                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          APR 5 2001
                            FOR THE TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

    OMAR MUHAMED TUSSHANI,

                Plaintiff-Appellant,

    v.                                                 No. 00-8031
                                                   (D.C. No. 98-CV-122)
    UNITED STATES OF AMERICA,                            (D. Wyo.)

                Defendant-Appellee.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.



         Plaintiff Omar Muhamed Tusshani brought this action under the Federal

Tort Claims Act (“FTCA”) alleging malpractice by government medical personnel

while he was in the pretrial custody of the Bureau of Prisons. The district court

granted summary judgment to the government on the basis that Tusshani failed to

provide reliable expert testimony that his injuries were proximately caused by the


*
      The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
government’s actions. We review the district court’s grant of summary judgment

de novo, Wolf v. Prudential Ins. Co. of Am.        , 50 F.3d 793, 796 (10th Cir. 1995),

and its evidentiary rulings for abuse of discretion,     Summers v. Missouri Pac. R.R.

Sys. , 132 F.3d 599, 603 (10th Cir. 1997) (decision to admit or exclude expert

testimony reviewed for abuse of discretion);        Sports Racing Servs., Inc. v. Sports

Car Club of Am., Inc. , 131 F.3d 874, 894 (10th Cir. 1997) (evidentiary rulings

at summary judgment stage reviewed for abuse of discretion). Applying these

standards, we affirm the district court’s decision with respect to Tusshani’s claim

of permanent injury but reverse with respect to his claim of non-permanent injury.

       In October 1996, while he was a pretrial detainee being held on federal

charges, Tusshani slipped and fell at the Laramie County Detention Facility in

Wyoming. He suffered a fracture of one or more of his vertebrae and paraplegia

and subsequently underwent surgery on his spine. Following the surgery, he was

receiving rehabilitative treatment under the care of Dr. Victoria Vernon at

Spalding Rehabilitation Hospital, a private medical facility in Wyoming, when the

U.S. Marshals Service petitioned the District Court in Wyoming to have him

transferred to a federal facility. Over Dr. Vernon’s objections, the court granted

the request, and Tusshani was transferred in December 1996 to the Federal

Medical Facility run by the U.S. Bureau of Prisons in Fort Worth, Texas, where

he remained for the next seven months. In July 1997, he was transferred back to


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the Laramie County Detention Facility for trial. After several days in this facility,

he was moved back to the Spalding Rehabilitation Hospital and placed again

under the care of Dr. Vernon. He remained at Spalding, receiving additional

treatment, for three more months before the indictment against him was dismissed

and he was released from federal custody.

      Tusshani then brought this action against the government under the FTCA

alleging that his transfer to the federal facility in Fort Worth and the care he

received were negligent. In particular, he contends that he received insufficient

and inadequate physical therapy at the federal facility and that, as a result, his

condition, including his ability to get around without a wheelchair, deteriorated

markedly during this time. He alleges that the government’s actions caused

a variety of harm and injuries including his permanent restriction to a wheelchair.

      Following discovery, the government moved for summary judgment on the

ground, inter alia, that Tusshani could not establish a prima facie case of medical

malpractice because he could not meet his burden of proving the government’s

actions proximately caused his inability to ambulate. The district court agreed,

holding that the testimony of Tusshani’s expert, Dr. Vernon, was insufficient

under Daubert v. Merrell Dow Pharmaceuticals, Inc.     , 509 U.S. 579 (1993), to

establish a reliable, scientific basis for his claim that the government’s negligence




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“caused his current, wheelchair-bound condition.” (Appellant’s App. at 498.)   1



The court therefore granted summary judgment in favor of the government.

      Tusshani raises two issues on appeal. First, he contends that the district

court erred in concluding that Dr. Vernon’s testimony was insufficient under

Daubert to establish that the government proximately caused his inability to

ambulate. In his complaint, Tusshani alleged that the government’s negligent

provision of physical therapy while he was at the Fort Worth facility “directly and

proximately resulted in the Plaintiff being permanently restricted to a wheel chair

rather than having the ability to ambulate.” (Appellant’s App. at 6–7.) At her

deposition, Dr. Vernon, whom Tusshani had designated as his expert, testified

that had the therapy he had been receiving at Spalding not been interrupted by his

transfer to Fort Worth, he would be more functional. However, on further

questioning, she testified that she did not know of any physiological reason why a

temporary cessation of physical therapy, which is essentially what Tusshani

claims occurred while he was at the Fort Worth facility, would prevent him from

later achieving his maximum level of ambulation through resumed therapy.       The


1
       The district court did not resolve the question of whether Wyoming or
Texas law applied to Tusshani’s claim but determined that under both states’ law,
he had to present “expert testimony as to the appropriate standard of care, whether
it was met, and whether a failure to meet the standard of care proximately caused
the plaintiff’s injuries.” (Appellant’s App. at 496 (citing Meyer v. Mulligan , 889
P.2d 509, 516 (Wyo. 1995); Blan v. Ali , 7 S.W.3d 741, 744 (Tex. Ct. App.
1999)).) Plaintiff does not challenge this determination on appeal.

