PAXTON v. MEDSTAR WASHINGTON HOSPITAL CENTER et al

Filing 46

MEMORANDUM OPINION AND ORDER: For the reasons set forth in the attached Memorandum Opinion, the Court ORDERS that: (1) Plaintiff's 37 Motion for Leave to Amend Complaint is GRANTED; (2) The Amended Complaint is deemed FILED; and (3) The partie s shall appear for a status conference on June 9, 2014, at 10:30 a.m. to discuss further discovery or any supplementation of expert reports Defendants seek in light of this amendment, unless the parties notify the Court beforehand that they have been able to resolve the question among themselves. Signed by Judge James E. Boasberg on 5/28/14. (lcjeb1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NICOLE PAXTON,
Plaintiff,
v.

Civil Action No. 13-111 (JEB)

WASHINGTON HOSPITAL CENTER
CORP., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff Nicole Paxton, acting on her own behalf and as the representative of the Estate
of Gerald Metheny, filed her original Complaint in this wrongful-death suit in January 2013
against Defendants Washington Hospital Center and Metheny’s primary cardiac surgeon, Dr.
Steven Boyce. In that Complaint, Paxton alleged that Defendants’ negligence during and after
heart-bypass surgery caused Metheny’s death. After Paxton amended her Complaint to properly
identify Defendants, the parties engaged in almost a year of discovery, during which family
members were deposed, doctors and nurses from every stage of the alleged incident testified, and
experts filed official reports. Trial is now set for this October.
Surprisingly, eleven months into discovery – and three months after Dr. Boyce had been
deposed – Plaintiff learned that an air bubble had entered the arterial catheter (or line) and forced
doctors to remove Metheny from cardiopulmonary bypass for nearly ten minutes. See Mot. to
Amend at 4. This, Plaintiff alleges, caused a catastrophic “anoxic brain injury” and was “a
contributing factor” to his death. Id. at 3. As a result, she now moves to amend her Complaint
one more time to add this new information. Defendants oppose. Because amending the

1

Complaint would allow Plaintiff to clarify and strengthen her claims, and because such
amendment is not improperly delayed, unduly prejudicial, or futile, the Court will grant
Plaintiff’s Motion.
I.

Legal Standard
A plaintiff may amend her complaint once as a matter of course within 21 days of serving

it or within 21 days of being served a responsive pleading. See Fed. R. Civ. P. 15(a)(1). Where,
as here, a plaintiff has already amended her complaint once, she must seek consent from the
defendant or leave from the court to file another amended pleading. See Fed. R. Civ. P. 15(a)(2).
“The court should freely give [such] leave when justice so requires.” Id. Under Rule 15, “the
non-movant generally carries the burden in persuading the court to deny leave to amend,”
Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004), and in this Circuit “it is an abuse of
discretion to deny leave to amend unless there is sufficient reason.” Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996).
It is clear, however, that amendment should not be permitted in all cases. The Court
should deny leave to amend, for example, if the motion is “undu[ly] delay[ed],” if there is
evidence of “bad faith or dilatory motive on the part of the movant,” if she has “repeated[ly]
fail[ed] to cure deficiencies by amendments previously allowed,” or if the amendment would
cause “undue prejudice to the opposing party.” Foman v. Davis, 371 U.S. 178, 182 (1962). Nor
should a plaintiff be allowed to amend if the complaint would remain deficient despite the
proposed changes – that is, if amendment would be futile. See In re Interbank Funding Corp.
Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010) (“[A] district court may properly deny a motion
to amend if the amended pleading would not survive a motion to dismiss.”).

2

II.

Analysis
In her proposed Second Amended Complaint, Paxton adds allegations that Defendants

allowed an air bubble to form in Metheny’s arterial line, that mistake forced surgical staff to
remove him from bypass, and removing him from bypass caused a brain injury from which he
did not recover. See Mot., Exh. 5 (2d Am. Compl.), ¶¶ 12, 22. She proposes to include those
allegations to “ensure that the other acts of negligence are crystal clear” and to allow the
Complaint to “reflect the testimony and evidence recently elicited during discovery.” Mot. at 6.
Of particular significance, however, the changes do not alter Plaintiff’s fundamental theory of
liability – namely, that Metheny’s doctors’ negligence during and after his heart surgery
contributed to his death. See 2d Am. Compl., ¶¶ 22-23, 26
In opposing amendment, Defendants argue that Plaintiff’s Motion is untimely, that
amendment would be unduly prejudicial, and that the proposed new allegations would be futile.
See Opp. at 2. The Court disagrees on all counts.
Defendants argue first that Plaintiff’s amendment comes too late because she “knew or
should have known that air entered the decedent’s bypass line . . . on or around May 23, 2011,
when her brother, Jerry Metheny, recounted a conversation that he had with Defendant Dr.
Boyce” in which Boyce explained that there had been air in the bypass machine. Opp. at 6-7
(citing Opp., Exh. 3 (Deposition of Jerry Blaine Metheny) at 47-48, 50). The Court, however, is
unwilling to impute such knowledge to Plaintiff, who is not a doctor, and who allegedly received
the relevant technical information as her father was dying from complications of a relatively
routine surgery. To accuse Plaintiff of sandbagging here would turn an unfairly blind eye to the
mental state of a grieving layperson.

