Hooper v. Yampa Valley Medical Center, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
DENNIS RUSSELL HOOPER,

Plaintiff - Appellant,

v.

YAMPA VALLEY MEDICAL CENTER;
LAILA WILBER POWERS, M.D.,

Defendants - Appellees.

No. 19-1220
(D.C. No. 1:18-CV-01863-NYW)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT
*

_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, and BACHARACH, Circuit Judges.
_________________________________
Dennis Hooper, proceeding pro se, appeals from the district court’s grant of
summary judgment to the defendants in his medical malpractice action. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
Mr. Hooper is a citizen and resident of Oregon who is paraplegic. While
visiting Steamboat Springs, Colorado, on February 8, 2016, he presented to the

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit

January 3, 2020

Christopher M. Wolpert
Clerk of Court
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emergency room at Yampa Valley Medical Center (YVMC) complaining that his
upper right leg was severely swollen. Laila Powers, M.D., was the attending
physician. She ordered blood tests and an ultrasound, but no X-rays. She diagnosed
and prescribed medication for a Deep Venous Thrombosis (DVT).
The swelling had not subsided by the time Mr. Hooper returned to Oregon on
February 13. When he sought treatment at a Portland hospital, X-rays revealed his
right femur was fractured just above the knee. He underwent surgery on February 15
to insert a stabilization rod and hardware, and later underwent two other surgeries to
remove some of that hardware. A February 17 ultrasound did not show a DVT.
Relying on diversity jurisdiction under 28 U.S.C. § 1332, Mr. Hooper brought
suit against Dr. Powers and YVMC in federal district court in Colorado. He claimed
that Dr. Powers was negligent in diagnosing and treating him for a DVT and in
failing to diagnose and treat his fractured femur. As relevant to this appeal, the
district court denied Mr. Hooper’s motion, pursuant to Fed. R. Evid. 706, to appoint
an expert witness to assist the court. Further, applying Colorado law, the district
court granted summary judgment to the defendants because Mr. Hooper had failed to
present expert testimony to establish the applicable standard of care.
DISCUSSION
Summary judgment 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). We review the grant of summary judgment
de novo. See Auto-Owners Ins. Co. v. Csaszar, 893 F.3d 729, 733 (10th Cir. 2018).
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In contrast, we review the district court’s denial of the Rule 706 motion for abuse of
discretion. See Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). “A district
court abuses its discretion when it renders an arbitrary, capricious, whimsical, or
manifestly unreasonable judgement.” Coletti v. Cudd Pressure Control, 165 F.3d
767, 777 (10th Cir. 1999) (internal quotation marks omitted).
In this diversity action, the applicable law is that of the forum state, Colorado.
See Auto-Owners Ins. Co., 893 F.3d at 734. “In a medical malpractice case, the
burden is on the plaintiff to establish a prima facie case of negligence.” Melville v.
Southward, 791 P.2d 383, 387 (Colo. 1990). To do that, “the plaintiff must establish
that the defendant failed to conform to the standard of care ordinarily possessed and
exercised by members of the same school of medicine practiced by the defendant.”
Id. “Unless the subject matter of a medical malpractice action lies within the ambit
of common knowledge or experience of ordinary persons, the plaintiff must establish
the controlling standard of care, as well as the defendant’s failure to adhere to that
standard, by expert opinion testimony.” Id. “[M]atters relating to medical diagnosis
and treatment ordinarily involve a level of technical knowledge and skill beyond the
realm of lay knowledge and experience. Without expert opinion testimony in such
cases, the trier of fact would be left with no standard at all against which to evaluate
the defendant’s conduct.” Id.
Mr. Hooper asserted two instances of medical malpractice: (1) the diagnosis
of and treatment for DVT, and (2) the failure to diagnose and treat the fractured
femur. This appeal focuses on the latter instance, as Mr. Hooper concedes in his
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reply brief “that the issue of a non-existent DVT may be too complex for the average
juror to process.” Aplt. Reply Br. at 3. Regarding the fractured femur, Mr. Hooper
argues that the failure to diagnose a broken bone is a simple matter that does not
require expert testimony. He also argues that the defendants made the issue a factual
one—whether his femur was broken on February 8, or later. In that regard, his
Rule 706 request was intended to establish that no expert could determine whether
the femur was broken on February 8, and therefore no expert testimony was required
to establish the date of the injury.
But Mr. Hooper is mistaken in believing that the defendants made his fractured
femur a factual issue rather than a legal issue. Whatever they may have suggested
during discovery, for purposes of summary judgment the defendants argued that
under Colorado law, Mr. Hooper was required to present expert testimony to
establish the applicable standard of care. That is a legal argument.
The district court agreed with the defendants that Mr. Hooper required expert
testimony to establish the applicable standard of care. So do we. As Mr. Hooper
concedes, issues surrounding the existence or non-existence of a DVT are not within
the common knowledge of ordinary persons, instead involving technical knowledge
and skill. And although the failure to diagnose the fractured femur may be a closer
question, we conclude that this issue also requires technical knowledge and skill to
determine whether Dr. Powers’ actions or inactions fell below the standard of care.
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See McGraw v. Kerr, 128 P. 870, 874 (Colo. App. 1912) (stating, in case involving
broken arm, that expert testimony was required).
1

Because Mr. Hooper failed to offer expert opinion testimony to establish the
applicable standard of care, “the trier of fact would be left with no standard at all
against which to evaluate the defendant’s conduct.” Melville, 791 P.2d at 387. And
that would be true even if the district court had granted the Rule 706 request for
appointment of an expert—Mr. Hooper wanted an expert to inform the court that it
was impossible to determine when the fracture occurred, not to inform a jury
regarding the applicable standard of care. Accordingly, the district court did not
abuse its discretion in denying the Rule 706 motion and did not err in granting the
defendants’ motion for summary judgment.
CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court

Timothy M. Tymkovich
Chief Judge

1
This is especially true given that Mr. Hooper is paraplegic, which conceivably could
affect the standard of care. Mr. Hooper implicitly asserted as much by stating, in
response to YVMC’s request for a more definite statement, that YVMC “allowed a
physician not familiar with spinal cord injuries or associated paraplegia, to examine
and render medical treatment to a patient with known paraplegia.” R. at 37.
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