Walker et al v. Corizon Health, Inc. et al
Filing
311
MEMORANDUM AND ORDER granting 277 Motion for Summary Judgment; denying as moot 248 Motion to Bifurcate; denying as moot 261 Motion in Limine. Signed by District Judge Daniel D. Crabtree on 6/3/2022. (heo)
Case 2:17-cv-02601-DDC Document 311 Filed 06/03/22 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SHERMAINE WALKER, individually
and as administrator of the estate of
Marques Davis, deceased, et al.,
Plaintiffs,
v.
Case No. 17-2601-DDC-KGG
CORIZON HEALTH, INC., formerly
known as Correctional Medical
Services, et al.,
Defendants.
___________________________________
MEMORANDUM AND ORDER
Defendant Corizon Health, Inc. (“Corizon”) has filed a Second Motion for Summary
Judgment (Doc. 277). Corizon argues that it deserves summary judgment against plaintiffs’
Kansas common law claims (the only claims remaining against Corizon in this lawsuit) because
plaintiffs lack expert testimony essential to meet the burden of proof for their Kansas common
law claims. For reasons explained below, the court agrees. And it thus grants Corizon’s
summary judgment motion.
I.
Uncontroverted Facts
On April 13, 2017, inmate Marques Davis died while in custody of the Kansas
Department of Corrections. Doc. 196 at 2–3 (Pretrial Order ¶¶ 2.a.1., 2.a.5., 2.a.6.). Plaintiffs
Shermaine Walker (as administrator of Mr. Davis’s estate) and I.D.F. (as a minor and heir at law
of Mr. Davis) asserted claims under 42 U.S.C. § 1983 and Kansas common law for negligence
and wrongful death against Corizon. Id. at 12–19, 21 (Pretrial Order ¶¶ 4.a.1.A., 4.a.1.B.,
4.a.2.A., 4.a.2.C.). On April 8, 2022, the court granted summary judgment for Corizon on
Case 2:17-cv-02601-DDC Document 311 Filed 06/03/22 Page 2 of 7
plaintiffs’ § 1983 claims. Doc. 232. Only plaintiffs’ Kansas common law claims against
Corizon remained for trial. Id.
On April 19, 2022, defendant Paul Corbier, M.D. filed a Motion to Exclude Plaintiffs’
Expert Witnesses. Doc. 238. Corizon joined Dr. Corbier’s Motion to Exclude. Doc. 243. On
May 13, 2022, the court granted the Motion to Exclude. Doc. 252. Specifically, the court found
that plaintiffs’ expert reports failed to comply with Fed. R. Civ. P. 26(a)(2)(B)’s disclosure
requirements. See generally id. And, as a consequence, the court granted the Motion to Exclude
under Fed. R. Civ. P. 37(c)(1) for plaintiffs’ failure to make a required disclosure under Fed. R.
Civ. P. 26(a).
Plaintiffs concede that—by virtue of the court’s May 13 Order—“they will not be able to
present testimony of their own experts at trial.” Doc. 299 at 3. Trial is scheduled to commence
on June 7, 2022. Doc. 237 (Trial Order).
II.
Summary Judgment Standard
Summary judgment is appropriate where the moving party demonstrates that “no genuine
dispute” exists about “any material fact” and that it is “entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When it
applies this standard, the court views the evidence and draws inferences in the light most
favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).
The party moving for summary judgment bears the initial burden of showing “the basis
for its motion[.]” Celotex, 477 U.S. at 323. A summary judgment movant can satisfy this
burden by demonstrating “that there is an absence of evidence to support the nonmoving party’s
case.” Id. at 325. Corizon asserts that it has shouldered its summary judgment burden under this
standard. That is, Corizon asserts, without expert testimony to help to prove plaintiffs’ Kansas
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common law claims, plaintiffs lack essential evidence to support their case. The court considers
this argument, below.
III.
Analysis
As already stated, plaintiffs assert Kansas common law claims for negligence and
wrongful death premised on Corizon’s alleged failure to provide Mr. Davis medical care and
treatment during his incarceration. In Kansas, claims premised on a medical malpractice theory
require a plaintiff to prove:
(1) The health care provider owed the patient a duty of care and was required to
meet or exceed a certain standard of care to protect the patient from injury; (2) the
provider breached this duty or deviated from the applicable standard of care; (3) the
patient was injured; and (4) the injury proximately resulted from the breach of the
standard of care.
Drouhard-Nordhus v. Rosenquist, 345 P.3d 281, 286 (Kan. 2015).
“The plaintiff in a medical malpractice case bears the burden of showing not only the
doctor’s negligence, but that the negligence caused the injury.” Hare v. Wendler, 949 P.2d 1141,
1146 (Kan. 1997) (internal citations and quotation marks omitted). “Except where the lack of
reasonable care or the existence of proximate cause is apparent to the average layman from
common knowledge or experience, expert testimony is required in medical malpractice cases to
establish the accepted standard of care and to prove causation.” Id. (emphasis added) (internal
citations and quotation marks omitted); see also Chandler v. Neosho Mem’l Hosp., 574 P.2d 136,
139 (Kan. 1977) (“The standard of medical and hospital care which is to be applied in each case
is not a rule of law, but a matter to be established by the testimony of competent medical
experts.”); Watkins v. McAllister, 59 P.3d 1021, 1023 (Kan. Ct. App. 2002) (“Expert testimony is
required in medical malpractice cases to establish the applicable standard of care and to prove
causation.”).
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Here, it’s undisputed that plaintiffs have no expert testimony to present at trial to meet
their burden of proof on their Kansas common law claims. Thus, the court agrees with Corizon.
Without expert testimony, plaintiffs’ Kansas common law claims fail as a matter of law. As a
consequence, Corizon deserves summary judgment against those claims.
