LEWIS v. PETERKIN

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ROBERT LEWIS, )

)

Plaintiff, )

)

v. ) 1:19CV418

)

HUBERT PETERKIN, et al., )

)

Defendants )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Motion for Reconsideration

filed by pro se Plaintiff Robert Lewis, (Doc. 42). Defendants

Sheriff Hubert Peterkin, Chief Jail Administrator Nachia Revels,

Hoke County, and Southern Health Partners have responded, (Docs.

43, 44); and Plaintiff Lewis has replied, (Doc. 45). Plaintiff’s

motion is ripe for resolution. For the reasons stated herein,

Plaintiff’s motion will be denied.

I. BACKGROUND

Plaintiff alleged violation of his constitutional rights

and state law violations, (Doc. 1 at 36), following medical

treatment Plaintiff received on his eyes between July 8, 2015

and May of 2016, (id. at 19). The instant motion arises out of

this court’s order issued September 24, 2020. (Doc. 39.) That

order granted in part and denied in part Defendants’ Motion for

Judgement on the Pleadings, (Doc. 27), by dismissing Plaintiff’s

state law negligence claim against the Hoke County officials and

dismissing Plaintiff’s state medical malpractice claim, (Doc. 39

at 7).

II. STANDARD OF REVIEW

Plaintiff styles his motion as arising under Rule 54(b) and

59(e) of the Federal Rules of Civil Procedure. (See Doc. 42.)

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).

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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

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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).

III. ANALYSIS

On September 24, 2020, this court granted Defendants’

Motion for Judgment on the Pleadings because “the facts alleged

in Plaintiff’s Complaint do not fall within the narrow common

knowledge exception” to the expert testimony requirement of a

medical malpractice claim, and do not “give rise to any

circumstances in which res ipsa loquitur has been applied.”

(Doc. 39 at 5-6.)

Plaintiff Lewis argues, in this instant motion, that this

court should reconsider granting Defendants’ Motion for Judgment

on the Pleadings, in order to “to correct a clear error of law

or prevent manifest injustice.” (Doc. 42 at 1.) Specifically,

Plaintiff Lewis argues that the following errors led to the

dismissal of his state medical malpractice claim: (1) the wrong

standard of review was used to determine whether plaintiff’s

medical malpractice claims fall within the guidelines of res

ipsa loquitur or the common knowledge exception to expert

testimony, (id. at 2); (2) the facts giving rise to Plaintiff’s

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medical malpractice claims [were] unfairly misconstrued, (id. at

3); (3) he does not need expert medical testimony because there

exists a statute that clearly defines the standard of care for

Nurse McKenzie’s actions in this suit, (id. at 6); and finally

(4) his claim meets all the elements of res ipsa loquitur

because “there exists no direct proof of the cause of

Plaintiff’s injury, (id. at 7), “the instrumentality that was

used was under Nurse McKenzie’s control[,]” (id.), and “the

injuries that Plaintiff sustained would not occur in the absence

of some negligent act or omission,” (id. at 8). However, none of

these arguments present “an error by the court that is direct,

obvious, and observable[,]” Register, 481 F. Supp. 2d at 480 n.1

(internal quotations omitted), or an error that leaves this

court “with the definite and firm conviction that a mistake has

been committed[,]” Woods, 477 F. App’x at 29 (citing Harvey, 532

F.3d at 336). Consequently, these arguments do not provide

sufficient grounds for reconsideration.

Further, this court finds that Plaintiff Lewis had every

opportunity in both his Response to Defendants’ Motion for

Judgment on the Pleadings, (Doc. 30), and in his Objections to

the Magistrate Judge’s Memorandum Opinion and Recommendation,

(Doc. 34), to make these arguments. Plaintiff previously argued

in his objections to the Recommendation that “the common

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knowledge exception to expert testimony applys [sic] to [his]

pendent medical malpractice claim.” (Id. at 4.) Arguing this

again in Plaintiff’s Motion for Reconsideration, (Doc. 42 at 2),

is duplicative and asks the court to rethink its prior decision

on the matter. See Hinton, 2011 WL 2142799, at *1; see also Pac.

Ins. Co., 148 F.3d at 403. Furthermore, Plaintiff’s second,

third, and fourth arguments regarding the interpretation of the

facts, the standard of care owed to Plaintiff, and the

applicability of res ipsa loquitur respectively, (Doc. 42 at 3-

8), merely attempt to assert “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). For these reasons as well,

Plaintiff’s motion does not provide sufficient grounds for

reconsideration.

Assuming, arguendo, that Plaintiff had made his novel legal

arguments prior to this court’s order, (Doc. 39), and not in his

Motion for Reconsideration, (Doc. 42), Plaintiff would still

fail to overcome Defendants’ motion.

