United States District Court, W.D. Kentucky, Louisville
CHARLES R. SIMPSON III, SENIOR JUDGE.
matter is before the Court on Defendant United States of
America's motion for summary judgment under Federal Rule
of Civil Procedure 56(a). Eberhardt responded to the motion
for summary judgment, ECF No 29. The United States replied,
ECF No. 31. For the reasons set forth below, the Court will
grant the United States' motion for summary judgment.
asserts that the Robley Rex Veterans Administration Medical
Center in Louisville, Kentucky (VAMC) treated her for renal
stones in February 2013. Compl. ¶ 6, ECF No. 1. She
underwent a procedure known as extracorporeal shock wave
lithotripsy. Id. She alleges that the lithotripsy
machine caused her to sustain burning, blistering, and
tearing to her skin as a result of an interior wiring defect
in the machine. Id. She further asserts that her
skin became necrotic and eventually required skin graft
surgery, and that she ultimately suffered nerve damage at the
graft site. Id. Eberhardt sued the United States for
negligence. Id. ¶¶ 8, 9, 11.
parallel state court action (“the state court
suit”) filed in the Jefferson County, Kentucky Circuit
Court, Eberhardt asserts claims against a variety of
defendants for negligently training, instructing,
maintaining, and operating the lithotripsy machine. State Ct.
Compl. ¶¶ 17- 20, ECF No. 23-2. She also asserts a
failure to warn claim and a loss of consortium claim in her
state court suit. Id. ¶¶ 19-20, 24. The
United States is not a party to the state court suit.
Judge Dave Whalin made several rulings in this case. In March
2016, he ordered Eberhardt to disclose her expert witnesses
by June 27, 2016. Order Mar. 10, 2016, ECF No. 20. After a
telephonic status conference on August 4, 2016, the
magistrate judge stayed the deadline for the United
States' disclosure of expert witnesses. Order Aug. 4,
2016, ECF No. 22. At that time, he also ordered the United
States to produce information regarding how the VAMC
inspected the lithotripsy machine that had caused
Eberhardt's injuries by August 15, 2016. Id. The
magistrate judge did not order the production of witnesses by
either party. Id.
month after the deadline for disclosing expert witnesses in
her federal court case passed, Eberhardt's counsel
emailed counsel for the United States. Frederick Email July
27, 2016, ECF No. 31-3. He asserted that depositions of
several VAMC employees were necessary to support
Eberhardt's federal case. Id. In response, the
counsel for the United States wrote, “As it stands, I
do not believe your [sic] have disclosed any expert opinion
criticizing the VAMC. Your deadline for expert testimony has
passed. I do not mind scheduling depositions for your state
court case, but would like the federal case to be dismissed
first.” Ekman Email July 27, 2016, ECF No. 31-3.
Eberhardt's counsel replied, “I don't think I
necessarily need an expert. I still want to take those
depositions and then we will see what I need to make my
case.” Frederick Email July 29, 2016, ECF No. 31-3.
of her state court suit, Eberhardt deposed Robert Hawkinson,
an X-ray technician who worked for Ohio Mobile Lithotripsy.
Hawkinson Dep. 4, 7, ECF No. 31-1. Hawkinson confirmed that
he had provided lithotripsy services to the VAMC on the day
Eberhardt was injured through a contract that Ohio Mobile
Lithotripsy had with the VAMC. Id. at 17-23, 48- 49.
Hawkinson testified that the lithotripsy machine that caused
Eberhardt's injury had been taken out of service shortly
after the incident. Id. at 41-42. When Hawkinson had
been trained on the lithotripsy machine, he was taught that a
fail-safe devise would automatically shut off the machine if
it exceeded a certain temperature. Id. at 105. A
service technician later told him that there had been a short
in the lithotripsy machine's temperature control and that
an “overrive that sets off the error code to the
machine . . . had somehow been breached.” Id.
also testified during his deposition about the process by
which he provides lithotripsy services to the various
hospitals that have contracts with Ohio Mobile Lithotripsy.
He stated that he sets up the lithotripsy machine at the
hospitals, cleans the machine, and checks to see if the
machine is working. Id. at 24, 50. Hawkinson
explained that the lithotripsy machine engages in a
self-check process but that he always checks to see if the
machine's vacuum pump is working. Id. at 50-51.
After the patient is anesthetized, Hawkinson adjusts the
lithotripsy machine to perform the procedure, X-rays the
patient to find the kidney stone, and engages the stone with
lithotripsy. Id. at 24-25.
also explained that the VAMC employs a biomedical engineering
technician who inspects at the lithotripsy machine for
errors. Id. at 133. According to Hawkinson, the VAMC
biomedical engineering technicians focus their inspection
mostly on the external electrical safety of the lithotripsy
machine. Id. at 134. They do not examine the inside
of the machine. Id. Drawing upon this observation,
Hawkinson opined that such a visual inspection of the
lithotripsy machine could not have discovered the problems in
the machine's internal components that led to
Eberhardt's injuries. Id.
Pagel is a biomedical engineering technician employed by the
VAMC. Pagel Aff. ¶ 1, ECF No. 31-2. In his affidavit, he
affirmed Hawkinson's explanation of the VAMC's
inspection of the lithotripsy machine. Pagel explained that
during an external inspection, he ensures that the
lithotripsy machine does not have any visible flaws.
Id. ¶ 3. He also reviews paperwork provided by
the contractor to learn when the lithotripsy machine was last
tested for proper grounding and whether it passed the test.
Id. ¶ 6. According to Pagel, the VAMC
“relies upon its contractors to ensure that the
contractor's lithotripsy devices are calibrated, function
properly, and are properly grounded.” Id.
United States now moves for summary judgment on
Eberhardt's negligence claim. Mem. Supp. Mot. Summ. J. 1,
ECF No. 23-1. The parties disagree about (1) whether further
discovery is required before the Court rules on the United
States' motion for summary judgment, (2) whether summary
judgment should be granted on Eberhardt's negligence
claim because she failed to provide an expert witness in
support, and (3) whether the United States waived contractor
sovereign immunity for actions undertaken by Ohio Mobile
Lithotripsy. Mem. Supp. Mot. Summ. J. 3-7, ECF No. 23-1;
Resp. Opp. Mot. Summ. J. 3-9, ECF No. 29; Reply 5-15, ECF No.
Whether Further Discovery is Required before the Court
Rules on ...