3

Instead, the Court will credit Plaintiff’s statement that “[a]t the time[ she] filed [her]
original complaint and [her] first amended complaint . . . [she] was certainly not aware that air
had entered the line nor was aware that there was an emergency in the operating room.” Mot. at
3. Indeed, neither Paxton nor her lawyer could reasonably have been expected to internalize the
information about the air bubble, or to make the legal connections necessary to warrant putting
that allegation in her Complaint, until January of this year, when Metheny’s perfusionist, Asser
Guirgues, testified that air had entered the line during bypass. See Mot., Exh. 7 (Deposition of
Asser Guirgues) at 36-37. Plaintiff, moreover, moved diligently to amend her Complaint soon
after the significance of that information became clear. This also precludes any finding of bad
faith.
Much of the delay here, moreover, may be attributed to Boyce’s own omissions. Indeed,
Plaintiffs contend that Boyce was specifically asked about an emergency in the operating room at
his deposition in October 2013 and failed to mention either the air bubble or the fact that he had
removed Metheny from bypass at that time. Because “[c]onsideration of whether delay is undue
. . . should generally take into account the actions of other parties,” Atchinson v. District of
Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996), Boyce’s own testimony counsels in favor of
permitting amendment.
Nor have Defendants identified any real prejudice here. See id. (courts should consider
possibility of prejudice resulting from amendment); 6 Charles A. Wright & Arthur R. Miller et
al., Federal Practice and Procedure § 1487 (3d ed. 2010) (“[I]f the court is persuaded that no
prejudice will accrue, the amendment should be allowed.”). To be sure, Defendants could be
prejudiced if they were not allowed to respond to Plaintiff’s updated allegations regarding air in
the line, though it is worth noting that they did have the opportunity to discuss those allegations

4

with at least one of their experts. See Reply at 7. Plaintiff, however, is not opposed to reopening
discovery so that Defendants may pursue whatever further expert reports and depositions they
deem necessary. See id. at 8 (“Plaintiff will not oppose any request or application from the
Defendants . . . if they feel in any manner that they need to explore these issues any further.”).
As trial will not commence until October, and as Defendants will have the opportunity to
develop the record regarding Plaintiff’s new allegations, the Court sees nothing here approaching
undue prejudice.
Finally, with regard to futility, Defendants contest the allegation that it was the air bubble
that caused doctors to take Metheny off bypass. Without such a causal connection, they argue,
the new allegations cannot support liability for negligence and thus need not be added. As
evidence of that hole in Plaintiff’s logic, they point to Guirgues’s testimony, in which he stated
that he did not know whether Boyce had taken Metheny off of bypass because of the air in the
line. See Opp. at 14 (citing Guirgues Depo. at 34-35). They point out, further, that Boyce “was
never asked during his deposition” why he took Metheny off of bypass. Id. (citing Opp., Exh. 8
(Deposition of Steven Boyce) at 295-99). This lack of knowledge, however, is a far cry from
undisputed testimony denying causation. In any event, if Defendants can show at trial that the
air bubble had no effect on Metheny’s condition, then amendment will cause no harm. Either
way, the new allegations would survive a motion to dismiss, so they are not futile. See Interbank
Funding Corp., 629 F.3d at 218.
III.

Conclusion
The Court, accordingly, ORDERS that:
1. Plaintiff’s Motion for Leave to Amend Complaint is GRANTED;
2. The Amended Complaint is deemed FILED; and

5

3. The parties shall appear for a status conference on June 9, 2014, at 10:30 a.m. to
discuss further discovery or any supplementation of expert reports Defendants seek in
light of this amendment, unless the parties notify the Court beforehand that they have
been able to resolve the question among themselves.
SO ORDERED.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 28, 2014

6