Day et al v. USA
OPINION and Order finding that Ms. Day has not provided the requisite expert testimony to show a genuine issue of material facts exists as it relates to proximate cause on her wrongful death claim prosecuted under Arkansas law. The Court grants the government's 42 motion for summary judgment in its entirety. All of Ms. Day's claims are dismissed with prejudice. Signed by Judge Kristine G. Baker on 06/10/2016. (rhm)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MICHELLE DAY, ADMINISTRATOR
OF THE ESTATE OF JAMES AVERY
DEWEESE, SR. AND ON BEHALF OF
THE WRONGFUL DEATH BENEFICIARIES
OF JAMES AVERY DEWEESE, SR., RUTH
DEWEESE, INDIVIDUALLY, and MICHELLE
Case No. 4:14-cv-00342 KGB
UNITED STATES OF AMERICA
OPINION AND ORDER
On June 9, 2014, plaintiff Michelle Day filed this action for medical injury against
defendant the United States of America. This action was filed under the Federal Tort Claims
Act, codified at 28 U.S.C. § 2671, et seq., and is prosecuted in substance under the Arkansas
Medical Malpractice Act, codified at Ark. Code Ann. § 16-114-201, et seq. Ms. Day alleges that
the failure to diagnose hepatocellular carcinoma (“HCC” or “liver cancer”) of James Avery
Deweese, Sr., on October 31, 2011, at the John L. McClellan Memorial Veterans Hospital in
Little Rock, Arkansas, prematurely caused his death in July 2013 (Dkt. No. 1, ¶¶ 6-9). She states
claims under Arkansas’s medical negligence and wrongful death laws (Dkt. No. 1, ¶¶ 35-41, 4245).
The Court previously granted in part the government’s motion for summary judgment
and dismissed with prejudice Ms. Day’s medical negligence claims under Arkansas law (Dkt.
No. 68). In that Order, the Court ordered the parties to file supplemental briefing as to why Ms.
Day’s wrongful death claims should not be dismissed. Both parties filed initial briefs (Dkt. Nos.
69, 70) and response briefs (Dkt. Nos. 71, 72). For the reasons set forth below, the Court
dismisses with prejudice Ms. Day’s claims under the Arkansas wrongful death statute. Thus, this
case is dismissed with prejudice in its entirety.
The Court incorporates by reference its prior Order and will not restate the facts here
(Dkt. No. 68).
Summary judgment is proper if the evidence, when viewed in the light most favorable to
the nonmoving party, shows that there is no genuine issue of material fact in dispute and that the
defendant is entitled to entry of judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a
reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th
Cir. 2008). “The mere existence of a factual dispute is insufficient alone to bar summary
judgment; rather, the dispute must be outcome determinative under prevailing law.” Holloway v.
Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment
motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747
F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the
absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then
shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial.
Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). “The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The claim now at issue is Ms. Day’s claim under the Arkansas wrongful death law. A
wrongful death action is for the recovery of damages the heirs suffered as a result of the
decedent’s death. McDonald v. Pettus, 988 S.W.2d 9 (Ark. 1999). In her complaint, for relief,
Ms. Day seeks “compensatory damages against the defendant for the wrongful death of James
Avery Deweese, Sr., including but not limited to, the grief suffered, as well as the expense of the
funeral and other related costs.” (Dkt. No. 1, ¶ 44). She also seeks “a judgment for all
compensatory damages against the Defendants, including, but not limited to, loss of enjoyment
of life, the loss of life, as well as funeral expenses, and related costs against the Defendants in an
amount to be determined by the jury, plus cost and all other relief to which the Plaintiffs may be
entitled, including, but not limited to, the claims on behalf of the wrongful death beneficiaries of
the decedent, and for any and all other damages that the Plaintiffs and beneficiaries are entitled
to recover.” (Dkt. No. 1, ¶ 45).
