                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 24 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    CANDI PARKER,

                Plaintiff - Appellant,

    v.                                                   No. 02-3099
                                                  (D.C. No. 00-CV-2328-CM)
    CENTRAL KANSAS MEDICAL                               (D. Kansas)
    CENTER; WILLIAM SLATER, M.D.,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before EBEL , BALDOCK , and LUCERO , Circuit Judges.



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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 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      This order and judgment is not binding precedent, except under the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 Candi Parker appeals from separately-filed summary

judgments granted in favor of both defendants/appellees on her state-law claims

for medical malpractice and for violation of the Emergency Medical Treatment

and Active Labor Act, 42 U.S.C. § 1395(dd). Our jurisdiction arises under

28 U.S.C. § 1291, and we affirm.

                       I. Factual and procedural history

      The facts are essentially undisputed. Mrs. Parker was admitted to Central

Kansas Medical Center (“CKMC”) by her treating physician, Dr. Fieser, for

treatment of severe injuries suffered in an accident. Dr. Fieser contacted

defendant Dr. Slater, a surgeon, who initially agreed to treat Mrs. Parker.

Dr. Slater later refused to see Mrs. Parker because she had not been brought down

to the emergency room at his request. When asked to reconsider his decision, he

refused to treat her unless she turned over to him (instead of Dr. Fieser) her

medical records and all responsibility for her care and treatment. Mrs. Parker

instead opted to transfer to another hospital by ambulance, where she underwent

several surgeries and developed complications. She later sued defendants,

claiming that the delay in her treatment necessitated by the transfer and her

transfer while she was in an unstable condition contributed to her medical

complications.




                                         -2-
       Mrs. Parker timely identified Dr. Fieser as a witness in her suit. She did

not specifically identify Dr. Fieser as an expert witness, however, in subsequent

disclosures made pursuant to Federal Rule of Civil Procedure 26(a)(2). After

defendants deposed Dr. Fieser and after the close of the discovery period, they

each moved for summary judgment, asserting that Mrs. Parker had failed to

present expert medical testimony necessary to establish causation. In response

to Dr. Slater’s motion, Mrs. Parker submitted Dr. Fieser’s affidavit,   1
                                                                            in which,

in the last two paragraphs, Dr. Fieser expressed an opinion that Dr. Slater’s

refusal to see or examine Mrs. Parker after he had agreed to treat her fell below

the standard of care and that a delay in treatment led to Mrs. Parker’s medical

complications.



1
       The last three clauses of Dr. Fieser’s affidavit state:

       22. Mrs. Parker had no other choice than to transfer to Hutchinson
       Hospital because she was not receiving any care from Central Kansas
       Medical Center and Dr. Slater left the hospital without providing any
       care or examination to Mrs. Parker.

       23. Dr. Slater’s refusal to see or even examine Mrs. Parker fell
       below the standard of care for our community.

       24. It is also my professional belief that the delay in treatment lead
       to Mrs. Parker’s medical complications immediately following her
       accident and the complications that she continues to have on an
       ongoing basis.

Aplt. App. at 49.

                                            -3-
      Defendants each moved to strike the last three paragraphs of Dr. Fieser’s

affidavit. After denying Mrs. Parker’s motion for an extension of time to respond

to the motions to strike the affidavit, the district court held that, because she had

not been specifically designated as an expert witness, Dr. Fieser could not provide

expert testimony regarding causation or treatment beyond the scope of her

treatment of Mrs. Parker, and that any conclusions she drew “must fall within the

province of a lay witness who has personal knowledge of the situation.”      Parker

v. Cent. Kan. Med. Ctr. , 178 F. Supp. 2d 1205, 1210, 1213 (D. Kan. 2001).

The court struck the three clauses of the affidavit. The court also denied

Mrs. Parker’s request that, if the court decided to strike the affidavit, it would

also grant Mrs. Parker an additional sixty days in which to obtain an expert

opinion. The court concluded that Mrs. Parker had failed to show good cause

to extend the scheduling order’s deadline for identifying experts. Mrs. Parker

does not appeal from that ruling. The court granted Mrs. Parker’s motion for

an extension of time in which to respond to CKMC’s motion for summary

judgment.

      The district court subsequently granted summary judgment in favor of

Dr. Slater. The court concluded that, because (1) Mrs. Parker had to produce

expert testimony regarding both the standard of care and causation to support her

medical malpractice claim; and (2) Dr. Fieser’s affidavit regarding those issues


                                           -4-
had been stricken, Mrs. Parker had failed to timely produce expert testimony to

support a claim that Dr. Slater was negligent and that his alleged negligence more

likely than not caused Mrs. Parker’s injuries.        Id. at 1214-15.

       In its order striking Dr. Fieser’s affidavit and granting summary judgment

to Dr. Slater, the district court ordered Mrs. Parker to file her response to

CKMC’s motion for summary judgment within ten days of the filing of the order.

The court warned her that failure to do so would result in CKMC’s motion being

decided and granted as an uncontested motion.          Id. at 1216.

