                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2005

Nyhuis v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2859




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"Nyhuis v. USA" (2005). 2005 Decisions. Paper 257.
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                                                                           BPS-21
                                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                     No. 05-2859
                                     ___________

                                 DOUGLAS NYHUIS,
                                         Appellant

                                           v.

                           UNITED STATES OF AMERICA
                                ________________

                    On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                           (WD/PA. Civil No. 00-cv-00232-E)
                     District Judge: Honorable Sean J. McLaughlin
                                 ___________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 20, 2005

              Before: RENDELL, AMBRO and BECKER, Circuit Judges

                               (Filed November 4, 2005 )


                              OPINION OF THE COURT


PER CURIAM

      Douglas Nyhuis, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the Western District of Pennsylvania granting summary
judgment for the United States in his action under the Federal Tort Claims Act, 28 U.S.C.

§§ 2671-2680, and an order denying his motion for reconsideration. Because this appeal

does not raise a substantial question, we will grant the Government’s motion to

summarily affirm the District Court’s orders.

       In 2000, Nyhuis filed a complaint alleging that the Federal Bureau of Prisons

departed from the applicable standard of care in treating a bone growth on his foot,

known as Haglund’s deformity, and his torn achilles tendon. After the filing of various

motions, Nyhuis filed a Third Amended Complaint, and discovery closed in December

2003. In March 2004, the United States moved for summary judgment, arguing that

Nyhuis failed to provide an expert report supporting his claims. In July 2004, the District

Court appointed counsel to represent Nyhuis, and dismissed the summary judgment

motion without prejudice in order to give counsel an opportunity to obtain an expert.

       In a subsequent status conference, Nyhuis’ counsel reported to the District Court

that he provided Nyhuis’ records to a medical expert consulting service, and the

physicians found no deviation from the accepted standard of care. Counsel provided

written confirmation of the expert opinion, and the District Court granted counsel’s

motion to withdraw. In September 2004, the District Court denied Nyhuis’ motion for

appointment of another attorney, but granted him sixty days to file an expert report on his

own, noting that if a report was not filed, his case would be dismissed.

       In November 2004, the Government renewed its motion for summary judgment,



                                             2
and Nyhuis moved for an extension of time to file an expert report. Noting that eight

months had passed since the Government filed its initial summary judgment motion, the

District Court granted the Government’s motion and dismissed Nyhuis’ case. The

District Court denied Nyhuis’ motion for reconsideration, and Nyhuis appealed.

       The Government moves for a summary affirmance of the District Court’s orders,

arguing that by failing to provide an expert report, Nyhuis failed to present a genuine

issue of material fact. The United States is liable to the same extent a private individual

would be liable under like circumstances under state law. United States v. Muniz, 374

U.S. 150, 162 (1963). Under Pennsylvania law, except when the matter is so simple or

the lack of care is so obvious as to be within the range of experience of lay persons, a

plaintiff must provide a medical expert who will testify to the elements of a medical

malpractice claim, including the duty the physician owed the patient, the breach of that

duty, and causation. Hightower-Warren v. Silk, 698 A.2d 52, 54 (Pa. 1997).

       The District Court gave Nyhuis an ample opportunity, with the assistance of

counsel, to obtain an expert report. Absent such a report, the District Court properly

granted the Government’s summary judgment motion. The District Court also did not

abuse its discretion in denying Nyhuis’ motion for reconsideration.1



  1
   Although not addressed by the District Court, the Government conceded that an expert
report is not required in connection with Nyhuis’ additional claim that the Bureau of
Prisons disregarded his pain and suffering by placing steel shackles around his injured
tendon when transporting him. The Government, however, correctly argued that Nyhuis
did not exhaust his administrative remedies with respect to this claim. The record reflects

                                              3
       Nyhuis argues that his case raises several substantial questions that warrant

briefing. He contends that the District Court erred in denying his motion for an extension

of time to provide an expert report. The record reflects that, at the final hearing, Nyhuis

stated he had found a doctor who was willing to review his medical records, but was

unable to do so at that time due to his schedule. Because Nyhuis did not indicate that an

expert report supporting his claims was forthcoming, the District Court did not abuse its

discretion in denying Nyhuis’ motion.

       Nyhuis also maintains, as he did in District Court, that an expert report is

unnecessary because the doctrine of res ipsa loquitur, which allows a jury to infer that

harm is caused by the negligence of a defendant where certain requirements are met,

applies to his case. We agree with the District Court that Nyhuis may not proceed under

this theory.2 Finally, Nyhuis challenges the District Court’s dismissal of two doctors based

upon a finding that they were independent contractors, as opposed to employees of the

Bureau of Prisons. Even if the doctors were employees, absent an expert report, Nyhuis

cannot maintain his claims against them.

       Accordingly, we will grant the Government’s motion to summarily affirm the



that Nyhuis’ administrative complaint does not discuss the placement of shackles on his
injured foot.
   2
   In Hightower-Warren, the Pennsylvania Supreme Court held that a plaintiff, who had
obtained expert testimony that the injury he suffered does not occur absent negligence by
a physician, had satisfied the elements of res ipsa loquitur, and established a prima facie
case of medical malpractice. Id. at 465-67. There is no such evidence here.

                                              4
District Court’s orders.




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