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Schultz v. United States

United States District Court, W.D. Pennsylvania

February 16, 2017

JACQUELYN L. SCHULTZ Administratrix of the Estate of John C. McCluskey, Deceased. Plaintiff,



         This action is brought pursuant to the Federal Tort Claims Act (the “FTCA”), 28 U.S.C. §§ 2671 and 1346(b)(1). The complaint alleges that the United States (the “government” or “United States”) was negligent in allowing John McCluskey[1] to be exposed to Legionella bacteria through the potable water system at the Veterans Affairs University Drive hospital (the “VA hospital”).

         Fact discovery closed on January 21, 2016, and expert discovery closed on August 25, 2016. (ECF Nos. 23, 44). On September 23, 2016, the court issued a case management order with respect to summary judgment filings. (ECF No. 48). Now pending is the government's motion for summary judgment (ECF No. 52), with a brief, concise statement of material facts (“CSMF”) and numerous exhibits filed in support (ECF Nos. 53, 54). Plaintiff filed a response and brief in opposition to the motion, responded to the government's CSMF, and submitted additional facts (ECF Nos. 55, 56, 57). Pursuant to court order, the parties submitted a Joint Statement of Material Facts (“JSMF”). (ECF No. 62). The government filed a reply brief (ECF No. 58), and the motion is ripe for disposition. Plaintiff's filings reveal several fundamental procedural misconceptions which must be addressed as a threshold matter.

         I. Summary Judgment Standard of Review

         Federal Rule of Civil Procedure 56 provides that summary judgment shall be granted “if 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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         The moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. Id. at 323; Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). Once that burden has been met, the nonmoving party must identify “specific facts showing that there is a genuine issue for trial, ” or the factual record will be taken as presented by the moving party, and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is “genuine” only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). In assessing the record, a court must view all facts in the light most favorable to the nonmoving party, and must draw all reasonable inferences and resolve all doubts in that party's favor. Hugh v. Butler County Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005).

         II. Summary Judgment Rules and Procedure

         Plaintiff's brief cites Pennsylvania Rule of Civil Procedure 1035 for the proposition that “the non-moving party is not required to respond to the summary judgment motion or to file counter-affidavits.” (ECF No. 57 at 8, citing several Pennsylvania court decisions). The reliance by Plaintiff's counsel on the Pennsylvania Rules of Civil Procedure is misplaced. The Federal Rules of Civil Procedure govern this case - not the Pennsylvania Rules. See Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in the United States district courts. . . .”). The claims arise under a federal statute, the FTCA; the court's subject-matter jurisdiction is based on a “federal question, ” not diversity of citizenship. Plaintiff filed this case in a federal court and the federal government is the sole defendant.

         This court's orders in this case also made it abundantly clear that the parties were required to comply with the federal rules and the court's local rules governing summary judgment practice. See ECF No. 11 (parties must follow “the rules set forth in the Federal Rules of Civil Procedure and the court's local rules.”); ECF No. 48 (“The parties shall comply with Local Rule 56.1 with respect to making a motion for summary judgment and the filing of a response to the motion.”). To repeat, the standards in the Federal Rules of Civil Procedure, the local rules of this court and the orders entered in this case govern the pending summary judgment motion.

         Plaintiff's counsel compounds his error by arguing that the government improperly relied upon affidavits and alleged self-serving statements of its own agents to support its summary judgment motion. (ECF No. 57 at 7-9). Counsel cites Borough of Nanty-Glo v. American Surety Company of New York, 163 A. 523 (Pa. 1932), for the proposition that “[i]t is irrelevant how indisputable and clear the defendant paints this evidence to be, it is nevertheless the province of the jury to decide.” (ECF No. 57 at 7-9). The Nanty-Glo rule has no relevance in this case. As explained in Hughes v. Badaracco-Apolito, No. 3:14-CV-1839, 2016 WL 775187 (M.D. Pa. Feb. 29, 2016): “Whatever effect the Nanty-Glo rule may have on state practice, reliance on this rule is misplaced in the instant federal case, as courts in this circuit have consistently found that this state-law procedural rule has no application to motions for summary judgment in federal court.” Id. at *10-11 (numerous citations omitted). In federal court, “a motion for summary judgment can be granted based on uncontradicted self-serving testimony of a moving party's witness.” Id. (citations omitted). Plaintiff's protestations regarding usurpation of the jury's role are particularly inappropriate in this case because plaintiff would not be entitled to a jury trial, in any event. For claims arising under the FTCA, 28 U.S.C. § 1346(b)(1), “cases shall be tried by the court without a jury.” 28 U.S.C. § 2402.

         Plaintiff argues that Pennsylvania law governs the expert evidence submitted by the United States in this case. (ECF No. 57 at 11-12). Plaintiff cites Kozak v. Struth, 531 A.2d 420, 423 (Pa. 1987), and Commonwealth v. Rounds, 542 A.2d 997, 999 (Pa. 1988), for the proposition that Pennsylvania courts have rejected the federal approach and require an expert's opinions to be presented to the jury at trial. (ECF No. 57 at 11-12). Plaintiff is incorrect. Federal Rule of Evidence 702 -- not Pennsylvania law -- governs the admissibility of expert testimony in this FTCA case. See Ellison v. United States, 753 F.Supp.2d 468, 475 (E.D. Pa. 2010) (applying F.R.E. 702 in FTCA case). As explained above, federal law, the Federal Rules of Evidence, the Federal Rules of Civil Procedure, the local rules of this court and the orders entered in this case govern whether summary judgment is appropriate based upon an evidentiary record containing expert evidence.

         The JSMF shows clearly that Plaintiff did not comply with these authorities. Local Rule 56.C provides:

         C. Opposition Requirements.

         Within 30 days of service of the motion for summary judgment, the opposing party shall file:

         1. A Responsive Concise Statement.

         A separately filed concise statement, which responds to each numbered paragraph in the moving party's Concise Statement of Material Facts by:

a. admitting or denying whether each fact contained in the moving party's Concise Statement of Material Facts is ...

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