Simms et al v. The United States of America et al

Filing 56

MEMORANDUM OPINION AND ORDER denying Plaintiffs' 37 MOTION to Amend Complaint. Signed by Judge Robert C. Chambers on 12/11/2013. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

MISTY SIMMS, next friend of
Caelan Jantuah, an infant, and
MISTY SIMMS, individually
Plaintiffs,
v.

CIVIL ACTION NO. 3:11-0932

THE UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Amend (ECF No. 37). For the reasons
explained below, this Motion is DENIED.
I.

Statement of Facts

On November 21, 2011, Plaintiff Misty Simms filed the pending Complaint individually
and as next friend for her infant son, Caelan Jantuah, seeking damages in relation to Ms. Simms’
prenatal care while pregnant with Caelan and in relation to disabilities and abnormalities
experienced by Calean after birth. Compl., ECF No. 1. Valley Health Systems, Inc. (“VHS”)—
including employee Richard Booth, M.D.—provided prenatal care to Ms. Simms starting around
December 2007. On February 27, 2008, Ms. Simms received an ultrasound at VHS. According
to Plaintiffs, this ultrasound revealed certain fetal abnormalities, yet Ms. Simms was not told
about these findings. Dr. Booth and VHS allegedly “documented a referral to another physician,
Dr. Chaffin, as a result of the ultrasound,” Compl. ¶ 21, but Ms. Simms does not recall being
informed about the referral and did not visit Dr. Chaffin. She was not told about the referral
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during any of four subsequent visits to VHS. Ms. Simms received another ultrasound at VHS on
May 14, 2008, at which time she was told about the presence of fetal abnormalities. Ms. Simms
was sent for an additional ultrasound with Dr. Singh that same day; Dr. Singh confirmed the
abnormalities. Dr. Singh’s office then questioned Ms. Simms about the earlier referral to Dr.
Chaffin, about which Ms. Simms had been unaware. Ms. Simms underwent additional testing
and examination over the next few weeks. She eventually received an ultrasound from Dr.
Chaffin on June 13, 2008; Dr. Chaffin decided to induce labor. Caelan was born on June 18,
2008, with significant disabilities.
In the Complaint, Plaintiffs seek damages for “Negligence- Medical Malpractice/
Wrongful Birth” (Count I) and “Negligence- Medical Malpractice via Agency” (Count II). She
originally sought damages from the United States (because VHS is a federally-funded facility),
Dr. Booth, VHS, and the U.S. Department of Health and Human Services. However, the parties
subsequently stipulated to the dismissal of all Defendants except the United States based on the
Federal Tort Claims Act (“FTCA”) and the Public Health Service Act.
Plaintiffs now seek to amend the Complaint. Mot. Amend, ECF No. 37. The proposed
Amended Complaint, filed as an exhibit to the Motion to Amend, is a significant departure from
the existing Complaint. For example, the proposed Amended Complaint adds Ms. Simms’ other
infant son, Elijah Simms, as a plaintiff, on whose behalf Ms. Simms will act as next friend.
While Counts I and II remain the same, five additional counts are added: Count III- Negligence;
Count IV- Battery- Informed Consent; Count V- Pure Negligence- Informed Consent; Count VINegligent Infliction of Emotional Distress- Zone of Danger- Derivative Victim; Count VIINegligent Infliction of Emotional Distress- Direct Victims. It also adds legal argument
concerning jurisdiction, specifically regarding waiver of immunity for intentional torts, and seeks

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additional damages.1 Defendant opposes amendment. The Motion to Amend is now ripe for
resolution.
II.

Legal Standard for Motion to Amend

Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, after the time to amend as a
matter of course has expired, “a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when justice so requires.”
Rule 16(b)(4) states that a scheduling order “may be modified only for good cause and with the
judge’s consent.” As this Court explained in Stewart v. Coyne Textile Services, “a motion to
amend . . . filed after the deadline established in the scheduling order, must satisfy the tests of
both Rule 16(b) and Rule 15(a)” in order to be granted. 212 F.R.D. 494, 496 (S.D. W. Va. 2003).
As the Supreme Court has explained in discussing Rule 15(a), “In the absence of any
apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc.—the leave sought should, as the rules require, be ‘freely given.’” Foman v. Davis, 371 U.S.
178, 182 (1962). In contrast, Rule 16(b)’s “good cause” standard focuses on the diligence of the
moving party. Stewart, 212 F.R.D. at 496-97 (citing Marcum v. Zimmer, 163 F.R.D. 250, 254
(S.D. W. Va. 1995)). Rule 16(b) provides a higher hurdle for movants, and the Fourth Circuit
affirms that this higher standard applies when the deadline to amend has expired. Branch
Banking & Trust Co. v. First Am. Title Ins. Co., No. 5:11-CV-00473, 2013 WL 85342, at *2
(S.D. W. Va. Jan. 7, 2013) (citing Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.
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The Motion to Amend does not note all of the proposed amendments; in fact, only a few are
explained. Defendant argues that the Court should deny any amendments not specifically
referenced in the Motion to Amend, but offers no legal authority for this proposition.
Accordingly, the Court will not deny any amendments on that basis alone.
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2008), among other cases). Again, “‘Rule 16(b)’s good cause standard focuses on the timeliness
of the amendment and the reasons for its tardy submission; the primary consideration is the
diligence of the moving party.’” Id. at *2 (quoting Montgomery v. Anne Arundel Cnty., 182 Fed.
App’x 156, 162 (4th Cir. 2006)).
Plaintiffs argue that Rule 16(b) does not apply here because they are not moving for a
change in the scheduling order and amendment itself will not disrupt the scheduling order in
place. The Court rejects this argument. Although the existing scheduling order does not contain a
deadline for amending the pleadings, see ECF No. 35, this is because the current scheduling
order was entered over a year after the deadline for amendment—April 23, 2012—passed, as set
in the first scheduling order, ECF No. 12. Given that the deadline for the amendment of
pleadings has long since expired, there is no need for the newer scheduling order to impose a
deadline for amendment. Although Plaintiffs do not formally move for amendment of the
scheduling order, allowing amendment would, in essence, alter the amendment deadline set
earlier. Therefore, both Rule 15(a)(2)’s standard and Rule 16(b)’s “good cause” standard apply
to the instant case.
III.

