Morgan v. Wesley Medical Center, LLC et al

Filing 116

MEMORANDUM AND ORDER granting in part and denying in part 41 Motion to Strike 1 Complaint; granting in part and denying in part 53 Motion to Strike 1 Complaint; denying 60 Motion to Strike 1 Complaint. Signed by Magistrate Judge Kenneth G. Gale on 9/5/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

D.M., a minor, by and through
his next friend and natural guardian,
KELLI MORGAN,

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Plaintiff,
vs.
WESLEY MEDICAL CENTER LLC,
et al.,
Defendants.

Case No. 18-2158-KHV-KGG

MEMORANDUM & ORDER ON MOTION TO STRIKE
Before the Court is the “Motion to Strike Immaterial, Impertinent and
Scandalous Matters from Plaintiff’s Complaint” filed by Defendant Jennifer
Chambers-Daney (Doc. 41) and the “Motion to Strike” filed by Defendant Bridget
Grover (Doc. 60). After review of the relevant filings, including the submissions
of the parties and Plaintiff’s Complaint, the Court GRANTS in part and DENIES

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in part Defendant Chambers-Daney’s motion (Doc. 41) and DENIES the motion
filed by Defendant Grover (Doc. 60).1
INTRODUCTION
Striking material in a pleading under Fed. R. Civ. P. 12(f) because it is
“redundant, immaterial, impertinent, or scandalous” is “disfavored as a drastic
remedy.” Doe v. USD No. 237, et al., 16-2801-JWL-TJJ, 2017 WL 3839416 (D.
Kan. Sept. 1, 2017). The Complaint filed by Plaintiff tests the limits of this
caution. Some of the material in the Complaint which is the subject of this motion
is far removed from, or completely immaterial to, the issues plead in this case. The
material is presented in a way the Court perceives as primarily designed to
scandalize Defendant Chambers-Daney, harm her general reputation, or
spectacularize the case to the public. The Court will grant the motion to strike
some of this material, but is constrained by the possibility of some possible
relevance to the claims, and the narrow standard, to deny the motion as to some
materials. The denial should not be interpreted as the Court’s approval of
Plaintiff’s tactic.
BACKGROUND

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Defendant Via Christi Hospitals Wichita, Inc. also moves to strike the same portions of
Plaintiff’s Complaint and adopts and incorporates the arguments contained in Defendant
Chambers-Daney’s memorandum. (See Doc. 53.) The Court thus GRANTS in part
Defendant Via Christi’s motion as well.
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A.

Medical Information and Care.
Plaintiff, through his natural guardian and next friend, filed his federal court

Complaint on April 9, 2018, alleging medical malpractice against Defendants
resulting from the medical care he received on March 5 and 6, 2017. Plaintiff
alleges that on March 6, 2017, he “suffered a catastrophic and medicallypreventable stroke that left him with right-side paralysis, neurological damage and
other debilitating physical injuries that permanently changed his and his parents’
lives.” (Doc. 1, at 5.)
Plaintiff alleges that in the days leading up to the stroke, he “suffered
headache, dizziness, nausea, unbalance, vomiting and lethargy.” (Id., at 6.) After
suffering head pressure that caused him to clutch the back of his head and scream
“uncontrollably,” Plaintiff’s parents took him to the emergency room at Defendant
Wesley Medical Center-Woodlawn (“Wesley”), in Wichita, Kansas, on March 5,
2017. (Id., at 7.) His triage notes indicate “headache, dizziness, nausea, lethargy
and unbalance with no fever,” “one bout of vomiting today,” and that he had
“recently developed slurred speech, photophobia, weakness and his extremities
were limp.” (Id., at 8.)
Plaintiff was seen by a physician’s assistant, Defendant Bridget Grover, at
Wesley, but not an actual doctor. Plaintiff contends that Defendant Grover merely
performed a “cursory physical examination . . .” (Id., at 8.) Defendant Grover was
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supervised by Defendant Dr. Gregory Faimon. After Plaintiff’s strep test came
back positive, Defendant Grover prescribed Plaintiff with an antibiotic and he was
discharged from Wesley at 7:06 p.m. on March 5, 2017. (Id.) No neurological
assessment was ordered by Defendant Grover and none occurred at that time. (Id.)
Plaintiff alleges that Defendants Grover and Faimon “deviated from the accepted
standard of care for their care and treatment” of Plaintiff. (Id., at 11.)
Plaintiff alleges that his condition “continued to deteriorate” after discharge
from Wesley. (Id.) His parents took him to the emergency room at Defendant Via
Christi Hospital-St. Francis (“Via Christi”), arriving at approximately 2:22 a.m. on
March 6, 2017. (Id., at 12.) Plaintiff alleges that his mother notified Via Christi
personnel of his “sudden onset of headache, nausea, intractable vomiting, lethargy,
weakness, unbalance, dizziness, slurred speech, photophobia, inability to respond
to basic questions, inability to walk, knee joint pain, and D.M.’s previous
presentation to the Wesley emergency room.” (Id.) Plaintiff contends that
Defendant Aaron Kent triaged Plaintiff and “failed to note [his] other concerning
symptoms of dizziness, debilitating headache, inability to respond to basic
questions, slurred speech, photophobia, difficulty ambulating, weakness, lethargy
and unbalance,” which Plaintiff contends “are clear indicators for an immediate
neurological assessment and CT scan of the head.” (Id.)

