Articles Posted in Federal Civil Procedure

The U.S. District Court judge in Chicago handled a bench trial medical malpractice case under the Federal Tort Claims Act (FTCA). The result was a judgment in favor of a plaintiff that included $13.75 million in noneconomic damages for what the court described as “glaring” medical malpractice that caused the plaintiff to suffer “complete and irreversible failure of both kidneys.”

The U.S. District Court Judge Nancy J. Rosenstengel denied the federal government’s motion for reconsideration.

The plaintiff, Kevin Clanton, spent 31 months on dialysis before receiving a kidney transplant. The court stated, “It is reasonably expected that Clanton will spend at least two decades on an extensive daily regimen of anti-rejection and immunosuppressive medications, he will endure two additional rounds of dialysis that will last at least 3-5 years each and he will undergo one, perhaps two more kidney transplants, not to mention periodic hospitalizations, counseling services and a dizzying array of medications, doctor appointments and lab tests.”
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In following the U.S. Supreme Court’s decisions in Daimlar AG v. Bauman, 134 S. Ct. 746 (2014) and BNSF Railway Company v. Tyrrleo, 137 S. Ct. 1549 (2017) and the Missouri Court’s earlier opinion in State ex rel. Norfolk S. Ry. Co. v. Dolan, 512 S.W. 3d 41 (Mo. En Banc 227), the Missouri Supreme Court has dismissed claims filed in the City of St. Louis by nonresident plaintiffs against Bayer Corp. and several subsidiaries for lack of personal jurisdiction.

The plaintiffs in this case had initiated an action against Bayer in St. Louis City Circuit Court to recover damages for personal injuries they allegedly experienced from their use of Essure, a medical device that Bayer manufactures and distributes. The case named 92 plaintiffs, but only seven were Missouri residents. The remaining 85 plaintiffs are not Missouri residents and do not allege they used Essure in Missouri or that they were injured in the state.

None of the Bayer defendants is incorporated in or has a principal place of business in Missouri; thus, these defendants are not “at home” in Missouri.
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Kevin Clanton, 28, underwent a pre-employment screening and was told that he had high blood pressure. He went to a federally financed public healthcare facility where he met with nurse practitioner Denise Jordan. She noted that he had severe hypertension with blood pressure readings of 210/170. Jordan ordered lab work and diagnosed high cholesterol and obesity in addition to hypertension. She gave Clanton medication samples and told him to follow up with her the next week so that he could receive his work clearance.

Clanton did not follow up with Jordan as instructed. About two years later, his employer told him that he needed medical care due to his high blood pressure. For the next year, Clanton consulted again with Jordan who attempted to lower his blood pressure with various medications and address his symptoms such as blurred vision.

Clanton often took extended absences from his treatment and stopped consulting with Jordan for 15 months before resuming treatment with her. Lab tests taken at his latest visit showed that he had Stage IV chronic kidney disease. Clanton was not advised of this condition.
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Philip Madden suffered from numerous medical conditions including obesity, respiratory acidosis, congestive heart failure, chronic obstructive pulmonary disease, obstructive sleep apnea, obesity hyperventilation syndrome and hyperlipidemia. He was admitted to the Jesse Brown V.A. Medical Hospital in Chicago several times leading up to his last admission in December 2007.

When he returned for an outpatient appointment, it was found that his labs were abnormal. He was admitted to the hospital. At the time of his admission, the pulmonary consulting services described him as suffering from a wide range of medical issues.

Madden was placed in respiratory isolation. A week after being admitted, he suffered a cardiopulmonary arrest. Madden was intubated and resuscitated, but he never regained consciousness and died later at a long-term care facility.
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During the discovery process in the case of Toni M. Morrison’s personal-injury lawsuit against Walmart, the company argued that she had to provide a written report from her treating physician, Dr. Daniel Mulconrey, under Federal Rule of Civil Procedure 26(a)(2)(B). The court stated that the report was required because Morrison intended to ask the doctor for expert testimony about three operations performed by other doctors, in addition to testifying about the medical treatment that he did provide.

Walmart’s motion to compel relied on the case of Meyers v. National Railroad Passenger Corp., 619 F.3d 729 (7th Cir. 2010), which held that “a treating physician who has offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in the course of providing treatment, should be deemed to be one ‘retained or especially employed to provide expert testimony in the case,’ and thus is required to submit an expert report in accordance with Rule 26(a)(2).”

The magistrate judge in the federal court in the Central District of Illinois, Magistrate Judge Jonathan E. Hawley, explained that under “the plain language” of Rule 26(a)(2) – as amended a few months after the 7th Circuit decided Meyers – “Dr. Mulconrey is not a retained expert and does not have to comply with the reporting requirements of [S]ubsection (a)(2)(B).”
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The U.S. Supreme Court has prevented 592 nonresidents from joining 86 California residents in suing Bristol-Myers Squibb in California state court for personal injury allegedly caused by Plavix, a blood thinner. At the state level, the California Supreme Court concluded that the Due Process Clause of the 14th Amendment did not bar the out-of-state residents from suing the corporation, BMS, in state court.

