Plante v. State

• Court: Vermont Superior Court
• Decided: July 25, 2024
• Docket: 22-cv-1843
• Status: Published

Opinion

VERMONT SUPERIOR COURT CIVIL DIVISION Washington Unit Case No. 22-CV-01843 65 State Street Montpelier VT 05602 802-828-2091 www.vermontjudiciary.org

Robert Plante v State of Vermont et al

Opinion and Order on Mr. Plante’s Motion to Strike and the State’s Motion for Summary Judgment

Plaintiff Robert Plante is an inmate in the custody of the Vermont Department of

Corrections (“DOC”). While in custody, he underwent successful treatment for mouth

cancer following which he has enduring, but apparently typical, pain for which he has

been and is being treated. In the amended complaint, he claims that the pain treatment

he has been receiving is below the “prevailing medical standards” required by 28 V.S.A. §

801(a).1 He seeks a declaration to that effect and an injunction requiring the DOC to

provide treatment at the required standard. The State has filed a motion for summary

judgment arguing that Mr. Plante has failed to come forward with evidence to

demonstrate any triable issue as to his claim and, notably, has failed to disclose any

experts whose testimony would be necessary to support it. Mr. Plante opposes the

State’s motion and has filed a motion to strike the affidavit of and otherwise exclude the

State’s expert, arguing that the State failed to disclose him as an expert.

1 The complaint does not more precisely indicate the standard of care and what the

alleged deviation may be. Order Page 1 of 5 22-CV-01843 Robert Plante v State of Vermont et al I. Procedural Standard

Summary judgment procedure is “an integral part of the . . . Rules as a whole,

which are designed ‘to secure the just, speedy and inexpensive determination of every

action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,

477 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the

record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there

is no genuine issue as to any material fact and that the movant is entitled to judgment as

a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)

(summary judgment will be granted if, after adequate time for discovery, a party fails to

make a showing sufficient to establish an essential element of the case on which the

party will bear the burden of proof at trial). The Court derives the undisputed facts from

the parties’ statements of fact and the supporting documents. Boulton v. CLD

Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing

summary judgment may not simply rely on allegations in the pleadings to establish a

genuine issue of material fact. Instead, it must come forward with deposition excerpts,

affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,

628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,

380.

II. Analysis

The parties focus intensely on whether experts have been disclosed properly. It is

unnecessary to resolve that controversy, however.2 “Rule 56 . . . imposes a burden of

2 Nonetheless, without deciding the issue, the Court believes the scheduling order itself imposes, at least, some obligation on parties as to expert disclosures and that further information can be obtained through additional discovery devices. Order Page 2 of 5 22-CV-01843 Robert Plante v State of Vermont et al production on the moving party to make a prima facie showing that it is entitled to

summary judgment. That can be satisfied, in cases in which the ultimate burden of

persuasion at trial rests on the nonmoving party, either by submitting affirmative

evidence negating an essential element of the nonmovant’s claim or . . . by demonstrating

that the nonmoving party’s evidence itself is insufficient to establish an essential

element of its claim.” 10A Mary Kay Kane, et al., Fed. Prac. & Proc. Civ. § 2727.1 (4th

ed.). “If it is successful in arguing that the nonmovant’s evidence is insufficient, the

burden shifts to that party to call evidence to the attention of the court to dispute that

contention.” Id.; accord Poplaski v. Lamphere, 152 Vt. 251, 254–55 (1989).

In this case, the State relies on its own expert to show that Mr. Plante’s care does

not fall below prevailing medical standards. The State also argues that Mr. Plante has

no expert testimony that would be necessary to support his claim. There is no dispute

that Mr. Plante has the ultimate burden of persuasion in this case and that satisfying it

requires the support of expert testimony as to standards and treatment for the sort of

pain he alleges. See Taylor v. Fletcher Allen Health Care, 2012 VT 86, ¶ 10, 192 Vt. 418,

422 (expert testimony generally required when matter “sufficiently complex as to be

beyond the scope of common knowledge to a layperson”). Thus, even if the Court were to

disregard the State’s affirmative showing that Mr. Plante’s care complies with prevailing

standards, the question nevertheless would turn to whether Mr. Plante has evidence

sufficient to support his claim.

An essential element of Mr. Plante’s claim is to establish the prevailing medical

standard and that the DOC’s care is failing to meet that standard. See Jones v. Block,

171 Vt. 569, 569 (2000). The Supreme Court has consistently ruled that establishing the

Order Page 3 of 5 22-CV-01843 Robert Plante v State of Vermont et al medical standard of care and its breach typically requires reliance on expert evidence.

Id.; Begin v. Richmond, 150 Vt. 517, 520 (1988) (“Ordinarily, these elements must be

proved by expert testimony.”); Larson v. Candlish, 144 Vt. 499, 502 (1984); (“normally

the burden of proof imposed by 12 V.S.A. § 1908 will be satisfied only by expert

testimony”).

In opposition to summary judgment, Mr. Plante did not come forward with any

affidavit, deposition testimony, or other evidence of expert opinions as to the prevailing

medical standard and whether the DOC is in breach of it. At most, Mr. Plante points to

his expert disclosure. The disclosure, in its entirety, is as follows:

Petitioner may rely on the following witnesses to provide expert opinion in Robert Plante’s case, docket 22-CV-01843:

●Dr. Adi Bamnolker (who I connected with through the Medical Justice Alliance) ●Mr. Plante’s treating physicians, including but not limited to his physicians at TCCF, ENT of North Mississippi, and Greenwood Leflore Hospital[.]

The disclosure says nothing about what the testimony of any such experts might

be. In essence, Mr. Plante apparently intends that such evidence will be forthcoming at

trial. That is insufficient under Rule 56. “The nonmovant is not entitled to a trial on the

basis of a hope that he can produce some evidence at that time.” 10A Mary Kay Kane,

Fed. Prac. & Proc. Civ. § 2727.2 (4th ed.). The submitted “evidence” is simply insufficient

to create a triable fact as to one of the primary legal standards the Plaintiff must meet to

establish his claim. The State’s summary judgment motion has merit on that basis.

Conclusion

For the foregoing reasons, the State’s motion for summary judgment is granted.

Mr. Plante’s motion to strike is denied as moot. Order Page 4 of 5 22-CV-01843 Robert Plante v State of Vermont et al Electronically signed on Tuesday, June 4, 2024, per V.R.E.F. 9(d).

_______________________ Timothy B. Tomasi Superior Court Judge

Order Page 5 of 5 22-CV-01843 Robert Plante v State of Vermont et al