Danny Fewins v. CHS/Community Health Sys, I , 662 F. App'x 327 ( 2016 )

Case: 16-10192 Document: 00513733379 Page: 1 Date Filed: 10/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 16-10192 October 25, 2016
Lyle W. Cayce
Clerk
DANNY FEWINS, Individually and as Next Friend for DAF, a Minor;
MELISSA FEWINS, Individually and as Next Friend for DAF, a Minor,
Plaintiffs - Appellants
v.
GRANBURY HOSPITAL CORPORATION, doing business as Lake Granbury
Medical Center; SCOTT JONES, M.D.; QUESTCARE MEDICAL SERVICES,
PROFESSIONAL ASSOCIATION,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CV-898
Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
This is an appeal from an order granting summary judgment for
the Appellee, Lake Granbury Medical Center (“LGMC”). Appellants
Danny Fewins and Melissa Fewins, individually and as Next Friend for
their minor son, (“D.A.F.”), brought this suit against LGMC for violations
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-10192 Document: 00513733379 Page: 2 Date Filed: 10/25/2016
No. 16-10192
of the Emergency Medical Treatment and Active Labor Act (“EMTALA”)
arising from LGMC’s treatment of D.A.F. on June 29, 2012. Because
Appellants have not raised a material issue of fact with respect to any of
their claims brought pursuant to EMTALA, we AFFIRM the district
court’s grant of summary judgment in favor of LGMC.
I. FACTUAL AND PROCEDURAL HISTORY
On June 22, 2012, while playing at a local park, D.A.F. was climbing a
tree and fell approximately three feet. Although he seemed fine at first
with only a small cut and bruise on his leg, several days later he began
running a fever and complaining of pain in both legs. As a result, on June
27, his mother took him to Glen Rose Medical Center (“GRMC”) in Glen
Rose, Texas. The Fewins did not have health insurance. His mother told
the staff that he had fallen on June 22 and that he now complained of
pain when his legs were touched or he moved or put weight on them. The
nursing staff measured D.A.F.’s vital signs: blood pressure 115/86, heart
rate of 110, respiratory rate of 16, and temperature of 99.9. The staff
noted that D.A.F. had been crying and that he had limited range of
motion in his hips and thighs, which were sensitive to palpation. D.A.F.
reported his pain as rating a ten on the pain rating scale of ten and was
given Tylenol with codeine for pain relief. X-rays of his femur and hip
were ordered. The chart described the results of the x-rays as normal.
D.A.F. was discharged from the hospital with a diagnosis of acute pain in
his right lower extremity.
The next day, June 28, 2012, D.A.F. stayed home with his father
and seemed to fare better. That night, he began to run a fever and
complained of increasing pain in his hips. D.A.F. did not want to move.
2
Case: 16-10192 Document: 00513733379 Page: 3 Date Filed: 10/25/2016
No. 16-10192
During the early morning of June 29, Mrs. Fewins took D.A.F. to LGMC.
At LGMC’s emergency room, his vital signs were as follows: a
temperature of 97.6; pulse rate of 125; respiratory rate of 22; and 10 out
of 10 on the pain scale. Mrs. Fewins informed the emergency room staff
that two days ago she had taken her son to the emergency room at the
GRMC. Dr. Scott Jones, a board-certified emergency physician
performed a physical examination of D.A.F., which revealed moderate
tenderness in the left lower extremity. Dr. Jones ordered blood and urine
testing and a CT of the child’s lower extremities and pelvis. The CT was
read as having sub-acute subcutaneous contusions and a small
intramuscular sub-acute hematoma. The blood tests results were a white
blood cell count of 14.7, with presence of 81% neutrophils and 12% bands.
According to the Fewins’ expert, Dr. Carlson, the blood test results reveal
an abnormally elevated white blood cell count and were highly suggestive
of a bacterial infection. Dr. Jones later testified at his deposition that
although the tests were “outside the lab’s reference range,” his opinion
was that there were no “clinically significant abnormalities.” Dr. Jones
did not consider the results elevated or abnormal in a six-year old.
