Linda Lou Dawson v. United States Of America
Filing
55
MEMORANDUM ORDER AND OPINION GRANTING IN PART THE PLAINTIFFS MOTION FOR PARTIAL SUMMARY JUDGMENT DKT. NO. 46 . Signed by District Judge Irene M. Keeley on 6/14/2013. (Copy counsel of record via CM/ECF)(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LINDA LOU DAWSON, individually and
in her Capacity as Executor of the
Estate of Ronald Wade, Deceased,
Plaintiff,
v.
//
UNITED STATES
CIVIL ACTION NO. 1:11CV114
(Judge Keeley)
OF AMERICA,
Defendant.
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
Before the Court is that portion of the Motion for Partial
Summary Judgment of the plaintiff, Linda Lou Dawson (“Dawson”),
Executor of the Estate of Ronald Wade, Deceased (“Wade”), seeking
a
determination
of
the
types
of
damages
available
under
the
Federal Torts Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. (Dkt.
No. 46). For the reasons stated on the record during oral argument
on May 21, 2013, and those that follow, the Court GRANTS IN PART
that portion of the Plaintiff’s Motion, concluding, as a matter of
law, that compensatory damages for Wade’s pre-death pain and
suffering are available to Dawson under the FTCA.
I.
As it must on a motion for summary judgment, the Court reviews
all evidence in the light most favorable to the government, the
nonmoving party.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
(1986). Dawson
is
the
daughter
of
the decedent,
Ronald
Wade
(“Wade”), a veteran who underwent surgery for bladder cancer at the
Louis
A.
Johnson
Veterans
Administration
Medical
Center
in
Clarksburg, West Virginia (the “Clarksburg VA”), in 2007. Wade
later died of COPD in 2009, while residing in the extended care
facility at the Clarksburg VA.
A.
In February, 2005, a urologist on the medical staff at the
Clarksburg VA diagnosed Wade with carcinoma-in-situ of the bladder.
(Dkt. Nos. 46-1 at 2; 47 at 4). After two years of conservative
treatment for bladder cancer, Douglas McKinney, MD (“McKinney”),
another urologist on the medical staff of the Clarksburg VA,
concluded
that Wade’s
recommended
that
he
cancer had
undergo
a
progressed to Stage
radical
procedure
IV
known
and
as
a
cystoprostatectomy. During a cystoprostatectomy, the bladder is
removed and an ileal conduit is created to allow urine to exit the
body to an external ostomy. (Dkt. No.
to
McKinney’s
recommendation,
and
46-1 at 3). Wade acquiesced
McKinney
performed
the
cystoprostatectomy on October 1, 2007.
The parties dispute the necessity of the cystoprostatectomy.
Dawson contends that it was wholly unnecessary because, at the time
2
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
McKinney operated, Wade did not suffer from Stage IV bladder
cancer. (Dkt. No. 46-1 at 3). She maintains that the post-operative
pathology report locates Wade’s cancer in the urethra leading to
his prostate. Id.; Dkt. No. 46-2 at 27-30. The government contends
the surgery
was
necessary
to
save
Wade’s life
because those
pathology reports locate the cancer in the dome and trigone of
Wade’s bladder, as well as in the prostate. (Dtk. No. 47 at 4, 5).
B.
Following his surgery on October 1st, Wade developed serious,
indeed life-threatening, complications. On October 2nd (the first
post-operative day), Dawson contends that Wade was exhibiting
symptoms of infection and renal failure. (Dkt. No. 46-1 at 3; Dkt.
No. 46-2). By post-operative days three and four, he had developed
signs
of
sepsis,
respiratory
failure,
and
exhibited
symptoms
suggesting that the ileal conduit constructed by McKinney may have
failed. (Dkt. No. 46-1 at 4; Dkt. No. 46-2 at 17 - 19). By the
fifth
post-operative
day,
October
6th,
Wade
had
become
unresponsive. (Dkt. No. 46-2 at 6). By October 7th, he was severely
septic. Id. at 2. According to the Clarksburg VA progress notes,
his medical team suspected a urine leak or a failure of the stoma,
an artificial and permanent opening in Wade’s abdominal wall
3
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
created by McKinney to allow the newly constructed ileal conduit to
pass to the ostomy. (Dkt. No. 46-1 at 4; Dkt. No. 46-2 at 2).
The parties hotly dispute the cause of these post-surgical
complications.
