The opinion of the court was delivered by: Herndon, Chief Judge
I. Introduction and Background
Now before the Court is McDaniel's motion for application of Illinois law (Doc. 40). The Government opposes the motion (Doc. 47). Based on the following, the Court grants the motion.
On July 8, 2005, Christine McDaniel, as Administrator of the Estate of John McDaniel, deceased, filed a two-count complaint for medical malpractice against the United States of America pursuant to the Federal Torts Claims Act, 28 U.S.C. § § 1346, 2671-2680 (Doc. 1). On October 15, 2005, McDaniel filed a First Amended Complaint pursuant to the Federal Torts Claim Act for wrongful death against the Government (Doc. 14). The First Amended Complaint states that on March 6, 2004, John McDaniel died as a result of the Government's negligence. Specifically, the First Amended Complaint alleges that John McDaniel was a patient of the VA Medical Center and that he was treated by the VA Medical Center's "agents, servants and employees, including Dr. Joan Gary, for various psychiatric disorders." (Doc. 14, p. 2). Further, the First Amended Complaint alleges that the Government, by and through its agents "negligently and carelessly failed to accurately, properly, and timely diagnose and treat depression and suicidal behavior" and because of the Government's negligence McDaniel died.
On April 4, 2008, the Court held the Final Pretrial Conference in this matter (Doc. 36). Thereafter on April 8, 2008, the Court entered the Final Pretrial Order (Doc. 37). On June 11 and 30, 2008, Plaintiff filed the motion for application of Illinois law and a supplement to that motion (Docs. 40 & 43, respectively). The Government filed its response on July 9, 2008 (Doc. 47) and Plaintiff filed her reply on August 12, 2008 (Doc. 50). Meanwhile, the Court set this matter for bench trial on October 20, 2008 (Doc. 44). As the motion is ripe, the Court turns to address the motion.
The following facts are not in dispute and are taken from the Final Pretrial Order. John McDaniel died by suicide on March 6, 2004, in Illinois.*fn1 He and his girlfriend, Theresa Voss, broke up the day before he committed suicide. He was survived by his mother, two sisters and two brothers.
On February 23, 2004, John McDaniel signed for application of health benefits at the VA Medical Center. He had visited the VA Medical Center on March 2, 2004, in St. Louis, four days before he died. He left the VA Medical Center that same day.
Joan Gary was a nurse practitioner at the VA Medical Center Emergency Room at the pertinent times. Eve Hurley was a registered nurse at the VA Medical Center Emergency Room at the pertinent times.
John McDaniel worked at Gold's Gym in Fairview Heights, Illinois. He started February 23, 2004. He earned $289.90 for that week and the following week. Mr. McDaniel lived with his mother, Christine McDaniel, in Posey, Illinois at the time of his death.
The FTCA provides a remedy for personal injury caused by the negligent or wrongful act of any government employee acting within the scope of his employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place" where the act occurred. 28 U.S.C. § 1346(b)(1); see also Midwest Knitting Mills, Inc. v. United States, 950 F.2d 1295, 1297 (7th Cir. 1991); Stratmeyer v. United States, 67 F.3d 1340, 1345 (7th Cir. 1995).
Here, the parties agree that the Court should apply Missouri's choice of law provisions in determining whether Missouri substantive law or Illinois substantive law applies.*fn2 Further, the parties agree that Missouri follows the "most significant relationship test" set out in Section 145 of the Restatement, Second, on Conflict of Laws. See Goede v. Aerojet General Corp., 143 S.W.3d 14, 24-25 (Mo. App. 2004); Kennedy v. Dixon, 439 S.W.2d 173, 184 (Mo. banc 1969). However, the parties disagree as to the outcome after a choice of law analysis under Missouri law. Thus, the Court ...