Brown et al v. Providence Medical Center, et al

Filing 93

MEMORANDUM AND ORDER - The Statement of Objections to Magistrate Judge's Order (Filing No. 88 ) filed by the Plaintiffs is overruled. Ordered by Chief Judge Laurie Smith Camp. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFF BROWN and SHERRI GOTHIER,
Individually and as Co-Special
Administrators of the Estate of KB,
Deceased,

CASE NO. 8:12CV31

Plaintiffs,
vs.

MEMORANDUM
AND ORDER

MERCY MEDICAL SERVICES, MERCY
HEALTH SERVICES – Iowa, Corp., and
MERCY MEDICAL CENTER – Sioux City,
Defendants.

This matter is before the Court on the Statement of Objections to Magistrate
Judge’s Order (Filing No. 88) filed by the Plaintiffs. The Plaintiffs object to Magistrate
Judge Gossett’s Order (Filing No. 87) denying their Motion to Amend Complaint (Filing
No. 73). For the reasons discussed below, the Objections will be overruled.
BACKGROUND
On June 18, 2010, the Plaintiffs initiated in this Court an action against the
Defendants. (See Brown v. Providence Med. Ctr., Case No. 8:10cv230 (D. Neb. 2010)
(“Brown I”)).1 The Plaintiffs filed their first amended complaint in Brown I on August 3,
2010, and their second amended complaint on November 12, 2010 (Brown I, Filing Nos.
20, 50). The Plaintiffs alleged that Defendant Mercy Medical Services (“MMS”) should
be held liable for the alleged medical negligence of Dr. Benjamin Martin--an employee
of MMS--which occurred on January 24, 2010, when Dr. Martin cared for and treated
the Plaintiffs’ daughter, KB. The alleged negligence included: (1) failing to properly
1

When the Court refers to documents filed in the above-captioned action, it will cite only to the
filing number of that document. When it refers to documents filed in Brown I, it will so indicate.

assess KB’s condition on January 24, 2010; (2) failing to provide adequate or necessary
medical care to KB on January 24, 2010; and (3) putting KB in an ambulance for a trip
to Defendant Mercy Medical Center when it was unsafe to do so because of KB’s
medical condition. (Id., Filing No. 50 ¶ 30.) The Plaintiffs referenced KB’s admission to
Providence Medical Center (“PMC”) on January 22, 2010, and her subsequent
discharge “in a stable condition[ ] on January 23, 2010” (Id., ¶¶ 11-12), but did not
indicate that they based any of their claims on conduct that occurred prior to January
24, 2010.
On October 6, 2011, the day of the pretrial conference, the Plaintiffs requested
that the trial date--November 15, 2011--be altered or that Brown I be dismissed without
prejudice. (Id., Filing Nos. 189 & 190.) The Plaintiffs cited their counsel’s scheduling
conflict with another trial in Iowa to support their request. (Id., Filing No. 189.) The
Plaintiffs’ request to alter the trial date was denied, and the Plaintiffs filed a separate
motion seeking the dismissal of Brown I, which the Defendants opposed. (Id., Filing No.
192-94.) On October 14, 2011, the Court granted the Plaintiffs’ motion to dismiss (id.,
Filing No. 196), and dismissed Brown I without prejudice to refiling, but conditioned the
refiling of the action on the Plaintiffs paying the Defendants’ reasonable attorney fees,
costs, and expenses incurred in the defense of Brown I.
The Plaintiffs filed their Complaint in this action (“Brown II”) (Filing No. 1) on
January 20, 2012. Both Brown I and Brown II arose “from the same events” and “[t]he
claims and allegations are essentially the same.” (Pl.’s Br., Filing No. 41 at CM/ECF p.
3.) The Plaintiffs again referenced KB’s admission to PMC on January 22, 2010, and
subsequent release in a stable condition on January 23, 2010 (Filing No. 1 ¶¶ 17-18),
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and like in Brown I, made allegations of negligence relating only to Dr. Martin’s January
24, 2010, conduct (Filing No. 1 ¶ 35).
On March 5 and 6, 2012, the Defendants filed motions to stay and for fees, costs,
and expenses incurred in the defense of Brown I, along with supporting briefs and
indexes of evidence.

(Filing Nos. 28-30, 34-35, 44.)

