Estate of Lora Mae Burns, et. al. v. Cohen

Filing 52

MEMORANDUM OPINION AND ORDER directing that Stephen M. Cohen M.D.'s 19 MOTION to Strike Plaintiff's Untimely Expert Witness Disclosure and Motion for Summary Judgment and Defendant's 30 MOTION for Partial Summary Judgment as to Punitive Damages be DENIED. Signed by Judge Irene C. Berger on 6/19/2019. (cc: attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
ESTATE OF LORA MAE BURNS,
by and through REBECCA VANCE,
as Administratrix of the Estate of
Lora Mae Burns,
Plaintiffs,
v.

CIVIL ACTION NO. 5:18-cv-00888

DR. STEPHEN M. COHEN, M.D.,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Stephen M. Cohen, M.D,’s Motion to Strike Plaintiff’s Untimely
Expert Witness Disclosure and Motion for Summary Judgment (Document 19), the Memorandum
of Law in Support of Stephen M. Cohen, M.D.’s Motion to Strike Plaintiff’s Untimely Expert
Witness Disclosure and Motion for Summary Judgment (Document 20), Plaintiff’s Response to
Defendant’s Motion to Strike Plaintiff’s Untimely Expert Witness Disclosure and Motion for
Summary Judgment and Plaintiff’s Motion to Dismiss Defendant’s Motion to Strike and Motion
for Summary Judgement (Document 26), Stephen M. Cohen, M.D,’s Reply to Plaintiff’s Response
to Defendant’s Motion to Strike Plaintiff’s Untimely Expert Witness Disclosure and Motion for
Summary Judgment (Document 27), and the attached exhibits.
The Court has also reviewed Defendant’s Motion for Partial Summary Judgment as to
Punitive Damages (Document 30), the Defendant’s Memorandum of Law in Support of
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Defendant’s Motion for Partial Summary Judgment as to Punitive Damages (Document 31), the
Plaintiff’s Memorandum of Law in Opposition of Defendant’s Motion for Partial Summary
Judgment as to Punitive Damages (Document 32), and the Defendant’s Reply to Plaintiff’s
Memorandum of Law in Opposition of Defendant’s Motion for Partial Summary Judgment as to
Punitive Damages (Document 33), and the attached exhibits.
For the reasons stated herein, the Court finds that both motions should be denied.
FACTS
On April 11, 2018, the Plaintiff, the Estate of Lora Mae Burns, by and through Rebecca
Vance, Adminstratix, filed a Complaint (Document1-1) against the Defendant, Stephen M. Cohen,
M.D., in the Circuit Court of Greenbrier County, West Virginia. On May 2, 2018, the case was
removed to this Court. The Complaint alleges that the Defendant, as a general surgeon, was
negligent and did not meet the standard of care for Ms. Burns.
From June 4, 2015, until she died on December 16, 2015, Ms. Burns was a resident of
White Sulphur Spring Center, a skilled nursing facility in Greenbrier County. On July 16, 2015,
Ms. Burns had her first consultation with the Defendant at the Greenbrier Valley Medical Center
(“GVMC”). During the consultation, the Defendant explained to Ms. Burns that based on the
information contained in his notes, an esophagogastroduodenoscopy (“EGD”) was medically
necessary to repair an ulcer in her stomach. Initially, Ms. Burns refused the procedure, however,
about an hour later, after a second consultation with the Defendant, Ms. Burns agreed to the
procedure. On July 17, 2015, the Defendant performed an EGD on Ms. Burns to repair an ulcer
in her stomach. On September 9, 2015, the Defendant performed a second EGD as well as a
biopsy on Ms. Burns.
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On December 15, 2015, the Defendant performed a colonoscopy and placed a percutaneous
endoscopic gastrotomy (“PEG”) tube in Ms. Burns’ stomach. After the surgical procedure, the
Defendant discharged Ms. Burns from GVMC to White Sulphur Spring Center. The Plaintiff
alleges that the Defendant released Ms. Burns to the White Sulphur Spring Center without detailed
discharge instructions with respect to monitoring her or what to do if she pulled out her PEG tube.
After she was discharged on December 15, 2015, staff at White Sulphur Spring Center
discovered that Ms. Burns had pulled out the PEG tube placed by the Defendant earlier that day.
On December 16, 2015, staff at the White Sulphur Spring Center discovered that Ms. Burns was
unresponsive. She was transported to the Greenbrier Emergency Department. After preliminary
treatment at the Greenbrier Emergency Department, she was airlifted to the Charleston Area
Medical Center, where she died. Ms. Burns death certificate states that the cause of death was
bowel perforation, pulled PEG tube, delirium, and hypoglycemia.
STANDARD OF REVIEW
The well-established standard in consideration of a motion for summary judgment is that
“[t]he court shall grant summary judgment if 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)–(c); see also Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir. 2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson, 477 U.S. at 248; News & Observer Publ’g Co. v.
Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine issue” concerning
a material fact exists when the evidence is sufficient to allow a reasonable jury to return a verdict
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in the nonmoving party’s favor. FDIC v. Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News &
Observer, 597 F.3d at 576.
The moving party bears the burden of showing that there is no genuine issue of material
fact, and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp.,
477 U.S. at 322–23. When determining whether summary judgment is appropriate, a court must
view all of the factual evidence, and any reasonable inferences to be drawn therefrom, in the light
most favorable to the nonmoving party. Hoschar, 739 F.3d at 169. However, the nonmoving
party must offer some “concrete evidence from which a reasonable juror could return a verdict in
his favor.” Anderson, 477 U.S. at 256. “At the summary judgment stage, the non-moving party
must come forward with more than ‘mere speculation or the building of one inference upon
another’ to resist dismissal of the action.” Perry v. Kappos, No.11-1476, 2012 WL 2130908, at
*3 (4th Cir. June 13, 2012) (unpublished decision) (quoting Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985)).
In considering a motion for summary judgment, the court will not “weigh the evidence and
determine the truth of the matter,” Anderson, 477 U.S. at 249, nor will it make determinations of
credibility. N. Am. Precast, Inc. v. Gen. Cas. Co. of Wis., 2008 WL 906334, *3 (S.D. W. Va.
Mar. 31, 2008) (Copenhaver, J.) (citing Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If
disputes over a material fact exist that “can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party,” summary judgment is inappropriate. Anderson,
477 U.S. at 250. If, however, the nonmoving party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case,” then summary judgment should be