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Plaintiff was triaged to non-urgent general care. (Id., at 13.) He alleges that
after waiting for two hours, he was seen by Defendant Chambers-Daney, an
advanced registered nurse practitioner (“ARNP”). Chambers-Daney charted that
Plaintiff
presents with sore throat and PT (patient) has had a sore
throat for unknown time . . . was seen at Wesley this eve
(evening) 6 pm DX (diagnosed) strep. PT sent home and
then mom states he has been vomiting every hour and not
able to keep meds down pain meds. The onset was
unknown. The course/duration is constant. Location:
pharynx/throat . . .
(Id., at 14.) Plaintiff contends that Defendant Chambers-Daney admitted him for
observation, but “failed to chart that [he] suffered from debilitating headache,
inability to walk, severe lethargy, weakness, dizziness, slurred speech,
photophobia, inability to answer basic questions, and severe unbalance.” (Id.)
Plaintiff alleges that his symptoms were “a clear indicator for an immediate
neurological assessment and CT scan of the head,” but that Defendant ChambersDaney “failed to perform a neurologic examination to rule out head pathologies,”
never consulted with a physician or specialist, “and failed to order imaging.” (Id.)
Plaintiff was ultimately seen by two family practice residents, Defendant
Dr. Stephanie White and Defendant Dr. Connor Hartpence, at 5:18 a.m. (Id.)
Plaintiff alleges that both residents were supervised in part by Defendant Dr. Bala
Bhaskar Reddy Bhimavarapu. (Id.) Plaintiff contends that “[d]espite [his]
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deteriorating condition and symptoms, these Defendant doctors failed to perform a
neurological assessment and order a CT scan of the head.” (Id., at 15.) Plaintiff
alleges that his intracranial pressure continued to build, resulting in a “medicallypreventable stroke as a result of unsustainable intracranial pressure” at
approximately 10:00 a.m. on March 6, 2017. (Id.)
B.

Portions of Plaintiff’s Complaint at Issue.
Plaintiff’s federal court Complaint criticizes Defendant Grover’s demeanor.

(Doc. 1, at ¶¶ 57, 58.) It references a social media posting on Defendant Grover’s
Facebook page in which she expressed agreement with a criticism of those who are
seen to abuse emergency room care. (Id., at ¶ 58.) The Complaint the discusses
that Defendant Grover was found to have “committed fraud or misrepresentation”
in an attempt to renew her medical license. (Id., at ¶¶ 59-61.)
The Complaint also references, and includes photographic inserts of,
Defendant Chambers-Daney’s social media postings on Facebook. (See Doc. 1, at
¶¶ 142-152, 198.) The postings consist of and/or reference cartoons, jokes, and
humorous or satirical internet memes – mostly composed by other individuals –
that Defendant Chambers-Daney shared on her Facebook wall.2 The postings
reference topics such as job frustrations, job duties (including patient charting),

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The Court expresses no opinion about the success of any of the intended “humor,”
much of which is, at the least, in poor taste.
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interactions with patients, disdain for children, and drinking. Many of the postings
include profanity and often display what would could be considered “dark” humor.
Plaintiff contends that Defendant Chambers-Daney’s posts “are a direct
reflection of her unprofessional attitude, complete lack of training and
qualifications, and her inability to be a patient advocate.” (Id., at ¶ 149.) Plaintiff
continues that the posts “reflect a complete lack of supervision and training by
Defendant Via Christi of its health care professionals.” (Id., at ¶ 150.) Plaintiff
also contends that the posts “reflect the standard of care and conduct acceptable by
Defendant Via Christi of its health care professionals.” (Id., at ¶ 151.) Finally,
Plaintiff contends that Defendant Chambers-Daney’s “attitude toward her
profession, her job, her patients, and children are an open display of and
explanation for her wanton and willful failures in harming D.M.” (Id., at ¶ 198.)
ANALYSIS
A.

