Opinion

Johnson v. West Virginia University Board of Governors

Court
District Court, S.D. West Virginia
Filed
Sep 19, 2025
Cited by
0 cases
Authority
More cited than 39.4%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

TIMOTHY A. JOHNSON,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00380

WEST VIRGINIA UNIVERSITY BOARD

OF GOVERNORS, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiff’s four motions for summary judgment: (1) Plaintiff’s Motion

for Summary Judgment Regarding Breach of the Medical Standard of Care by the Abandonment

by a Physician of Her Patient in a Time of Critical Medical Need (ECF No. 233); (2) Plaintiff’s

Motion for Partial Summary Judgment as to the Material Fact of Diagnosis of Sarcoidosis (ECF

No. 238); (3) Plaintiff’s Motion for Order of Summary Judgment Regarding the Deliberate

Indifference of Ghassan Richard Ghorayeb, M.D. (ECF No. 242); and (4) Plaintiff’s Motion for

Order of Summary Judgment Regarding the Deliberate Indifference by Neglect, Abandonment and

Delay of Medical Treatment (ECF No. 244.)

These motions were referred to Magistrate Judge Dwane L. Tinsley for submission of

proposed findings and recommendations for disposition (“PF&R”) pursuant to 28 U.S.C. §

636(b)(1)(B). (ECF No. 4.) Magistrate Judge Tinsley filed his PF&R on May 2, 2025. (ECF

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No. 312.) Plaintiff timely filed his objections to the PF&R on May 16, 20251. (ECF No. 316.)

For the reasons discussed below, the Court OVERRULES Plaintiff’s objections2, (ECF No. 316),

ADOPTS the PF&R, (ECF No. 312), and DENIES Plaintiff’s motions for summary judgment.

(ECF Nos. 233, 238, 242, and 244.)

I. BACKGROUND

A detailed recitation of the facts in this case can be found in Magistrate Judge Tinsley’s

PF&R, (ECF No. 312), and therefore need not be repeated here. The Court will provide a

discussion of any relevant facts as necessary throughout this opinion to resolve Plaintiff’s

objections.

II. LEGAL STANDARD

A. Review of Magistrate Judge’s PF&R

The Court is required to “make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §

636(b)(1)(C). However, the Court is not required to review, under a de novo or any other

standard, the factual or legal conclusions of the Magistrate Judge as to any portion of the findings

or recommendations to which no objections are addressed. Thomas v. Arn, 474 U.S. 140, 150

(1985). Further, this Court need not conduct a de novo review of any “general and conclusory

objections that do not direct the Court to a specific error in the magistrate’s proposed findings and

recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In reviewing the

portions of the PF&R which Plaintiff has objected to, the Court will consider the fact that Plaintiff

1 On May 19, 2025, Magistrate Judge Tinsley granted Plaintiff’s Motion to Exceed Page Limit and deemed Plaintiff’s

objections as timely filed. (ECF No. 315.)

2 As discussed below, the Court also OVERRULES Plaintiff’s objection to Magistrate Judge Tinsley’s order on

Plaintiff’s Motion to Exclude. (ECF No. 313.)

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is acting pro se and his pleadings will be afforded liberal construction. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).

B. Summary Judgment Standard

The Federal Rules of Civil Procedure state that a 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. “Facts are ‘material’ when they might affect

the outcome of the case, and a ‘genuine issue’ exists when the evidence would allow a reasonable

jury to return a verdict for the nonmoving party.” News & Observer Publ. Co. v. Raleigh–Durham

Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). If there are factual issues that may reasonably

be resolved in favor of either party, summary judgment should not be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). “Thus, at the summary judgment phase, the

pertinent inquiry is whether there are any genuine factual issues that properly can be resolved only

by a finder of fact because they may reasonably be resolved in favor of either party.” Variety

Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018) (alteration and internal

quotation marks omitted).

The nonmoving party bears the burden of showing there is a “genuine issue of material fact

for trial . . . by offering ‘sufficient proof in the form of admissible evidence.’” Guessous v.

Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). When ruling on a motion for

summary judgment, the Court must view the evidence “in the light most favorable to the opposing

party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970).

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III. DISCUSSION

Plaintiff asserts 16 objections to the PF&R3. (ECF No. 316.) These objections are

addressed below.

