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Elizabeth Awalt, As Administrator of the Estate of Robert Awalt v. Terry Marketti

April 9, 2012

ELIZABETH AWALT, AS ADMINISTRATOR OF THE ESTATE OF ROBERT AWALT, PLAINTIFF,
v.
TERRY MARKETTI, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SHERIFF OF GRUNDY COUNTY; COUNTY OF GRUNDY; DUANE MCCOMAS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SUPERINTENDENT OF GRUNDY COUNTY JAIL; CORRECTIONAL OFFICERS, MELONEY VAN CLEAVE, PATRICK SELOCK, MATTHEW WALKER, ROBERT MATTESON, DAVID OBROCHTA AND UNKNOWN EMPLOYEES OF GRUNDY COUNTY JAIL; CORRECTIONAL HEALTHCARE COMPANIES, INC.; HEALTH PROFESSIONALS, LTD.; HEALTH PROFESSIONALS, LTD. EMPLOYEES DR. STEPHEN CULLINAN, M. CLAUSON, R.N., AND UNKNOWN EMPLOYEES OF CORRECTIONAL HEALTHCARE COMPANIES, INC. AND HEALTH PROFESSIONALS, LTD. DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Elizabeth Awalt sued Grundy County, its Sheriff, and employees of the Grundy County Jail (collectively "Grundy County Defendants"). She also sued Correctional Healthcare Companies, Inc. ("CHC") and Health Professionals, Ltd. ("HPL"), two companies that provide medical services to the Grundy County Jail, and their employees, including Dr. Stephen Cullinan and Nurse Marjorie Clauson (collectively "Defendant Medical Care Providers"). Mrs. Awalt's claims arise out of the death of her husband, Robert Awalt, who died while in the custody of the Grundy County Jail. Mrs. Awalt alleges that the Defendants violated her husband's federal constitutional rights and asserts claims under 42 U.S.C. § 1983 for denial of medical care (Count I); conspiracy (Count II); and failure to intervene (Count III). Mrs. Awalt also alleges supplemental state-law claims, including a survival action for intentional infliction of emotional distress pursuant to the Illinois Survival Act, 755 ILCS 5/27-6(Count IV); a wrongful death action based on an intentional battery to Mr. Awalt pursuant to the Illinois Wrongful Death Act, 740 ILCS 180/1 et seq., (Count V); a wrongful death action based on the Defendants' negligent or willful and wanton conduct towards Mr. Awalt pursuant to the Illinois Wrongful Death Act (Count VII); a survival action based on the Defendants's negligent or willful and wanton conduct towards Mr. Awalt pursuant to the Illinois Survival Act (Count VIII); a claim for respondeat superior against CHC and HPL (Count IX); a claim for respondeat superior against the Sheriff (Count X); and a claim for indemnification (Count XI).

The Grundy County Defendants answered Mrs. Awalt's Complaint and the Defendant Medical Care Providers filed three Motions to Dismiss; one by Dr. Cullinan, one by Nurse Clauson, and one by CHC and HPL. The Defendants ask the Court to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 8, 10, 12(b)(6), 12(f), and Illinois Code of Civil Procedure Section 2-622. CHC and HPL also ask the Court to bifurcate and stay the Monell claims arising out of the Complaint.

I. Background

In deciding the instant Motions, the Court assumes the veracity of the well-pled allegations in Mrs. Awalt's Complaint and construes all reasonable inferences in her favor. See Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007), citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). On September 15, 2010, Mr. Awalt was arrested and detained at the Grundy County Jail. Mr. Awalt was an epileptic, and he controlled his seizures with the prescription drugs Dilantin and Topamax. Mr. Awalt did not have his medication with him at the time he was booked and jailed. The Defendants were repeatedly warned by both Mr. and Mrs. Awalt about Mr. Awalt's medical condition and informed that he required monitoring and medication. The Defendants recorded the drugs that Mr. Awalt required on his intake forms and in medical evaluations, and they observed his physical symptoms. Mrs. Awalt alleges that all of this clerical work made Mr. Awalt's serious medical condition apparent to the Defendants. Despite all of this information, none of the Defendants provided Mr. Awalt with medicine or other needed medical attention. On September 19, 2010, Mr. Awalt called for help from his cell, telling the Defendants that he needed medicine. Inmates in nearby cells also called out for help, asking the Defendants to provide medical attention to Mr. Awalt. Mrs. Awalt alleges that the Defendants heard all of these calls for help but did nothing. Mr. Awalt was found pulseless in his cell and taken to Morris Hospital. He was pronounced brain dead on September 20, 2010.

II. Standard of Review

When considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the non-moving party. See Killingsworth v. HSBC Bank, 507 F.3d 614, 618 (7th Cir. 2007), citing Savory v. Lyons, 469 F.3d 667, 670 (7th Cir. 2006). To properly state a valid claim, the 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). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true ... 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To determine whether a complaint meets this standard the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 556 U.S. at 678. If the factual allegations are well-pleaded, the Court assumes their veracity and then proceeds to determine whether they plausibly give rise to an entitlement to relief. Id at 679. A claim has facial plausibility when its factual content allows the Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See id. at 678.

III. Discussion

A. Motions to Dismiss

In their Motion to Dismiss, the Defendants argue that: (1) Section 2-622 of the Illinois Code of Civil Procedure bars Mrs. Awalt's state-law claims; (2) Counts VII and VIII assert a claim for "willful or wanton conduct" which is a tort theory that does not exist under Illinois law; (3) Section 2-1115 of the Illinois Code of Civil Procedure bars recovery for punitive damages on Mrs. Awalt's state-law claims; (4) either Count I or III should be stricken because they are redundant; and (5) the Complaint does not satisfy the federal pleading requirements of Rule 8 as interpreted by the Supreme Court in Twombly and Iqbal.

