United States District Court, N.D. Iowa, Western Division
JERRI L. BAILEY Plaintiff,
CHEROKEE REGIONAL MEDICAL CENTER, Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
LEONARD T. STRAND, CHIEF JUDGE
case is before me on a motion (Doc. No. 19) for summary
judgment filed by defendant Cherokee Regional Medical Center
(CRMC). Plaintiff Jerri L. Bailey (Bailey) has not filed a
resistance and the deadline for any resistance was October
23, 2017. The motion is ready for decision.
December 14, 2016, Bailey filed a pro se complaint (Doc. No.
1) against CRMC. Bailey alleges that she was at CRMC for
physical therapy on December 15, 2014. After finishing
therapy she slipped and fell on her way to the shower
/changing room, injuring her left knee and breaking her left
femur. She alleges that CRMC breached a duty of care and that
she suffered damages as a result. The jury trial of this
matter is scheduled to begin August 13, 2018.
SUMMARY JUDGMENT STANDARDS
party may move for summary judgment regarding all or any part
of the claims asserted in a case. Fed.R.Civ.P. 56(a). Summary
judgment is appropriate when "the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is
entitled to a judgment as a matter of law." Celotex
Corp. v. Catrett, 477 U.S. 317, 322(1986).
material fact is one that '"might affect the outcome
of the suit under the governing law.'" Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus,
"the substantive law will identify which facts are
material." Id. Facts that are
"critical" under the substantive law are material,
while facts that are "irrelevant or unnecessary"
are not. Id.
issue of material fact is genuine if it has a real basis in
the record, Hartnagel v. Norman, 953 F.2d 394, 395
(8th Cir. 1992) (citing Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), or
when "'a reasonable jury could return a verdict for
the nonmoving party' on the question." Woods v.
Daimler Chrysler Corp., 409 F.3d 984, 990 (8th Cir.
2005) (quoting Anderson, 477 U.S. at 248). Evidence
that only provides "some metaphysical doubt as to the
material facts, " Matsushita, 475 U.S. at 586,
or evidence that is "merely colorable" or "not
significantly probative, " Anderson, 477 U.S.
at 249-50, does not make an issue of material fact genuine.
such, a genuine issue of material fact requires
"sufficient evidence supporting the claimed factual
dispute" so as to "require a jury or judge to
resolve the parties' differing versions of the truth at
trial." Anderson, 477 U.S. at 248-49. The party
moving for entry of summary judgment bears "the initial
responsibility of informing the court of the basis for its
motion and identifying those portions of the record which
show a lack of a genuine issue." Hartnagel, 953
F.2d at 395 (citing Celotex, 477 U.S. at 323). Once
the moving party has met this burden, the nonmoving party
must go beyond the pleadings and by depositions, affidavits,
or otherwise, designate specific facts showing that there is
a genuine issue for trial. Mosley v. City of
Northwoods, 415 F.3d 908, 910 (8th Cir. 2005). The
nonmovant must show an alleged issue of fact is genuine and
material as it relates to the substantive law. If a party
fails to make a sufficient showing of an essential element of
a claim or defense with respect to which that party has the
burden of proof, then the opposing party is entitled to
judgment as a matter of law. Celotex, 477 U.S. at
determining if a genuine issue of material fact is present, I
must view the evidence in the light most favorable to the
nonmoving party. Matsushita, 475 U.S. at 587-88.
Further, I must give the nonmoving party the benefit of all
reasonable inferences that can be drawn from the facts.
Id. However, "because we view the facts in the
light most favorable to the nonmoving party, we do not weigh
the evidence or attempt to determine the credibility of the
witnesses." Kammueller v. Loomis, Fargo &
Co., 383 F.3d 779, 784 (8th Cir. 2004). Instead,
"the court's function is to determine whether a
dispute about a material fact is genuine." Quick v.
Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir.
has not responded to CRMC's motion for summary judgment.
If the nonmoving party fails to respond, the court may enter
summary judgment if appropriate. Donnell v. City of Cedar
Rapids, Iowa, 437 F.Supp.2d 904, 928 (N.D. Iowa 2006);
Sherk v. Adesa Atlanta, LLC, 432 F.Supp.2d 1358,
1374 (N.D.Ga. 2006). If the moving party has met its burden
of demonstrating no genuine issue of material fact and the
nonmoving party has failed to respond, the district court is
not required to search the record to find an issue of
material fact. Barge v. Anheuser-Busch, Inc., 87
F.3d 256, 260 (8th Cir. 1996); see also Peters v.
Woodbury County, Iowa, 979 F.Supp.2d 901, 966 (N.D. Iowa
2013) ("failure to respond at all to a movant's
assertion ... is the clearest way in which a non-movant can
fail to meet its burden" to show specific facts of a
genuine issue for trial). However, for the reasons discussed
below, I find that CRMC has not met its initial burden of
demonstrating no genuine issue of material fact.
bases its motion on the fact that Bailey has not disclosed
any expert medical opinion testimony. Doc. No. 19-1. CRMC
contends Bailey is alleging medical negligence by basing her
claim on CRMC's "medical judgments" and argues
that such a claim requires expert testimony to establish the
proper standard of care. Doc. No. 19 at 1-2. CRMC is
generally correct with respect to the expert testimony
requirement in medical negligence cases. See Kennis v.
Mercy Hosp. Medical Center,491 N.W.2d 161, 167 (Iowa
1992) ("the nature of this malpractice action requires
expert testimony to establish defendants'
negligence"); Thompson v. Embassy Rehabilitation and
Care Center,604 N.W.2d 643, 646 (Iowa 2000) ...