The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ORLANDO WILLIAMS, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO.
) 4:19-cv-1696-KOB
UNITED STATES OF AMERICA, et )
al., )
)
Defendants. )
MEMORANDUM OPINION
This matter comes before the court on Defendant United States’ Motion for
Summary Judgment. (Doc. 65). Proceeding pro se, Plaintiff Orlando Williams
claims the United States, acting through its agency the Veteran’s Administration,
committed medical malpractice under the Alabama Medical Liability Act. See Ala.
Code § 6–5–548. Mr. Williams brings his medical malpractice claims under the
Federal Tort Claims Act, which permits a plaintiff to sue the United States “in the
same manner and to the same extent as a private individual under like
circumstances.” See 28 U.S.C. § 2674.
Specifically, Mr. Williams claims that several health care providers at the
Veterans Affairs Medical Center in Birmingham, Alabama conducted MRI exams
in 2011 and 2017 and then negligently failed to appropriately treat a spinal growth
that was visible on the MRIs. This failure, he claims, caused him pain and
suffering, negatively impacted his career, and caused him other damages.
Defendant has moved for summary judgment (doc. 65), and Mr. Williams
responded (doc. 72).1 After Defendant filed its motion for summary judgment, Mr.
Williams moved the court under Fed. R. Civ. P. 59(e) to reconsider its prior ruling
rejecting his second request to extend the expert disclosure deadline. (Doc. 73).
Defendant responded to the motion to reconsider. (Doc. 75).
As explained below, the court will grant Defendant’s motion for summary
judgment and deny Mr. Williams’s motion to reconsider. The court will address
the motion to reconsider first, before analyzing Defendant’s motion for summary
judgment.
MR. WILLIAMS’S MOTION TO RECONSIDER
The court originally required Mr. Williams to disclose his expert witnesses
no later than November 15, 2021. (Doc. 46 at 2). Before November 15, Mr.
Williams moved the court to extend the expert disclosure deadline. (Doc. 60). That
motion did not explain the reasons for requesting the extension, but it stated that he
would “submit more information to the court by November 24, 2021.” (Doc. 60 at
1 Mr. Williams titled his responsive filing: “Objections to § 6–5–548, Ala. Admin. Code 1975
Expert Report of America.” (Doc. 72). Mr. Williams filed no other document responding to
Defendants’ motion for summary judgment. But because the “Objections” challenge the
evidence supporting Defendants’ motion for summary judgment, the court construes it as a
response to that motion.
8). The court granted that motion, extending Williams’s expert disclosure deadline
to January 14, 2022. (Doc. 61). Williams never submitted additional information.
Instead, Mr. Williams moved the court to extend the expert disclosure
deadline again on January 7, 2022. (Doc. 62). The text of that motion was virtually
identical to the text of Mr. Williams’s prior motion for an extension; neither
motion explained the reasons for Mr. Williams’s delay in disclosing an expert
witness or his progress toward retaining one. So, the court denied Mr. Williams’s
second motion for an extension on January 10, 2022. (Doc. 63). Mr. Williams
disclosed no witness before the January 14 deadline.
On February 15, 2022—after Defendant declared its expert witness and after
Defendant filed its motion for summary judgment—Mr. Williams moved the court
under Fed. R. Civ. P. 59(e) to reconsider its denial of his second request for an
extension for expert disclosure in January 2022. (Doc. 73 at 5). Mr. Williams
claims that he paid an expert witness on January 12, 2022. He provides a redacted
receipt from January 12, purportedly showing that he paid a radiologist $1,525.00.
(Doc. 73-1). And he provides an invoice for $1,525 from the radiology expert,
dated October 20, 2021. (Doc. 73-2). He argues that this information constitutes
“newly discovered evidence or manifest errors of law or fact,” warranting
reconsideration of the court’s prior ruling. (Doc. 73 at 5) (quoting Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007)). The court disagrees.
Parties “cannot use a Rule 59(e) motion to relitigate old matters, raise
argument or present evidence that could have been raised prior to the entry of
judgment.” Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763
(11th Cir. 2005).
Mr. Williams’s receipt showing that he paid an expert witness on January
12, 2022 while failing to disclose that witness before the January 14 deadline does
not constitute “newly discovered evidence.” It merely shows his failure to timely
retain an expert and comply with the final expert disclosure deadline the court
ordered in November 2021.2 (Doc. 61).
Also, Mr. Williams received an invoice from his purported radiology expert
on October 20, 2021—three months before his final expert disclosure deadline on
January 14 and the court’s denial of his second motion for an extension on January
10. Yet, neither of Mr. Williams’s motions for an extension mentioned the expert
or the October 2021 invoice. If Mr. Williams possessed that invoice in October
2021 and knew the identity of his purported radiology expert, then that information
constitutes evidence “that could have been raised prior to the entry of judgment” in
January 2022. See Michael Linet, Inc., 408 F.3d at 763. So Mr. Williams fails to
present newly discovered evidence justifying reconsideration.
