Derosa v. Blood Systems, Inc.

298 F.R.D. 661, 2014 WL 1379755, 2014 U.S. Dist. LEXIS 48367
CourtDistrict Court, D. Nevada
DecidedApril 8, 2014
DocketNo. 2:13-CV-137 JCM (NJK)
StatusPublished

This text of 298 F.R.D. 661 (Derosa v. Blood Systems, Inc.) is published on Counsel Stack Legal Research, covering District Court, D. Nevada primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derosa v. Blood Systems, Inc., 298 F.R.D. 661, 2014 WL 1379755, 2014 U.S. Dist. LEXIS 48367 (D. Nev. 2014).

Opinion

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant Blood Systems, Inc.’s (“BSI”) motion for summary judgment. (Doc. # 32). Plaintiff Susan De Rosa filed a response in opposition (doc. # 37), and BSI filed a reply (doe. # 40).

I. Background

In the instant action, plaintiff Susan De Rosa seeks to recover damages based on injuries caused by BSI’s alleged medical malpractice.

BSI is a nonprofit corporation that operates community blood banks in Nevada and other parts of the United States. On or about June 10, 2012, plaintiff attempted to donate blood at a BSI facility in Las Vegas, Nevada. Plaintiff had frequently donated blood prior to that date, as her 0 negative blood type is in extremely high demand.

The process by which blood banks draw blood is “phlebotomy.” During the phlebotomy procedure on June 10, 2012, the BSI phlebotomist inserted a needle into plaintiffs elbow crease. After the needle was in place, the phlebotomist noticed that the blood flow was insufficient and tried to stimulate the flow by rotating the needle. However, even then the blood flow was inadequate, and the phlebotomist discontinued the procedure, instructing plaintiff to return on a later date.

Plaintiff alleges that the phlebotomist’s attempt to rotate the needle caused a shooting pain in her arm, and that her left hand and fingers fell numb when the needle was removed. She claims that these symptoms have persisted to this day, and she has been rendered unable to effectively use her left hand. Specifically, she claims that her left ring and pinky fingers are completely immobilized, the movement of her middle finger is limited, and her palm feels numb.

Plaintiffs treating physician, Dr. Enrico Fazzini, concluded that plaintiffs symptoms are irreversible, and that she is permanently disabled from the full use of her left arm. Dr. Fazzini is a certified neurologist and neuropsychologist. Dr. Fazzini provided a short affidavit in support of plaintiffs claims while this case was pending in state court. However, plaintiff has never disclosed Dr. Fazzini as a witness in any capacity. Plaintiff has also failed to identify any medical professional as an expert witness. Discovery in this case closed on July 31, 2013.

Plaintiff alleges that BSI’s phlebotomy technician struck her left ulnar nerve while inserting the needle, causing her injury. She puts forward one cause of action for negligence based on medical malpractice, arguing that the technician’s actions fell below the standard of care for a phlebotomy procedure.

II. Legal Standard

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interroga[663]*663tories, and admissions on file, together with the affidavits, if any, show that “there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its ease.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted).

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the non-moving party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party’s ease on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24, 106 S.Ct. 2548. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party’s evidence. See Ad-ickes v. S.H. Kress & Co., 398 U.S. 144, 159-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To demonstrate the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir.1987).

In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548.

At summary judgment, a court’s function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. 2505. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50,106 S.Ct. 2505.

III. Analysis

In the instant motion, BSI argues that plaintiff has failed to present evidence on a necessary part of her claim because she has not disclosed an expert who can testify regarding the standard of care for phlebotomy procedures. (Doc. # 32). Furthermore, BSI states that the deposition testimony of its own expert, Linda Chalmers sufficiently demonstrates that BSI’s actions did not fall below the standard of care. Id.

In response, plaintiff argues that the affidavit of her treating physician, Dr. Fazzini serves as substantial evidence to establish the standard of care for phlebotomy procedures and indicates that BSI’s actions did not meet the standard. (Doc.

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Related

Adickes v. S. H. Kress & Co.
398 U.S. 144 (Supreme Court, 1970)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Prabhu v. Levine
930 P.2d 103 (Nevada Supreme Court, 1996)
Taylor v. List
880 F.2d 1040 (Ninth Circuit, 1989)
Piper v. Harnischfeger Corp.
170 F.R.D. 173 (D. Nevada, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
298 F.R.D. 661, 2014 WL 1379755, 2014 U.S. Dist. LEXIS 48367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derosa-v-blood-systems-inc-nvd-2014.