A. The Magistrate Judge failed to conduct the required Daubert/Rule 702 gatekeeping

analysis

Plaintiff “specifically objects that the Magistrate Judge failed to conduct the required

Daubert/Rule 702 gatekeeping analysis before rend[er]ing this PF&R.” (ECF No. 316 at 1.) In

support, Plaintiff argues that Magistrate Judge Tinsley failed to apply the Daubert elements and

improperly relied on the testimony of Defendants’ expert witnesses “as their opinions are . . .

unsupported by relevant medical literature.” (Id.) Plaintiff asserts that this “reliance on

inadmissible testimony is abuse of judicial discretion.” (Id.)

Inexplicably, Plaintiff claims that Defendants’ expert witnesses’ opinions are unsupported

by relevant medical literature while simultaneously utilizing those same experts’ opinions in

support of his Motion for Partial Summary Judgment as to the Material Fact of Diagnosis of

Sarcoidosis. (ECF No. 239.) Nevertheless, Plaintiff makes this objection despite not raising a

Daubert or Rule 702 argument in the summary judgment briefings.

Three months after summary judgment briefing was completed, Plaintiff filed a motion to

exclude the testimony of Defendants’ expert witnesses. (ECF No. 285.) In that motion, Plaintiff

argued that the witnesses failed to cite scientific literature in their opinions, thus rendering their

opinions “unreliable and therefore inadmissible.” (ECF No. 286 at 2.) While Plaintiff couched

the motion as an evidentiary issue, he sought exclusion of the expert opinions “in determining the

3 Plaintiff nests some objections within other objections, so while the Court characterizes these as 16 objections, all

of Plaintiff’s objections are addressed below regardless.

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merits of this case” and “for considering the parties[’] Motions for Summary Judgment.” (ECF

Nos. 285 at 4; 286 at 21.) Magistrate Judge Tinsley denied Plaintiff’s motion, finding it to be

untimely and an attempt to circumvent the summary judgment briefing schedule. (ECF No. 311.)

Plaintiff objected to Magistrate Judge Tinsley’s order, arguing again that Magistrate Judge Tinsley

failed to conduct the proper analysis under Daubert and Rule 702. (ECF No. 313.) Upon a de

novo review of the evidence presented, this Court agrees with Magistrate Judge Tinsley’s order

that Plaintiff’s motion was untimely filed and OVERRULES Plaintiff’s objection. (ECF No.

313.)

Although for the above-mentioned reasons this Court is not required to conduct a Rule 702

and Daubert analysis, because Plaintiff is proceeding pro se and his filings must be liberally

construed, this Court addresses below Plaintiff’s argument that Defendants’ expert witnesses are

unreliable because their testimony is “unsupported by relevant medical literature.” (ECF No. 316

at 1.) Rule 702 permits expert testimony if that testimony is (1) helpful to the jury in

understanding the evidence or determining a fact at issue; (2) based on sufficient facts or data; (3)

the product of reliable principles and methods; and (4) the product of a reliable application of those

principles and methods to the facts of the case. Fed. R. Evid. 702. The Fourth Circuit has

articulated the “gatekeeping requirement” of trial judges to ensure expert witnesses are adhering

to these principles and those of Daubert, specifically with respect to: (1) whether the scientific

evidence proffered is reliable and valid; and (2) whether the testimony would aid the trier of fact

in deciding the issues in the case. Sardis v. Overhead Door Corp., 10 F. 4th 268, 281 (4th Cir.

2021). In conducting this analysis, trial judges are given “great deference” in deciding whether

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to admit expert testimony under Daubert. United States v. Barnette, 211 F.3d 803, 816 (4th Cir.

2000).

Because Plaintiff only argues that Defendants’ experts are unreliable because their

testimony is not supported by medical literature, this court need not address whether the testimony

would aid the trier of fact. Plaintiff’s argument in his motion to exclude that “all four [doctors]

have failed to cite to any scientific literature to support their opinions” is simply false. (ECF No.

285 at 1.) For example, in Dr. Jennifer Thorne’s affidavit, Dr. Thorne states that she reviewed

“relevant literature” and cited to multiple studies and journals in support of her opinion. (ECF

No. 249-24.) Doctors Thomas Friberg, Edward Chen, and Michael Weinblatt also reviewed

“relevant literature” in issuing their opinions. (ECF No. 249-25, 26, 27.) Therefore, the Court

finds that Plaintiff’s argument falls short and Defendants’ expert witness opinions are reliable.

