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Judith Toomey, Individually and As Administratrix of Ronald T. Toomey= S Estate v. United States of America

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON


April 16, 2013

JUDITH TOOMEY, INDIVIDUALLY AND AS ADMINISTRATRIX OF RONALD T. TOOMEY= S ESTATE,
PLAINTIFF
v.
UNITED STATES OF AMERICA; MEADOWVIEW REGIONAL MEDICAL CENTER, LLC D/B/A MEADOWVIEW REGIONAL MEDICAL CENTER, LLC; LIFEPOINT HOSPITALS, INC.; JAMES A. YOUNG, M.D.; MARSHALL EMERGENCY SERVICES ASSOCIATES, P.S.C.; RICHARD HARTMAN, M.D.; MAYSVILLE RADIOLOGY ASSOCIATES, P.S.C.; LP AUGUSTA, LLC, D/B/A BRACKEN COUNTY NURSING & REHABILITATION CENTER; FRAN STAHL, IN HER CAPACITY AS ADMINISTRATOR OF BRACKEN COUNTY NURSING & REHABILITATION CENTER; SHELLEY APPLEGATE, R. N., IN HER CAPACITY AS DIRECTOR OF NURSING OF BRACKEN COUNTY NURSING AND REHABILITATION CENTER; UNIVERSITY OF KENTUCKY MEDICAL CENTER; UNIVERSITY HOSPITAL OF THE ALBERT B. CHANDLER MEDICAL CENTER, INC.; STEPHANIE MURPHY, M.D.; AND GAYLE (LAST NAME UNKNOWN), R.N.,
DEFENDANTS

OPINION AND ORDER

This matter is before the Court on the motions of several of the Defendants to alter the Court's February 8, 2013 Opinion and Order to omit one portion of a sentence (DE 50, 51, 52, 53, 54). In the opinion, the Court dismissed the Plaintiff's claim against the United States under the Federal Tort Claims Act, (FTCA), 28 U.S.C. § 2671 et seq. The Court then declined to exercise jurisdiction over the Plaintiff's state-law claims pursuant to 28 U.S.C. § 1367(c) and dismissed those claims. The Court dismissed the state-law claims without prejudice, stating that, pursuant to 28 U.S.C. § 1367(d), the Plaintiff had at least 30 days in which to file her state-law claims in state court.

The Defendants move to alter the opinion to omit the reference to §1367(d). They argue that the Plaintiff's state-law claims were time-barred before the Plaintiff ever filed this federal action.

The Defendants are concerned that this Court's recognition of § 1367(d) in its opinion indicates that this Court has determined that the Plaintiff's state-law claims are not time barred. This Court has not made any determination regarding whether any of the Plaintiff's state law claims are time-barred.

The Court will therefore amend its prior opinion to prevent any misunderstanding regarding that issue. The Plaintiff may, of course, file her state-court claims in state court and that court will then resolve any argument that the claims are time barred. The Defendant Meadowview Regional Medical Center, LLC d/b/a Meadowview Regional Medical Center ("Meadowview") also moves the Court to amend the February 8, 2013 Opinion and Order to state that Defendant Lifepoint Hospitals, Inc. was dismissed as a Defendant in this action by Agreed Order dated May 16, 2012. The Court will amend the Opinion and Order to reflect Lifepoint's dismissal.

Accordingly, the Court hereby ORDERS as follows:

1) the Defendants' motions to alter are GRANTED (DE 50, 51, 52, 53, 54);

2) the Court's February 8, 2013 Opinion and Order (DE 48) is AMENDED as follows:

a) On page 3, the following sentence is added to the end of the first full paragraph: "The Agreed Order was entered by the Court on May 16, 2012 (DE 21) dismissing all claims against Lifepoint."

b) the last sentence of Section II on page 7 of the opinion is amended to delete any reference to 28 U.S.C. § 1367(d) and to state only: "The claims will be dismissed without prejudice."

c) Paragraph 2 of the ordering clause on page 8 of the opinion is amended to omit any reference to 18 U.S.C. § 1367(d) and to state only, "all the Plaintiff's claims against the remaining Defendants are hereby dismissed without prejudice pursuant to 18 U.S.C. § 1367(c)."

20130416

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