United States District Court, S.D. Mississippi, Northern Division
CARLTON W. REEVES, District Judge.
Before the Court are the plaintiff's motion to amend the complaint and the defendant's motion for summary judgment. Docket Nos. 60, 74. The motions are fully briefed and ready for adjudication.
I. Factual and Procedural History
On September 23, 2007, Martin Roberson, a federal inmate, injured his left knee during a recreational activity. Docket No. 1, at 2. He was treated that day and afterward, but was not seen by a specialist until December 6, 2007, and did not receive reconstructive surgery until February 13, 2008. Id.
In this Federal Tort Claims Act (FTCA) case, Roberson claims the government's delay in providing specialist care and surgery was negligent and caused permanently compromised knee function. Id .; see also Docket No. 36, at 2-3 (First Amended Complaint).
During discovery, Roberson designated treating physicians Theodore Okechuku and Daniel Dare as expert witnesses. Docket Nos. 16, 39. Another expert designation was later stricken as untimely. Docket No. 66.
The government argues that summary judgment is warranted because neither of Roberson's properly-designated experts have provided supportive testimony on the standard of care or causation. Dr. Dare, for example, testified that one of Roberson's injuries was "synovial thickening and scar" - also known as plica - which could have occurred as a result of the recreational injury alone, not necessarily because of a delay in treatment. Docket No. 63-2, at 7.
Roberson acknowledges that "[t]he record is silent on the critical issues of the standard of care and causation with respect to the issues raised in the complaint." Docket No. 63, at 4. He argues, though, that the government also failed to provide for his "postoperative physical therapy rehabilitation" needs after the February 2008 surgery. Id. And perhaps because this physical therapy claim is new, see Docket No. 66, at 2 n.2, Roberson has moved for leave to amend his complaint to add that theory.
The Court will begin with the motion to amend.
II. Motion to Amend
Where, as here, a motion to amend the complaint is filed after the amendment deadline in the Case Management Order has passed, a four-part test applies. The Court considers "(1) the explanation for the failure to timely move for leave to amend; (2) the importance of the amendment; (3) potential prejudice in allowing the amendment; and (4) the availability of a continuance to cure such prejudice." S&W Enterprises, L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 536 (5th Cir. 2003) (quotation marks, citation, and brackets omitted).
Applied here, the factors do not support Roberson's request.
First, before the amendment deadline expired, Roberson had ample opportunity to advance a lack-of-physical-therapy theory. Although Roberson's reply brief blames his new theory on a medical record which he claims the government wrongfully withheld, Docket No. 79, it cannot be determined whether that is actually the case, since "a party may not raise an argument for the first time in a rebuttal." Housdan v. JPMorgan Chase Bank, N.A., No. 3:13-CV-543, 2014 WL 4814760, at *8 (S.D.Miss. Sept. 24, 2014) (collecting cases). Even assuming Roberson was unaware of the need for physical therapy, however, a consulting physician could have told him and developed that theory for him before the complaint was filed or before the amendment deadline passed.
Next, it is not clear whether the amendment is important to Roberson's case. Dr. Dare testified that Roberson "did well" without physical therapy and "got a very remarkable recovery considering" the circumstances. Docket No. 63-2, at 8. Despite the uncertainty, the ...