Porter v. The United States of America et al
| Daren Porter |
| The United States of America and B. White |
| 3:2015cv00142 |
| January 22, 2015 |
| US District Court for the Middle District of Pennsylvania |
| Scranton Office |
| Union |
| JV |
| Richard P. Conaboy |
| Civil Rights |
| 28 U.S.C. ยง 1331 |
| None |
Follow case documents by RSS
Available Case Documents
The following documents for this case are available for you to view or download:
| Document Text |
|---|
Filing
106
MEMORANDUM (Order to follow as separate docket entry)Based on this Courts application of Ford to the present record, appointment of an expert witness at this time would solely be for the purpose of assisting the Plaintiffs opposition to a summary jud gment motion. Porter has failed to come forward with an expert witness or any other competent medical evidence to support his assertions of negligence. Based on an application of standards announced in Ford, the Court feels that it would be an abus e of discretion to appoint an expert witness under Rule 706 at this stage of the proceedings. The Defendant is also entitled to entry of summary judgment with respect to this remaining FTCA claim. An appropriate Order will enter. re 94 MOTION for Summary Judgment filed by The United States of America Signed by Honorable Richard P. Conaboy on 3/27/18. (cc)
|
|
Filing
36
MEMORANDUM (Order to follow as separate docket entry) The pending Complaint potentially includes multiple claims of medical negligence. The first of those such assertions raised by Plaintiff is that EMT Potter, a prison staff member, allowed Plainti ff to be placed in ambulatory restraints and failed to properly evaluate his shoulder injury. Next, Plaintiff contends that members of the prisons medical staff who conducted two hour assessments of his condition while he was in ambulatory restraint s were also negligent for failure to investigate and treat his broken collarbone. The Complaint also references actions by Porters orthopedic surgeon, Doctor Ball and by Doctor Edinger, a prison staff physician who had Plaintiff transferred to an ou tside hospital after reviewing his initial x-ray. Staff at the outside hospital were also allegedly negligent because they simply put Plaintiffs arm in a sling and returned him to the prison. See Doc. 1, p. 8. Following Plaintiffs return to USP-Le wisburg, Doctor Edinger referred him for evaluation by Doctor Ball. There are also claims which seem to assert that there was a delay of weeks in arranging the evaluation by Doctor Ball. See id.Since Plaintiff has not submitted a Rule 1042.3 certi ficate of merit or otherwise indicated that he has retained an expert witness, this Court agrees that based upon the facts asserted regarding Doctor Edinmger it is appropriate for this court to dismiss any FTCA medical malpractice/negligence claims against Doctor Edinger without prejudice. See Osorio v. United States, 2007 WL 2008498 *2 (W.D. Pa. July 5, 2007); see also Henderson v. Pollack, 2008 WL 282372 *4 (M.D. Pa. Jan 31, 2008)(Caldwell, J.)(citing Hartman v. Low Security Correctional Ins titution, Allenwood, 2005 WL 1259950 * 3 (M.D. Pa. May 27, 2005)(Muir, J.).The only exception to Rule 1042.3 is where the matter is so simple and the lack of skill or want of care is so obvious as to be within the range of ordinary experience and com prehension of even nonprofessional persons. Berman v. United States, 205 F. Supp.2d 362, 264 (M.D. Pa. 2002) (citing Brannan v. Lankenau Hospital, 490 Pa. 588 (1980). However, the instances when expert opinions may be unnecessary are rare. See Sim pson, 2005 WL *6; Arrington, 2006 WL 860961 *7.Based upon Plaintiffs allegation that when first seen by Doctor Edinger the physician stated how did no one notice this, the bone was sticking upwards and stabbing into my flesh, the negligence claims ag ainst EMT Potter and the other medical staff who assessed Plaintiff while he was in ambulatory restraints arguably fall with the above described exception to Rule 1042.3. See Doc. 1, p. 13. Accordingly, the request for dismissal of those medical ne gligence claims under Rule 1042.3 will be denied. Likewise, the apparent claim that there was a delay of weeks before Plaintiff was seen by Doctor Ball also conceivably fits within the recognized exception to Rule 1042.3 and will also be allowed to proceed.Assault/Motion to View TapesWith respect to the incident of October 2, 2012, the Defendant maintains that any allegation of assault with respect to the force used by Correctional Officer White and the placement of ambulatory restraints should not be allowed to proceed because the undisputed record shows that those actions were reasonable and in accordance with BOP policy. See Doc. 22, p. 20.In support of its argument the Defendant provided this Court with three videotapes pertaining to the events at issue which ere filed under seal. The Defendant added that Porter would be afforded opportunity to view those videotapes at his current place of incarceration. See Doc. 19, 9.Porter has filed a motion requesting that he be provided o pportunity to view the submitted videotapes in order to verify their authenticity. See Doc. 33. The motion is unopposed.Since the Defendant previously expressed its intention to allow Plaintiff opportunity to review the videotape evidence, the uno pposed motion will be granted. Moreover, the remaining summary judgment arguments will be dismissed without prejudice an may be reasserted after Porter has had opportunity to review the videotapes. An appropriate Order will enter.re 11 MOTION for Summary Judgment filed by The United States of America Signed by Honorable Richard P. Conaboy on 3/29/16. (cc)
|
Use the links below to access additional information about this case on the US Court's PACER system. A subscription to PACER is required.
Access this case on the Pennsylvania Middle District Court's Electronic Court Filings (ECF) System
- Search for Party Aliases
- Associated Cases
- Attorneys
- Case File Location
- Case Summary
- Docket Report
- History/Documents
- Parties
- Related Transactions
- Check Status
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