However, even if the Court’s analysis is incorrect and Defendants’ expert witnesses should be

excluded in their entirety, Plaintiff is still not entitled to judgment as a matter of law on all causes

of action because Plaintiff’s own expert ophthalmologist, Dr. Lefkowitz, testified that Plaintiff’s

treatment was reasonable and met the standard of care. (ECF No. 248-3 at 132:17-25.)

Therefore, Plaintiff’s objection is OVERRULED.

B. Objection to Magistrate Judge Tinsley’s finding that a genuine dispute of fact exists as

to a diagnosis of sarcoidosis

Plaintiff objects to Magistrate Judge Tinsley’s finding that there is a genuine dispute of fact

regarding Plaintiff’s diagnosis of Sarcoidosis, arguing that medical records show Doctors Lai and

Ghorayeb diagnosed him multiple times during their course of treatment. (ECF No. 316 at 2.)

Plaintiff argues that there is “no scenario where a reasonable West Virginia jury would return a

verdict allowing these Defendants to deny, in litigation, their recorded diagnoses of sarcoidosis.”

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(Id.) Thus, Plaintiff asserts that Magistrate Judge Tinsley’s “findings are contrary to public policy

and an abuse of judicial discretion.” (Id.)

In support of Plaintiff’s motion for summary judgment on this issue, Plaintiff points to the

following: Dr. Thorne’s note that states Plaintiff “had a longstanding history of uveitis secondary

to sarcoidosis”; prior medical records that indicate a history of sarcoidosis; medical records from

the Defendants that note sarcoidosis; and billing records. (ECF No. 239.) In response,

Defendants argue that Plaintiff contradicts himself and mischaracterizes his medical records.

Furthermore, Defendants present evidence which contradict the alleged diagnosis. (ECF No.

261.)

Based on a review of the evidence presented, the existence of an actual diagnosis of

sarcoidosis is unclear at best. There are numerous inconsistencies in Plaintiff’s medical records,

and these inconsistencies are backed by Plaintiff’s testimony. For example, during a May 2, 2018,

pulmonology visit, Plaintiff reported that he was diagnosed with sarcoidosis and was unsure if he

received a biopsy, but at a rheumatology appointment later that year, he reported that he was

diagnosed in 1993 and never had a biopsy. (ECF Nos. 249-5 at 2; 101-9 at 1.) However, in

Plaintiff’s amended complaint, Plaintiff alleges he was diagnosed with sarcoidosis in 2003. (ECF

No. 16 at ¶ 18.) Further, Plaintiff’s allegation in his amended complaint is contradicted by

Plaintiff’s testimony that he was not first diagnosed with sarcoidosis in 2003. (ECF No. 248-1 at

77:19-22.) While Plaintiff’s medical records show numerous references to sarcoidosis, no

evidence has been presented of a tissue biopsy confirming a sarcoidosis diagnosis. In fact,

Plaintiff’s own ophthalmology expert, Dr. Lefkowitz, testified that there’s nothing in Plaintiff’s

records that “establishes an objective diagnosis of sarcoidosis based upon testing.” (ECF No.

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248-3 at 69:21-70:2.) Therefore, based on the numerous inconsistencies in Plaintiff’s medical

records and Dr. Lefkowitz’s testimony, Plaintiff is not entitled to judgment as a matter of law on

this matter. Plaintiff’s objection is OVERRULED.

C. Objection to Magistrate Judge Tinsley’s Finding that Defendants’ Arguments are

“somehow undisputed facts”

Plaintiff argues that the PF&R is a “mishmash of ‘undisputed argument’ and inadmissible

expert witness testimony and the Defendants’ self-serving deposition excerpts.” (ECF No. 316 at

3.) Plaintiff further argues that Magistrate Judge Tinsley’s finding that four of Dr. Lai’s

arguments are undisputed is “abuse of discretion.” (Id.) Plaintiff offers no evidence or further

argument in support of this objection. (Id.)

