Charles Warrick v. THE UNITED STATES OF AMERICA

Filing 91

MEMORANDUM Opinion and Order: The Government's motion for summary judgment 56 is granted. The Court grants summary judgment in favor of the Government on Counts I(a)-I(c) and Count II. Plaintiff's motion for summary judgment 58 60 [63 ] 64 65 is denied. See order. Trial and pretrial dates remain set. Parties are to attempt to resolve the remaining claims. Parties are to file a status report by 2/28/25 indicating whether a settlement conference would be productive. Mailed notice. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
CHARLES WARRICK, Independent
Administrator of the Estate of ELLA
ODESSA WARRICK
Plaintiff,

Case No. 21-cv-06881
Judge Mary M. Rowland

v.
UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
Plaintiff brings this action for negligence and wrongful death against the
United States pursuant to the Federal Tort Claims Act (“FTCA”). For the reasons
stated below, the United States’ motion for partial summary judgment [56] is
granted, and Plaintiff’s motion for summary judgment [58] [60] [63] [64] [65] is
denied.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A genuine dispute as to any material fact exists if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive law controls which facts
are material. Id. After a “properly supported motion for summary judgment is made,

1

the adverse party ‘must set forth specific facts showing that there is a genuine issue
for trial.’” Id. at 250 (quoting Fed. R. Civ. P. 56(e)).
The Court “consider[s] all of the evidence in the record in the light most
favorable to the non-moving party, and [ ] draw[s] all reasonable inferences from that
evidence in favor of the party opposing summary judgment.” Logan v. City of Chicago,
4 F.4th 529, 536 (7th Cir. 2021) (quotation omitted). The Court “must refrain from
making credibility determinations or weighing evidence.” Viamedia, Inc. v. Comcast
Corp., 951 F.3d 429, 467 (7th Cir. 2020) (citing Anderson, 477 U.S. at 255). In ruling
on summary judgment, the Court gives the non-moving party “the benefit of
reasonable inferences from the evidence, but not speculative inferences in [its] favor.”
White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016) (internal citations omitted).
“The controlling question is whether a reasonable trier of fact could find in favor of
the non-moving party on the evidence submitted in support of and opposition to the
motion for summary judgment.” Id.
When cross-motions for summary judgment are filed, “[t]he ordinary standards
for summary judgment remain unchanged [and] we construe all facts and inferences
arising from them in favor of the party against whom the motion under consideration
is made.” Blow v. Bijora, Inc., 855 F.3d 793, 797 (7th Cir. 2017). “Cross-motions must
be evaluated together, and the court may not grant summary judgment for either side
unless the admissible evidence as a whole—from both motions—establishes that no
material facts are in dispute.” Bloodworth v. Vill. of Greendale, 475 Fed. Appx. 92, 95
(7th Cir. 2012).

2

BACKGROUND
To avoid confusion, the Plaintiff, Charles Warrick as Independent
Administrator of the Estate of Ella Odessa Warrick, will be referred to as the
“Estate.” The decedent, Ella Odessa Warrick, will be referred to as “Ms. Warrick.”
Defendant, the United States of America, will be referred to as the “Government.”
I.

Local Rule 56.1
The Court first addresses the Estate’s failure to comply with Northern District

of Illinois Local Rule 56.1. “Local Rule 56.1 statements serve to streamline the
resolution of summary judgment motions by having the parties identify undisputed
material facts and cite the supporting evidence.” Laborers’ Pension Fund v.
Innovation Landscape, Inc., No. 15 CV 9580, 2019 WL 6699190, at *1 (N.D. Ill. Dec.
9, 2019). The Seventh Circuit has “consistently upheld district judges’ discretion to
require strict compliance with Local Rule 56.1.” Kreg Therapeutics, Inc. v. VitalGo,
Inc., 919 F.3d 405, 414 (7th Cir. 2019) (quotation omitted). The Seventh Circuit
“allow[s] strict enforcement of the local rule, recognizing that it is not the duty of the
district court to scour the record in search of material factual disputes.” Id. at 415
(quotation omitted).
“Local Rule 56.1 is designed to isolate the material facts and put them before
the court in an orderly and concise manner.” Graney v. Hartford Fin. Services, Inc.,
No. 01 C 5869, 2002 WL 31248509, at *2 (N.D. Ill. Oct. 4, 2002). The Seventh Circuit
has “frequently said that it is within the district court’s discretion to strictly enforce
local rules regarding summary judgment by accepting the movant’s version of facts
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as undisputed if the non-movant has failed to respond in the form required.”
Zuppardi v. Wal-Mart Stores, Inc., 770 F.3d 644, 648 (7th Cir. 2014).
Rule 56.1 statements of material facts must consist of concise numbered
paragraphs, not to exceed 80 numbered paragraphs, and each asserted fact must be
supported by citation to the specific evidentiary material that supports it. LR 56.1(d).
The Estate’s statement of facts violates each of these requirements. The Estate’s
statement of facts consists of 77 numbered paragraphs, but many are lengthy statements
of multiple discrete facts, and some contain numbered subparagraphs. See e.g., [60] at ¶¶
14, 31, 33, 45, 57. Additionally, many of the Estate’s facts are not supported by the cited
evidentiary material. See e.g., [74] at ¶¶ 11, 13, 17, 18, 50, 63, 71.
The Estate’s memorandum of law in support of its motion for summary judgment
also violates Rule 56.1. “When addressing facts, the memorandum must cite directly to
specific paragraphs in the LR 56.1 statements or responses.” LR 56.1(g). The
memorandum should not cite directly to the record. Madaffari v. Metrocall Companies
Group Policy GL, H-21163-0, Plan No. 501, No. 02 C 4201, 2005 WL 1458071, at *1 (N.D.
Ill. June 15, 2005). The Estate’s brief repeatedly cites directly to the record and asserts
facts not contained in its statement of facts. See e.g., [63].
Finally, a response to a statement of facts must admit, dispute, or admit in part
and dispute in part with specificity the asserted facts. LR 56.1(e)(2). A response may not
assert legal arguments except to make an objection, and any argument that the
objectionable material should not be considered should be included in the party’s
response or reply brief. Id. A response may not assert any new facts. Id. To dispute an
asserted fact, specific evidentiary material that controverts the fact must be cited and
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explained. LR 56.1(e)(3). The Estate’s response to the Government’s statement of facts
repeatedly violates these rules. See e.g., [76] at ¶¶ 13-18, 58, 59, 61, 65 (includes legal
argument in response to facts); id. at ¶¶ 26, 35, 36, 42, 46, 50 (asserts additional facts in
response to facts); id. at ¶ 57 (no citation or explanation to support denial of fact); id. at
¶¶ 58, 59, 61, 68 (fails to admit or dispute fact).
The Government argues that the Court should disregard the Estate’s improperly
asserted facts, [73] at 6, and strike the entirety of the Estate’s response to the
Government’s statement of facts, [80] at 1-2. The Court has discretion to strictly enforce
Rule 56.1 or accept the properly supported facts and responses despite violations. Stevo
v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011). In its discretion, the Court declines to strike
the entirety of the Estate’s facts and responses to the Government’s statement of facts.
The Court will instead disregard facts that are unsupported by the record and responses
that are unpersuasive. See Oxford Bank & Tr. and Fifth Ave. Prop. Mgt. v. Village of La
Grange, 879 F. Supp. 2d 954, 960 (N.D. Ill. 2012).

II.

Factual Background
The Court takes the following background facts from the Government’s

statement of facts [57-1] and statement of additional facts [73-1], and the Estate’s
properly supported statement of facts [60] and statement of additional facts [77]. The
facts are undisputed unless otherwise noted.
A. Ms. Warrick’s Medical Care
Ms. Warrick, born in 1925, moved to Chicago, Illinois in 2018 to live with her
son and daughter-in-law, Charles and Patricia Warrick. [60] at ¶ 5. On December 7,
2018, Ms. Warrick suffered a fall at home and went to the Jesse Brown Veterans
5

Affairs Medical Center (“JBVA”) Emergency Department. Id. at ¶ 7, 9. On December
13, 2018, Ms. Warrick was admitted to the JBVA Community Living Center. [57-1]
at ¶ 5. On December 19, 2018, nursing staff noted that Ms. Warrick had pressure
ulcers, commonly known as bedsores, on her sacrum and both heels. Id. at ¶¶ 7-8;
[60] at ¶ 18. On January 1, 2019, Ms. Warrick’s sacral pressure ulcer was surgically
debrided. Id. at ¶ 25. Debridement is a procedure that removes damaged, dead, or
infected

tissue.

See

https://www.mayoclinic.org/diseases-conditions/bed-

sores/diagnosis-treatment/drc-20355899.
On July 22, 2019, upon her and her family’s request, Ms. Warrick was
transferred to the Tuscaloosa VA Medical Center in Tuscaloosa, Alabama, where Ms.
Warrick had spent most of her life, for hospice care. [57-1] at ¶ 10; [60] at ¶ 29. Ms.
Warrick’s sacral and left heel pressure ulcers never healed. [60] at ¶ 29. Ms. Warrick
passed away on August 5, 2019, at the Tuscaloosa VA Medical Center. Id. The causes
of death listed on Ms. Warrick’s death certificate were: (1) congestive heart failure;
(2) cardiomyopathy; and (3) atrial fibrillation. [57-1] at ¶ 11. Ms. Warrick suffered
from those conditions for over 20 years before she passed away. Id. No conditions
were identified on her death certificate as other significant conditions contributing to
death. Id.
B. VA OIG Complaint and Investigation
Around January 10, 2019, Charles Warrick, Ms. Warrick’s son, submitted a
hotline complaint regarding his mother’s care and pressure ulcer injuries to the VA
Office of the Inspector General (“VA OIG”). [60] at ¶ 41. A responsibility of the VA

6

OIG is to improve quality and safety within Veteran Integrated Service Networks
(“VISNs”). [73-1] at ¶ 70. The VA OIG hotline complaint process focuses on quality of
care and does not accept tort claims or legal matters. Id. at ¶¶ 71, 73. Warrick’s
complaint prompted an investigation and report on the factors that contributed to
Ms. Warrick developing pressure ulcers and whether JBVA nursing staff complied
with the standard of care. [60] at ¶ 43.
Several drafts of the reports were exchanged between JBVA and the VISN and
incorporated feedback and revisions. Id. at ¶¶ 42-50. The final report, dated May 6,
2019, stated that the allegation of the hotline complaint was “negligence,” that a
medical record review and care team meeting were completed, and the allegation was
substantiated. [65-54] at 1-5. The report stated that Ms. Warrick’s care involved a
lack of thorough documentation of skin assessments, and that a consistent turning
schedule was not always followed. Id. at 2. The report also stated that a large
turnover in nursing staff and nurse leadership may have contributed to the lack of
oversight to ensure appropriate nursing interventions for Ms. Warrick. Id. The report
stated that Ms. Warrick may have benefitted from an earlier recommendation for a
different specialty bed to reduce the risk of pressure ulcer development. Id. at ¶ 75.
The report stated that “to improve our Facility-Wide Wound Care Program to ensure
it has resources needed to appropriately provide wound care” approval had been given
to hire two additional wound care practitioners and for nursing personnel to attend
external formal training. Id. at 1. The report also stated that Ms. Warrick “refus[ed]
the position changes and activities that were being encouraged for her care.” Id. at 2.

7

The report stated that Ms. Warrick “had bladder and bowel incontinence which may
have contributed to the skin injury.” Id. at 3.
Deborah Barker, a coordinator of the investigation and a drafter of the report,
testified that she agreed that JBVA nursing staff did not regularly comply with the
standard of care related to documenting skin and wound assessments, and aspects of
Ms. Warrick’s care fell below the standard of care that was owed to her. [60] at ¶ 5255, 59.
C. The VA’s Policies and Procedures for Hiring, Staffing, and
Procurement of Medical Supplies
The Department of Veterans Affairs (“VA”) includes the Veterans Health
Administration (“VHA”) and receives discretionary funding appropriated by
Congress. Id. at ¶¶ 13-14. The VHA is organized into administrative regions called
VISNs that allocate budgets for VHA medical centers including funding for employees
and medical supplies. Id. at ¶¶ 15-17. VHA medical centers decide how to allocate
funding for staffing and hiring. Id. at ¶ 18. VHA Directive 1351, concerning staffing
methodology, states that the “VHA must have a flexible and adaptable methodology
to relate staffing levels and staff mix to clinical outcomes, effectiveness and efficiency;
and to determine long-range staff planning and budget projections” and that staffing
decisions entail use of “professional judgment, critical thinking, and flexibility.” Id.
at ¶¶ 19-20. VHA Directive 1352 requires that each VHA medical facility have one
inpatient certified wound care specialist on staff. Id. at ¶ 21. Suja Mathew was the
wound care specialist at JBVA. Id. at ¶ 23.

8

VHA Directive 1761 states that “[i]t is VHA policy that VA medical facilities
establish, operate, and maintain a [supply chain management] program that is
effective, cost efficient, transparent, and responsive to customer requirements, and
to continually identify ways to improve [supply chain management] performance in
support of high-quality Veteran care.” [57-1] at ¶ 31.
D. Expert Testimony
The Estate and the Government each put forth opinions from two expert
witnesses to provide opinions on the standard of care and causation.
i. The Estate’s Experts
1. Dr. Deborah Lekan
Dr. Lekan1 is a board-certified Gerontological Nurse and former Continence
Care Nurse. [65-60] at 2. Dr. Lekan states that her nursing experience and her
expertise in nursing education, research, and clinic practice serve as the foundation
for her opinion. Id. Dr. Lekan further states that her expertise in frailty in
hospitalized older adults based on current evidence, her clinical experiences, and her
own research also informs her opinions. Id. Dr. Lekan reviewed records including the
VA OIG hotline complaint and report, VA and JBVA policies and procedures, progress
notes and nurses’ notes, skin and pressure injury health summaries, and surgical
report. Id. at 1-2. Based on her review of the records, Dr. Lekan “concluded with a
reasonable degree of nurse certainty that there were significant violations in the

1 Dr. Lekan has a PhD and is therefore referred to as Dr., however she is not a medical doctor.

9

standard of nursing care with respect to the care that should have been provided to
Mrs. Warrick.” Id. at 2.
Dr. Lekan states that the “policies and procedures of the VA and JBVAMC
outlined the actions that nurses needed to take to prevent pressure injuries in Mrs.
Warrick.” Id. at 4. Dr. Lekan states that JBVA nursing staff failed to follow policies
and procedures to conduct and document timely and accurate assessments of skin
and pressure injuries; failed to conduct and document assessments for factors that
impacted Ms. Warrick’s skin integrity; failed to follow policies and procedures for
patient change in condition; failed to timely and effectively communicate with other
nursing staff about changes in condition of the skin and pressure injuries; failed to
timely and effectively address system issues; failed to ensure sufficient nurse staffing;
and failed to ensure bedside nursing staff followed policies and procedures for skin
assessment. Id. at 4-5.
2. Dr. Gregg Davis
Dr. Davis is a board-certified family physician licensed in Illinois. [65-62] at 1.
He is currently the Chief Medical Officer of the Illinois Rural Community Care
Organization and a staff physician at Community Health Partnership—Mendota. Id.
Dr. Davis has 36 years of experience as an attending physician caring for hospitalized
patients and 20 years of experience as an attending physician and medical director
of skilled care, long-term care, and shelter care nursing facilities. Id. He has extensive
clinical experience caring for elderly patients with impaired mobility and a high risk
of developing pressure ulcers. Id. Dr. Davis reviewed records including progress notes

10

from JBVA, surgical reports, skin and pressure injury health summaries, deposition
transcripts, Ms. Warrick’s death certificate, and Dr. Lekan’s expert report. Id. at 1-3.
Dr. Davis states that his opinions are based on his review of the pertinent medical
records, his education and training, his review of the medical literature, and his
knowledge of the accepted medical care for the diagnoses, care, and treatment of the
relevant conditions. Id. at 3.
Dr. Davis states that “the standard of care violations, as outlined in Dr.
Lekan’s report, compromised Ms. Warrick’s blood supply to the skin, overlying her
sacrum and bilateral heels, causing her to develop pressure ulcers.” Id. at 5. Dr. Davis
states that the breaches in the standard of care by JBVA staff, as discussed in Dr.
Lekan’s expert report, “were the direct and proximate causes or contributors to the
formation and failure to heal Ms. Warrick’s sacral and heel ulcers.” Id. Dr. Davis
further states that the “resulting pain from her ulcers contributed to her inability to
participate in physical and occupational therapy, which led to progressive weakness,”
and that the “resulting weakness and ulcer formation contributed to her prolonged
hospitalization,

nursing

home

admission,

severe

pain,

functional

decline,

disfigurement, and failure to return to independent living.” Id. Dr. Davis states that
“the physiological stress of her decubitus ulcers, immobility, and function decline
contributed to her death.” Id.
Dr. Davis testified that Ms. Warrick’s “various issues, the decubitus ulcers, her
immobility and functional decline” meant that Ms. Warrick was “less up and moving

11

around” and “more likely in that scenario to develop atelectasis, pneumonia, and fluid
overload.” [57-3] at 207 (Davis Dep. Tr. 198:7-13). Dr. Davis further testified:
[Ms. Warrick] was utilizing the assets of her body to attempt to heal these, and
the combination of all those events contributed to her death. I’m not saying
that it caused her death, but it contributed to her death. It made her less
capable of fighting off and compensating other chronic disease states.
Id. (Davis Dep. Tr. 198:14-20). Dr. Davis also testified that he agreed with the
conditions listed on Ms. Warrick’s death certificate:
Q. Okay. And then the conditions listed there are congestive heart failure,
cardiomyopathy and atrial fibrillation; is that right?
A. Agreed.
Q. And you’re not providing an opinion that those are not causes of her death?
A. No, I’m not. I would agree with that.
Id. (Davis Dep. Tr. 199:20-200:2).
ii. The Government’s Experts
1. Dr. Kathleen Thimsen
Dr. Thimsen2 is a registered nurse with 47 years of experience in patient care.
[65-64] at 1. She was initially certified as a wound management specialist in 1980
and has been a forensic nursing specialist for the past 20 years. Id. Dr. Thimsen has
consulted on over 25,000 patients in her clinical practice providing wound
management services and consultations. Id. Dr. Thimsen’s work in the wound
management field has also included training and educating physicians, nurses, and
other members of healthcare teams. Id. Dr. Thimsen has authored articles and
textbook chapters related to wounds, pressure injuries, abuse, and neglect. Id. Dr.

2 Dr. Thimsen has a Doctor of Nursing Practice (DNP) and is therefore referred to as Dr., however

she is not a medical doctor.

12

Thimsen reviewed records including JBVA medical records, Tuscaloosa VA medical
records, VA policies, Dr. Lekan’s expert report, Dr. Davis’s expert report, and
deposition transcripts. Id. at 2-3. Dr. Thimsen based her opinions on her professional
experience in wound care, management of at-risk patients, certifications, awareness
of guidelines, and review of medical records and other materials. Id. at 1. Dr. Thimsen
opines to a reasonable degree of medical certainty that “the care that Ms. Warrick
received was within the standard of care.” Id.
Dr. Thimsen states that JBVA nursing staff “provided interventions to reduce
the risk of pressure injuries and their deterioration within the standard of care and
based on the Braden Scale instrument.” Id. at 7. She states that nursing staff used
the Braden Scale to assess risk, implemented a pressure ulcer protocol, followed a
turning schedule, provided heel protectors and used pillows to elevate Ms. Warrick’s
feet, and ordered a low air mattress. Id. at 7-9. According to Dr. Thimsen, these
topical wound treatments were within the standard of care and were used in
accordance with VA policies. Id. at 9. Dr. Thimsen also believes that the two-day
turnaround for a wound consultation was within an acceptable time frame given the
type of wound and mechanism of putting in a request for consultation. Id.
Dr. Thimsen states that the standard of care for turning is every two hours.
Id. at 18. She opines that the “records and testimony reflect consistent turning and
repositioning, when allowed by the patient.” Id. Dr. Thimsen notes that “[a]t times,
position changes could not be done because of the refusals of Ms. Warrick or her son.”
Id. at 19. She further notes that the records show nursing staff educated Ms. Warrick

13

and her son about the importance of repositioning, but that it was within the standard
of care for nurses to not move a patient without permission. Id.
Dr. Thimsen states that nursing staff followed the standard of care by
providing a low air loss mattress to Ms. Warrick following an assessment that Ms.
Warrick’s Braden score was in the moderate range. Id. at 19-20. Dr. Thimsen states
that low air loss mattresses have been the standard of care for greater than 20 years.
She disagrees with Dr. Lekan’s opinion that a Clinitron bed is the appropriate
standard of care, stating that such a device is not considered preventative and is
reserved for extreme and severe cases. Id. at 20.
2. Dr. Robert Kelly.
Dr. Kelly is a licensed medical doctor who is board-certified in internal
medicine and was board-certified in geriatric medicine from 2007 to 2016. [73-1] at ¶
94. Dr. Kelly maintains a specialty in internal medicine, geriatric medicine, hospital
medicine, and long-term care medicine. [65-66] at 2. Dr. Kelly is currently on medical
staff at Texas Health Harris Methodist Hospital Fort Worth, Baylor Scott & White
Medical Center Fort Worth, Texas Rehabilitation Hospital of Fort Worth, and Texas
Health Resources-Texas Health Specialty Hospital. Id. at 2-3. He has also previously
worked at hospice and long-term post-acute care facilities. Id. at 2. Dr. Kelly states
he is familiar with the standard of care at facilities like JBVA, and that he works
with nurses daily and directly assesses their work and care. Id. Dr. Kelly reviewed
records including Ms. Warrick’s medical records and death certificate, VA and JBVA
policies, Dr. Lekan’s and Dr. Davis’s expert reports, and deposition transcripts. Id. at

14

1-3. Based on his review of the records and his experience, Dr. Kelly opined that JBVA
staff acted within the appropriate standard of care at all times. Id. at 2, 10.
Dr. Kelly opines that Ms. Warrick’s skin breakdown was caused by her
preexisting underlying diseases and frailty, as well as the fall which led to her
admission to JBVA. Id. at 11. According to Dr. Kelly, JBVA staff acted within the
standard of care and Ms. Warrick’s skin breakdown was unavoidable. Id. at 12. Dr.
Kelly states that “[t]here are no examples of staff declining to give care” and notes
that “[t]he only reductions in care were those made by Mrs. Warrick and her son” and
that such refusals are “reasonable for a frail elderly woman at the end of her life
suffering heart failure, frailty, dementia, and progression of neurocognitive illness.”
Id. at 16.
Dr. Kelly states that he disagrees with some of Dr. Lekan’s opinions regarding
the standard of care. Id. at 16. For example, Dr. Kelly disagrees that the standard of
care for nurses includes ordering or proposing treatments for pain like neural blocks,
spinal blocks, and patient-controlled analgesia, which Dr. Kelly states is the
responsibility of doctors and not nurses. Id. at 16-17. Dr. Kelly also disagrees that a
Clinitron mattress was not timely provided, and states that wound care and
prevention treatment beyond what the JBVA nursing staff provided would not be
part of the standard of care. Id.
Dr. Kelly also disagrees with some of Dr. Davis’s opinions. Dr. Kelly criticizes
Dr. Davis for beginning his analysis on December 8, 2018, the day after Ms. Warrick’s
fall. Id. at 20. Dr. Kelly states that beginning the analysis there overlooks Ms.

15

Warrick’s years of degenerative disease, pain, heart failure, physical decline and
frailty prior to her fall and hospitalization. Id. Dr. Kelly states that there is no
scientific measure to the “assets of the body” term used by Dr. Davis. Id. at 22. Dr.
Kelly opines that Ms. Warrick’s pressure ulcers did not contribute to her death or the
progression of her chronic underlying conditions, and the pressure ulcers were a sign
of Ms. Warrick’s terminal disease. Id. at 24.
E. Claims and Cross Motions for Summary Judgment
The Estate brings this action for negligence and wrongful death pursuant to
the Federal Tort Claims Act (“FTCA”). [57-1] at ¶ 1. The Estate alleges that
Defendant, by and through its employees and agents, negligently:
(a) Failed to allocate sufficient resources to adequately staff the facility to
provide appropriate care, treatment, and supervision when it knew or
should have known that the facility was understaffed and unable to provide
reasonable care including, but not limited to, providing adequate
assistance with turning and repositioning, providing timely wound care
consultations, and maintaining a sufficient number of appropriately
trained wound treatment nurses, and other staff to assist in the prevention
of patients developing pressure ulcers and having them deteriorate;
(b) Failed to allocate sufficient resources to provide necessary medical supplies
including, but not limited to, pressure relieving devices, sufficient air loss
mattresses, heel protectors, wound care dressings, incontinence
pads/diapers, and other tools to prevent the development and deterioration
of pressure ulcers;
(c) Failed to adequately hire trained registered nurses, licensed practical
nurses, treatment nurses, and certified nursing assistants, and/or
adequately train the same, to provide appropriate care and supervision to
prevent pressure ulcers from developing, worsening, and becoming
infected;
(d) Failed to ensure that the facility’s policies and procedures were properly
implemented and followed;

16

(e) Failed to appropriately assess Ms. Warrick’s risk for the development and
deterioration of pressure ulcers;
(f) Failed to develop an appropriate care plan to address Ms. Warrick’s risk
for the development and deterioration of pressure ulcers;
(g) Failed to implement an appropriate care plan to address Ms. Warrick’s risk
for the development and deterioration of pressure ulcers;
(h) Failed to provide Ms. Warrick with appropriate assistance with turning
and repositioning and other interventions to help prevent her from
developing pressure ulcers and having them deteriorate;
(i) Failed to timely provide Ms. Warrick with appropriate pressure relieving
devices, including an appropriate low air loss mattress and heel protectors;
(j) Failed to timely inform Ms. Warrick, and her family, regarding changes in
her health condition, including, but not limited to, the development of new
skin breakdown and the deterioration of the same; and
(k) Failed to timely and appropriately document in Ms. Warrick’s medical
record details pertaining to her skin status, changes in condition, and more.
[1] at ¶ 30 (Counts I(a) – I(k)). The Estate also alleges that Defendant’s negligent acts
and/or omissions directly and proximately caused and/or contributed to Ms. Warrick’s
death. Id. at ¶ 41 (Count II).
The parties filed cross motions for summary judgment. The Government moves
for summary judgment as to Counts I(a) – I(d) and Count II. [57]. The Government
requests that the Court exclude the testimony of Dr. Davis as it relates to cause of
death. Id. at 16. The Estate moves for summary judgment in the entirety. [58]. The
Estate requests that the Court exclude the testimony of Dr. Thimsen entirely or
specifically as it relates to causation, [63] at 11, exclude the testimony of Dr. Kelly as
it relates to the standard of care and violations of the standard, id. at 12, and to
exclude the testimony of both Dr. Thimsen and Dr. Kelly that is speculative, id. at
17

13. In addition to moving for summary judgment on all claims, the Estate also makes
various prayers for relief, including that Defendant’s experts be barred from
testifying at trial; alternatively that only one of Defendant’s experts be permitted to
provide nursing, medical, and causation opinions, respectively; and that if the Court
finds that the Estate has not met its burden of proof on any claims, that it be
permitted to amend its pleading. [58] at 19-20; [75] at 19-20.
ANALYSIS
I.

Admissibility of Expert Testimony
Both parties have challenged the admissibility of expert testimony. A party

may object that material cited to support or dispute a fact cannot be presented in a
form that would be admissible in evidence. Fed. R. Civ. P. 56(c)(2). The Government
argues that Dr. Davis’s opinions on causation of death are inadmissible because they
are unreliable and do not set forth any evidence of causation. [57] at 16. The Estate
argues that Dr. Thimsen is not qualified to give opinions to a reasonable degree of
medical certainty or give opinions on causation. [63] at 11. The Estate also argues
that Dr. Kelly is not qualified to give opinions on the nursing standard of care. Id. at
12. Finally, the Estate argues that both Dr. Thimsen and Dr. Kelly gave speculative
opinions that should be barred. Id. at 13.
Matters relating to the admissibility of scientific expert testimony are
governed by Federal Rule of Evidence 702 and Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Chapman v. Maytag Corp., 297 F.3d

18

682, 686 (7th Cir. 2002). A witness “who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion” if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflect a reliable application of the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Under the Daubert framework, the district court must engage in a three-step
analysis before admitting expert testimony, determining whether (1) the witness is
qualified; (2) the expert’s methodology is scientifically reliable; and (3) the testimony
will assist the trier of fact to understand the evidence or to determine a fact in issue.
Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 779 (7th Cir. 2017) (quoting
Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010)). District courts have
“broad latitude both in deciding how to determine reliability and in making the
ultimate reliability determination.” Bryant v. City of Chicago, 200 F.3d 1092, 1098
(7th Cir. 2000). The court “is expected to reject any subjective belief or speculation.”
Ammons v. Aramark Unif. Services, Inc., 368 F.3d 809, 816 (7th Cir. 2004) (quoting
Chapman, 297 F.3d at 687). The following non-exhaustive factors may be considered
in determining reliability: (1) whether the scientific theory has been or can be tested;
(2) whether the theory has been subjected to peer-review and/or academic publication;
(3) whether the theory has a known rate of error; and (4) whether the theory is
generally accepted in the relevant scientific community. C.W. ex rel. Wood v. Textron,
Inc., 807 F.3d 827, 835 (7th Cir. 2015). “Ultimately, reliability is determined on a
19

case-by-case basis.” Id. (citing Ervin v. Johnson & Johnson, 492 F.3d 901, 904 (7th
Cir.2007)).
A. Dr. Davis
The Government does not challenge Dr. Davis’s qualifications or reliability
regarding his opinions on the Estate’s medical malpractice claims. See e.g., [57]. The
Government also does not challenge Dr. Davis’s qualifications to give an opinion on
causation of death. See id. at 16-20. As discussed above, Dr. Davis is a board-certified
family physician licensed in Illinois, has 36 years of experience as an attending
physician caring for hospitalized patients, 20 years of experience as a medical director
of long-term care facilities, and has clinical experience caring for elderly patients with
high risk of developing pressure ulcers. See [65-62] at 1. The Court finds that Dr.
Davis is qualified to opine on cause of death.
The Government objects to the reliability of Dr. Davis’s opinions on the
causation element of the Estate’s wrongful death claim. [57] at 16-20. Dr. Davis’s
opinion is that the breaches in the standard of care by JBVA nurses caused Ms.
Warrick’s pressure ulcers to form, that her pressure ulcers led to progressive
weakness, and that “the physiological stress of her decubitus ulcers, immobility, and
function decline contributed to her death.” [65-62] at 5. Dr. Davis expanded on his
theory on causation of death during his deposition, testifying that Ms. Warrick was
“utilizing the assets of her body to attempt to heal” which “made her less capable of
fighting off and compensating other chronic disease states.” [57-3] at 207. Dr. Davis
also testified that he agreed with the causes of death listed on Ms. Warrick’s death

20

certificate, that identified congestive heart failure, cardiomyopathy, and atrial
fibrillation. Id.
Dr. Davis’s report does not explain the bases for his opinions on causation of
death. See e.g., [65-62]. Dr. Davis does not provide an explanation as to how the
sources he reviewed, including Ms. Warrick’s medical records and death certificate,
support his conclusions. See id. Dr. Davis’s theory that Ms. Warrick was forced to
utilize the “assets of her body” to heal is not found in his report. Compare [57-3] at
207 with [65-62]. Dr. Davis provides no definition for assets of the body, does not state
whether assets of the body is a measurable or quantifiable concept, and gives no
indication whether he measured or quantified Ms. Warrick’s assets of the body,
indicating that the theory is not one that can be tested. See [65-62]. The Government’s
expert, Dr. Kelly, states that he has never encountered the term “assets of her body”
as a medical professional and asserts that “there is no scientific measure” of the term.
[65-66] at 22. In his rebuttal report, Dr. Davis does not address Dr. Kelly’s criticisms
and offers no further explanation or support for his conclusions on causation of death.
See [57-5]. Dr. Davis does not provide any citations to medical literature to support
his theory, indicating that the theory has not been subject to peer review or
publication, and may not be generally accepted in the medical community. See [6562].
An expert’s testimony on causation may be inadmissible where the opinion
“amounts to speculation, subjective belief, or an idiosyncratic hypothesis that is not
based on a recognized scientific method.” Ortega v. United States, No. 16-CV-8402,

21

2021 WL 4477896, at *7 (N.D. Ill. Sept. 30, 2021) (internal quotes omitted) (citing
Timm v. Goodyear Dunlop Tires N. Am., Ltd., 932 F.3d 986, 994 (7th Cir. 2019); Porter
v. Whitehall Lab'ys, Inc., 9 F.3d 607, 615 (7th Cir. 1993)). Dr. Davis’s theory appears
to be a personal hypothesis based on subjective belief, rather than a concept widely
accepted in the medical community. See Porter, 9 F.3d at 615. The Court therefore
finds that Dr. Davis’s opinions on the cause of death to be not reliable.
The Court also finds that Dr. Davis’s opinion on cause of death would not be
helpful to the trier of fact. The Estate must prove proximate causation to succeed on
its wrongful death claim. See McComb v. Bugarin, 20 F. Supp. 3d 676, 682 (N.D. Ill.
2014). Proximate cause encompasses two distinct requirements: cause in fact and
legal cause. Id. For cause in fact, the court asks “whether the injury would have
occurred absent the defendant’s conduct.” Id. Dr. Davis testified that Ms. Warrick’s
pressure ulcers did not cause, but instead contributed, to her death. See [57-3] at 207
(“I’m not saying that it caused her death, but it contributed to her death.”). He also
testified that he agreed with the causes of death listed on Ms. Warrick’s death
certificate, which did not include her pressure ulcers. Id. Dr. Davis’s opinion does not
support that the alleged negligence of JBVA nurses was the cause in fact of Ms.
Warrick’s death, therefore his opinion would not be helpful to the trier of fact to
determine proximate causation for the Estate’s wrongful death claim.
The Court grants the Government’s request to exclude Dr. Davis’s opinions
regarding cause of death.
B. The Government’s Experts

22

i. Dr. Thimsen
The Estate objects to Dr. Thimsen’s report in its entirety on the basis that she
stated her opinions were to a reasonable degree of “medical certainty” rather than
“nursing certainty.” [63] at 11. Alternatively, the Estate requests that Dr. Thimsen’s
opinions on causation be barred on the basis that Dr. Thimsen is not a physician and
is therefore not qualified to opine on causation. Id.
The Court will not find Dr. Thimsen’s entire report inadmissible on the basis
that the Estate argues. Federal rules, not state law, govern the admissibility of expert
evidence in FTCA suits. Midland State Bank v. United States, 634 F. Supp. 3d 498,
513 (N.D. Ill. 2022) (citing Love v. United States, 17 F.4th 753, 756 (7th Cir. 2021)).
Federal Rule of Evidence 702 does not require an expert to state his or her opinions
are to a reasonable degree of “medical certainty” or “nursing certainty.” Fed. R. Evid.
702; see Midland, 634 F. Supp. 3d at 513. The proper analysis is for the Court to
determine whether Dr. Thimsen’s opinions are admissible under Rule 702 and
Daubert.
First, the Court finds that Dr. Thimsen’s opinions on the standard of care are
admissible. Dr. Thimsen is a registered nurse with 47 years of experience in patient
care, is certified as a wound management specialist, has consulted on over 25,000
patients, has authored articles and textbook chapters on the topic of wounds and
pressure injuries, and provides training and education on wound management to
physicians and nurses. [65-64] at 1. She is qualified to opine on the standard of care
for JBVA nurses. Dr. Thimsen’s opinions on the appropriate standard of care are also

23

reliable. Her opinions are based on her professional experience in wound care and
management of patients, certifications, awareness of guidelines, and records she
reviewed. [65-64] at 1. Dr. Thimsen explains how various treatments or interventions
work and why they comprise the standard of care. For example, she states that the
Braden Tool has been used globally since 1988 to assess risk of skin breakdown, id.
at 7; heel protectors are used to reduce pressure, friction, and shear, id. at 9; low-air
loss mattresses for pressure distribution are a basic prevention strategy and also used
as a therapeutic strategy to promote healing, id. Dr. Thimsen’s opinions are relevant
and will be helpful to the trier of fact. Her opinions articulate what she believes the
relevant standard of care was for JBVA nurses’ treatment of Ms. Warrick, which is
an essential element to the Estate’s claims.
The Estate’s reliance on Johnson v. United States, 65 F. Supp. 3d 595 (N.D. Ill.
2014) is misplaced. See [63] at 11. In Johnson, the court held that a nurse could not
provide expert testimony on the standard of care that a physician should have
followed. 65 F. Supp. 3d at 607 n.12 (“[T]he opinions are inadmissible because Nurse
Fedorka is not a licensed physician, and therefore, she may not render opinions on
the applicable standard of care for a physician.”). Here, Dr. Thimsen is opining on the
standard of care for nurses, which Dr. Thimsen is qualified for.
Next, the Court finds that Dr. Thimsen’s opinions on causation are not
admissible. Dr. Thimsen theorizes that Ms. Warrick’s initial fall resulting in her
hospitalization was the result of an “ischemic event” and that Ms. Warrick suffered
from “deep tissue injuries” because of her fall. [65-64] at 10-11. Dr. Thimsen’s opinion

24

is that Ms. Warrick’s pressure ulcers were the result of her deep tissue injuries and
were therefore “unavoidable.” Id. Dr. Thimsen appears highly qualified to opine on
the treatment and care of wounds and pressure injuries, but she is not qualified to
give the causation opinion she offers here. Dr. Thimsen is not a medical doctor, and
her opinion is a speculative diagnosis of the cause of Ms. Warrick’s injuries. Dr.
Thimsen theorizes that Ms. Warrick suffered from an “ischemic event.” A transient
ischemic attack is caused by a brief blockage of blood flow to the brain, similar to a
stroke. 3 Dr. Thimsen connects the possibility of an ischemic event to Ms. Warrick’s
pre-existing cardiovascular issues and other co-morbidities. [65-64] at 11. These
speculative inferences are outside of Dr. Thimsen’s area of expertise as a nurse
specializing in wound care.
The Court grants in part and denies in part the Estate’s request to exclude Dr.
Thimsen’s opinions.
ii. Dr. Kelly
The Estate objects to the admissibility of Dr. Kelly’s opinions, arguing that he
is not a nurse and therefore is not qualified to give opinions on the nursing standard
of care. [63] at 12-13. Dr. Kelly is a licensed medical doctor, board-certified in internal
medicine, has experience in hospice and long-term post-acute care facilities, and
works with nurses daily to assess their work and care. [65-66] at 2. Dr. Kelly is
qualified to provide opinions on the standard of care applicable to JBVA nurses. See
Love, 17 F.4th at 756 (affirming admission of medical doctor testimony in FTCA
3 See https://www.mayoclinic.org/diseases-conditions/transient-ischemic-attack/symptoms-causes/syc-

20355679.

25

negligence case against nurse and rejecting argument that “only a nurse practitioner
may testify about whether that decision met the standard of care”).
The Estate also objects to Dr. Kelly’s opinion that Ms. Warrick’s skin
breakdown was unavoidable as speculative. [63] at 16-18. As discussed above, Dr.
Kelly is qualified to provide an opinion on the cause of Ms. Warrick’s injuries. Dr.
Kelly states that Ms. Warrick’s deconditioning was unavoidable and a natural
progression of Ms. Warrick’s aging and co-morbidities including heart disease,
neurocognitive disorder, weakness, and advanced age. [65-66] at 10. He further
opines that Ms. Warrick’s skin breakdown was caused by her preexisting underlying
diseases and frailty, as well as the initial fall that prompted her hospitalization. Id.
at 11. Dr. Kelly details the various treatments and interventions performed by JBVA
nursing staff and concludes that they were timely and met the standard of care. Id.
at 11-12. He concludes that “[i]n such a setting, skin breakdown that develops is
reasonable considered unavoidable.” Id. at 12.
Dr. Kelly states his opinions are based on his education, experience, training,
relevant medical literature, and review of records. His report is supported by ample
citations to the medical records providing the basis for his opinions. The Court finds
that Dr. Kelly’s opinions on causation are reliable. They are also relevant because
causation is an essential element of the Estate’s claims. The Court denies the Estate’s
request to exclude Dr. Kelly’s opinions.
II.

Wrongful Death

26

The Estate alleges that Defendant’s negligent acts or omissions caused Ms.
Warrick to develop multiple pressure ulcers which “caused and/or contributed to
cause her death.” [1] at ¶ 41 (Count II). The Government moves for summary
judgment on the wrongful death claim, arguing that the Estate “lacks admissible
expert opinion to establish that any JBVA nurses breached a standard of care and
that such breach proximately caused Warrick’s death.” [57] at 16. The Estate also
moved for summary judgment on its wrongful death claim. See [63]. However, the
Estate made no argument in support of its wrongful death claim, see id., and in
response to the Government’s motion argued that there are genuine disputes of
material fact that preclude summary judgment. See [75] at 17-19.
To prove a tort under the FTCA, a plaintiff must prove the elements “in
accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A.
§ 1346(b)(1); see also Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295,
1297 (7th Cir.1991) (“the FTCA incorporates the substantive law of the state where
the tortious act or omission occurred”). The acts or omissions of this case occurred in
Illinois; therefore, the Court applies Illinois substantive law.
Under Illinois law, the Estate must prove: “(1) defendant owed a duty to
decedent; (2) defendant breached that duty; (3) the breach of duty proximately caused
decedent's death; and pecuniary damages arising therefrom to persons designated
under the Act.” Leavitt v. Farwell Tower Ltd. Partn., 625 N.E.2d 48, 52 (Ill. App. 1st
Dist. 1993). “The element of proximate cause must be established by expert
testimony, and the causal connection may not be ‘contingent, speculative, or merely

27

possible.’” Jefferson v. Mercy Hosp. & Med. Ctr., 97 N.E.3d 173, 181-82 (Ill. App. 1st
Dist. 2018) (quoting Townsend v. University of Chicago Hospitals, 741 N.E.2d 1055
(Ill. App. 1st Dist. 2000)).
As discussed above, the Court finds that Dr. Davis’s opinions on cause of death
are not reliable and are therefore inadmissible. The Estate therefore has no expert
testimony to establish causation, and summary judgment is granted in the
Government’s favor. See Myers, 629 F.3d at 645.
III.

Discretionary Function Exception

The FTCA provides a broad waiver of the United States’ sovereign immunity
and provides for a cause of action for tort claims “caused by the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of
his office or employment.” 28 U.S.C.A. § 1346(b)(1); see Lipsey v. United States, 879
F.3d 249, 253 (7th Cir. 2018). Congress has carved out several exceptions to the
FTCA’s broad waiver of sovereign immunity, including the “discretionary function
exception” (“DFE”) which applies to “[a]ny claim … based upon the exercise or
performance or the failure to exercise or perform a discretionary function or duty on
the part of a federal agency or an employee of the Government, whether or not the
discretion involved be abused.” 28 U.S.C.A. § 2680(a); see Reynolds v. United States,
549 F.3d 1108, 1112 (7th Cir. 2008). “The purpose of this discretionary-function
exception is to ‘prevent judicial ‘second-guessing’ of legislative and administrative
decisions grounded in social, economic, and political policy through the medium of an

28

action in tort.’” Reynolds, 549 F.3d at 1112 (quoting United States v. Varig Airlines,
467 U.S. 797, 814 (1984)).
The DFE applies if the challenged government conduct meets two
requirements: (1) the alleged conduct must involve an element of judgment or choice;
and (2) the alleged conduct must amount to a permissible exercise of policy judgment.
Id. (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991); Berkovitz v. United
States, 486 U.S. 531, 536 (1988)). Conduct cannot be discretionary, and therefore fails
the first requirement, if a federal statute, regulation, or other policy specifically
prescribes a course of action for an employee to follow. Id. (quoting Berkovitz 486 U.S.
at 536). The government actor’s intent is not relevant to the court’s analysis of
whether the discretionary function exception applies. Id. (citing Palay v. United
States, 349 F.3d 418, 428 (7th Cir.2003)).
The Estate alleges that Defendant negligently failed to: (a) adequately staff
the JBVA; (b) allocate sufficient medical supplies; and (c) adequately hire and train
staff. [1] at ¶ 30(a)-(c) (Count I(a)-(c)). The Government argues that the DFE applies
to these claims because there is no federal statute, regulation, or policy that
specifically prescribes a course of action the VA must follow with respect to hiring,
staffing, training, and allocation of medical supplies. [57] at 5.
A. Medical Supplies
The Estate alleges that Defendant “[f]ailed to allocate sufficient resources to
provide necessary medical supplies including … tools to prevent the development and
deterioration of pressure ulcers.” [1] at ¶ 30(b). The Estate makes no argument

29

against the DFE’s applicability to allocation of sufficient medical supplies and does
not cite any applicable statute, regulation, or policy that the VA must follow with
respect to allocation of medical supplies. See e.g., [57]. Separately, in response to the
Government’s argument for summary judgment on the Estate’s wrongful death claim,
the Estate clarifies “[f]or sake of efficiency” that it “does not intend to allege that
JBMC lacked supplies or a certain amount of supplies.” [57] at 13. While this
assertion may evidence the Estate’s intent to abandon its medical supplies claim, the
Court also finds that the DFE applies to the VA’s allocation of medical supplies in
this case.
Neither party has identified any applicable statute, regulation, or policy that
prescribes a course of action the VA must follow regarding allocating resources for
medical supplies. Under VHA Directive 1761, the VA Secretary is directed to operate
and maintain a supply chain program that is “effective, cost efficient, transparent,
and responsive to customer requirements.” [57-1] at ¶ 31. Therefore, the VA’s actions
in allocating resources for medical supplies involves discretion and satisfies the first
requirement of the DFE test. The Court can also presume that decisions regarding
medical supply allocation are grounded in policy, satisfying the second requirement
of the DFE test. See Gaubert, 499 U.S. at 324 (“When established governmental policy
… allows a Government agent to exercise discretion, it must be presumed that the
agent’s acts are grounded in policy when exercising that discretion.”). The Court
therefore finds that the DFE applies to the JBVA’s allocation of medical supplies. See
also Tolbert v. Gallup Indian Med. Ctr., 555 F. Supp. 3d 1133, 1172 (D.N.M. 2021)

30

(“[A]bsent a mandatory regulation, the selection of an emergency room's equipment
is precisely the sort of policy-based decision protected by the discretionary function
exception.”); Dollins v. United States, No. 15-21731-CIV, 2016 WL 398228, at *3 (S.D.
Fla. Feb. 2, 2016) (“There are social and economic considerations the VA must
evaluate when purchasing wheelchairs for veterans, including controlling limited
resources and managing logistics. The discretionary function exception protects these
types of decisions.”).
B. Staffing, Hiring, and Training
The Estate alleges that Defendant “[f]ailed to allocate sufficient resources to
adequately staff the facility to provide appropriate care” including “maintaining a
sufficient number of appropriately trained wound treatment nurses.” [1] at ¶ 30(a).
The Estate additionally alleges that Defendant “[f]ailed to adequately hire trained
nurses … and/or adequately train the same.” Id. at ¶ 30(c). The Government argues
that there is no federal statute, regulation, or policy prescribing a course of action for
the VA to follow with regard to staffing, hiring, or training, therefore the DFE applies.
[57] at 5. The Estate argues that VHA Directive 1351 is a mandatory policy which
required the JBVA to implement staffing plans, and that the JBVA failed to comply
with this mandatory directive. [75] at 3-4; see [57-5] at 21-23. The Estate alternatively
argues that the JBVA’s alleged failure to adequately staff, hire, and train staff was a
failure to implement safety measures, which cannot fall within the DFE. Id. at 12.
Numerous federal appellate courts have held that decisions relating to the
hiring, training, and supervision of employees generally fall within the DFE. See

31

Snyder v. United States, 590 Fed. Appx. 505, 510 (6th Cir. 2014) (unpublished) (hiring
and supervisory decisions fall within the discretionary function exception); Guile v.
United States, 422 F.3d 221, 231 (5th Cir. 2005) (same); Vickers v. United States, 228
F.3d 944, 950 (9th Cir. 2000) (same); Burkhart v. Washington Metro. Area Transit
Auth., 112 F.3d 1207, 1217 (D.C. Cir. 1997) (same); Richman v. Straley, 48 F.3d 1139,
1146-47 (10th Cir. 1995) (same); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir.
1995) (same); see also Moore v. United States, No. 17 C 795, 2018 WL 1035872, at *5
n.4 (N.D. Ill. Feb. 22, 2018) (“[D]ecisions concerning the hiring, training, and
retention of employees typically fall with the discretionary function exception.”).
Specifically with regard to the VA, federal courts have found that the VA’s
conduct in hiring, training, retaining, and supervising employees falls within the
DFE. See Huff v. United States, No. 18CV10344DDPKSX, 2020 WL 2510520, at *3
(C.D. Cal. Mar. 5, 2020) (holding that DFE applied to inadequate staffing, hiring,
training, and supervision claims against VA); Brown v. United States, No. CV 171551, 2018 WL 741731, at *6 (E.D. Pa. Feb. 7, 2018), aff'd, 823 Fed. Appx. 97 (3d Cir.
2020) (unpublished) (holding that DFE applied to negligent hiring, retention,
training, discipline, and supervision claims against VA); Hooper v. United States, No.
1:12-CV-00297-CL, 2013 WL 5530603, at *3 (D. Or. Sept. 25, 2013) (holding that lack
of training, supervision, and instruction claims against VA fall within DFE and
granting summary judgment).
However, the DFE does not categorically bar all negligent hiring, supervision,
and retention claims. See Lins v. United States, 847 Fed. Appx. 159, 165 (4th Cir.

32

2021) (unpublished). Such claims should be analyzed according to the two-part
Gaubert test. Id.
i. The Challenged Conduct Was Discretionary in Nature
The Estate argues that VHA Directive 1351 prescribes a mandatory course of
action for the JBVA to follow with regard to staffing, therefore the DFE is not
applicable. [75] at 3. The Estate alleges that Directive 1351 makes the
implementation of staffing plans a mandatory action which JBVA failed to perform
in relation to the staffing of JBVA’s wound care department. Id. at 4. The Estate
concedes that Directive 1351 allows discretion in developing staffing plans but argues
that implementation of a developed staffing plan is mandatory and nondiscretionary.
Id. at 5.
The Estate’s argument is unconvincing. Directive 1351 clearly provides the VA
with discretion in relation to nurse staffing. The directive states that the VA “must
have a flexible and adaptable methodology to relate staffing levels and staff mix to
clinical outcomes, effectiveness, and efficiency.” [57-5] at 4. It further states that
“[s]taffing decisions require … professional judgment, critical thinking, and
flexibility” and that “[s]taffing needs are individualized to specific clinical settings
and cannot rely solely on ranges and fixed staffing models, staff-to-patient ratios, or
prescribed patient formulas.” Id. The Estate focuses on the language “[n]ext,
implement the staffing plan” to argue that implementation is mandatory even if the
development

of

staffing

plans

is

discretionary.

That

language

regarding

implementation is step 15 in a 17-step flow chart detailing the staffing methodology.

33

Id. at 21-23. The subsequent steps are to “analyze and collect outcome measures” and
“conduct[] on-going staffing analysis,” which indicates that the staffing methodology
is an iterative and ongoing process. Id. The Court therefore finds that Directive 1351
does not prescribe a course of action that VA employees must adhere to with regard
to general nurse staffing.
Additionally, the Estate’s theory assumes that an approved staffing plan
existed to hire additional wound care specialists. See e.g., [75] at 4-5. The Estate relies
on the report developed in response to Charles Warrick’s complaint to the VA OIG
and deposition testimony from various JBVA staff members to argue that the JBVA
had a plan to hire additional wound care specialists. Id. However, the Estate points
to no evidence that such a plan was developed pursuant to the 17-step plan set out in
VHA Directive 1351 that requires, among other things, collection and analysis of
data, a review and approval process, including approvals from a Facility-Expert
Panel, the Nurse Executive, and the Director. See [57-5] at 21-23.
Regarding wound care specialists specifically, VHA Directive 1352 requires
that VA medical facilities have one inpatient certified wound care specialist on staff,
and JBVA did have at least one such specialist, Suja Mathew, on staff during the
relevant time period. [57-1] at ¶¶ 21-23. The Estate’s allegations that JBVA failed to
hire additional wound care specialists concerns conduct that has an element of
judgment or choice. The Court therefore finds that the challenged conduct was
discretionary.
ii. The Challenged Conduct Was Policy-Based

34

Decisions relating to the hiring, training, and supervision of employees are
susceptible to policy judgment. Hiring decisions require consideration of a variety of
factors including “budgetary constraints, public perception, economic conditions,
‘individual backgrounds, office diversity, experience and employer intuition.’”
Burkhart, 112 F.3d at 1217 (quoting Tonelli, 60 F.3d at 496). Supervision decisions
involve “a complex balancing of budgetary considerations, employee privacy rights,
and the need to ensure public safety” and training decisions involve “consideration of
fiscal constraints, public safety, the complexity of the task involved, the degree of
harm a wayward employee might cause, and the extent to which employees have
deviated from accepted norms in the past.” Id.
The Estate alternatively argues that, even if no mandatory directives apply, a
failure to implement a plan, particularly when involving matters of safety, does not
fall within the DFE [75] at 10. The Estate relies on Whisnant v. United States, 400
F.3d 1177 (9th Cir. 2005) to distinguish between discretionary design of a plan and
mandatory implementation of a plan. Id. As a court in this district has noted,
however, the Ninth Circuit’s post-Whisnant precedent makes clear that the DFE still
applies where “the implementation itself implicates policy concerns.” In Matter of
Compl. of Ingram Barge Co., 194 F. Supp. 3d 766, 793-95 (N.D. Ill. 2016) (citing
Gonzalez v. United States, 814 F.3d 1022, 1035 (9th Cir.2016)). And “so long as a
decision involves even two competing policy interests, it is susceptible to policy
analysis and is thus protected by the discretionary function exception.” Id. (cleaned
up) (quoting Chadd v. United States, 794 F.3d 1104, 1112 (9th Cir. 2015)). Therefore,

35

where a decision to implement a plan involves “balance[ing] competing policy
interests,” the DFE applies. See id. at 795.
JBVA’s alleged failure to adequately hire and train employees is therefore the
type of conduct that is susceptible to policy judgment. The implementation of hiring,
supervision, and training decisions require the balancing of competing policy
interests. The Court therefore finds that the DFE applies to the JBVA’s conduct
relating to staffing, hiring, and training.
Having found that the DFE applies and bars Counts I(a)-I(c), the Court
declines to address the Government’s separate argument that the Estate failed to
establish negligence for Counts I(a)-I(c). The Court grants summary judgment in
favor of the Government on Counts I(a)-I(c).
IV.

Medical Malpractice Claims
The Estate moves for summary judgment on its claims of negligence regarding

the medical care Ms. Warrick received. [63] at 9. The Estate alleges that Defendant:
(e) Failed to appropriately assess Ms. Warrick’s risk for the development and
deterioration of pressure ulcers;
(f) Failed to develop an appropriate care plan to address Ms. Warrick’s risk for
the development and deterioration of pressure ulcers;
(g) Failed to implement an appropriate care plan to address Ms. Warrick’s risk
for the development and deterioration of pressure ulcers;
(h) Failed to provide Ms. Warrick with appropriate assistance with turning and
repositioning and other interventions to help prevent her from developing
pressure ulcers and having them deteriorate;
(i) Failed to timely provide Ms. Warrick with appropriate pressure relieving
devices, including an appropriate low air loss mattress and heel protectors;

36

(j) Failed to timely inform Ms. Warrick, and her family, regarding changes in
her health condition, including, but not limited to, the development of new skin
breakdown and the deterioration of the same; and
(k) Failed to timely and appropriately document in Ms. Warrick’s medical
record details pertaining to her skin status, changes in condition, and more.
[63] at 8-9.
Under Illinois law, to succeed on its negligence medical malpractice claims,
the Estate must prove: “(1) the proper standard of care against which the defendant's
conduct is measured; (2) an unskilled or negligent failure to comply with the
applicable standard; and (3) a resulting injury proximately caused by the defendants
want of skill or care.” Petre v. Cardiovascular Consultants, 871 N.E.2d 780, 790 (Ill.
App. 1st Dist. 2007). “Unless the negligence is so grossly apparent or the treatment
so common as to be within the everyday knowledge of a layperson, expert medical
testimony is required to establish the standard of care.” Id. Proximate cause must
also “be established by expert testimony to a reasonable degree of medical certainty,
and the causal connection must not be contingent, speculative, or merely possible.”
Johnson v. Loyola U. Med. Ctr., 893 N.E.2d 267, 272 (Ill. App. 1st Dist. 2008).
“Whether or not the defendant's conduct proximately caused the plaintiff's injury
ordinarily is a question for the finder of fact to decide; only rarely are the facts so
clear that the court can resolve the issue as a matter of law.” Palay, 349 F.3d at 432–
33.
The Estate asserts that Defendant has admitted to various violations of the
standard of care. [63] at 9-10. The Estate’s assertion that Defendant has “admitted”
negligence relies on the report issued by the VA OIG in response to Charles Warrick’s
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hotline complaint and deposition testimony from various JBVA employees. Id. The
Estate appears to confuse judicial admissions and evidentiary admissions. “Judicial
admissions are formal concessions in the pleadings, or stipulations by a party or its
counsel, that are binding upon the party making them.” Keller v. United States, 58
F.3d 1194, 1199 n.8 (7th Cir. 1995). Evidentiary admissions, on the other hand, “may
be controverted or explained by the party.” Id. Where a party admits an adverse fact
during a deposition or when testifying at trial, it is generally treated solely as an
evidentiary admission. Id. The admissions the Estate relies on, largely taken from
deposition testimony, are not binding admissions on the Defendant and may be
controverted or explained. They do not replace the Estate’s burden to establish the
standard of care through expert testimony.
As discussed above, the Court will allow the testimony of Dr. Thimsen and Dr.
Kelly, as qualified and reliable experts, that JBVA nurses did not violate the standard
of care and did not cause Ms. Warrick’s pressure ulcers. The Estate will present
expert testimony from Dr. Lekan and Dr. Davis that JBVA nurses violated the
standard of care causing Ms. Warrick’s pressure ulcers. It is not for this Court to
make credibility determinations on the expert opinions on summary judgment.
Manjarrez v. Georgia-Pac. LLC, No. 12 C 1257, 2013 WL 3754861, at *5 (N.D. Ill.
July 16, 2013). This “battle of the experts” creates a genuine issue of material fact.
Chamberlain Grp., Inc. v. Lear Corp., 756 F.Supp.2d 938, 951 (N.D. Ill. 2010) (“It is
indeed true that a ‘battle of the experts’ can preclude summary judgment”). Given the
conflicting expert testimony, and drawing all reasonable inferences against the

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moving party, the Court finds the issues of the standard of care and causation to be
appropriately left to the trier of fact and denies summary judgment as to the medical
malpractice claims.
V.

Count I(d)
The Estate alleges that Defendant “[f]ailed to ensure that the facility’s policies

and procedures were properly implemented and followed.” [1] at ¶ 30(d). The
Government argues that to the extent this allegation attacks employee supervision,
the DFE applies, and to the extent this allegation asserts a claim for institutional
negligence, such a claim is not permitted under the FTCA. [57] at 10. In response,
the Estate states that “as it relates to failures to follow and implement policies and
procedures, Plaintiff does not intend to attack JBMC’s supervision of employees’
following and implementation of policies and procedures, but does criticize Defendant
employees for failing to comply and follow policies and procedures.” [75] at 13.
According to the Estate then, the allegation asserts neither an employee supervision
claim or an institutional negligence claim. 4
The allegations in Count I(d) therefore appear to be duplicative of the Estate’s
other claims. To the extent that the Estate is alleging that Defendant employees

4 In light of the Estate’s clarification that Count I(d) is not a claim for institutional negligence, the

Court does not need to resolve the Government’s argument that the FTCA does not permit claims of
institutional negligence. Some federal appellate courts have ruled that institutional negligence claims
cannot be brought under the FTCA. See e.g., Adams v. United States, 420 F.3d 1049 (9th Cir. 2005);
Meier v. United States, 310 Fed. App'x 976 (9th Cir. 2009). As a federal district court in this circuit
recently observed, the Seventh Circuit has not expressly ruled on this issue. See Crenshaw v. United
States, No. 17-2304, 2020 WL 5579180, at *12 (C.D. Ill. Mar. 24, 2020) (declining to find that
institutional negligence claims under the FTCA are categorically unavailable in the Seventh Circuit
and noting that the Seventh Circuit has implicitly recognized such a claim); see also Buechel v. United
States, 746 F.3d 753, 763 (7th Cir. 2014) (vacating judgment in favor of United States where prisoner
alleged under FTCA that “the prison was negligent in failing to quarantine infected inmates”).

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failed to follow policies and procedures relating to staffing, hiring, training, see [75]
at 13-16, the allegations are duplicative of Counts I(a)-(c). As discussed above, the
discretionary function exception applies to those counts and the Government’s motion
for summary judgment is granted. To the extent the Estate is alleging that Defendant
employees’ acts or omissions in treating Ms. Warrick failed to follow policies and
procedures and violated the standard of care, see [75] at 16-17, the allegations are
duplicative of Counts I(e)-(k). There are disputed issues of fact, and those claims will
proceed to trial.
VI.

Plaintiff’s Additional Prayers for Relief
Except for its request regarding Dr. Thimsen’s causation opinions, the Estate’s

additional prayers for relief are denied. See [58] at 19-20; [75] at 19-20. As discussed
above, the Court will not completely bar the Government’s experts from testifying at
trial; the Estate’s motion for summary judgment is denied; Dr. Thimsen’s causation
opinions are inadmissible, but her standard of care opinions are admissible; and Dr.
Kelly’s opinions are admissible. The Estate’s requests that the Government’s experts
be restricted or limited because their testimony would be “cumulative” is denied
because it is underdeveloped and not supported by any cited authority. See Rock
Hemp Corp. v. Dunn, 51 F.4th 693, 704 (7th Cir. 2022) (“[P]erfunctory and
undeveloped arguments, as well as arguments that are unsupported by pertinent
authority, are waived.”). That said, the Court expects the Government will not waste
the Court’s trial time. The Estate’s request for leave to amend its pleadings is denied
because it is unsupported and untimely.

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CONCLUSION
For the stated reasons, the Government’s motion for summary judgment [56]
is granted. The Court grants summary judgment in favor of the Government on
Counts I(a)-I(c) and Count II. Plaintiff’s motion for summary judgment [58] [60] [63]
[64] [65] is denied.

E N T E R:
Dated: November 26, 2024
MARY M. ROWLAND
United States District Judge

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