Opinion
Case No. 3:03CV7305.
August 17, 2004
ORDER
This is a suit by a railway worker, plaintiff William Snyder, against his employer, the Norfolk Southern Railway Co. (NS), a physician, Dr. Mark E. Reardon, who saw the plaintiff after the injury that gave rise to this suit, and individual employees of the railway.
Pending are a motion by Reardon for summary judgment and NS and its employees for partial summary judgment. For the reasons that follow, Reardon's motion shall be granted d in part and denied in part, and the railroad's motion shall be granted. Leave shall, however, be granted sua sponte to the plaintiff to file a third amended complaint on or before August 30, 2004.
Plaintiff claims to have injured his knee on February 27, 2003, when he slipped off a rail car due to a wobbly grab bar. He was taken to a hospital emergency room, where a doctor prescribed a knee immobilizer, which was affixed to plaintiff's knee.
Thereafter, plaintiff alleges, the individual railway employee defendants, who were supervisors, took the plaintiff Dr. Reardon. Dr. Reardon concluded that plaintiff did not need the immobilizer, which was then removed. Plaintiff alleges that, as a result of Dr. Reardon's determination, the incurred unnecessary pain and suffering. On further examination the following day, plaintiff was found to have a broken tibia, for which surgery was required.
Reardon's pending motion for summary judgment seeks summary judgment as to plaintiff's three claims against him: 1) medical malpractice; 2) conversion (based on the taking of plaintiff's knee immobilizer); and 3) conspiracy (in which plaintiff alleges that Reardon the NS employees conspired, inter alia, to provide substandard medical care).
The railroad's motion for partial summary judgment seeks dismissal of plaintiff's pending state law claims for conversion, conspiracy, and trespass to chattels on the basis that they are preempted by the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq. (FELA).
Discussion A. Reardon Motion for Summary Judgment
Defendant Reardon bases his challenge to plaintiff's medical malpractice claim principally on its motion to strike an affidavit submitted by plaintiff's medical expert, who expresses his opinion that Reardon breached the standard of care in his diagnosis of the injury to plaintiff's knee. That motion to strike is being overruled in another order. In view of the affidavit, there is a genuine issue of material fact with regard to plaintiff's malpractice claim, and defendant's challenge to that claim will be overruled.
Plaintiff has withdrawn his conversion claim against this defendant. The defendant's motion as to that claim will be granted.
Plaintiff claims that a conspiracy existed between Reardon and CSX to deprive him of adequate medical care by taking his knee immobilizer. According to plaintiff, Reardon and his railroad supervisors were motivated by a desire to avoid having to report his knee injury to the Federal Railway Administration.
To prove a claim of civil conspiracy, plaintiff must show: 1) a malicious combination or agreement; 2) between two or more persons; 3) resultant injury; and 4) an unlawful overt act. See, e.g., Geo-Pro Services, Inc. v. Solar Testing Laboratories, Inc., 145 Ohio App.3d 514, 527 (2001). With regard to the first element — that of a malicious agreement — the plaintiff must produce "substantial direct evidence" of such agreement in order to prevail. Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 765 (1984).
Plaintiff bases his claim that Reardon and CSX conspired solely on his personal belief that there was an agreement to deprive him of proper medical care, and that malice underlay such agreement. Plaintiff's belief in that regard is entirely speculative and conjectural, and relies solely on the fact that Reardon determined that he did not need the immobilizer. There is no showing of any conversation between Reardon and the supervisors or other evidence that the supervisors requested that result, or otherwise controlled Reardon's decision.
In any event, there is no proof of malice on Reardon's part, even if there were an spoken or unspoken understanding between him and the supervisors, and there is no showing that Reardon otherwise acted on the basis of improper motive. There is no evidence of pecuniary or other benefit to him, either short-term or long-term, from his decision, or a continuing course of conduct on his part and that of the railroad. Plaintiff, in a word, has produced no evidence of malice, much less the substantial evidence that he must produce to overcome defendant's motion for summary judgment.
The substantial evidence requirement is particularly appropriate in this case. Were Reardon to be held liable for providing what was, at least arguably, a second opinion, the practice of obtaining such opinions, which has become a routine, and favored aspect of medical practice in recent years, would be discouraged. To find a doctor to be a civilly liable conspirator simply because, at the behest of a payor or other party responsible for medical treatment, that doctor concluded that a different, and less expensive course of treatment was appropriate would be inappropriate and unjustifiable. Conventional malpractice doctrines suffice to protect against errors on the part of doctors from whom second opinions are sought.
Defendant has, moreover, submitted unrebutted proof that an injury report was filed with the FRA. Thus, the putative motive for the alleged conspiracy — to avoid filing such a report — did not exist.
Reardon's motion shall, accordingly, be granted in part (with regard to the conversion and civil conspiracy claims), and denied with regard to the medical malpractice claim.