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granted because “a complete failure of proof concerning an essential element . . . necessarily
renders all other facts immaterial.” Celotex, 477 U.S. at 322–23.
DISCUSSION
The first motion requests that an untimely witness disclosure be stricken, and that summary
judgment be granted due to the resultant lack of evidence. The Defendant argues that the Plaintiff
violated the Court’s scheduling order by failing to disclose its expert witness timely. In doing so,
the Defendant argues that the Plaintiff has provided no justifiable excuse for the delay and, in
effect, forced the Defendant to disclose its expert only ten (10) days after the Plaintiff disclosed its
expert witness. 1 The Plaintiff essentially concedes that its disclosures were not timely, but
contends that the Defendant was made aware of their plans to use an expert witness based on
discovery.
Rule 26 of the Federal Rules of Civil Procedure mandates that parties disclose “the name
and, if known, the address and telephone number of each individual likely to have discoverable
information -- along with the subjects of that information -- that the disclosing party may use to
support its claims or defenses. . .” Fed. R. Civ. P. 26(a)(1)(A)(i). The rule also governs expert
testimony.

Fed. R. Civ. P. 26(a)(2).

“The purpose of Rule 26(a) is to allow litigants to

adequately prepare their cases for trial and to avoid unfair surprise.” Bresler v. Wilmington Trust
Co., 855 F.3d 178, 190 (4th Cir. 2017) (internal quotation marks omitted).

1 The Scheduling Order required the Plaintiff to disclose its expert witness no later than January 11, 2019, and the
Defendant to disclose its expert witness by February 8, 2019. The Plaintiff did not make its Rule 26 (a)(2)(A)-(C)
disclosures until January 29, 2019 (Document 14).

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When a party fails to make a disclosure, as required by Rule 26, the party is not allowed to
use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the
failure was substantially justified or harmless. “If a party fails to provide information or identify
a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless. Fed. R. Civ. P. 37(c)(1). “The party failing to disclose information bears
the burden of establishing that the nondisclosure was substantially justified or was harmless.”
Bresler v. Wilmington Tr. Co., 855 F.3d 178, 190 (4th Cir.), cert. denied, 138 S. Ct. 470, 199 L.
Ed. 2d 357 (2017) (citation omitted).
When determining whether a nondisclosure of evidence is substantially justified or
harmless for purposes of a Rule 37(c)(1) exclusion analysis, the Fourth Circuit has instructed
district courts to consider the following factors:
(1) the surprise to the party against whom the evidence would be
offered; (2) the ability of that party to cure the surprise; (3) the extent
to which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party's
explanation for its failure to disclose the evidence.
S. States Rack and Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003).
Courts are not obligated to “tick through each of the Southern States factors.”

