As A Pers. Representative Of The Estate Of Bruce Ward v. Walker

725 F.Supp.2d 506

Alma Faye WARD, Individually and as a Personal Representative of the Estate of Bruce Ward, Plaintiff,

v.David T. WALKER, M.D., et al., Defendants.

Civil Action No. RDB 09-3256.

United States District Court,D. Maryland.

July 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Paul D. Bekman, Wendy L. Shiff, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, for Plaintiff.

Craig B. Merkle, Thomas G. Coale, Goodell Devries Leech and Dann LLP, Baltimore, MD, for David T. Walker M.D., Mid-Atlantic Surgical Group, P.A.

John R. Penhallegon, Cornblatt Bennett Penhallegon and Roberson PA, Towson, MD, for Peninsula Regional Medical Center.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

This medical malpractice action arises out of Plaintiff Alma Faye Ward's complaint against Defendants Dr. David T. Walker, Mid-Atlantic Surgical Group, P.A., and Peninsula Regional Medical Center. Alma Ward asserts two claims against the Defendants: a wrongful death action as the personal representative of the estate of her deceased husband, Bruce Ward, and a survival action for the pain and suffering Bruce Ward experienced before his death. Currently pending before this court are Motions to Dismiss filed by Defendants Dr. Walker and Mid-Atlantic (Paper No. 4) and Defendant Peninsula Regional Medical Center (Paper No. 7). The parties have fully briefed the issues involved and presented oral argument at a hearing on July 23, 2010, scheduled by this Court pursuant to Local Rule 105.6 (D.Md.2010). For the reasons stated below, the Defendants' Motions to Dismiss are GRANTED.

BACKGROUND

Plaintiff Alma Faye Ward (“Plaintiff,” “Mrs. Ward” or “Alma Ward”) brings this action on behalf of her husband, Bruce Ward (“Mr. Ward” or “Bruce Ward”), as the personal representative of his estate and his surviving spouse. Mrs. Ward alleges that David T. Walker, M.D. (“Dr. Walker”), Mid-Atlantic Surgical Group, P.A. (“Mid-Atlantic”), and Peninsula Regional Medical Center (“PRMC”) (collectively, “Defendants”) committed medical malpractice in the treatment and subsequent death of her husband.

On October 19, 2006, Dr. Walker, a surgeon and agent of Mid-Atlantic, performed a surgery called “laparoscopic ventral hernia repair” on Bruce Ward at PRMC. Compl. ¶ 7. Though Mr. Ward was scheduled to stay at PRMC for a total of twenty-three hours, he suffered “significant abdominal pain.” Id. at 8-9. As a result, Dr. Walker arranged for Mr. Ward to be admitted as an inpatient to PRMC on October 20, 2006. Id. at 9. Mr. Ward's health deteriorated from the time he was admitted to PRMC through the morning of October 22. He experienced increasing pain and nausea, developed a fever from atelactasis, suffered from decreasing oxygen saturation, and was unable to void. Id. at 9-11. Mr. Ward's abdomen also became distended and he maintained unusually low blood pressure. Id. at 9, 11.

On the morning of October 22, Dr. Walker performed an exploratory laparotomy on Mr. Ward and found that his bowel was perforated and that his abdomen contained grossly contaminated enteric contents. Id. at 14. He was suffering from septic shock caused by bowel perforation, and was comatose for more than a week after the exploratory laparotomy. Id. at 14-15. Mr. Ward remained at PRMC undergoing treatment for his infected abdomen until he was discharged in May of 2007. Id. at 17. After his discharge, Mr. Ward continued to require constant medical attention because of an open wound on his body and multiple bowel fistulas, which developed while he was hospitalized at PRMC. Id. at 17-18. He had surgery at the University of Maryland to repair his bowel fistulas on August 28, 2007. Id. at 18. However, his condition persisted, and on February 19, 2008 Bruce Ward died of multiple organ failure due to sepsis. Id.

Plaintiff Alma Ward brings suit against Defendants alleging that they failed to timely diagnose and treat Bruce Ward's bowel perforation and ensuing sepsis. Although the Complaint does not allege any information showing why federal jurisdiction is proper, Plaintiff appears to file suit under federal diversity jurisdiction because she is a Florida citizen. Compl. ¶ 6. Count I of Plaintiff's Complaint is a wrongful death action for Plaintiff's emotional pain and suffering and pecuniary loss resulting from her husband's death. Count II is a survival action for the damages Bruce Ward suffered while he was living, as well as his funeral and medical expenses.

Plaintiff filed her Complaint on December 8, 2009. On January 27, 2010, Defendants Mid-Atlantic and Dr. Walker filed their Motion to Dismiss (Paper No. 4), asking this Court to dismiss Mrs. Ward's complaint for lack of subject matter jurisdiction and failure to join all necessary parties. On February 18, 2010, Defendant PRMC filed its Motion to Dismiss (Paper No. 7), asserting these same grounds for dismissal. On February 24, 2010, Plaintiff filed her Opposition to Defendants' Motion to Dismiss (Paper No. 8). Defendants filed their Reply (Paper No. 10) on March 9, 2010. A hearing was held on the pending motions on July 23, 2010.