2 At the Scheduling Conference held on July 20, 2021, the court explained in detail to Mr.
Williams the requirement under Alabama law that he hire an expert witness and present a report
from that witness by the deadline in the Scheduling Order.
Nor does the court find a “manifest error of law or fact” based on Mr.
Williams’s submissions. Mr. Williams identifies no erroneous ruling of fact in
denying his second motion for an extension. Rather, Mr. Williams failed to alert
Defendant and the court to the existence of his radiology expert and the October
2021 invoice. He also failed to take efforts to produce the required report from that
expert. And he waited to disclose the information and invoice from his expert until
after the Defendant had disclosed its medical expert and filed for summary
judgment. The court finds no error of law or fact in its prior ruling, given the
dearth of information Mr. Williams provided in January 2022.
So the court will DENY Mr. Williams’s motion to reconsider its denial of
his second request for an extension of the expert disclosure deadline. The court
now turns to Defendant’s motion for summary judgment.
BACKGROUND
I. Facts
Mr. Williams served in the United States Army from 2000 to 2003,
including a tour in Iraq. After his military service, Mr. Williams served as a
correctional officer with the Alabama Department of Corrections for just over six
years, until 2011.
On May 12, 2011, Mr. Williams went to the VA Hospital in Birmingham for
an assessment of pain in his left shoulder and neck. After an MRI examination, Mr.
Williams’s examining physician found his spinal cord to be “normal” and found
“no evidence of intra medullary abnormal signal intensities, tumor or syrinx.”
(Doc. 32 at 15) (emphasis added).3
Mr. Williams continued to suffer from back pain, and he returned to the VA
hospital as a walk-in patient on September 29, 2017. The VA medical records state
that Mr. Williams was having “sharp pain” near several discs in his spine. (Doc.
66-1 at 3). The physician’s notes continue: “He tells me that [the painful area] was
Bx [i.e., biopsied] outside the VA at Grandview and they told him it was Benign.
Will forward to his pcp [primary care physician] for eval and treatment.” (Id.).
That same day, the physician ordered an MRI of Mr. Williams’s thoracic spine.
(Id. at 4). The notes reflect that Mr. Williams left the hospital “in satisfactory and
stable condition[.] Veteran was satisfied with this visit.” (Id. at 5).
After that visit, Mr. Williams underwent his second MRI on October 10,
2017 at the VA hospital. The report of that MRI examination found: “Vertebral
body height and disc spaces are well-maintained. Alignment is normal. The
visualized cervical and lumbar spine is normal.” (Doc. 66-1 at 7). The report found
a “T2 hyperintense and T1 iso/hyperintense lesion” in one part of the spine but
concluded, “these are likely not clinically significant.” (Id.). The report also
indicates that the examiner reached the conclusions after conducting a
3 The court cites to the allegations in Mr. Williams’s complaint about the results of his 2011 MRI
because neither party presents the medical records for that MRI assessment.
“comparison” between the results of the October 2017 MRI and the results of the
May 2011 MRI. (Id. at 6). The report does not identify a malignant or harmful
tumor.
Mr. Williams then requested that a neurologist offer a second opinion as to
the MRI images. On October 13, 2017, the neurologist provided a written opinion,
which states:
I have reviewed the images. Enhancing lesion in T4 vertebral body.
Official read by neuroradiology is likely hemangioma. These are
benign lesions typically located in the thoracic spine. They are most
commonly incidental findings and usually asymptomatic.
Symptomatic cases represent approximately less than 1% of cases.
These lesions can cause pain noted with increase in activity or if they
cause collapse of vertebra or encroach on the neural canal which is not
seen on imaging in this case. Treatment is typically not needed and
the report of pt remaining neurologically intact is reassuring. If exam
changes would refer him for urgent workup but do not expect this to
be the case.
(Doc. 66-1 at 9).
Mr. Williams’s complaint alleges that his treating physicians as the VA
negligently failed to treat a spinal growth that was visible on the MRIs from May
2011 and October 2017. (Doc. 32 at 20 et seq.). He claims that the VA physicians’
conduct breached the appropriate standard of medical care under the Alabama
Medical Liability Act.
II. Expert Testimony
As explained above, Mr. Williams failed to timely disclose an expert to
testify about his injuries and the appropriate standard of care. This failure dooms
Mr. Williams claim, as explained below. Even so, Defendant supports its motion
for summary judgment with the expert report of Dr. Gordon Sze, MD. (Doc. 66-2).
