Mitchell v. Securian Financial Group, Inc.
Filing
40
ORDER AND OPINION entered by Chief Judge James E. Shadid on 11/18/2016. This matter is now before the Court after a bench trial on November 14, 2016, between Plaintiff Jamie Troeger, Administrator for the estate of Gayle Mitchell, and Defendant Minne sota Life Insurance Company. As set forth in the following Findings of Fact and Conclusions of Law, the Court finds that Plaintiff has established that Mr. Mitchells death was caused by an accidental injury within the meaning of the policy. Further, the Court finds that Defendant has failed to establish the applicability of a policy exclusion to bar coverage. Therefore, judgment will enter in favor of Plaintiff in the amount of $156,500, with the Court reserving ruling on the issue of prejudgment interest pending supplemental briefing as directed below. See full written Order and Opinion. (JS, ilcd)
E-FILED
Friday, 18 November, 2016 02:39:35 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
JAMIE TROEGER, Administrator of the
Estate of Gayle Mitchell, Deceased,
Plaintiff,
v.
MINNESOTA LIFE INSURANCE
COMPANY,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Case No. 14-1083
ORDER AND OPINION
This matter is now before the Court after a bench trial on November 14, 2016, between
Plaintiff Jamie Troeger, Administrator for the estate of Gayle Mitchell, and Defendant Minnesota
Life Insurance Company. As set forth in the following Findings of Fact and Conclusions of Law,
the Court finds that Plaintiff has established that Mr. Mitchell’s death was caused by an
accidental injury within the meaning of the policy. Further, the Court finds that Defendant has
failed to establish the applicability of a policy exclusion to bar coverage. Therefore, judgment
will enter in favor of Plaintiff in the amount of $156,500, with the Court reserving ruling on the
issue of prejudgment interest pending supplemental briefing as directed below.
BACKGROUND 1
On July 20, 2002, Michael Mitchell fractured his neck after falling head-first into
Kickapoo Creek. The fracture resulted in quadriplegia, or paralysis of all four extremities. In
September 2005, Michael became a resident at Rose Garden Care Center (“Rose Garden”), a
1
The following facts are taken from this Court’s prior orders denying Defendant’s motion for summary judgment
and motion in limine to exclude expert opinion testimony.
1
residential care facility in Peoria Heights, Illinois. He developed several medical conditions after
his paralysis, including seizure disorder, depression, hypertension, obesity, dyslipidemia, bowl
mobility disorder, gastroesophageal reflux disease (“GERD”), deep venous thrombosis,
spasticity and chronic pain.
On at least four occasions between 2005 and 2006, Michael was found “non-responsive”
by caretakers at Rose Garden. On June 24, 2006, Michael was admitted to the intensive care unit
at Proctor Hospital for respiratory failure after he became unresponsive and stopped breathing
during ambulance transport to the hospital. In August 2006, Michael was transferred to OSF
Saint Francis Medical Center (“OSF”) when he was found unresponsive and caretakers were
unable to feel a pulse. Michael was again found unresponsive by Rose Garden caretakers and
transferred to OSF in September 2006. He was successfully resuscitated on each occasion.
On July 28, 2007, Michael began “actively seizing” at Rose Garden. He was initially
breathing on his own, but stopped breathing. Rose Garden called paramedics, and Advanced
Medical Transport (“AMT”) transferred Michael to OSF Hospital. AMT paramedics documented
Michael’s condition during transport, noting “no evidence of trauma” in any location and an
“unremarkable” physical examination. ECF Doc. 16, ¶ 22. When paramedics attempted to
intubate Michael, they suctioned his airway and aspirated foreign material. ECF Doc. 28, at 13.
Michael could not be resuscitated and was pronounced dead at OSF Hospital. Dr. Richard C.
Frederick was the emergency room physician who treated Michael at OSF on July 28, 2007. Dr.