First, Plaintiff argues erroneously that North Carolina

state law supports the exclusion of expert testimony in his

state law medical malpractice claim. (See id. at 2, 6.) It is

true that “[u]nder the familiar Erie doctrine, [courts] apply

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state substantive law and federal procedural law when reviewing

state-law claims.” Kerr v. Marshall Univ. Bd. of Governors, 824

F.3d 62, 74 (4th Cir. 2016). However, under North Carolina law,

the expert testimony requirement “is a substantive element of a

medical malpractice claim.” Lauer v. United States, Civil No.

1:12cv41, 2013 WL 566124, at *3 (W.D.N.C. Feb. 13, 2013) (citing

Camalier v. Jeffries, 340 N.C. 699, 460 S.E.2d 133 (1995)).

Therefore, because this court must apply state substantive law,

expert testimony is required in this case unless an exception

applies.

Second, Plaintiff’s res ipsa loquitur negligence claim is

inconsistent with the application of “res ipsa” in North

Carolina.1

While the North Carolina Supreme Court recognizes the

doctrine of res ipsa, Harris v. Mangum, 183 N.C. 235, 237,

1 Ultimately, this res ipsa loquitur claim is a variation of

Plaintiff’s previous arguments in his objections to the

Recommendation, (Doc. 34 at 4-8), and in section I of his Motion

for Reconsideration, (Doc. 42 at 2-3), that the common knowledge

exception to North Carolina’s expert testimony requirement for

medical malpractice cases applies in Plaintiff’s case. This is

because “[t]he limited number of North Carolina courts to apply

this exception have discussed it as applying the doctrine of res

ipsa loquitur.” Warden v. United States, 861 F. Supp. 400, 403

(E.D.N.C. 1993) (collecting cases), aff’d, 25 F.3d 1042 (4th

Cir. 1994). However, the court will address this argument as if

it were a novel legal argument in acknowledgement of the

Plaintiff’s pro se representation.

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111 S.E. 177 1922), as a way to allow “the facts of [an]

occurrence [to] warrant an inference of defendant’s negligence,”

Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362

(2000) (quoting Kekelis v. Machine Works, 273 N.C. 439, 443, 160

S.E.2d 320, 323 (1968)), its application in the medical

malpractice context is rare and only in a narrow capacity. North

Carolina courts have “consistently reaffirmed that res ipsa

loquitur is inappropriate in the usual medical malpractice case,

where the question of injury and the facts in evidence are

peculiarly in the province of expert opinion.” Bowlin v. Duke

Univ., 108 N.C. App. 145, 149-50, 423 S.E.2d 320, 323 (1992);

see also Elliott v. Owen, 99 N.C. App. 465, 393 S.E.2d 347

(1990). However, in a handful of extreme cases when common

knowledge was sufficient to observe negligent medical care,

North Carolina courts have made an exception and applied res

ipsa to the medical malpractice context. See Tice v. Hall, 310

N.C. 589, 594–95, 313 S.E.2d 565, 567–68 (1984) (applying res

ipsa to case in which doctor allegedly left sponge in the

plaintiff during operation); Schaffner v. Cumberland Cnty. Hosp.

Sys., Inc., 77 N.C. App. 689, 691–92, 336 S.E.2d 116, 118 (1985)

(applying doctrine of res ipsa to case in which the plaintiff’s

hand was burned during unrelated surgery); Parks v. Perry, 68

N.C. App. 202, 207, 314 S.E.2d 287, 290 (applying res ipsa to

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case in which the plaintiff allegedly suffered nerve damage in

her right arm during a vaginal hysterectomy operation).

These applications, in which a lay person could infer

negligence from the nature of the harm, are distinguishable from

the case at hand which is more akin to the usual medical

malpractice case. Plaintiff alleges that he went to a nurse

complaining of extreme eye pain, (Doc. 42 at 3); the nurse

provided him with inadequate treatment consisting of an eye

examination and a delayed referral to a doctor, (id. at 3-6);

and Plaintiff subsequently experienced “blurry and weak” vision,

(id. at 7). Based on these facts, a lay person would be unable

to determine if the standard of care the nurse owed to Plaintiff

was breached, and thus, medical expert testimony is required, in

accordance with the ordinary rule for medical malpractice cases

under NC law. See e.g., Bowlin, 108 N.C. App. at 149-50.

Consequently, medical expert testimony is still required, and

its lack thereof remains fatal to Plaintiff’s medical

malpractice and negligence claims.

Accordingly, Plaintiff’s motion fails to provide a

sufficient basis for reconsideration and his novel legal

arguments, if made prior to this court’s order, (Doc. 39), would

not have prevented Plaintiff’s unfavorable Judgement on the

Pleadings.

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IV. CONCLUSION

For the reasons stated herein,

IT IS THEREFORE ORDERED that Plaintiff’s Motion for

Reconsideration, (Doc. 42), is DENIED.

This the 12th day of July, 2021.

LA; fir

Lb Udinm L. xX

‘United States District Ju

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