Deen v. Egleston, Civil Action No. CV208-037.

• Citation: 601 F.Supp.2d 1331
• Decision Date: 13 February 2009
• Docket Number: Civil Action No. CV208-037.
• Parties: Pat DEEN, in her capacity as Conservator for Kenneth Deen, an incapacitated adult, and Linda Deen, individually, Plaintiffs, v. Shannon EGLESTON, D.M.D., Defendant.
• Court: U.S. District Court — Southern District of Georgia

601 F.Supp.2d 1331

Pat DEEN, in her capacity as Conservator for Kenneth Deen, an incapacitated adult, and Linda Deen, individually, Plaintiffs, v. Shannon EGLESTON, D.M.D., Defendant.

Civil Action No. CV208-037.

United States District Court, S.D. Georgia, Brunswick Division.

February 13, 2009.

Brent J. Savage, William H. Pinson, Jr., C. Dorian Britt, Stanley M. Karsman, Savage & Turner, PC, Savannah, GA, for Plaintiffs.

Morton G. Forbes, Scot V. Pool, Forbes, