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Dux v. United States

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

September 24, 2014

SHANNON DUX, Special Administrator of the Estate of JOHN DUX, deceased, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant

Page 782

For Shannon Dux, Special Administrator of the, estate of John Scott Dux, Plaintiff: Jon C. Papin, Michael Paul Cogan, Cogan & Power, P.C., Chicago, IL.

For United States of America, Defendant: Jonathan C. Haile, LEAD ATTORNEY, AUSA, United States Attorney's Office (NDIL), Chicago, IL.

Page 783

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, United States District Judge.

In December 2009, doctors at the Edward Hines, Jr. Veterans Administration in Maywood, Illinois, told John Dux that tissue from Dux's prostate tested positive for cancer. On the advice of his doctors, Dux underwent a surgical procedure known as a radical prostatectomy. During the months following the surgery, Dux suffered from incontinence, sexual dysfunction, and depression. In February 2010, the VA doctors told Dux that they were wrong--they had mistakenly switched the tissue from Dux's biopsy with that of another patient, and in fact, Dux's biopsy was negative. Nevertheless, the side-effects of Dux's surgery persisted, his depression worsened, and on September 24, 2010, Dux committed suicide by shooting himself in the head.

Page 784

Plaintiff Shannon Dux now brings this suit on behalf of her father's estate against the United States under the Federal Tort Claims Act, 28 U.S.C. § § 1346(b), 2671-80. Count I is a survival action seeking damages for the pain and suffering John Dux experienced while he was alive. Count II is a wrongful death action seeking damages to compensate Shannon Dux for the loss of her father.

Three issues are presently before the court. First, plaintiff moves for partial summary judgment on the issue of whether the government breached the standard of care in misdiagnosing Dux and advising him to undergo an unnecessary procedure. Second, both parties move for partial summary judgment on the issue of whether the government's breach proximately caused Dux's death. Third, plaintiff moves to exclude the testimony of one of the government's expert witnesses, Dr. Kevin McVary. For the reasons explained below, plaintiff's motion for partial summary judgment on the issue of breach is granted. The government's motion for partial summary judgment on the issue of proximate cause is granted, and plaintiff's motion is denied. Finally, plaintiff's motion to exclude Dr. McVary is denied.

I. Background

John Dux was a military veteran who served in the Vietnam War. It is undisputed that Dux suffered from severe mental health problems throughout his life. Plaintiff's expert, a psychiatrist named Dr. Eric Caine, described Dux as " a guy who was damaged early," having been sexually abused as a child and having suffered from post-traumatic stress disorder after serving in Vietnam. (Caine Dep. 43:23-25, ECF No. 35-8.) Dr. Caine noted that Dux suffered from " major depressive episodes, . . . intermittent heavy alcohol use, hypertension, hyperlipidemia, diabetes, and coronary artery disease." (Caine Report at 1, ECF No. 35-13.) At the VA, Dux had reported " recurring suicidal ideas and plans, insomnia, angry episodes, and recurring troubles with interpersonal relationships . . . ." ( Id.)

Before 2010, Dux had considered suicide a number of times. When Dux was in his thirties, Dux's wife interrupted him while he was " trying to connect a hose to a car." (Caine Dep. 54:4-7.) In his forties, Dux considered shooting himself with a firearm. ( Id. at 54:8-12.) He considered suicide again in 2007 after a breakup with his then girlfriend. As Dr. Caine put it, " We certainly know that he had repeated suicidal thinking." ( Id. at 54:21-22.)

Although Dr. Caine testified that " it's very evident that suicidal thinking [was] part of his psychological repertoire" and that Dux " maintained suicide as an option for his end," Dr. Caine also testified that from 2006 to 2009, Dux " never really moved into the point of threat." ( Id. at 55:11.) Before his cancer diagnosis in December 2009, Dux was, according to Dr. Caine, " stably unstable." (Caine Report at 3.) He " maintained pleasurable activities and valued relationships, and a sense of himself as a valued service volunteer, which together provided protective and sustaining factors--that is, reasons for living." ( Id.) Dr. Caine described Dux as a man who, based on the descriptions of his girlfriend, " could be smiling, always having, as she called it, a big grin, who she called cuddly, who was a VA volunteer and was active in the VFW, and could really be pretty socially interactive." (Caine Dep. 41:13-19.)

On July 14, 2009, Dux presented at the VA with elevated " prostate-specific antigen levels (PSA)," a sign that he may have had prostate cancer. Due to the elevated PSA levels, Dux underwent a biopsy performed by doctors at the VA in ...


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