Opinion
Civil Action No. 1:99CV239-P-A.
September 14, 2000.
MEMORANDUM OPINION
This cause is before the Court on motions to dismiss filed by the defendants [6-1] and [11-1]. The Court, having reviewed the motions and supporting materials, the authorities cited, and being otherwise fully advised in the premises, finds as follows, to-wit:
FACTUAL BACKGROUND
Theodore Jutman filed his pro se Complaint in this cause, seeking recovery from the United States and American Medical Systems for continuing problems he experienced following the surgical implantation of an artificial sphincter designed to alleviate problems with urinary incontinence. The surgery was performed by physicians employed with the Sonny Montgomery VA Medical Center in Meridian, Mississippi and the artificial prosthesis was designed and manufactured by American Medical Systems.
The United States filed its Motion to Dismiss Or, In the Alternative, For Summary Judgment on December 20, 1999. In June 2000, the defendant American Medical Systems filed its Motion for Summary Judgment. After adequate opportunity for plaintiff to respond and following a review of the record and the applicable case law, the Court is ready to rule.
STANDARD OF REVIEW
The Federal Rules of Civil Procedure, Rule 56(c), authorizes summary judgment where "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L.Ed.2d 265, 106 S.Ct. 2548 (1986). The existence of a material question of fact is itself a question of law that the district court is bound to consider before granting summary judgment. John v. State of La. (Bd. Of T. for State C. U., 757 F.2d 698, 712 (5th Cir. 1985).
A judge's function at the summary judgment stage is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986).
Although Rule 56 is peculiarly adapted to the disposition of legal questions, it is not limited to that role. Professional Managers, Inc. v. Fawer, Brian, Hardy Zatzkis, 799 F.2d 218, 222 (5th Cir. 1986). "The mere existence of a disputed factual issue, therefore, does not foreclose summary judgment. The dispute must be genuine, and the facts must be material." Id. "With regard to `materiality', only those disputes over facts that might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Phillips Oil Company, v. OKC Corporation, 812 F.2d 265, 272 95th Cir. 1987). Where "the summary judgment evidence establishes that one of the essential elements of the plaintiff's cause of action does not exist as a matter of law, . . . all other contested issues of fact are rendered immaterial. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Topalian v. Ehrman, 954 F.2d 1125, 1138 (5th Cir. 1992).
In making its determinations of fact on a motion for summary judgment, the Court must view the evidence submitted by the parties in a light most favorable to the non-moving party. McPherson v. Rankin, 736 F.2d 175, 178 (5th Cir. 1984).
The moving party has the duty to demonstrate the lack of a genuine issue of material fact and the appropriateness of judgment as a matter of law to prevail on his motion. Union Planters Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982). The movant accomplishes this by informing the court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Topalian, 954 F.2d at 1131.
"Rule 56 contemplates a shifting burden: the nonmovant is under no obligation to respond unless the movant discharges [its] initial burden of demonstrating [entitlement to summary judgment]." John, 757 F.2d at 708. "Summary judgment cannot be supported solely on the ground that [plaintiff] failed to respond to defendants' motion for summary judgment," even in light of a Local Rule of the court mandating such for failure to respond to an opposed motion. Id. at 709.
However, once a properly supported motion for summary judgment is presented, the nonmoving party must rebut with "significant probative" evidence. Ferguson v. National Broadcasting Co., Inc., 584 F.2d 111, 114 (5th Cir. 1978). In other words, "the nonmoving litigant is required to bring forward `significant probative evidence' demonstrating the existence of a triable issue of fact." In Re Municipal Bond Reporting Antitrust Lit., 672 F.2d 436, 440 (5th Cir. 1982). To defend against a proper summary judgment motion, one may not rely on mere denial of material facts nor on unsworn allegations in the pleadings or arguments and assertions in briefs or legal memoranda. The nonmoving party's response, by affidavit or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed.R.Civ.P. See also Union Planters Nat. Leasing v. Woods, 687 F.2d at 119.
