United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION FOR PARTIAL SUMMARY
KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT
lawsuit arises from a shooting outside of a nightclub. A
bouncer at the club, Plaintiff Rodney Babbs, Jr.
(“Plaintiff”), ejected an off-duty police
officer, Defendant Bryan Block (“Defendant”),
from the premises. Shortly afterward, a scuffle occurred
outside the club during which Defendant shot Plaintiff.
before the Court is Defendant's Motion for Partial
Summary Judgment on Plaintiff's Claims for Lost Wages and
Future Damages (Doc. 124). Defendant argues Plaintiff cannot
establish that the injuries he sustained from this shooting
are the proximate cause of his alleged disability or
inability to work. The Court holds that because Plaintiff
will be able to present some expert medical and vocational
testimony that could establish these gunshots caused, or
partially caused, some of Plaintiff's medical problems
which are responsible for, or partially responsible for, his
inability to work, the motion is DENIED.
said, at trial, the Court will hold Plaintiff to his burden
to prove causation by admissible medical evidence. Plaintiff
cannot prove his case solely under the sudden onset doctrine.
moving party is entitled to summary judgment “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.” Fed.R.Civ.P. 56(a). The movant bears
the initial responsibility of explaining the basis for its
motion, and it must identify those portions of the record
which demonstrate the absence of a genuine issue of material
fact. Torgerson v. City of Rochester, 643 F.3d 1031,
1042 (8th Cir. 2011). If the movant does so, then the
nonmovant must submit evidence demonstrating that there is a
genuine issue for trial. Id. The court views any
factual disputes in the light most favorable to the nonmoving
party. Id. Decisions concerning credibility, how to
weigh the evidence, and what inferences to draw from the
evidence, are decisions reserved for the jury, not the judge.
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000).
the burden shifts to the nonmoving party, it “must do
more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). Nor can the nonmoving party “create sham issues
of fact in an effort to defeat summary judgment.”
RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49
F.3d 399, 402 (8th Cir. 1995) (citation omitted).
“Where the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial.” Ricci v.
DeStefano, 557 U.S 557, 585 (2009).
Court has limited the facts presented here to those that are
not in dispute and relevant to the motion. The Court has also
excluded legal conclusions, argument presented as fact, and
proposed facts that are not properly supported by admissible
evidence. See Fed. R. Civ. P. 56(c); L.R. 56.1(a).
The Court has included reasonable inferences from material
facts not in dispute and proposed facts the opposing party
has not controverted properly. Stating that a document
“speaks for itself” does not controvert a
statement. See Kings Pro'l Basketball Club, Inc. v.
Green, 597 F.Supp. 366, 369 (W.D. Mo. 1984) (holding
such statements do not set forth specific facts showing there
is a genuine issue for trial). The Court treats these and
other improperly controverted facts as undisputed.
the Court finds the relevant, undisputed material facts to be
March 4, 2011, Defendant, an off-duty Kansas City, Kansas,
Police Detective went to the 6902 Club in Kansas City,
Missouri. He brought his service weapon, a .40 caliber Glock
handgun, into the club with him. He drank several alcoholic
drinks and became intoxicated. When it was discovered he was
carrying a gun, he was asked to leave. Defendant refused to
leave and began to argue with security. Two bouncers, one of
which was Plaintiff, escorted Defendant from the building.
Defendant then attempted to re-enter the club. At this point,
the parties' accounts sharply diverge, but there is no
dispute that a scuffle ensued and that Defendant shot
was taken by ambulance to the emergency room at Research
Medical Center (“Research”). He arrived at
approximately two minutes after mid-night on March 5, 2011.
Plaintiff had been shot two times, with two entrance wounds
and two exit wounds. A medical report describes wounds as
superficial injuries within the right upper quadrant and
right posterior back. It also found he had large bullet
fragments lodged within his right pectoralis muscle. The
large bullet fragments in his chest were determined to be
from a 2006 gunshot wound. CT scans revealed no evidence of
rib fractures, hemopneumothorax, pulmonary contusion, or
shockwave injury. The CT scans indicated both wounds were
“through and through” and did not damage the
Research lab report from that night found Plaintiff had a
serum alcohol level of 141 MG/D. Plaintiff admits he consumed
alcohol sometime on March 4th, but maintains he did not
consume any additional alcohol after the shooting, so the lab
report must be incorrect. The head of the trauma team who
treated Plaintiff, Dr. H. Scott Bjerke, M.D., testified
Plaintiff was not clinically intoxicated. Plaintiff was
coherent, he was not slurring his speech, and his eyes did
not appear to be bloodshot.
Bjerke ordered the bullet wounds to be cleaned and bandaged.
He prescribed IV pain medication including Ancif and
Fentanyl. Plaintiff was treated at Research for approximately
one hour and forty minutes. He was then offered admission to