Colston v. Regency Nursing, LLC
MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 2/6/2018; Defendant's Motion for Summary Judgment (DN 34 ) is GRANTED IN PART and DENIED AS MOOT IN PART. All other of Defendant's remaining pending motions (DN 30 , 31 , 32 , 33 ) are DENIED AS MOOT. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 3:16-CV-0050-GNS
JANICE COLSTON, as Executrix of the
Estate of Tommie Haugabook, deceased
REGENCY NURSING, LLC
MEMORANDUM OPINION AND ORDER
This matter is before the Court on:
(1) Defendant’s Motion for Partial Summary
Judgment on Plaintiff’s Statutory & Negligence Per Se Claims (DN 30); (2) Defendant’s Motion
for Partial Summary Judgment on Plaintiff’s Wrongful Death Beneficiaries’ Grief Claims (DN
31); (3) Defendant’s Motion for Partial Summary Judgment on Plaintiff’s Claim for Punitive
Damages (DN 32); (4) Defendant’s Motion to Exclude Medical Causation Testimony by Nurse
Nancy Dion and Certain Arguments by Counsel (DN 33); and (5) Defendant’s Motion for
Summary Judgment and Motion for Partial Summary Judgment on Plaintiff’s Claims for Past
Medical Expenses (DN 34). For the reasons set forth below, Defendant’s Motion for Summary
Judgment (DN 34) is GRANTED IN PART and DENIED AS MOOT IN PART, and
Defendant’s other pending motions are DENIED AS MOOT.
On August 6, 2014, Tommie Haugabook (“Haugabook”), now deceased, was admitted to
Regency Center—a nursing home facility owned and operated by Defendant Regency Nursing,
LLC (“Defendant”). (Compl. ¶ 7, DN 1-2). At that time of her admission Haugabook suffered
from a variety of medical issues, including acute respiratory failure, diabetes mellitus, and breast
cancer. (Def.’s Expert Witness Disclosure Ex. E, at 2, DN 26-5 [hereinafter Lehman Report];
Garrett Dep. 7:23-25, Jan. 18, 2017, DN 38-4; Richardson Dep. 42:25-43:1, Jan. 18, 2017, DN
38-3). As a result of these illnesses Haugabook was bed-ridden and non-verbal, wore a tracheal
tube, and required total assistance from the nurses at Defendant’s facility. (Garrett Dep. 7:23-25;
Danielle Richardson Dep. 28:11-14, Jan. 18, 2017, DN 38-2).
Throughout the course of Haugabook’s stay at Regency Center, her daughter, Plaintiff
Nicole Colston (“Colston”), visited her regularly. (Colston Dep. 33:19-34:6, Nov. 10, 2016, DN
During those visits Colston perceived that Regency Center nurses were providing
Haugabook with substandard care. Specifically, Colston observed that her mother’s tracheal
tube was often dirty and clogged, causing it to overflow onto Haugabook’s chest. (Colston Dep.
39:9-22). In addition, Colston could regularly smell Haugabook’s urine and feces as a result of
the nursing staff’s failure to change Haugabook’s diaper. (Colston Dep. 43:1-19). Colston
allegedly reported each instance of substandard care to the nurses’ station near Haugabook’s
room, and, in response, the nurses always told her that they were “short staffed” and would “get
to it when [they] could . . . .” (Colston Dep. 40:1-9).
After many months of care at Regency Center and hospitalizations,1 Haugabook died.
(Def.’s Mot. Summ. J. Pl.’s Claim Punitive Damages Ex. A, DN 32-2). Her death certificate lists
metastatic breast cancer and chronic respiratory failure as the official cause of her death. (Def.’s
Mot. Summ. J. Pl.’s Claim Punitive Damages Ex. A; Delagarza Report 3).
