United States District Court, E.D. Arkansas, Western Division
BRENDA TUOHEY, as Personal Representative of the Estate of Mildred May Bryant and on behalf of the wrongful death beneficiaries of Mildred Mae Bryant, and all others similarly situated PLAINTIFFS
CHENAL HEALTHCARE, LLC, d/b/a Chenal Rehabilitation and Healthcare Center, et al. DEFENDANTS
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
a wrongful death action brought by Brenda Tuohey on behalf of
the Estate of Mildred May Bryant and Bryant's wrongful
death beneficiaries against thirty-one defendants alleging
that the Chenal Rehabilitation and Healthcare Center was
chronically understaffed in violation of the admission
agreement and that the failure to staff Chenal Healthcare
adequately constituted negligence. Three motions for summary
judgment are pending.
defendants are a web of corporate entities and individual
administrators affiliated in some way with the Chenal
Rehabilitation and Healthcare Center, which is a seventy-bed
nursing home in Little Rock. The amended complaint alleges
that the corporate entities developed the business policies
that resulted in the alleged understaffing of Chenal
Healthcare, while the individual administrators and directors
of nursing acted in conjunction with the corporate entities
to reduce staffing levels or maintain staffing at an
inadequate level. Tuohey's mother, Mildred Mae Bryant,
was a resident of Chenal Healthcare from approximately June
25, 2007, to December 17, 2014. Tuohey claims that
Bryant's stay at Chenal Healthcare accelerated the
deterioration of her health, resulting in multiple urinary
tract infections, poor hygiene, a broken tibia, a broken
fibula, unsanitary living conditions, and ultimately her
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact exists only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The Court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
2015). If the nonmoving party fails to present evidence
sufficient to establish an essential element of a claim on
which that party bears the burden of proof, then the moving
party is entitled to judgment as a matter of law.
The Medical Malpractice Act
first pending motion for summary judgment, the
defendants' initial argument is that all of
Tuohey's claims fall within the ambit of the Arkansas
Medical Malpractice Act-Ark. Code Ann. § 16-114-201,
et. seq. Document #89. According to the defendants,
all of Tuohey's claims arise from “medical
injuries, ” so she may only seek relief for those
injuries under the malpractice act. Because she failed to do
so prior to the deadline for amending her complaint, the
defendants ask the Court to dismiss her claims. In the
alternative, they ask the Court to whittle her claims down to
one claim for medical malpractice. The motion is
characterized as one for summary judgment, but the
defendants' statement of undisputed facts includes four
paragraphs, three summarizing Tuohey's complaint.
Document #91. The motion as it pertains to the malpractice
act is in substance a motion for judgment on the pleadings
pursuant to Rule 12(c).
(c) provides: “After the pleadings are closed-but early
enough not to delay trial-a party may move for judgment on
the pleadings.” Fed.R.Civ.P. 12(c). Such a motion is
evaluated in the same manner as a 12(b)(6) motion to dismiss.
McIvor v. Credit Control Serv., Inc., 773 F.3d 909,
912 (8th Cir. 2012). To survive a motion to dismiss under
Rule 12(b)(6), a complaint must contain “a short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). Although
detailed factual allegations are not required, the complaint
must set forth “enough facts to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
concedes that the amended complaint includes a claim for
medical injury governed by the malpractice act. Conversely,
the defendants never argue that the amended complaint fails
to allege facts that would constitute a claim under the
malpractice act. See Document #101 at 4; Document
#89. Rather, they argue that the facts alleged would state a
claim under the malpractice act, and only under the
malpractice act, but since Tuohey never cites that act in her
complaint her claims should be dismissed. Tuohey's
failure to characterize her claims as arising under the
malpractice act does not require the Court to dismiss those
claims. Instead, the Court can look to the true character of
the tort alleged. Cont. Cas. Co. v. Moser, No.
4:05CV00979 JLH, 2006 WL 827319, at *5 (E.D. Ark. March 29,
2006) (citing Cherepski v. Walker, 323 Ark. 43, 55,
913 S.W.2d 761, 767 (1996)). The failure to cite the Medical
Malpractice Act in the complaint does not preclude
application of the Act. See Looney v. Bolt, 330 Ark.
530, 536, 955 S.W.2d 509, 512 (1997) (claim pled under the
Wrongful Death Act). Where the alleged acts or omissions of a
medical provider result in a medical injury, the Act applies
regardless of how the claims have been pled. Id. It
follows that a plaintiff may state a plausible claim by
supporting it with sufficient factual allegations without
explicitly labeling that claim.
amended complaint states three claims: (1) a medical
negligence claim; (2) an ordinary negligence claim; and (3) a
claim for breach of the admission agreement against Chenal
Rehabilitation and Healthcare. The defendants argue that the
amendments to the malpractice act adopted in 2013 by the
Arkansas General Assembly as Act 1196 preclude Tuohey from
recovering for injuries other than for medical injuries.
