Opinion
Civil Action No. 1:04cv458(TSE)(LO).
September 9, 2004
KAREN E. EVANS, NARDA M. NEWBY, Washington, D.C., Attorneys for Plaintiff.
PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION TO STRIKE PLAINTIFF'S CLAIM FOR PUNITIVE DAMAGES
COMES NOW the Plaintiff, by and through counsel, and hereby opposes defendants' motion to strike plaintiff's claim for punitive damages. The plaintiff states the following reasons in support thereof:
I. Plaintiff's complaint complies with F.R.C.P. 10(b).
II. Defendants' motion is untimely.
III. Assuming arguendo, that the court treats Defendants' Motion as a Rule 12(b)(6) Motion, plaintiff's Complaint is legally and factually sufficient.
Introduction
This is a medical malpractice case in which the plaintiff alleges that the defendants negligently and recklessly administered the incorrect medication during an elective surgical procedure causing the plaintiff to go into cardiac and respiratory arrest and suffer near-death. Suit was initially instituted in the Circuit Court for Fairfax County, Virginia on April 1, 2003. Pursuant to Virginia Code § 8.01-380, plaintiff elected to take a non-suit on December 5, 2003.The current suit was filed on April 21, 2004. (Exhibit 1). The defendants filed their Answer to the complaint and discovery responses on June 17, 2004. (Exhibit 2).
I. Plaintiff's complaint complies with F.R.C.P. 10(b)
The plaintiff's Complaint satisfies the "notice" pleading requirement of F.R.C.P. 8(a) and 10(b). Generally, litigants are required to satisfy "notice" pleading obligations — that is, they must provide their opponent with fair notice of their claim(s) and grounds upon which their claim(s) rest. See, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002). Federal court pleadings do not require the same elaborate "fact" pleading imposed by State court practice. See e.g., Enron Oil Trading Transp. Co. v. Walbrook Ins. Co., 132 F.3d 526 (9th Cir. 1997); Palmer v. Board of Educ. of Community Unit Sch. Dist. 201-U, 46 F.3d 682 (7th Cir. 1995). Plaintiff's Complaint contains two separate counts and forty-seven (47) numbered paragraphs including subparts detailing each claim. The purpose of Rule 10(b) is to require the drafter to craft a pleading that is easily understood by both the opponent and the Court. Even a cursory reading of the Complaint confirms that plaintiff's Complaint achieves this goal. However, the most compelling evidence on this point is that the defendants already filed a prompt and timely answer to this "ambiguous" Complaint. (See Exhibit 2.). The defendants' motion should be denied. II. The defendants' motion is untimely
With limited exceptions, F.R.C.P 12(b) requires that "every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto. . .". A party who intends to assert a Rule 12 defense or objection in a motion must do so before the responsive pleading is due. (Emphasis added). Defendants filed the instant motion on August 27, 2004, more than sixty (60) days after filing their Answer. Therefore, the defendants' motion is untimely and defendants' motion should be denied.
III. Assuming arguendo, that the Court treats defendants' pleading as a Rule 12(b)(6) motion to dismiss, plaintiff's complaint is legally and factually sufficient.
Assuming arguendo, that the Court treats defendants' pleading as a Rule 12(b)(6) motion to dismiss, plaintiff's complaint is legally sufficient as to all allegations. Rule 12(b)(6) erects a powerful presumption against dismissing pleadings for failing to state a cognizable claim for relief. Maez v. Mountain Sates Tel. Tel., Inc., 54 F.3rd 1488 (10th Cir. 1995). On a motion to dismiss under Rule 12(b)(6), the allegations of a complaint are to be liberally construed in favor of the plaintiff. Brown v. Mitchell, 308 F.Supp.2d 682, 690 (E.D.Va 2004). "The court must presume all 'factual allegations in the complaint to be true and accord all reasonable inferences to the non-moving party.'" Id. at 691. See also, Shooting Point v. Cumming, 238 F.Supp.2d 729 (E.D.Va 2002). Therefore, presuming that Austin Weston ratified the admitted negligence of Dr. Poindexter and that Dr. Poindexter acted with conscious disregard for the welfare of Mrs. Blakey, defendants' motion must be denied.
In Paul v. Gomez, 190 F.R.D. 402 (U.S.D.C. W.D.Va 2000), the Court held that:
allegations as to punitive damages are certainly material to a personal injury claim, and therefore a motion to strike is not the appropriate procedural tool to test their sufficiency. Nevertheless, even in treating the motion as one to dismiss [a count] of the complaint pursuant to rule 12(b)(6), it must be denied.
See also, Tabor v. Sutherland, 2001 WL 520806 (W.D.Va. 2001); Boyd v. Bulala, 905 F.2d 764 (4th Cir. 1990) (permitting claim for punitive damages in medical malpractice cases so long as the ad damnum was within the statutory cap).
The Court went on to hold that "there is no heightened pleading standard for punitive damages, and a 'short and plain statement of the claim' is all that is required. Id. (citing F.R.C.P. 8(a) and Tiller v. Hobart Corp., 58 F.Supp.2d 689 (W.D.Va. 1999).
