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Henry v. United States

United States District Court, W.D. Arkansas, Fayetteville Division

June 24, 2016

DENNIS HENRY and KAREN HENRY, Husband; and Wife PLAINTIFFS
v.
UNITED STATES OF AMERICA and RONALD MULLIS, M.D. DEFENDANTS and DENNIS HENRY and KAREN HENRY, Husband and Wife PLAINTIFFS
v.
UNITED STATES OF AMERICA and RONALD MULLIS, M.D. DEFENDANTS and KAREN HENRY PLAINTIFF
v.
UNITED STATES OF AMERICA and RONALD MULLIS, M.D. DEFENDANTS

          OPINION AND ORDER

          TIMTHYL L. BROOKS, UNITED STATES DISTRICT JUDGE

         Currently before the Court in Henry et al. v. United States et al., Case No. 5:15-cv-5288 ("Henry T) are:

• Plaintiffs Dennis and Karen Henry's Motion to Consolidate Actions (Doc. 27) and Defendant United States's Response (Doc. 28); and
• the Court's Show Cause Order (Doc. 19), Plaintiffs' Response (Doc. 23), Defendant United States' Reply (Doc. 24), and Plaintiffs' Sur-reply (Doc. 26).

         Also currently before the Court in Henry et al. v. United States et al., Case No. 5:16-cv-5051 ("Henry IF') are:

• Defendant United States' Motion to Dismiss Party (Doc. 15) and Brief in Support (Doc. 16), and Plaintiffs Dennis and Karen Henry's Response (Doc. 18); and
• Plaintiffs' Motion to Consolidate (Doc. 19) and Brief in Support (Doc. 20), and Defendant United States' Response (Doc. 21). Finally, before the Court in Henry v. United States et al., Case No. 5:16-cv-5098 ("Henry an is:
• Plaintiff Karen Henry's Motion to Consolidate Actions (Doc. 3).

         As explained in greater detail below, the Court will resolve all of these pending matters by permitting Mr. and Mrs. Henry to proceed in one consolidated action on all claims that they have lodged in these three lawsuits, provided that they comply with the pleading requirements set forth in this Order. A corollary of this ruling is that all of Mr. and Mrs. Henry's pending Motions in these lawsuits are GRANTED, and the United States' pending Motion in Henry II is DENIED.

         I. BACKGROUND

         Mr. and Mrs. Henry allege that around December 3, 2013, Mr. Henry underwent abdominal surgery at the Veterans Administration Hospital in Fayetteville, Arkansas, and that metal staples were used to secure his abdomen following the procedure. They further allege that after Mr. Henry was transferred to postoperative care, he experienced dry heaves, causing his abdominal wound to open and his intestines to spill outward, being punctured by his skin staples, and spilling their contents into his peritoneal cavity. Mr. Henry then underwent a second surgery, after which he "went on to develop peritonitis, sepsis, septic shock, multiorgan failure including respiratory failure, cardiovascular failure, kidney failure, and liver failure." Henry I, Doc. 1, ¶ 22. The Henrys allege that the two doctors who performed these operations were negligent, causing the Henrys to suffer compensable damages, with Mrs. Henry's claim being for loss of services and consortium.

         Mr. Henry filed an administrative claim regarding these events with the United States Department of Veterans Affairs ("VA") on or about April 27, 2015, and the VA denied his claim on or about October 22, 2015. Roughly a month later, on November 25, 2015, Mrs. Henry filed a separate administrative claim with the VA, which was still pending three months later on February 25, 2016, when the Henrys simultaneously filed Henry I in this Court and Henry II in the Washington County Circuit Court. The complaints in those two lawsuits were essentially identical, but were filed in separate forums because federal jurisdiction might be lacking if both defendant doctors were independent contractors rather than employees of the VA. As it turns out, however, while one doctor (Dr. Ronald Mullis) was an independent contractor, the other (Dr. William McNair) was an employee; accordingly, the United States substituted itself as a party for Dr. McNair in each case, and removed Henry II to this Court. The VA finally denied Mrs. Henry's separate administrative claim on April 5, 2016. A month later, on May 6, 2016, Mrs. Henry filed Henry III in this Court, asserting the same claims against the United States and Dr. Mullis that she asserted in Henry I and Henry II.

         II. DISCUSSION

         The Henrys are asking this Court to consolidate all three lawsuits into one action and to permit the Henrys to proceed in the consolidated action on all of their claims against both defendants. Dr. Mullis has not expressed any opposition to the Henrys' request. The United States, however, does oppose the Henrys' request, at least with regard to the consolidation of Henry I and Henry II, and asks this Court instead to dismiss both Henrys' claims against the United States in Henry II as duplicative, and to dismiss Mrs. Henry's claim against the United States in Henry I for having been filed prior to exhausting her administrative remedies. The United States argues that consolidation rather than dismissal would frustrate judicial economy because "[w]hen two cases are merged for the purpose of convenience and not formally merged, they retain their individual identity, " see Henry II, Doc. 21, H 7 (citing Tri-State Hotels, Inc. v. F.D.I.C,79 F.3d 707, 711-12 (8th Cir. 1996)), thus imposing an unnecessary burden on the United States to file a duplicative answer in Henry II. The Court disagrees. The interest of judicial economy can easily (and best) be served simply by consolidating these cases in a manner such that they are "formally merged ...


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