Scutt v. Kaiser Permanente Wailuku Medical Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JASON SCUTT, an individual, on
behalf of herself,
Plaintiff,
vs.
KAISER PERMANENTE WAILUKU
MEDICAL CLINICS,
Defendant.
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CIV. NO. 20-00187 HG-WRP
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(ECF No. 114)
Plaintiff Jason Scutt, proceeding pro se, filed a Second
Amended Complaint against Defendant Kaiser Foundation Health
Plan, Inc. (erroneously named as “Kaiser Permanente Wailuku
Medical Clinics”) for medical negligence.
The Court has continuously provided assistance to Plaintiff,
who is proceeding pro se. The Magistrate Judge has issued
numerous orders providing instructions and guidance to Plaintiff
in matters relating to subject-matter jurisdiction, depositions,
motions practice, and requests for discovery.
On numerous occasions, Plaintiff has been given leave to
amend her pleadings and has repeatedly failed to comply with
Court orders and instructions.
The Court has repeatedly made accommodations to assist
Plaintiff, including giving Plaintiff leave to participate in
electronic filing.
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Plaintiff has filed numerous, frivolous discovery motions
and has repeatedly failed to comply with both the Federal Rules
of Civil Procedure and the Local Rules for the District of
Hawaii.
Defendant now moves for Summary Judgment on the basis that
Plaintiff has failed to disclose an expert in support of her
medical negligence claim, the sole remaining claim in dispute.
Plaintiff acknowledges that she has not obtained an expert
witness to support her medical negligence claim. Plaintiff fails
to recognize that Hawaii law requires a plaintiff to produce a
medical expert to support a claim for medical negligence.
Without the necessary expert, Plaintiff’s medical negligence
claim fails as a matter of law.
Defendant Kaiser Foundation Health Plan, Inc.’s Motion for
Summary Judgment (ECF No. 114) is GRANTED.
PROCEDURAL HISTORY
On April 24, 2020, Plaintiff, proceeding pro se, filed a
Complaint. (ECF No. 1).
On the same date, Plaintiff filed an Application to Proceed
in District Court without Prepaying Fees or Costs and a Request
for Appointment of Counsel. (ECF Nos. 2 and 3).
On April 28, 2020, the Magistrate Judge issued an ORDER
DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL. (ECF No.
7).
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Also on April 28, 2020, the Magistrate Judge issued a
FINDINGS AND RECOMMENDATION THAT THE DISTRICT COURT GRANT
PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND
DISMISS THE COMPLAINT WITH LEAVE TO AMEND. (ECF No. 6).
On May 3, 2020, Plaintiff filed a FIRST AMENDED COMPLAINT.
(ECF No. 8).
On May 18, 2020, the Court issued an ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION THAT THE DISTRICT
COURT GRANT PLAINTIFF’S APPLICATION TO PROCEED WITHOUT PREPAYING
FEES AND DISMISS THE COMPLAINT WITH LEAVE TO AMEND. (ECF No. 9).
On June 4, 2020, the Magistrate Judge issued a FINDINGS AND
RECOMMENDATION THAT THE DISTRICT COURT DISMISS THE FIRST AMENDED
COMPLAINT WITH LEAVE TO AMEND. (ECF No. 10).
On June 7, 2020, Plaintiff filed a SECOND AMENDED COMPLAINT.
(ECF No. 11).
On June 24, 2020, the Court issued an ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION THAT THE DISTRICT
COURT DISMISS THE FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND.
(ECF No. 12).
On June 25, 2020, the Magistrate Judge issued a FINDINGS AND
RECOMMENDATION THAT THE DISTRICT COURT DISMISS THE SECOND AMENDED
COMPLAINT IN PART. (ECF No. 13).
On June 30, 2020, Plaintiff filed a pleading indicating that
she wished to proceed on the only remaining claim in her Second
Amended Complaint for medical negligence against the Defendant
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rather than filing a Third Amended Complaint. (ECF No. 14).
