United States District Court, Northern District of Indiana, Hammond Division
CONNIE REYES and DANIEL V. REYES, as parents of S.R., a minor child, Plaintiffs,
WILLIAM J. RUCKER, DDS, Defendant,
OPINION AND ORDER
PAUL R. CHERRY,
This matter is before the Court on Defendant’s Motion for Summary Judgment [DE 52], filed by Defendant Willie J. Rucker, DDS (incorrectly identified as William J. Rucker, DDS) on October 31, 2014. For the reasons set forth below, the Court grants the Motion for Summary Judgment.
On April 19, 2013, Plaintiffs Connie Reyes and Daniel Reyes, as parents of S.R., a minor child, filed a Complaint against Defendant Willie J. Rucker, DDS, alleging that Dr. Rucker was negligent in the dental care and treatment of S.R. Specifically, Plaintiffs allege that Dr. Rucker’s treatment and care of S.R. fell below the applicable standard of care because of his failure to recognize and diagnose S.R.’s submandibular abscess, his failure to immediately treat S.R.’s submandibular abscess, and his failure to immediately refer S.R. to an oral surgeon to get proper treatment for a submandibular abscess. They allege that, as a direct and proximate result of Dr. Rucker’s negligence, S.R. endured pain and suffering and permanent scarring to her face.
Dr. Rucker filed an Answer on July 8, 2013. Plaintiffs filed an Amended Complaint on October 1, 2013, to which Dr. Rucker filed an Answer on October 8, 2013.
On August 1, 2013, the Court set a deadline of March 30, 2014, for Plaintiffs’ expert witness disclosures and reports and set a discovery deadline of July 30, 2014. On March 28, 2014, the Court granted an extension of the deadline for Plaintiffs’ expert witness disclosures and reports to May 28, 2014, and of the discovery deadline to August 29, 2014. On May 28, 2014, Plaintiffs delivered to Dr. Rucker the report of their dental expert, Nicholas Panomitros, DDS, MA, JD, LLM. Discovery closed on August 29, 2014. On September 18, 2014, twenty days after discovery closed, Plaintiffs faxed an Addendum to Expert Report signed by Dr. Panomitros on September 17, 2014. On September 23, 2014, Dr. Rucker filed a Motion to Strike Plaintiffs’ Addendum to Expert Report, which the Court granted on October 2, 2014, striking the September 17, 2014 Addendum as untimely and not harmless.
On October 31, 2014, Dr. Rucker filed the instant Motion for Summary Judgment as well as a Defendant’s Motion to Exclude. Plaintiffs filed a response to the Motion for Summary Judgment on November 26, 2014, and Dr. Rucker filed a reply and a supplemental designation of evidence on December 9, 2014. Plaintiffs did not respond to the Motion to Exclude.
The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).
SUMMARY JUDGMENT STANDARD
The Federal Rules of Civil Procedure mandate that motions for summary judgment be granted “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). Rule 56 further requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). “[S]ummary judgment is appropriate—in fact, is mandated—where there are no disputed issues of material fact and the movant must prevail as a matter of law. In other words, the record must reveal that no reasonable jury could find for the non-moving party.” Dempsey v. Atchison, Topeka, & Santa Fe Ry. Co., 16 F.3d 832, 836 (7th Cir. 1994) (citations and quotations omitted).
A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323; Fed.R.Civ.P. 56(c). The moving party may discharge its initial responsibility by simply “‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. When the nonmoving party would have the burden of proof at trial, the moving party is not required to support its motion with affidavits or other similar materials negating the opponent’s claim. Celotex, 477 U.S. at 323, 325; Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 n.3 (7th Cir. 1994); Fitzpatrick v. Catholic Bishop of Chi., 916 F.2d 1254, 1256 (7th Cir. 1990). However, the moving party, if it chooses, may support its motion for summary judgment with affidavits or other materials, and, if the moving party has “produced sufficient evidence to support a conclusion that there are no genuine issues for trial, ” then the burden shifts to the nonmoving party to show that an issue of material fact exists. Becker v. Tenenbaum-Hill Assoc., 914 F.2d 107, 110-111 (7th Cir. 1990) (citations omitted); see also Hong v. Children’s Mem’l Hosp., 993 F.2d 1257, 1261 (7th Cir. 1993).
Once a properly supported motion for summary judgment is made, the non-moving party cannot resist the motion and withstand summary judgment by merely resting on its pleadings. See Fed. R. Civ. P. 56(e); Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). Rule 56(e) provides that “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion [or] grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it . . . .” Fed.R.Civ.P. 56(e)(2), (3); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). Thus, to demonstrate a genuine issue of fact, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to the material facts, ” but must “come forward with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)).
In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences in favor of that party. See Anderson, 477 U.S. at 255; Srail v. Vill. of Lisle, 588 F.3d 940, 948 (7th Cir. 2009); NLFC, Inc. v. Devcom Mid-Am., Inc., 45 F.3d 231, 234 (7th Cir. 1995). A court’s role is not to evaluate the weight of the evidence, to judge the credibility of witnesses, or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. See Anderson, 477 U.S. at 249-50.
A. Dental Treatment
This case arises out of dental care Defendant Willie J. Rucker, DDS provided to S.R., a minor, at United Dental Centers on April 25, 2011. Dr. Rucker was an independent contractor dentist for United Dental Centers.
On April 25, 2011, accompanied by her mother, S.R. presented to the offices of United Dental Centers in Merrillville, Indiana, complaining of molar pain. Dr. Rucker examined S.R., and a periapical x-ray was taken of tooth #18, which is in the lower left jaw, because S.R. had a broken tooth. The periapical x-ray demonstrated a cavity in tooth #18 that went into the nerve. Dr. Rucker determined that tooth #18 was nonrestorable and could not be saved because, once the decay was removed, there would not be enough tooth above the gum to hold a filling. Dr. Rucker recommended that tooth #18 be extracted. Plaintiff Connie Reyes signed an Oral Surgery and Dental Extractions Informed Consent Form. Connie Reyes and S.R. state in their Affidavits offered in opposition to summary judgment that Dr. Rucker did not tell them of any other treatment options.
That same day, Dr. Rucker extracted tooth #18 using forceps. Dr. Rucker did not document the possibility of infection in his treatment notes. When asked at his deposition whether he made a decision as to whether the area around Tooth 18 was infected or not, Dr. Rucker testified that “there was the possibility of some infection, not exact.” (Pl. Resp., ...