The Court ordered supplemental briefing to address specifically whether the proximate
cause standard applicable to claims under the Arkansas wrongful death statute is the same as the
proximate cause standard applicable to Ms. Day’s medical negligence claims. In the Court’s
previous Order on the government’s motion for summary judgment, the Court noted that “this
Court acknowledges some inconsistency in rulings of the state circuit courts on the issue of
whether the damages provision of the Arkansas Medical Malpractice Act vitiates the Arkansas
wrongful death statute. This Court relies on prior federal district court decisions in the Eastern
and Western Districts that hold that damages recoverable by beneficiaries under the wrongful
death act are not inconsistent with the Arkansas Medical Malpractice Act. See McMullin v.
United States, 515 F.Supp.2d 914 (E.D. Ark. 2007); Meredith v. Buchman, 101 F.Supp.2d 764
(E.D. Ark. 2000); Foncannon v. Phico Insurance Co., 104 F.Supp.2d 1091 (W.D. Ark. 2000).”
(Dkt. No. 68, at 14).
In its initial supplemental brief, the government acknowledges those cases and agrees that
those cases hold that the damages recoverable by the beneficiaries under the wrongful death act
are not inconsistent with the Arkansas Medical Malpractice Act.
The government argues,
however, that the instant case is distinguishable from those cases and contends that, “[i]n those
cases, the courts rejected the argument that the medical malpractice statute’s damages provision
superseded the wrongful death statute’s provisions – which would have prevented recovery for
statutory beneficiaries. The plaintiffs there were allowed to allege recovery under both damages
provisions. Those cases are distinguishable from the case at bar because the Plaintiff here has
failed to establish liability for the underlying medical negligence, and, therefore, cannot recover
damages.” (Dkt. No. 69, n.2).
Ms. Day also relies on these federal court cases in her initial supplemental brief. The
Court understands Ms. Day to cite these cases in support of her argument that the medical
malpractice statute is not inconsistent with the wrongful death statute. Ms. Day also cites First
Commercial Bank, N.A., Little Rock, Ark. v. United States, 727 F. Supp. 1300, 1302 (W.D. Ark.
1990), in support of her argument that actions for survivorship and actions for wrongful death are
separate and distinct in nature. This Court agrees that the medical malpractice and wrongful
death statutes are not inconsistent, but the Court finds that the true issue here is that the wrongful
death claim stems from and is dependent upon the medical negligence claim, which has been
dismissed with prejudice.
The government contends that the proximate cause standard is the same for both the
medical negligence and wrongful death claims because “the wrongful death action is derivative
in nature from of the underlying tort.” (Dkt. No. 69, at 1-2). Further, the government argues that,
because the wrongful death claim is based upon the previously-alleged medical negligence, it
must also be dismissed. Ms. Day argues that the proximate cause standard for the wrongful
death claim is different from that of medical negligence claims, and she contends that, “by
looking to the language of the statutes, it is clear that both the damages and the causation
standard of the Medical Malpractice Statute is separate and distinct from the damages and
causation requirement included in the Wrongful Death Statute.” (Dkt. No. 70, at 2). Ms. Day’s
argument is rooted in the idea that the plain language of the wrongful death statute entitles her to
an ordinary negligence standard on the issue of proximate causation for the statutory
beneficiaries’ claim (Dkt. No. 70, at 2).
The Arkansas wrongful death statute states, in pertinent part:
(a)(1) Whenever the death of a person or an unborn child as defined in § 5-1-102
is caused by a wrongful act, neglect, or default and the act, neglect, or default
would have entitled the party injured to maintain an action and recover damages
in respect thereof if death had not ensued, then and in every such case, the person
or company or corporation that would have been liable if death had not ensued
shall be liable to an action for damages, notwithstanding the death of the person
or the unborn child as defined in § 5-1-102 injured, and although the death may
have been caused under such circumstances as amount in law to a felony.
Ark. Code Ann. § 16-62-102(a)(1).
Both parties argue that because a wrongful death action was created by statute, it must be
strictly construed. Estate of Hull v. Union Pac. R.R. Co., 141 S.W.3d 356, 358 (Ark. 2004). The
wrongful death statute also allows certain enumerated statutory beneficiaries to recover damages
for their own individual personal loss. See Ark. Code Ann. § 16-62-102(d)(1); Ark. Code Ann.
