United States District Court, W.D. Kentucky, Louisville Division
Jean and Everett McKinney, pro se
MEMORANDUM OPINION AND ORDER
H. McKinley, Jr., Chief Judge United States District Court
matter is before the Court on Defendant's Motion for
Summary Judgment [DN 44]. Fully briefed, this matter is ripe
for decision. For the following reasons, the Court holds that
motion is GRANTED.
October 21, 2014, Plaintiff Nancy Jean McKinney underwent
bladder surgery performed at Ireland Army Community Hospital
(“IACH”). During preparation for the surgery,
Mrs. McKinney shared with the medical team at IACH that she
experienced complications when recovering from prior surgery.
Back in 2005, Mrs. McKinney went into cardiac arrest while
recovering from a partial hysterectomy and had to be
transferred to the intensive care unit (“ICU”) at
Hardin Memorial Hospital. For this reason, another surgery
Mrs. McKinney underwent in 2005 was performed at Hardin
Memorial instead of IACH because she was considered to be a
Mrs. McKinney's concerns, her bladder surgery was
performed at IACH. During her recovery, Mrs. McKinney went
into a “Code Blue” situation in which she stopped
breathing. Again, she was transferred to the ICU at Hardin
Memorial. This time, as a result of prolonged oxygen
deprivation, Mrs. McKinney suffered neurocognitive impairment
caused by hypoxia.
Nancy McKinney originally filed this action, pro se, on
October 03, 2016 against IACH and the United States. Later,
on October 13, 2017, Mrs. McKinney filed an Amended Complaint
through her retained counsel. The Amended Complaint did not
include IACH as a defendant but added Mrs. McKinney's
husband, Everett McKinney, as an additional plaintiff. The
Amended Complaint alleges a claim of negligence against the
United States under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b), on behalf of Mrs. McKinney and a claim of
loss of consortium on behalf of Mr. McKinney. Since then,
Plaintiffs' attorney has withdrawn as counsel and
Plaintiffs have continued the litigation representing
themselves pro se.
Plaintiffs filed their expert witness disclosures, the list
of anticipated experts included Nurse Jacklyn Travis. Nurse
Travis intended to testify that IACH “departed from the
standard of care by failing to perform safe standards of care
on Oct 21, 2014.” (Report of Jacklyn Travis [DN 38-3].)
When the United States received Nurse Travis' report, it
contacted Plaintiffs by email to express concern that
“Ms. Travis's report is conclusory and vague”
and asking that Plaintiffs obtain a revised report from Nurse
Travis to address this issue. (Ex. A to Def.'s Mot. for
Summ. J. [DN 44-1].) Plaintiffs did not obtain a revised
report as requested but instead decided to remove Nurse
Travis from their expert witness list.
Defendant United States has brought this Motion for Summary
Judgment. According to the United States, without the
testimony of Nurse Travis, Plaintiffs' claims must fail
because there is no expert witness to support a negligence
claim. Plaintiffs submitted a response arguing that they can
prove their case through the doctrine of res ipsa loquitur.
After the United States replied, Plaintiffs submitted an
additional response brief. As stated in Local Rule 7.1,
“A motion is submitted to the Court for decision . . .
after the reply memorandum is filed.” Therefore, the
Plaintiffs' second Response [DN 48] was improperly filed
and should be struck from the record. Defendant's Motion
to Strike Improper Response Brief [DN 51] is GRANTED and the
Court will only consider Plaintiffs' proper Response [DN
45] when ruling on this motion.
Standard of Review Before the Court may grant a motion for
summary judgment, it must find that there is no genuine
dispute as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The moving party bears the initial burden of specifying the
basis for its motion and identifying that portion of the
record that demonstrates the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Once the moving party satisfies this burden,
the non-moving party thereafter must produce specific facts
demonstrating a genuine issue of fact for trial. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
the Court must review the evidence in the light most
favorable to the non-moving party, the non-moving party must
do more than merely show that there is some
“metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). Instead, the
Federal Rules of Civil Procedure require the non-moving party
to present specific facts showing that a genuine factual
issue exists 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). “The
mere existence of a scintilla of evidence in support of the
[non-moving party's] position will be insufficient; there
must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson, 477 U.S. at 252.
Federal Tort Claims Act (“FTCA”) allows a private
citizen to bring a negligence claim against the United States
for the negligent acts of its officer. Under the FTCA,
negligence claims against the United States will be
successful in “circumstances where the United States,
if a private person, would be liable to the claimant in
accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1).
Because Plaintiffs claim that Ms. McKinney was negligently
injured at the IACH in Fort Knox, Kentucky, the negligence
laws of Kentucky will apply.
Kentucky, a negligence claims requires proof that (1) the
defendant owed the plaintiff a duty of care; (2) the
defendant breached the standard by which his or her duty is
measured; and (3) consequent injury. Pathways, Inc. v.
Hammons,113 S.W.3d 85, 88 (Ky. 2003). “[T]he
general rule is that expert testimony is required in a
malpractice case to show that the defendant failed to conform
to the required standard, which is, such reasonable and
ordinary knowledge, skill and diligence as physicians in
similar neighborhoods and surroundings ordinarily use under
like circumstances.” Jarboe v. Harting, Ky.,397 S.W.2d 775, 778 (Ky. 1965). However, there are two types
of exceptional circumstances when the doctrine of res ispa
loquitur may substitute the need for expert testimony. The
first is a situation in which “any layman is competent
to pass judgment and conclude from common experience that
such things do not happen if there has been proper skill and
care.” Perkins v. Hausladen,828 S.W.2d 652,
655 (Ky. 1992) (citing Paintsville Hosp. Co. v.
Rose,683 S.W.2d 255, 256 (Ky. 1992)). The second
exception is “when medical experts may provide a