Dr. Jones’s notes provided that there was no evidence of anything
other than a contusion/hematoma and that a muscle strain was
suspected. Dr. Jones thought it seemed like the patient cried and
complained of pain more when his mother was present. Mrs. Fewins
stated to Dr. Jones that her son sometimes plays up his injuries to her.
Dr. Jones believed that although D.A.F. was in pain, he was exaggerating
his symptoms. Dr. Jones did not see any evidence of serious etiology and
did not think the contusion/hematoma/strain constituted a serious threat
3
Case: 16-10192 Document: 00513733379 Page: 4 Date Filed: 10/25/2016
No. 16-10192
to D.A.F.’s life or a limb-threatening condition. Dr. Jones consulted with
a radiologist and diagnosed a contusion on each hip and acute pain in his
right lower extremity. Dr. Jones noted the patient’s condition was stable
and discharged D.A.F. The mother was instructed to continue to
administer Tylenol with codeine and to follow up D.A.F.’s care with his
pediatrician on Monday. At discharge, D.A.F. refused to walk because of
the pain.
Early the next morning on June 30, the Fewins took their son to the
emergency room at Cook Children’s Medical Center (“Cook Children’s”).
His temperature was 103.6, pulse 166, respirations of 32 and pain
reported as 6 out of 10. He was noted to have swelling and exquisite
tenderness in his left femur upon palpitation. There was a decrease in
white blood count indicating infection. He was admitted to the hospital
and began receiving antibiotics for infection and morphine for pain. The
diagnosis at the time of admission was myositis, fever and limp. He was
hospitalized from June 30 to August 10, and underwent several surgeries
and was treated for a Methicillin-resistant Staphylococcus aureus
(“MRSA”) infection. As a result, he has permanent bone damage and is
at risk for future infection and injuries.
On March 11, 2014, David and Melissa Fewins, individually and as
Next Friend for D.A.F., brought the instant suit against LGMC for
violations of the EMTALA arising from LGMC’s treatment of D.A.F. on
June 29, 2012. 1 In addition, the Fewins brought a malpractice claim,
1 In the same action, the Fewins also named Dr. Jones and Questcare Medical Services
as defendants. However, the district court severed the claims against LGMC from the other
defendants, creating two separate actions. Vander Zee v. Reno, 73 F.3d 1365, 1368 n.5 (5th
4
Case: 16-10192 Document: 00513733379 Page: 5 Date Filed: 10/25/2016
No. 16-10192
alleging that LGMC was negligent with respect to the care and treatment
provided to D.A.F. On May 9, 2014, LGMC filed a motion to dismiss for
failure to state a claim. On January 13, 2015, the district court denied
the motion to dismiss. On May 1, LGMC filed a motion for summary
judgment. Two weeks later, the Fewins filed a motion for partial
summary judgment. Subsequently, on May 21, LGMC filed a motion to
strike the opinions of the Fewins’s expert witness, Dr. Carlson.
On August 7, the district court held a hearing on the motions for
summary judgment, partial summary judgment, and to exclude the
opinions of Dr. Carlson. At the conclusion of the hearing, the district
court orally granted LGMC’s motion for summary judgment, concluding
that there was an adequate medical screening evaluation conducted by
Dr. Jones and thus, there was no EMTALA violation. The court also
concluded that Dr. Carlson’s expert testimony was “not the product of
reliable principles and methods and that he did not reasonably apply the
principles and methods, had those been reliable, to the facts of the case.”
Thus, the court ruled that Dr. Carlson’s testimony was not admissible
under Federal Rule of Evidence 702. The court also found that there was
“no evidence that the nurses engaged in any willful and wanton
negligence that would support a claim against [LGMC].”
On January 25, 2016, the court issued a memorandum opinion and
order granting LGMC’s motion for summary judgment and denying the
Cir. 1996). Thus, although the district court entered final judgment with respect to the claims
against LGMC, as set forth at II.D. infra, we do not have appellate jurisdiction over the order
granting Dr. Jones and Questcare Medical Services’s motion to exclude the expert witness’s
testimony.
