Bowling et al v. USA
Filing
71
MEMORANDUM OPINION & ORDER: 1) 37 Motion for Summary Judgment shall be GRANTED IN PART and DENIED IN PART. 2) 38 Motion for Summary Judgment shall be DENIED. Signed by Judge Joseph M. Hood on 10/17/2012. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
TAMARA BOWLING, individually
and as Administratrix of the
Estate of Don Bowling,
deceased
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Case No.
5:11-cv-140-JMH
MEMORANDUM OPINION & ORDER
This action is before the Court on cross-motions for
summary
judgment.
Defendant
have
(D.E.
filed
37,
Responses
38).
to
Both
the
Plaintiff
opposing
and
summary
judgment motions (D.E. 41, 44) and have filed Replies in
further support of their own motions (D.E. 56, 57).
motions are now ripe for decision.
These
For the reasons which
follow, Defendant’s Motion for Summary Judgment is granted
in part and denied in part, and Plaintiff’s Motion for
Summary Judgment is denied.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On May 21, 2008, Don Bowling went to the Veterans
Affairs Medical Center (“VAMC”) in Lexington, Kentucky to
see his primary care physician, Dr. Connie Hackney.
30, Hackney Deposition, at 13).
(D.E.
In response to a routine
question from Dr. Hackney asking Mr. Bowling if he was
depressed, Mr. Bowling expressed a specific suicidal plan
by forming his hand into the shape of a pistol, pointing it
toward his mouth, and gesturing as if he was pulling the
trigger.
(D.E. 30, Hackney Deposition, at 14-15).
Dr.
Hackney also discovered that Mr. Bowling possessed firearms
in his home with which he could potentially enact this
suicidal plan.
Upon
(D.E. 30, Hackney Deposition, at 18).
witnessing
Mr.
Bowling’s
conduct,
Dr.
Hackney
decided that Mr. Bowling should be admitted to the VAMC
psychiatric unit.
She
first
tried
(D.E. 30, Hackney Deposition, at 16).
to
convince
him
to
agree
to
voluntary
admission, but when he refused, Dr. Hackney decided that
Mr. Bowling should be admitted for an involuntary 72-hour
hold. (D.E. 30, Hackney Deposition, at 21-22).
Dr. Hackney
went to the waiting room to advise Plaintiff, Mrs. Bowling,
that
Mr.
unit.
Bowling
(D.E.
30,
should
be
Hackney
admitted
to
Deposition,
the
at
psychiatric
18-19).
Dr.
Hackney asked Mrs. Bowling to help her convince Mr. Bowling
to
admit
himself
voluntarily
but
also
advised
Plaintiff
that she needed to make sure that she removed the firearms
from their home no matter what happened.
(D.E. 30, Hackney
Deposition, at 18-19).
In
the
exam
room,
both
Plaintiff
and
Mr.
Bowling
opposed Mr. Bowling’s admission to the psychiatric unit.
2
(D.E. 30, Hackney Deposition, at 19-20).
After Plaintiff
stated that she did not think Mr. Bowling could tolerate
spending three days in a locked unit, she and Mr. Bowling
walked
out
elevators.
of
the
exam
room
and
headed
toward
the
(D.E. 30, Hackney Deposition, at 20).
As the Bowlings approached the elevators, several VA
police officers, including Officer William Curtis, arrived
on the scene.
(D.E. 26, Struening Deposition, at 14-15;
D.E. 33, Curtis Deposition, at 30-31).
When Officer Curtis
approached Mr. Bowling, Mr. Bowling reported that he was
not
suicidal
and
wanted
Deposition, at 30-31).
to
go
home.
(D.E.
33,
Curtis
Mrs. Bowling also objected to her
husband’s involuntary hold, making statements such as “I’m
not going to let them do this to you . . . let’s go home”
and “we’re getting out of here . . . they’re not doing this
to
you.”
(D.E.
34,
Adams
Deposition,
at
26;
D.E.
