United States District Court, D. South Dakota, Central Division
EMERSON LITTLE ELK, ADMINISTRATOR FOR THE ESTATE OF PETER LITTLE ELK; and LINDA LITTLE ELK, ADMINISTRATOR FOR THE ESTATE OF PETER LITTLE ELK, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
a Complaint filed August 27, 2014, Plaintiffs Emerson and
Linda Little Elk, Administrators for the Estate of Peter
Little Elk, brought this suit against the United States
contending that employees of the Rosebud Indian Health
Services, an agency of the United States, were negligent in
providing medical care to their 24-year-old son Peter Little
Elk. Doc. 1. The Complaint alleged that Peter Little Elk
reported to the Rosebud IHS at 10:20 a.m., on July 8, 2012,
and was in the care of Rosebud IHS employees at various
points until his death at 8:50 p.m., in Winner, South Dakota,
in route to Sioux Falls, South Dakota, for more advanced
care. Specifically, Plaintiffs contend that Rosebud IHS was
negligent by failing to administer Lovenex at an earlier
time; failing to administer the proper dose of Lovenex;
failing to transport [Peter Little Elk] in a vehicle capable
of handling trauma; failing to have the vehicle ready
(fueled) for transport of patient; failing to expedite
transportation of [Peter Little Elk] by using air ambulance;
and failing to expedite ground transportation. Doc. 1 at
filed an administrative tort claim with the United States
Department of Health and Human Services (HHS) on or about May
20, 2013. Doc. 1 at ¶ 17; Doc. 6 at ¶ 17. Because
HHS failed to either grant or deny Plaintiffs' claim
within the requisite six-month period, Plaintiffs filed suit
against the United States in this court under the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 2671 et. seq.
Doc. 1 at ¶ 1.
Plaintiffs initially were represented by attorney Terry
Pechota. Doc. 1. After the United States answered, the
parties met and filed a report of their planning meeting on
January 20, 2015. Doc. 7. Consistent with the report of the
planning meeting, this Court entered a Rule 16 Scheduling
Order on January 27, 2015, formalizing that Plaintiffs had an
expert disclosure deadline of July 17, 2015. Doc. 8. On July
17, 2015, Plaintiffs sought additional time for their expert
witness disclosure, to which the United States did not
object. Doc. 9. This Court entered an Amended Rule 16
Scheduling Order allowing Plaintiffs until September 1, 2015,
to provide expert disclosures. Doc. 10. On September 1, 2015,
again without opposition from the United States, Plaintiffs
filed another motion to enlarge the deadline for any expert
disclosure. Doc. 11. This Court issued a Second Amended Rule
16 Scheduling Order permitting Plaintiffs until December 4,
2015, to provide expert disclosures. Doc. 12. That deadline
passed without Plaintiffs disclosing any expert witness or
December 17, 2015, Plaintiffs' attorney Pechota moved to
withdraw from the case without substitution. Doc. 13. This
Court entered an Order Concerning Motion to Withdraw Without
Substitution noting that the Plaintiffs' attorney had not
provided “good cause” under Civil Local Rule
83.7(C), and explained in the order the good cause standard.
Doc. 14. Thereafter, attorney Pechota submitted an ex parte
affidavit containing information that prompted this Court to
issue an Order Granting Motion to Withdraw Without
Substitution on January 21, 2016. Docs. 15, 16.
to the Defendant United States' Statement of Undisputed
Material Facts, to which Plaintiffs have not objected, the
United States' attorney on March 4, 2016, spoke with
Plaintiff Emerson Little Elk about the Rule 16 Scheduling
Order. Doc. 21 at ¶ 3. Emerson Little Elk advised that
he was seeking to obtain new legal counsel. Doc. 21 at ¶
4. The United States' attorney offered to seek an
amendment to the scheduling order, to which Emerson Little
Elk agreed. Doc. 21 at ¶ 5. The United States then in
fact filed such a motion, Doc. 17, which this Court granted
through a Third Amended Rule 16 Scheduling Order, on March
21, 2016. Doc. 18. This Third Amended Rule 16 Scheduling
Order allowed Plaintiffs until June 17, 2016, to make any
expert witness disclosure. Doc. 18. Plaintiffs to this date
still have not disclosed an expert or provided an expert
report. Doc. 21 at ¶ 8.
