Noyola v. Stiles

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS DELTA DIVISION EMILIO NOYOLA, PLAINTIFF ADC #33576-177 v. CASE NO. 2:19-CV-00092-BSM JOHN ELAM, Lieutenant, FCI FORREST CITY, et al. DEFENDANTS ORDER After de novo review of the record, United States Magistrate Judge J. Thomas Ray’s partial recommended disposition [Doc. No. 26] is adopted. The motion for summary judgment [Doc. No. 18] is granted, and Emilio Noyola’s complaint is dismissed with prejudice. Summary judgment is granted on Noyola’s Bivens claims against John Elam and

officer Nichols for the reasons provided in the PRD. Summary judgment is granted on Noyola’s Federal Tort Claims Act claim because the claim is not supported by expert testimony. See Robertson v. McCormick, 2019 WL 1997479 at *7 (W.D. Ark. May 6, 2019). Noyola’s FTCA claim is analyzed under the Arkansas Medical Malpractice Act because it is an “action for medical injury.” Ark. Code. Ann. § 16-114-201. Consequently,

Noyola must show that his injuries were proximately caused by defendants’ failure to meet the applicable standard of care. Ark. Code Ann. § 16-114-206; Mitchell v. Lincoln, 237 S.W.3d 455, 457 (Ark. 2006). Expert testimony is required because Noyola is alleging medial negligence that is not within the jury’s common knowledge. See Mitchell, 237

S.W.3d at 457. This is true because he asserts that his injuries resulted from defendants’ failure to schedule his surgery, and whether this is the case is not within the common knowledge of a lay person. See Robertson, 2019 WL 1997479 at *7 (citing Fryar v. Touchstone Physical Therapy, Inc., 229 S.W.3d7, 12-13 (Ark. 2006); Mitchell, 237S.W.3d 460 (expert testimony required when doctor did not follow specialist’s recommendation). IT IS SO ORDERED this 22nd day of March, 2021.

UNITED STATES DISTRICT JUDGE