Diligence in Moving for Amendment

This is the first amendment sought by Plaintiffs. The deadline for amendment expired on
April 23, 2012. Plaintiffs moved for the instant amendment on September 17, 2013, nearly 17
months after the deadline for amendment passed. The Court notes that there have been delays in
this case outside of the control of the parties. For example, Plaintiffs’ counsel experienced
significant health issues starting in June 2012. The case was accordingly stayed starting on

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August 22, 2012, until the beginning of May 2013.2 If the Court accordingly ignores the nearly
one-year period during which the case was stayed due to counsel’s illness, as it would be fair to
do, then this Motion to Amend in essence comes approximately five months after the deadline
expired.
Plaintiffs attempt to explain part of the delay by pointing to the Supreme Court’s March
4, 2013, decision in Levin v. United States, 133 S. Ct. 1224 (2013). In Levin, the plaintiff sought
to bring a battery claim against the United States in relation to the actions of military medical
personnel. The FTCA contains an exception for intentional torts, 28 U.S.C. § 2680(h), meaning
that intentional tort claims could not be brought under the FTCA. The Supreme Court was asked
to decide if the Gonzalez Act, 10 U.S.C. § 1089, abrogated that exception. The Gonzalez Act
outlines procedures for medical malpractice suits against the military and provides in pertinent
part that “[f]or purposes of this section, the provisions of [the FTCA’s intentional tort exception]
shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the
performance of medical, dental, or related health care functions (including clinical studies and
investigations).” 10 U.S.C. § 1089(e). The Supreme Court held that the plaintiff was permitted to
bring an intentional tort claim against the United States because that provision of the Gonzalez
Act abrogated the FTCA’s intentional tort exception.
Plaintiffs argue that a similar provision of the Public Health Service Act should be
interpreted to waive the FTCA’s intentional tort exception: “For purposes of this section, the
[FTCA’s intentional tort exception] shall not apply to assault or battery arising out of negligence
in the performance of medical, surgical, dental, or related functions, including the conduct of

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This case was also stayed for a period of time due to the government shutdown. The shutdown
occurred after the Motion to Amend was filed and therefore does not affect the Court’s analysis
of Plaintiffs’ timeliness in seeking amendment.
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clinical studies or investigations.” 42 U.S.C. § 233(e). Plaintiffs argue that they did not believe
they could pursue a battery claim until the Levin decision was issued, and they therefore offer
Levin as a justification for the late timing of the Motion to Amend.
There are several problems with this line of reasoning. First, to the extent that Plaintiffs
rely on Levin to justify the delay in seeking amendment, the Court notes that Levin does not
provide a “new” statement of law. Its holding is in accord with existing law and was not
necessarily unexpected. Second, the Public Health Service Act provision above only deals with
assault and battery. Therefore, even to the extent that Levin could excuse a delay in amending the
Complaint to include a battery claim, Levin’s timing does not excuse a delay in seeking to add
the other proposed amendments. In other words, none of the other proposed amendments relate
to this “newly-discovered” theory. Plaintiffs argue that “[t]he uncertainty of Caelen’s [sic]
prognosis complicates determination of legally cognizable causes of action” and that
“amendment is proper because [certain] circumstances gave rise to additional harm, losses, and
damages.” Reply 4-5, ECF No. 50. All of these allegedly-new circumstances, however, were
already contemplated in the original Complaint or could have been foreseen when the Complaint
was filed. For example, the Complaint already covers lost earnings. Also, Elijah is older than
Caelan, and therefore there is no reason why the possibility of a claim for Elijah’s loss of
consortium was not apparent when the Complaint was first filed. Although Caelan’s exact
prognosis and plan of treatment is in flux, those changes in circumstances do not account for
why the newly-asserted causes of action were not placed in the original Complaint. For example,
claims involving negligent infliction of emotional distress and improper medical records were
just as apparent when the Complaint was first filed. Plaintiffs offer no compelling explanation
for why the proposed amendments were not included in the existing Complaint or, at the very

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least, sought to be included within the deadline set by the first scheduling order or much sooner
after the deadline had passed.
Third, Levin was decided in March 2013, while Plaintiffs’ case was stayed, and therefore
the Court will assume out of fairness that Plaintiffs’ counsel could not have discovered Levin
until Plaintiffs’ case was returned to the active docket in May 2013. Plaintiffs’ counsel, however,
offers no explanation as to why they did not seek amendment based on Levin until September
2013, approximately four months after the case resumed.
For these reasons, the Court finds that Plaintiffs have not shown good cause for allowing
amendment. In making this determination, the Court is mindful that Plaintiffs may still proceed
with the original Complaint, and therefore justice does not require amendment. Although there is
still significant time for discovery, Rule 16 requires the Court to focus on Plaintiffs’ diligence in
seeking amendment, and diligence is lacking in this situation.
IV.

Conclusion

For the reasons explained above, Plaintiffs’ Motion to Amend (ECF No. 37) is DENIED.
The Court DIRECTS the Clerk to send a copy of this written Opinion and Order to counsel of
record and any unrepresented parties.
ENTER:

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December 11, 2013