Frederick signed the medical records prepared by a resident which noted, under the heading of
Initial Physical Exam, “General—no evidence of trauma . . . Head/Neck—atraumatic . . .
Extremities—no signs of trauma.” See ECF Doc. 16-10. Those records also indicated that
Michael had vomit on his face. On October 18, 2007, a Coroner’s Inquest into Michael’s death
2
was held by Peoria County Coroner Johnna Ingersoll. The jury found that Michael’s death was
“natural” from “seizure disorder.”
Michael, as a former employee of the State of Illinois, obtained life insurance coverage
under a group policy for state employees. The life insurance policy was issued by Minnesota Life
Insurance Company (“Minnesota Life”) and included Accidental Death and Dismemberment
(“AD&D”) coverage. Minnesota Life paid Michael’s wife, Gayle Mitchell, $156,500 pursuant to
the policy’s Basic Life and Optional Life coverage. However, Minnesota Life declined to pay the
additional $156,500 under the AD&D double indemnity provision. The AD&D provision of the
policy states:
Accidental death or dismemberment by accidental injury as used in this
supplement means that your death or dismemberment results, directly and
independently of disease or bodily infirmity, from an accidental injury which is
unexpected and unforeseen.
ECF Doc. 16, ¶ 10.
The policy also stated “injury must occur while your coverage under this supplement is in
force” and “death or dismemberment must occur within 365 days after the date of the injury and
while your coverage under this supplement is in force.” Id.; ECF Doc. 16-1, at 27. The AD&D
policy further provided that “[i]n no event will [Minnesota Life] pay the accidental death or
dismemberment benefit where your death or dismemberment results from or is caused directly
by any of the following . . . (3) bodily or mental infirmity, illness or disease; or (4) medical or
surgical treatment . . . .” Id.
On August 9, 2016, the Court issued an Order and Opinion denying Defendant’s motion
for summary judgment. After the final pretrial conference on October 21, 2016, Defendant filed
a motion in limine to exclude opinion testimony from Dr. Frederick. See ECF Doc. 34.
Defendant’s motion reasserted the objections in the prior motion that were denied, and further
3
challenged the admissibility of Dr. Frederick’s opinion testimony under Fed. R. Evid. 702 and
Daubert. On November 9, 2016, the Court denied Defendant’s motion. ECF Doc. 36. At a bench
trial on November 14, 2016, Plaintiff presented exhibits of Dr. Frederick’s deposition testimony,
where he opined that the most likely cause of Michael’s death was aspiration of vomit resulting
in respiratory arrest. Minnesota Life called retained expert Dr. Bosacker, who testified that
Michael’s death was not caused by aspiration and opined that Michael’s death was likely caused
by one of his medical conditions.
STANDARD OF REVIEW
In Illinois, “[t]he insured has the burden of proving that his loss comes within the terms
of his insurance policy.” Roberts v. Allstate Life Ins. Co., 243 Ill. App. 3d 658, 660 (1993);
Kolowski v. Metro. Life Ins. Co., 35 F. Supp. 2d 1059, 1061 (N.D. Ill. 1998). “Once the insured
has brought himself within the terms of his policy, then the insurer must prove the applicability
of an exception in the coverage if it wishes to escape liability.” St. Michael’s Orthodox Catholic
Chruch v. Preferred Risk Mut. Ins. Co., 146 Ill. App. 3d 107, 109 (1986)
Illinois courts have adopted a liberal interpretation of the phrase “accidental means” in
insurance policies, construing the term to be synonymous with “accidental result.” Russell, 108
Ill. App. 3d at 420 (citing Taylor, 11 Ill. 2d at 230)). In Illinois, “the concept of causation with
respect to the analysis of life insurance policies is more circumscribed than in tort law . . . only
the immediate cause of the insured’s death matters . . . not any underlying illness or infirmities
that might have contributed to the death by producing the conditions necessary for death to
occur.” Schroeder v. Minnesota Life Ins. Co., Case No. 06-2915, 2007 WL 1169706 at*2-4 (N.D.