5
Case: 16-10192 Document: 00513733379 Page: 6 Date Filed: 10/25/2016
No. 16-10192
Fewins’s motion for partial summary judgment. Subsequently, the
district court entered final judgment, and the Fewins timely appealed.
II. ANALYSIS
A. Standard of Review
This Court reviews a “grant of summary judgment de novo,
applying the same standard as the district court.” QBE Ins. Corp. v.
Brown & Mitchell, Inc., 591 F.3d 439, 442 (5th Cir. 2009). The moving
party is entitled to summary judgment if it “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).
B. EMTALA Claim
The Fewins contend that the district court erred in granting
summary judgment in favor of LGMC, arguing that there are genuine
issues of material fact with respect to their EMTALA claim. The statute
requires that a hospital provide the following care to a person seeking
emergency medical treatment: “(1) an appropriate medical screening,
(2) stabilization of a known emergency medical condition, and
(3) restrictions on transfer of an unstabilized individual to another
medical facility.” Battle v. Mem. Hosp. at Gulfport, 228 F.3d 544, 557
(5th Cir. 2000) (citing 42 U.S.C. § 1395dd(a)-(c)).
However, Congress did not intend the EMTALA to be utilized as a
federal malpractice statute. Marshall v. East Carroll Parish Hosp. Serv.
Dist., 134 F.3d 319, 322 (5th Cir. 1998). Instead, it “was enacted to
prevent ‘patient dumping,’ which is the practice of refusing to treat
patients who are unable to pay.” Id. (citations omitted). As such, “an
EMTALA ‘appropriate medical screening examination’ is not judged by
6
Case: 16-10192 Document: 00513733379 Page: 7 Date Filed: 10/25/2016
No. 16-10192
its proficiency in accurately diagnosing the patient’s illness, but rather
by whether it was performed equitably in comparison to other patients
with similar symptoms.” Id. Thus, if the patient is “provided an
appropriate medical screening examination,” the hospital “is not liable
under EMTALA even if the physician who performed the examination
made a misdiagnosis that could subject him and his employer to liability
in a medical malpractice action brought under state law.” Id.
To survive a motion for summary judgment, a plaintiff must submit
evidence demonstrating a material fact issue with respect to whether the
hospital afforded an appropriate medical screening examination under
EMTALA. Id. at 323. The statute itself does not define the parameters
of an appropriate examination. Id. An appropriate examination is one
that the hospital would have provided “to any other patient in a similar
condition with similar symptoms.” Id. The plaintiff has the burden of
demonstrating that the hospital failed to provide an appropriate
examination under EMTALA. Id. at 323–24. The plaintiff may carry this
burden by demonstrating that either: (1) the hospital failed to follow its
own standard screening procedures; or (2) there were “differences
between the screening examination that the patient received and
examinations that other patients with similar symptoms received at the
same hospital”; or (3) the hospital offered “such a cursory screening that
it amounted to no screening at all.” Guzman v. Memorial Hermann Hosp.
Sys., 409 F. App’x 769, 773 (5th Cir. 2011).
1. Cursory Screening
The Fewins contend that Dr. Jones’s screening of D.A.F. was so
cursory that it did not amount to a screening. In support of that
7
Case: 16-10192 Document: 00513733379 Page: 8 Date Filed: 10/25/2016
No. 16-10192
contention, the Fewins point to Mrs. Fewins’s deposition testimony that
although she knew something was wrong with D.A.F., Dr. Jones did not
want to listen to her. The Fewins assert that Mrs. Fewins’s testimony
must be believed for the purposes of summary judgment analysis, and
thus, her testimony raises a fact issue as to whether the screening was
so cursory that it amounted to no screening. While it is correct that we
must view the evidence in the light most favorable to the nonmoving
party, Am. Home Assurance Co. v. United Space Alliance, LLC, 378 F.3d
482, 486 (5th Cir. 2004), there is undisputed evidence that demonstrates
that the screening was not cursory.
