                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
KENNETH HINTON,                     )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )               Civil Action No. 09-1726 (RLW)
                                    )
UNITED STATES OF AMERICA,           )
                                    )
                  Defendant.        )
___________________________________ )


                                MEMORANDUM OPINION

       This matter is before the Court on defendant’s motion for summary judgment or,

alternatively, to stay discovery. For the reasons discussed below, the motion for summary

judgment will be granted.


                                      I. BACKGROUND

       Plaintiff brings this action under the Federal Tort Claims Act (“FCTA”), see 28 U.S.C. §§

2671-80, against the United States of America. His claims arise from medical treatment rendered

by two ophthalmologists employed by Unity Health Care, Inc. (“UHC”) while plaintiff was in the

custody of the District of Columbia Department of Corrections (“DOC”).1

       From October 22, 2006 through December 13, 2006, plaintiff was incarcerated at the

District of Columbia’s Central Detention Facility (“D.C. Jail”). Def.’s Mem. of P. & A. in Supp.

of its Mot. to Dismiss the Compl. or, Alternatively, for Summ. J. (“Def.’s Mem.”) [Dkt. #10], Ex.

1
   At all times relevant to the complaint, UHC was considered an employee of the Public Health
Service for purposes of the FTCA. Def.’s Mem. of P. & A. in Supp. of its Mot. to Dismiss the
Compl. or, Alternatively, for Summ. J., Ex. D-E.
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A (Memorandum for J&C File from C.J. Epley, Classification Computation Specialist,

Designation & Sentence Computation Center, Federal Bureau of Prisons, dated August 27, 2007).

On November 15, 2006, Dr. Marc Berry examined plaintiff’s eyes, diagnosed myopia and

presbyopia, and prescribed eyeglasses for which plaintiff was to be fitted.     Id., Ex. F (Chart

Summary) at 69-70. Plaintiff was released from the D.C. Jail on December 13, 2006, 28 days

after Dr. Berry’s examination, to an Arlington County, Virginia detainer. Id., Ex. A. “Because

[plaintiff] was released . . . on December 13, 2006, he was unable to be fitted for eyeglasses prior to

his release.” Id., Ex. B (Narrative of Jualenda Boschulte, M.D.) at 1.

       Between December 14, 2006 and April 2, 2007, plaintiff was not in DOC custody or under

UHC care. Plaintiff was returned to the D.C. Jail on April 3, 2007, Def.’s Mem., Ex. A, at which

time he underwent a medical examination, id., Ex. F at 71-76. On April 23, 2007, plaintiff

complained to medical staff that he needed eyeglasses, and he requested an appointment for an eye

examination. Id., Ex. F at 79-80. On June 4, 2007, Dr. Boschulte evaluated plaintiff, at which

time plaintiff reported that he had not received the eyeglasses prescribed by Dr. Berry in

November 2006. Id., Ex. B at 1. Dr. Boschulte diagnosed “a minor refractive error and

recommended him for eyeglass fitting.” Id., Ex. B at 1; see id., Ex. F at 83-84. The fitting took

place on July 9, 2007, and Dr. Boschulte ordered the eyeglasses on July 10, 2007. Id., Ex. B at 1;

see id., Ex. F at 94. Plaintiff received the eyeglasses either on August 6, 2007, id., Ex. B at 1, or

on August 16, 2007, Compl. ¶ 11, prior to his transfer to federal custody on August 22, 2007,

Def.’s Mem., Ex. B at 1.

       According to plaintiff, the eyeglasses he received were “not in compliance” with the

prescriptions the doctors wrote, Compl. ¶ 11, causing him to experience “blurred vision, sore eyes,


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eye pains, insomnia, cephala[l]gia, fatigue and [post-traumatic stress disorder],” id.¶ 15, as a result

of UHC’s alleged “lack of diligence and medical malpractice,” id. ¶ 13.       Further, he has asserted

that the eyeglasses given to him “facilitated or promoted the deterioration of [his] vision as well as

exacerbated [his] mental anguish, anxiety . . . and other medical discomfort.” Pl.’s Mem. of P. &

A. in Supp. of Pl.’s Opp’n to Def.’s Mot. for Summ. J. or, Alternatively, to Stay Discovery (“Pl.’s

Opp’n”) at 3. He has demanded compensatory and punitive damages totaling $2 million.

Compl. ¶¶ 13, 18.

       The Court granted in part and denied in part defendant’s first dispositive motion, noting the

existence of genuine issues of material fact precluding summary judgment at that time:

               On the current record, there remain genuine issues of material fact in
               dispute, among which are whether the eyeglasses plaintiff received
               contained the proper prescription, and whether UHC’s acts or
               omission either caused plaintiff’s eyesight to deteriorate or caused
               the other injuries plaintiff allegedly has suffered. These appear to
               be matters beyond the scope of a lay person’s understanding for
               which expert testimony may be required.

Hinton v. United States, 714 F. Supp. 2d 157, 162 (D.C. 2010). On July 27, 2010, the Court

issued a Scheduling and Procedures Order which, among other deadlines, required the parties to

provide expert witness reports pursuant to Fed. R. Civ. P. 26(a)(2) by October 18, 2010. Dkt. #31

at 6. On plaintiff’s motion, the Court extended this deadline to November 18, 2010. Minute

Order dated October 25, 2010. Defendant has renewed its motion for summary judgment,

arguing that, “[w]ithout expert testimony, Plaintiff cannot, as a matter of law, make out a prima

facie case of negligence and cannot prove his claims of medical malpractice.” Def.’s Mem. of P.

