                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 15 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PATTIE MEYER, Executrix of the
    Estate of Virginia Vogelsberg,

                Plaintiff-Appellant,
                                                         No. 00-6404
    v.                                             (D.C. No. 00-CV-372-M)
                                                         (W.D. Okla.)
    ROBERT GIBSON, M.D.; THE
    GIBSON CLINIC, INC.,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR and McKAY , Circuit Judges, and           BRORBY , Senior Circuit
Judge.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff/appellant Pattie Meyer, executrix of Virginia Vogelsberg’s estate,

appeals from summary judgment granted in favor of defendants/appellees Robert

Gibson and the Gibson Clinic, Inc. on her state-law claim for medical

malpractice. Ms. Meyer contends that the district court erred by requiring expert

medical testimony to establish a causal connection between Dr. Gibson’s

allegedly negligent treatment of Ms. Vogelsberg and the conditions that ultimately

caused her death. Our jurisdiction arises under 28 U.S.C. § 1291, and, although

we agree with the district court that evidence supplied by a medical expert is

necessary to establish a causal connection, record evidence satisfied that

requirement for summary judgment purposes in this case.

       The district court’s jurisdiction arose from the diversity of the parties.

Therefore, the court was obliged to apply the most recent statement of applicable

Oklahoma law by that state’s highest court.         See Wood v. Eli Lilly & Co. , 38 F.3d

510, 513 (10th Cir. 1994). We review de novo the district court’s grant of

summary judgment, applying Oklahoma substantive law.             See Charter Canyon

Treatment Ctr. v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Under

Fed. R. Civ. P. 56(c), summary judgment is proper only if the evidence, viewed in

the light most favorable to the party opposing summary judgment, shows that

there are no genuine issues as to any material fact, and that the moving party is

entitled to judgment as a matter of law.      See id.


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       It is undisputed that Ms. Vogelsberg died of renal failure and cardiac arrest

and that she had a history of metastatic breast cancer that had spread to her lungs,

insulin-dependent diabetes mellitus, renal dysfunction with proteinuria, and

coronary artery disease. Ms. Vogelsberg admittedly suffered from renal

dysfunction and heart problems before she received laetrile treatments. However,

Ms. Meyer appears to claim that Dr. Gibson failed to properly monitor or evaluate

Ms. Vogelsberg’s diabetic condition while administering laetrile, neglecting to

notice that Ms. Vogelsberg’s conditions had worsened and needed medical

intervention, and that this lack of treatment resulted in her total renal failure and

cardiac arrest.

       In a motion for summary judgment, Dr. Gibson obtained an affidavit from a

medical expert, Dr. Burdick, opining that Dr. Gibson’s care and treatment did not

cause or contribute to Ms. Vogelsberg’s death. Dr. Gibson argued that Ms. Meyer

could not establish a prima facie case of medical malpractice because she had not

timely identified a medical expert to testify about causation and that she could not

survive summary judgment for failure to submit a medical-expert affidavit

establishing causation.

       Expert medical testimony is necessary to establish causation in medical

malpractice cases in Oklahoma unless the negligence is so grossly apparent that

laymen would have no difficulty in realizing it.   See Boxberger v. Martin , 552


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P.2d 370, 373 (Okla. 1976). As the district court noted, “the origin of the injury

in this case is obscure and is not readily apparent to a layman,” Appellant’s App.

at 90, especially in light of Ms. Vogelsberg’s pre-existing and serious medical

conditions.

      Despite apparently failing to comply with pre-trial orders to identify trial

witnesses and exhibits by September 1, 2000, however, Ms. Meyer submitted with

her untimely-filed summary judgment response an order from the Oklahoma State

Board of Medical Licensure and Supervision (Board). The order was entered

after a hearing on charges that Dr. Gibson’s medical license should be revoked in

part because of his “[f]ailure to provide necessary on-going medical treatment.”

Okla. Stat. tit. 59 § 509. The Board specifically concluded on “clear and

convincing evidence” that Dr. Gibson failed to monitor and control Ms.