D.A.F. arrived at LGMC’s emergency room at 5:48 a.m. Within six
minutes, he was in triage and the nurse took his vital signs. At 6:02, Dr.
Jones began evaluating him and took a history from him and his mother.
The medical records show that Dr. Jones reviewed the nurse’s
documentation and then performed a physical examination of D.A.F. Dr.
Jones then ordered several lab tests, including blood tests and a
urinalysis. Dr. Jones also ordered a CT scan of the lower extremities and
pelvis. In addition to receiving the report about the CT scan from
Nighthawk Radiology Services, Dr. Jones called LGMC’s staff radiologist
to consult with him. The records also note that Dr. Jones reviewed all
lab results and concluded there were no “clinically significant
abnormalities.”
The only case relied upon by the Fewins to show that the screening
was cursory is a First Circuit opinion. Correa v. Hosp. S.F., 69 F.3d 1184
(1st Cir. 1995). In Correa, the patient was a 65-year old woman who
presented to the emergency room feeling nauseous and having chest
8
Case: 16-10192 Document: 00513733379 Page: 9 Date Filed: 10/25/2016
No. 16-10192
pains. Id. at 1188. Although the patient waited at least two hours, she
received no treatment or screening and finally gave up and went to
another facility and passed away shortly thereafter. Id. at 1189. Under
those circumstances, the First Circuit held that the jury’s finding that
the hospital denied the plaintiff an appropriate screening examination
“unimpugnable.” Id. at 1193. Correa is inapposite. Here, D.A.F. was
triaged almost immediately and then examined by Dr. Jones, who
ordered a CT and lab tests. After reviewing the results of the lab tests
and consulting a radiologist, Dr. Jones concluded D.A.F. had a hematoma
and discharged him. In light of the undisputed evidence in the record,
the Fewins’s contention that the screening was so cursory that it did not
constitute a screening is meritless.
2. Failure to Follow Procedure
To show that LGMC did not follow its own screening procedure, the
Fewins contend that LGMC violated its pain management policy in
screening D.A.F. The Fewins point to the testimony of Ann Quinlan, the
LGMC Corporate Representative, as proof that the pain management
policy was violated. The Fewins assert that Quinlan’s testimony
demonstrates that the nurses were expected to follow LGMC’s pain
management policy. Quinlan’s testimony does demonstrate that the
nurses at LGMC were expected to follow the “hospital-wide nursing
policy on pain assessment.” The Fewins also contend that Quinlan
admitted that the nurses failed to follow the policy’s required
assessments. Contrary to the Fewins’s contention, Quinlan testified that
the nurse who saw D.A.F. “did follow” the policy on pain management.
9
Case: 16-10192 Document: 00513733379 Page: 10 Date Filed: 10/25/2016
No. 16-10192
The Fewins further contend that the nurses were expected to follow
the pain management policy as part of the medical screening
examination. This contention is incorrect. During the deposition, the
Fewins’s attorney asked Quinlan whether there are “any medical
screening examination protocols that apply to nursing staff in the
emergency department.” Quinlan responded as follows: “No. The
medical screening exam is always done by a physician or a licensed
independent practitioner.” Additionally, Quinlan specifically testified
that nurse practitioners or physician’s assistants did not perform
EMTALA medical screening examinations at LGMC. Quinlan testified
that although the nurse practitioner may gather the information, a
physician sees all the patients for purposes of the EMTALA medical
screening. This Court has explained that if a triage assessment is
preliminary to and not part of the medical screening examination, then
whether the triage violated the hospital’s policy is not material to the
EMTALA claim. Stiles v. Tenet Hosp., Ltd., 494 F. App’x 432, 436 (5th
Cir. 2012). Accordingly, even assuming that the Fewins could
demonstrate that the nurses violated the pain management policy in
assessing D.A.F., because their assessment was not part of the medical
screening examination, any such violation would not be material to the
Fewins’s EMTALA claim.