Plaintiffs try to avoid this operative conclusion by arguing that an exception to the expert
testimony requirement applies here. Indeed, Kansas recognizes such an “exception to [the expert
testimony] requirement” that “arises in cases where the lack of reasonable care or the existence
of causation is apparent to the average layman from common knowledge or experience.”
Watkins, 59 P.3d at 1023 (citing Hare, 949 P.2d at 1146–47). Plaintiffs assert that the evidence
they will present at trial “establishes an obvious lack of reasonable care, and an extremely bad
result, such that the jury could find for [p]laintiffs even in the absence of expert testimony.”
Doc. 301 at 1. The court disagrees with plaintiffs’ position for a couple of reasons.
First, until now, plaintiffs never have asserted that their claims rely on the common
knowledge exception. They never asserted this theory in the Pretrial Order. See generally Doc.
196. And, plaintiffs expressly disclaimed reliance on the common knowledge theory at summary
judgment. Doc. 210 at 121 (observing that “the common knowledge exception is the one
recognized exception to the expert testimony requirement,” but conceding that plaintiffs “cannot
and do not contend that this exception applies”). Thus, plaintiffs arguably have waived this
theory of proving their Kansas common law claims.
Second, even if plaintiffs hadn’t waived the common knowledge theory, it can’t fit the
facts here. The common knowledge exception is a “narrow exception and has rarely been
applied.” Hubbard v. Mellion, 302 P.3d 1084, 1093 (Kan. Cit. App. 2013); see also Munoz v.
Clark, 199 P.3d 1283, 1288 (Kan. Ct. App. 2009) (“[T]he application of the common knowledge
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exception is extremely limited.”). The exception applies only when “the diagnosis, treatment,
and care of a patient is so obviously lacking in reasonable care and the results are so bad that the
lack of reasonable care would be apparent to and within the common knowledge and experience
of mankind generally.” Hubbard, 302 P.3d at 1093. The common knowledge exception has
“three essential elements”:
(1) the plaintiff has asserted a claim of medical malpractice; (2) the care or result
of the care is patently bad; and (3) a person without the pertinent medical
knowledge can assess the wrongfulness of the diagnosis, treatment, or care and
attribute the plaintiff’s injury to the wrongful conduct without the assistance of
expert testimony.
Id. “Whether or not the common knowledge exception applies to a given set of facts is a
question of law.” Id.
Here, plaintiffs’ claims require a jury to decide whether Corizon staff deviated from the
standard of care in their medical treatment of Mr. Davis and, if so, whether such a breach caused
Mr. Davis’s injuries. Those questions are beyond the common knowledge and experience of a
lay person. See Hubbard, 302 P.3d at 1015–16 (holding that the common knowledge exception
didn’t apply to medical malpractice case involving the proper procedure for using a medical
instrument during surgery because that was “not a matter within the province of the common
person; thus, a breach of reasonable care would not be apparent to and within the common
knowledge and experience of the average person who has not received any specialized
training”); see also Lanam v. Promise Reg’l Med. Ctr.-Hutchinson, Inc., No. 113,430, 2016 WL
105046, at *7–8 (Kan. Ct. App. Jan. 8, 2016) (holding that common knowledge exception didn’t
apply to medical malpractice claim alleging that nursing assistant failed to examine patient’s
chart before moving her from hospital because plaintiff’s contentions required “expert testimony
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. . . to establish the appropriate standard of care for moving a patient with her particular
conditions” and her allegations were “not within the common knowledge of persons generally”).
Also, the undisputed facts don’t resemble the facts in cases where Kansas courts have
applied the common knowledge exception, like the “case of a surgeon operating on the wrong
limb, or a case where a patient is dropped from a table.” Munoz, 199 P.3d at 1280 (citing
Perkins v. Susan B. Allen Mem’l Hosp., 146 P.3d 1102, 1106 (Kan. Ct. App. 2006)). To the
contrary, plaintiffs’ contentions here require a jury to consider whether Corizon medical staff
breached the standard of care in their treatment of Mr. Davis and whether such a breach caused
Mr. Davis to sustain injury. A juror “without the pertinent medical knowledge” simply can’t
answer that question “without the assistance of expert testimony.” Hubbard, 302 P.3d at 1093.
Thus, the court finds, the common knowledge exception doesn’t apply here.
Instead, and as already discussed, Kansas law requires plaintiffs to present expert
testimony to meet the burden of proof on their Kansas common law claim. It’s undisputed that
plaintiffs can’t present expert testimony at trial. As a consequence, plaintiffs’ Kansas common
law claim against Corizon fail as a matter of law because they lack evidence to support an
essential element of their claims.
IV.
Conclusion
Because plaintiffs cannot present expert testimony to prove their Kansas common law
claims, the court grants Corizon’s Second Motion for Summary Judgment against plaintiffs’
Kansas common law claims. Based on the court’s dismissal of these claims—which are the only
claims remaining against Corizon—the court dismisses Corizon as a party from this action. This
dismissal renders Corizon’s Motion for Bifurcated Trial (Doc. 248) and Motion in Limine (Doc.
261) moot, so the court denies both motions.
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IT IS THEREFORE ORDERED BY THE COURT THAT defendant Corizon, LLC’s
Second Motion for Summary Judgment (Doc. 277) is granted. The court directs the Clerk of the
Court to terminate defendant Corizon, LLC from the docket as a defendant in this action.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Corizon, LLC’s
Motion for Bifurcated Trial (Doc. 248) is denied as moot.
IT IS FURTHER ORDERED BY THE COURT THAT defendant Corizon, LLC’s
Motion in Limine (Doc. 261) is denied as moot.
IT IS SO ORDERED.
Dated this 3rd day of June, 2022, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge
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