In considering a Rule 12(b)(6) motion, the court should not decide the winners or losers in the case, or even examine the "believability" of the pleader's claims. See, Jacobson v. Hughes Aircraft Co., 105 F.3d 1288 (9th Cir.) 1997), amended on other grounds, 128 F.3rd 1305 (9th Cir. 1997), rev'd on other grounds, 525 U.S. 432 (1999). A claim should not be dismissed merely because the trial court doubts the pleader's allegations or suspects that the pleader will not ultimately prevail at trial. See, Levitt v. Bear Sterans Co., 340 F.3d 94 (2d Cir. 2003). Courts should be especially hesitant to dismiss at the pleading stage those claims pressing novel legal theories, where claims could be better examined following development of the facts through discovery. Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995). There is no basis to depart from this principle in the instant case.
In, Phonometrics Inc. v. Hospitality Franchise Sys., Inc., 203 F.3rd 790 (Fed. Cir. 2000), the court noted that the complaint "contains enough detail to allow defendants to answer. Rule 12(b)(6) requires no more." Therefore, where as here the defendants have already answered the Complaint, the defendants' motion should be denied. If the complaint was clear enough to allow the defendants to frame a prompt and timely answer they should not now be allowed to complain that it is so ambiguous that it should be dismissed without any opportunity for the plaintiff to conduct discovery.
The defendants have resisted each and every attempt by plaintiff to discover factual evidence from anyone but Dr. Poindexter. In fact, the instant Motion to Strike was precipitated by plaintiff's request for factual discovery. (See Exhibit 3.). The defendants filed this motion, rather than cooperate and produce for deposition the other employees/agents of defendant Austin-Weston, including nurses, doctors and technicians who were present and have knowledge and information relevant to plaintiff's demand for punitive damages. Surely the law does not permit one party to shield critical witnesses and evidence and then argue that the opponent's claims should be dismissed for lack of factual support. Plaintiff should be permitted to conduct discovery of key witnesses and evidence that is relevant and supportive of her claims. Defendants motion should be denied.
In the Commonwealth of Virginia, the Supreme Court has said that a plaintiff does not have to exclusively submit "[p]roof of actual malice . . . to support a recovery of punitive damages in tort cases." Avocet Development Corp. v. McLean Bank, 234 Va. 658, 666, 364 S.E.2d 757, 762 (1988) (citing Baker v. Marcus, 201 Va. 905, 909, 114 S.E.2d 617, 621 (1960) (" Proof of actual malice is not necessary. Malice may be inferred from circumstances.") (Emphasis added).
Most recently, in Doe v. Isaacs, the Supreme Court of Virginia reiterated the burden of proof or persuasion that a plaintiff, alleging negligence, has to meet to survive a defendants' demurrer contesting a claim for punitive damages. Doe, a negligence action wherein motorists brought suit seeking compensatory and punitive damages as a result of injuries sustained in a motor vehicle accident, provides a roadmap regarding a plaintiff's initial burden of proof. The Court stated that "negligence which is so willful or wanton as to evince a conscious disregard of the rights of others, as well as malicious conduct, will support an award of punitive damages in a personal injury case." Doe v. Isaacs, 265 Va. 531, 535, 579 S.E.2d 174, 176 (Va. 2003). Whether the facts in this case do so is a question of fact.
The Virginia Supreme Court in Woods v. Mendez, 265 Va. 68, 574 S.E.2d 263 (2003) defined willful and wanton negligence concerning punitive damages, stating, "[w]illful and wanton negligence is action undertaken in conscious disregard of another's rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another." 265 Va. at 76-77, 574 S.E.2d at 268 (citing Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101 (1997) (internal citation omitted) (emphasis added); See also, Giant of Va., Inc. v. Pigg, 207 Va. 679, 686, 152 S.E.2d 271, 277 (1967).
Furthermore regarding the willful and wanton standard, in PGI, Inc. v. Rathe Productions, Inc., 265 Va. 334, 576 S.E.2d 438 (2003), the Virginia Supreme Court restated the rule out of Alfonso v. Robinson, 257 Va. 540, 514 S.E.2d 615 (1999) where it was maintained that "the sufficiency of a claim of willful and wanton negligence must be evaluated on its own facts." 257 Va. at 545, 514 S.E.2d at 618 (emphasis added). In keeping with this fact predicate, the PGI Court held, inter alia, the following:
If reasonable persons, upon the facts presented, could differ regarding whether the conduct in question was so willful and wanton as to show a conscious disregard for the rights of others, " the trial court may not remove the issue of punitive damages from the jury's consideration." Huffman v. Love, 245 Va. 311, 315, 427 S.E.2d 357, 360 (1993). The trial court erred in doing so in this case."PGI, 265 Va. at 346, 576 S.E.2d at 444 ("[T]he trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury.") (emphasis added).