Indeed, Dr. Carlson’s own testimony makes clear that the pain
management policy was not part of the emergency medical screening
examination pursuant to EMTALA. Dr. Carlson testified that “LGMC
had no standard emergency medical screening examination protocol” and
that the “general screening policy delegated the medical screening
10
Case: 16-10192 Document: 00513733379 Page: 11 Date Filed: 10/25/2016
No. 16-10192
examination to the emergency room doctor, who was allowed to use his
or her individual judgment on each individual patient in determining
whether the screening examination was adequate.” Dr. Carlson also
testified that Dr. Jones “had enough information based on the history,
physical exam, the CBC and CT to say that a soft tissue infection was the
most serious diagnosis and most likely diagnosis.” Thus, Dr. Carlson’s
testimony demonstrates that Dr. Jones obtained adequate information
from his screening examination to make the correct (or at least most
likely) diagnosis. As LGMC contends, boiled down, Dr. Carlson’s
criticism is that Dr. Jones failed to diagnose the infection in D.A.F. This
argument does not implicate an EMTALA claim. See Marshall, 134 F.3d
at 322 (explaining that if a patient is “provided an appropriate medical
screening examination,” a hospital “is not liable under EMTALA even if
the physician who performed the examination made a misdiagnosis that
could subject him and his employer to liability in a medical malpractice
action brought under state law”). In sum, the Fewins have not shown
that the alleged violation of the pain management policy created a fact
issue with respect to their EMTALA screening examination claim.
3. Disparate Screenings of Similar Symptoms
The Fewins next contend that D.A.F. was screened disparately
compared with three other patients who had similar symptoms. To
obtain a pool of patients who had similar symptoms, the Fewins’s expert,
Dr. Carlson, identified the relevant symptoms and the associated medical
codes and requested medical records from LGMC that matched his
request. In response, LGMC provided the medical records of three
patients.
11
Case: 16-10192 Document: 00513733379 Page: 12 Date Filed: 10/25/2016
No. 16-10192
The first patient was an 81-year old male who arrived at LGMC
complaining of lower leg pain. He ranked his pain as 1 out of 10 and his
white blood cell count was elevated. He was taking penicillin for his
cellulitis. The second patient was a 58-year old male who was obese and
complained of hip pain. His white blood cell count was elevated. He had
a history of asthma, congestive heart failure, hypertension, diabetes,
renal failure and atrial fibrillation. He was taking numerous
prescription medications for these health conditions. The third patient
was a 79-year old female with dementia who had a sudden onset of
weakness and pain in her knee. Her white blood cell count was elevated.
She was wearing a prosthesis and previously had surgery on her knee.
Unlike D.A.F., all three patients were admitted to the hospital. The
Fewins’s expert witness, Dr. Carlson, testified that in his opinion D.A.F.
was treated disparately from the other three patients. However, as the
district court explained, EMTALA does not apply unless patients who are
perceived to have the same medical condition receive disparate
treatment. Marshall, 134 F.3d at 323 (citing Vickers v. Nash General
Hosp., Inc., 78 F.3d 139, 144 (4th Cir. 1996)). D.A.F. was a child who
appeared healthy prior to falling from the tree. Dr. Jones perceived
D.A.F.’s pain to be caused by the contusion or hematoma that resulted
from the fall. The comparators were much older than D.A.F. with
medical histories unlike D.A.F.’s history. Thus, although the other
patients may have had similar symptoms, they do not appear to have
been “in a similar condition” to D.A.F. Id. at 323. Moreover, the
physicians evaluating those three patients perceived that each patient
was possibly suffering from an infection. The medical records
12
Case: 16-10192 Document: 00513733379 Page: 13 Date Filed: 10/25/2016
No. 16-10192
demonstrate that Dr. Jones did not perceive D.A.F. to have an infection.
Indeed, at the hearing before the district court, D.A.F.’s counsel admitted
that Dr. Jones “didn’t perceive it to be an emergency.” 2 Accordingly,
because the Fewins have not provided competent evidence showing that
D.A.F. was perceived to have the same medical condition as the other
patients, they cannot demonstrate that D.A.F. received disparate
screening. Marshall, 134 F.3d at 323 (citing inter alia Vickers, 78 F.3d
at 144).