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district court relied on this testimony, along with the absence of any relevant

neurological evidence, to hold that “Tusshani has presented no reliable

expert testimony that such a failure to provide therapy caused his current,

wheelchair-bound condition.” (   Id. at 498.)

      Under Daubert , the district court has the obligation to “ensure that any and

all scientific testimony or evidence admitted is not only relevant, but reliable.”

509 U.S. at 589. We cannot say that the district court’s decision to exclude as

unreliable Dr. Vernon’s testimony regarding causation of permanent injury

constituted an abuse of discretion.

      Tusshani’s second contention is that even if the district court were correct

in its conclusion that he did not meet his burden of proving causation with respect

to his permanent injury, the court should not have granted summary judgment on

the entire case because his permanent injury was only one aspect of the harm he

suffered from the government’s negligence. Although his argument is not

particularly clear, Tusshani contends that the government’s action or inaction at

least caused temporary aggravation of his condition and a delay in his recovery.

The district court did not address Tusshani’s claim of non-permanent injury.

      The government contends this argument as to non-permanent injury should

be rejected because Tusshani failed to present expert opinion evidence to survive

summary judgment on this issue. Because of the limited grounds on which the


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government moved for summary judgment, we find it questionable whether

Tusshani was obligated to present any evidence on this issue.     2
                                                                      In any event,

Tusshani did produce evidence of causation regarding his non-permanent injuries.

Dr. Vernon testified that

      based on my training and my experience and the literature, a spinal
      cord injured individual should be admitted to an acute rehab facility
      shortly after they sustained their spinal cord injury, and the intensive
      therapy should be given that first six months. That’s in all the
      textbooks. That’s a standard of care.

(Appellant’s App. at 168.) She described Tusshani’s state on his return to

Spalding from Fort Worth as “appalling” and stated that “[h]e lost a significant

amount of strength in his lower extremities,” he had been provided with a very ill-

fitting wheelchair, his posture was poor, and he had a severe kyphosis. (       Id. at

91.) She further testified that based on his history, her objective findings on

physical examination, and the lack of evidence indicating he had received

physical therapy at Fort Worth, it was her opinion that Tusshani had not received



2
       The government’s opening summary judgment brief at best only vaguely
asserted, without citation to relevant authority or evidence, that Tusshani could
not prove causation. In its summary judgment reply brief, the government
asserted, this time with citation to authority and evidence, that Tusshani could not
prove it caused any permanent injury. It is thus questionable whether Tusshani
was under any obligation to present evidence relating to his claim of
non-permanent injury. See Tavery v. United States, 32 F.3d 1423, 1427 n.5
(10th Cir. 1994) (“When a party moves for summary judgment on ground A, his
opponent is not required to respond to ground B—a ground the movant might
have presented but did not.”) (quotation omitted).

                                           -6-
appropriate physical therapy at Fort Worth and that this lack of therapy caused his

deteriorated condition. This condition included severely compromised mobility

and “decline[] in strength and function.” (     Id. at 168.) She further testified with

respect to a cessation of or inappropriate therapy that “[i]t’s hard work, and it’s

also very expensive to have to go back and recoup all the ground that you’ve lost

in developing, you know, weakened muscles and contractures.” (         Id. at 422.)

       Viewing the evidence in the light most favorable to Tusshani, as the

party opposing summary judgment,       see Wolf , 50 F.3d at 796, we conclude that

the government did not meet its burden of showing entitlement to summary

judgment on Tusshani’s claim that the government caused non-permanent injuries.

Dr. Vernon, as plaintiff’s designated medical expert, testified as to the

appropriate standard of care and concluded that the government breached this

standard and that the breach caused non-permanent injuries to Tusshani. Unlike

the situation with respect to Tusshani’s claim of permanent injury, there is no

evidence undermining Dr. Vernon’s opinions regarding his non-permanent

injuries. Accordingly, the district court should not have granted summary

judgment on this issue.




                                              -7-
      The judgment of the district court is AFFIRMED in part and REVERSED

in part, and the case is REMANDED to the district court for further proceedings

consistent with this order and judgment.



                                                  Entered for the Court



                                                  Carlos F. Lucero
                                                  Circuit Judge




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