Colston, as executrix of Haugabook’s estate, filed suit against Defendant raising three
causes of action. (Compl. ¶¶ 8-40). The Complaint first alleges that the nurses at Regency
Center acted negligently when they: (1) failed to perform a variety of tasks—such as ensuring
that Haugabook received adequate skin and “incontinent care”—and (2) violated Kentucky
statutes designed to protect elderly and incompetent individuals from abuse.2 (See Compl. ¶¶
Colston asserts that such failures caused Haugabook to suffer injuries,
including: (1) skin breakdown around her chest, (2) infections (presumably in her urinary tract),
and (3) dehydration.3 (Compl. ¶ 13(c)-(g)). Second, the Complaints avers that the nurses
violated KRS 216.515(6) when they subjected Haugabook to “mental and physical abuse”
throughout her stay at Regency Center.4 (Compl. ¶ 30(d)). Third, Colston claims that the
nurses’ “grossly negligent” conduct caused Haugabook’s death. (Compl. ¶¶ 34-37). Further,
The record indicates that Defendant transferred Haugabook from Regency Center to other
hospitals on a number of different occasions. (Def.’s Mot. Lim. Exclude Medical Causation
Test. Ex. C, at 3, DN 33-4 [hereinafter Delagarza Report]).
Plaintiff claimed that Defendant committed common-law negligence and negligence per se
when its nurses violated KRS 209.005, KRS 508.080-.090, and KRS 506.080. (Compl. ¶ 19(a)(d)).
In addition, Plaintiff seems to claim that Defendant’s alleged failure to properly care for
Haugabook’s tracheal tube is an injury in and of itself. (Compl. ¶ 13(a)). But Defendant’s
failure to perform that act is not an injury; rather, the result of the failure to perform that act
could constitute an injury. That said, the Court will only address Plaintiff’s negligence claims
insofar as they relate to a discernible injury, such as skin breakdown, infection, or death.
Plaintiff also claimed that Defendant’s alleged misconduct violated other subsections of KRS
216.515, but this Court disposed of those claims in a Memorandum Opinion & Order on June 8,
2017. (See Compl. ¶ 31(a)-(c), (e); Mem. Op. & Order, DN 25).
Colston charges that Defendant is liable for the nurses’ misconduct and that the allegedly
negligent acts were committed with “oppression, fraud, [or] malice,” which justifies punitive
damages. (See Compl. ¶¶ 21-28, 40).
The parties proceeded with discovery and disclosed their expert witnesses. Defendant
submitted two expert reports—one from Vincent W. Delagarza, MD (“Delagarza”), the other
from Janine Lehman, RN (“Lehman”). (See Delagarza Report; Lehman Report). Lehman’s
report explained that the nurses at Regency Center complied “with the applicable standard of
care” in caring for Haugabook, and Delagarza opined that none of the nurses’ alleged
misconduct caused Haugabook’s skin breakdown, infections, dehydration, or death. (Lehman
Report 1-3; Delagarza Report 5-6; Delagarza Dep. 26:3-21, Aug. 16, 2017, DN 33-3). Plaintiff
identified Nancy Dion, RN (“Dion”) as an expert witness, but never submitted any documents
detailing Dion’s expert opinion. (See Pl.’s Expert Disclosure ¶ 1, DN 22). In fact, the only
portion of Dion’s deposition submitted to this Court was a one-page excerpt in which Dion
testified that she is not qualified to give an opinion on whether the nurses’ alleged negligence
caused Haugabook’s injuries. (Dion Dep. 106:4-12, Aug. 4, 2017, DN 32-4 [hereinafter Dion
Once discovery closed, Defendant filed five motions, all of which are pending but only
one of which is dispositive of Plaintiff’s case, Defendant’s Motion for Summary Judgment and
Motion for Partial Summary Judgment on Plaintiff’s Claims for Past Medical Expenses (DN 34)
(“Defendant’s Motion for Summary Judgment”). In that motion, Defendant argues that it is
entitled to summary judgment on each of Plaintiff’s claims because Plaintiff submitted no
evidence supporting her claim that the nurses’ alleged misconduct caused Haugabook’s injuries.5
(Def.’s Mem. Supp. Summ. J. 1-6).
Plaintiff has responded to each pending motion. Importantly, however, Plaintiff does not
attach or cite to evidence in any of her responses supporting her contention that Defendant’s
alleged misconduct caused Haugabook’s injuries. (See, e.g., Pl.’s Resp. Def.’s Mot. Summ. J.
Pl.’s Claims Past Medical Expenses, DN 35 [hereinafter Pl.’s Resp. Def.’s Mot. Summ. J.]).
Defendant has filed reply briefs corresponding to each of its motions, largely reiterating the
arguments it raised in its merits briefs. (See, e.g., Def.’s Reply Supp. Mot. Summ. J., DN 47).
The parties have fully briefed the pending motions and each is ripe for adjudication. As noted,
however, Defendant’s Motion for Summary Judgment (DN 34) is dispositive of the case and, as
such, the Court will only address that motion.
STANDARD OF REVIEW
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “[A] party moving for summary judgment may satisfy its burden [of showing]
that there are no genuine issues of material fact simply ‘by pointing out to the court that the [nonmoving party], having had sufficient opportunity for discovery, has no evidence to support an
essential element of his or her case.’” Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005)
(quoting Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989)). Similarly, the
movant may meet its burden by offering evidence negating an essential element of the non-
Defendant also argues in this motion that the Court should grant it summary judgment on
Plaintiff’s claims for past medical expenses. (Def.’s Mem. Supp. Mot. Summ. J. & Mot. Partial
Summ. J. Pl.’s Claims Past Medical Expenses 6-9, DN 34-1 [hereinafter Def.’s Mem. Supp.
moving party’s claim. Dixon v. United States, 178 F.3d 1294, 1999 WL 196498, at *3 (6th Cir.
After the movant either shows “that there is an absence of evidence to support the
nonmoving party’s case,” or affirmatively negates an essential element of the non-moving
party’s claims, the non-moving party must identify admissible evidence that creates a dispute of
fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). While the Court must view the evidence in a light most
favorable to the non-moving party, the non-moving party “must do more than simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence in support
of the plaintiff’s position [is] insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” Anderson, 477 U.S. at 252.
Defendant moves for summary judgment on Plaintiff’s negligence, statutory, and
wrongful death claims, arguing that she has not presented evidence showing that Defendant’s
alleged misconduct caused Haugabook’s injuries.
(Def.’s Mem. Supp. Summ. J. 1-6).
support, Defendant points out that its expert, Delagarza, has reported that its nurses did not cause
any of Plaintiff’s injuries, and that Plaintiff’s expert, Dion, has testified that she is not qualified
to testify regarding causation. (Def.’s Mem. Supp. Summ. J. 1-6). Thus, Defendant contends its
unrebutted expert opinion negates an essential element of each of Plaintiff’s claims, thereby
entitling it to summary judgment. (Def.’s Mem. Supp. Summ. J. 1-6).
At the outset, the Court observes that each of Plaintiff’s causes of action requires her to
show that Defendant caused decedent to suffer an injury. Indeed, “[i]t is beyond dispute that
causation is a necessary element of proof in any negligence case,” and causation is never
presumed “from the mere evidence of mental pain and suffering” of the injured party.6 See
Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991) (citation omitted). Similarly,
Kentucky’s wrongful death statute provides that “[w]henever the death of a person results from
an injury inflicted by the negligence or wrongful act of another, damages may be recovered for
the death from the person who caused it . . . .” KRS 411.130(1). Finally, the Kentucky Supreme
Court has interpreted KRS 216.515(6)—which provides that “[a]ll [nursing home] residents shall
be free from mental and physical abuse”—as creating “nothing other than a common law
personal injury claim,” meaning that the statute incorporates the common-law’s causation
requirement. Kindred Nursing Ctrs. Ltd. P’ship, 479 S.W.3d 69, 75-76 (Ky. 2015).
Delagarza’s expert opinion affirmatively negates Colston’s allegation that Defendant
caused Haugabook’s alleged injuries. (Delagarza Report 5-6; Delagarza Dep. 26:3-21). To be
sure, Colston claims that Haugabook suffered the following injuries: (1) skin breakdown around
her chest, (2) infections (presumably in her urinary tract), (3) dehydration, and (4) death.
(Compl. ¶ 13(c)-(g)). The fatal flaw here is that Colston points to no evidence to support a
finding that any of these injuries was caused by Defendant’s substandard care. Absent such
proof, Plaintiff’s negligence claims fails as a matter of law. See Andrew v. Begley, 203 S.W.3d
165, 171 (Ky. App. 2006) (“[When] [t]here are no facts or circumstances from which negligence
and causation can be inferred,” “[a plaintiff] [is] required to present expert testimony on the issue
of medical malpractice.” (internal citation omitted)). Even in the absence of some evidence to
The Court notes that the causation requirement of a common-law negligence claim is equally
applicable to Plaintiff’s negligence per se claims, meaning that, even if Plaintiff could establish
that Defendant violated KRS 209.005, KRS 508.080-.090, or KRS 506.080, she would still need
evidence that such violations caused Plaintiff’s injuries. See Stivers v. Ellington, 140 S.W.3d
599, 601 (Ky. 2004) (“As with common-law negligence, causation and injury must still be
proved in negligence per se claims.”).
meet Plaintiff’s burden of establishing causation, Defendant has affirmatively proven the
absence of causation.
Delagarza opines that:
(1) the nurses’ alleged failure to clean
Haugabook’s tracheal tube did not cause the skin breakdown on her chest, (2) Haugabook did not
suffer from any infections, as her supposed urinary tract infection was actually “colonization”
caused by Haugabook’s old age, (3) Haugabook “was not dehydrated,” and (4) “[t]he care
rendered by the staff at [Regency Center] did not cause” Haugabook’s death. (Delagarza Report
5-6; Delagarza Dep. 26:3-21).
Plaintiff can only avoid summary judgment by identifying evidence that rebuts
Delagarza’s opinion, and she has failed to do so. Contrary to the requirements of Kentucky law,
Plaintiff has not presented expert reports or testimony explaining that Defendant’s conduct
caused Plaintiff’s injuries. See Baylis v. Lourdes Hosp., Inc., 805 S.W.2d 122, 124 (Ky. 1991)
(observing that “proof of causation requires” expert testimony “in most medical negligence
cases . . . .”). In fact, the only expert witness identified by Colston never opined that Defendant’s
conduct caused Haugabook’s alleged injuries; to the contrary, Nurse Dion candidly admitted that
she is not qualified to provide an opinion regarding causation. (Dion Dep. 106:4-12).
Under these circumstances, Defendant is entitled to summary judgment on each of
See Dixon, 1999 WL 196498, at *3 (affirming grant of summary judgment
for the defendant when the plaintiff failed to rebut the defendant’s evidence negating an element
of the plaintiff’s claim). Plaintiff’s case is therefore dismissed, and the rest of Defendant’s
pending motions are moot.7
The portion of Defendant’s Motion for Summary Judgment in which it seeks partial summary
judgment on Plaintiff’s claims for past medical expenses is also denied as moot, as that portion is
irrelevant to the Court’s disposition of the case. (See Def.’s Mem. Supp. Summ. J. 6-9).
For the foregoing reasons, IT IS HEREBY ORDERED as follows:
Defendant’s Motion for Summary Judgment (DN 34) is GRANTED IN PART
and DENIED AS MOOT IN PART.
All other of Defendant’s remaining pending motions (DN 30, 31, 32, 33) are
DENIED AS MOOT.
Greg N. Stivers, Judge
United States District Court
February 6, 2018
counsel of record
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