4. Stabilization
The Fewins also contend that D.A.F. was not stabilized prior to his
discharge in violation of EMTALA. A hospital’s duty to stabilize does not
arise unless it has actual knowledge of the patient’s unstabilized
emergency medical condition. Marshall, 134 F.3d at 325. To prevail on
this issue, the Fewins “must identify evidence from which a jury could
conclude that [LGMC] had actual knowledge that [D.A.F.] had an
emergency medical condition and, if so, that he was not stabilized prior
to the discharge.” Battle, 228 F.3d at 559.
As previously noted at footnote 2 supra, at the hearing before the
district court, D.A.F.’s counsel admitted that the only record evidence to
show that Dr. Jones perceived D.A.F. to have an “emergency medical
condition” 3 was Dr. Jones’s checking the box on the form indicating that
2 After admitting that Dr. Jones did not perceive D.A.F. as having an “emergency
condition,” counsel stated that Dr. Jones did check the box on the form for a “certified medical
emergency.” As explained in Section II.B.2., infra, Dr. Jones’s checking the box does not raise
a material issue of fact with respect to whether Dr. Jones thought D.A.F. had an “emergency
medical condition.”
3 42 U.S.C. § 1395dd(c); Battle, 228 F.3d at 558.
13
Case: 16-10192 Document: 00513733379 Page: 14 Date Filed: 10/25/2016
No. 16-10192
there was a “certified medical emergency.” Therefore, to demonstrate
that D.A.F. had an “emergency medical condition,” the Fewins rely on Dr.
Jones’s notation in the medical record that “Patient’s condition
represents a certified medical emergency. Disposition date/time:
06/29/2012 08:24.” (emphasis added). At the hearing, the district court
ruled that documenting a “certified medical emergency” is not the same
as finding an “emergency medical condition.” The court held “as a matter
of law, from the undisputed facts, that Dr. Jones did not find an
emergency medical condition. [I]t is the position of the plaintiffs that
there was one and he should have found it, but it’s clear that he did not
find one.” The court further held that although Dr. Jones administered
an adequate and appropriate medical screening evaluation, he did not
find that D.A.F. had an emergency medical condition.
During his deposition, Dr. Jones testified that his notation of a
“certified medical emergency” did not mean that D.A.F. had an
“emergency medical condition.” He testified that those two terms are
“very different.” He explained that when a patient presents in the
emergency room with a “certified medical emergency,” the physician does
not know whether they have an “emergency medical condition.” Once a
patient is in the emergency room and presents with a “condition which
could potentially be a serious emergent condition, . . . we are instructed
to document that they have a certified medical emergency.” If the
physician finds a certified medical emergency, the physician is “obligated
to investigate it, to do a medical screening exam, to investigate what the
extent of the injury or illness is.” He further explained that unless it is
documented that a person has a certified medical emergency, there is “no
14
Case: 16-10192 Document: 00513733379 Page: 15 Date Filed: 10/25/2016
No. 16-10192
testing or work up or assessment” of the patient. Dr. Jones understood
that a certified medical emergency must be documented for a third-party
payor to cover the emergency room visit. Nonetheless, if a “patient still
requests the evaluation,” he would then perform it. Dr. Jones testified
that the physicians documented that “virtually every patient who came
in the door” had a certified medical emergency unless the patient had a
trivial complaint such as a hangnail.
The medical record shows that D.A.F.’s vital signs had improved by
the time of discharge and that Dr. Jones did not believe that the lab test
results were clinically abnormal. D.A.F.’s reported pain level had
decreased to a zero at the time of discharge. Dr. Jones concluded that
D.A.F. was medically stable and discharged him. Dr. Jones testified that
after he conducted the medical screening exam of D.A.F., he concluded
that D.A.F. did not have an emergency medical condition.