In the vigorous dissent written by Justice Sonia M. Sotomayor, the U.S. Supreme Court reversed. Justice Samuel A. Alito Jr.’s majority opinion explained, “The nonresidents were not prescribed Plavix in California, did not purchase Plavix in California, did not ingest Plavix in California and were not injured by Plavix in California.

The mere fact that other plaintiffs were prescribed, obtained and ingested Plavix in California – and allegedly sustained the same injuries as did the nonresidents – does not allow the state to assert specific jurisdiction over the nonresidents’ claims.”
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According to the U.S. Court of Appeals for the Seventh Circuit in Chicago, the judge’s bench trial decision was affirmed. In this case, Phillip Madden brought a claim under the Federal Tort Claims Act (FTCA) against the United States from an ultimately fatal medical incident in which he suffered while in the care, custody and control of the Jessie Brown Veterans Administration (V.A.) Medical Hospital. After this bench trial, the district court found in favor of the United States. Madden appealed.

Madden suffered from numerous medical conditions, including but not limited to: morbid obesity, respiratory acidosis, congestive heart failure, chronic obstructive pulmonary disease, obstructive sleep apnea, obesity hypoventilation syndrome, hypertension and hyperlipidemia. He was admitted to the V.A. Hospital several times leading up to his last admission on Dec. 28, 2007.

In this case, the issue was whether the parties’ experts provided sufficient credible evidence. The record contained sufficient evidence in support of the district court’s finding that the United States’ medical expert was credible and that Madden’s medical expert was not credible in this wrongful death claim. He died after he went into cardiac arrest.
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In 2011, a radiologist with the U.S. Department of Veteran Affairs (VA) missed identifying a cancerous mass in the liver of James Avery Deweese. Before the mass was finally diagnosed as cancerous in 2013, it had nearly doubled in size. Deweese died shortly thereafter.

The family of Deweese — through an administrator of his estate — brought a survival and wrongful-death claim against the United States pursuant to the Federal Torts Claims Act (FTCA). 28 U.S.C. ¶1346(b)(1).

The 8th Circuit Court of Appeals in St. Louis affirmed the district court’s grant of summary judgment for the government holding that although the VA failed to deliver the standard of care in correctly diagnosing and treating Deweese’s cancer, the evidence presented by the Deweese family was insufficient to raise a triable issue of fact as to whether the VA’s negligence proximately caused the plaintiff’s damages and subsequent death.
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In 2009, Gary Williamson was a postal worker who sought damages under the Federal Tort Claims Act (FTCA) for medical malpractice on the part of the Department of Veteran Affairs in the treatment of injuries he suffered in his right foot. Williamson usually worked a walking route, walking up to 8 miles each day on the job. He was also doing other physical activities, including running and CrossFit, which could have contributed to the severity of his injury.

Because of his injuries, Williamson eventually received benefits under the Federal Employees’ Compensation Act (FECA): $79,379.66 in temporary total disability net compensation from March 20, 2010 through Oct. 25, 2012; $27,801.27 for medical expenses; and $19,974.19 as a lump-sum “scheduled award.” This federal statute is the federal law for workers injured on the job. This is the federal version of the workers’ compensation act that most states have, including Illinois.

In addition to the benefits he was receiving by way of FECA, Williamson sought damages under the Federal Tort Claims Act for medical malpractice by the V.A. for the treatment of his injuries, which included two unsuccessful surgeries. The U.S. District Court judge denied the government’s motion for summary judgment. On appeal, the Sixth Circuit reversed that order, denying the motion for summary judgment.
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This appeal is from the district court’s dismissal, on statute of limitations grounds, of a medical malpractice lawsuit. The plaintiff, Johnnie Watkins, filed the action on behalf of her adult daughter, Johnnice Ford, who is a disabled person. The lawsuit alleged that Ford sought treatment at the emergency room of Ingalls Memorial Hospital in Chicago where she was treated by a doctor who was an employee of Family Christian Health Center. This facility was operated pursuant to grant money from the Public Health Services, an agency of the U.S. government. The lawsuit was brought under the Federal Tort Claims Act (FTCA), and the United States is the defendant.

In the lawsuit, it was asserted that the treating physician chose not to correctly diagnose and treat Ford who was eventually correctly diagnosed with Wernicke’s encephalopathy and who sustained neurological injuries, including permanent disability. Encephalopathy is a general term that describes a disease that damages the brain. Wernicke’s encephalopathy is a neurodegenerative disorder caused by a severe vitamin B1 deficiency. Parts of the brain may be damaged as a result of this deficiency causing increased difficulty with memory, movement, vision and coordination.

The federal district court judge dismissed the lawsuit that was filed beyond the relevant statute of limitations. Watkins appealed that dismissal order to the U.S. Court of Appeals.
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