(PC) Ramirez v. Kitt

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO RAMIREZ, Case No. 1:17-cv-00947-BAM (PC) 12 Plaintiff, ORDER GRANTING DEFENDANT KITT’S MOTION FOR SUMMARY JUDGMENT 13 v. (ECF No. 49) 14 KITT, 15 Defendant. 16 17 I. Introduction 18 Plaintiff Armando Ramirez (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on 20 Plaintiff’s first amended complaint against Defendant Kitt (“Defendant”) for deliberate 21 indifference to serious medical needs in violation of the Eighth Amendment. All parties have 22 consented to United States Magistrate Judge jurisdiction. (ECF Nos. 40, 43.) 23 On March 8, 2021, Defendant filed a motion for summary judgment on the grounds that 24 the undisputed material facts and supporting evidence show that: he was never deliberately 25 indifferent to Plaintiff’s medical needs, nor negligent in the medical treatment he rendered to 26 Plaintiff, and nothing Defendant did or did not do caused any injury to Plaintiff. (ECF No. 49.)1 27 1 Concurrent with this motion, Plaintiff was provided with notice of the requirements for opposing a motion for summary judgment. See Woods v. Carey, 684 F.3d 934 (9th Cir. 2012); Rand v. Rowland, 154 F.3d 952, 957 (9th 28 Cir. 1988); Klingele v. Eikenberry, 849 F.2d 409, 411–12 (9th Cir. 1988). (ECF No. 49-7.) 1 Fed. R. Civ. P. 56(c), Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc), cert. denied, 2 574 U.S. 968 (2014). (ECF No. 49.) Following several extensions of time, Plaintiff filed an 3 opposition to the motion for summary judgment on June 24, 2021, (ECF No. 57), and Defendant 4 filed a reply on July 1, 2021, (ECF No. 58.) 5 After resolving a pending discovery dispute and directing Defendant to file supplemental 6 responses to Plaintiff’s Interrogatories Nos. 6 and 16, (ECF No. 62), the parties were directed to 7 submit supplemental briefs limited to facts or arguments related to Defendant’s supplemental 8 responses. Plaintiff filed a supplemental opposition on March 20, 2024, (ECF No. 63), and 9 Defendant filed a supplemental reply on April 3, 2024, (ECF No. 64). Defendant’s motion for 10 summary judgment is now fully briefed.2 Local Rule 230(l). 11 For the reasons set forth below, the Defendant’s motion for summary judgment will be 12 granted. 13 II. Legal Standard 14 Summary judgment is appropriate when the pleadings, disclosure materials, discovery, 15 and any affidavits provided establish that “there is no genuine dispute as to any material fact and 16 the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is 17 one that may affect the outcome of the case under the applicable law. See Anderson v. Liberty 18 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a 19 reasonable [trier of fact] could return a verdict for the nonmoving party.” Id. 20 The party seeking summary judgment “always bears the initial responsibility of informing 21 the district court of the basis for its motion, and identifying those portions of the pleadings, 22 depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 23 which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 24 Catrett, 477 U.S. 317, 323 (1986). The exact nature of this responsibility, however, varies 25 depending on whether the issue on which summary judgment is sought is one in which the 26 movant or the nonmoving party carries the ultimate burden of proof. See Soremekun v. Thrifty 27 2 Defendant’s motion for summary judgment, (ECF No. 49), and Plaintiff’s motions to compel, (ECF Nos. 44, 47), were dropped inadvertently by the Court’s CM/ECF reporting/calendaring system resulting in the prolonged delay in 28 resolution. 1 Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). If the movant will have the burden of proof at 2 trial, it must “affirmatively demonstrate that no reasonable trier of fact could find other than for 3 the moving party.” Id. (citing Celotex, 477 U.S. at 323). In contrast, if the nonmoving party will 4 have the burden of proof at trial, “the movant can prevail merely by pointing out that there is an 5 absence of evidence to support the nonmoving party’s case.” Id. 6 If the movant satisfies its initial burden, the nonmoving party must go beyond the 7 allegations in its pleadings to “show a genuine issue of material fact by presenting affirmative 8 evidence from which a jury could find in [its] favor.” F.T.C. v. Stefanchik, 559 F.3d 924, 929 9 (9th Cir. 2009) (emphasis omitted). “[B]ald assertions or a mere scintilla of evidence” will not 10 suffice in this regard. Id. at 929; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 11 U.S. 574, 586 (1986) (“When the moving party has carried its burden under Rule 56[], its 12 opponent must do more than simply show that there is some metaphysical doubt as to the material 13 facts.”) (citation omitted). “Where the record taken as a whole could not lead a rational trier of 14 fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. 15 at 587 (quoting First Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). 16 In resolving a summary judgment motion, “the court does not make credibility 17 determinations or weigh conflicting evidence.” Soremekun, 509 F.3d at 984. Instead, “[t]he 18 evidence of the [nonmoving party] is to be believed, and all justifiable inferences are to be drawn 19 in [its] favor.” Anderson, 477 U.S. at 255. Inferences, however, are not drawn out of the air; the 20 nonmoving party must produce a factual predicate from which the inference may reasonably be 21 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–45 (E.D. Cal. 1985), 22 aff’d, 810 F.2d 898 (9th Cir. 1987). 23 In arriving at these findings and recommendations, the Court carefully reviewed and 24 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed 25 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of 26 reference to an argument, document, paper, or objection is not to be construed to the effect that 27 this Court did not consider the argument, document, paper, or objection. This Court thoroughly 28 reviewed and considered the evidence it deemed admissible, material, and appropriate. 1 III. Discussion 2 A. Plaintiff’s Objections to Expert Witness 3 In his opposition to the motion for summary judgment, Plaintiff objects to the use of 4 Defendant’s expert witness, Dr. Kaplan, because he was not disclosed to Plaintiff until the motion 5 for summary judgment was filed. (ECF No. 57, pp. 2–4.) Plaintiff acknowledges that the Court 6 did not order the disclosure of expert witnesses pursuant to Federal Rule of Civil Procedure 26. 7 (Id. at 2.) Nevertheless, Plaintiff argues that because Dr. Kaplan was not disclosed, Plaintiff was 8 prevented from obtaining discovery from Dr. Kaplan in the form of requests for production of 9 “previous publications, expert reports, transcripts of previous expert testimony or dispositions.” 10 (Id. at 3.) Dr. Kaplan’s declaration as to his credentials and employment history are not a 11 substitute for an expert witness report pursuant to Rule 26(a)(2). Plaintiff was also prevented 12 from obtaining “evidence” in preparation for the summary judgment motion because Defendant 13 objected to certain of Plaintiff’s interrogatories on the ground that they called for legal 14 conclusions or expert opinion testimony. (Id.) 15 Defendant argues in reply that Dr. Kaplan’s testimony should not be precluded because 16 the time for disclosure of expert opinions has not occurred in this case, as no trial date has been 17 set. (ECF No. 58, pp. 6–7.) 18 Plaintiff’s objections to Dr. Kaplan’s testimony are overruled. The Court did not order 19 disclosure of expert witnesses pursuant to Federal Rule of Civil Procedure 26, or in the Discovery 20 and Scheduling Order. Thus, Defendant was not required to disclose Dr. Kaplan as an expert 21 witness prior to filing the motion for summary judgment. To the extent Plaintiff argues that he 22 was prevented from obtaining “evidence” in preparation for the summary judgment due to 23 Defendant’s objections to certain of Plaintiff’s interrogatories, that discovery dispute was 24 resolved in Plaintiff’s favor. As Defendant was directed to file supplemental responses to 25 Plaintiff’s interrogatories that properly requested expert opinions from Defendant, and Plaintiff 26 was then permitted to file a supplemental opposition to Defendant’s motion for summary 27 judgment, the Court finds that there was no prejudice to Plaintiff resulting from Defendant’s 28 failure to disclose Dr. Kaplan as an expert prior to filing the motion for summary judgment. 1 B. Undisputed Material Facts (“UMF”)3 2 Issue No. 1: Whether Defendant was deliberately indifferent to Plaintiff’s medical needs. 3 1. Armando Ramirez (“Plaintiff”) is a California State Prison inmate and was incarcerated at 4 the time of the events giving rise to this lawsuit. (ECF No. 19 (“First Am. Compl.”).) 5 2. Plaintiff first consulted with Dr. Kitt (“Defendant”) via TeleMedicine on March 12, 2015. 6 (ECF No. 49-5 (“Lucas Decl.”), Ex. C, p. 4 and Ex. D, pp. 78–79; ECF No. 49-3 (“Kaplan 7 Decl.”) ¶ 5(a) and Ex. B, pp. 47, 121–22.) 