On July 30, 2020, the Court issued an ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION THAT THE DISTRICT
COURT DISMISS THE SECOND AMENDED COMPLAINT IN PART. (ECF No.
15).
On July 31, 2020, the Magistrate Judge issued an ORDER
DIRECTING SERVICE OF THE SECOND AMENDED COMPLAINT. (ECF No. 16).
On November 6, 2020, the Magistrate Judge issued an Order
instructing Plaintiff that she failed to provide the necessary
forms for service of process. (ECF No. 22).
On April 9, 2021, Defendant filed a Motion to Strike
Portions of Plaintiff’s Second Amended Complaint and for More
Definite Statement. (ECF No. 27).
On May 17, 2021, the Magistrate Judge issued an ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO STRIKE
PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT AND FOR MORE
DEFINITE STATEMENT. (ECF No. 31).
On June 22, 2021, the Magistrate Judge held a Rule 16
Scheduling Conference. (ECF No. 44).
On June 23, 2021, the Magistrate Judge issued the Rule 16
Scheduling Order. (ECF No. 45).
On July 16, 2021, Plaintiff filed a Request for Leave to
Depose More Than 10 Witnesses. (ECF No. 51).
On July 19, 2021, the Magistrate Judge issued an Order
Denying Plaintiff’s Request For Leave to Depose More Than 10
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Witnesses. (ECF No. 53).
On August 4, 2021, Plaintiff filed a Request to Participate
in Electronic Filing. (ECF No. 55).
On August 6, 2021, the Magistrate Judge issued an Order
Granting Plaintiff’s Request to Participate in Electronic Filing.
(ECF No. 56).
On August 13, 2021, Plaintiff filed a Motion to Compel
Discovery of Witnesses and Request for Leave to Amend. (ECF No.
60).
On August 18, 2021, Plaintiff filed a Response To Discovery
Objections. (ECF No. 63).
On October 4, 2021, the Magistrate Judge issued a Minute
Order denying Plaintiff’s Motion to Compel Discovery of Witness
and Request for Leave to Amend and Objections to Discovery. (ECF
No. 71).
On October 12, 2021, Plaintiff filed a Motion to Amend
Pleading to Include Related Defendant. (ECF No. 73).
On October 19, 2021, the Magistrate Judge issued an ORDER
DENYING MOTION TO AMEND PLEADING TO INCLUDE RELATED DEFENDANT.
(ECF No. 76).
On November 5, 2021, Plaintiff filed a Local Rule 37 Letter
Brief, which the Magistrate Judge found failed to conform to the
Local Rules for the District of Hawaii. (ECF Nos. 79, 80).
On November 12, 2021, Plaintiff filed an Ex Parte Motion for
Appointment of Expert Witness. (ECF No. 82).
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On November 16, 2021, the Magistrate Judge issued an ORDER
DENYING PLAINTIFF’S EX PARTE MOTION FOR APPOINTMENT OF EXPERT
WITNESS. (ECF No. 83).
On November 30, 2021, Plaintiff filed a Motion for
Appointment of 2 Neutral Expert Witnesses. (ECF No. 88).
On December 15, 2021, Plaintiff again filed a Letter Brief
pursuant to Local Rule 37, which the Magistrate Judge again ruled
failed to comply with the Local Rules. (ECF Nos. 96, 97).
On December 16, 2021, Plaintiff filed a Motion to Compel
Discovery and Amend Pleading. (ECF No. 98).
On December 21, 2021, the Magistrate Judge issued an ORDER
DENYING MOTION TO AMEND PLEADING. (ECF No. 102).
On December 30, 2021, the Magistrate Judge issued an ORDER
DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF 2 NEUTRAL EXPERT
WITNESSES. (ECF No. 106).
On January 13, 2022, Plaintiff filed a Motion for Order
Directing Service of Subpoenas and Depositions. (ECF No. 111).
On January 18, 2022, Defendant filed a MOTION FOR SUMMARY
JUDGMENT and a CONCISE STATEMENT OF FACTS IN SUPPORT. (ECF Nos.
114, 115).
On January 19, 2022, Defendant filed an Errata. (ECF No.