In addition to not providing any evidence or argument in support of his objection,

Plaintiff’s reply to Dr. Lai’s response brief simply states that Plaintiff “is satisfied with the

evidence and argument presented in his Motion and Memorandum of Law and makes no further

reply in argument.” (ECF No. 271.) Simply put, the reason why Magistrate Judge Tinsley

characterized Dr. Lai’s arguments as “undisputed” is because Plaintiff did not point to any

evidence or make any defense in opposition to the arguments. Additionally, upon a de novo

review of the evidence presented, this Court agrees with Magistrate Judge Tinsley’s

characterization of Dr. Lai’s arguments. Nevertheless, even if the evidence wasn’t undisputed,

Plaintiff would still not be entitled to judgment as a matter of law. Therefore, Plaintiff’s objection

is OVERRULED.

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D. Objection that Magistrate Judge Tinsley Found a Termination of Dr. Lai’s Medical

Duties Through a Transfer of Care

Plaintiff objects to Magistrate Judge Tinsley’s finding that five arguments from Defendants

are undisputed in relation to Dr. Lai’s duty to provide care. (ECF No. 316 at 4.) Just as discussed

above, Plaintiff did not provide any argument or evidence in support of this objection and did not

file a substantive reply to Defendants’ response brief. (ECF No. 271.) As noted, Defendants’

arguments are characterized as “undisputed” because Plaintiff failed to point to any evidence

refuting them. Additionally, upon a de novo review of the evidence presented, this Court agrees

with Magistrate Judge Tinsley’s characterization that Dr. Lai’s continuation of Plaintiff’s

treatment is undisputed. Nevertheless, even if the evidence wasn’t undisputed, Plaintiff is still not

entitled to judgment as a matter of law. Therefore, Plaintiff’s objection is OVERRULED.

E. Objection to Magistrate Judge Tinsley’s Finding Regarding Kruse

Plaintiff “specifically objects” to Magistrate Judge Tinsley’s finding that Kruse v. Farrid,

835 S.E.2d 163 (W. Va. 2019) does not support Plaintiff’s position on abandonment. Plaintiff’s

objection is a bit confusing, as he only briefly touches on Kruse, but goes on to mention the 702

gatekeeping analysis, then finishes by arguing that Magistrate Judge Tinsley’s finding as to expert

testimony on the standard of care is an abuse of discretion. (ECF No. 316 at 5-8.) Because

Plaintiff’s gatekeeping argument was addressed above, the Court proceeds on the remaining two

arguments.

Simply put, the facts in Kruse are entirely dissimilar to the facts here. 835 S.E.2d at 167.

In Kruse, the court found that Ms. Kruse terminated the physician-patient relationship when she

refused further medical care and left the hospital, at which time the physician’s duty to Ms. Kruse

ceased. Id. at 170. Here, there is no claim that Plaintiff refused care. Furthermore, the evidence

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shows that Dr. Lai referred Plaintiff to other competent, board-certified ophthalmologists. (ECF

Nos. 106-1 at 65, 72; 249-3 at 32:11-18; In fact, Plaintiff’s own expert ophthalmology witness,

Dr. Lefkowitz, testified that Dr. Lai’s referral to Dr. Ghorayeb, and his subsequent treatment, were

all within the standard of care. (ECF No. 248-3 at 110:4-20.) Therefore, Plaintiff is not entitled

to judgment as a matter of law and Magistrate Judge Tinsley’s findings were not an abuse of

discretion. Plaintiff’s objection is OVERRULED.

F. Objection to Magistrate Judge Tinsley’s Findings Regarding the Evidence on Transfer

of Care

Like the previous objection, Plaintiff objects to Magistrate Judge Tinsley’s finding that

there is no evidence Dr. Lai abandoned Plaintiff and failed to properly continue his treatment.

(ECF No. 316 at 9.) Plaintiff argues that the evidence doesn’t support the finding that “other

competent ophthalmologists provided sarcoidosis monitoring and treatment and cornea service in

Dr. Lai’s stead.” (Id. at 11.) In his objection, Plaintiff points to the various treatments he

received after seeing Dr. Lai and argues, from his lay perspective, that the charts show he wasn’t

properly treated as to sarcoidosis and cornea issues. (Id.) Plaintiff, however, fails to point to any

expert testimony which shows an abandonment or a breach in the standard of care. Furthermore,

the only evidence Plaintiff points to in his motion is the expert report from Dr. Johnson, who is

not an ophthalmologist and is not qualified to render standard of care opinions as to

ophthalmology. (ECF No. 249-3 at 79:10-80:22.) Nevertheless, as discussed, Plaintiff is not

entitled to judgment as a matter of law because Plaintiff’s own expert ophthalmology witness, Dr.

