Krawczak v. Kloster et al

Filing 32

ORDER granting 29 Motion to Amend Complaint. Plaintiff shall file her amended complaint as a separate docket entry forthwith by January 14, 2022. Signed by Magistrate Judge James P. O'Hara on 1/11/2022. (srj)

Case 2:21-cv-02285-KHV-JPO Document 32 Filed 01/11/22 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHRISTINE KRAWCZAK,

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Plaintiff,
v.
DANIEL KLOSTER, et al.,
Defendants.

Case No. 21-2285-KHV

ORDER
This is a medical-malpractice action arising from treatment plaintiff received from
defendant Daniel Kloster, M.D., involving the implantation of an intrathecal pain pump
manufactured by defendant Flowonix Medical, Inc. Plaintiff has filed a motion (ECF No.
29) to amend her complaint to add a claim for punitive damages against defendant Kloster.
Defendant Kloster opposes the motion. For the reasons discussed below, the court grants
the motion to amend.
Fed. R. Civ. P. 15(a)(2) provides that, after a certain point, “a party may amend its
pleading only with the opposing party’s written consent or the court’s leave,” and the court
ought to “freely give leave when justice so requires.” Although the granting of a motion
to amend is within the court’s discretion, the Supreme Court has indicated that Rule 15’s
directive to “freely give leave” is a “mandate … to be heeded.”1 “A district court should

1

Foman v. Davis, 371 U.S. 178, 182 (1962).

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refuse leave to amend ‘only [upon] a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.’”2
Specifically, plaintiff seeks to amend her complaint by adding the following
allegations:
Defendant Kloster engaged in reckless and wanton conduct in the following
respects:
a. Promoted the use of a pain pump as opposed to a spinal cord
stimulator or dorsal ganglion stimulator as recommended by the Mayo
Clinic and requested by the Plaintiff.
b. Failed to disclose the fact that he was a paid consultant for the
Defendant Flowonix. Manufacturer of the Flowonix Prometra II pain
pump Defendant Kloster wanted to implant. Back implantation takes
less time than the abdominal approach. Furthermore, Plaintiff’s small
frame was contraindicated for the back implantation.
c. Failed to advise Plaintiff of the abdominal approach for implantation
as opposed to the rear approach in her back.
d. While performing the procedure to the address the cerebral spinal
fluid leak, Defendant Kloster ignored the severe symptoms of Plaintiff
that indicated a potential nerve injury and continued to administer an
additional 5cc of blood.
e. Ignored symptoms of a cerebral spinal fluid leak which is a known
risk of the implantation procedure and instead referred her to see a
psychiatrist
The above acts by Defendant Kloster constitute wanton and reckless conduct with
a reckless disregard for consequences of his actions that placed Plaintiff in eminent
danger of injury.3

2

Wilkerson v. Shinseki, 606 F.3d 1256, 1267 (10th Cir. 2010) (quoting Duncan v.
Manager, Dep’t of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir. 2005)).
3

ECF No. 29. at 1-2.

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Defendant Kloster only argues permitting the amended pleading would be futile,
implicitly conceding none of the other above-identified amendment concerns apply. “A
proposed amendment is futile if the amended complaint would be subject to dismissal.” 4
In considering whether a proposed amendment is futile, the court uses the same analysis
that governs a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim. 5 “To
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.’” 6 Therefore, the court will
only deny an amendment on the basis of futility when, accepting the well-pleaded
allegations of the proposed amended complaint as true and construing them in the light
most favorable to the plaintiff, the court determines the plaintiff has not presented “enough
facts to state a claim to relief that is plausible on its face.” 7 A complaint or amendment
thereof need only make a statement of the claim and provide some factual support to
withstand dismissal.8 The court does not consider documents or matters outside the

Little v. Portfolio Recovery Assocs., LLC, 548 F. App’x 514, 515 (10th Cir. 2013)
(citing Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848,
859 (10th Cir. 1999)).
4

5

See Pedro v. Armour Swift-Eckrich, 118 F. Supp. 2d 1155, 1158 (D. Kan. 2000).

6

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
7
8

Little, 548 F. App’x at 515 (quoting Twombly, 550 U.S. at 570).
Twombly, 550 U.S. at 555.

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pleadings in making this determination.9 “The party opposing the proposed amendment
bears the burden of establishing its futility.”10
Defendant Kloster premises his futility argument on his contention that he acted
within the applicable standard of care during his treatment of plaintiff.

But this

contention—in support of which defendant refers to matters outside the pleadings (i.e., an
attached affidavit, anticipated expert testimony, and medical records)—fails to
demonstrate the claims against defendant are frivolous on their face. This is not the stage
to weigh potential evidence.

Because plaintiff’s amendment doesn’t appear clearly

frivolous, the court will exercise its discretion and grant plaintiff leave to file the proposed
amended complaint. Defendant may re-assert his arguments in a dispositive motion filed
for decision by the presiding U.S. District Judge, Kathryn H. Vratil.
IT IS THEREFORE ORDERED that plaintiff=s motion to amend (ECF No. 29) is
granted. Plaintiff shall file her amended complaint as a separate docket entry forthwith by
January 14, 2022.
Dated January 11, 2022, at Kansas City, Kansas.
s/ James P. O’Hara
James P. O’Hara
U.S. Magistrate Judge

Brokers’ Choice of Amer., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1103 (10th
Cir. 2017).
9

10

Mars v. Novartis Pharm. Corp., No. 11-2555, 2012 WL 1288729, at *2 (D. Kan.
April 16, 2012).