8 3. According to Defendant’s consultation note, Plaintiff reported a history of a perforated 9 right ear drum since May 2014 for which he had received treatment with oral and topical 10 antibiotics without any significant improvement. (Lucas Decl., Ex. C, p. 4 and Ex. D, pp. 11 78–79; Kaplan Decl. ¶ 5(a) and Ex. B, pp. 47, 121–22.) 12 4. Plaintiff also reported having some drainage and hearing loss in his right ear. (Lucas 13 Decl., Ex. C, p. 4 and Ex. D, pp. 78–79; Kaplan Decl. ¶ 5(a), Ex. B (ECF No. 49-3, p. 47; 14 ECF No. 49-4, pp. 41–42).) 15 5. Defendant documented that, due to a technical difficulty with the TeleMedicine 16 equipment, he was unable to perform an ear examination during the visit. (Lucas Decl., 17 Ex. C, p. 4 and Ex. D, pp. 78–79; Kaplan Decl. ¶ 5(a), Ex. B (ECF No. 49-3, p. 47; ECF 18 No. 49-4, pp. 41–42).) 19 6. Defendant recommended that Plaintiff undergo a CT scan of his temporal bones to 20 evaluate for any anatomical abnormalities or mastoiditis (an infection that affects the 21 mastoid bone located behind the ear) and return for follow up. (Lucas Decl., Ex. C, p. 4 22 and Ex. D, pp. 78–79; Kaplan Decl. ¶ 5(a), Ex. B (ECF No. 49-3, p. 47; ECF No. 49-4, 23 pp. 41–42).) 24 7. On April 13, 2015, Plaintiff underwent a CT scan of the temporal bones, which was 25 interpreted as showing no evidence of mastoiditis or any other middle or inner ear 26 3 See Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment by Defendant Victor V. Kitt, M.D., (ECF No. 49-2); Opposing Party’s Statement of Genuine Issues in Dispute in Opposition to Defendant’s 27 Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment by Defendant Victor V. Kitt, M.D., (ECF No. 57, pp. 1–43). Unless otherwise indicated, disputed and immaterial facts are omitted from this 28 statement and relevant objections are overruled. 1 abnormalities. (Lucas Decl., Ex. C, p. 5; Kaplan Decl. ¶ 5(b), Ex. B (ECF No. 49-3, p. 2 48).) 3 8. Plaintiff underwent an audiology test at the prison on April 15, 2015 which demonstrated 4 that he had mild conductive hearing loss on the right. (Lucas Decl., Ex. C, p. 6; Kaplan 5 Decl. ¶ 5(c), Ex. B (ECF No. 49-3, p. 49).) 6 9. Plaintiff underwent another audiology test at the prison on December 1, 2015, which again 7 demonstrated that he had mild conductive hearing loss on the right. (Lucas Decl., Ex. C, 8 p. 11; Kaplan Decl. ¶ 5(d), Ex. B (ECF No. 49-3, p. 54).) 9 10. Plaintiff next consulted with Defendant on January 12, 2016 at Defendant’s clinic in 10 Bakersfield, California. (Lucas Decl., Ex. C, pp. 13–18; Kaplan Decl. ¶ 5(e), Ex. B (ECF 11 No. 49-3, pp. 56–61).) 12 11. On exam, Defendant documented that the patient had what appeared to be a 50% ear drum 13 perforation on the right. (Lucas Decl., Ex. C, pp. 13–16; Kaplan Decl. ¶ 5(e) and Ex. B, 14 pp. 56–59.) 15 12. Defendant also documented that he reviewed the CT scan of the patient’s temporal bones 16 and his audiology test results. (Lucas Decl., Ex. C, pp. 13–16; Kaplan Decl. ¶ 5(e), Ex. B 17 (ECF No. 49-3, pp. 56–59).) 18 13. Defendant’s impression was that Plaintiff had a right eardrum perforation with mild 19 conductive hearing loss. (Lucas Decl., Ex. C, pp. 13–16; Kaplan Decl. ¶ 5(e), Ex. B (ECF 20 No. 49-3, pp. 56–59).) 21 14. Defendant recommended a tympanoplasty (the surgical operation performed for the 22 reconstruction of the eardrum), and Plaintiff stated he would like to proceed with surgical 23 repair. (Lucas Decl., Ex. C, pp. 13–16; Kaplan Decl. ¶ 5(e), Ex. B (ECF No. 49-3, pp. 24 56–59).) 25 15. On February 12, 2016, the medical records show that Plaintiff arrived at Mercy Hospital 26 at approximately 5:50 a.m., accompanied by two Correctional Officers. (Lucas Decl., Ex. 27 D, pp. 80–81; Kaplan Decl. ¶ 5(f), Ex. B (ECF No. 49-4, pp. 43–44).) 28 /// 1 16. At 6:50 a.m., Plaintiff signed a three-page “Consent to Surgery or Special Procedure” for 2 the performance of a right tympanoplasty under microscope by Defendant. Paragraph 11 3 of that document, titled “Acknowledgement and Signature,” states that, “By signing this 4 form, you are indicating that you have read and understand the information in this form; 5 your doctor has discussed the procedure with you and explained the risks and benefits and 6 any foreseeable problems; your doctor has discussed alternative methods of treatment 7 available, their risks and benefits, and what would happen if you did not have the 8 procedure; you had a chance to ask your doctor any questions about the procedure; you 9 authorize and consent to the performance of the procedure and the anesthesia.” (Lucas 10 Decl., Ex. d, pp. 82–84; Kaplan Decl. ¶ 5(f), Ex. B (ECF No. 49-4, pp. 45–47).) 