Sterling v. USA

United States Court of Appeals
for the Fifth Circuit

No. 20-10487
Summary Calendar

Phillip Sterling, Sr.,

Plaintiff—Appellant,

versus

United States of America,

Defendant—Appellee.

Appeal from the United States District Court
Northern District of Texas
USDC No. 3:18-CV-526

Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Phillip Sterling appeals the district court’s summary judgment in
favor of the United States (“the Government”) in this Federal Tort Claims
Act (“FTCA”) case. See 28 U.S.C. §§ 1346(b) & 2674. For the following
reasons, we AFFIRM.

*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
November 9, 2020

Lyle W. Cayce
Clerk
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I. Facts & Procedural History
In March 2018, Sterling, a United States military veteran appearing
pro se, brought a medical negligence suit under the FTCA for injuries that he
allegedly suffered during surgery at the Veterans Affairs North Texas
Healthcare System in Dallas (“VA”). His complaint alleged that he
sustained injuries in December 2014 during a robotic assisted surgical
procedure that he underwent to have a cancerous mass on his kidney
removed. According to Sterling, after the procedure, he began suffering from
intense pain, weakness, tremors, numbness, fatigue, chronic cough, and
permanent nerve damage. He stated in his complaint that, prior to the
procedure that left him “crippled” and “100% disabled,” he “was a healthy
adult male with the only medical condition known to him [being] the
diagnosed left kidney cancer.” For his alleged injuries, Sterling sought
compensatory, punitive, exemplary, and treble damages, and costs.
In June 2018, the Government filed its answer denying the allegations
set forth in Sterling’s complaint. The district court set the parties’ discovery
deadline for December 31, 2019. Sterling served discovery requests and the
Government responded with documents over the next few months. In
February 2019, Sterling filed to designate Peggy Martin as an expert. Then in
May 2019, over a year after filing his original complaint, Sterling hired
counsel. In July 2019, the district court extended the expert designation
deadline to December 19, 2019, and the discovery deadline was extended to
March 30, 2020.
On February 28, 2020, the Government moved for summary
judgment on all of Sterling’s claims. Sterling’s response to the summary
judgment motion was due on March 20, 2020, but no response was filed.
While the summary judgment motion was pending, the parties informally
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discussed extending the response deadline to May 1, 2020,
1
but Sterling
never filed a motion for an extension with the district court.
The district granted the Government’s summary judgment motion on
March 31, 2020. It explained in its order that “[b]ecause the government has
pointed to the absence of evidence to support Sterling’s claims and he has
not produced evidence in response to the motion, the government is entitled
to summary judgment dismissing Sterling’s action with prejudice.” In its
memorandum opinion and order, the district court explained that
“[a]lthough [Sterling’s] failure to respond does not permit the court to enter
a ‘default’ summary judgment, ‘[a] summary judgment nonmovant who does
not respond to the motion is relegated to [his] unsworn pleadings, which do
not constitute summary judgment evidence[.]’” (internal citations omitted).
The district court further reasoned that under Rule 56(e), it was permitted to
accept the Government’s statement of facts as undisputed since Sterling did
not contest them by responding to the motion. On this basis, summary
judgment was appropriate since the motion and supporting materials—
including the facts considered undisputed—showed that the Government
was entitled to the relief it sought.
On April 1, 2020, twelve days after his response was due, and the day
after the district court granted summary judgment in favor of the
Government, Sterling moved to reinstate the case. About a week later, he also
moved for an extension to file a response to the summary judgment motion
and to designate an expert witness. The Government opposed the motions
and objected to the expert witness designation. The district court treated
Sterling’s motion to reinstate as a Rule 59(e) motion to alter or amend the

1
The parties appear to agree that the intended date was May 1, 2020 although an
email between them mistakenly stated April 1, 2020.
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judgment and denied it. See Fed. R. Civ. P. 59(e). It then denied as moot
Sterling’s motion for an extension of time to respond to the Government’s
summary judgment motion as well as the Government’s objection to
Sterling’s expert witness designation.
In its 22-page memorandum opinion and order, the district court again
explained that it did not grant a “default” summary judgment but instead
had granted the Government’s motion based on the absence of evidence to
support Sterling’s claims and his failure to present evidence that created a
genuine issue of material fact. The court clarified that, even if Sterling had
timely responded to the motion, it would have nevertheless granted summary
judgment for the Government because Sterling failed to properly designate
expert witnesses who would have provided expert testimony to support his
claims. With respect to Sterling’s attempts to designate expert witnesses, the
district court noted that he failed to provide the required Rule 26 disclosures
for both his retained and non-retained experts. See Fed. R. Civ. P.
26(a)(2)(B), (C). The district court further concluded that Sterling’s failure
to provide the requisite Rule 26 disclosures was neither substantially justified
nor harmless. The district court determined that, although the discovery
period had not yet closed when it granted the Government’s summary
judgment motion, the deadline to designate experts had passed, and Sterling
had failed to seek an extension or other relief under Rule 56(d), so he was not
entitled to relief under Rule 59(e). The district court also determined that
Sterling was not entitled to Rule 59(e) relief after considering miscellaneous
factors such as excusable neglect or a meritorious claim. The district court
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concluded that Sterling was not entitled to relief on any asserted ground.
Sterling filed this appeal.
2

