgment. (Compare Pl.’s Br. (Doc. 182) at 14, with (Doc. 137)

at 21.) It is not proper on motions for reconsideration to

“merely ask[] the court to rethink what the Court had already

thought through — rightly or wrongly.” Directv, Inc., 366 F.

Supp. 2d at 317 (internal citations and quotations omitted).

This court considered and rejected these arguments in its March

23rd Order, (Doc. 178 at 68-69), and this court declines to

reconsider them.

Accordingly, this court will deny Plaintiff’s motion

regarding Plaintiff’s negligent supervision claim.

C. Issues to be Addressed at Summary Judgment

For the reasons stated herein, this court will grant

Defendant’s motion in full, and Plaintiff’s motion in part, to

reconsider three issues:

First, with regard to Plaintiff’s medical malpractice

claim, this court will reopen summary judgment to consider

whether there is a genuine dispute of material fact that

Defendant Jackson6 breached the standard of care. In particular,

the parties’ briefs should address whether there is a different

standard of care for nursing in a jail, as compared to another

6 Summary judgment will be limited to whether Defendant

Jackson breached the standard of care, as Plaintiff has not met

his burden in showing that Banas offered an opinion regarding

Defendant Hunt’s possible breach. See discussion supra Part

III.B.1.

healthcare setting in North Carolina, and whether Ms. Banas is a

qualified expert who may testify as to whether Defendant Jackson

breached that standard of care.

Second, with regard to Plaintiff’s medical malpractice

claim, this court will reopen summary judgment to consider

whether there is a genuine dispute of material fact that missed

medication at the Stokes and Davie County jails was the

proximate cause of Plaintiff’s injuries. In particular, the

parties should address Plaintiff’s new evidence regarding

Plaintiff’s prescription medication prior to his detention and

what effect, if any, this evidence should have on the court’s

assessment of whether Dr. Yoder and Dr. Laber testified with a

reasonable degree of medical certainty.

Third, with regard to Plaintiff’s ordinary negligence

claim, this court will reopen summary judgment to consider

whether the intra-system transfer of Plaintiff from the Davie

County Detention Center to the Stokes County Detention Center

proximately caused Plaintiff’s injuries. In particular, the

parties should address the legal standard for proximate

causation in ordinary negligence claims that involve complex

medical questions.

The parties should present any legal arguments and evidence

relevant to the three issues outlined above. The parties may not

address any other legal issues.

As Medical Defendants were the original movants for summary

judgment, (Doc. 123), and thus, bear the initial burden of

demonstrating “that there is an absence of evidence to support

[the plaintiff’s] case,” Celotex Corp., 477 U.S. at 325, this

court finds that the following briefing schedule is appropriate:

Medical Defendants must file a brief addressing the three issues

indicated herein within ten (10) days of the entry of this Order

that shall not exceed 3,000 words; Plaintiff may file a response

within ten (10) days of the filing of the Medical Defendants’

opening brief that shall not exceed 3,000 words; Defendants may

file a reply within seven (7) days of the filing of Plaintiff’s

response that shall not exceed 1,500 words. All pleadings shall

otherwise be in accordance with Local Rule 7.3(d). This court

hereby advises both parties that briefs are submitted to the

court and reviewed within the context of the Federal Rules of

Civil Procedure and the Rules of Practice and Procedure of the

United States District Court for the Middle District of North

Carolina. Those rules require, inter alia, a concise statement

of the facts and a statement of the questions presented,

LR 7.2(a)(2) and (3); LR 56.1(e), with citation to particular

parts of materials in the record, Fed. R. Civ. P. 56(c)(1)(A).

This court finds the briefing procedure appropriate in

light of the extensive briefing the parties have already

provided at summary judgment. This court finds that the trial,

which is currently scheduled to begin July 6, 2021, (Doc. 28),

should be postponed pending further order of the court and the

settlement conference continued.

IV. CONCLUSION

For the reasons set forth above, this court finds that

Defendant Maldonado’s Motion to Reconsider, (Doc. 179), will be

granted, and Plaintiff’s Motion for Reconsideration, (Doc. 181),

will be granted in part and denied in part.

IT IS THEREFORE ORDERED that Defendant Manuel Maldonado’s

Motion to Reconsider, (Doc. 179), is GRANTED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for

Reconsideration, (Doc. 181), is GRANTED as to Plaintiff’s

arguments that Ms. Banas testified that Defendant Jackson

breached the standard of care and that the testimony of

Dr. Yoder and Dr. Laber forecast evidence of proximate

causation.

IT IS FURTHER ORDERED that Plaintiff’s Motion for

Reconsideration, (Doc. 181), is DENIED as to Plaintiff’s

arguments that Ms. Banas testified that Defendant Hunt breached

the standard of care and that Defendant SHP is liable in tort to

Plaintiff for the acts and/or omissions of Defendant Maldonado.

IT IS FURTHER ORDERED that this court will reopen summary

judgment to address the issues indicated herein, and the parties

will submit pleadings in accordance with the briefing schedule

established by this court in this order.

IT IS FURTHER ORDERED that the trial scheduled to begin

July 6, 2021, should be postponed, pending further order of the

court.

This the 10th day of June, 2021.

*

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