Payne v. United States

RONALD T. PAYNE, SR., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

CV 17-0536 JCH/JHR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

August 17, 2020

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

This matter comes before the Court on the United States of America's Motion to Dismiss [Doc. 54], filed November 14, 2018, and Mr. Payne's "Certificate of Service - Request to Consider Waiver of Federal Civic Court Rule 26(a)" [Doc. 77], filed November 4, 2019, which the Court liberally construes¹ as a request by Mr. Payne to release him of his obligation to produce an expert witness to support his claim for medical malpractice under New Mexico law. This case was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), (b)(3), and Virginia Beach Federal Savings & Loan Association v. Wood, 901 F.2d 849 (10th Cir. 1990), to perform any legal analysis required to recommend to presiding District Judge Herrera an ultimate disposition of the case. [See Doc. 53]. The Court, being familiar with the history of this case and having carefully considered its duty to fairly apply the law, herebyrecommends that both Motions be denied. The Court further recommends that this matter be referred for mandatory settlement proceedings with a United States Magistrate Judge as required by this district's Local Rules.

I. BACKGROUND

Mr. Payne filed his Complaint for Medical Malpractice and Damages under the Federal Tort Claims Act ("FTCA") on May 9, 2017. [Doc. 1]. Factually, Mr. Payne alleged that he sought care from Dr. Darra Kingsley at the Raymond G. Murphy VA Medical Center in Albuquerque, New Mexico, because he was experiencing "symptoms of choledocolithiasis² and cholecystitis³ and had been referred to Dr. Kingsley, a general surgeon, to consult about a cholecystectomy."⁴ [Id., p. 2]. However, believing Mr. Payne's symptoms to be the result of gastroesophageal reflux disease, Dr. Kingsley referred Mr. Payne for ulcer testing rather than scheduling him for a cholecystectomy. [Id.]. Unfortunately, Mr. Payne required "extensive emergency medical treatment, including a complicated subtotal cholecystectomy[,]" shortly after his visit with Dr. Kingsley. [Id.]. As a result, Mr. Payne sued the United States alleging that Dr. Kingsley misdiagnosed and failed to treat his acute gallbladder disease resulting in "medical crisis which necessitated extensive medical treatment and caused [him] significant suffering, distress and pain." [Id., p. 3].

The United States answered Mr. Payne's Complaint on July 24, 2017. [Doc. 12]. Pertinent here, it denied that Mr. Payne "was having symptoms of 'choledecolithiasis and cholecystitis'" onthe date in question. [Id., p. 2]. Instead, it affirmatively stated that Mr. Payne was referred to Dr. Kingsley for "a general surgery consult request to evaluate [Mr. Payne] for gallbladder disease." [Id.]. The United States also admits that its employees, including Dr. Kingsley, had a duty to possess and apply the knowledge and use the skill and care that are ordinarily used by reasonably well-qualified and trained medical providers. [Compare Doc. 1, ¶ 14 with Doc. 12, ¶ 14]. However, the United States asserts as an affirmative defense that its agents exercised due care at all times and in all matters alleged in the Complaint and that no action or failure to act by one of its agents proximately caused Mr. Payne's damages. [Doc. 12, p. 3].

The parties filed their First Amended Joint Status Report and Provisional Discovery Plan ("JSR") on August 22, 2017. [Doc. 17]. In the JSR Mr. Payne clarified that he underwent emergency surgery six (6) days after visiting with Dr. Kingsley, which revealed a gangrenous gallbladder requiring a complicated subtotal cholecystectomy. [Id., p. 1]. After holding a Rule 16 Scheduling Conference, then-assigned Magistrate Judge Lynch entered an Order Setting Pretrial Deadlines and Adopting the JSR on August 29, 2017. [Doc. 19 ("Scheduling Order")]. The Scheduling Order required Mr. Payne to disclose his expert witness(es) by January 2, 2018. The United States' expert disclosure was set for January 31, 2018, and discovery was set to close on February 26, 2018. [Id.].

Mr. Payne missed his deadline to disclose his expert witness; however, he filed an Unopposed Motion to Extend Discovery and Motion Deadlines on January 29, 2018, which was granted by the undersigned on January 30, 2018. [See Docs. 29 (Motion), 30 (Order)]. This Order extended the discovery and pretrial motions deadlines by 60 days, to April 26, 2018, and May 29, 2018, respectively. [See Doc. 30]. Meanwhile, the United States disclosed its expert to Mr. Payne on January 31, 2018.

