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Oskar v. United States

United States District Court, D. South Dakota, Southern Division

February 26, 2016




Defendant, the United States of America, moves for summary judgment on all claims asserted by plaintiff, John Raymond Oskar III, or, in the alternative, for partial dismissal of Oskar’s claims. Oskar resists the motion. For the following reasons, the court denies the motion.


The facts viewed in the light most favorable to Oskar, the non-moving party, are as follows:

Oskar is a veteran. He received medical care at the Veterans Administration Medical Center (VMAC) in Sioux Falls, South Dakota for acute pancreatitis/hepatitis. Oskar sought treatment for his condition on March 31, 2008. In early April of 2008, Dr. Gill, a surgeon at the VMAC, suggested that Oskar be transferred to another facility where pancreatic surgeries are more commonly performed. But Oskar was discharged from the VMAC on April 10, 2008.

Oskar returned to the VMAC in September of 2009 and was admitted for treatment of his pancreatitis ailment. He was transferred to Sanford Health’s facilities on September 28, 2009, for emergency surgery due to a necrotizing pancreatitis condition. Oskar alleges that his intensified illness was caused by the VMAC’s failure to ascertain whether his bowel perforation was resolved surgically and whether the medication prescribed by the VMAC caused his pacreatitis.

Oskar initiated his lawsuit acting pro se and alleged that the government was liable for medical malpractice. The VMAC received Oskar’s administrative complaint on August 19, 2010, and denied the complaint on March 6, 2012. The VMAC also denied Oskar’s request for reconsideration on March 26, 2014. Oskar filed suit in this court on September 11, 2014. Docket 1. The government moves for summary judgment or, in the alternative, for partial dismissal of Oskar’s claims. Docket 13. Oskar obtained legal counsel, who noted her appearance for the first time on November 24, 2015. Docket 17.


Summary judgment on all or part of a claim is appropriate when 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(a); see also In re Craig, 144 F.3d 593, 595 (8th Cir. 1998). The moving party can meet its burden by presenting evidence that there is no dispute of material fact or that the nonmoving party has not presented evidence to support an element of its case on which it bears the ultimate burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Once the moving party has met this burden, “[t]he nonmoving party may not ‘rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial.’ ” Mosley v. City of Northwoods, Mo., 415 F.3d 908, 910 (8th Cir. 2005) (quoting Krenik v. Cty. of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995)). “Further, ‘the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment. . . . Instead, the dispute must be outcome determinative under prevailing law.’ ” Id. (quoting Get Away Club, Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992)). The facts, and inferences drawn from those facts, are “viewed in the light most favorable to the party opposing the motion” for summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).


I. Medical Opinion Evidence

Oskar alleges that the government is liable for medical malpractice. Under the Federal Tort Claims Act (FTCA), courts apply “the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). According to Oskar’s complaint, the acts or omissions occurred in South Dakota. Thus, the court applies South Dakota law.

In South Dakota, “[t]he general rule in medical malpractice cases is that negligence must be established by the testimony of medical experts” because “a verdict in a malpractice case based on inferences stemming from speculation and conjecture cannot stand.” Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D. 1986). But the general rule “does not exclude the opinions and conclusions of lay witnesses on subjects which are within the common knowledge and comprehension of persons possessed of ordinary education, experience and opportunity.” Id. Here, Oskar alleges that he developed diabetes and a potentially lethal case of necrotizing pancreatitis as a result of the government’s negligent examination, diagnosis, and treatment. Oskar’s claims necessitate a determination of the standard of care that is required when a patient is treated for pancreatitis. This is not an issue within the common knowledge of lay people. See Kostel v. Schwartz, 756 N.W.2d 363, 383 (S.D. 2008) (“The complexity of neurosurgery does not pose that kind of self-evident situation [where expert opinion testimony is unnecessary]”); Luther v. City of Winner, 674 N.W.2d 339, 346 (S.D. 2004) (noting that “the typical lay person would have no idea how to design and construct a sidewalk under the conditions on Winner's Main Street”).

Because determining the standard of care in this case is not within the common knowledge of lay people, Oskar must present expert testimony. Under the court’s scheduling order, Oskar was given until June 12, 2015, to designate an expert and to disclose his expert’s report. Docket 10 at 2. That deadline has passed, and Oksar has not designated an expert. The government argues that it is entitled to summary judgment ...

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