Telles v. USA

* 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this opinion should not be published and is not precedent except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.
2 Under the Federal Tort Claims Act, the United States is
liable in damages only if a private person would be liable for
the same allegedly negligent act or omission under the laws of
the state within which the act or omission occurred. See Skipper
v. United States, 1 F.3d 349, 352 (5th Cir. 1993). In the
instant case, the alleged acts and omissions occurred in Texas,
rendering its substantive law applicable.
1
United States Court of Appeals
Fifth Circuit
F I L E D
October 12, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51260
Summary Calendar
GLORIA TELLES, Individually and as next friend of Jacob Telles, a
minor,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
--------------------
Appeal From the United States District Court
For the Western District of Texas
Civil Action No. 02-CV-0412FM
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Telles appeals the district court’s grant of summary judgment
in favor of the defendant, the United States of America, in a suit
under the Federal Tort Claims Act2 for the alleged negligence,

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No. 05-51260
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specifically medical malpractice, of William Beaumont Army Medical
Center (WBAMC). Additionally, she appeals the court’s denial of
her motion to disqualify the district judge.
Upon suffering shaken-baby injuries at the hands of his
biological mother, Jacob Telles was saved by an emergency
craniotomy and subdural hematoma evacuation performed by Dr. Kaveh
Khajavi of WBAMC. During Jacob’s surgery, a piece of his skull,
the bone flap, was removed. Because of swelling, the bone flap
could not be reinserted immediately. WBAMC subsequently
transferred Jacob to Thomason Hospital. The bone flap disappeared
at some point.
The district court granted summary judgment, finding no
genuine issues as to any material fact. We affirm. Under Texas
law, a medical malpractice plaintiff, who bears the ultimate burden
of proof, must produce evidence showing the four elements of
negligence under Texas law: (1) legal duty owed by defendant to
the plaintiff; (2) breach of that duty; (3) actual injury to the
plaintiff; and (4) a showing that the breach was the proximate
cause of the injury. To adequately show causation, plaintiff must
present evidence of a “reasonable medical probability” or
“reasonable probability” that their injuries were caused by the
negligence of one or more defendants.
There is no genuine issue as to defendant’s breach of the
standard of care. The plaintiff supplied the district court with

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No. 05-51260
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3 This is an asymmetry of the back of the skull.
3
no evidence other than sheer speculation as to who was responsible
for the loss of the bone flap. Therefore, we agree with the
district court’s ruling. Despite this finding, which in effect,
ends the analysis, this court will proceed to analyze the other
elements of negligence, as well.
Even assuming a breach of the standard of care, there is no
genuine issue as to the actual injury suffered by the plaintiff as
a result of the loss of the bone flap. Although Jacob wore a
helmet periodically, this was not an actual injury related to the
lost bone flap; instead, the helmet was prescribed to remedy a
diagnosed positional plagiocephaly by doctors not associated with
WBAMC.3 Likewise, although Jacob faced a subsequent major
cranioplasty surgery, this would have occurred regardless of the
loss of the bone flap. The subsequent surgery was a result of: (1)
the inability of Dr. Khajavi of WBAMC to replace it, due to
swelling; and (2) doctors, not associated with WBAMC, who
formulated a plan to wait a few years to perform the surgery, with
the hopes that Jacob’s defect would repair itself.
Finally, even assuming a breach of the standard of care and
injury, there was no evidence that the breach proximately caused
any injury. There is no genuine issue of material fact regarding
the appropriateness of the second surgery nor the manner in which
it was performed. Also, other doctors, not associated with WBAMC,

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recommended the second surgery occur years later. Therefore, as
the bone flap was only usable for up to one year, even had it not
been lost, it would not have been used in the subsequent surgery.
The district court’s grant of summary judgment must be affirmed.
The district court also denied plaintiff’s motion, filed
pursuant to 28 U.S.C. § 144, to disqualify the district judge. We
see no personal bias against plaintiff or her attorney.
Plaintiff’s affidavit in support of recusal lacks specific factual
allegations that are required by this court. Parrish v. Bd. of
Commissioners of Alabama State Bar, 524 F.2d 98, 100 (5th Cir.
1975). Instead, it consists of plaintiff’s opinions which is not
enough. Henderson v. Dept. of Public Safety and Corrections, 901
F.3d 1288, 1296 (5th Cir. 1990) (...”[a]n affidavit is legally
insufficient under § 144 if it is based upon ‘information and
belief’ rather than personal knowledge.”). Further, plaintiff’s
counsel’s affidavit also lacks merit. It consists of facts and
allegations related to purely judicial proceedings involving him
and the court. The Supreme Court has provided in Liteky v. United
States, 510 U.S. 540, 541 (1994) that,
...Not establishing bias or partiality,..., are expressions of
impatience, dissatisfaction annoyance, and even anger, that
are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes
display. A judge’s ordinary efforts at courtroom
administration, even a stern and short-tempered judge’s
ordinary efforts at courtroom administration–-remain immune.

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The district court’s acts in granting summary judgment in
favor of the defendant and in denying plaintiff’s motion to
disqualify the district judge is
AFFIRMED.

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