Rather than attempt to meet the amended case management deadlines, Mr. Payne filed a letter on February 20, 2018 seeking to dismiss his case without prejudice because of his inability to obtain counsel or an expert witness. [See Doc. 34]. In response to Mr. Payne's letter, then-presiding Chief District Judge Armijo entered an Order staying the case until July 13, 2018, "to allow Plaintiff additional time to seek counsel and find an expert witness." [Doc. 39]. In other words, Judge Armijo reset Mr. Payne's expert disclosure deadline. [Id.]. Judge Armijo concluded her Order by stating that the Court would set a status conference if Mr. Payne was unable to secure counsel or an expert by July 13, 2018. [Id.].

July 13, 2018, came and went and the undersigned convened a status conference on October 22, 2018, to determine how the case should proceed. [See Doc. 51]. The Court noted that all pretrial deadlines had expired, even as extended by Judge Armijo's Order; however, after Judge Armijo assumed senior status, the case appeared to have languished. [Id.]. The case was soon reassigned to presiding District Judge Herrera, who subsequently referred the matter to the undersigned for proposed resolution. [See Doc. 53].

The United States filed its Motion to Dismiss on November 14, 2018. [Doc. 54]. The Motion, brought pursuant to Federal Rule of Civil Procedure 12(b)(6), argues that Mr. Payne cannot establish a waiver of sovereign immunity under the Federal Tort Claims Act, placing this Court's subject matter jurisdiction in question. [Id., p. 1]. The United States explains that Mr. Payne "is unable to make any credible showing of negligence in this matter" because "he has no evidence of medical negligence. Moreover, Defendant's expert reviewed the medical records and pleadings and concluded that the medical providers and the VA Medical Center provided Plaintiff with appropriate medical care[.]" [Id., p. 8].

Mr. Payne was granted an extension to file his response to the United States' Motion until December 12, 2018. [Doc. 55]. However, rather than filing a response, Mr. Payne filed a Motion for Postponement on December 7, 2018 due to family medical issues. [Doc. 56]. The undersigned granted Mr. Payne's Motion on January 31, 2019, after the United States declined to respond, and stayed the case until May 1, 2019; Mr. Payne was directed to file his response to the Motion to Dismiss no later than May 6, 2019. [Doc. 61]. Unfortunately, Mr. Payne's personal circumstances only worsened, and on April 3, 2019, he moved to extend the stay by an additional six (6) weeks. [Doc. 62]. Mr. Payne's request was granted, and the stay was extended until June 12, 2019. [Doc. 64].

Mr. Payne mailed a document liberally construed as a response to the United States' Motion to Dismiss on June 8, 2019 (filed by the Clerk on June 17, 2019). [Doc. 66]. In this document, Mr. Payne asked why this case has not been referred to a settlement conference, accused the United States' attorney of unethical conduct, sought an in-person hearing,⁵ and asked the Court to waive the formal procedure attendant to disclosures under Federal Rule of Civil Procedure 26, specifically seeking to be released from the burden of producing expert testimony in support of his malpractice claims as required by New Mexico precedent. [Id., pp. 2-8].

The United States filed a reply on July 1, 2019, [Doc. 71], completing the briefing on its Motion. The upshot of the United States' reply is that, despite his representations, Mr. Payne "has failed to disclose an expert witness to assist in meeting his burden of proof and/or to rebut the opinions rendered by defense expert, Mario Leyba, M.D." [Id., p. 5]. The United States seeks dismissal of Mr. Payne's case with prejudice. [Id., p. 8].

After carefully reviewing the record the undersigned declined to address the merits of the United States' Motion and entered Proposed Findings and a Recommended Disposition on July 9, 2019, which recommended that discovery be reopened to permit Mr. Payne an additional opportunity to disclose an expert and obtain discovery. [See Doc. 72]. Before Judge Herrera could adopt that recommendation, Mr. Payne's son sent the Court a letter seeking an additional six (6) week stay due to Mr. Payne's injuries sustained during a fall. [Doc. 73]. After reviewing the recommendation and this request, Judge Herrera adopted the undersigned's recommendation and set the following new case management deadlines: Mr. Payne's expert disclosure due November 20, 2019; United States' rebuttal expert disclosure due December 26, 2019; and discovery termination set for January 13, 2020. [Doc. 75].

Instead of obtaining an expert or counsel, Mr. Payne filed a "Request to Consider Waiver of Federal Civic Court Rule 26(a)" on November 4, 2019. [Doc. 77]. The United States responded on November 18, 2019. [Doc. 78]. Mr. Payne did not reply, but filed a document seeking a status update on his request on January 16, 2020. [Doc. 80]. As such, briefing on his Motion is complete.

Also pending is a "Certificate of Service" Mr. Payne filed on February 4, 2020, attaching evidence he believes proves the United States' liability and stating his interpretation of that evidence. [Doc. 82]. The Court should not consider this...