STANDARD OF REVIEW

Federal diversity jurisdiction requires complete diversity of citizenship between the plaintiffs and defendants. 28 U.S.C. § 1332(a). For the purposes of a wrongful death action, “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same State as the decedent.” 28 U.S.C. § 1332(c)(2). In determining citizenship, a person is a citizen of the state in which he is domiciled, meaning the state he considers his permanent home. See, e.g., Gilbert v. David, 235 U.S. 561, 569, 35 S.Ct. 164, 59 L.Ed. 360 (1914). There are two elements that must be shown when a plaintiff alleges establishment of a new domicile: (1) residence in the new domicile, and (2) an intention to remain there. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). After a change of residence, the old domicile continues until there is “an intent to create a new home.” Hakkila v. Consolidated Edison Co., 745 F.Supp. 988, 990 (S.D.N.Y.1990).

When a defendant moves to dismiss a complaint for failure to join a party pursuant to Federal Rule of Civil Procedure 12(b)(7), a court conducts a two-step inquiry for applying Rule 19 of the FRCP, which governs joinder of parties. See Owens-Illinois, Inc. v. Meade, 186 F.3d 435, 440 (4th Cir.1999). First, a court determines whether a party is necessary to the action. Id. Under Rule 19(a), a party is necessary if “in that person's absence, the court cannot accord complete relief among existing parties.” Fed. R. Civ. Pro. 19(a). If the party is necessary but his inclusion in the action would destroy diversity, then the court proceeds to the second part of the inquiry, which requires the court to decide if the party is indispensable under Rule 19(b). Owens-Illinois, 186 F.3d at 440. The court considers four factors: (1) the extent a judgment rendered would be prejudicial to the absent or existing parties; (2) whether relief can be shaped to lessen or avoid any prejudice; (3) whether a judgment will be adequate; and (4) whether the plaintiff will have an adequate remedy if the action is dismissed. Fed. R. Civ. Pro. 19(b). If the party is indispensable, meaning the action cannot proceed in that party's absence, then the case must be dismissed. Owens-Illinois, 186 F.3d at 440.

ANALYSIS

Defendants Dr. Walker, Mid-Atlantic, and PRMC have moved to dismiss Alma Ward's claims on two bases. First, they argue that the complaint lacks diversity jurisdiction because Alma Ward is a citizen of Maryland in her representative capacity for her husband. Second, they contend that Bruce Ward's daughter, Tammy Ward Kilgore (“Kilgore”), is an indispensable party under Federal Rule of Civil Procedure 19. Kilgore is a Maryland resident; thus if she joins this action, she destroys the claim's federal diversity jurisdiction. Mrs. Ward concedes, however, that Kilgore has agreed to waive her rights as a wrongful death beneficiary so that she can proceed with this action in federal court.

I. Federal Diversity Jurisdiction

Defendants contend that Bruce Ward was domiciled in Maryland, making Alma Ward a Maryland citizen in her representative capacity for her husband's estate. Defendants proffer evidence of Bruce Ward's Maryland driver's license, hospital records from PRMC listing his Maryland address, and his obituary noting Maryland as his residence. See Defs.' Mot. to Dismiss Ex. A, B, D. However, Plaintiff argues that Bruce Ward was domiciled in Florida and substantiates this claim with the following evidence: his Florida driver's license, Florida identification card, and a Florida bank card, as well as letters of administration opening Mr. Ward's estate in Florida and his estate tax returns filed in Florida. See Pl.'s Opp'n Ex. A, B, C. Plaintiff also asserted at the motions hearing on July 23, 2010 that prior to his surgery at PRMC Mr. Ward lived more than six months of the year in Florida. ¹ Since the record shows that Mr. Ward maintained a residence in Florida, obtained a Florida driver's license, and paid taxes in Florida and not in Maryland, this Court determines that his estate is in Florida. See, e.g., Dyer v. Robinson, 853 F.Supp. 169, 172 (D.Md.1994). Thus Alma Ward, as the representative of her husband's estate, is a Florida resident.

II. Failure to Join a Necessary Party

Alma Ward seeks damages under Maryland's Wrongful Death Act (the “Act” or the “Wrongful Death Act”), Md.Code Ann., Cts. & Jud. Proc. § 3-901 et seq. , which serves to benefit the wife, husband, parent and child of a decedent. The Act is read in conjunction with Maryland Rule 15-1001, which applies to any action for damages for wrongful death. Huber v. Balt. & Ohio R.R., 241 F.Supp. 646 (D.Md.1965). Maryland Rule 15-1001 instructs that “all persons who are or may be entitled by law to damages by reason of the wrongful...