§16-62-102(f)(1). The Court understands Ms. Day to be arguing that, because the Arkansas
medical negligence statute and wrongful death statute provide for different damages, this Court
should apply different proximate causation standards ̶ the causation standard in the medical
malpractice statute to medical negligence claims and the ordinary proximate causation tort
standard to the wrongful death claim. Ms. Day contends that, “[b]ecause the wrongful death
claim is a separate claim, with separate damages, the ordinary standard for proximate causation
should apply. This standard is set forth in AMI 501, which states as to proximate causation:
‘[w]hen I use the expression proximate cause, I mean a cause which, in a natural and continuous
sequence, produces damage and without which the damage would not have occurred.’ This
approach does not contemplate the all or nothing approach used in medical malpractice claims.”
(Dkt. No. 70, at 4). The Court is not persuaded by this argument.
In support of its assertion that an action for wrongful death is derivative in nature from
the original tort under which it is brought, the government cites a series of Arkansas cases. See
Estate of Hull v. Union Pac. R.R. Co., 141 S. W.3d 356, 359 (Ark. 2004) (holding that a
settlement of the underlying tort action precluded prosecution under the wrongful death statute);
Brown v. Pine Bluff Nursing Home, 199 S.W.3d 45, 47 (Ark. 2004) (ruling that the second
dismissal of the underlying negligence claim with prejudice precluded recovery by the wrongful
death beneficiaries); Searcy Healthcare Center, LLC v. Murphy, 2013 Ark. 463, *4 (2013)
(holding that wrongful death beneficiaries were bound by an arbitration agreement executed by
the decedent). The government further contends that, when the underlying action is reduced to
final judgment, the claims on behalf of the statutory beneficiaries are extinguished. Hull, 141
S.W.3d at 358 (citing Simmons First National Bank v. Abbott, 705 S.W. 2d 3 (1986)).
This Court finds persuasive the reasoning of the Arkansas Supreme Court in Hull:
Although the right of next of kin to recover under the Arkansas death statute is
not a mere continuation of the original right of the decedent, but is a new action in
the sense that it arises at a different time, that the beneficiaries are different, and
that the measure of damages is different, still it is a derivative action, and, . . . it
arises only where the original right of the decedent has been preserved. Hicks,
181 F. Supp. at 653.
Similarly, in the present case, since the wrongful death statute is derivative in
nature from the original tort, and since the original right of the decedent was
settled and thus, no longer preserved, the defense of a prior settlement with the
decedent can be imposed by Union Pacific in the wrongful death action.
Hull, 141 S.W.3d at 359-60.
In this case, the Court dismissed with prejudice Ms. Day’s underlying medical negligence
claim which constituted the alleged wrongful act pled by Ms. Day for which she brought the
wrongful death action on behalf of the statutory beneficiaries. Ark. Code Ann. § 16-62102(a)(1). Thus, the “original right” of the decedent is not preserved because it was dismissed
by this Court’s prior Order. See Hull, 141 S.W. 3d at 360.
In the Order dismissing the medical negligence claim, this Court held that Ms. Day has
not presented through Dr. Stark or Dr. Bentley’s proffered expert opinions and testimony
sufficient evidence that, but for the government’s alleged conduct in October 2011, Mr. Deweese
would have received any one of a number of treatments examined by Ms. Day’s experts and
survived past July 2013. As a result, the Court determined that Ms. Day did not provide the
requisite expert testimony to show a genuine issue of material fact exists as it relates to
proximate cause on her medical negligence claim prosecuted under Arkansas law. Because Ms.
Day did not meet her burden of proving proximate cause as to her medical negligence claim and
because this Court concludes that her wrongful death claim derives from or is based on her
medical negligence claim, based on Arkansas case law, this Court finds that the government is
entitled to judgment as a matter of law on Ms. Day’s wrongful death claim.
In sum, the Court finds that Ms. Day has not provided the requisite expert testimony to
show a genuine issue of material fact exists as it relates to proximate cause on her wrongful
death claim prosecuted under Arkansas law. The Court grants the government’s motion for
summary judgment in its entirety (Dkt. No. 42). All of Ms. Day’s claims are dismissed with
So ordered this 10th day of June, 2016.
Kristine G. Baker
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?