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Avalos-Landeros v. United States

United States District Court, N.D. Illinois, Eastern Division

June 20, 2014

KALEB AVALOS-LANDEROS, by his parents and next friends, DIDIER AVALOS and SANDRA LANDEROS, and DIDIER AVALOS and SANDRA LANDEROS, individually, Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants

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For Kaleb Avalos-Landeros, a minor, by his parents and next friends, Didier Avalos and Sandra Landeros, Didier Avalos, as parent and next friend of Kaleb Avalos-Landeros, and Didier Avalos individually, Sandra Landeros, as parent and next friend of Kaleb Avalos-Landeros, and Sandra Landeros individually, Plaintiffs: David John De Jong, Samuel N. De Jong, Sharon Kathleen O'Connell, De Jong Law Group, Ltd., Chicago, IL.

For United States of America, Defendant: Eric S Pruitt, United States Attorney's Office (NDIL), Chicago, IL; John D. Cooke, U.s. Attorneys Office For The Northern District Of Illinois, Chicago, IL; Zachary David Clopton, United States Attorney's Office, Chicago, IL.

For Rocio Abreu, Defendant: Marilee Clausing, LEAD ATTORNEY, Aaron P Ryan, Karie Jane Valentino, Sapna Gopal Lalmalani, Anderson, Rasor & Partners, LLP, Chicago, IL.

For Mount Sinai Hospital Medical Center of Chicago, Defendant: Aaron P Ryan, Karie Jane Valentino, Sapna Gopal Lalmalani, Anderson, Rasor & Partners, LLP, Chicago, IL.

For EPC Healthcare Staffing, Inc., Defendant: Michael J. Hennig, LEAD ATTORNEY, Alex E Campos, Anthony Joseph Longo, Cassiday Schade LLP, Chicago, IL.

For Professional Nursing, Inc., Defendant: Phillip Levatino, LEAD ATTORNEY, Levatino & Levatino, Chicago, IL.

For The Mount Sinai Community Foundation, Defendant: Randall J. Gudmundson, Sherry Ann Mundorff, LEAD ATTORNEYS, Kominiarek, Bresler, Harvick & Gudmundson, LLC, Chicago, IL; Laura Jean Young, Laura Jean Young, Chicago, IL.

For Sodexo, Inc., Sodexo America, LLC, Sodexo Management, Inc., Sodexo Operations, LLC, Sodexo Vending Services, LLC, Heather Vaule, Defendants: John A. Ouska, John William Patton, Jr., LEAD ATTORNEYS, John M Kotleski, Patton & Ryan, LLC, Chicago, IL.

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MATTHEW F. KENNELLY, United States District Judge.

Kaleb Avalos-Landeros, a young child, and his parents have sued multiple defendants for injuries they claim Kaleb sustained during his birth and post-partum care, as well as the prenatal care his mother received. Plaintiffs have brought eighteen claims against a host of defendants for professional negligence, negligence based on a res ipsa loquitur theory, and " specific negligence" (a term the parties use in their briefs) related to a head injury plaintiffs allege Kaleb received during his post-partum care. The following defendants have now moved separately for summary judgment or partial summary judgment: EPC Healthcare Staffing, Inc.; Mount Sinai Community Foundation; Mount Sinai Hospital Medical Center of Chicago; and a group including Sodexo, Inc., Sodexo America, LLC, Sodexo Management, Inc., Sodexo Operations, LLC, Sodexo Vending Services, LLC, and Sodexo's employee Heather Vaule Evans. For the following reasons, the Court grants each motion in part and denies it in part.