Lefkowitz, testified that Dr. Lai’s referrals and Plaintiff’s subsequent treatment were all within the

standard of care. (ECF No. 248-3 at 110:4-20.) Therefore, Plaintiff’s objection is

OVERRULED.

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G. Objection that there is no Testimony to Support the Claim that Dr. Lai Breached the

Standard of Care and Dr. Lefkowitz’s Testimony Refutes the Notion

Plaintiff objects to Magistrate Judge Tinsley’s claim that Dr. Lefkowitz’s testimony refutes

the notion that Dr. Lai breached the standard of care. (ECF No. 316 at 11.) Plaintiff notes the

contradiction between Dr. Lefkowitz standing by his report and his testimony that the standard of

care was not breached by Dr. Lai. (Id.) Plaintiff argues that any discrepancy between his

deposition testimony and report should be “considered by the fact-finder.” (Id. at 12) By

Plaintiff’s own admission he is not entitled to judgment as a matter of law because he argues the

discrepancy should be considered by the fact finder. Therefore, Plaintiff’s objection is

OVERRULED.

H. Objection to Magistrate Judge Tinsley’s Finding that Plaintiff is Required to have an

Expert Witness Testify Regarding Medical Malpractice by Abandonment

Plaintiff “specifically objects to the Magistrate Judge’s finding that Plaintiff is required to

have an expert witness testify regarding medical malpractice by abandonment of a physician by

her patient.” (ECF No. 316 at 12.) Plaintiff argues that the rule regarding expert testimony as to

the standard of care is subject to exceptions and asserts that “unreasonable delay and delays that

are so long that they have become an abandonment of the patient, is not within the purview of a

medical expert witness.” (Id. at 13.) Despite making this argument, Plaintiff goes on to state

that “it is in the discretion of the District Court to require or not require an expert witness to testify

regarding Dr. Lai’s medical malpractice for failing to attend to her patient.” (Id. at 15.)

Although it appears that Plaintiff has conceded that this issue is entirely up to the discretion of the

Court, this Court has conducted a de novo review anyway and has determined that Plaintiff’s

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medical issues are too complex for a jury to rely solely on lay testimony. Therefore, Plaintiff’s

objection is OVERRULED.

I. Objection to Magistrate Judge Tinsley not Applying Phoenix v. Amonette

Plaintiff objects to Magistrate Judge Tinsley not applying the recent holding of Phoenix v.

Amonette in his PF&R despite noting that he would consider the ruling for the pending dispositive

motions. (ECF No. 316 at 15.) Plaintiff argues that the omission of Phoenix in the PF&R was

an abuse of discretion. (Id.) In his July 31, 2024 order, Magistrate Judge Tinsley granted

Plaintiff’s Motion for Consideration of New Law and noted that “the Court will consider the Fourth

Circuit’s opinion in Phoenix, [95] F.4th at 854, as well as the arguments set forth in the parties

briefing on the instant motion . . . wherein they address the application of the Phoenix opinion to

the deliberate indifference claims asserted by Plaintiff.” (ECF No. 298 at 3.) While the opinion

was not explicitly addressed in the PF&R, there is no indication that it was not considered as

Magistrate Judge Tinsley’s order states. Regardless, this Court addresses the application of

Phoenix de novo.

Plaintiff raises Phoenix for the proposition that Plaintiff isn’t required to produce expert

testimony to prove deliberate indifference to a serious medical need. (ECF No. 278.) The Fourth

Circuit in Phoenix stated that not all Eighth Amendment deliberate indifference claims require

experts because the question is handled on case-specific basis. 95 F.4th 852, 858-59 (4th Cir.

2024). The Court summarizes the holding as: “[t]here is no per se rule that expert testimony is

necessary to establish an Eighth Amendment deliberate indifference claim. Instead, the question

is whether, in the context of a particular case, the plaintiff has produced sufficient evidence—of

whatever kind—to create a genuine dispute of material fact about each of the required elements.”

