United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE.
are presently eight pending motions in this case. As set
forth herein, the motions are disposed of as follows: (1)
Defendant's Motion to Dismiss for Lack of Subject Matter
Jurisdiction/Motion for Total or Partial Summary Judgment,
ECF No. 36, is GRANTED in part and
DENIED in part; (2) Defendant's Motion
to Dismiss for Failure to Serve a Screening Certificate of
Merit as Required by West Virginia Code, ECF No. 44, is
DENIED; (3) Defendant's Motion to
Exclude Evidence of Damages Not Already Disclosed, ECF No.
53, and Defendant's Motion to Preclude Plaintiff From
Making Golden Rule Arguments, ECF No. 49, are GRANTED
as uncontested; (4) Defendant's Motion to
Exclude Opinions, Evidence, and/or Testimony Regarding
Alleged Deviations From the Standard of Care, ECF No. 51, is
GRANTED in part and DENIED in
part; (5) Defendant's Motion to Exclude Evidence
of Amounts Paid for Past Medical Expenses in Excess of
Amounts Actually Paid, ECF No. 55, is
GRANTED; and (5) Defendant's Motion to
Preclude Plaintiff From Introducing or Using Literature, ECF
No. 57, and Plaintiff's Cross-Motion to Preclude
Defendant from Introducing or Using Literature, ECF No. 68,
are DENIED as premature.
filed the present Complaint on July 1, 2016. ECF No. 1. In
her Complaint, Plaintiff alleges that during the time period
relevant to her injury she was a patient of Dr. Andrea
Kellar, a physician whose primary work location was at Valley
Health Systems, Inc. (“Valley Health”).
Id. Valley Health is “a designated federally
supported health center under the Public Health Services Act,
” ECF No. 37, such that the Federal Tort Claims Act
(“FTCA”) provides for Government compensation in
the case of “personal injury or death caused by the
negligent or wrongful act or omission of any employee [of
Valley Health] while acting within the scope of [her] office
or employment . . .” 28 U.S.C. § 2672. Plaintiff
alleges that she was the victim of such acts and omissions.
claims, brought pursuant to the FTCA, allege that Dr. Kellar
performed a hysterectomy on Plaintiff at Cabell Huntington
Hospital on May 6, 2014. ECF No. 1. Plaintiff asserts that,
during that operation, Dr. Kellar “inserted a suture
through [Plaintiff's] bladder wall” and failed to
discover the suture placement before closing Plaintiff's
incision. Id. Plaintiff claims that, following the
hysterectomy, she suffered from painful and abnormal
urination and a low-grade fever, but Dr. Kellar failed to
diagnose the misplaced suture. Id.
September 23, 2014, Plaintiff consulted with a urologist, Dr.
James Woolums. ECF No. 1. On October 7, 2014, Dr. Woolums
“performed a cystoscopy on Plaintiff and discovered a
stitch/hole in Plaintiff's bladder and an area on
Plaintiff's posterior bladder wall, consistent with a
fistula.” Id. Dr. Woolums then performed a
second surgery on Plaintiff on December 8, 2014, to repair
the fistula and the injuries to Plaintiff's bladder.
alleges that Dr. Kellar was negligent in her care and
treatment of Plaintiff in four ways: (1) misplacement of the
suture; (2) failure to timely recognize the misplaced suture;
(3) failure to timely remove the misplaced suture; and (4)
other negligent acts. ECF No. 1. Plaintiff further alleges
that, as a result of Dr. Kellar's alleged negligence,
Plaintiff suffered personal injuries and damages.
Plaintiff filed her Complaint and Defendant timely answered
on December 12, 2016, the parties underwent their first
period of discovery. During that period, Dr. Kellar provided
deposition testimony in which she informed the parties that
she had been assisted during Plaintiff's surgery by a
resident physician employed by the Marshall University School
of Medicine, Dr. Jessica Granger. ECF No. 37. During her
deposition, Dr. Kellar testified that it was Dr. Granger, not
Dr. Kellar, who placed the suture through Plaintiff's
bladder. ECF No. 36-4. After Dr. Kellar's testimony, the
parties took the deposition of Plaintiff's expert, Dr.
Robert Dein. At that time, Dr. Dein testified that, based on
Dr. Kellar's testimony, Dr. Granger likely placed the
errant suture. ECF No. 36-5 (“That is the best
information I have based on what Dr. Kellar stated . .
December 22, 2017, Defendant filed a Motion to Dismiss for
Lack of Subject Matter Jurisdiction and/or Motion for Total
or Partial Summary Judgment. ECF No. 36. In that Motion,
Defendant disclosed an Affiliation Agreement between Marshall
University School of Medicine and Valley Health Systems, Inc.