Ill. 2007) (citing Russell v. Metro. Life Ins. Co., 108 Ill. App. 3d 417 (1982)). In other words,
4
Illinois courts “need not seek out . . . the cause of the cause.” Russell, 108 Ill. App. 3d at 419
(citing Marsh v. Metropolitan Life Ins. Co., 70 Ill. App. 3d 790, 796 (1979)).
FINDINGS OF FACT
The Most Likely Cause of Michael’s Death was Respiratory Arrest Resulting from Aspiration of
Foreign Material into his Airway
The records from Rose Garden indicate that Michael was found unresponsive but
breathing independently at 5:10 p.m. The nurse called for an ambulance and initiated CPR after
he stopped breathing until AMT arrived at 5:17 p.m. Def. Ex. 1, at 6. The AMT records pick up
where Rose Garden’s records end, noting that another EMS crew already at Rose Garden
performed CPR and administered oxygen to Michael with a Bag Valve Mask (“BVM”) at 5:16
p.m. Joint Ex. 4, at 4. AMT paramedics arrived shortly thereafter, and Michael was placed on a
stretcher and taken to the ambulance. At 5:24 p.m., AMT paramedics attempted unsuccessfully to
intubate the patient while in transit to OSF, noting “suction needed, visualization 0%” and a
minute later, “suction: upper airway . . . device: adult suction catheter, aspirate: foreign matter.”
Id. at 3. OSF records document that Michael arrived at the hospital with “large amount of
vomitus present on face.” Joint Ex. 6, at 2.
Plaintiff relied on Dr. Frederick. Dr. Frederick was an emergency room physician at OSF
St. Francis Hospital in Peoria and one of the treating physicians for Mr. Mitchell. He completed
his residency in 1979 and became board certified in emergency medicine in 1986. He was the
department chair during his last two years of full time work. He was not a retained expert in this
case. Defendant relied on the opinion of Dr. Bosacker. Dr. Bosacker began her residency in the
United States Navy, finished it at the University of Florida, and became board certified in faculty
medicine in 2005. She saw patients at Fairview Lakes in Minnesota from 2005 to 2011 before
5
accepting employment with Securian Financial Group in April of 2011. 2 She currently serves as
the Chief Medical Director for Securian.
Plaintiff and Defendant present conflicting interpretations of the records from AMT and
OSF documenting the events leading up to Michael’s death. At Dr. Frederick’s deposition on
September 19, 2015, the following exchange took place:
Q. And, Doctor, if I understood your prior testimony, is it your opinion that the
aspiration is what resulted in Mr. Mitchell’s death?
A. It’s my opinion that that is the most likely scenario. If you look at the end part
of my deposition when we talked about that, I said without actually doing a
postmortem we don’t know. He could have had his coronary arteries blocked off,
he could have had a blockage to the blood vessels of his brain, he could have had,
you know, a multitude of things that could have occurred to cause his demise. But
without doing a postmortem and looking and having a pathologist look and say
this is what the cause of death was, there’s a certain amount of speculation that is
inherent in that. . . .
Q. So the most likely scenario – your best guess is the aspiration?
A. Right.
Q. And if there’s not complete blockage so air is still going in and out, how is it
that the aspiration causes death?
A. Well, because there wasn’t – at this point in everything that we talked about in
our resuscitative efforts or in the ambulance’s resuscitative efforts, you are taking
an artificial device, that bag, and you’re pushing – forcing air in there. So if you
would – if somebody was – if he’s laying there and he vomited premortem, and I
think that’s going to be important in your – in the determination here. If he
vomited and then that vomit goes back, it sits in this area, goes down into the
trachea and/or even just sits in that area by itself and it is a barrier to breathing. If
I’ve got a bunch of fluid or fluid or something sitting there like this, the air can’t
get in past that. Now, I can force air in past that so when I put the bag on I’m
doing that. In fact, many times when we do resuscitative efforts – and I’m sure
they did it in this, is they suctioned that area first. So if – it’s one thing for to
artificially force air past that and it’s another thing for the patient to be able to get
air past that on their own.
Pla. Ex. 2, at 40-41.
Q. And did anything that you’ve looked at today or any of our discussions today,
did it change any of the opinions that you had from your prior deposition?
A. Not substantively.
Q. And what do you mean by that?
2
Securian is the parent company of Defendant, Minnesota Life Insurance Company.
6
A. Well, I mean, the – in the prior deposition if it was – I think the possibility of
him dying from something else other than aspiration as being the actual event that
caused his death, you know, all these other – and we’ve discussed some of these
other options – all those other options are certainly there. And they certainly could
be the cause of death. Without doing a postmortem we simply don’t know. And
we also treat things like they are individual and isolated events, which they are
not. For example, Mr. Mitchell could have had a blood clot on his lung that
caused him to pass out because he’s not getting enough oxygen to his lung. Then
when he passed out, he aspirated, blocked his airway and died. So is there – you –
that same thing could have occurred with a heart attack, with a stroke, with a
number of different causes. So saying that this one isolated event is the cause of
death is making it a bit more simplistic than what the reality probably was.
Q. The aspiration that [was] your opinion was the most likely cause of death, can
you tell me whether that occurred before or after CPR was started?
A. No.
Q. Why not?
A. Well, if we just review what we just went over at 1520 – or 1720, 5:20, he was
– they said they started the CPR, the resuscitation attempts were – the first
mention of aspiration of foreign body were at 1724 and 1725. And so we’ve got a
four to five-minute period where – between when they started CPR and when they
noticed the aspiration. We don’t know whether it was there when they started it. It
was simply not noted on the record from the nursing home whether that was the
case.
***
Q. Notwithstanding the issues that Ms. Herring has brought up here and asked
you about with respect to other potential causes of death, is it still your opinion
that the most likely explanation for the death of Mr. Mitchell was the aspiration
that led to respiratory arrest and ultimately killed him?
A. It is.
Pla. Ex. 2, at 53-56.
Dr. Bosacker reaches a different conclusion in her reports. Joint Ex. 3. Specifically, Dr.
Bosacker opined that “[o]n the day of his death, Mr. Mitchell likely experienced another
unresponsive episode with cardiovascular slowing that led to a decreased oxygen level in his
blood, a strain on his heart because of the low oxygen level and cardiac arrest.” Id. at 5. Dr.
Bosacker disagrees with Dr. Frederick’s aspiration opinion, stating:
Dr. Frederick indicates that he believes Mr. Mitchell’s death most likely
resulted from aspiration, however there is no evidence Mr. Mitchell aspirated
anything. If, after losing consciousness at the nursing center, Mr. Mitchell was not
able to protect his airway, he may have had some seepage of saliva into his
7
posterior oropharynx, but at no time was his airway completely occluded. There
are no records of medical personnel having difficultly visualizing Mr. Mitchell’s
airway due to foreign material. The EMS report indicates an oropharyngeal
airway was easily placed and that Mr. Mitchell was ventilated with a bag-valve
mask indicating a patent airway. Dr. Gaudio’s intubation records do not include
any mention of foreign material in Mr. Mitchell’s airway. Dr. Gaudio was able to
visualize Mr. Mitchell’s vocal cords and introduce and secure an adult-size
endotracheal tube without difficulty. If there was aspiration of respiratory
secretions or of the small amount of vomitus that was noted on Mr. Mitchell’s
face during his resuscitation, there is no evidence that the volume of the aspirate
was sufficient to block Mr. Mitchell’s airway. Small amounts of respiratory
secretions are commonly aspirated by persons with impaired swallowing such as
those with quadriplegia and they are of minimal clinical significance. If a person
aspirates respiratory or gastric secretions, it is possible that over a period of days
he may develop a pneumonia due to the presence of those secretions in the lung.
