Wilshire v. Love et al

Filing 11

MEMORANDUM OPINION AND ORDER pursuant to the plaintiffs' motion to stay and to consolidate this case; granting the 6 MOTION to consolidate this case with Civil Action No. 2:12-0622; consolidating this civil action with Civil Action No. 2 :12-0622; Civil Action No. 3:14-8374 shall be designated as the lead case, and the matter shall proceed under that styling; the Court LIFTS the stays in these two civil actions. Signed by Judge Robert C. Chambers on 4/7/2014. (cc: attys; any unrepresented parties) (taq)

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

YEVETTE WILSHIRE, individually and in
Her Capacity as Administratrix of the Estate of
JEREMY RINEHART, Deceased,
Plaintiff,
v.

CIVIL ACTION NO. 3:14-8374

BRIAN S. LOVE, M.D. and OAK HILL
HOSPITAL CORPORATION, d/b/a PLATEAU
MEDICAL CENTER, INC.,
Defendants.
BRIAN S. LOVE, M.D.,
Defendant and Third-Party Plaintiff,
v.
CITY OF OAK HILL, the OAK HILL POLICE
DEPARTMENT; MICHAEL WHISMAN, JR.,
in his individual and official capacities as the Chief of
the Oak Hill Police Department; and
RANDALL SHANNON PRINCE, in his individual and
official capacities as a supervisor in the Oak Hill Department,
Third-Party Defendants.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s motion to stay and to consolidate this case with
Civil Action No. 2:12-0622 (ECF No. 6). For the reasons explained below, the motion is
GRANTED. Accordingly, the Court ORDERS that this civil action is CONSOLIDATED with
Civil Action No. 2:12-0622. Civil Action No. 3:14-8374 shall be designated as the lead case, and

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the matter shall proceed under that styling. The Court also LIFTS the stays in these two civil
actions.
I.

Background

Both civil actions stem from the same operative facts. Decedent Jeremy Rinehart was
arrested on August 22, 2009, by the Oak Hill Police Department. At the time of arrest or shortly
thereafter, Mr. Rinehart informed the police that he had swallowed a plastic bag containing
cocaine. Mr. Rinehart was transported to Plateau Medical Center, Inc., where he was evaluated
by Dr. Brian S. Love; Dr. Love determined that Mr. Rinehart could be released from medical
care. After being released back to police custody that same day, Mr. Rinehart went into cardiac
arrest; he died a few days thereafter. Plaintiff Yevette Wilshire, individually and in her capacity
as administratrix of the estate of Mr. Rinehart, commenced a civil action against Dr. Love and
Oak Hill Hospital Corporation, doing business as Plateau Medical Center, in the Circuit Court of
Putnam County, West Virginia. Dr. Love filed a third-party complaint against the City of Oak
Hill, the Oak Hill Police Department, Police Chief Michael Whisman, Jr., and police supervisor
Randall Shannon Prince (“the Oak Hill Defendants”), and then Plaintiff filed a complaint against
those third-party defendants. Upon removal, the case became Civil Action No. 3:14-8374.
Prior to the removal of Civil Action No. 3:14-8374, Plaintiff filed a separate civil action
in federal court against the United States, based on the alleged negligence of Dr. Sanjay Mehta.
Wilshire v. United States, Civil Action No. 2:12-0622 (S.D. W. Va. Mar. 1, 2012) (explaining
that the United States was liable for the actions of Dr. Mehta because Dr. Mehta was an
employee of a “Federally Qualified Health Center,” under the Federal Tort Claims Act
(“FTCA”)). The complaint in that case alleges that Dr. Love consulted with Dr. Mehta while Mr.
Rinehart was at Plateau Medical Center and that Dr. Mehta concurred in Dr. Love’s decision to

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discharge Mr. Rinehart. That case is stayed; the parties have been directed to notify Judge
Johnston of the status of the case by July 10, 2014.
This Court entered an order in Civil Action No. 3:14-8374 which stayed the case pending
resolution of the consolidation issue and directed any party opposing consolidation to file a
response to the motion to consolidate by March 13, 2014. ECF No. 8.1 Dr. Love filed a response
to the motion to consolidate, ECF No. 9, and Plaintiff filed a reply, ECF No. 10. The motion to
consolidate is now ripe for resolution.2
II.

