Pettit v. United States of America

Filing 80

OPINION AND ORDER denying 61 Motion to require the Government to pay mediation fees and granting Pettit's 72 Motion for Sanctions. Signed by Judge William C Lee on 6/8/2015. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAROLD PETTIT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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CIVIL NO. 2:13cv253

OPINION AND ORDER
This matter is before the court on a “Motion to Require United States of America to Pay
Entire Mediation Fee”, filed by the plaintiff, Harold Pettit (“Pettit”), on January 19, 2015. The
United States of America (“Government”) filed its response on February 5, 2015, to which Pettit
replied on February 8, 2015.
Also before the court is a “Motion for Sanctions”, filed by Pettit on April 12, 2015. Pettit
then filed a supplemental brief on April 16, 2015. The Government responded to the motion on
May 13, 2015, to which Pettit replied on May 17, 2015.
For the following reasons, the motion to require the Government to pay mediation fees
will be denied and the motion for sanctions will be granted.
Discussion
This case arises under the Federal Tort Claims Act (“FTCA”), as a result of Pettit’s fall at
the Jesse Brown Veterans Affairs Medical Center (JBVAMC) in Chicago in July 2012.
A private mediation was held on October 30, 2014, with Gerald M. Bishop serving as
mediator. Pettit asserts in his motion that “The VA continued their pre-mediation settlement
amount during the limited mediation session. This amount is less than a standing alone,

reasonable pain and suffering amount, given the undisputed facts of this case.” Pettit seeks an
order requiring the Government to pay the full amount of the mediation charges of $1,062.50.
The mediator has billed each party $531.25.
In response, the Government states that it never submitted a specific settlement offer to
Pettit before the mediation session, preferring instead to do so in the context of the mediation
conference. The Government further states that no settlement offer was ever proffered to Pettit
because his representatives informed the Government (through the mediator) that they would not
even consider an offer that was less than six figures.
In reply, Pettit recites his version of the facts, which the Government contests, and states
that it was not unreasonable for Pettit to state six figures as an acceptable settlement amount.
While it is understandable that Pettit is unhappy with the result of the mediation, there is
no authority to support the notion that a party is relieved of the duty to pay his share of the
mediation costs simply because they believe the other side should have offered more money.
Although Pettit believes the facts are undisputed and that they point directly to negligence on the
part of the VA hospital, the Government is entitled to stick to its version of the facts if it so
wishes. Accordingly, Pettit’s motion to require the Government pay the entire mediation fee will
be denied.
The court will now address Pettit’s motion for sanctions. In this motion, Pettit relates that
at a March 31, 2015 judicial settlement conference, the Government asserted that “among other
things, our settlement position is based on the expert report and expert opinions of Karen J.
Krooswyk, MSN, ARNP, ANP-BC, and Patrick J. Barrett, M.D.” Dr. Barrett was one of Pettit’s
treating physicians at the VA hospital. Pettit alleges that the Government engaged in an ex parte
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interview with Dr. Barrett, and obtained an opinion about Pettit’s damages that is adverse to
Pettit’s position in this case. Pettit argues that the ex parte interview is contrary to the
substantive law of Illinois and subject to sanction, pursuant to the Petrillo doctrine. Petrillo v.
Syntex Labs, Inc. 499 N.E.2d 952, 957 (1986). Indiana law does not have a rule prohibiting ex
parte communication with plaintiff’s treating physicians who are not themselves alleged to have
engaged in malpractice. Pettit requests that Dr. Barrett be precluded from testifying in any
capacity, or at least excluded from testifying about or pertaining to Pettit’s requirement for total
care in a nursing home environment. Pettit also seeks costs and fees for the motion for sanctions.
Pettit’s motion raises the question of whether Illinois or Indiana law applies to this case.
The parties agree that the alleged negligence and injury occurred in Illinois, during Pettit’s stay at
the VA hospital in Chicago. The parties also agree that Illinois choice of law principles
determine whether Illinois or Indiana law applies to this case.
Pettit argues that, pursuant to the FTCA, this court should apply Illinois law because the
tort and injury occurred in Illinois. Pettit relies primarily on Townsend v. Sears, Roebuck & Co.,
879 N.E.2d 893, 898 (2007) and Richards v. United States, 369 U.S. 1, 11 (1962). Townsend is
not an FTCA case, but generally holds that Illinois looks to the Second Restatement of Conflict
of Laws, and considers the usual contacts such as the place where the injury occurred, the
domicile of the parties, and the place where the relationship between the parties is centered.. The
law is clear that the FTCA provides that the law of the state where the act or omission occurred
determines the liability of the United States. 28 U.S.C. § 1346(b). Richards holds that the “law
of the state” is the whole law, including the state’s choice of law rules.
The Government argues that Illinois’ choice of law principles require this court to apply
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Indiana’s substantive tort law to this case. The Government emphasizes that Pettit is a resident
of Indiana and generally sought medical care at the Indiana VA Clinic. The Indiana VA Clinic
sent Pettit to the Chicago VA hospital, via ambulance. From this, the Government concludes
that the parties’ relationship was centered in Indiana. While Pettit’s relationship with the Indiana
VA Clinic was centered in Indiana, it is clear that Pettit’s relationship with the Chicago VA
hospital was centered in Chicago. The court finds the fact that Pettit lived in Indiana and
normally visited the Indiana VA Clinic to be insignificant contacts which do not overcome the
presumption that the law of the state where the tort occurred (Illinois) should apply. The court
also notes that this case has progressed thus far as an Illinois case, not an Indiana case. That is,
Indiana requires a medical panel review, and there is no evidence or argument that a medical
panel review was conducted. Illinois requires an expert merit opinion, which was given. This
bolsters the court’s conclusion that Illinois law applies to this case.
Accordingly, Pettit’s motion for sanctions will be granted. Pettit has asked that Dr.
Barrett not be permitted to testify at all. This court considers the more appropriately tailored
sanction to be one that simply restricts Dr. Barrett’s testimony such that he will not be permitted
to testify in any way about Pettit’s requirement for total care in a nursing home environment.
The court will also grant Pettit’s request for costs and fees incurred in bringing the motion for
sanctions.

Conclusion
Based on the foregoing, Pettit’s motion to require the Government to pay mediation fees
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[DE 61] is hereby DENIED. Further, Pettit’s motion for sanctions [DE 72] is hereby
GRANTED.

Entered: June 8, 2015.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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