       Counsel for Mrs. Parker filed her response to CKMC’s motion for

summary judgment thirteen days after the order was entered on his assumption

that Federal Rule of Civil Procedure 6(e) allowed for three days’ mailing time to

be added to the ten-day period. Noting that the Tenth Circuit has adopted a

plain-meaning rule that precludes application of Rule 6(e) to orders requiring a

party to take action within a certain number of days of the order being filed, the

district court held that the response was untimely.       Parker v. Cent. Kan. Med.

Ctr. , No. CIV. A. 00-2328-CM, 2002 WL 398738, at *2 (D. Kan. Feb. 12, 2002).

The court observed that granting summary judgment for plaintiff’s failure to

timely respond rendered “a harsh result,” but felt “constrained by” the rules of

civil procedure and Tenth Circuit law interpreting Rule 6(e) to strike the untimely

response and grant summary judgment as unopposed.             Id.


                                            -5-
                                       II. Analysis

       A. Striking Dr. Fieser’s affidavit

       We review a district court’s exclusion of evidence for an abuse of
       discretion. In reviewing a court’s determination for abuse of
       discretion, we will not disturb the determination absent a distinct
       showing it was based on a clearly erroneous finding of fact or an
       erroneous conclusion of law or manifests a clear error of judgment.

Cartier v. Jackson , 59 F.3d 1046, 1048 (10th Cir. 1995);       and see Nielsen v.

Moroni Feed Co. , 162 F.3d 604, 606 n.3 (10th Cir. 1998) (reviewing denial of

motion to strike affidavit for abuse of discretion). Because the district court’s

decision to strike Dr. Fieser’s affidavit was based on its interpretation of the

federal rules of evidence and Tenth Circuit precedent, we review its interpretation

of the law de novo.     See Jacobsen v. Deseret Book Co.    , 287 F.3d 936, 953-54

(10th Cir.) (stating that district court abuses its discretion if its decision is based

on an erroneous conclusion of law or would result in fundamental unfairness in

the trial of the case, and reviewing de novo whether the district court properly

considered and applied four factors in determining whether to strike expert

reports for violation of Rule 26(a) disclosure requirements),      cert. denied ,

123 S. Ct. 623 (2002).

       The district court held that, under   Davoll v. Webb , 194 F.3d 1116, 1138-39

(10th Cir. 1999), and    United States v. Anthony , 944 F.2d 780, 782-83 (10th Cir.

1991), a treating physician who has not been identified as an expert witness


                                             -6-
pursuant to Rule 26(a)(2) “may not provide testimony beyond the scope of her

treatment of plaintiff,” and that Dr. Fieser’s conclusions “must fall within the

province of a lay witness.”    Parker , 178 F. Supp. 2d at 1210. The court

concluded that Dr. Fieser’s opinion as to the standard of care and causation was

expert testimony relating to treatment beyond that which was incidental to her

personal care and treatment.    Id. The court struck the testimony because

Mrs. Parker failed to disclose the opinions in her Rule 26(a)(2)(B) disclosures.

       On appeal, Mrs. Parker argues that the court struck the affidavit because

CKMC submitted Dr. Fieser’s subsequent affidavit, in which she disavowed any

intention to offer an opinion on causation. The district court’s order, however,

clearly states the basis of the court’s ruling, and we reject this argument.

       Mrs. Parker alternatively argues that the court’s ruling should be reversed

because, under Weese v. Schukman , 98 F.3d 542 (10th Cir. 1996), a physician

testifying only as a lay witness may testify regarding standard of care and

causation. Weese is distinguishable on its facts. There, the defendant doctor

testified as to the standard of care and causation regarding       his treatment of the

plaintiff, “based on his experience . . . [and to aid the jury’s] understanding of his

decision making process in the situation.”         Id. at 550. By contrast, Dr. Fieser’s

affidavit related to the standard of care regarding another physician’s refusal to

treat and to the causation of complications allegedly resulting from delay in


                                             -7-
treatment. Dr. Fieser should have been identified as an expert witness and

Mrs. Parker should have disclosed that Dr. Fieser would testify as to the standard

of care and causation. Instead, Mrs. Parker never identified Dr. Fieser as an

expert, and her final witness disclosures stated only that Dr. Fieser would be a

witness regarding “[m]edical treatment and future medical treatment and costs.”

Aplee. Supp. App., Vol. I at 22. Mrs. Parker has failed to demonstrate that the

district court erred in striking the affidavit.

       B. Summary judgment in favor of Dr. Slater

       Mrs. Parker’s arguments supporting her claim that the court erred in

granting summary judgment are based on the premise that Dr. Fieser’s affidavit

was improperly stricken.      See Aplt. Br. at 9-10. But her one-paragraph argument

urging reversal challenges only the judgment in favor of Dr. Slater on the claim

for intentional infliction of emotional distress.   See id. at 10. Without citing to

the record or to applicable case law,     see SEC v. Thomas , 965 F.2d 825, 827

(10th Cir. 1992) (stating that this court will not “sift through” the record to find

support for the claimant’s arguments), Mrs. Parker baldly asserts that she made

a prima facie case for extreme and outrageous conduct as a matter of law,

requiring reversal of summary judgment. She addresses neither the district

court’s ruling granting summary judgment because Mrs. Parker “failed to provide

evidence of extreme and severe emotional distress resulting from Dr. Slater’s


                                              -8-
conditional offer to treat her” nor its conclusion that testimony that Mrs. Parker

was “extremely upset” and that nurses attempted to calm her down when she was

told of Dr. Slater’s condition of treatment was not sufficient as a matter of law.

178 F. Supp. 2d at 1216. Arguing that a court erred “without advancing reasoned

argument as to the grounds for the appeal” is insufficient appellate argument, and

we reject Mrs. Parker’s claim without further discussion.   Am. Airlines v.

Christensen , 967 F.2d 410, 415 n.8 (10th Cir. 1992).

       C. Judgment in favor of CKMC for failure to timely file response

       For the reasons stated in the district court’s order of February 12, 2002,

we agree that Mrs. Parker’s response to CKMC’s motion for summary judgment

was untimely. The cases cited on appeal by Mrs. Parker regarding application of

Federal Rule of Civil Procedure 6(e) are distinguishable because they relate to

situations in which a respondent is given time to respond after service of a

pleading.

       We recently fully analyzed the practice of the Kansas district courts

in deeming an uncontested motion for summary judgment as confessed pursuant

to local rules and granting the motion without performing either a full

summary-judgment analysis required by Federal Rule of Civil Procedure 56(c) or

a sanction analysis required by   Meade v. Grubbs , 841 F.2d 1512 (10th Cir. 1988).

See Reed v. Nellcor Puritan Bennett    , 312 F.3d 1190 (10th Cir. 2002). We held


                                           -9-
that, although the court could consider the motion to be uncontested for lack of

a timely response, it could not grant summary judgment under Rule 56(c) unless

the moving party had met its initial burden of production         and demonstrated its

entitlement to judgment as a matter of law.          Id. at 1194-95.

       Alternatively, we held that, if a court desired to grant summary judgment as

a sanction, it must consider those factors set forth in       Meade and Hancock v. City

of Okla. City , 857 F.2d 1394, 1396 (10th Cir. 1988).         Id. at 1195-96. We

explained that “[t]he purpose of [Kansas Local] Rule 7.4 is not to impose or

authorize a sanction for a party’s failure to prosecute or defend . . . [but] to

facilitate the trial court’s disposition of motions.”       Id. at 1195.

       The district court noted that its decision to grant summary judgment on the

sole basis that it was uncontested “renders a harsh result,” but felt “constrained

by the Federal Rules of Civil Procedure and by the law in this Circuit” to do so.

Parker , 2002 WL 398738, at *2. We hold that the court erred in granting

summary judgment on this basis.

       CKMC urges as an alternative basis for affirmance of judgment in its favor

the fact that its motion was based on the “complete absence of expert medical

testimony to establish a causal link between Plaintiff’s medical complications and

the alleged negligence or EMTALA violations by CKMC.” CKMC’s Br. at 26.

It also cites relevant case law establishing the necessity of expert medical


                                              -10-
testimony on causation issues and notes that the district court has determined that

Mrs. Parker has failed to proffer any admissible expert medical testimony on that

issue. Mrs. Parker did not respond to these arguments.

      While we usually will remand a case in which summary judgment has been

erroneously granted on procedural grounds, as mentioned above, the district court

denied Mrs. Parker’s motion for an extension of time in which to respond to

CKMC’s motion to strike Dr. Fieser’s affidavit. It also denied her requests to

reopen discovery and for a sixty-day extension of time in which to find another

expert. Mrs. Parker does not challenge these rulings.

      The record, therefore, discloses a failure to properly or timely identify

a medical expert witness, no expert medical testimony establishing a nexus

between CKMC’s alleged negligence or the alleged violation of EMTALA and

Mrs. Parker’s medical complications, and no opportunity to cure the defect, as

reopening of discovery has been denied. Such a record would compel a grant of

summary judgment in CKMC’s favor.      See McKnight v. Kimberly Clark Corp        .,

149 F.3d 1125, 1128 (10th Cir. 1998) (holding that, where nonmoving party bears

burden of proof on issue, it must “make a showing sufficient to establish the

existence of an element essential to that party’s case in order to survive summary

judgment”) (quotation omitted). Since the district court has already granted

summary judgment in favor of Dr. Slater on this very ground, remand for further


                                        -11-
proceedings would be futile and a waste of judicial resources.    See Ross v. United

States Marshal , 168 F.3d 1190, 1194 n.2 (10th Cir. 1999) (court may affirm the

district court’s judgment on ground not relied on by the district court if supported

by the record, “provided the litigants have had a fair opportunity to develop the

record”) (quotation omitted).

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.


                                                       Entered for the Court



                                                       Bobby R. Baldock
                                                       Circuit Judge




                                           -12-