II. Standard of Review
“We review a grant of summary judgment de novo.” Sanders v.
Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper
‘if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.’” Id. (citing Fed.
R. Civ. P. 56(a)). “We generally review a decision on a motion to alter or
amend judgment for abuse of discretion, although to the extent that it
involves a reconsideration of a question of law, the standard of review is de
novo.” Alexander v. Wells Fargo Bank, 867 F.3d 593, 597 (5th Cir. 2017).
III. Discussion
Sterling argues on appeal that the district court erred in granting
summary judgment in favor of the Government and that it abused its
discretion in declining to alter or amend the judgment and in denying his
motion to reinstate the case. We disagree.
As an initial matter, the district court’s summary judgment in favor of
the Government was proper. As the district court noted, even if Sterling had
filed a response to the Government’s summary judgment motion, he failed
to come forward with the requisite Rule 26 disclosures needed for his
designated retained and unretained experts. Without properly designated
expert witnesses who could provide expert testimony to support his claims,
Sterling could not rebut the Government’s summary judgment motion. See
Hannah v. United States, 523 F.3d 597, 602 (5th Cir. 2008) (“Because the

2
Sterling appeals the district court’s summary judgment in favor of the
Government and its subsequent judgment denying Sterling’s motion to reinstate the case.
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mode of treatment for [the infection] is not a matter of common knowledge
or within the general experience of a layman, [the plaintiff] was required to
present expert testimony to establish the applicable standard of care and to
show how the care he received breached that standard. He neither designated
nor hired an expert to testify on his behalf, so the district court properly
granted summary judgment on the FTCA claim.”).
Likewise, Sterling’s argument that the district court erred in granting
summary judgment prior to the close of discovery is misplaced. Because he
failed to properly designate his expert witnesses by the December 2019
expert designation deadline, the March 2020 discovery deadline was
“immaterial” to its consideration of the Government’s motion for summary
judgment. See Emery v. Medtronic, Inc., 793 F. App’x 293, 296 (5th Cir. Dec.
9, 2019) (per curiam) (unpublished) (“It is immaterial that the discovery
period had not closed before the district court ruled on [the defendant’s]
motion for summary judgment. The deadline for [the plaintiff] to designate
experts had passed, and [the plaintiff’s] design defect claim could not survive
summary judgment without expert testimony.”).
The district court’s denial of Sterling’s motion to reinstate the case or
alter or amend the judgment was also warranted. The Government did not
move for summary judgment until nearly two years after Sterling filed the
initial lawsuit and approximately nine months after he had retained counsel.
Sterling had adequate notice to prepare and respond but failed to do so.
Moreover, the district court waited an additional eleven days after Sterling’s
response deadline had passed before granting summary judgment for the
Government. Sterling contends that his attorney failed to request an
extension to respond to the Government’s summary judgment motion
because he was “focus[ed] on establishing [] discovery deadlines.” This
argument is unpersuasive. As the district court observed, Sterling’s
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counsel’s failure “to comply with the court’s scheduling order or Rule 56
3

due to counsel’s carelessness with or misapprehension of . . . the applicable
rules of court does not warrant Rule 59(e) or Rule 60(b)(1) relief.” See
Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th Cir. 1993)
(“In fact, a court would abuse its discretion if it were to reopen a case [under
the Federal Rules] when the reason asserted as justifying relief is one
attributable solely to counsel’s carelessness with or misapprehension of the
law or the applicable rules of court.”).
IV. Conclusion
For the forgoing reasons, the district court’s summary judgment in
favor of the Government and its judgment denying Sterling’s motion to
reinstate the case are AFFIRMED.

3
Federal Rule of Civil Procedure 56(d) provides an avenue for counsel to seek a
continuance should it need an extension of a summary judgment response deadline.
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