Kaleb was born on August 27, 2008 at Mount Sinai Hospital Medical Center of Chicago (the Hospital). After his birth, he was a patient in the Neonatal Intensive Care Unit (NICU) of the Hospital until September 18, when he was discharged from the hospital. After Kaleb was born, several neonatologists who work for the Mount Sinai Community Foundation (the Foundation) provided care and treatment to Kaleb. Records reflect he also received visits from Heather Vaule Evans, a dietician who worked for the Sodexo defendants (Sodexo), on August 29, September 5, and September 12, 2008. Another record indicates that a nurse employee of EPC worked in the Hospital's NICU on August 31, during Kaleb's stay there, although it does not indicate whether the nurse provided care to Kaleb during that time.

Kaleb's condition while in the NICU is disputed by some if not all defendants. Plaintiffs allege that Kaleb experienced a skull fracture during his stay there. On September 5, 2008, Kaleb underwent an MRI exam. Kenneth Ekechukwu, a radiologist (presumably working at the Hospital) who interpreted the exam that day, wrote that Kaleb had a " focal contusion of the left occipital bone with a focal nonpropagated linear fracture." Pls.' Ex. Q at 1. Dr. Ekechukwu further wrote that the contusion " is associated with edema of the left occipital and temporal lobes and multiple intraparenchymal hematomas of the left frontal lobe," adding that the largest hematoma was 9.9 millimeters long. Id. Under the " Impression" section of Dr. Ekechukwu's report, he wrote: " There is a constellation of findings highly suggestive of substantial external impact to the left occiput with direct injury to the left occipital and temporal lobes associated with intra-axial countercoup phenomena of the left frontal lobe and left middle cranial fossa subdural hemorrhage." Id.

Plaintiffs have employed three experts who have opined regarding Kaleb's condition during his stay in the NICU. Each has concluded that Kaleb likely suffered skull and brain injuries, probably or possibly during his NICU stay. One of them, Dr. Patrick Barnes, a pediatric neuroradiologist, opined that Kaleb suffered an external impact on the back of his head, fracturing his skull and causing brain damage,

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at some point between August 29 and September 5, 2012. Upon questioning during his deposition, Dr. Barnes stated that the earliest he would place Kaleb's injury was 2:19 p.m. on August 29, because the external impact to Kaleb's head occurred not more than seven days before his MRI at 2:19 p.m. on September 5.

Dr. Stephen Glass, another expert, opined in a letter " by neuroradiology opinion" that " an external traumatic head and brain injury in the form of a documented left parietal skull fracture" occurred " 1-7 days" prior to the MRI, which took place on September 5. Pls.' Ex. A at 12. During his deposition, Dr. Glass specified what he meant in saying " by neuroradiology opinion" : " The diffusion weighted imaging abnormality I'm comfortable with. The timing as far as the blood related findings, I would want their collaboration and opinion, yes. For the bleeding part alone and the date and timing based on blood, I would turn to their input." Sodexo Ex. C at 119. He also stated that the data from the MRI " tends to weight the occurrence of this bleed closer to the seven--closer to the one day, as opposed to seven days" prior to the MRI. Id. at 120. He continued: " So I think it's closer proximity to when the seizures happened . . . . Closer to the seizure and therefore closer to the MRI, rather than the outside limit of distance from the MR." Id.

A third doctor, William Hay, Jr., also opined in a report that based on the MRI, Kaleb likely sustained a " substantial external impact injury to his head that caused a skull fracture and brain contusion (bruising of the brain), intracranial hemorrhage (bleeding into the brain), and brain injury." Pls.' Ex. I at 1. Dr. Hay stated in his report that " the age of the blood" seen in the MRI " was 1 to 7 days old," which meant the impact to Kaleb's skull " occurred sometime between August 29 and September 4." Id. at 2. He continued,

Because neurological signs most often occur very soon after a traumatic injury with intracranial bleeding, it is more likely that the intracranial hemorrhages seen on the September 5 2008 MRI very closely preceded the clinical signs noted on September 4th, probably within the previous several hours to at most a 24 hour period.