118).
On January 20, 2022, the Court issued a briefing schedule on
Defendant’s Motion for Summary Judgment. (ECF No. 119).
On January 27, 2022, Plaintiff filed an Opposition to
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Defendant’s Motion for Summary Judgment (ECF No. 121), which was
stricken for failing to comply with the Local Rules for the
District of Hawaii. (ECF No. 123). The Court instructed
Plaintiff as to how to file her Opposition and extended the
briefing schedule to allow Plaintiff to file her Opposition in
conformity with the rules. (Id.)
On January 28, 2022, the Magistrate Judge issued an ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION TO
COMPEL. (ECF No. 124).
On January 31, 2022, Plaintiff filed her Opposition and
Concise Statement in Opposition to Defendant’s Motion for Summary
Judgment. (ECF Nos. 127, 128).
On February 18, 2022, Defendant filed its Reply and Concise
Statement in Reply in support of its Motion for Summary Judgment.
(ECF Nos. 132, 133).
On February 24, 2022, the Court issued a Minute Order
stating that it elected to decide Defendant’s Motion for Summary
Judgment without a hearing pursuant to Local Rule 7.1(c). (ECF
No. 134).
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). To defeat
summary judgment “there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.”
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Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
The moving party has the initial burden of “identifying for
the court the portions of the materials on file that it believes
demonstrate the absence of any genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d
626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). The moving party, however, has no burden
to negate or disprove matters on which the opponent will have the
burden of proof at trial. The moving party need not produce any
evidence at all on matters for which it does not have the burden
of proof. Celotex, 477 U.S. at 325. The moving party must show,
however, that there is no genuine issue of material fact and that
he or she is entitled to judgment as a matter of law. That
burden is met by pointing out to the district court that there is
an absence of evidence to support the nonmoving party’s case.
Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979). The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed.
R. Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d
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1044, 1049 (9th Cir. 1995). “If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted.” Nidds, 113 F.3d at 916 (quoting Anderson, 477
U.S. at 249-50).
The court views the facts in the light most favorable to the
non-moving party. State Farm Fire & Cas. Co. v. Martin, 872 F.2d
319, 320 (9th Cir. 1989). Opposition evidence may consist of
declarations, admissions, evidence obtained through discovery,
and matters judicially noticed. Fed. R. Civ. P. 56(c); Celotex,
477 U.S. at 324. The opposing party cannot, however, stand on
its pleadings or simply assert that it will be able to discredit
the movant’s evidence at trial. Fed. R. Civ. P. 56(e); T.W.
Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on
mere allegations or denials. Fed. R. Civ. P. 56(e); Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
1994). “When the nonmoving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.” Hansen v. U.S., 7 F.3d 137, 138 (9th
Cir. 1993); see also Nat’l Steel Corp. v. Golden Eagle Ins. Co.,
121 F.3d 496, 502 (9th Cir. 1997).
ANALYSIS
I. Plaintiff’s Sole Remaining Cause Of Action Is For Medical
Negligence Pursuant To Hawaii Law
On June 6, 2020, Plaintiff filed her Second Amended
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Complaint, alleging that Defendant is liable for medical
negligence for treatment she received at Kaiser Permanente
Wailuku Medical Clinics in 2018, 2019, and 2020. (Second Amended
Complaint at pp. 3-4, ECF No. 11).
On June 25, 2020, the Magistrate Judge issued a Findings and
Recommendation that the District Court Dismiss The Second Amended
Complaint In Part. (ECF No. 13). Specifically, the Magistrate
Judge found that Plaintiff had sufficiently alleged diversity
jurisdiction against Defendant Kaiser Foundation Health Plan,
Inc. and that Plaintiff had sufficiently stated a claim against
Defendant for medical negligence. (Id. at pp. 5-6).
The Magistrate Judge recommended that the Court dismiss the
remaining claims asserted in the Second Amended Complaint because
Plaintiff failed to plausibly allege sufficient facts to state
any additional claims against Defendant. (Id. at pp. 6-9).