While generally "[t]he burden to discover a genuine issue of fact is not on [the] court, (Topalian, 954 F.2d at 1137), "Rule 56 does not distinguish between documents merely filed and those singled out by counsel for special attention the court must consider both before granting a summary judgment." John, 757 F.2d at 712, quoting Keiser v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir. 1980).
LEGAL ANALYSIS
A. The United States' Motion for Summary Judgment
1. Failure to Exhaust Administrative Remedies/Sovereign Immunity
The United States enjoys sovereign immunity from suit. Absent a waiver of immunity, no one may maintain an action against the federal government. The Federal Tort Claims Act (FTCA) represents a limited waiver of that immunity; actions against the United States must proceed in strict conformity with the conditions prescribed by the Act. 28 U.S.C. § 2679(d)(4). See also Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963). When a litigant fails to comply with the requirements of the Act, his suit is barred by sovereign immunity and the district court lacks jurisdiction to entertain his claim. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980).
Before filing suit, Jutman was required to submit an administrative claim for consideration by the United States. McNeil v. United States, 508 U.S. 106, 111-113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). All the evidence before the Court indicates plaintiff never did so. Plaintiff's failure to respond with evidence refuting defendant's properly supported motion requires that this Court grant the United States' motion for judgment as a matter of law.
2. Plaintiff's Claim is Time-Barred
In addition to the reasons for dismissal addressed in subsection A.1. supra, plaintiff's claim is also subject to dismissal for failure to file within the two-year statute of limitations provided by the FTCA. 28 U.S.C. § 2401(b). See United States v. Kubrick, 444 U.S. 111, 120, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). Plaintiff's Complaint seeks recovery for injuries allegedly sustained as early as 1988, and no later than 1990. Plaintiff has failed to adduce any evidence tending to establish that the condition was latent (and all indications are otherwise) or that he was otherwise prevented from discovering the problem. Accordingly, the Court is constrained to hold that the claims raised in plaintiff's Complaint are time-barred.
B. AMS's Motion for Summary Judgment
1. Plaintiff's Claim is Time-Barred
Defendant American Medical Systems (AMS) also seeks summary judgment based on the plaintiff's failure to file within the statutory limitations period. Presumably, plaintiff's Complaint alleges a products liability claim against AMS. Mississippi Code Annotated § 15-1-49 provides alternative proscription periods depending on when the cause of action accrued. If the cause of action arose prior to July 1, 1989, then a six-year statute of limitations applies. If, however, the plaintiff's cause of action accrued after July 1, 1989, then the applicable statute of limitations if three years.
Plaintiff's Complaint details his continuing problems with urinary incontinence following surgery at the VA Medical Center on December 29, 1988. At the time of the surgery, VA physicians implanted an artificial prosthesis to correct the problem. According to plaintiff's Complaint, the procedure was an abject failure from the very beginning. He neither alleges nor provides any sworn testimony otherwise contending that circumstances prevented him from realizing he had a sustainable cause of action. Even giving plaintiff the benefit of the doubt, the Court finds that plaintiff discovered, or through the exercise of reasonable diligence, should have discovered, the problem prior to July 1, 1989, thereby requiring that the lawsuit be filed no later than June 30, 1995 in order to be brought in a timely fashion. AMS is entitled to summary judgment.
2. Plaintiff Has Failed to Adduce Evidence on Essential Elements of Claim
An additional independent ground for summary judgment in favor of AMS also lies in the plaintiff's inability to produce substantial probative evidence from which a reasonable trier of fact could find in his favor as to his product liability claim against AMS. The plaintiff bears the burden of proving, by a preponderance of the evidence, that the prosthesis designed and manufactured by AMS suffered from a manufacturing or design defect which caused the plaintiff's injury. Mississippi Code Ann. § 11-1-63. See also Hammond v. Coleman Co., Inc., 61 F. Supp.2d 533, 542. Plaintiff's inability to demonstrate a triable issue of fact as to this essential element of his case also requires dismissal of his claims against AMS.
CONCLUSION
For the above and foregoing reasons, defendants are entitled to judgment as a matter of law. An order will issue accordingly.