11 17. At approximately 7:00 a.m., Defendant completed a “Pre & Post-OP Progress Record” in 12 which he documented that the potential risks, benefits and alternatives to the 13 tympanoplasty surgery were explained to the patient and accepted and, on examination, 14 there were no changes from the prior History & Physical. (Lucas Decl., Ex. D, p. 85; 15 Kaplan Decl. ¶ 5(f), Ex. B (ECF No. 49-4, p. 48).) 16 18. At approximately 8:27 a.m. Defendant performed a right tympanoplasty under microscope 17 on Plaintiff. (Lucas Decl., Ex. D, pp. 89–91; Kaplan Decl. ¶ 5(g) and Ex. B, pp. 52–54.) 18 19. The Operation Report states that an “initial ear exam confirmed that [the patient had] a 19 subtotal eardrum perforation with no active drainage.” (Lucas Decl., Ex. D, pp. 90–91; 20 Kaplan Decl. ¶ 5(g), Ex. B (ECF No. 49-4, pp. 52–53).) 21 20. The Operation Report further states that “there was only a small edge of the remnants of 22 the eardrum on the periphery” and “the pre-harvested facial graft was used to repair the 23 eardrum as a medial grafting technique.” (Lucas Decl., Ex. D, pp. 90–91; Kaplan Decl. 24 ¶ 5(g), Ex. B (ECF No. 49-4, pp. 53–54).) 25 21. Defendant documented that the surgery was completed without complication. (Lucas 26 Decl., Ex. D, pp. 90–91; Kaplan Decl. ¶ 5(g), Ex. B (ECF No. 49-4, pp. 53–54).) 27 22. At about 11:00 a.m. on February 12, 2016, Plaintiff was discharged back to the prison. 28 (Lucas Decl., Ex. D, p. 93; Kaplan Decl. ¶ 5(h), Ex. B (ECF No. 49-4, pp. 56).) 1 23. Defendant gave instructions to the prison that Plaintiff could resume his diet as tolerated, 2 and he prescribed Norco 10/325 mg every four hours as needed for severe pain, and 3 Tylenol 650 mg 1–2 tabs every four hours for mild to moderate pain. (Lucas Decl., Ex. D, 4 pp. 86, 94; Kaplan Decl. ¶ 5(h), Ex. B (ECF No. 49-4, pp. 49, 57).) 5 24. Defendant further instructed that Plaintiff was to remove the outside cup dressing on 6 February 15, 2016, and keep the ear canal gauze packing until February 19, 2016, as 7 earlier removal could cause ear canal narrowing. (Lucas Decl., Ex. D, pp. 86, 94; Kaplan 8 Decl. ¶ 5(h), Ex. B (ECF No. 49-4, pp. 49, 57).) 9 25. The prison was to arrange a post-operative office visit with Defendant in a few weeks, or 10 sooner, as needed. (Lucas Decl., Ex. D, pp. 86, 94; Kaplan Decl. ¶ 5(h), Ex. B (ECF No. 11 49-4, pp. 49, 57).) 12 26. Defendant saw Plaintiff again via TeleMedicine on March 10, 2016 for post-operative 13 follow up. (Lucas Decl., Ex. C, p. 22 and Ex. D, pp. 95–96; Kaplan Decl. ¶ 5(i), Ex. B 14 (ECF No. 49-3, p. 65; ECF No. 49-4, pp. 58–59).) 15 27. On that date, Defendant documented that Plaintiff’s post-operative course was uneventful. 16 (Lucas Decl., Ex. C, p. 22 and Ex. D, pp. 95–96; Kaplan Decl. ¶ 5(i), Ex. B (ECF No. 49- 17 3, p. 65; ECF No. 49-4, pp. 58–59).) 18 28. On examination, Defendant documented the right ear canal was clean and the grafted 19 eardrum was in a good healing process with no active discharge. (Lucas Decl., Ex. C, p. 20 22 and Ex. D, pp. 95–96; Kaplan Decl. ¶ 5(i), Ex. B (ECF No. 49-3, p. 65; ECF No. 49-4, 21 pp. 58–59).) 22 29. Defendant instructed Plaintiff to resume his normal activity and documented that he 23 would be glad to see Plaintiff again in the future if there were any problems. (Lucas 24 Decl., Ex. C, p. 22, Ex. D, pp. 95–96, and Ex. F, p. 114; Kaplan Decl. ¶ 5(i), Ex. B (ECF 25 No. 49-3, p. 65; ECF No. 49-4, pp. 58–59, 77).) 26 30. Otherwise, Defendant recommended an audiogram be performed in about six months to 27 evaluate hearing activity. (Lucas Decl., Ex. C, p. 22 and Ex. D, pp. 95–96; Kaplan Decl. 28 ¶ 5(i), Ex. B (ECF No. 49-3, p. 65; ECF No. 49-4, pp. 58–59).) 1 31. In a separate note from a nurse that the prison dated March 10, 2016, it was documented 2 that Plaintiff had no pain complaints. The nurse also documented that Plaintiff’s right ear 3 was clear, with no drainage, no redness, and no bleeding. The nurse further documented 4 that Plaintiff’s tympanic membrane was intact. (Lucas Decl., Ex. C, p. 23; Kaplan Decl. 5 ¶ 5(k), Ex. B (ECF No. 49-3, p. 66).) 6 32. On December 5, 2016, an audiology evaluation was performed on Plaintiff at the prison 7 which demonstrated mild conductive hearing loss in the right ear and a tympanic 8 membrane perforation visible in the right ear. (Lucas Decl., Ex. C, pp. 26–27; Kaplan 9 Decl. ¶ 5(l), Ex. B (ECF No. 49-3, pp. 69–70).) 