In Mr. Mitchell’s situation, he lost consciousness as he had done multiple times in
the years leading up to July 28, 2007 and he was breathing independently. There
was no concern there was anything impeding air flow. His breathing stopped
when his heart stopped, likely due to low oxygen levels.
There is no evidence Mr. Mitchell’s airway was occluded at any time
during his period of unresponsiveness and asystole on July 28, 2007. Records
indicate the nursing staff noted Mr. Mitchell to be unresponsive at 1700. At that
time, the nursing staff was not able to get his vital signs, but he was noted to be
breathing independently. This spontaneous independent breathing indicates Mr.
Mitchell had a patent airway and that circulation was intact. His blood pressure
and heart rate may have been low and difficult to obtain or the nursing staff may
have had difficulty obtaining his vital signs because of his morbid obesity. Mr.
Mitchell was noted to have stopped breathing at 1720. At that time, CPR was
initiated.
Joint Ex. 3, at 5.
Based on the records, Dr. Frederick’s testimony and Dr. Bosacker’s report and testimony,
the Court finds that the most likely cause of Michael’s death was respiratory arrest resulting from
aspiration of foreign material into his airway. AMT records indicate that paramedics suctioned
foreign material from Michael’s airway minutes after he stopped breathing. Dr. Frederick
explained in detail how even a small amount of vomit or fluid could have blocked or
significantly compromised Michael’s airway and that Michael would not be able to clear his
airway of the aspirate given his quadriplegia and unresponsive state. He also explained how,
8
unlike Michael’s shallow respirations, first responders administering oxygen through the BVM
would have been able to force air through the aspirate. Dr. Frederick conceded that without a
postmortem he could not rule out other causes of death, but maintained that aspiration was the
most likely cause. Pla. Ex. 2, at 53-56. His testimony was consistent throughout both of his
depositions.
On the other hand, Dr. Bosacker’s report, and testimony, are less convincing and
contained numerous inconsistencies. For example, Dr. Bosacker concluded that “there is no
evidence that Mr. Mitchell aspirated anything” or that his “airway was occluded at any time
during his period of unresponsiveness and asystole,” reasoning that “[t]here are no records of
medical personnel having difficulty visualizing Mr. Mitchell’s airway due to foreign material”
and the fact that he was ventilated with a BVM indicated he had no obstruction to his airway. Id.
However, the AMT records indicate otherwise, documenting “suction needed, visualization 0%”
and “suction: upper airway . . . device: adult suction catheter, aspirate: foreign matter.” Joint Ex.
4, at 3. And although Dr. Bosacker’s report reasoned that the successful use of the BVM
indicated his airway was unobstructed, she testified at trial that “if there was vomit in his airway
even if they didn’t have suction hooked up, as soon as they used a bag valve mask the pressure
from the airflow from the bag would remove a fluid that could potentially obstruct the airway out
of the way.” 3
Dr. Bosacker’s report also concluded that Michael’s airway would not have been
occluded by the “small amount of vomitus that was noted on [his] face during his resuscitation”
because “there is no evidence the volume of the aspirate was sufficient to block [his] airway.”
3
In contrast, her report states that “if there had been an airway obstruction, air from the bag-valve mask would not
have entered Mr. Mitchell’s airway, but would rather have escaped from the sides of the mask and the emergency
personnel would likely have noted significant resistance in their efforts to ventilate Mr. Mitchell.” Joint Ex. 3, at 6.
9
Joint Ex. 3, at 5. Yet the OSF records document that Michael arrived at the hospital with a “large
amount of vomitus present on face.” Joint Ex. 6, at 2. Finally, Dr. Bosacker’s conclusion that
Michael’s airway was not obstructed before he entered cardiac arrest is based on the fact that
CPR can cause vomiting, and air from the BVM was able to pass through his airway. However,
her report acknowledges that CPR is also the standard of care in unconscious adult choking
victims, as “air displaced from the lungs with direct compression of the chest forces material
blocking the airway up into the mouth, clearing the airway.” Joint Ex. 3, at 6. In other words,
aspiration blocking Michael’s airway would have been cleared during the initial resuscitation
attempts by Rose Garden nursing staff. This is an apparent attempt to have it both ways. Having
testified that she disagreed with Dr. Frederick’s opinion because “Mitchell’s airway was never
obstructed,” further inconsistency comes from the question and answer as follows:
On Direct,
Q. As long as there is some opening and some air passage . . . you would not have
death as a result?
A. Correct.
Q. And again, when we referred to a partially obstructed [airway] would a partial
obstruction cause death?
A. No.
On Cross,
Q. Even in a healthy individual, would you not agree, that there is some level of
oxygen that needs to be brought in the body through breathing in order to keep
life sustained, and then if you get below that level, even in a healthy person, they
will eventually die if they are deprived long enough?
A. Yes.
Dr. Frederick’s opinion testimony was consistent throughout both depositions. In
contrast, Dr. Bosacker’s report, and testimony, included inconsistent statements, misstated some
information from the records, and was simply not as credible as Dr. Frederick’s in explaining the
10
possible causes of death. Accordingly, the Court finds that aspiration was the most likely cause
of Michael’s death.
CONCLUSIONS OF LAW
Michael’s Death Resulted from an Accidental Injury as Defined by the AD&D Policy
The Court’s prior Opinion denying Defendant’s motion for summary judgment found
that: (1) Michael suffered an accidental injury within the meaning of the AD&D policy; (2) a
material dispute of fact remained as to whether Michael’s accidental injury caused his death; and
(3) because a material dispute of fact remained as to the cause of Michael’s death, the Court
could not determine whether the AD&D policy’s disease or bodily infirmity exclusion applied.
See ECF Doc. 32, at 16.
Because the factual dispute regarding the cause of Michael’s death has now been resolved
in Plaintiff’s favor, the only remaining issue is whether Michael’s death is nevertheless excluded
from coverage under the policy’s disease or bodily infirmity exclusion. As explained in the
Court’s prior Opinion, the burden is on Defendant to show that an exclusion from coverage
applies. Id. at 18-19; Santa's Best Craft, LLC v. St. Paul Fire & Marine Ins. Co., 611 F.3d 339,
347 (7th Cir. 2010). Here, the Court’s finding that the immediate cause of Michael’s death was
caused by aspiration of vomit is dispositive. See Schroeder v. Minnesota Life Ins. Co., Case No.
06-2915, 2007 WL 1169706 at *4 (N.D. Ill. 2007)(“[O]nly the immediate cause of death matters,
not any underlying illness or infirmities that might have contributed to the death by producing
the conditions necessary for death to occur.”). Thus, Defendant cannot meet its burden of
establishing Michael’s death was excluded from coverage.
11
The Court Reserves Ruling on Plaintiff’s Request for Prejudgment Interest
Finally, Defendant objects to Plaintiff’s claim for interest under Section 2 of the Illinois
Interest Act. 815 ILCS 205/2. Specifically, Defendant asserts that Plaintiff cannot recover
prejudgment interest because the requested relief was not stated in the Complaint and not raised
in discovery. The Court reserves ruling on the issue of prejudgment interest pending
supplemental briefing. The parties are directed to file supplemental briefs within 14 days of this
Order.
CONCLUSION
For the reasons stated above, judgment will enter in favor of Plaintiff in the amount of
$156,500. The Court reserves ruling on the issue of prejudgment interest pending supplemental
briefing as set forth above.
Signed on this 18th day of November, 2016.
s/ James E. Shadid
James E. Shadid
Chief United States District Judge
12
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?