United States District Court, W.D. Pennsylvania
JACQUELYN L. SCHULTZ Administratrix of the Estate of John C. McCluskey, Deceased. Plaintiff,
UNITED STATES OF AMERICA, Defendant.
JOY FLOWERS CONTI CHIEF DISTRICT JUDGE.
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 to be exposed to Legionella
bacteria through the potable water system at the Veterans
Affairs University Drive hospital (the “VA
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.
Summary Judgment Standard of Review
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).
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).
Summary Judgment Rules and Procedure
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
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.
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.
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.
JSMF shows clearly that Plaintiff did not comply with these
authorities. Local Rule 56.C provides:
30 days of service of the motion for summary judgment, the
opposing party shall file:
A Responsive Concise Statement.
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