The Plaintiffs opposed the

motions. (Filing No. 41.) On May 2, 2012, the Court granted the Defendants’ motions
in part; it subtracted from the requested awards the fees, expenses, and costs relating
to discovery developed in Brown I that could be used in Brown II. (Filing No. 45.) On
June 1, 2012, the Plaintiffs appealed this ruling to the Eight Circuit. (Filing No. 46.) On
July 24, 2012, the Eight Circuit dismissed the Plaintiffs’ appeal (Filing No. 50), and on
August 14, 2012, issued its mandate (Filing No. 51). The Plaintiffs deposited with the
Clerk of the Court the amounts awarded to the Defendants, and the funds have been
distributed to the parties with out-of-pocket expenses. (See Filing Nos. 53, 61.)
The Plaintiffs filed their Motion to Amend, with a proposed amended complaint as
an attachment, on January 31, 2013, the day prior to the deadline for filing such
motions. (Filing No. 71 ¶ 7.) The Plaintiffs stated that the proposed amended complaint
would “clarify the Defendants and their status, the allegations of negligence, and
remove allegations that were included in the original Complaint, and that are now
unnecessary[.]” (Filing No. 73.) The Plaintiffs did not, however, “clearly identif[y] the
proposed amendments” in the attached proposed amended complaint, or “specifically

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state [in their Motion to Amend] the proposed amendments and . . . whether the motion
is unopposed or opposed, after conferring with opposing parties.”2
A review of the proposed amended complaint reveals the Plaintiffs actually seek
to add new allegations of negligence relating to conduct occurring prior to January 24,
2010, engaged in by a second MMS employee, Dr. James A. Lindau. (Filing No. 73-1
¶¶ 11, 13, 18, 21, 25, 48(b), 50; see also id. ¶ 51.) Specifically, the Plaintiffs allege Dr.
Lindau failed to contact KB’s primary doctor prior to releasing KB on January 24, 2010.
The Plaintiffs have also added an allegation relating to “negligent . . . retention and
supervision of doctors who it knew, or should have known, lacked the skill to provide
necessary emergency care,” and an allegation relating to MMS’s alleged failure “to
promulgate and enforce policies that provide for continuity of care between its
emergency care doctors and the patient’s primary surgeon-doctor.”3 (Id. ¶¶ 51, 52.)
Judge Gossett denied the Plaintiffs’ Motion to Amend, finding that, under the
totality of the circumstances, the Defendants would be unfairly prejudiced if the Court
permitted the Plaintiffs to amend their Complaint at this time. (Filing No. 87.) Among
the circumstances Judge Gossett considered were: that the Plaintiffs initiated Brown I
almost three years ago and filed an eleventh-hour motion to dismiss without prejudice
after the parties had engaged in extensive discovery and consultation with experts and
2

See NECivR 15.1(a):

A party who moves for leave to amend a pleading . . . must file as an attachment to the
motion an unsigned copy of the proposed amended pleading that clearly identifies the
proposed amendments. . . . The motion for leave to amend must (1) specifically state the
proposed amendments and (2) state whether the motion is unopposed or opposed, after
conferring with opposing parties.
3

This proposed allegation seems to alter the current allegation that “MMS failed to promulgate
and enforce policies or procedures to ensure the delivery of appropriate emergency medical care for [its]
patients.” (Filing No. 1 at ¶ 38.)

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were nearly ready to try the matter; that the Plaintiffs are seeking to add new allegations
and theories of liability based on facts available to the Plaintiffs prior to the time they
initiated Brown I; and that the Plaintiffs have not pointed to any recently discovered
evidence that would justify a new complaint at this time.