Wilkins v.

Montgomery, 751 F.3d 214, 222 (4th Cir. 2014).
The Court’s scheduling order manages the flow of the case from the date it is entered
through the beginning of trial. The Court does not enter scheduling orders lightly and admonishes
the Plaintiff for failing to adhere to the one entered in this case. However, after reviewing the
facts in this case and considering the Southern States factors, the Court finds that a 37(c)(1)
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sanction is not appropriate. The first two factors weight heavily in favor of the Plaintiff. The
Complaint (Document 1-1), which included a Screening Certificate of Merit written by Dr. Fred
Simon and his curriculum vitae, is attached to the Notice of Removal (Document 1). Notably
West Va. Code § 55-7B-6(b) mandates that before filing a medical professional liability action
against a health care provider, the claimant must first serve the provider with a notice of claim
which includes a statement of the theory of the case as well as a certificate of merit executed by a
health care provider attesting under oath to the validity or merits of the claim. Id.

While it is

reasonable for the Defendant to not assume that the same doctor who provided the certificate of
merit would also serve as an expert witness at trial, it certainly is not surprising given the doctor’s
familiarity with the record in the case. Nor is it surprising that the Plaintiff would have an expert
witness to support their theory of the case in a medical malpractice case. See Roberts v. Gale,
139 S.E.2d 272, 276 (W. Va. 1964) (“It is the general rule that in medical malpractice cases
negligence or want of professional skill can be proved only by expert witnesses.”). Additionally,
the Plaintiff concedes that while the Defendant did not properly disclose the expert witness
pursuant to the Court’s order, the Plaintiff was aware that Dr. Simon would be testifying through
written discovery. Allowing the evidence will cause no disruption to the trial, since the trial has
not occurred, and the Defendant was made aware of this witness months ago. Further, the
evidence is critical for the Plaintiff’s case. If the Court were to exclude this testimony, the
Plaintiff would have no witness that could speak to the Defendant’s medical standard of care.
Again, while the Court admonishes the Plaintiff for its failure to follow the scheduling order, a
37(c)(1) sanction is not an appropriate punishment. Doing so would grossly punish the client, for
the lawyer’s oversight.

This ruling is aligned with the purpose of Rule 26(a), because the delay
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did not deter the litigants from adequately preparing for trial and any surprise caused by the delay
is de minimis.

The Plaintiff exceeded a discovery deadline by approximately two weeks, several

months before trial. Parties are expected to comply with deadlines and request additional time in
advance of the deadline if necessary, but a Defendant is not entitled to judgment in its favor
because a Plaintiff missed a disclosure deadline that in no way prejudiced the Defendant’s ability
to defend the case on the merits. Therefore, the Court finds that although the Plaintiff did not
timely make her Rule 26 disclosure of the expert witness, the error was harmless.
In the second motion, the Defendant moves for summary judgment on the issue of punitive
damages. The Defendant argues that there is no evidence that Dr. Cohen acted with actual malice,
or with a conscious, reckless, and outrageous indifference to the health, safety, and welfare of
others during his care of Ms. Burns.

The Defendant contends that because the Plaintiff’s claim

relies on the theory of negligence, the jury would have no basis to award punitive damages. The
Plaintiff argues that punitive damages are appropriate for the jury’s consideration because there is
evidence that the defendant acted with malice, or extreme negligence that would likely cause
serious harm. The Plaintiff also notes that there is expert testimony which proves that the
Defendant’s conduct was beyond simple negligence and rose to the level of extremely negligent,
or malicious, care of Ms. Burns.
Pursuant to the law in West Virginia:
[a]n award of punitive damages may only occur in a civil action
against a defendant if a plaintiff establishes by clear and convincing
evidence that the damages suffered were the result of the conduct
that was carried out by the defendant with actual malice toward the
plaintiff or a conscious, reckless and outrageous indifference to the
health, safety and welfare of others.

