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ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES WHITE, et al.,

Plaintiffs,

v.

UNITED STATES OF AMERICA,

Defendant.

CASE NO. C05-1785JLR

ORDER

I. INTRODUCTION

This matter comes before the court on a motion for summary judgment from the

United States of America (“the Government”) (Dkt. # 20). Plaintiffs James and Alice

White, a married couple, have not filed any papers in opposition to the motion nor have

they requested oral argument. For the reasons stated below, the court GRANTS the

Government’s motion. 

II. BACKGROUND

On October 24, 2005, the Whites filed suit against the Government, alleging that

employees of the Veterans Administration Hospital committed medical malpractice. In

particular, the Whites allege that a physician’s negligent care caused Mr. White to suffer

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ORDER – 2

a post-operative infection, leading to the loss of vision in his left eye. Compl. ¶¶ 4.1-4.3,

5.1. Ms. White brings a claim for loss of consortium. Id. at ¶ 5.2. 

During the discovery phase of litigation, the Whites’ attorney become very ill, and

eventually passed away in October 2006. The court stayed the matter until late February

2007 in order to allow the Whites time to obtain new counsel (Dkt. # 18). Since the court

lifted the stay, no attorney has filed a notice of appearance on the Whites’ behalf. In

addition to staying the matter, the court also amended the scheduling order, which

included a revised date of March 15, 2007 for disclosing expert witness testimony and a

dispositive motions deadline of June 13, 2007 (Dkt. # 19). The Government now moves

for summary judgment based on the Whites’ failure to obtain expert medical testimony. 

III. DISCUSSION

Summary judgment is appropriate if the evidence, when viewed in the light most

favorable to the non-moving party, demonstrates there is no genuine issue of material

fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v.

County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007). The moving party bears the

initial burden of showing there is no material factual dispute and he or she is entitled to

prevail as a matter of law. Celotex, 477 U.S. at 323. The moving party can satisfy this

burden in two ways: (1) by producing evidence that negates an essential element of the

non-moving party’s case, or (2) after suitable discovery, by showing that the non-moving

party does not have enough evidence of an essential element to carry its burden of

persuasion at trial. Id. at 322-23; see also Nissan Fire & Marine Ins. Co., Ltd., v. Fritz

Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party meets its burden, the

opposing party must present evidence to support its claim or defense. Cline v. Indust.

Maint. Eng’g. & Contracting Co., 200 F.3d 1223, 1229 (9th Cir. 2000). For purely legal

questions, summary judgment is appropriate without deference to the non-moving party.

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1

Although the Whites bring their tort claim against the Government pursuant to the

Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., the court applies the substantive law of

Washington in evaluating their claim. See 28 U.S.C. § 1346(b). 

ORDER – 3

When the non-moving party fails to oppose a summary judgment motion, the court must

still apply the above standards consistent with Fed. R. Civ. P. 56. Henry v. Gill Indus.,

Inc., 983 F.2d 943, 949-50 (9th Cir. 1993) (holding that court may not grant summary

judgment merely because motion is unopposed, even where local rules are to the

contrary). 

In order to prevail on a medical malpractice claim in Washington, the plaintiff

must prove, inter alia, that the health care provider “failed to exercise that degree of care,

skill, and learning expected of a reasonably prudent health care provider at that time . . .

acting in the same or similar circumstances.” RCW § 7.70.040(1).1

 Washington courts

require expert testimony on the issue of standard of care because it is not ordinarily

observable from the standpoint of a layperson. See Harris v. Groth, 663 P.2d 113, 119

(Wash. 1983). Rare exceptions to this rule exit where a layperson is capable of balancing

the costs and benefits of conducting a particular procedure, id. at 119 n.6, or the

negligence is observable to a person without medical training, for example, where the

health care provider amputates the wrong limb, Young v. Key Pharm., Inc., 770 P.2d 192,

189-90 (Wash. 1989).

Here, the Government has retained an expert who will testify that the treatment

provided in conjunction with Mr. White’s eye operation conformed to the applicable

standard of care. See Gugin Decl. at 10. The Whites have not provided any evidence to

the contrary, and nothing in their Complaint indicates that an exception to the rule

requiring expert testimony applies in this case. See Young, 770 P.2d at 189 (“[T]he cases

uniformly hold that a physician’s testimony is necessary in [medical malpractice] cases to

defeat a defendant’s motion for summary judgment.”). Because the Whites have failed to

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ORDER – 4

come forth with any competent medical testimony to create a genuine issue of material

fact on the issue of standard of care, the court grants the Government’s motion for

summary judgment on Mr. White’s medical malpractice claim. See Celotex, 477 U.S. at

322 (“[A] complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.”). 

Lastly, Defendants contend that Ms. White’s loss of consortium claim must fail

because it is derivative of the malpractice claim. Although the court disagrees that a loss

of consortium claim is “derivative” of any other cause of action, an element of Ms.

White’s consortium cause of action is a tort committed against Mr. White. See Reichelt

v. Johns-Manville Corp., 733 P.2d 530, 538 (Wash. 1987). Because the court concludes

that there is no genuine issue of material fact with respect to the malpractice claim, Ms.

White’s consortium claim necessarily fails.

IV. CONCLUSION

For the reasons stated above, the court GRANTS the Government’s motion for

summary judgment (Dkt. # 20) and directs the clerk to enter judgment consistent with this

order.

 Dated this 27th day of July, 2007.

A JAMES L. ROBART

United States District Judge

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