The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT
Defendants, Dr. Bryan Wellman and Wilson Asfora, P.C., d/b/a Sioux Falls Neurosurgical Associates, move for summary judgment on all claims except for the claim that Dr. Wellman violated the standard of care by performing surgery on Laurie DeNeui when she was not an appropriate candidate for such surgery.*fn1 Plaintiffs, Laurie DeNeui and Terry DeNeui, oppose the motion. Defendants' motion is denied in part and granted in part.
This is a medical malpractice action arising out of an anterior cervical diskectomy and fusion that Dr. Wellman performed on Laurie DeNeui (DeNeui) on October 18, 2005. Dr. Wellman used bone morphogenetic protein (BMP), a product that enhances bone growth, during the surgery.*fn2 DeNeui alleges that the use of BMP caused her to develop difficulty breathing, swallowing, and speaking after the surgery, symptoms that have left her permanently and totally disabled and unable to work. Plaintiffs filed suit against defendants, alleging that Dr. Wellman breached his duty to exercise reasonable skill and care by performing an unnecessary surgery and by using BMP during the surgery in a manner that was not approved by the Food and Drug Administration (FDA). Plaintiffs also allege that Dr. Wellman breached his duty to obtain DeNeui's informed consent by failing to inform her about the material risks associated with the surgery, including the use of BMP in a manner that was not approved by the FDA.*fn3
Summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden is initially placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("[A] party seeking summary judgment always bears the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact." (internal quotations omitted)).
Once the moving party has met its initial burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading[.]" Fed. R. Civ. P. 56(e)(2). Rather, the nonmoving party must, "by affidavits or as otherwise provided in this rule[,] set out specific facts showing a genuine issue for trial." Id. For purposes of summary judgment, the facts, and inferences drawn from those facts, are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
In determining whether a genuine issue for trial exists, the court applies the standard and burden associated with the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict[.]"). South Dakota substantive law applies to the issues of medical negligence, informed consent, and punitive damages because this case is before the court on the basis of diversity. Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 996 n.6 (8th Cir. 2007) ("We apply South Dakota substantive law because this diversity action was brought in the District of South Dakota, and the district court sitting in diversity applies the substantive law of the state in which it is located." (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)).
Defendants move for summary judgment with regard to three claims in the complaint: (1) that Dr. Wellman's off-label use of BMP fell below the requisite standard of care; (2) that Dr. Wellman failed to obtain DeNeui's informed consent; and (3) that plaintiffs are entitled to punitive damages.
1. Breach of Professional Duty of Care
Defendants argue that partial summary judgment is appropriate with regard to Count I, which alleges that Dr. Wellman breached his professional duty of care owed to DeNeui and was negligent in her medical care and treatment, because there is no evidence showing that BMP could have caused DeNeui's alleged long-term injuries. In support of this argument, defendants correctly point out that the law in South Dakota generally requires that DeNeui present expert testimony that establishes causation. Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D. 1988) ("The plaintiff has the burden of proving causation in a malpractice action and generally must present expert testimony to meet this burden."). Defendants argue that there is no reliable evidence showing that BMP caused DeNeui's alleged permanent injuries because plaintiffs' expert testimony is not sufficiently reliable to demonstrate causation. Defendants have raised this similar argument twice before in their motions to exclude plaintiffs' expert testimony. (See Dockets 80, 81, 113, 141, 142, 154.) As set out in DeNeui v. Wellman, 2009 WL 3188414 (D.S.D. August 11, 2009), the court rejected defendants' argument that Dr. Dowdle's expert testimony should be excluded.*fn4 The reasoning and conclusion articulated in that ruling with regard to causation is incorporated into this order. See id. at *5-7. Because defendants do not offer any additional arguments demonstrating that plaintiffs cannot show that BMP caused DeNeui's alleged onset injuries, defendants' motion for partial summary judgment of Count I is denied.
2. Failure to Obtain DeNeui's Informed Consent
Defendants also move for summary judgment on Count II, which alleges that Dr. Wellman breached his professional duty to obtain DeNeui's informed consent. Defendants argue that Dr. Wellman could not have breached his duty to obtain DeNeui's informed consent by failing to tell DeNeui that BMP was going to be used off-label because, as a matter of law, a doctor has no duty to inform a patient of such off-label use. Plaintiffs argue that Dr. Wellman failed to obtain DeNeui's informed consent by failing to properly disclose all of the risks associated with the surgery, including the risks associated with the use of BMP in the cervical spine as warned by the manufacturer of BMP and otherwise known by Dr. Wellman.
In South Dakota, a physician generally owes a duty to obtain a patient's informed consent before operating on that patient. Wheeldon v. Madison, 374 N.W.2d 367, 374 (S.D. 1985) ("We agree that the right to know-to be informed-is a fundamental right personal to the patient and should not be subject to restriction by medical practices that may be at odds with the patient's informational needs."). There is no dispute that DeNeui was Dr. Wellman's ...