Plaintiffs filed their second amended complaint in July 2012. Of the eighteen counts in the complaint, ten are relevant here. Plaintiffs have brought two claims for intra-partum professional negligence, two claims of res ipsa loquitur, and two specific negligence claims against the Hospital, as well as two res ipsa claims and two specific negligence claims against EPC, the Foundation, and Sodexo collectively. In October 2013, plaintiffs submitted an agreed motion to dismiss four individual defendants--Foundation employees--who plaintiffs alleged were nurses at the Hospital during the period of Kaleb's care there. Defendants filed the summary judgment motions at issue here in January 2014.


Summary judgment is appropriate if " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). When deciding motions for summary judgment, a court must give " the non-moving party the benefit of conflicts in the evidence and any reasonable inferences from the evidence." Shields v. Ill. Dep't of Corr., 746 F.3d 782, 786 (7th Cir. 2014). A court also " must determine whether the evidence, so construed, establishes genuine disputes of material fact with respect to" plaintiffs' claims. Harper v. Fulton Cnty., 748 F.3d 761, 765 (7th Cir. 2014).

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A genuine dispute of material fact " exists only if there is enough evidence upon which a reasonable [finder of fact] could return a verdict in" the non-movant's favor. Swetlik v. Crawford, 738 F.3d 818, 826 (7th Cir. 2013).

In Illinois, a plaintiff asserting a common law negligence claim " must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Choate v. Ind. Harbor Belt R.R. Co., 2012 IL 112948 ¶ 22, 980 N.E.2d 58, 64, 366 Ill.Dec. 258 (2012). The term " duty" means " a relationship between the defendant and the plaintiff such that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the plaintiff." Id. The elements of breach and proximate cause " are factual matters for the [finder of fact] to decide, provided there is a genuine issue of material fact regarding those issues." Marshall v. Burger King Corp., 222 Ill.2d 422, 430, 856 N.E.2d 1048, 1054, 305 Ill.Dec. 897 (2006). Proximate cause " is a question of fact for the [finder of fact] unless there is no material issue regarding the matter or only one conclusion is clearly evident." Williams v. Univ. of Chi. Hosps., 179 Ill.2d 80, 88, 688 N.E.2d 130, 134, 227 Ill.Dec. 793 (1997).

As for negligence claims based on res ipsa loquitur, a plaintiff " must plead and prove that he or she was injured (1) in an occurrence that ordinarily does not happen in the absence of negligence, (2) by an agency or instrumentality within the defendant's exclusive control." Heastie v. Roberts, 226 Ill.2d 515, 531-32, 877 N.E.2d 1064, 1076, 315 Ill.Dec. 735 (2007). On the second element, the phrase " exclusive control" is " interchangeable" with the term " management and control" ; " the requisite control is not a rigid standard, but a flexible one in which the key question is whether the probable cause of the plaintiff's injury was one which the defendant was under a duty to the plaintiff to anticipate or guard against." Id. Whether the res ipsa doctrine applies in a given case is " a question of law," meaning it " must be decided in the first instance by the trial court." Id.

Further, on a motion for summary judgment against res ipsa claims, the plaintiff " only ha[s] to present enough evidence to raise an issue of fact as to whether [defendant] had control over the instrumentality which caused [plaintiff's] injuries." Gatlin v. Ruder, 137 Ill.2d 284, 298, 560 N.E.2d 586, 592, 148 Ill.Dec. 188 (1990). The plaintiff need not " eliminate all other possible causes of his injuries" ; rather, " [t]he [finder of fact] must determine who proximately caused" them. Id. at 298, 560 N.E.2d at 592. " If the defendant controverts the plaintiff's evidence that the injury ordinarily does not happen in the absence of negligence, that dispute does not provide grounds for taking the issue away from the [finder of fact]." Adams v. Family Planning Assocs. Med. Grp., Inc., 315 Ill.App.3d 533, 546, 733 N.E.2d 766, 776, 248 Ill.Dec. 91 (2000). Rather, " [f]actual disputes presenting ...

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