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Evans v. Brown

United States District Court, W.D. Kentucky, Bowling Green Division

May 28, 2019

GRACIE EVANS; CASSANDRA WATTS; AUSIA BRANCH; JARVIS EVANS; and MELANIA EVANS PLAINTIFFS
v.
DR. VERENA WYVILL BROWN; MONROE CARELL JR. CHILDREN'S HOSPITAL; and STEPHANIE
v.
BANK CENTER FOR SAFE AND HEALTHY CHILDREN DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE

         This 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 GRANTED.

         I. BACKGROUND

         Plaintiffs filed this action[1] 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by [a] residential student [in] which the endotracheal tube was located well [with]in the right mainstem bronchus and was retracted 2.5 cm with signs of developing atelectasis.”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).

         Plaintiffs 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”)[2] 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. 8-9).

         Blank 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).

         Plaintiffs 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).

         II. STANDARD OF REVIEW

         Pro 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).

         III. DISCUSSION

         A. Medical Malpractice Claims

         Plaintiffs 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 9-1).

         Under 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).

         In 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 ...


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