Although the statute was amended to insure that a person who
suffers a medical injury cannot be compensated for that
injury more than once, the statutory definition of
“medical injury” was not substantially changed.
See 2013 Arkansas Act 1196. A medical injury
continues to be an adverse consequence that arises out of or
is sustained in the course of professional services being
rendered by a medical care provider. Id.; see
also Ark. Code Ann. § 16-114-201 (2016 Repl.). The
Arkansas Supreme Court has drawn the line separating claims
for medical injury from other claims in numerous cases that
predate Act 1196 of 2013. See, e.g.,
Paulino v. QHG of Springdale, Inc., 2012 Ark. 55,
9-10, 386 S.W.3d 462 (2012); Young v. Gastro-Intestinal
Ctr., Inc., 361 Ark. 209, 221, 205 S.W.3d 741, 750
(2005); McQuay v. Guntharp, 336 Ark. 534, 986 S.W.2d
850, 853 (1999); Howard v. Ozark Guidance Ctr., 326
Ark. 224, 228, 930 S.W.3d 341, 343 (1996); Spring Creek
Living Ctr. v. Sarrett, 319 Ark. 259, 263, 890 S.W.2d
598, 600 (1995); Wyatt v. St. Paul Fire & Marine Ins.
Co., 315 Ark. 547, 552-555, 868 S.W.2d 505, 508-10
(1994); Ruffins v. ER Ark., P.A., 313 Ark. 175, 177,
853 S.W.2d 877, 879 (1993); Bailey v. Rose Care
Ctr., 307 Ark. 14, 18, 817 S.W.2d 412, 414 (1991);
Sexton v. St. Paul Fire & Marine Co., 275 Ark.
361, 363, 631 S.W.2d 270, 272 (1982). Because Act 1196 of
2013 did not substantially change the definition of
“medical injury” in the malpractice act, these
cases remain authoritative. The distinction between claims
for medical injury and other types of claims remains a real
distinction. Depending on what evidence is presented at
trial, the Court will instruct the jury accordingly at the
the defendants argue that Tuohey cannot present evidence to
show the existence of a genuine dispute as to whether she is
entitled to punitive damages. Document #90 at 7. Punitive
damages are not recoverable for the breach of the admission
agreement claim. L.L. Cole & Son, Inc. v.
Hickman, 282 Ark. 6, 8-9, 665 S.W.2d 278, 281-82 (1984).
Punitive damages can be awarded for torts in nursing home
litigation and medical malpractice actions. See 1
Howard W. Brill & Christian H. Brill, Ark. Law of Damages
§ 9:2 (6th ed. 2015) (footnotes omitted). In Rose
Care, Inc. v. Ross, the Arkansas Court of Appeals
provided that to support an award of punitive damages, there
must be “evidence that a party likely knew, or ought to
have known, in light of the surrounding circumstances, that
his conduct would naturally or probably result in injury and
that he continued such conduct in reckless disregard of the
consequences from which malice could be inferred.” 91
Ark.App. 187, 210, 209 S.W.3d 393, 407 (2005) (citing
Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 149
S.W.3d 325 (2004)).
response to the defendants' motion for summary judgment,
Tuohey submitted the unsworn expert report of Dr. Loren G.
Lipson as evidence that an inference of malice may be drawn
from the defendants' reckless disregard of numerous and
recurrent deficiencies cited by state and federal regulators.
Document #101-1. The Eighth Circuit has explained:
Rule 56(c)(4) requires “[a]n affidavit or declaration
used to support or oppose a motion [to] be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Although Rule 56, as
amended in 2010, no longer requires a formal affidavit, an
unsworn declaration or statement substituted for a sworn
affidavit must still meet important statutory requirements.
See Fed. R. Civ. P. 56(c) advisory committee's
note to 2010 amendment. Under 28 U.S.C. § 1746, an
unsworn declaration or statement must be written, signed,
dated, and certified as true and correct “under penalty
Banks v. Deere, 829 F.3d 661, 668 (8th Cir. 2016).
Thus, “an unsworn expert report, standing alone, does
not constitute admissible evidence that can be considered at
the summary judgment stage of the proceedings, and will not
defeat a motion for summary judgment . . . .”
Maytag Corp. v. Electrolux Home Prods., Inc., 448
F.Supp.2d 1034, 1065 (N.D. Iowa 2006). See also Peak v.