Standards Under Fed.R.Civ.P. 8(a) and 12(f).
Pursuant to Fed.R.Civ.P. 8(a), “a pleading that states a claim for relief must

contain: . . . a short and plain statement of the claim showing that the pleader is
entitled to relief.” “Rule 8 serves the important purpose of requiring plaintiffs to
state their claims intelligibly so as to inform the defendants of the legal claims
being asserted.” Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2011).
“‘Something labeled a complaint but written more as a press release, prolix in
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evidentiary detail, yet without simplicity, conciseness and clarity as to whom
plaintiffs are suing for what wrongs, fails to perform the essential functions of a
complaint.’” (Id., at 1148 (quoting McHenry v. Renne, 84 F.3d 1172, 1180 (9th
Cir.1996).) “[I]n extreme circumstances,” an unnecessarily detailed pleading “may
even warrant a dismissal for excessive verbosity (which is, itself, a violation of
Rule 8(a)’s ‘short and plain’ requirement).” Federal Civil Rules Handbook, 34243 (2018). The sections in the Complaint complained of in the Chambers-Daney
motion violate the spirit of this provision. None are necessary to state a legal
claim. However, this alone does not require the striking of particular sections of
the Complaint.
Motions to strike pleadings, either in part or in total, are governed by
Fed.R.Civ.P. 12(f). The rule provides that the court “may strike from a pleading . .
. any redundant, immaterial, impertinent or scandalous matter.”
Because striking an entire pleading, or a portion thereof,
is a drastic remedy, and because a motion to strike may
often be brought as a dilatory tactic, motions to strike are
generally disfavored.
This Court will usually deny a motion to strike
unless the allegations have no possible relation to the
controversy and are likely to cause prejudice to one of
the parties. While motions to strike are generally
disfavored, the decision to grant a motion to strike lies
within the court's sound discretion.
A.H. v. Knowledge Learning Corp., No. 09-2517-DJW, 2011 WL 1766067, at *1
(D. Kan. May 9, 2011) (citations omitted).
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A matter is considered “immaterial” if it “has no essential or important
relationship to the claim for relief.” Dean v. Gillette, 2004 WL 3202867, at *1 (D.
Kan. June 8, 2004). It is considered “impertinent” if it does “not pertain, and [is]
not necessary, to the issues in question.” CitiMortgage, Inc. v. JustMortg., Inc.,
2013 WL 6538680, at * 7 (E.D. Mo. Dec. 13, 2013). A “scandalous” matter is one
that is ““irrelevant and ‘degrade[s] defendants’ moral character, contain[s]
repulsive language, or detract[s] from the dignity of the court.’” Dean, 2004 WL
3202867, at *3. “Prejudice occurs when the challenged pleading or allegation
confuses the issues or is so lengthy and complex that it places an undue burden on
the responding party.” Id. (citing Foster v. Pfizer Inc., No. 00-1287-JTM, 2000
WL 33170897, at *2 (D.Kan. Dec.12, 2000)).
B.

Allegations Against Defendant Chambers-Daney.
Defendant Chambers-Daney contends that Plaintiff’s “Complaint is full of

irrelevant and mean-spirited allegations that take obviously facetious social media
postings out of context to harass, distract, and prejudice” her. (Doc. 42, at 2.)
Defendant Chambers-Daney continues that her “social media use has nothing to do
with the issue of whether her treatment of D.M. met the standard of care or caused
D.M.’s injuries.” (Id.) Specifically, Defendant moves to strike paragraphs 142152 and 198 of the Complaint, which consist of and/or reference cartoons, jokes,

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and humorous or satirical internet memes – composed by other individuals – that
Defendant Chambers-Daney has shared on her Facebook wall.
Plaintiff argues that Rule 12(f) cannot be used to “‘challenge the factual
support for an allegation.’” (Id., at 8 (citing Nwakpuda v. Falley’s, Inc., 14 F.
Supp. 2d 1213, 1215-16 (D. Kan. 1998).) Even so, Plaintiff is not permitted to
include unnecessary, scandalous, and unduly prejudicial information in his
Complaint. The allegations contained in ¶¶ 142-152 and 198 are unrelated to the
“short and plain statement of claim” requirements of Fed.R.Civ.P. 8(a). Rather,
these allegations constitute something akin to a press release or a newspaper
editorial. See Mann v. Boatright, 477 F.3d 1140, 1147 (10th Cir. 2011) (citation
omitted).
The Court’s task here is to parse what sections are pertinent or material to
the claims in the case and what sections are simply scandalous. The trial judge
will determine whether any of this evidence is admitted at trial, but the instant task
of this Court is to determine whether the material advances the proper goal of
pleading the Plaintiff’s case or is included only to harm Defendant ChambersDaney personally. The Court will, therefore, review the paragraphs at issue.
The memes referenced in paragraph 143 are a “comic strip” referring to
Defendant Chambers-Daney personally, and reference her refusal or inability to fill
out a medical chart. While the context of this post, missing from the Complaint,
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may render it irrelevant at trial, it is not immaterial or impertinent in the
Complaint. Similarly, the reposted memes about client complaints in paragraph
144, although likely of limited probative use at trial, are not so beyond the subject
matter of the Complaint as to be subject to a motion to strike. Plaintiff’s
paragraphs 142 and 149-51, which references Defendant’s attitude, training and
treatment of patients, can be read as a reference to paragraphs 143 and 144. As
such, the Court declines to strike paragraphs 142, and 149-51.
The remaining paragraphs complained of, however, are plainly included
only to embarrass Defendant Chambers-Daney. Paragraph 145 (memes about job
dissatisfaction), paragraph 146 (memes about children), paragraph 147 (memes
about general attitude) and 148 (memes about drinking) are so unrelated to the
complaint allegations as to be, in the context of the Complaint, simply unmitigated
personal attacks. Paragraphs 152 and 198, specifically referencing and repeating
offending paragraphs, are thereby tainted.
The information in paragraphs 145-148, 152 and 198 in Plaintiff’s
Complaint is not necessary to the issues in question in this case. CitiMortgage,
2013 WL 6538680, at *7. The inclusion of this information confuses the issues in
this case and detracts from the dignity of the Court. See Dean, 2004 WL 3202867,
at *1 (citations omitted) and CitiMortgage, 2013 WL 6538680, at *7. In other
words, paragraphs 145-148, 152 and198 of Plaintiff’s Complaint are impertinent,
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scandalous, and unfairly prejudicial to Defendant Chambers-Daney pursuant to
Fed.R.Civ.P. 12(f). As such, Defendant Chambers-Daney’s Motion to Strike (Doc.
41) is GRANTED as to those provisions (¶¶ 145-152, 198) but DENIED as to
paragraphs 142-144 and 149-51.3
C.

Allegations Against Defendant Grover.
Defendant Grover argues that the information regarding her demeanor and

Facebook postings is irrelevant and “can only be intended to foment dislike” for
her, which would create undue prejudice and confusion for the jury. (Doc. 60, at
5-6.) She continues that the information regarding the finding of fraud by the
Kansas Board of Healing Arts is “designed to harass, embarrass and cast a
derogatory light” on her. (Id., at 6.) As such, Defendant Grover asks the Court to
strike paragraphs 57-61 of Plaintiff’s Complaint. Defendant opposes the motion,
arguing that “the allegations have a possible relation to the controversy.” (Doc. 68,
at 2.)

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   In reaching this decision, the undersigned Magistrate Judge is not opining as to the
admissibility of this information at trial. “The issue on a Rule 12(f) motion, however, is
not admissibility of evidence at trial, but rather immateriality, impertinence, and
scandalousness of allegations in the complaint.” Sawo v. Drury Hotels Co., LLC, No.
11-2232-JTM-GLR, 2011 WL 3611400, at *2 (citing Lane v. Endurance Am. Specialty
Ins. Co., No. 10-401-MOC-DCK, 2011 WL 1343201, at *3 (W.D. N.C. Apr. 8, 2011)
and Goodman Distribution, Inc. v. Haaf, No. 4:10-CV-806-CAS, 2010 WL 4117379, at
*10 (E.D. Mo. Oct. 19, 2010)).   
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Plaintiff’s allegations regarding Defendant Grover’s demeanor on the day in
question (Doc. 1, at ¶ 57) are neither irrelevant nor unduly prejudicial. While
Defendant Grover’s Facebook post (Id., ¶ 58) may or may not be admissible at
trial, it is not facially irrelevant, unfairly prejudicial, or misleading in the
Complaint, as Defendant Grover argues. (See fn.3, supra.) Similarly, the
allegations regarding the fraud Defendant Grover allegedly committed in
attempting to renew her medical license (Doc. 1, at ¶¶ 59-61) are not so beyond the
subject matter of the Complaint as to be subject to a motion to strike. As such,
Defendant Grover’s Motion to Strike paragraphs 57-61 of Plaintiff’s Complaint
(Doc. 60) is DENIED.

IT IS THEREFORE ORDERED that Defendant Chambers-Daney’s Motion
to Strike (Doc. 41) is GRANTED in part and DENIED in part as more fully set
forth above while the Motion to Strike filed by Defendant Grover (Doc. 60) is
DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 5th day of September, 2018.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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