Although we must view the evidence in the light most favorable to
the Fewins, there is no evidence that raises a fact issue with respect to
Dr. Jones’s opinion that D.A.F. did not have an emergency medical
condition despite his documenting D.A.F. as having a “certified medical
emergency.” The evidence demonstrates that Dr. Jones, whose
knowledge is imputed to LGMC, did not perceive or have actual
knowledge that D.A.F. had an emergency medical condition. Thus, the
Fewins have not shown that the district court erred in granting summary
judgment to LGMC on the stabilization claim. Battle, 228 F.3d at 559.
C. Negligence/Malpractice Theory
The Fewins contend that fact issues preclude summary judgment
on their claim of negligence/malpractice against LGMC. During the
15
Case: 16-10192 Document: 00513733379 Page: 16 Date Filed: 10/25/2016
No. 16-10192
hearing before the district court, Fewins’s counsel specifically stated
that: “Setting aside the EMTALA issue, there are no negligence
allegations against the hospital.” Id. 4 The Fewins therefore abandoned
any negligence claims they had against LGMC. Further, even if this
claim had not been abandoned below, the argument with respect to this
issue on appeal is abandoned by the inadequate briefing. See e.g., Young
v. Repine (In re Repine), 536 F.3d 512, 518 n.5 (5th Cir. 2008); see also
Fed. R. App. P. 28(a)(8) (requiring citation to authorities).
D. Exclusion of Expert Witness Testimony
Finally, the Fewins contend that the district court erred in granting
LGMC’s motion to exclude the testimony of their expert witness, Dr.
Carlson, whose opinion criticized Dr. Jones’s medical treatment of D.A.F.
As set forth above, even considering Dr. Carlson’s opinion testimony, we
conclude that the district court properly granted summary judgment
with respect to the EMTALA claims against LGMC. Thus, we find it
unnecessary to reach this issue in disposing of the Fewins’s appeal from
the district court’s final judgment in favor of LGMC.
The Fewins also filed a notice of appeal from a separate order issued
on February 18, 2016, in which the district court granted Dr. Jones and
Questcare’s motion to exclude Dr. Carlson’s testimony. However, this is
an interlocutory order, and the district court did not certify it pursuant
to Federal Rule of Civil Procedure 54(b), nor did the court enter a final
4 Additionally, the Fewins’s counsel stated that his complaints against the nurses
only relate to the EMTALA claims.
16
Case: 16-10192 Document: 00513733379 Page: 17 Date Filed: 10/25/2016
No. 16-10192
judgment with respect to these two defendants. 5 Additionally, the appeal
of this non-final order is neither inextricably intertwined with LGMC’s
appeal nor is it necessary to ensure meaningful review of LGMC’s appeal.
We therefore do not have pendent appellate jurisdiction of the district
court’s order. See Thornton v. General Motors Corp., 136 F.3d 450, 453
(5th Cir. 1998) (explaining that pendent appellate jurisdiction should
only be found “proper in rare and unique circumstances where a final
appealable order is inextricably intertwined with an unappealable order
or where review of the unappealable order is necessary to ensure
meaningful review of the appealable order”) (internal quotation marks
and citations omitted). Accordingly, we dismiss for lack of jurisdiction
the appeal from the February 18, 2016 order granting the motion to
exclude Dr. Carlson’s opinion testimony.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the district court’s
grant of summary judgment in favor of LGMC. We DISMISS for lack of
jurisdiction the appeal from the February 18, 2016 order granting Dr.
Jones and Questcare’s motion to exclude Dr. Carlson’s opinion testimony.
5 The summary judgment in favor of LGMC was final and appealable. The district
court had issued an order severing and staying the claims against Dr. Jones and Questcare.
When the district court severed the claims against these two defendants, it created two
separate actions. Vander Zee v. Reno, 73 F.3d 1365, 1368 n.5 (5th Cir. 1996). The district
court then entered a judgment dismissing all of the claims against LGMC that are now before
this Court on appeal. Accordingly “no Rule 54(b) certification was required to render the
judgment final and appealable.” Id. (citing United States v. O’Neil, 709 F.2d 361, 368–69 (5th
Cir. 1983)).
17