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W. Va. Code § 55-7-29(a) (2015).

The Supreme Court of West Virginia has noted that punitive

damages are intended to “(1) to punish the defendant; (2) to deter others from pursuing a similar
course; and, (3) to provide additional compensation for the egregious conduct to which the plaintiff
has been subjected.” Hannah v. Heeter, 584 S.E.2d 560, 573 (2003) (quoting Harless v. First
Nat. Bank in Fairmont, 289 S.E.2d 692, 702 (1982)). Punitive damages are not appropriate in
case of “simple negligence.” Bennett v. 3 C Coal Co., 379 S.E.2d 388, 394 (1989). Punitive
damages are appropriate “where there is evidence that a defendant acted with wanton, willful, or
reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear
or where the legislature so authorizes.” Karpacs-Brown v. Murthy, 686 S.E.2d 746, 757 (2009)
(citations omitted). Punitive damages should only be available when the defendant is guilty of
“extreme and egregious bad conduct.” Perrine v. E.I. du Pont de Nemours & Co., 225 694 S.E.2d
815, 909 (2010). “It is the exception, not the rule, as the level of bad conduct on the part of a
defendant must be very high in order to meet the punitive standard.” Id. 909-10.
The Court finds that there is a dispute of material fact as to whether the Defendant’s
conduct rises to the level of conscious, reckless, and outrageous indifference. As such, summary
judgment is not appropriate. The Defendant has presented evidence, through expert witness
testimony, that Ms. Burns was an appropriate surgical candidate for a PEG tube, and that the
Defendant fully met the standard of care during his care and treatment of Ms. Burns. The Plaintiff
has also presented evidence from an expert witness that the Defendant did not adhere to the
appropriate standard of care in treating Ms. Burns, because at the time of her surgery she had
pneumonia, because he made the decision to place the PEG tube instead of a more secure surgical
tube into Ms. Burns, because she was released from his care while her blood pressure was unstable,
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and because he failed to provide instructions on how to care for Ms. Burns if she pulled the tube
out. In light of the evidence on both sides of this question, there is a material dispute of fact of
whether the Defendant provided the appropriate standard of care, whether he was negligent, or
whether he was grossly negligent.
The Defendant’s position appears to be that because the Plaintiff’s expert witness did not
expressly state that the Defendant’s conduct was “extreme and egregious bad conduct” or use the
legal terms wanton, willful, reckless conduct, or criminal indifference, the Court should deprive
the jury of the opportunity to hear the evidence and make that determination. Viewing the
evidence in the light most favorable to the non-moving party, a jury could make a reasonable
inference that the Defendant was grossly negligent. The jury could also review the evidence in
this case and find that the Defendant fully met the correct standard of care. However, the Court
will not make this determination simply because the expert witness did not use the “magical”
words. The jury sitting as the finder of fact makes that determination.
The Defendant relies heavily on Karpacs-Brown v. Murthy, 686 S.E.2d 746 (2009), to
support the motion.

In Karpacs-Brown, the Supreme Court of Appeals for West Virginia

considered a court’s decision to refuse to give a jury instruction permitting an award of punitive
damages. Id. at 757.

The Court affirmed the lower court’s decision because a doctor testified

that the defendant did not engage in medical malpractice and defended the reasons for the
defendant’s method of treatment. Id. In this case, there is conflicting evidence from competing
expert witnesses, who intend to testify about Ms. Burns’ medical care. Id. Similar to the court
in Karpacs-Brown, the Court finds that the evidence should be presented to the jury. The parties
will be free to make any appropriate motions with respect to whether the evidence warrants a
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punitive damages instruction. However, at this stage of the litigation, the Court finds that the
Plaintiff met its burden of producing sufficient evidence on this issue to create a genuine dispute
of material fact for presentation at trial.
CONCLUSION
WHEREFORE, after careful consideration, the Court ORDERS that Stephen M. Cohen,
M.D,’s Motion to Strike Plaintiff’s Untimely Expert Witness Disclosure and Motion for Summary
Judgment (Document 19) and Defendant’s Motion for Partial Summary Judgment as to Punitive
Damages (Document 30) be DENIED.
The Court DIRECTS the Clerk to send a certified copy of this Order to counsel of record
and to any unrepresented party.
ENTER:

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June 19, 2019