I. Section 2-622 of the Illinois Code of Civil Procedure

Defendants challenge Counts IV through IX by asserting that Mrs. Awalt failed to file the requisite affidavit pursuant to Section 2-622 of the Illinois Code of Civil Procedure, 735 ILCS 5/2-622. Section 2-622 is a "procedural pleading requirement" that requires any plaintiff bringing a medical malpractice suit to attach to the complaint an affidavit stating that the plaintiff has consulted with a healthcare professional who opines that the plaintiff has a reasonable and meritorious cause to file the claim. See Espedido v. St. Joseph Hosp., Inc., 526 N.E.2d 664, 670 (Ill. App. Ct. 1988).

In determining whether this is fatal to her claim, the Court addresses whether this is a substantive or procedural law first. Under the Erie doctrine, federal courts sitting in a case in which state law supplies the rule of decision apply the appropriate state's 'substantive' law but follow federal 'procedural' law. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938); accord Gasperini v. Center for Humanities, 518 U.S. 415, 427 (1996). The Seventh Circuit has implicitly held that Section 2-622 applies to state-law claims brought in federal court by holding that it was an abuse of discretion to dismiss a complaint which did not have the affidavit rather than allowing the plaintiff an opportunity to amend that complaint. See Lingle 223 F.3d 605, 613 (7th Cir. 2000).

The majority of district courts to address the issue post-Lingle have also assumed that the statute provides a substantive rule of law and therefore that it applies to state-law claims brought in federal court. See, e.g., Maldonado v. Sinai Medical Group, Inc., No. 06 C 4149, 2008 WL 161671, at *4 n.5 (N.D. Ill. Jan. 16, 2008), citing Chapman v. Chandra, No. 06 C 0651, 2007 WL 1655799, at *3 (S.D. Ill. June 5, 2007) (collecting cases). One district court has rejected the notion that Section 2-622 is a substantive law and held that as a procedural pleading rule it is not applicable to state-law claims in federal court. See, e.g., Obermeyer v. Pedicini,No. 99 C 2440, 2000 WL 290444, at *4 (N.D. Ill. March 17, 2000).

It is not necessary to resolve the dispute, however, since Awalt has not alleged any state-law claims of medical malpractice against any of the Defendants. Without a single state-law claim of medical malpractice, Section 2-622 has no application to the instant case. Section 2-622 applies exclusively to claims for medical malpractice. See Eads v. Heritage Enterprises, Inc., 787 N.E.2d 771, 775 (Ill. 2003) (Section 2-622 "does not apply to all civil actions. By its terms, it is applicable only to actions...in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice") (internal citations and quotations omitted). Both Illinois courts and federal courts interpreting Illinois law have repeatedly held that Section 2-622 applies to claims for medical malpractice only. See id.; see also Ayon v. Balanoff, 721 N.E.2d 719, 722 (Ill. App. Ct. 1999) (holding that the statute does not extend beyond claims for medical malpractice); Gragg v. Calandra, 696 N.E.2d 1282, 1286 (Ill. App. Ct. 1998) (holding that Section 2-622 does not apply to intentional torts); see, e.g., Lindgren v. Moore, 907 F.Supp. 1183, 1193 (N.D. Ill. 1995) (only claims for medical malpractice are covered by Section 2-622); Doe v. City of Chicago, 883 F.Supp. 1126, 1134 (N.D. Ill. 1994) (holding that Section 2-622 does not apply to claims brought pursuant to Illinois statutes or to claims for intentional infliction of emotional distress); Glade ex rel. Lundskow v. United States, No. 10 C 3942, 2011 WL 6716698, at *3 (N.D. Ill. Dec. 23, 2011) (holding that Section 2-622 applies only to medical malpractice cases and does not apply to claims for negligence); Fox v. Ghosh, No. 09 C 5453, 2010 WL 345899, at *3 (N.D. Ill. Jan. 26, 2010) (holding that Section 2-622 does not apply to claims for intentional infliction of emotional distress); Barrios v. Sherman Hosp., No. 06 C 2853, 2006 WL 3754922, at *2 (N.D. Ill. Dec. 15, 2006) (same).

In her Complaint, Awalt does not allege a claim for medical malpractice. Counts IV, V, and VI all allege intentional conduct on the part of the Defendants. Section 2-622 has no application to claims for intentional torts and thus no affidavit of merit is required to assert these claims. See, e.g., Gragg, 696 N.E.2d 1282 at 1286; Cohen v. Smith, 648 N.E.2d 329, 334-336 (Ill. App. Ct. 1995) (holding Section 2-622 inapplicable to claims for battery and intentional infliction of emotional distress asserted against a healthcare provider). Counts VII and VIII assert claims for negligence or willful and wanton conduct, but this does not make them claims for medical malpractice. Malpractice claims are not synonymous with claims for ordinary negligence. See Woodard v. Krans, 600 N.E. 2d 477, 486 (Ill. App. Ct. 1992) ("Where to draw the line between medical malpractice and common-law negligence is" a question of law to be determined from the pleading; "negligence suits, essentially common-law in character, that happen to be directed against health care providers" are not medical malpractice suits); Roe v. Catholic Charities of the Diocese, 588 N.E.2d 354, 359 (Ill. App. Ct.1992) ("Professional malpractice is a species of negligence, not fraud. However, not every tort committed by a ...


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