10 33. On December 16, 2016, Plaintiff was sent to Riverside University Health Care System 11 where he saw Erin Ostby, M.D. Dr. Ostby’s consultation note states that while Plaintiff 12 reported his ear does not drain, he denies dizziness, denies tinnitus, denies pain. 13 Plaintiff’s only complaint was hearing loss. (Lucas Decl., Ex. C, pp. 30–34 and Ex. E, pp. 14 99–101; Kaplan Decl. ¶ 5(m), Ex. B (ECF No. 49-3, p. 68; ECF No. 49-4, pp. 62–64).) 15 34. On exam, Dr. Ostby noted that the previous graft appeared to have fallen into the middle 16 ear. (Lucas Decl., Ex. C, pp. 30–34 and Ex. E, pp. 99–101; Kaplan Decl. ¶ 5(m), Ex. B 17 (ECF No. 49-3, pp. 73–74; ECF No. 49-4, pp. 62–64).) 18 35. Dr. Ostby recommended a revision tympanoplasty which was eventually performed on 19 January 3, 2017 by Helen Xu, M.D. (Lucas Decl., Ex. C, pp. 30–34, 41–42 and Ex. E, pp. 20 99–101, 102–03; Kaplan Decl. ¶ 5(m), Ex. B (ECF No. 49-3, pp. 73–74; ECF No. 49-4, 21 pp. 4–5, 62–64, 65–66).) 22 36. At his last documented follow-up visit at Riverside University Health Care System on 23 October 6, 2017, Plaintiff’s graft tympanoplasty had fully healed and no conductive 24 hearing loss was noted on the audiogram. (Lucas Decl., Ex. C, pp. 71–73 and Ex. E, pp. 25 105–08; Kaplan Decl. ¶ 5(n), Ex. B (ECF No. 49-4, pp. 34–36, 68–71).) 26 37. It is further documented in the records from Riverside University Health Care System that 27 Plaintiff also denied subjective hearing loss. (Lucas Decl., Ex. E, pp. 105–08; Kaplan 28 Decl. ¶ 5(n), Ex. B (ECF No. 49-4, pp. 68–71.) 1 Issue No. 2: Whether Defendant was negligent in the medical treatment he rendered to Plaintiff. 2 38. Michael Kaplan, M.D. is qualified to render an opinion as to the standard of care 3 applicable to Otolaryngologists. (Kaplan Decl. ¶¶ 1–5 and Ex. A.) 4 39. The care and treatment provided by Defendant to Plaintiff at all times met the applicable 5 standard of care. (Id. ¶¶ 6–7.) 6 See also Undisputed Material Facts as to Issue No. 1. 7 Issue No. 3: Whether Defendant’s actions or inactions caused any injury to Plaintiff. 8 40. Michael Kaplan, M.D.4 is qualified to render an opinion as to causation. (Id. ¶¶ 1–5 and 9 Ex. A.) 10 41. There is nothing that Defendant did or did not do that caused Plaintiff to suffer any 11 injuries in this case. (Id. ¶¶ 6–7.) 12 See also Undisputed Material Facts as to Issue No. 1. 13 C. Parties’ Positions 14 Defendant Kitt contends that the undisputed facts establish that Defendant was never 15 deliberate indifferent to Plaintiff’s medical needs. Defendant provided Plaintiff with appropriate 16 care and treatment as it related to Plaintiff’s right eardrum perforation that comports with the 17 applicable standard of care. Plaintiff has no admissible evidence to support his claim that 18 Defendant was deliberately indifferent because he did not surgically close a hole in Plaintiff’s 19 right eardrum and fully restore Plaintiff’s hearing before discharging Plaintiff as a patient, thereby 20 allegedly suffering permanent hearing loss, pain, ear infections, and the need to undergo a second 21 surgery to repair the eardrum perforation. According to Michael Kaplan, M.D., a qualified expert 22 in the field of Otolaryngologist with a specialty in Head and Neck surgery, Defendant complied 23 with the applicable standard of care at all times in connection with his treatment of Plaintiff. 24 There is also no evidence that Defendant acted with any subjective intent to harm Plaintiff or that 25 there was a purposeful failure by Defendant to respond to Plaintiff’s medical needs. There is also 26 no evidence demonstrating that Defendant caused any injury or serious deprivation to Plaintiff’s 27 4 Defendant’s Separate Statement of Undisputed Fact No. 40 refers to “Keith Klein, M.D.” (ECF No. 49-2, p. 9.) 28 This appears to be a clerical error. 1 medical condition, as a graft failure is a known and recognized complication of a tympanoplasty 2 that can and does occur in the absence of any negligence, and Plaintiff did not suffer an increase 3 in hearing loss as a result of Defendant’s surgery. Finally, Plaintiff’s disagreement with 4 Defendant’s decision to discharge Plaintiff from Defendant’s care is a difference of opinion 5 between a physician and a prisoner concerning medical treatment and does not amount to 6 deliberate indifference. 