B. Norfolk Southern Motion for Summary Judgment
Plaintiff asserts three state law causes of action against the railroad, all based on the removal of his knee immobilizer: 1) conversion; 2) conspiracy to deprive him of adequate medical care; and 3) trespass to chattels. Plaintiff has joined the supervisors as defendants and he seeks punitive damages as to these claims.
Plaintiff seeks to recover damages for conversion and trespass to chattels (which has been described "largely as a little brother to conversion."). State v. Herbert, 49 Ohio St.2d 88, 118 (1976) (citing Prosser on Torts). These are torts to property, Portage Cty. Bd. of Commrs. v. Akron, 156 Ohio App.3d 657, 691 (2004) ("conversion is a tort applicable to personal property"), not torts involving personal injury.
The measure of damages is, moreover, limited to the value of the converted object. Erie R. Co. v. Steinberg, 94 Ohio St. 189, 197 (1916) ("the measure of damages is ordinarily the value of the goods at the time of conversion."); see also Conley v. Caudill, 2003 WL 21278885, *3 (Ohio App. 4 Dist. May 30, 2003) ("the measure of damages for either trespass or conversion is the value of the property").
The property tort label given by plaintiff to his substantive state-law claims is not consistent with the gravamen of his complaint: namely, that seizure of the knee immobilizer caused pain and suffering that otherwise would not have been endured until the tibial fracture had been diagnosed and treated. Such claim is one for personal injury, not for loss of property.
As a personal injury claim arising from allegedly intentional conduct on the part of the plaintiff's supervisors, plaintiff's claim clearly comes within the FELA. As stated in Slaughter v. Atlantic Coast Line R. Co., 302 F.2d 912, 915-16 (D.C. Cir. 1962):
any intentional tort which inflicts bodily injury upon the employee is "negligence" within the meaning of the [FELA]. . . . Here, just as in Jamison [ v. Encarnacion, 281 U.S. 635, 640 (1930)], it would be anomalous to disallow recovery for an injury merely because the harm was intentionally inflicted. To bar the action would thwart the central purpose of the F.E.L.A. — to compensate railroad employees who suffer possibly disabling physical injury as a consequence of their employment.
It would appear that two separate claims can be found in plaintiff's complaint: his current FELA claim for injuries resulting from a loose grab bar, and, potentially, a second, independent FELA claim for pain and suffering following the distinct act of taking his knee immoblizer.
Thus, plaintiff cannot maintain state-law conversion and trespass to chattels claims because he is seeking to recover for pain and suffering inflicted on him by other railway employees in the course and scope of their work for the railroad. Before he can recover for the injury which he alleges in his complaint, he must plead that claim under the FELA. So that he may do so, leave will be given sua sponte to file a third amended complaint alleging, as a separate cause of action, an FELA claim for the pain and suffering alleged to been caused when his supervisors took his knee immoblizer.
Plaintiff's third amended complaint, when filed, may assert his additional FELA claim only against the railroad. Individual employees are not subject to suit under the FELA. 45 U.S.C. § 51 ("Every common carrier by railroad . . ., shall be liable in damages to any person suffering injury while he is employed by such carrier. . . ."); cf. Connors v. Consolidated Rail Corp., 1993 WL 169646, *3 (N.D.N.Y. May 19, 1993) ("The FELA, by its very terms, applies only to Conrail", and not to a third party defendant). Plaintiff, accordingly, cannot maintain any claims against the individual defendants.
Finally, the plaintiff cannot maintain a conspiracy claim, because to do so would contravene the intracorporate conspiracy doctrine. Pursuant to that doctrine, "a corporation cannot conspire with its own agents or employees." Doherty v. American Motors Corp., 728 F.2d 334, 339 (6th Cir. 1984).
Defendant's motion for partial summary judgment shall be granted, but plaintiff shall be granted leave to file a third amended complaint alleging an additional claim under the FELA.
Conclusion
In light of the foregoing, plaintiff's claims against the defendant Reardon shall, except for his malpractice claim, be dismissed. Plaintiff's state law claims against NS shall be dismissed, but plaintiff shall be granted leave to file a third amended complaint on or before August 30, 2004.
So that the status of the settlement conference and trial dates may be confirmed or adjusted, as needed in light of the foregoing, the Clerk shall be directed to set a status conference forthwith. At such conference, the parties shall address, inter alia, whether separate trials should be held as to any of the claims or either of the defendants, and whether, in any event, the case(s) can proceed as previously scheduled, which would be my preference.
It is, therefore,
ORDERED THAT:
1. Defendant Reardon's motion for summary judgment be, and the same hereby is granted in part and denied in part;
2. Defendant Norfolk Southern's motion for partial summary judgment be, and the same hereby is granted; and
3. Leave be, and the same hereby is granted to the plaintiff to file his third amended complaint on or before August 30, 2004.
A status conference is scheduled for August 30, 2004 at 3:00 p.m.
So ordered.