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Id. Here, because Plaintiff’s medical issues are complex and Plaintiff asserts that Defendants

chose a wrong course of treatment, expert testimony is required to create a genuine dispute of

material fact. In this case, lay jurors are not able to determine whether the alleged treatment met

the standard of care without an expert’s opinion as to what Plaintiff’s medical conditions required.

Experts are particularly important here because Plaintiff’s own ophthalmology expert, Dr.

Lefkowitz, testified that Plaintiff’s treatment fell within the standard of care. (ECF No. 248-3 at

110:4-20.) Therefore, Plaintiff’s objection is OVERRULED.

J. Objection to Magistrate Judge Tinsley not Analyzing the Unreasonable Delays of

Treatment as set forth in Plaintiff’s Reply to Dr. Ghorayeb

Plaintiff “specifically objects” to Magistrate Judge Tinsley not analyzing arguments set

forth by Plaintiff in his reply memorandum to Dr. Ghorayeb on the Motion for Consideration of

New Opinion. (ECF Nos. 316 at 15; 283.) The arguments that Plaintiff claims Magistrate Judge

Tinsley did not address in the PF&R were made in conjunction with Plaintiff’s Motion for

Consideration of New Opinion, not Plaintiff’s motions for summary judgment, which were the

subject of the PF&R. (See ECF Nos. 277, 281, 283, 312.) Magistrate Judge Tinsley, in fact,

granted Plaintiff’s Motion for Consideration of New Opinion. (ECF No. 298.) Magistrate Judge

Tinsley was not required to address arguments made in briefing on an entirely separate motion

when issuing his PF&R. Therefore, Plaintiff’s objection is OVERRULED.

K. Objection to Magistrate Judge Tinsley’s Finding that even if Expert Testimony is not

Necessary, Summary Judgment is not Appropriate in light of the Evidence.

Plaintiff objects to Magistrate Judge Tinsley’s finding that summary judgment is not

appropriate in light of the evidence, regardless of the requirement of expert testimony. (ECF No.

316 at 15-16.) While Plaintiff cites a variety of case law regarding the summary judgment

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standard in support of his objection, it’s unclear what argument Plaintiff is trying to make. Here,

the evidence clearly shows that Plaintiff is not entitled to judgment as a matter of law. As

repeatedly outlined, even the evidence produced by Plaintiff’s own experts shows that Plaintiff is

not entitled to summary judgment. Plaintiff’s objection is OVERRULED.

L. Objection to Magistrate Judge Tinsley’s Finding that a Reasonable Juror Could Find

that the Testimony of the Expert Witnesses Establishes that Plaintiff’s Treatment was

Reasonable

Plaintiff objects to Magistrate Judge Tinsley’s finding that a reasonable juror could find

that the testimony of Defendants’ witnesses establish that Plaintiff received reasonable treatment.

(ECF No. 316 at 16.) This objection is essentially a re-hash of the prior objection, but in a

different form. In support of this objection, Plaintiff argues that if his experts’ opinions were

found to be admissible through “the required Daubert/Rule 702 analysis, Plaintiff would be

entitled to summary judgment against Defendant Dr. Ghorayeb as Plaintiff’s experts’ opinions

would be undisputed.” Plaintiff clearly misunderstands the meaning of “undisputed,” as he

repeatedly ignores the contradicting evidence presented by Defendants’ experts and his own

experts. Then, Plaintiff re-hashes his argument regarding the Phoenix opinion, which is

inapplicable to this case. The evidence shows that Plaintiff certainly is not entitled to summary

judgment on the issue of deliberate indifference as evidenced by the testimony of his own experts,

let alone when including the testimony of Defendants’ experts. Plaintiff’s objection is

OVERRULED.