7 In opposition, Plaintiff argues that despite Defendant’s “guarantee” and “promise” to do 8 so, there is compelling material evidence that Defendant failed or refused to seal/close Plaintiff’s 9 right eardrum perforation during the corrective surgery and restore Plaintiff’s hearing. Upon 10 discovering that the perforation was not sealed or closed during a Telemed examination, 11 Defendant discharged Plaintiff from his medical care despite Plaintiff’s complaints of pain, 12 hearing loss, and discharge of fluids from his ear, rather than scheduling a physical examination 13 in his office. The perforation was still visible by the attending nurse, but medical records were 14 tampered and fabricated to not document said complaints and perforation. After suffering 15 numerous ear infections and a revision surgery by Dr. Xu, the perforation was finally closed. 16 However, Plaintiff suffered severe hearing loss. Plaintiff did not return to Defendant’s care 17 because Plaintiff has no choice as to who he sees for specialty services, but he also did not want 18 to be seen or examined by Defendant after Defendant refused and failed to seal the perforation in 19 the first surgery. Dr. Kaplan’s opinion evidence admits that when the graft placed by Defendant 20 failed, Plaintiff’s hearing was “likely dampened,” showing deliberate indifference by Defendant. 21 The difference of opinion between Plaintiff regarding Defendant’s medical decisions amounts to 22 deliberate indifference because Defendant chose a course of treatment that was medically 23 unacceptable under the circumstances, and in conscious disregard of an excessive risk to 24 Plaintiff’s health, resulting in further significant injury and wanton infliction of pain to Plaintiff. 25 In reply, Defendant asserts that Plaintiff failed to meet his burden to present admissible 26 evidence showing Defendant was deliberately indifferent in response to Plaintiff’s medical needs. 27 The undisputed facts and supporting evidence demonstrate that Defendant in no way purposefully 28 ignored or failed to respond to Plaintiff’s medical needs. Even if Plaintiff’s argument that 1 Defendant failed to close the hole in Plaintiff’s ear and restore his hearing is taken as true, it is 2 insufficient to demonstrate the kind of culpability required to set forth a claim for deliberate 3 indifference against Defendant, as opposed to a claim for medical negligence. Plaintiff’s failure 4 to provide expert opinion testimony regarding the issues of standard of care and causation is fatal 5 to his claim for deliberate indifference. Plaintiff incorrectly attempts to substitute his own lay 6 opinion for required expert medical opinions, or attributes statements on causation to other 7 treating health care providers, which is inadmissible hearsay. 8 Pursuant to the Court’s January 23, 2024 order granting in part Plaintiff’s motion to 9 compel, Plaintiff was permitted to file a supplemental opposition to the motion for summary 10 judgment, limited only to those facts or arguments relating to Defendant’s supplemental 11 responses to Plaintiff’s Interrogatories Nos. 6 and 16. (ECF No. 62.) Plaintiff argued that 12 Defendant’s response to Interrogatory No. 6, regarding possible symptoms of a perforated 13 eardrum, calls into question the standard of care. Further, the fact that Plaintiff’ required a 14 subsequent tympanoplasty within a year of Defendant’s surgery rebuts the presumption that 15 Defendant’s operation was within the standard of care. Further, Defendant’s response to 16 Interrogatory No. 16, regarding Defendant’s belief that the February 12, 2016 surgery was within 17 the standard of care, and that graft failure is a known and recognized complication of 18 tympanoplasty that can and does occur in the complete absence of negligence, is merely 19 Defendant’s “belief” not supported by anything tangible, and creates a genuine issue of material 20 fact. Plaintiff further asserts that on at least six separate instances or occasions, Defendant has 21 been accused of the same or similar negligence, and cites to six different federal lawsuits. (ECF 22 No. 63, p. 4.) 23 Defendant contends that Plaintiff’s supplemental opposition is procedurally defective 24 because it does not attach Defendant’s supplemental responses to Interrogatories Nos. 6 and 16, 25 and that prior lawsuits filed against Defendant are irrelevant and inadmissible to demonstrate that 26 Defendant acted with deliberate indifference. Plaintiff’s supplemental opposition also fails to 27 create a triable issue of fact through his discussions of Defendant’s supplemental responses. 