Legal Standard

Consolidation is an issue left to the Court’s discretion. Arnold v. E. Air Lines, Inc., 681
F.2d 186, 192-94 (4th Cir. 1982). In making the determination of whether to consolidate, the
Court should keep in mind certain factors:
The critical question for the district court in the final analysis [is] whether the
specific risks of prejudice and possible confusion [are] overborne by the risk of
inconsistent adjudications of common factual and legal issues, the burden on
parties, witnesses and available judicial resources posed by multiple lawsuits, the
length of time required to conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial alternatives.
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Also pending is a motion to dismiss by the Oak Hill Defendants. ECF No. 3. Resolution of that
motion is stayed and it may be mooted in part by an impending settlement with Plaintiff. See
Mem. Supp. Mot. Consol. 3, ECF No. 7.
2

It should be noted that the United States did not file a response to the motion for consolidation
in either civil action. It is not clear whether the United State received notice of the Court’s order
in Civil Action No. 3:14-8374 requesting responses by March 13, 2014. Although a nearly
identical motion to consolidate and memorandum in support were filed in Civil Action No. 2:120622—to which the United States theoretically could have responded—, that case was stayed
starting just two days after the motion was filed, thus creating a narrow window for the United
States to have filed a response. In his response in opposition to consolidation, Dr. Love claims
that the United States—at a pre-trial conference on March 6, 2014, in Civil Action No. 2:120622—voiced its opposition to consolidation. Resp. 2. However, the United States’ opposition
cannot be confirmed on the record before the Court. Plaintiff states that she does not object to
allowing the United States to file a memorandum on this matter. Although the lack of any
response from the United States may be unusual, the Court does not believe that such a response
is necessary. The Court is prepared to rule on consolidation at this time.
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Id.
III.

Analysis

The Court finds that these two civil actions should be consolidated. As Plaintiff points
out, the two civil actions involve the same operative events, as well as largely the same legal
issues and many of the same witnesses. Therefore, it appears to the Court that consolidation
allows for greater efficiency, better use of judicial resources, and lesser burdens on the parties
and witnesses. Furthermore, consolidation will not result in prejudice or confusion. The Court
believes that the fact-finder at trial will be able to easily sort out the allegations against and the
conduct of the parties. Additionally, consolidation will avoid the very real risk of inconsistent
adjudications, as both cases will be highly dependent on findings of law and fact regarding the
conduct of Dr. Love and Dr. Mehta.
Any trial in Civil Action No. 3:14-8374 would be a jury trial. In contrast, Civil Action
No. 2:12-cv-0622 requires a bench trial because the claims in that case are made pursuant to the
FTCA. Plaintiff argues that this is not an impediment to consolidation because a combined trial
would be “an appropriate case for [use of] an advisory jury” under Federal Rule of Civil
Procedure 39(c). Mem. Supp. Mot. Consol. 4 n.3. That Rule provides, in pertinent part, that “[i]n
an action not triable of right by a jury, the court, on motion or on its own: . . . may try any issue
with an advisory jury.” Fed. R. Civ. P. 39(c)(1). Dr. Love argues that the use of advisory juries in
FTCA cases is “controversial” and rare. Resp. 2-3. Although the Court recognizes Dr. Love’s
concern, the Court believes that consolidation should occur at this time. The Court will be in a
better position to sort out how to conduct a combined trial after discovery concludes for all
matters and dispositive motions have been resolved. As a trial date draws near, the Court will
decide whether one combined trial, with separate issues before the judge and the jury, or separate

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trials are needed. Regardless, the benefits of consolidation noted above outweigh any issues that
may arise later concerning how to conduct the trial.
Dr. Love points to the possibility that Civil Action No. 3:14-8374 might be remanded to
state court, based on a pending settlement between Plaintiff and the Oak Hill Police Department.
Dr. Love asserts that Civil Action No. 3:14-8374 is only in federal court because of the addition
of claims against the Oak Hill Police Department, which created federal question jurisdiction. As
Plaintiff points out, however, even if those claims are dismissed, the Court could retain
jurisdiction over the remaining portion of Civil Action No. 3:14-8374 pursuant to 28 U.S.C. §
1367(c).3 Additionally, consolidation now will defeat any attempt at removal should that
settlement be approved.
Dr. Love also opposes consolidation because two stipulations have been filed in Civil
Action No. 2:12-cv-0622 and it is unlikely that those stipulations would be approved for use in a
consolidated trial, as they prejudice Dr. Love. As Plaintiff points out, however, those stipulations
can be renegotiated once trial approaches, if the Court decides to try the cases together.
IV.

Conclusion

For the reasons explained above, Plaintiff’s motion to consolidate (ECF No. 6) is
GRANTED. Accordingly, the Court ORDERS that this civil action is CONSOLIDATED with
Civil Action No. 2:12-0622. Civil Action No. 3:14-8374 shall be designated as the lead case, and
the matter shall proceed under that styling. The Court also LIFTS the stays in these two civil
actions.

3

Section 1367(c) states, in pertinent part, “The district courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if . . . the district court has dismissed
all claims over which it has original jurisdiction . . . .” 28 U.S.C. § 1367(c) (emphasis added).
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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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April 7, 2014