Dr. Sze is Professor of Radiology and Chief of Neurology at Yale University
School of Medicine. (Id. at 5). He has served as president of national
neuroradiology and radiology associations and written over 130 peer-reviewed
publications. He is also licensed to practice medicine in Connecticut.
After reviewing Mr. Williams’s medical records and Mr. Williams’s MRI
images, Dr. Sze concluded:
[Mr. Williams] has no symptomatic tumors. Instead, he has an
asymptomatic and benign vertebral hemangioma, that was correctly
diagnosed by the VA from the [MRI] of 10/10/17. In fact, he has 2
small benign vertebral hemangiomas, both of which were correctly
diagnosed in his VA medical records.
(Doc. 66-2 at 6).
Dr. Sze notes that Mr. Williams’s benign vertebral hemangiomas are “very
common, seen in up to 37% of all patients.” (Id. at 7). He concludes that Mr.
Williams’s MRIs show
No signs of aggressiveness. . . . These hemangiomas would not be
expected to be symptomatic and would not be treated. The report in
this case did diagnose both hemangiomas and falls well within the
standard of care. It is my opinion that Orlando Williams received
appropriate, evidence-based medical care in accordance with proven,
effective medical standards.
(Doc. 66-2 at 8).
LEGAL STANDARD
The court will set forth the standard governing Defendant’s motion for
summary judgment. And because Mr. Williams states a medical malpractice claim
under the Alabama Medical Liability Act and the Federal Tort Claims Act, the
court will also address the legal standard for that claim as well.
I. Summary Judgment Standard
Generally, courts must construe pro se complaints more liberally than they
construe pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520
(1972). But “a pro se litigant does not escape the essential burden under summary
judgment standards” of showing a genuine issue of material fact to avert summary
judgment. Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).
Summary judgment allows a trial court to decide cases that present no
genuine issues of material fact and in which the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56. The moving party “always
bears the initial responsibility of informing the district court of the basis for its
motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no
genuine issues of material fact exist, the burden then shifts to the non-moving party
“to demonstrate that there is indeed a material issue of fact that precludes summary
judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The
non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material fact.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party must “go beyond
the pleadings and by [its] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there
is a genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P.
56(e)).
The court must “view the evidence presented through the prism of the
substantive evidentiary burden.” See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 254 (1986). But the court must refrain from weighing the evidence and
making credibility determinations, because these decisions fall to the province of
the jury. Id. at 255. And the court must view all evidence and inferences drawn
from the underlying facts in the light most favorable to the non-moving party. See
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999).
II. Federal Tort Claims Act and Alabama Medical Liability Act
Standards
Under the Federal Tort Claims Act, “the extent of the United States’ liability
is generally determined by reference to state law.” Dutton v. United States, 621 F.
App’x 962, 966 (11th Cir. 2015) (quoting Molzof v. United States, 502 U.S. 301,
305 (1992)). Accordingly, the FTCA requires that the “whole law of the State
where the act or omission occurred . . . be applied.” Gonzalez-Jiminez De Ruiz v.
United States, 378 F.3d 1229, 1230 n.1 (11th Cir. 2004). Here, Alabama law
applies because Defendant’s allegedly tortious conduct occurred in Alabama. And
because Mr. Williams raises claims of medical malpractice, the Alabama Medical
Liability Act (AMLA) governs his claims. See Ala. Code § 6–5–548(a) (providing
that the AMLA applies “in any action for injury or damages or wrongful death,
whether in contract or in tort, against a health care provider for breach of the
standard of care”).
The Alabama Medical Liability Act provides:
[T]he plaintiff shall have the burden of proving by substantial
evidence that the health care provider failed to exercise such
reasonable care, skill, and diligence as other similarly situated health
care providers in the same general line of practice ordinarily have and
exercise in a like case.
Ala. Code § 6–5–548(a). To meet this burden, the plaintiff in a medical
malpractice case “must ordinarily establish the defendant physician’s negligence
through expert testimony as to the standard of care and the proper medical
treatment.” Pruitt v. Zeiger, 593 So. 2d 236, 237–38 (Ala. 1991) (emphasis added).
An exception to the expert-medical-testimony rule exists “where the lack of
care is so apparent as to be within the ken of the average layman.” Jones v.
Bradford, 623 So. 2d 1112, 1115 (Ala. 1993). But that exception applies in only
four circumstances:
(1) where a foreign instrumentality is found in the plaintiff’s body
following surgery; (2) where the injury complained of is in no way
connected to the condition for which the plaintiff sought treatment; (3)
where the plaintiff employs a recognized standard or authoritative
medical text or treatise to prove what is or is not proper practice; and
(4) where the plaintiff is himself or herself a medical expert qualified
to evaluate the doctor’s allegedly negligent conduct.
Id. (quoting Allred v. Shirley, 598 So. 2d 1347, 1350 (Ala. 1992).