Dawson
abandonment
Wade,
of
maintains
and
his
they
attendant
stem
from
failure
McKinney’s
to
recognize
emerging complications and intervene appropriately, particularly on
the fifth, sixth, and seventh post-operative days. (Dkt. No. 46 at
4-5). The government defends McKinney’s surgery and post-operative
care, contending that he properly monitored Wade in compliance with
the applicable standard of care by telephoning the Clarksburg VA
and providing that specialists, including a nephrologist, were
monitoring Wade’s progress and needs. (Dkt. No. 47 at 5).
Despite these disagreements, the parties do not dispute that
by the sixth post-operative day, October 7th, Wade’s condition was
dire
enough
to
warrant
emergency
transfer
to
West
Virginia
University Hospitals (“WVUH”) in Morgantown. (Dkt. Nos. 47; 46-2).
There, on October 8th, surgeons performed an emergency exploratory
laparotomy to reconstruct the failing ileal conduit. (Dkt. No. 46-5
at 6). Further, due to bowel necrosis, id. at 10, the surgeons also
resected Wade’s colon and constructed an additional stoma for the
elimination of feces, leaving Wade with a second, permanent ostomy.
4
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
(Dkt. Nos. 46-1 at 5; 46-5 at 6-7). Following this surgery, Wade
remained in the WVUH skilled nursing unit for sixteen weeks. (Dkt.
No. 46-1 at 6). Eventually, he was transferred to the extended care
facility at the Clarksburg VA, where he lived until his death on
November 5, 2009. Id. at 2, 5.
C.
On July 27, 2011, Dawson, as the executor of Wade’s estate,
sued the government pursuant to the FTCA, 28 U.S.C. § 2671 et seq.
Her
complaint
alleged
several
acts
of
medical
negligence
by
McKinney (Count I), “warehousing” of Wade by the Clarksburg VA
(Count II), and wrongful death (Count III). Later, the parties
dismissed
the warehousing
count
pursuant
to
Fed. R.
Civ.
P.
41(a)(1)(A)(ii).
On April 8, 2013, Dawson moved for partial summary judgment,
contending that, under the decision of the Supreme Court of the
United States in Molzof v. United States, 502 U.S. 301, 306 (1992),
compensatory damages for Wade’s pre-death pain and suffering are
not subject to the FTCA’s ban on punitive damages. (Dkt. No. 46-1
at 8). The government opposed the motion, relying on the Fourth
Circuit’s decision in Flannery v. United States, 718 F.2d 108 (4th
Cir. 1983), which, it contends, was not overruled by Molzof and
5
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
controls the outcome here. In her reply, Dawson withdrew her
wrongful death claim, stating that she intended to proceed to trial
solely on her theory of medical negligence. She also reiterated why
she believes damages for Wade’s pre-death pain and suffering should
be included in any award under the FTCA.
II.
Summary
documents,
judgment
is
electronically
declarations,
stipulations
appropriate
stored
.
.
where
the
information,
.,
admissions,
“depositions,
affidavits
or
interrogatory
answers, or other materials” show 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(c)(1)(A), (a). When ruling on
a motion for summary judgment, the Court reviews all the evidence
“in the light most favorable” to the nonmoving party. Providence
Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850 (4th Cir.
2000). The Court must avoid weighing the evidence or determining
the truth and limit its inquiry solely to a determination of
whether genuine issues of triable fact exist. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
6
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
III.
With that standard in mind, the Court turns to whether,
Dawson, as the executrix of Wade’s estate, may recover compensatory
damages under the FTCA for Wade’s pre-death pain and suffering. The
government has interposed arguments based both on Flannery and its
interpretation of 28 U.S.C. § 2674.
A.
The FTCA waives the sovereign immunity of the United States
for “certain torts committed by federal employees.” FDIC v. Meyer,
510
U.S.
471,
475
(1994).
Nonetheless,
it
does
limit
the
government’s liability by precluding any recovery of “punitive
damages.” 28 U.S.C. § 2674. Whether a particular type of damages is
punitive as opposed to compensatory is a question of federal law.
Molzof, 502 U.S. at 305.
In Molzof, a unanimous Supreme Court concluded that the term
“punitive damage” is a legal term of art with a long-established,
widely accepted common law meaning that is generally understood to
relate directly to the culpability of the tortfeasor. Id. at 307
(citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255 (1984)). As
the Court explained,
7
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
[l]egal dictionaries in existence when the FTCA was
drafted and enacted indicate that “punitive damages” were
commonly understood to be damages awarded to punish
defendants for torts committed with fraud, actual malice,
violence, or oppression. On more than one occasion, this
Court has confirmed that general understanding. By
definition, punitive damages are based upon the degree of
the defendant’s culpability. The common-law definition of
“punitive damages” focuses on the nature of the
defendant’s conduct. As a general rule, the common law
recognizes that damages intended to compensate the
plaintiff are different in kind from “punitive damages.”