Having found that undue

prejudice would result if the Plaintiffs were permitted to amend their complaint, Judge
Gossett did not consider the Defendants’ argument that leave to amend should be
denied because the statute of limitations applicable to professional negligence claims
would bar bringing Dr. Lindau into the action as an unnamed party, at least based on
conduct separate and distinct from the conduct the Plaintiffs had previously alleged
gave rise to their causes of action.
STANDARDS
I. Rule 72
When a party objects to a magistrate judge's order on a nondispositive pretrial
matter, a district court may set aside any part of the magistrate judge's order shown to
be clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).
“‘A finding is clearly erroneous when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Saleen v. Waste Mgmt., Inc., 649 F. Supp. 2d 937, 943
(D. Minn. 2009) (quoting Chase v. Comm'r of Internal Revenue, 926 F.2d 737, 740 (8th
Cir.1991)) (internal quotation marks omitted). “An order is contrary to law if it fails to
apply or misapplies relevant statutes, case law, or rules of procedure.” Haviland v.
Catholic Health Initiatives-Iowa, Corp., 692 F. Supp. 2d 1040, 1043 (S.D. Iowa 2010)
(internal quotation marks and citation omitted).
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II. Rule 15
After the time for amending a pleading as a matter of course has expired, see
Fed. R. Civ. P. 15(a)(1), “a party may amend its pleading only with the opposing party's
written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Courts are directed to
“freely give leave,” but only “when justice so requires.” Id. Thus, “[a] denial of leave to
amend may be justified by undue delay, bad faith on the part of the moving party, futility
of the amendment or unfair prejudice to the opposing party.” Amrine v. Brooks, 522
F.3d 823, 833 (8th Cir. 2008) (internal quotation marks and citation omitted). In other
words, “[t]here is no absolute right to amend,” Bediako v. Stein Mart, Inc., 354 F.3d 835,
841 (8th Cir. 2004) (internal quotation marks and citation omitted), and a district court
has “‘broad discretion’” when deciding whether to grant or deny a party’s request for
leave to amend pursuant to Rule 15. Turley v. Coventry Health Care of Iowa, Inc., 590
F. Supp. 2d 1126, 1128 (S.D. Iowa 2008) (quoting Baptist Health v. Smith, 477 F.3d
540, 544 (8th Cir. 2007)).
DISCUSSION
The primary basis for the Plaintiffs objection is that it was improper to consider
the proceedings in Brown I when ruling on the Motion to Amend because Brown II is a
new action separate from Brown I. The Plaintiffs contend that Brown I “is over and done
with” (Filing No. 88 ¶ 1) because it was dismissed without prejudice and the Plaintiffs
have paid the fees, expenses, and costs they were ordered to pay as a precondition to
refiling its action against the Defendants. Specifically, the Plaintiffs argue that because
Judge Gossett improperly referred to Brown I, he erred in finding that the present
litigation was initiated in June 2010, and therefore finding that the Plaintiffs unduly
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delayed in seeking to amend their Complaint. The Plaintiffs also assert that Judge
Gossett clearly erred when he found that “‘[t]he parties have spent a considerable
amount of time and expense litigating Plaintiffs’ claims’” because the Defendants have
been reimbursed for the fees, expenses, and costs incurred in the defense of Brown I.
(Filing No. 88 ¶ 3 (quoting Filing No. 87 at 3).)4
The Court is unable to conclude that Judge Gossett’s Order was clearly
erroneous or contrary to the law. The Plaintiffs have failed to point to any relevant
statute, case law, or rule of procedure indicating it was improper to consider Brown I
when considering the merits of the Plaintiff’s Motion to Amend, and under the present
circumstances, it seems appropriate to consider the Brown I proceedings, especially
considering the “broad discretion” the Court has when deciding whether to grant a party
leave to amend. While the Plaintiffs were ordered to pay some of the attorney’s fees,
expenses, and costs the Defendants incurred in the defense of Brown I, the Court
acknowledged that some of the work performed in Brown I may be of use to the
Defendants in Brown II, and reduced the Defendants’ requested awards accordingly.5
Finally, even if the Court were to disregard the proceedings and extensive
discovery and consultation with experts that occurred prior to the eleventh-hour
dismissal of Brown I, the Plaintiffs filed their Motion to Amend more than three years
4

The Plaintiffs also suggest Judge Gossett improperly added restrictions to the refiling of their
action when he determined that allowing the Plaintiffs to amend their Complaint would unduly prejudice
the Defendants. (Id. at ¶ 4.) The Court is not aware of any additional restrictions placed on the refiling of
the Plaintiffs’ action. As the Court notes below, the Plaintiffs had the ability to include new allegations and
theories of liability in their Complaint when they initiated Brown II; they do not dispute that the underlying
support for their new allegations and theories of liability have been available to them since June 2010.
5

The Court notes the Plaintiffs argued that the Court should deny the Defendants’ requested
awards because the work performed in Brown I could be utilized in Brown II. (See Filing No. 41 at
CM/ECF p. 4.) Thus, in reducing the Defendants’ requested awards, the Court agreed with the Plaintiffs’
assertion that the expenses incurred during the course of Brown I should be considered in Brown II.

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after the events giving rise to Brown II took place and more than a year after refiling
their action, and the Plaintiffs do not dispute that the underlying factual support for the
new allegations and theories of liability they hope to assert against the Defendants has
been available to them since June 2010.
Applying the standards set forth above, the Court finds that Judge Gossett’s
Order is neither clearly erroneous nor contrary to the law. The Plaintiffs’ Objections will
be overruled, and Judge Gossett’s Order will be affirmed.
Accordingly,

IT IS ORDERED that the Statement of Objections to Magistrate Judge’s Order
(Filing No. 88) filed by the Plaintiffs is overruled.

Dated this 24th day of May, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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