M. Objection that Magistrate Judge Tinsley did not Analyze a Medical Entry of Defendant

Dr. Ghorayeb

Plaintiff objects that Magistrate Judge Tinsley “did not analyze the undisputed evidence –

the August 12, 2018, 11:49 a.m. medical entry of Defendant Dr. Ghorayeb” noting severe corneal

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decompensation. (ECF No. 316 at 19.) Plaintiff argues that the entry “directly contradicts”

Magistrate Judge Tinsley’s finding that there is no evidence to suggest Dr. Ghorayeb was

unqualified to monitor and treat Plaintiff’s chronic uveitis or other conditions beyond the retina

itself. (Id.) Plaintiff also argues that the entry contradicts Magistrate Judge Tinsley’s finding

that Dr. Lai appropriately referred Plaintiff to Dr. Ghorayeb, who was a “competent” board-

certified ophthalmologist. (Id.) As this Court explained in a previous order, Plaintiff did not

point to any evidence that meets the burden of deliberate indifference, but rather, only points to

evidence that could potentially establish a violation of the standard of care as to medical

malpractice. (ECF No. 156.) The same applies here. Even if the report was considered in the

PF&R, such evidence does not rise to meet the higher burden of deliberate indifference.

However, even if the report did rise to that level, evidence raised by Defendants and Plaintiff’s

own experts establish that Plaintiff is not entitled to judgment as a matter of law. Therefore,

Plaintiff’s objection is OVERRULED.

N. Objection that Magistrate Judge Tinsley did not Analyze a Medical Entry of Dr. Brian

McMillan

Plaintiff objects that Magistrate Judge Tinsley “did not analyze the undisputed evidence,

the February 26, 2019, medical entry of WVUEI ophthalmologist glaucoma specialist, Brian

McMillan, M.D. noting, H/O Sarcoidosis – followed by Dr. Lai.” (ECF No. 316 at 20.) Plaintiff

argues that this entry contradicts Magistrate Judge Tinsley’s finding that there was a continuation

of care at the Eye Institute to address Plaintiff’s ocular complaints. (Id.) It is unclear how this

evidence contradicts the PF&R, as Plaintiff provides no argument in support of his contention

outside of simply pointing to the entry. Plaintiff is not entitled to judgment as a matter of law

regarding the continuation of care because Plaintiff’s and Defendants’ experts have copious

15

evidence to show that the standard of care was met, and Plaintiff’s treatment was continued by

competent physicians after seeing Dr. Lai. Plaintiff’s objection is OVERRULED.

O. Objection that Magistrate Judge Tinsley did not Analyze a Medical Entry of Doctor

Amit Ladani

Plaintiff objects that Magistrate Judge Tinsley did not “analyze the undisputed evidence,

the March 6, 2019, medical entry of WVU Rheumatologist Amit Ladani, M.D. noting Iridocyclitis

due to Sarcoidosis” and care requiring input from Ophthalmology. (ECF No. 316 at 20.)

Plaintiff argues that this entry “directly contradicts” the finding that there was a continuation of

care at the Eye Institute to address all of Plaintiff’s ocular complaints. (Id.) Again, Plaintiff

misunderstands the term “undisputed” and doesn’t argue how, other than in a conclusory manner,

that the entry contradicts Magistrate Judge Tinsley’s findings. However, even if the entry did

contradict his findings, that would simply mean that Plaintiff is not entitled to judgment as a matter

of law. Therefore, Plaintiff’s objection is OVERRULED.

P. Objection to Magistrate Judge Tinsley’s Finding that other Physicians took over Dr.

Lai’s Medical Duties and Ophthalmic Plan of Care

Plaintiff argues that Magistrate Judge Tinsley had no evidence before him that another

ophthalmologist took up Dr. Lai’s plan of care after she stopped treating Plaintiff. (ECF No. 316

at 21.) Plaintiff argues that the “undisputed evidence is that Dr. Lai left Plaintiff’s blurry vision

untreated and it worsened.” (Id.) As previously discussed, this evidence is not “undisputed,”

and Plaintiff’s and Defendants’ own expert witnesses testified that the standard of care was met

and Plaintiff’s care was properly transferred. Therefore, Plaintiff is not entitled to judgment as a

matter of law and his objection is OVERRULED.

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IV. CONCLUSION

For the reasons discussed above, the Court OVERRULES Plaintiffs objections, (ECF

No. 316), ADOPTS the PF&R, (ECF No. 312), and DENIES Plaintiffs motions for summary

judgment. (ECF Nos. 233, 238, 242, and 244.)

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: September 19, 2025

THOMAS E. JOHNSTON

UNITED STATES DISTRICT JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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