Dutton v. United States
6:13-cv-00058
| S.D. Ga. | Nov 25, 2014Background
- Bartow C. Dutton was admitted to the VAMC in May 2010 with abdominal pain; imaging suggested possible mesenteric ischemia. He later developed an acutely ischemic right lower extremity and underwent amputation on June 6, 2010; he subsequently died and his wife/administrator brought an FTCA medical-malpractice suit against the United States.
- Plaintiff alleges negligence by VAMC physicians and staff for delay/failure to treat the emergent right-leg ischemia on June 2–3, 2010, causing amputation.
- The Government moved to exclude Plaintiff’s proffered expert (Dr. Michael A. Bettmann, an interventional radiologist) under O.C.G.A. § 24-7-702(c) and for summary judgment. Plaintiff sought leave to add a different expert after defendants challenged Bettmann.
- Central dispute: whether Georgia’s expert-competency rule (O.C.G.A. § 24-7-702(c)) applies in this FTCA case in federal court and, if so, whether Bettmann is competent to testify about the standard of care for the VAMC physicians (primarily vascular surgery decisions).
- The court found (applying Eleventh Circuit precedent) that Georgia’s competency rule governs admissibility of medical-malpractice experts in FTCA suits where state law supplies the rule of decision; it held Bettmann incompetent under § 24-7-702(c) to testify about the VAMC physicians’ surgical/clinical decisions and denied Plaintiff’s belated request to add another expert as untimely. The Government’s summary judgment motion was granted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Does O.C.G.A. § 24-7-702(c) (Georgia expert-competency) apply in this FTCA case in federal court? | Nathan[s] v. Diamond says § 24-7-702 is procedural; Plaintiff argued Federal Rule 702 governs expert admissibility. | Government argued McDowell controls: where state law supplies substantive rule, state competency rule applies because it is intertwined with substantive law. | Court: § 24-7-702(c) applies (followed McDowell/Legg). Federal evidence rules do not displace state competency rule in this context. |
| 2) Is Dr. Bettmann (interventional radiologist, Professor Emeritus) competent under § 24-7-702(c) to testify as to the VAMC physicians’ conduct (vascular surgery/clinical decisions)? | Plaintiff: Bettmann’s interventional radiology experience and consultations with vascular surgeons qualify him to opine; specialty overlap is allowed. | Government: Bettmann lacks recent active practice/teaching in the specific area, is not a vascular surgeon, lacks requisite hands-on surgical experience and five-year active-practice showing; he cannot judge clinical/surgical decisions of vascular surgeons. | Court: Bettmann is not competent under § 24-7-702(c) to testify about the VAMC physicians’ surgical/clinical decisions; his opinion was too generalized and outside his active recent practice. |
| 3) Did Plaintiff show good cause to amend the scheduling order and add a new expert after defendants moved to exclude Bettmann? | Plaintiff moved to allow an additional expert, arguing defendants raised novel application questions warranting more time. | Government: Plaintiff knew deadline, failed to seek timely supplementation or extension; no persuasive good-cause shown. | Court: Denied leave to add expert; Plaintiff failed to show good cause under Rule 16 and scheduling order. |
| 4) With no competent expert under Georgia law, can Plaintiff oppose summary judgment on malpractice? | Plaintiff contended factual disputes remain about VAMC delay that preclude summary judgment. | Government: Under Georgia law, malpractice requires expert proof of breach and causation; without competent expert, no genuine issue of material fact. | Court: Granted Government summary judgment; absence of competent expert is fatal to Plaintiff’s malpractice claim. |
Key Cases Cited
- McDowell v. Brown, 392 F.3d 1283 (11th Cir. 2004) (federal courts apply state expert-competency rule when state law supplies rule of decision; Rule 601 analysis)
- Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002) (state competency rules can be intertwined with substantive law; supports applying state rules)
- Nathans v. Diamond, 654 S.E.2d 121 (Ga. 2007) (Georgia Supreme Court characterized O.C.G.A. § 24-7-702 as procedural for retroactivity analysis)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (standard for evaluating summary judgment evidence inferences)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; reasonable jury/sufficient evidence)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (movant’s initial burden on summary judgment)
- Reese v. Herbert, 527 F.3d 1253 (11th Cir. 2008) (summary judgment standards applied)
- Porter v. Quill, 681 S.E.2d 230 (Ga. Ct. App. 2009) (Georgia requires expert testimony to prove breach/causation in medical malpractice)
- Hankla v. Postell, 749 S.E.2d 726 (Ga. 2013) (expert must be in same profession as defendant or qualify for exception via active teaching/supervising of the relevant non-physician)