In Mar Tech Mechanical, Ltd. v. Chianelli Bldg. Corp., 2001 WL 1262387, at *1 (Va. Cir.Ct. 2001), "the Virginia Supreme Court warned the trial courts against incorrectly short-circuiting litigation at the pretrial level by deciding the dispute without permitting the parties to reach a trial on the merits." (citing Catercorp, Inc. v. Catering Concepts, Inc., et al., 246 Va. 22, 431 S.E.2d 277 (1993) (emphasis added). Similarly, in Smith v. Litten, 256 Va. 573, 507 S.E.2d 77 (1988), the Virginia Supreme Court said, "the conclusion that there was misconduct or malice, or that a party acted with a conscious disregard of another's rights need only be a 'possible conclusion' the jury could reach." 256 Va. at 579, 507 S.E.2d at 80 (quoting Jordan v. Neil Sauve and Koons Ford, Inc., 219 Va. 448, 454, 247 S.E.2d 739, 742 (1978)) (emphasis added).
To that end, the trial court in Zukor v. INOVA Health Care Services, 1999 WL 1499124 (Va. Cir.Ct. 1999) came to the following conclusion:
The motion for judgment further alleges that the hospital's conduct was so willful, wanton and reckless as to evince a conscious disregard for the safety of others. Assuming (as I must) these allegations to be true for purposes of a demurrer, I find that at this stage plaintiffs' allegations are sufficient to sustain a claim for punitive damages.2000 WL 246258, at *2. The Zukor trial judge found that the plaintiff met his burden of proving that the defendant displayed "[c]onduct so willful or wanton as to evince conscious disregard of the rights of others . . ." Bowers v. Westvaco Corp., 244 Va. 134 (1992).
Given the serious and dangerous health and public safety ramifications of repeatedly administering the wrong medication to patients, the defendants failed to take appropriate andeffective remedial measures after the first and second error, exposing patients like Ms. Blakey to suffer near-fatal permanent injuries. A reasonable jury could conclude that the repeated medication errors committed by the defendants displayed conduct that was wanton so as to infer malice, reckless indifference and/or evince conscious disregard of the rights of others. Assuming all factual allegations to be true, as the Court must, defendants' motion should be denied. Plaintiff's claims are legally and factually sufficient to sustain a claim for punitive damages.
Defendant Austin-Weston Center has been a defendant in multiple lawsuits alleging that epinephrine was negligently administered to the wrong patient in the four months prior to the medication error involved in this suit. ( See, Exhibits 4a and 4b). Defendant Dr. Poindexter was involved in the care and treatment of all three of the known victims. The defendants were on notice after the first mistake but chose to continue on with their profitable cosmetic surgery business and took no corrective action. Defendants were on further notice after the same mistake occurred a second time and took failed to take appropriate and effective corrective action.
It is most telling that despite the procedural history related by the defendants, no depositions other than Dr. Poindexter's have been taken. The defendants have refused to produce any other witnesses for deposition despite multiple requests. They claim that testimony of other Austin Weston employees/agents, who have knowledge of these facts, is not relevant. Yet, in their motion, defendants allege ambiguity and vagueness as a basis to dismiss the punitive damages claim per F.R.C.P. 10(b). They want to have their cake and eat it too. To dismiss Ms. Blakely's punitive damages claim at this juncture would not serve the interests of justice and would be highly prejudicial.
Plaintiff's pleading as to all claims is both legally and factually adequate to survive defendants' Motion. When presumed to be true, as this court must, reasonable minds could most certainly conclude from the facts stated in the complaint, that defendant Dr. Poindexter's admittedly negligent actions demonstrated willful and wanton negligence; reckless indifference to consequences known to him to that actually cause injury to another; or that his actions were undertaken in conscious disregard for the safety of another's rights and warrants an award of punitive damages. Moreover, a jury could certainly conclude from the lack effective action taken by Austin Weston, as pled constitutes ratification of the known negligent and harmful action. Justice mandates the denial of defendants' Motion to Strike.
WHEREFORE, the plaintiff prays that this Honorable Court DENY defendants' motion and permit full discovery as to her claims including the demand for punitive damages.
The Defendants have only admitted that Dr. Poindexter negligently administered medication to Brandie Blakey.
CERTIFICATE OF SERVICE
THIS WILL CERTIFY that a copy of Plaintiff's Opposition to Defendants' Motion to Strike Plaintiff's Claim for Punitive Damages was mailed, postage prepaid, this 9 day of September, 2004 to Harrison Pledger, Esq., 1489 Chain Bridge Road, Suite 204, McLean, VA 22101.ORDER DENYING DEFENDANT'S MOTION TO STRIKE PUNITIVE DAMAGES
Having considered Defendants' Motion to Strike Plaintiff's Claim for Punitive Damages and Plaintiff's Opposition thereto, it is by the Court this ____ day of ______, 2004ORDERED, that Defendants' Motion be, and the same hereby is DENIED, and it is further
ORDERED, that Plaintiff shall be permitted to conduct discovery relevant to Plaintiff's claims including the claim for punitive damages.