26,
Struening Deposition, at 21).
Officer Curtis then spoke with Dr. Hackney and a few
nurses.
(D.E. 33, Curtis Deposition, at 33-34).
According
to Dr. Hackney and the nurses, Dr. Hackney told Officer
Curtis that she had placed an involuntary 72-hour hold on
Mr. Bowling.
(D.E. 30, Hackney Deposition, at 21; D.E. 36,
Read Deposition, at 16-19).
Officer Curtis then told Dr.
Hackney that she lacked the authority to do this and told
3
the Bowlings they were free to leave.
(D.E. 30, Hackney
Deposition, at 21; D.E. 36, Read Deposition, at 16-19).
Thereafter, the Bowlings left the VAMC and did not return.
(D.E. 30, Hackney Deposition, at 20).
The VAMC medical staff faxed a copy of the involuntary
72-hour
hold
officers
to
reported
the
Winchester
to
the
Police
Bowlings’
Department,
home
to
perform
welfare check on May 21, 2008, and May 22, 2008.
George Deposition, at 37).
and
a
(D.E. 35,
The police officers concluded
that Mr. Bowling did not meet the criteria to be taken into
custody
under
K.R.S.
§
202A.041,
and
left.
(D.E.
37-5,
Calls for Welfare Checks).
Then, on May 23, 2008, and May 27, 2008, a suicide
prevention
coordinator
Behavioral
Health
home.
Lab
and
at
a
the
social
VAMC
worker
called
Mr.
from
the
Bowling’s
(D.E. 37-2, Selected VA Medical Records, at VA-024;
D.E. 29, Sawyers Deposition, at 20).
The social worker,
Ms. Sherri Sawyers, spoke with Mr. Bowling and conducted a
suicide risk assessment via telephone.
Deposition, at 20-25).
(D.E. 29, Sawyers
Based on Mr. Bowling’s answers, Ms.
Sawyers assessed Mr. Bowling as low-risk for suicide on May
27, 2008.
(D.E. 29, Sawyers Deposition, at 30-31).
On
June 29, 2008, Mr. Bowling committed suicide at his place
4
of work in Winchester, Kentucky using a firearm obtained
from his home.
As
(D.E. 37-6, Death Certificate).
required
by
28
U.S.C.
§§
2672
and
2675(a),
Plaintiff filed a claim with the Department of Veterans
Affairs,
but
Thereafter,
personal
it
was
Plaintiff
injury
action
denied
filed
under
on
this
the
October
wrongful
FTCA
21,
2010.
death
alleging
and
medical
malpractice.
II. STANDARD OF REVIEW
Under Rule 56(c), summary judgment is proper “if the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
In deciding a
motion for summary judgment, the factual evidence and all
reasonable inferences must be construed in the light most
favorable
to
the
nonmoving
party.
Anderson
v.
Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Summers v. Leis, 368
F.3d 881, 885 (6th Cir. 2004).
The judge's function on a summary judgment motion is
not to weigh the evidence, but to decide whether there are
genuine issues of material fact for trial.
Anderson, 477
U.S. at 249; Multimedia 2000, Inc. v. Attard, 374 F.3d 377,
5
380 (6th Cir. 2004).
A material fact is one that may
affect the outcome of the issue at trial, as determined by
substantive law.
dispute
exists
judgment
is
Anderson, 477 U.S. at 242.
on
a
improper,
material
if
the
fact,
and
evidence
A genuine
thus
shows
summary
“that
a
reasonable jury could return a verdict for the nonmoving
party.”
Id. at 248; Summers, 368 F.3d at 885.
III. Discussion
A. Because Plaintiff did not state a claim against the
VA police in her Complaint, summary judgment is
granted to the United States on this issue.
In its Motion for Summary Judgment, the United States
argues that Plaintiff did not state a claim against the VA
police officers in her Complaint and, thus, maintains that
Plaintiff cannot now seek summary judgment on the basis of
any breach of the standard of care by the VA police.
The
United States is correct that Plaintiff’s Complaint sounds
solely in medical malpractice and does not plead any cause
of action against the VA Police; thus, summary judgment is
granted to the United States on this issue. See Tucker v.
Union of Needletrades, Industrial and Textile Employees,
407
F.3d
784,
787-89
(6th
Cir.
2005)
(affirming
the
district court’s decision to refuse to consider a new claim
raised on summary judgment because the claim was not raised
in the complaint).
6
Plaintiff
claims
that
Complaint
responds
the
VA
because
“officers,
with
police
she
of
arguments.
were
defined
agents,
representatives”
two
in
United
she
named
in
the
Defendants”
“U.S.
servants,
the
fact
First,
as
the
employees,
States,
and
and/or
later
stated
that Mr. Bowing “suffered severe personal injury and death”
because of the “failure of the U.S. Defendants.” (D.E. 57,
Plaintiff’s Reply, at 3; D.E. 1, Complaint, at 3).
Plaintiff
correctly
points
out
that
our
Second,
liberal
notice
pleading system only requires a short and plain statement
of the claim to give the defendant fair notice of the claim
and its grounds.
Leatherman
v.
(D.E. 57, Plaintiff’s Reply, at 2); see
Tarrant
Cnty
Narcotics
Intelligence
&
Coordination Unit, 507 U.S. 163, 168 (1993) (noting that
the Rules only require a short and plain statement of the
claim).
Plaintiff
argues
that
she
complied
with
these
notice pleading requirements because she expressly included
her claim against the VA police in her predecessor tort
claim
filed
with
the
Department
pursuant to 38 C.F.R. § 14.604(b).
of
Veterans
Affairs
(D.E. 57, Plaintiff’s
Reply, at 3).
However, neither of Plaintiff’s arguments change the
ultimate
conclusion
that
she
did
not
state
a
action against the VA police in her Complaint.
7
cause
of
Although
the Plaintiff does indeed define “U.S. Defendants” as the
“officers,
agents,
servants,
employees,
and/or
representatives” of the United States, she does not mention
the VA police officers anywhere in the remainder of her
Complaint.
(D.E.
1,
Complaint,
at
3).
Further,
she
describes the breach of the standard of care by the U.S.
Defendants as the “failure to exercise the degree of care
and skill that would be expected of an ordinarily prudent
or reasonably competent physician or health care provider
under like or similar circumstances” during the rendering
of “medical services, examinations, treatments, diagnoses
and medical care for Don Bowling.”
4-5).
(D.E. 1, Complaint, at
Thus, a fair reading of her Complaint asserts a
cause of action solely against the VAMC medical staff for
medical malpractice.
Further, while Plaintiff correctly notes that liberal
notice pleading is allowed at the outset of litigation,
these liberal pleading standards are inapplicable once a
case has progressed to the summary judgment stage.
Tucker,
407 F.3d at 788; (quoting Gilmour v. Gates, McDonald & Co.,
382 F.3d 1312, 1315 (11th Cir. 2004) (“Once a case has
progressed to the summary judgment stage, therefore, ‘the
liberal
pleading
Federal
Rules]
standards
are
under
Swierkiewicz
inapplicable.’”);
8
EEOC
v.
and
J.H.
[the
Routh
Packing Co., 246 F.3d 850, 854 (6th Cir. 2001) (noting that
even under our liberal notice-pleading regime, the Federal
Rules of Civil Procedure still require the complaint to
give
the
defendant
fair
notice
of
the
claim
and
its
supporting facts.”).
Moreover,
the
United
States
may
have
had
previous
notice of facts suggesting a breach of the standard of care
by the VA police, but this is unavailing.
Indeed, just
because
suggest
there
are
facts
in
existence
that
some
third party breached the standard of care does not mean
that a plaintiff must or necessarily has asserted a claim
against that third party in his complaint.
Had Plaintiff
wished to state an additional cause of action against the
VA Police in her Complaint, she could have done so, or she
could have amended her Complaint at some point during or
after
15(a).
discovery
under
Federal
Rule
of
Civil
Procedure
See Loftis v. United Parcel Service, Inc., 342 F.3d
509, 515 (“plaintiff is the master of his complaint.”).
Because
Plaintiff
failed
to
do
either
of
these
things,
consideration of a claim against the VA police on summary
judgment is barred.
9
B. Because Plaintiff’s expert laid the proper
foundations for his opinion and is qualified to
testify, the United States’ motion to exclude his
testimony and consequent Motion for Summary
Judgment on this basis is denied.
In a medical malpractice case, Kentucky law generally
requires a plaintiff to produce expert medical testimony to
establish the applicable standard of care, its breach, and
proximate cause to survive summary judgment. See Green v.
Owensboro Med. Health Sys. Inc., 231 S.W.3d 781, 783 (Ky.
App. 2007); Andrew v. Begley, 203 S.W.3d 165, 170 (Ky. App.
2006).
The United States argues that summary judgment in
its favor is proper because Plaintiff’s expert, Dr. Stephen
Montgomery,
did
not
lay
the
proper
foundations
for
his
opinion; therefore, the United States claims that Plaintiff
lacked
the
requisite
expert
testimony
required
Kentucky law to survive summary judgment.
under
Specifically,
the United States argues that an improper foundation was
laid for Dr. Montgomery’s opinion because 1) he is licensed
in Tennessee; 2) he admitted in his deposition that he did
not read the VAMC policies and procedures nor the Kentucky
statutes upon which he partly based his opinion; 3) the
article he relies on post-dates Mr. Bowling’s death; and 4)
his opinion is speculative.
The
expert
decision
is
in
the
to
allow
sound
a
witness
discretion
10
of
to
testify
the
trial
as
an
judge.
United States v. August, 745 F.2d 400, 407 (6th Cir. 1984).
Utilizing this discretion here, there is little doubt that
Dr.
Montgomery
is
qualified
as
Federal Rule of Evidence 702.
an
expert
witness
under
First, he is a licensed
psychiatrist who is familiar with the general standard of
care
concerning
involuntary
commitment.
Although
he
is
licensed in Tennessee, this is irrelevant as Kentucky does
not
have
a
locality
rule
that
solely
allows
medical
professionals familiar with the geographic area to offer an
expert opinion in a medical malpractice case.
Cf. Tenn.
Code Ann. § 29-26-115 (outlining Tennessee’s locality rule,
which
generally
requires
medical
professional
expert
witnesses to be licensed in Tennessee before they can offer
expert testimony).
Further, although Dr. Montgomery admitted that he did
not read the VAMC policies and procedures nor the Kentucky
statutes
on
involuntary
commitment,
and
although
the
article that he cites post-dates Mr. Bowling’s death, these
were not the sole bases for his opinion.
Montgomery
also
experience
as
based
both
a
his
opinion
licensed
on
his
Instead, Dr.
education
psychiatrist
and
as
and
an
Assistant Professor of Psychiatry at Vanderbilt University,
which is sufficient to qualify him as an expert witness
under Federal Rule of Evidence 702.
11
See Fed. R. Evid. 702
(“A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise...”).
Finally,
although
it
is
sometimes
appropriate
to
disallow expert testimony because the expert’s opinion is
speculative and does not meet the requirements of Federal
Rule of Evidence 702, this case does not present one of
these
instances.
For
example,
in
the
Sixth
Circuit
decision, Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th
Cir. 2010), an expert’s opinion linking manganese exposure
to Parkinson’s Disease because it “seemed the most likely
explanation”
was
“no
more
than
a
hypothesis”
and
thus,
under Federal Rule of Evidence 702, was speculative and
inadmissible.
Tamraz, 620 F.3d at 670.
The United States’
expert, Dr. David Shraberg, insists that Dr. Montgomery’s
opinion is similarly speculative because it is premised on
the hypothesis that if Mr. Bowling had been administered a
suicide risk assessment at the VAMC, then he would have
necessarily been admitted and received treatment that would
have lowered his risk of suicide. (D.E. 28-3, Expert Report
of Dr. Shraberg, at 4; D.E. 57, Plaintiff’s Reply, at 7).
However,
Montgomery’s
just
because
opinion
is
Dr.
Shraberg
speculative
Montgomery’s opinion inadmissible.
12
does
opines
not
that
Dr.
render
Dr.
Unlike in Tamraz, Dr.
Montgomery
is
not
offering
a
causation
opinion
that
is
unaccepted in his medical field, but rather is relying upon
his experience as a psychiatrist to conclude that had Mr.
Bowling been admitted to the VAMC on May 21, 2008, then, to
a reasonable degree of medical certainty, he would not have
committed suicide five weeks later.
bounds of Rule 702.
to
the
weight,
This is within the
The assertions of the United States go
and
not
the
admissibility,
of
Dr.
Montgomery’s opinion.
C. A genuine issue of material fact exists as to
whether the action or inaction of the VAMC medical
staff on May 21, 2008, constituted a substantial
factor in causing Mr. Bowling’s suicide.
Under
Kentucky
law,
legal
causation
occurs
when
a
defendant’s breach of the standard of care is a substantial
factor
in
bringing
about
the
plaintiff’s
injuries.
Pathways, Inc. v. Hammons, 113 S.W.3d 85, 92 (Ky. 2003);
Deutsch
v.
Shein,
597
S.W.2d
141,
143-44
(Ky.
1980).
Traditionally, causation is a mixed question of law and
fact and will only be a pure question of law when “there is
no
dispute
conclusion
about
may
be
the
essential
reasonably
facts
drawn
from
and
the
[only]
one
evidence.”
Pathways, Inc., 113 S.W.2d at 92 (quoting McCoy v. Carter,
323 S.W.2d 210, 215 (Ky. 1959).
Therefore, if reasonable
minds can differ as to whether a defendant’s conduct was a
13
substantial factor in causing a plaintiff’s injuries, it is
an issue of fact for trial.
Id.
In this case, reasonable minds can, and do, differ as
to whether the actions of the VAMC medical staff were a
substantial
factor
in
Plaintiff’s
expert,
causing
Dr.
Mr.
Bowling’s
Montgomery,
opines
suicide.
that
Dr.
Hackney’s failure to involuntarily admit Mr. Bowling on May
21, 2008, constituted a breach of the standard of care that
was in turn a substantial factor in causing his suicide
five weeks later.
Contrarily, the United States’ expert,
Dr. Shraberg, opines that Dr. Hackney’s failure to admit
Mr. Bowling on May 21, 2008, was within the standard of
care and was too far removed from Mr. Bowling’s suicide on
June
29,
2008,
to
satisfy
causation.
To
choose
one
expert’s opinion over the other is impermissible, as it is
not the role of the trial judge to weigh the evidence on
summary judgment.
Anderson, 477 U.S. at 255.
Moreover,
given the five and a half week time period between the
VAMC’s alleged medical malpractice on May 21, 2008, and Mr.
Bowling’s death on June 29, 2008, it cannot be said on
summary
judgment
that
the
VAMC
medical
staff’s
actions
either were or were not necessarily a substantial factor in
causing Mr. Bowling’s death.
Thus, legal causation is an
appropriate issue for trial.
14
IV. Conclusion
For the reasons stated above, IT IS ORDERED:
(1) that Defendants’ Motion for Summary Judgment (D.E.
No. 37) shall be GRANNTED, IN PART, and DENIED, IN PART;
(2) that Plaintiff’s Motion for Summary Judgment (D.E.
No. 38) shall be DENIED.
This, the 17th day of October, 2012.
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?