Id. (internal quotations and citations omitted).
Molzof concluded that the FTCA “bars the recovery only of what
are
legally
considered
‘punitive
damages’
under
traditional
common-law principles.” Id. at 312. In other words, the FTCA
forbids only those damages defined by common law to be “punitive,”
rather than damages that may be said to have a “punitive effect.”
Id. at 306.
Here, the compensation Dawson seeks is for Wade’s pre-death
pain
and
suffering
malpractice.
It
is
proximately
undisputed
caused
that
by
West
McKinney’s
Virginia
alleged
permits
a
plaintiff to recover such damages in a medical malpractice case,
even if the patient has died. See W. Va. Code § 55-7B-8 (allowing
limited
damages
for
noneconomic
loss
caused
by
medical
malpractice); id. § 55-7B-2(k) (defining “noneconomic loss” as
8
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
“losses, including, but not limited to, pain, suffering, mental
anguish and grief”).
Dawson argues that to justify such an award she need only
prove that the damages were proximately caused by McKinney’s breach
of the applicable standard of care, see id. § 55-7B-3, not that
McKinney acted with the heightened culpability usually required to
merit an award of punitive damages under West Virginia common law.
See Syl. pt. 4, Meyer v. Frobe, 22 S.E. 58 (1895) (jury finding of
“gross fraud, malice, oppression, or wanton, willful, or reckless
conduct or criminal indifference” will support punitive damages).
In her view, Molzof, not Flannery, controls the outcome here and
allows
a
recovery
of
damages
for
Wade’s
pre-death
pain
and
suffering because such damages are not punitive for the purposes of
the FTCA.
B.
Although
Molzof’s
guidance
on
this
issue
is
clear,
the
government argues that Flannery prohibits such compensatory damages
under the FTCA. Flannery, decided nine years before Molzof, limited
an award of damages under the FTCA to a plaintiff’s actual economic
damages, rather than compensatory damages otherwise available under
West Virginia tort law.
See 718 F.2d at 111. Pursuant to Flannery,
9
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
a damage award was punitive under the FTCA if it “[gave] more than
the actual loss suffered by the claimant,” id., even if the award
would
have
been
“treated
and
labeled
under
state
law
as
‘compensatory.’” Id. at 110.1
A
careful
establishes
review
that
the
of
the
litigation
government’s
history
reliance
on
of
Molzof
Flannery
is
misplaced. In Molzof v. United States, 911 F.2d 18, 21-22 (7th Cir.
1990),
overruled
by
502
U.S.
301,
312,
the
Seventh
Circuit
explicitly followed Flannery and held that a comatose plaintiff
could not recover compensatory damages for pain and suffering under
the FTCA because those damage were punitive for purposes of the
FTCA:
Since we believe that the Act excludes damages in excess
of those necessary to compensate for injuries suffered by
the plaintiff and because we are equally confident that
an award of damages for loss of enjoyment of life can in
no way recompense, reimburse or otherwise redress a
comatose patient's uncognizable loss, we adopt the Fourth
1
Because the comatose plaintiff in Flannery could not
experience the loss of enjoyment of life for which the jury had awarded
him damages, a divided panel of the Fourth Circuit held that he had been
compensated beyond his actual loss, thereby making the award punitive
under the FTCA. Id. at 111. In arriving at its holding, the majority
expressly rejected the “deterr[ing] and punishing attributes” that
traditionally had defined punitive awards as determinative under the
FTCA. Id.
10
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
Circuit's view and deny the award under the circumstances
and findings in this case.
Id. (citing Flannery, 718 F.2d at 111) (emphasis added).2
The Supreme Court flatly rejected this analysis. See Molzof,
502 U.S. at 304 - 306 (contrasting Molzof’s argument that punitive
damages are to be defined by reference to common law with the
government’s view, drawn from Flannery, that “damages that are not
strictly compensatory are necessarily ‘punitive damages’ barred by
the” FTCA). Relying on the plain language of the FTCA, it concluded
that “the Government’s reading of [the FTCA’s ban on punitive
damages] is contrary to the statutory language,” id. at 306, and
held that the FTCA “bars the recovery only of what are legally
considered
‘punitive
damages’
under
traditional
common-law
principles.” Id. at 312 (emphasis in original). This unambiguous
rejection of the Seventh Circuit’s decision that had rested its
reasoning squarely on Flannery fatally undermines the government’s
2
When adopting Flannery’s view of punitive damages under the
FTCA, the Seventh Circuit rejected the line of cases from other circuit
courts, including the Second and Sixth, upholding such a damage award as
compensation to a plaintiff – comatose or otherwise – for his loss. Id.