ANALYSIS
As explained above, Mr. Williams failed to provide medical expert
testimony as to the appropriate standard of care and whether the conduct of the VA
physicians breached that standard. As the Alabama Supreme Court has stated, “if
the standard of care is not established, there is no measure by which the
defendant’s conduct can be gauged.” Pruitt, 590 So. 2d at 238. Because Mr.
Williams failed to provide expert testimony as to the standard of care, he fails to
meet his burden of presenting “substantial evidence” from a medical expert, as part
of his prima facie case, that the VA physicians breached that standard of care
under Alabama law. See Ala. Code § 6–5–548(a).
And this case does not fall into one of the four circumstances in which a
plaintiff need not present expert testimony under Alabama law. See Jones, 623 So.
2d at 1115. First, Mr. Williams’s injuries do not stem from a foreign
instrumentality following surgery. Second, medical records show that the VA
physicians directly assessed, diagnosed, and treated the back pain and tumors
underlying his complaint; so the injury “complained of” is connected to the
condition for which he sought treatment. Id. Third, Mr. Williams provided no
medical authority as to the standard of care. And fourth, Mr. Williams is not a
medical expert. So Mr. Williams’s lack of medical expert testimony fails to raise a
genuine dispute of material fact as to whether the VA physicians breached the
standard of care.
Because Mr. Williams failed to present an expert opinion showing that the
VA physicians breached the standard of care, Mr. Williams’s medical malpractice
claim fails and summary judgment against him is appropriate on that ground.
Alternatively, the court has examined Defendant’s expert testimony from Dr.
Sze, and the court finds that testimony to show that the VA physicians did not
breach the appropriate standard of care. Dr. Sze agrees with the VA physicians in
diagnosing Mr. Williams with “asymptomatic and benign vertebral hemangioma.”
Compare (Doc. 66-2 at 6) with (doc. 66-1 at 9). Based on that finding, Dr. Sze also
agrees with the VA’s consulting neurologist that the hemangiomas did not merit
treatment. Compare (Doc. 66-2 at 8) with (doc. 66-1 at 9). And after reviewing the
medical records that Mr. Williams provides, the court finds no reason to doubt Dr.
Sze’s conclusion that Mr. Williams “received appropriate, evidence-based medical
care in accordance with proven, effective medical standards.” (Doc. 66-2 at 8). So
summary judgment is appropriate on this ground as well.
Mr. Williams’s only response to Defendants’ motion challenges Dr. Sze’s
expert opinion.4 Mr. Williams argues that Dr. Sze “is not qualified to offer
opinions . . . that [Mr. Williams] has a history of post-traumatic stress disorder.”
(Doc. 72 at 6–7). Williams argues that this lack of qualification renders Dr. Sze’s
opinion a “no report and not subject to cure.” (Id. at 7). Although the introduction
of Dr. Sze’s comments briefly notes Mr. Williams’s “history of post-traumatic
stress disorder” (doc. 66-2 at 6), Dr. Sze’s opinion does not rely on that fact for its
conclusions. And Mr. Williams’s post-traumatic stress disorder is not a material
fact concerning his claims as to spinal growths and tumors. (Doc. 74 at 1). The
court finds no issue with Dr. Sze’s qualifications as to his conclusions about Mr.
Williams’s spinal growths—the only conclusions relevant to Mr. Williams’s
4 As explained above, Mr. Williams’s only filing responding to Defendant’s motion “objects” to
Dr. Sze’s expert report. (Doc. 72). But the court construes that filing as a response to
Defendant’s motion for summary judgment.
claims. So Dr. Sze’s comment about post-traumatic stress disorder does not
undermine his conclusions about the appropriateness of the VA physicians’ care
for Mr. Williams’s benign hemangiomas.
In sum, Mr. Williams fails to provide any expert testimony to support his
malpractice claims and rebut Dr. Sze’s findings. And this case does not present the
circumstances justifying an exception to the requirement for expert medical
testimony. So Mr. Williams fails to show a genuine dispute as to whether
Defendant breached the appropriate standard of medical care. Alternatively, the
court finds that Dr. Sze’s expert testimony establishes both the appropriate
standard of medical care and that Defendant did not breach that standard. Summary
judgment is appropriate on that ground as well.
The court will GRANT Defendant’s motion for summary judgment as to Mr.
Williams’s medical malpractice claim under the Alabama Medical Liability Act.
CONCLUSION
By separate Order, the court will deny Mr. Williams’s motion to reconsider
because he has not presented newly discovered evidence or a manifest error of fact
or law justifying that request. And the court will grant Defendant’s motion for
summary judgment because Mr. Williams fails to show a genuine dispute as to the
appropriate standard of medical care and that Defendant breached that standard.
DONE and ORDERED this 14th day of April, 2022.
____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE