Mays v. United States of America
OPINION AND ORDER re 11 MOTION to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction - Count II by Defendant United States of America. The Motion is GRANTED with respect to Counts I, II, IV and V of Plaintiff's Complaint and DENIED with respect to Count III of Plaintiff's Complaint. Plaintiff GRANTED leave to file an Amended Complaint by 2/7/2017. Signed by Magistrate Judge Michael G Gotsch, Sr on 1/17/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
as Personal Representative of the
Estate of DANIEL MAYS,
UNITED STATES OF AMERICA, d/b/a
NORTHERN INDIANA HEALTH CARE
SYSTEM, including FORT WAYNE
CAMPUS, MARION CAMPUS, RICHARD
J. ROUDEBUSH VA MEDICAL CENTER,
PERU COMMUNITY BASED
OUTPATIENT CLINIC, and VA ANN
ARBOR HEALTHCARE SYSTEM,
CAUSE NO. 3:15-CV-617-WCL-MGG
OPINION AND ORDER
On March 24, 2016, Defendant filed its Motion to Dismiss, which requested the dismissal
of Count II of the Plaintiff’s Complaint for lack of subject matter jurisdiction, and dismissal of
each of the Counts of the complaint for failure to state a clam for relief [DE 11]. On June 2,
2016, Plaintiff filed its response in opposition to Defendant’s motion [DE 15]. Defendant’s
motion became ripe on June 28, 2016, when a reply brief was filed [DE 22]. The undersigned
may enter a ruling on this matter based on the parties’ consent pursuant to 28 U.S.C. § 636(c)(1).
For the reasons discussed below, the Court grants Defendant’s motion, in part, and denies
Defendant’s motion, in part.
On December 22, 2015, Darlene Mays, as the personal representative of the Estate of
Daniel Mays filed this cause of action against the Defendant under the Federal Tort Claims Act,
28.U.S.C. § 2671, et seq., and 28 U.S.C. § 1346(b)(1). The personal representative, Darlene
Mays, is the widow of Daniel May.
The basis for the Plaintiff’s claims is that Daniel Mays was a Vietnam War era veteran of
the United States Marine Corps, who was eligible for patient, medical, and mental health care
through the United States Department of Veterans Affair (VA). The complaint details that Mr.
Mays received treatment from the VA at the facilities located in Fort Wayne, IN, Marion, IN,
Peru, IN, Indianapolis, IN, and Ann Arbor, MI, for a variety of physical and mental health
conditions. 1 Mr. Mays’s condition declined appreciably during November of 2013, when he
began to complain of excruciating pain and even threatened self-harm. On November 25, 2013,
Mr. Mays went to the Emergency Room at non-VA Woodlawn Hospital due to his intractable
pain. Woodlawn consulted with the Roudebush VA Medical Center (VAMC) in Indianapolis,
which denied him admission and instead recommended admission to Fort Wayne VA. After
again requesting and being again denied admission to Roudebush VAMC, Mr. Mays was
admitted to Lutheran Hospital in Fort Wayne, IN. Upon discharge, Mr. Mays was denied
physical therapy and admission to a nursing facility, but was sent home with an order for homebased health care services. On December 23, 2013, Mr. Mays committed suicide.
Mr. Mays’s medical history included diagnoses of chronic bilateral shoulder and back pain, lumbar
spondylosis, osteoarthritis, osteopenia, cervical radiculopathy, cervical myelopathy, and spinal stenosis. [DE 1 at 5].
Mr. Mays’ mental health history included diagnoses of post-traumatic stress disorder, depression, anxiety,
intermittent explosive disorder, bipolar depression, steroid induced mood disorder, rule out bipolar disorder, remote
history of alcohol abuse, suicide ideations, a suicide attempt, and previous psychiatric admissions to VA facilities.
Plaintiff’s complaint for relief is plead in five counts: Count I – Professional Negligence;
Count II – Breach of Contract; Count III – Wrongful Death; Count IV – Gross Negligence, and
Count V – Loss of Consortium. The gravamen of Plaintiff’s complaint is that Daniel Mays
committed suicide on December 23, 2013, due to the negligent, grossly negligent, and willful
and wanton misconduct of the Defendant.
As noted above, the Defendant moved to dismiss each of these counts for failure to state
claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff, in her
response, concedes that she cannot pursue separate claims for professional negligence and gross
negligence against the Defendant, but asserts that these acts of negligence form the basis of her
claim for wrongful death. Likewise, Plaintiff concedes that her claim should not be
characterized as a breach of contract claim. Plaintiff asserts, however, that she may pursue a loss
of consortium claim pursuant to Indiana Code § 34-23-1-2 (Indiana Adult Wrongful Death Act).
This Court has original jurisdiction over this action against the United States pursuant to
the Federal Tort Claims Act. 28 U.S.C. § 1346(b)(1). Therefore, the Federal Rules of Civil
Procedure govern. Under Fed. R. Civ. P. 12(b)(6), dismissal of a claim is appropriate when it
fails to allege a cause of action for which relief can be granted. Federal law only requires a
plaintiff to provide a short and plain statement of the claim that the pleader is entitled to relief.
Fed. R. Civ. P. 8; see Bartholet v. Resihauer A.G. (Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992).
When considering a 12(b)(6) motion to dismiss, the court should construe the claim in the light
most favorable to the pleader, “accepting as true all well-pleaded facts alleged, and drawing all
possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
However, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A complaint need not include detailed factual allegations, but “a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555
(internal citations quotations omitted). Where the allegations are no more than conclusions, they
are not entitled to the assumption of truth. Iqbal, 556 U.S. at 679. Moreover, “the tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Id. at 678. Yet even well-pleaded facts may not be enough for a claim to survive
a motion to dismiss if the facts do not allow the court to infer more than the mere possibility of
misconduct. Id. In addition, “Rule 8 . . . does not unlock the doors of discovery for a plaintiff
armed with nothing more than conclusions.” Id. at 678–79.
In her response [DE 15], Plaintiff concedes the insufficiency of her complaint, at least, in
part. First, Plaintiff concedes that her complaint should not be characterized as a breach of
contract claim. [DE 15 at 10]. The Court agrees. See, e.g., Sweazey v. U.S. ex rel. Veterans
Admin. Med. Ctr., 69 F. App’x 435, 437 (10th Cir. 2003) [citing Schism v. United States, 316
F.3d 1259, 1274–75 (Fed. Cir. 2002). Accordingly, the Defendant’s motion to dismiss for failure
to state a claim should be granted with respect to Count II.
Similarly, the Plaintiff acknowledges that she cannot pursue claims for professional
negligence and gross negligence against the Defendant and these claims should be subsumed in
her claim for wrongful death. The Court also agrees that these claims, to extent that they exist in
this cause of action, lie in the wrongful death claim and not as separate counts. As such, the
Defendant’s motion to dismiss for failure to state a claim should be granted with respect to Count
I and Count IV.
In response to Defendant’s motion to dismiss Count V, the Plaintiff asserts that she is
entitled to recover loss of consortium damages on behalf of the Estate of Daniel May based on
Indiana Code § 34-23-1-2, which provides in relevant part:
(c) In an action to recover damages for the death of an adult person, the damages:
(3) may include but are not limited to the following:
(A) Reasonable medical, hospital, funeral, and burial expenses necessitated by the
wrongful act or omission that caused the adult person’s death.
(B) Loss of the adult person’s love and companionship.
Ind. Code § 34-23-1-2(c)(3). This particular statute is known as the Indiana Adult Wrongful
Death Statute (AWDS). See, e.g., McCabe v. Comm’r, Ind. Dep’t of Ins., 949 N.E.2d 816, 817
(Ind. 2011); Ind. Patient’s Comp. Fund v. Brown, 949 N.E.2d 822, 823 (Ind. 2011).
Significantly, this particular statute defines “adult person” as “an unmarried individual.” Ind.
Code § 34-23-1-2(a) (emphasis added). As Mr. Mays was a married individual at the time of his
death, and as his surviving spouse is the personal representative of the Estate of her late husband
and is the Plaintiff in this cause of action, the Plaintiff may not recover loss of consortium
damages pursuant to Indiana Code § 34-23-1-2(c)(3)(B). 2
The only remaining portion of the complaint is the Wrongful Death claim stated as Count
III of Plaintiff’s Complaint [DE 1 at 15, ¶¶ 73–75]. A claim for wrongful death is authorized by
Indiana Code § 34-23-1-1, which provides, in relevant part, that:
[w]hen the death of one is caused by the wrongful act or omission of another, the
personal representative of the former may maintain an action therefor against the
latter, if the former might have maintained an action had he or she, as the case
may be, lived, against the latter for an injury for the same act or omission.
The Court takes no position on whether Darlene Mays would have a separate claim for loss of consortium.
“In order to prevail on a wrongful death claim sounding in negligence, a plaintiff must establish
the existence of the following three elements: (1) a duty on the part of the defendant to conform
his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of
the defendant to conform his conduct to the requisite standard of care required by the
relationship, and (3) an injury to the plaintiff proximately caused by the breach.” Lane v.
Walgreen Co., No. 1:12-CV-01180-SEB, 2014 WL 2881543, at *7 (S.D. Ind. June 24, 2014)
(internal quotations omitted).
The Defendant avers that the Plaintiff, as a matter of law, cannot demonstrate causation
because Mr. Mays’s suicide was an intervening cause that broke the chain of causation. Hooks
SuperX, Inc. v. McLaughlin, 642 N.E.2d 514, 520 (Ind. 1994) (citing Havert v. Caldwell 452
N.E.2d 154, 158 (Ind. 1983)) (an intervening cause is a “superseding cause that results in the
original negligence being considered a remote cause and not a proximate cause”). Under Indiana
law, suicide constitutes an intervening cause, as a matter of law, if it is committed by a person
who is sane enough to realize the effect of his actions. Id. (citing Kimberlin v. DeLong, 637
N.E.2d 121 (Ind. 1994)). In Hooks, the Supreme Court of Indiana concluded that the trial court,
based on the designated evidence, did not err in finding that there remained a genuine issue of
material fact as to whether the decedent’s suicide was voluntary or involuntary. Id. at 521.
Of course, this case is before the Court on a motion to dismiss, not a motion for summary
judgment as in Hooks. As such, the level of deference this Court is required to give to the
complaint is even greater than that afforded the designated evidence in Hooks. That is, the
complaint must merely “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at
678. A claim has facial plausibility when the pleaded factual content allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 680 (citing
Twombly, 550 U.S. at 544).
The complaint here is sufficiently specific to allow the Court to drawing reasonable
inferences in the favor of the non-moving party, i.e., the Plaintiff. The critical question presented
in Plaintiff’s wrongful death claim is whether Mr. Mays was acting voluntarily or involuntarily
when he committed suicide. Plaintiff alleges Mr. Mays’s extensive medical, mental health, and
treatment histories, in sufficient detail to support the inference that Mr. Mays acted involuntarily
when he committed suicide. 3 As such, Plaintiff’s wrongful death claim in Count III states a
claim upon which relief may be granted. Therefore, the Court denies the Defendant’s motion to
dismiss as to Count III of Plaintiff’s complaint.
For the reasons stated above, the Court now GRANTS Defendant’s motion to dismiss
[DE 11] with respect to Counts I, II, IV, and V, and DENIES Defendant’s motion to dismiss
[DE 11] with respect to Count III. The Plaintiff is granted leave to file an amended complaint no
later than February 7, 2017.
Dated this 17th day of January, 2017.
S/Michael G. Gotsch, Sr.
Michael G. Gotsch, Sr.
United States Magistrate Judge
As the Court cannot speculate on the evidence that the parties may be able to designate following pre-trial
discovery, the Court takes no position on whether this claim would survive a motion for summary judgment under
Fed. R. Civ. P. 56.
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