Vogelsberg’s diabetic condition and renal impairment, “resulting in the patient’s

total renal failure and subsequent death.” Appellant’s App. at 69, 71 (order

revoking Dr. Gibson’s medical license). Counsel submitted this document to the

district court with the following statement: “While recognizing the difficulty in

admission of these records at trial, the underlying facts reported in these

documents are essentially undisputed.”   Id. at 45 (Plaintiff’s response to motion




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for summary judgment).     1
                               Counsel also argued that, under     Boxberger , causation

may also “be proved by circumstantial evidence if the evidence has sufficient

probative force to constitute the basis for a legal inference.”        Boxberger , 552 P.2d

at 574.

       Dr. Gibson objected to admission of this evidence solely on the basis that it

was generated following the treatment of Ms. Vogelsberg.          2
                                                                      Counsel for Ms.

Meyer did not bring to the court’s attention         Boxberger’s statement that “[e]xpert

medical testimony is not required to establish the cause of an objective injury

where there is competent evidence, without such testimony, to establish the cause

with reasonable certainty.”      Id. at 573. Nor did counsel emphasize to the district

court that the Board is composed of seven licensed physicians and two laypersons,

see Okla. Stat. tit. 59 § 481, and that the order was signed by a physician.

Perhaps because of these failures and the fact that plaintiff’s counsel’s brief was

not a model of clarity, the district court did not rule on the admissibility of the

order or mention it in the order granting summary judgment. We conclude,

1
       Orders from administrative agencies are admissible under Fed. R. Evid.
803(8)(C), the public records exception to the hearsay rule. See Perrin v.
Anderson , 784 F.2d 1040, 1046 (10th Cir. 1986) (holding that court properly
admitted Oklahoma Department of Public Safety shooting report pursuant to this
Rule).

2
      Following counsel’s logic, Dr. Burdick’s affidavit also would not be
admissible because it, too, was generated following the treatment of the decedent.


                                               -5-
however, that counsel submitted enough evidence and argument to warrant a

ruling that the order could substitute for expert witness testimony on the issue of

causation. Cf. Perrin v. Anderson , 784 F.2d 1040, 1046 (10th Cir. 1986)

(affirming admission of Oklahoma Department of Public Safety shooting report as

evidence that officer acted within professional guidelines of proper police

conduct); Robertson v. LaCroix , 534 P.2d 17, 21 (Okla. App. 1975) (noting that

“extrajudicial admission of a party opponent has the same legal competency as

direct expert testimony to establish the requisite elements of a prima facie case of

negligence in a medical malpractice action”). We therefore reverse the summary

judgment in favor of defendants.

       Ms. Meyer collaterally interposes issues of alleged procedural unfairness in

Dr. Gibson’s failure to produce all of the medical records relating to

Ms. Vogelsberg’s treatment and in his expert witness’s reliance on those records

in arriving at his conclusion that Dr. Gibson’s treatment did not cause or

contribute to Ms. Vogelsberg’s death. We note, as did the trial court, that

Ms. Meyer did not compel production of those documents. She also did not

request an extension of time in which to obtain the documents, gather more

rebuttal evidence or affidavits, or obtain a medical expert, even though she bore

the burden of proof on the issue of causation.    See Fed. R. Civ. P. 56(f).

       [W]here the non moving party will bear the burden of proof at trial
       on a dispositive issue, that party must go beyond the pleadings and

                                            -6-
      designate specific facts so as to make a showing sufficient to
      establish the existence of an element essential to that party’s case in
      order to survive summary judgment.

McKnight v. Kimberly Clark, Corp.   , 149 F.3d 1125, 1128 (10th Cir. 1998)

(quotations omitted). Having failed to compel documents or to request extensions

of time in which to obtain medical records, Ms. Meyer cannot be heard to

complain of any perceived procedural unfairness.

      We REVERSE the judgment of the United States District Court for the

Western District of Oklahoma and REMAND for further proceedings consistent

with this opinion.



                                                    Entered for the Court



                                                    Monroe G. McKay
                                                    Circuit Judge




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