over a material fact must be "genuine," i.e., the evidence must be such "that a reasonable jury could return a verdict in favor of the non-moving party." Id.
Rule 56(e) does not allow the non-moving party to rely merely upon bare assertions, conclusory allegations or suspicions. Fireman's Ins. Co. of Newark v. Du Fresne, 676 F.2d 965, 969 (3d Cir. 1982). In addition, the evidence of the non-moving party is to be considered as true, and justifiable inferences arising from the evidence are to be drawn in his or her favor. Anderson, 477 U.S. at 255. Yet if the evidence of the non-moving party is "merely colorable," or is "not significantly probative," summary judgment may be granted. Id. at 249-50. The non-moving party must offer specific facts contradicting the facts averred by the movant which indicate that there is a genuine issue for trial. Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990).
For plaintiffs to recover under Section 1983, they must prove (1) that the conduct complained of was committed by a person acting under color of state law, and (2) that the conduct deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990) (citing Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981)); Campbell v. City of Philadelphia, Department of Human Services, 1990 WL 102945 at *2 (E.D. Pa. July 18, 1990). There is no dispute among the parties here that defendants were state actors during the relevant period. Defendants argue instead that their conduct did not deprive Schreffler of his rights secured by the Fourteenth Amendment.
Plaintiffs assert, as administrators of Schreffler's estate, that defendants' conduct violated the child's fundamental liberty interest in life. In analyzing this claim, the elements that plaintiffs must satisfy can be divided, just as with an ordinary tort claim, into two separate parts. First, they must show that defendants owed Schreffler a duty of care. Second, plaintiffs must be able to demonstrate that defendants' actions or inactions failed to fulfill their duty of care and that this failure led to the deprivation of the child's constitutional rights. Shaw by Strain, 920 F.2d at 1144; Holman v. School District of Philadelphia, 1993 WL 197445 at *2 (E.D. Pa. May 28, 1993) (harm must be caused by constitutional violation and defendants must be responsible for it).
Defendants maintain, inter alia, that summary judgment should be granted because plaintiffs have failed to present evidence enabling a jury to find that defendants' acts or omissions proximately caused Schreffler's loss of life.
Defendants argue that plaintiffs have failed to establish a causal connection between Schreffler's death and: 1) Dr. Lehmicke's failure to take follow-up measures such as renal tubular acidosis, a repeat EEG, gastroesophageal reflux, or continued observation of the child's neurological condition, or 2) Dr. Lehmicke's failure to inform plaintiffs of pertinent medical information.
In support of their motion for summary judgment, defendants offer the opinion of Dr. Glenn B. Mannheim, who reviewed various medical records relating to Schreffler. In response, plaintiffs proffer two reports by the child's neurologist, Dr. Brill, and the deposition testimony of Dr. Lehmicke. Examining the record in the light most favorable to plaintiffs, as I must do, I conclude that the evidence does not demonstrate that a reasonable jury could find that defendants' actions caused Schreffler's death.
Dr. Mannheim, an expert commissioned by plaintiffs' counsel, admitted in his report of June 14, 1993, that he is uncertain about the cause of Schreffler's death. In response to plaintiffs' question as to whether "'the child's neurological problems were a possible contributing factor in his death and/or that the neurological problems could have increased his risk of harm/illness/death?'", Dr. Mannheim candidly replied,
The answer is possibly. Children with neurological abnormalities are more prone to sudden deaths . . . . Given that no abnormalities were detectable on the postmortem, and given that there was no apparent follow-up on the question of renal tubular acidosis, repeat EEG, or gastroesophageal reflux, it would only be conjecture to suppose that any of these mechanisms were responsible for his death, or, that should they have been detected his death could have been prevented.
Motion, exhibit B at 4 (emphasis added).
In rebuttal, plaintiffs present Dr. Brill's "Memo," dated March 11, 1992, from a conference concerning the child. After describing the circumstances surrounding Schreffler's death, Dr. Brill concluded:
I think the chance of picking up seizure activity on another EEG would have been very slim . . . . In view of the fact that I believe the EEG would have been normal I do not think that the fact that not having done one increased this child's risk of unexplained death . . . . Even if it couldn't be determined that not doing the EEG increased the risk, I do not think, however, with reasonable or medical certainty, that not having done this study led to or contributed to his death.