(citing Rufino v. United States, 829 F.2d 354, 362 (2d Cir. 1987)
(explicitly rejecting Flannery); Kalavity v. United States, 584 F.2d 809,
811-12 (6th Cir. 1978)).
11
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
argument
that
Flannery
remains
good
law
following
Molzof.
Accordingly, the Court declines to follow the rule from Flannery in
this case.
C.
The government next contends that the second paragraph of 28
U.S.C. § 2674 bars any recovery for compensatory damages beyond
actual economic loss whenever a suit is brought for the benefit of
the decedent’s surviving beneficiary.3 (Dkt. No. 47 at 8-10). This
argument fails for two reasons. First, the applicability of the
second paragraph of § 2674 hinges on its opening clause: “[i]f,
however, in any case wherein death was caused . . . .”
Id. § 2674.
“Caused” indicates that the statute applies to tortious acts
causing death, i.e. wrongful death actions. As this case is no
longer a wrongful death action, the government’s argument is
inapposite.
3
The second paragraph of § 2674 states,
If, however, in any case wherein death was caused, the law of
the place where the act or omission complained of occurred
provides, or has been construed to provide, for damages only
punitive in nature, the United States shall be liable for
actual or compensatory damages, measured by the pecuniary
injuries
resulting
from
such
death
to
the
persons
respectively, for whose benefit the action was brought, in
lieu thereof.
12
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
Moreover, it is notable that, when Congress added the second
paragraph to § 2674 in 1947, it was responding to an anomaly in the
wrongful death statutes of two states, Massachusetts and Alabama,
limiting the recovery of damages in wrongful death actions to
punitive damages. See Mass. Bonding & Ins., Co. v. United States,
352 U.S. 128, 130-32 (1956). Because the FTCA prohibits punitive
damages,
a
plaintiff
proceeding
under
the
FTCA
in
either
Massachusetts and Alabama in 1947 was barred from recovering any
damages at all in a wrongful death case. See Molzof , 502 U.S. at
305 (“the extent of the United States’ liability under the FTCA is
generally determined by reference to state law”).
To correct this inequity, Congress added the second paragraph
of § 2674. Mass. Bonding, 352 U.S.
at 132. Contrary to the
government’s argument, however, this addition did not further
restrict the type of damages available under the FTCA when a
plaintiff is deceased, but rather enlarged them by permitting
plaintiffs in Massachusetts and Alabama to recover compensatory
damages unavailable under state law.
Finally,
to
the
extent
that,
during
oral
argument,
the
government asserted that the FTCA limits the types of damages
available to Dawson because Wade’s medical negligence claim arises
13
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
under West Virginia’s survival statute, W. Va. Code § 55-7-8, that
argument is equally unavailing. This Court is unaware of any case
law supporting such a limitation, and the government has cited
none. Had Congress intended to preclude certain damages otherwise
available under a state’s survival statute, it presumably would
have said so.
F.3d 171,
See United States ex rel. Carter v. Haliburton, 710
193
(4th
Cir.
2013)
(when
“[f]aced
with
statutory
silence, we presume that Congress is aware of the legal context in
which it is legislating”) (quoting Palisades Collections, L.L.C. v.
Shorts, 552 F.3d 327, 334 n.4 (4th Cir. 2008)). Thus, inasmuch as
Congress was aware of common law and statutory enactments providing
for the survival of certain tort claims, see, e.g., Restatement
(Second) of Torts § 900 (1979), and did not preclude them, the
Court concludes that the FTCA does not bar Dawson’s claim of
medical negligence due to Wade’s death.
IV.
For
the
compensatory
reasons
damages
discussed,
for
Wade’s
the
Court
pre-death
pain
concludes
and
that
suffering
proximately caused by Dr. McKinney’s alleged medical negligence are
not punitive in nature, survive his death, and, in an appropriate
case, are recoverable under the FTCA. Accordingly, it GRANTS IN
14
DAWSON v. UNITED STATES
OF AMERICA
1:11CV114
MEMORANDUM ORDER AND OPINION GRANTING IN PART
THE PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT [DKT. NO. 46]
PART Dawson’s motion for partial summary judgment as to that legal
issue. (Dkt. No. 46).
It is so ORDERED.
The Court directs the Clerk of Court to transmit copies of
this Order to counsel of record.
DATED: June 14, 2013.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
15
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