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Eberhardt v. United States

United States District Court, W.D. Kentucky, Louisville

February 16, 2017

MARY EBERHARDT PLAINTIFF
v.
UNITED STATES OF AMERICA DEFENDANT

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE.

         I. Introduction

         This 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.[1] The United States replied, ECF No. 31. For the reasons set forth below, the Court will grant the United States' motion for summary judgment.

         II. Background

         Eberhardt 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.

         In a 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.

         Magistrate 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.

         About a 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.

         As part 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. at 57-58.

         Hawkinson 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.

         Hawkinson 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.

         Ryan 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. ¶ 5.

         III. Discussion

         The 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. 31.

         A. Whether Further Discovery is Required before the Court Rules on ...


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