& A. in Supp. of its Renewed Mot. for Summ. J, or, Alternatively to Stay Disc. (“Def.’s Renewed

Mem.”) at 1.


                                                  3
                                            II.   DISCUSSION

                                     A. Summary Judgment Standard

       The Court grants summary judgment “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A material fact is one “that might affect the outcome of the suit under the governing law,”

and further, a court will consider a dispute as genuine if “the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A party opposing summary judgment “is obligated to produce affirmative evidence

supporting the challenged aspects of his claims by affidavit or other competent evidence.”

Mulhern v. Gates, 525 F. Supp. 2d 174, 186 (D.D.C. 2007). He must “do more than simply show

that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986), and cannot create a genuine dispute by relying on

conclusory assertions without any factual basis in the record. See Ass’n of Flight Attendants–

CWA v. U.S. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009). “Summary judgment for a

defendant is most likely when a plaintiff’s claim is supported solely by [his] own self-serving,

conclusory statements.” Bonieskie v. Mukasey, 540 F. Supp. 2d 190, 195 (D.D.C. 2008)

(citations omitted).

                                    B. Prima Facie Negligence Claim

       “The FTCA waives sovereign immunity ‘under circumstances where the United States, if a

private person, would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.’” Hornbeck Offshore Transp., LLC v. United States, 569 F.3d 506, 508

(D.C. Cir. 2009) (quoting 28 U.S.C. § 1346(b)(1)). Under District of Columbia law, a “plaintiff


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in a negligence action bears the burden of proof on three issues: the applicable standard of care, a

deviation from that standard by the defendant, and a causal relationship between that deviation and

the plaintiff's injury.” Toy v. District of Columbia, 549 A.2d 1, 6 (D.C. 1988) (internal quotation

marks and citations omitted); see also N.O.L. v. District of Columbia, 674 A.2d 498, 499 (D.C.

2010) (“The foundation of modern negligence law is the existence of a duty owed by the defendant

to the plaintiff. Negligence is a breach of duty; if there is no duty, there can be no breach, and

hence no negligence.”). To withstand a defendant’s motion for summary judgment in a medical

malpractice case, “the plaintiff must present a prima facie case establishing the applicable standard

of care, showing that the standard of care has been violated, and demonstrating a causal connection

between the violation and the damage suffered.” Gilbert v. Miodovnik, 990 A.2d 983, 988 (D.C.

2010).

         Expert testimony is not required if the alleged negligence falls “within the realm of

common knowledge and everyday experience.” Matthews v. District of Columbia, 387 A.2d 731,

735 (D.C. 1978). A prima facie case of negligence predicated on medical malpractice, however,

involves issues “distinctly related to some science, profession, or occupation,” District of

Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987), such that “expert testimony is usually

required to establish each of the elements[.]” Psychiatric Inst. of Washington v. Allen, 509 A.2d

619, 624 (D.C. 1986); see Eibl v. Kogan, 494 A.2d 640, 643 (D.C. 1985) (per curiam) (finding that

expert testimony was required in malpractice case arising from plaintiff’s exposure “to a complex

invasive procedure which required the application of both professional experience and highly

technical equipment”).

         Plaintiff asserts that “[t]here is facial plausibility in [his] complaint,” such that the Court


                                                    5
“can and should draw the reasonable inference that [d]efendant is liable . . . for the alleged

misconduct.” Pl.’s Opp’n at 4. He points to defendant’s failure to “directly refute many of [his

factual] assertions,” see id., and relies solely on his own statements to support his claim. See

generally id., Ex. A (Statement of Claim dated April 10, 2008) & Pl.’s Aff./Decl. in Opp’n to

Def.’s Mot. for Summ. J., or, Alternatively, to Stay Discovery. Although plaintiff does not

address the matter of an expert witness, he argues that defendant’s motion should be denied in

order that he “seek discovery of potentially favorable information” through, for example, the

deposition of Dr. Berry. Pl.’s Opp’n at 5. The time for discovery has passed, and at this stage of

the proceedings, the burden is on plaintiff to make out his prima facie case of malpractice.

       A trier of fact must determine not only the standard of care defendant owed to plaintiff but

also whether defendant deviated from it and whether “defendant’s negligence is more likely than

anything else to have been the cause (or a cause) of the plaintiff’s injuries,” Psychiatric Inst. of

Washington v. Allen, 509 A.2d at 624, among which are blurred vision, eye pain and soreness,

insomnia, cephalagia, fatigue and post-traumatic stress disorder. These are matters beyond the

realm of everyday experience. Cf. Kling v. Peters, 564 A.2d 708 (D.C. 1989) (board-certified

ophalmologist and eye surgeon testified as expert witness on causation in medical malpractice

action brought by patient who lost all vision in one eye). Absent expert testimony to establish the

elements of his negligence claim, summary judgment will be granted for defendant. See Eibl, 494

A.2d at 643 (affirming grant of summary judgment for defendant where plaintiff failed to name a

medical expert).

                                       III.   CONCLUSION


       Plaintiff has provided no credible evidence from which a reasonable juror could determine

                                                  6
the standard of care defendant owed plaintiff, whether defendant deviated from that standard, or

whether defendant’s negligence caused plaintiff’s injuries. Without expert testimony, plaintiff

cannot make out a prima facie case for medical malpractice. Accordingly, the Court will grant

summary judgment for defendant. An Order is issued separately.


                                                         /s/
DATE: July 25, 2011                            ROBERT L. WILKINS
                                               United States District Judge




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