November 18, 2016, the United States filed a Motion for
Summary Judgment, Doc. 19, a Supporting Memorandum of Law,
Doc. 20, a Statement of Undisputed Material Facts, Doc. 21,
and an Affidavit in Support of the Motion for Summary
Judgment, Doc. 22. After 21 days passed without any
opposition to the Motion for Summary Judgment, this Court
entered an Order on Defendant's Motion for Summary
Judgment that stated:
On November 18, 2016, Defendant United States of America
filed a Motion for Summary Judgment, Statement of Undisputed
Facts, and Memorandum of Law. Under Civil Local Rule 7.1.B of
the District of South Dakota, Plaintiffs have 21 days within
which to file a responsive brief opposing the motion. Civil
Local Rule 56.1.B describes what Plaintiffs must file to
contest Defendant's Statement of Undisputed Material
Facts. Plaintiffs' attorney has withdrawn, and Plaintiffs
have no counsel of record. The Civil Local Rules and Federal
Rules of Civil Procedure apply to pro se plaintiffs.
More than 21 days has elapsed since the filing of the summary
judgment papers, and Plaintiffs have not responded. This
Court will give these pro se Plaintiffs additional time to
respond to the motion. Therefore, it is hereby ORDERED that
Plaintiffs shall have until December 28, 2016, to file any
response if they oppose the motion. It is further ORDERED
that the Clerk of Court mail to Plaintiffs a copy of this
Order along with a copy of D.S.D. L.R. 7.1 and 56.1 and Rule
56 of the Federal Rules of Civil Procedure.
Doc. 23. Through a letter postmarked December 22, 2016,
Emerson Little Elk simply responded:
I write this letter without the assistance of legal counsel
to request that the Court allow a trial and/or testimony in
the case of my son, Peter Little Elk. I would like to present
testimony in this case because Indian Health Services refused
to allow a referral to an outside doctor or hospital due to
lack of funding, and my son's health became worse until
his untimely passing.
56(a) of the Federal Rules of Civil Procedure allows for
summary judgment 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). Rule 56(e) places the burden initially on the moving
party to establish the absence of a genuine issue of a
material fact and entitlement to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has met that burden, the non-moving
party must establish that a material fact is genuinely
disputed either by “citing to particular parts of
materials in the record” or by “showing that the
materials cited do not establish the absence . . . of a
genuine dispute.” Fed.R.Civ.P. 56(c)(1)(A)-(B).
“The movant has the burden of showing that there is no
genuine issue of fact, but the plaintiff is not thereby
relieved of his own burden of producing in turn evidence that
would support a jury verdict.” Anderson v Liberty
Lobby, Inc., 477 U.S. 242, 256 (1986). “[A] party
opposing a properly supported motion for summary judgment may
not rest upon mere allegation or denials of his pleading, but
must set forth specific facts showing that there is a genuine
issue for trial.” Id. (citing Fed.R.Civ.P.
56(e)). In ruling on a motion for summary judgment, the facts
and inferences fairly 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, 587-88 (1986)
(quoting United States v. Diebold, Inc., 369 U.S.
654, 655 (1962)).
FTCA action, such as this one, courts apply the law of the
state in which the action is brought. LaFromboise v.
Leavitt, 439 F.3d 792, 795-96 (8th Cir. 2006). South
Dakota law thus applies to substantive issues in this case.
Plaintiffs' case is a negligence action asserting
deficient and inappropriate medical care to Peter Little Elk
by Rosebud IHS, a governmental agency. “In order to
prevail in a suit based on negligence, a plaintiff must prove
duty, breach of that duty, proximate and factual causation,
and actual injury.” Fisher Sand & Gravel Co. v.
S.D. Dep't of Transp., 558 N.W.2d 864, 867 (S.D.
1997). Under South Dakota law, expert testimony is necessary
to prove a breach of the standard of care in providing
medical treatment. Magbuhat v. Kovarik, 382 N.W.2d
43, 46 (S.D. 1986). Indeed, under South Dakota law, the
requirement of expert testimony applies both to deviation
from the standard of care and to causation in medical
malpractice and ...