28 /// 1 D. Analysis 2 Based on the undisputed evidence in the record, Plaintiff has failed to show that 3 Defendant was deliberately indifferent to Plaintiff’s medical needs when Defendant performed 4 the tympanoplasty to close the perforation in Plaintiff’s right eardrum or when Defendant 5 discharged Plaintiff from his care following the surgery. 6 The undisputed facts show that Defendant was not deliberately indifferent in the care of 7 and surgery performed on Plaintiff. Defendant recommended a tympanoplasty to reconstruct 8 Plaintiff’s right eardrum and Plaintiff stated he would like to proceed with the surgical repair. 9 UMF 14. Plaintiff consented to the tympanoplasty on February 12, 2016. UMF 15, 16. 10 According to the evidence in the record, Defendant documented that the potential risks, benefits 11 and alternatives to the surgery were explained to Plaintiff. UMF 17. The surgery was performed 12 and Defendant documented that it was completed without complication. UMF 18, 21. Defendant 13 saw Plaintiff for a post-operative follow up via TeleMedicine on March 10, 2016, when 14 Defendant documented that Plaintiff’s post-operative course was uneventful. UMF 26, 27. 15 Defendant documented that on examination, the right ear canal was clean and the grafted eardrum 16 was in a good healing condition with no active discharge. UMF 28. Defendant instructed 17 Plaintiff to resume his normal activity, documented that he would be glad to see Plaintiff again in 18 the future if there were any problems, and recommended an audiogram be performed in about six 19 months to evaluate hearing activity. UMF 29, 30. A separate note from RN Trevino dated March 20 10, 2016 also documented that Plaintiff had no pain complaints, Plaintiff’s right ear was clear, 21 with no drainage, no redness, and no bleeding, and that Plaintiff’s tympanic membrane was intact. 22 UMF 31. Defendant’s expert, Dr. Michael Kaplan, is qualified to render an opinion as to the 23 standard of care applicable to Otolaryngologists. UMF 38. Dr. Kaplan opines that the care and 24 treatment provided by Defendant to Plaintiff at all times met the applicable standard of care. 25 UMF 39. Dr. Kaplan is further qualified to render an opinion as to causation, and opines that 26 there is nothing that Defendant did or did not do that caused Plaintiff to suffer any injuries in this 27 case. UMF 40, 41. 28 Plaintiff argues throughout his opposition and supplemental opposition that he repeatedly 1 complained of pain and ear infections following Defendant’s surgery, but Defendant did not 2 respond to his complaints. Plaintiff further contends that during the March 10, 2016 post- 3 operative follow up, the video portion of the TeleMedicine equipment malfunctioned, preventing 4 Defendant from examining Plaintiff’s eardrum himself. Rather, RN Trevino examined Plaintiff’s 5 eardrum and verbally relayed her observations to Defendant. Plaintiff alleges that Defendant and 6 RN Trevino both failed to include these details in their medical notes from that appointment. 7 While Plaintiff contends that this is sufficient to demonstrate a material dispute of fact, Plaintiff 8 has failed to provide any evidence, other than statements made during his own deposition, to 9 support his allegations. See Rivera v. AMTRAK, 331 F.3d 1074, 1078 (9th Cir. 2003) 10 (“Conclusory allegations unsupported by factual data cannot defeat summary judgment.”); F.T.C. 11 v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997), as amended (Apr. 11, 1997) 12 (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is 13 insufficient to create a genuine issue of material fact.”). The fact that Plaintiff relies upon his 14 deposition testimony in addition to the allegations in his oppositions to Defendant’s motion for 15 summary judgment, does not convert these statements from self-serving affidavits to factual data 16 or supporting evidence. 17 Even taking as true Plaintiff’s assertions that Defendant and RN Trevino fabricated his 18 medical records or otherwise omitted his complaints of pain during the March 10, 2016 19 appointment, these actions appear to rise only to the level of negligence or medical malpractice, 20 which does not support a cause of action for deliberate indifference. Broughton v. Cutter Labs., 21 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. Gamble, 429 U.S. 97, 105–06 (1976)). Even 22 gross negligence is insufficient to establish deliberate indifference to serious medical needs. See 23 Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 24 Furthermore, other evidence in the record fails to support Plaintiff’s version of events. 