Cent. Tank Coatings, 606 Fed.Appx. 891, 895 (10th Cir.
2015); Sigler v. Am. Honda Motor Co., 532 F.3d 469,
480-81 (6th Cir. 2008); Provident Life & Acc. Ins.
Co. v. Goel, 274 F.3d 984, 1000 (5th Cir. 2001);
Fed.R.Civ.P. 56(e). It may be possible to “cure”
unsworn materials by a subsequent affidavit. DG&G,
Inc. v. Flexsol Pkg. Corp., 576 F.3d 820, 826 (8th Cir.
2009); Maytag Corp., 448 F.Supp.2d at 1064. Here,
the defendants noted in their brief filed on April 17, 2017,
that Lipson's unsworn expert report was inadmissible.
Document #103 at 6-7. Tuohey has not attempted to
“cure” Lipson's unsworn statement, so it will
not be considered.
also points to paragraph 53 of her complaint, which lists
examples of regulatory citations. Document #101 at 15. As the
non-moving party bearing the burden of proof on the issue of
punitive damages, Tuohey “may not rest on allegations
in the pleadings, but by affidavit or other evidence must set
forth specific facts showing that a genuine issue of material
fact exists.” Lower Brule Sioux Tribe v. State of
S.D., 104 F.3d 1017, 1021 (8th Cir. 1997). Tuohey has
failed to present admissible evidence to show that a genuine
dispute of material facts exists. The defendants are entitled
to summary judgment on the issue of punitive damages.
motion for summary judgment, Diamond Senior Living, LLC,
which owned the building leased to Chenal Healthcare, argues
that it owed no legal duty to Bryant and that even if it owed
a duty, it did not proximately cause her injuries. Document
#92. Diamond Senior Living's motion relies on the
affidavit of its Vice President, Karen Austin, who testifies
to the lease between Diamond Senior Living and Chenal
Healthcare. Austin explains that the two entities have no
other connection and that Diamond Senior Living had no
involvement in Bryant's care.
third pending motion for summary judgment, the
“non-facility defendants” also argue that they were
not involved in Bryant's care, owed no duty to her, and
did not proximately cause her injuries. Document #95. The
non-facility defendants present no evidence. Instead, they
argue that Tuohey cannot present evidence on these essential
elements of her claim against them, so they are entitled to
summary judgment on that basis.
has provided little evidence in response to the
defendants' motions for summary judgment. Counsel for
Tuohey submitted Rule 56(d) affidavits requesting the Court
either deny or defer ruling on the motions for judgment, so
that Tuohey can depose Karen Austin in connection with
Diamond Senior Living's motion for summary judgment and
depose various officers and employees of the non-facility
defendants in connection with their motion for summary
judgment. Document #104-1 at 2, ¶7; Document #109-1 at
2-3, ¶¶4-6. Rule 56(d) provides: “If a
nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition, the court may: (1) defer considering
the motion or deny it; (2) allow time to obtain affidavits or
declarations to take discovery; or (3) issue any other
appropriate order.” Fed.R.Civ.P. 56(d). “The
purpose of this rule is to prevent a party from being
unfairly thrown out of court by a premature motion for
summary judgment.” Jackson v. Riebold, 815
F.3d 1114, 11121 (8th Cir. 2016) (internal quotation
omitted). The Court has “wide discretion” to deny
a Rule 56(d) request. See Anzaldua v. Ne. Ambulance and
Fire Prot. Dist., 793 F.3d 822, 837 (8th Cir. 2015).
maintains that, to her knowledge, Diamond Senior Living did
not disclose Austin as an individual with personal knowledge
of its lack of involvement or control in the operation of
Chenal Healthcare. Document #104 at 2, ¶4. Nevertheless,
Tuohey has failed to show with specificity what she hopes to
learn from further discovery. Tuohey does not say what she
expects to learn from questioning her about that affidavit
other than to say that she wishes to explore the extent of
Austin's personal knowledge-which is insufficient to meet
the requirements of Rule 56(d). Anzaldua, 793 F.3d
at 837. Tuohey must state specific facts she hopes to learn
from additional discovery, that the facts sought exist, and
that the those facts are essential to rebut the summary
judgment motion. Jackson, 815 F.3d at 1121. She has
not done so.
has had fourteen months to conduct discovery on the issues
addressed in Austin's affidavit. Even if she was unaware
of Austin, the issues regarding which Austin testifies in her
affidavit cannot come as a surprise: it had to be apparent
from the get-go that Tuohey would need to present proof on
the issue of Diamond ...