The Findings and Recommendation provided Plaintiff with two
options:
First, Plaintiff was provided the opportunity to proceed
against Defendant solely on her medical negligence cause of
action stated in the Second Amended Complaint; or,
Second, Plaintiff, in the alternative, could decline to
proceed on the sole count in her Second Amended Complaint and
could choose to file a Third Amended Complaint and attempt to
cure the deficiencies identified in the Findings and
Recommendation. (Findings and Recommendation at pp. 9-11).
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On June 30, 2020, Plaintiff filed a NOTIFICATION OF
ACCEPTANCES OF COURT’S ALTERNATIVE OPTION. (ECF No. 14). In the
Notification, Plaintiff elected to proceed against Defendant on
the sole count for medical negligence stated in the Second
Amended Complaint. (Id.) Plaintiff stated that “she will accept
the Court’s alternative to submitting a Third Amended Complaint
and will serve the documents for medical malpractice/negligence
only.” (Id.)
On July 30, 2020, the District Court adopted the Magistrate
Judge’s June 25, 2020 Findings and Recommendation. (ECF No. 15).
On July 31, 2020, the Magistrate Judge directed service of
the Second Amended Complaint and the Parties proceeded to engage
in discovery as to Plaintiff’s sole claim for medical negligence.
(ECF No. 16).
II. The Deadline For Plaintiff’s Expert Disclosures Was December
20, 2021 And No Expert Was Disclosed By Plaintiff
On June 22, 2021, the Magistrate Judge held a scheduling
conference pursuant to Federal Rule of Civil Procedure 16. (ECF
No. 44). The following day, the Magistrate Judge issued the Rule
16 Scheduling Order. (ECF No. 45). The Scheduling Order set
December 20, 2021 as the deadline for Plaintiff to comply with
Federal Rule of Civil Procedure 26(a)(2) and Federal Rules of
Evidence 702, 703, and 705 regarding the disclosure of expert
witnesses. (Id. at p. 2).
Plaintiff did not disclose an expert report.
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Plaintiff concedes that she agreed to proceed against
Defendant solely on her claim for medical negligence. (Pla.’s
Concise Statement of Facts (“CSF”) at ¶¶ 1-2, ECF No. 128).
Plaintiff acknowledges that she has not retained an expert
and did not disclose an expert report by December 20, 2021.
Defendant instead states that she made a good faith effort to
obtain an expert but was unable to either retain one or have one
appointed for her. (Id. at ¶¶ 10, 13).
The Court denied Plaintiff’s request for the Court to
appoint a medical expert on her behalf. (ECF Nos. 83, 106).
No medical expert has been disclosed by Plaintiff in this
case to support her medical negligence cause of action.
III. Defendant Is Entitled To Summary Judgment On Plaintiff’s
Sole Claim For Medical Negligence As Plaintiff Cannot Meet
Her Burden Of Proof At Trial
Plaintiff’s sole cause of action in her Second Amended
Complaint is for medical negligence pursuant to Hawaii law.
(Second Amended Complaint, ECF No. 11); see Molokai New Energy
Partners, LLC v. Maui Electric Co., Ltd., Civ. No. 20-00134 JMS-
KJM, 2021 WL 3197031, *5 n.5 (explaining that pursuant to the
Erie doctrine, substantive Hawaii law applies in diversity cases
in the District of Hawaii).
As the Court has previously explained, “[u]nder Hawaii law,
a plaintiff is only required to provide expert testimony to
establish her prima facie case in limited circumstances.” Barber
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v. Ohana Military Communities, LLC, Civ. No. 14-00217 HG-KSC,
2015 WL 4171984, *6 (D. Haw. 2015).
“Expert testimony is not required in an ordinary negligence
case. Hawaii law provides that in an ordinary negligence case,
the jury can determine whether there has been a breach of a
defendant’s duty to the plaintiff on the basis of their everyday
experience, observations, and judgment.” Id. at *7 (citing
Exotics Hawaii-Kona, Inc. v. E.I. DuPont De Nemours & Co., 172
P.3d 1021, 1043 (Haw. 2007) (citing Bernard v. Char, 903 P.2d
676, 682 (Haw. App. 1995))).
