United States District Court, W.D. Kentucky, Bowling Green Division
GRACIE EVANS; CASSANDRA WATTS; AUSIA BRANCH; JARVIS EVANS; and MELANIA EVANS PLAINTIFFS
DR. VERENA WYVILL BROWN; MONROE CARELL JR. CHILDREN'S HOSPITAL; and STEPHANIE
BANK CENTER FOR SAFE AND HEALTHY CHILDREN DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE
matter is before the Court on Defendants' Motions to
Dismiss (DN 8, 9). The motions are ripe for adjudication. For
the foregoing reasons, Defendant's motions are
filed this action pro se alleging that Defendant
Dr. Verena Wyvill Brown (“Dr. Brown”) breached
her duty of care, engaged in malicious misconduct and was
grossly negligent, “caus[ing] the [P]laintiffs and
their children severe emotional and psychological harm [when
they] were deprived of their minor children . . . .”
(Compl. 3-4, DN 1). Plaintiffs allege that on April 23, 2014,
Dr. Brown misdiagnosed the minor child of Branch with Abusive
Head Trauma, the symptoms for which Plaintiffs claim are
attributable to “the complicated intubation performed
by [a] residential student [in] which the endotracheal tube
was located well [with]in the right mainstem bronchus and was
retracted 2.5 cm with signs of developing atelectasis.”
(Compl. 5-6). Plaintiffs further allege that on September 21,
2017, Dr. Brown testified via Skype at an adjudication in
Warren County Family Court in Bowling Green, Kentucky and
provided false testimony about her misdiagnosis. (Compl. 3).
As a result of this allegedly false testimony, Plaintiffs
assert they were deprived of custody over the children when
officials from Warren County Family Court removed them from
relative care to foster care. (Compl. 3-4).
also bring claims against Dr. Brown's employers under the
theory of respondeat superior. (Compl. 6-7).
Plaintiffs argue Defendant Monroe Carrell Jr. Children's
Hospital (“Children's Hospital”) is
vicariously liable for Dr. Brown's conduct during
diagnosis and treatment and that Defendant Stephanie V. Blank
Center for Safe and Health Children (“Blank
Center”) is vicariously liable for her false
testimony. (Compl. 6-7). Plaintiffs seek over a $1 billion in
damages from Defendants for medical malpractice and for the
consequences of Dr. Brown's false testimony. (Compl.
Center moved to dismiss Plaintiffs claims for lack of
jurisdiction, improper service, procedural non-compliance and
for being time-barred under the applicable statute of
limitations. (Def.'s Mot. Dismiss, DN 8). Children's
Hospital and Dr. Brown move to dismiss Plaintiffs' claims
for lack of jurisdiction, because venue is improper in the
Western District of Kentucky, for failing to state a claim,
and for failing to comply with pre-suit notice requirements.
(Defs.' Mot. Dismiss, DN 9).
contend that jurisdiction exists over Blank Center because
Dr. Brown was employed by Blank Center and used Skype from
their Atlanta offices to provide untruthful testimony at
Warren County Family Court concerning her conduct while
employed at Children's Hospital. (Pls.' Resp.
Def.'s Mot. Dismiss 2-3, DN 16 [hereinafter Pls.'
First Resp.]). Plaintiffs argue for the first time in their
response that jurisdiction exists over Children's
Hospital because it “continuously and systematically
conducts business in the State of Kentucky when it submits
via telephone, mail, or facsimile transmission invoices for
payments or services rendered and receives payment from
Kentucky Medicaid insurance . . . .” (Pls.' Resp.
Defs.' Mot. Dismiss 4-5, DN 17 [hereinafter Pls.'
Second Resp.]). Plaintiffs contend the Court has jurisdiction
over claims against Dr. Brown because she committed a tort in
Kentucky in providing false testimony in Warren County Family
Court. (Pls.' Second Resp. 4).
STANDARD OF REVIEW
se complaints are held to “less stringent
standards than formal pleadings drafted by lawyers . . .
.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
Allegations by a pro se plaintiff are sufficient to
call for an opportunity to offer supporting evidence
“unless it appears beyond doubt that the [plaintiff]
could prove no set of facts that entitle him [or her] to
relief.” Cruz v. Beto, 405 U.S. 319 (1972)
(internal quotation marks omitted) (citation omitted). At the
same time, the Supreme Court has “never suggested
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.” McNeil v. United States, 508
U.S. 106, 113, (1993). Indeed, a pro se litigant
“must conduct enough investigation to draft pleadings
that meet the requirements of the federal rules . . .
.” Burnett v. Grattan, 468 U.S. 42, 50, 104
(1984). Dismissal may be appropriate where a complaint
contains a detailed description of the underlying facts which
nevertheless fail to state a viable claim. Estelle v.
Gamble, 429 U.S. 97, 106-09 (1976).
Medical Malpractice Claims
seek damages for gross negligence relating to Dr. Brown's
medical examination and treatment of Plaintiff's minor
child at Children's Hospital's facilities on April
23, 2014, in Nashville, Tennessee. (Compl. 3-4). Dr. Brown
and Children's Hospital argue dismissal is appropriate
because the Court lacks jurisdiction, venue is improper,
Plaintiffs fail to state a claim and have failed to adhere to
pre-suit notice requirements, and because Plaintiffs claims
are untimely. (Defs.' Mem. Supp. Mot. Dismiss 4-14, DN
Fed.R.Civ.P. 12(b)(2), a litigant may challenge the
Court's authority to entertain an action for lack of
personal jurisdiction. See Fed. R. Civ. P. 12(b)(2).
Personal jurisdiction has two forms: general and specific.
See Miller v. ACA Winterthur Ins. Co., 694 F.3d 675,
678-79 (6th Cir. 2012). General jurisdiction arises when a
defendant has affiliations so “continuous and
systematic” with a forum as to render the person
“essentially at home” there, thus allowing courts
in that forum to exercise jurisdiction over any and all
claims against her. See Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011) (citation
omitted). Specific jurisdiction, on the other hand, arises
from “minimum contacts” between a person and the
forum, and permits the forum's courts to adjudicate
“issues deriving from, or connected with, ” those
particular contacts. Id. (citation omitted). When a
court rules on a jurisdictional motion to dismiss, without
conducting an evidentiary hearing, it must consider the
pleadings and affidavits in a light most favorable to the
plaintiff. To defeat such a motion, the plaintiff need only
make a prima facie showing of jurisdiction and the
court should not weigh the controverting assertions of the
party seeking dismissal. Dean v. Motel 6 Operating
LP, 134 F.3d 1269, 1272 (6th Cir. 1998).
determining whether personal jurisdiction exists over a
nonresident defendant, the Court must apply the law of the
state in which it sits. Third Nat'l Bank in Nashville
v. WEDGE Grp. Inc., 882 F.2d 1087, 1089 (6th Cir. 1989).
In Kentucky, jurisdiction over out-of-state defendants is
governed by KRS 454.210. In Caesars Riverboat Casino, LLC
v. Beach, 336 S.W.3d 51 (Ky. 2011), the Supreme Court of
Kentucky provided that “[o]nly after the requirements
of KRS 454.210 have been satisfied can it be said that
personal jurisdiction over a non-resident ...