25 During Plaintiff’s March 12, 2015 consultation with Defendant, there was a similar malfunction 26 in the video portion of the TeleMedicine equipment, which was documented in the visit note. 27 UMF 5; (ECF No. 49-5, p. 4). Thus, if there were a video malfunction during the March 10, 2016 28 appointment, a note could have been included by RN Trevino—the fact that one was not included 1 does not itself prove Plaintiff’s argument that the records were fabricated. Further, as to 2 Plaintiff’s claims that he suffered pain and repeated ear infections following Defendant’s surgery 3 and post-operative care, during the December 16, 2016 consultation at Riverside University 4 Health Care System, Dr. Ostby documented that while Plaintiff reported “he has had several ear 5 infections in the past,” Plaintiff had “[n]o infections in the past several years,” (ECF No. 49-5, p. 6 99), which includes the time following Defendant’s surgery. Dr. Ostby further noted that Plaintiff 7 continued to have hearing loss following his February 12, 2016 surgery with Defendant, but while 8 Plaintiff reported that “his ear does not drain, he denies dizziness, denies tinnitus, denies pain. 9 His only complaint is the hearing loss.” (Id.) These records, which Plaintiff does not contend 10 were fabricated, thus contradict Plaintiff’s claims regarding continuing pain and ear infections in 11 his right ear following Defendant’s surgery. 12 Defendant presented the expert opinion of Dr. Kaplan, who opines that Defendant’s care 13 and treatment of Plaintiff at all times met the applicable standard of care and that there is nothing 14 that Defendant did not do that caused Plaintiff to suffer any injuries in this case. UMF 39, 41. 15 Dr. Kaplan states that graft failure is a “known and recognized complication of a tympanoplasty 16 that can and does occur in the complete absence of any negligence” and “the surgical technique 17 utilized by Dr. Kitt was competent and consistent with the standard of care.” (ECF No. 49-3, p. 18 7.) In opposition, Plaintiff offers only his own lay opinions to support his assertion that 19 Defendant’s care and treatment constituted deliberate indifference to Plaintiff’s serious medical 20 needs. While Plaintiff further contends that the fact that Defendant’s surgery failed to fully repair 21 the perforation to his right eardrum is itself evidence of Defendant’s deliberate indifference, 22 Plaintiff has not shown that he qualifies as an expert witness in order to be able to opine on the 23 appropriateness of the surgical technique used, the likelihood of a graft failure during a routine 24 tympanoplasty, or the appropriateness of the post-operative care he received. See Fed. R. Evd. 25 702. As Plaintiff is a lay witness, the only admissible evidence he can provide on his own is 26 limited to opinions that are rationally based on his perception; that are helpful to clearly 27 understanding his testimony or to determining a fact in issue; and are not based on scientific, 28 technical, or other specialized knowledge within the scope of Rule 702 such as medical opinions. 1 See Fed. R. Evd. 701. A mere difference of opinion between Plaintiff and his doctor concerning 2 the appropriateness of his medical care does not amount to deliberate indifference. Snow v. 3 McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 4 1989)), overruled in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 5 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 6 90 F.3d 330, 332 (9th Cir. 1986)). Thus, based on the undisputed evidence in the record, 7 Defendant’s actions were consistent with the standard of care for this procedure. 8 IV. Conclusion and Order 9 For the reasons explained above, the Court finds that Defendant Kitt is entitled to 10 summary judgment on Plaintiff’s claims that Defendant Ridge was deliberately indifferent to 11 Plaintiff’s serious medical needs in violation of the Eighth Amendment. 12 Accordingly, IT IS HEREBY ORDERED as follows: 13 1. Defendant Kitt’s motion for summary judgment, (ECF No. 49), is GRANTED; 14 2. Judgment shall be entered in favor of Defendant Kitt and against Plaintiff; and 15 3. The Clerk of the Court is directed to close this case. 16 IT IS SO ORDERED. 17 18 Dated: August 21, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28