An ordinary negligence case does not require expert opinion
evidence to delineate acceptable from unacceptable standards of
care for the jury. Exotics Hawaii-Kona, Inc., 172 P.3d at 1043-
44.
Here, Plaintiff’s negligence cause of action is not for
ordinary negligence, but it is for medical negligence. (See
Second Amended Complaint, ECF No. 11; Pla.’s Notification Of
Acceptance, ECF No. 14).
In the Second Amended Complaint, Plaintiff alleges that
Defendant’s physicians and staff “neglected to treat [her] for
serious injuries,” conducted “unnecessary medical procedures,”
and caused her further injuries because she did not receive
appropriate standards of care. (Second Amended Complaint at pp.
4-5, ECF No. 11). Plaintiff also alleges that Defendant “is
responsible for the physicians and staff who acted negligently in
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rendering care,” including “prescribing dangerous drug treatment
for shingles which were later rescinded.” (Id. at p. 5).
Plaintiff alleges that she “required ongoing therapy for mental,
physical and emotional trauma caused by these incidents.” (Id.)
Hawaii courts treat ordinary negligence cases differently
from medical negligence cases and apply different standards. See
Casper v. Ayasanonda, 334 P.3d 777, *3-6 (Haw. App. 2014)
(Unpublished). Hawaii courts require a plaintiff to present
expert testimony in medical negligence cases. Barbee v. Queen’s
Medical Center, 194 P.3d 1098, 1120 (Haw. App. 2008); see Domingo
ex rel. Domingo v. T.K., M.D., 289 F.3d 600, 607-08 (9th Cir.
2002).
Medical expert testimony is required in medical negligence
cases because an expert is needed to explain why the defendant’s
medical treatment deviated from any of the methods of treatment
approved by the standards of the medical profession. Bernard,
903 P.2d at 682.
Plaintiff’s failure to provide an expert witness is fatal to
her sole claim for medical negligence pursuant to Hawaii law.
See Raymond v. Cnty. of Kauai, Civ. No. 15-00212 ACK-RLP, 2017 WL
2815059, *16 (D. Haw. June 26, 2017) (granting summary judgment
for Wilcox Memorial Hospital on plaintiff’s medical negligence
claim due to plaintiff’s failure to disclose an expert to support
his claim).
The nature of Plaintiff’s medical negligence cause of action
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is not one where the negligence would be “common knowledge” or
obvious to lay jurors such as a sponge left in the cavity of a
patient during surgery. See Medina v. Figuered, 647 P.2d 292,
294 (Haw. App. 1982). Rather, the type of medical negligence
alleged by the Plaintiff requires testimony on the appropriate
medical standards of care and the alleged negligent treatment she
suffered without which Plaintiff cannot prevail at trial.
Bernard, 903 P.2d at 682 (Haw. App. 1995); Craft v. Peebles, 893
P.2d 138, 149 (Haw. 1995) (explaining that expert medical
testimony is generally required because a jury lacks the
requisite special knowledge, technical training, and background
to be able to determine the applicable standard of care without
the assistance of an expert).
There are no other remaining viable claims in Plaintiff’s
Second Amended Complaint. (See Order Granting In Part And
Denying In Part Defendant’s Motion To Strike Portions Of
Plaintiff’s Second Amended Complaint And For More Definite
Statement at p. 6, ECF No. 31).
Defendant Kaiser Foundation Health Plan, Inc.’s Motion for
Summary Judgment (ECF No. 114) is GRANTED.
//
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//
//
//
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CONCLUSION
Defendant Kaiser Foundation Health Plan, Inc.’s Motion for
Summary Judgment (ECF No. 114) is GRANTED.
The Clerk of Court is DIRECTED to enter Judgment in favor of
Defendant and to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: March 21, 2022, Honolulu, Hawaii.
Jason Scutt v. Kaiser Permanente Wailuku Medical Clinics, Civ.
No. 20-00187 HG-WRP; ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF No. 114)
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