ECF No. 36-1. According to Defendant, the Affiliation
Agreement is a key document in determining the relationships
between the parties - specifically the relationship between
Dr. Granger and Valley Health. ECF No. 36. The Agreement,
however, was not produced in discovery despite
Plaintiff's requests for any such information or
material. ECF No. 66.
result of the nondisclosure of the Affiliation Agreement
during the discovery period, Plaintiff moved the Court to
allow for additional discovery regarding the relationships
between the involved parties and Dr. Kellar's potential
liability for the acts of Dr. Granger. ECF No. 65. Finding
good cause, the Court granted Plaintiff an additional
discovery period for the purpose of clarifying these
relationships on February 28, 2018. ECF No. 81. During this
period of additional discovery, the parties deposed Dr.
Paulette Wehner, Vice Dean for Graduate Medical Education at
Marshall University's medical school. ECF No. 92, at 2.
Dr. Wehner testified at that deposition that the Affiliation
Agreement was inapplicable to Marshall residents assisting
physicians at Cabell Hunting Hospital. ECF No. 92-1, at 4.
additional discovery period expired in June 2018.
Id. At that time, both parties submitted
supplemental briefing to the Court regarding the issue of the
relevant relationships and liability for the involved parties
and actors. ECF Nos. 92, 93. In their briefing, the parties
informed the Court that they discovered it is In addition to
Defendant's Motion to Dismiss and/or Motion for Total or
Partial Summary Judgment, the parties have several other
pretrial motions pending in this case. The Court disposes of
all pending motions as set forth herein.
Defendant's Motion to Dismiss for Lack of Subject Matter
Jurisdiction/Motion for Total or Partial Summary
argues that Plaintiff's case should be dismissed or that
the Court should grant summary judgment in favor of Defendant
for several reasons. The Court considers each of
Defendant's arguments below and, for reasons specified
herein, GRANTS in part and DENIES in
Dr. Kellar's Alleged Negligence
Defendant argues that it is entitled to summary judgment
because “Dr. Kellar did not place a suture into the
plaintiff's bladder during the hysterectomy . . .”
ECF No. 37, at 4.
is entitled to 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). Summary judgment may not be granted where
the evidence is “such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment should be granted, however, when, drawing
all inferences in a light most favorable to the non-movant,
“the record as a whole could not lead a rational trier
of fact to find for the non-movant.” Williams v.
Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
asserts that the evidence as to who placed the stitch causing
injury is “undisputed” and that, as a result,
Defendant is entitled to summary judgment. Plaintiff points
out in her Response that, in her Complaint, the placement of
the stitch was only one of several injuries she allegedly
suffered at the hands of Dr. Kellar. ECF No. 39, at 8.
Plaintiff's Complaint alleges the following in support of
her negligence claim: (1) Dr. Kellar negligently placed a
suture in Plaintiff's bladder; (2) Dr. Kellar failed to
timely recognize that a suture had been placed through
Plaintiff's bladder during the operation; (3) Dr. Kellar
failed to timely remove the misplaced suture; and (4)
“other negligent acts.” ECF No. 1.
argument addresses only the first of these claims and does
not address the alleged negligence underlying Plaintiff's
claims that Dr. Kellar failed to timely recognize the suture,
failed to timely remove the suture, and committed other
negligent acts. Accordingly, the Court finds that there
remains a genuine dispute of material fact as to whether Dr.
Kellar's overall treatment of Plaintiff fell below the
applicable standard of care. On this point, Defendant's
Motion is DENIED.
Sovereign Immunity as to Actions of Dr. Granger
Plaintiff's claims as to Dr. Kellar's negligence
remain, Defendant argues that it cannot be held vicariously
liable for any negligence on the part of Dr. Granger. ECF No.
37, at 5. Defendant admits that Valley Health is a
“federally supported clinic covered by [relevant
federal laws and the FTCA], ” but argues that because
Dr. Granger was not an employee of Valley Health at the time
of the alleged negligence, Defendant cannot be held liable
for any negligence on Dr. Granger's part. Id.
[FTCA] is a limited waiver of sovereign immunity, making the
Federal Government liable to the same extent as a private
party for certain torts of federal employees acting within
the scope of their employment. United States v.
Orleans, 96 S.Ct. 1971, 1975 (1976). The FTCA's
definitions section provides that its term “employee of
the government” includes “officers or employees
of any federal agency . . . and persons acting on behalf of a
federal agency in an official ...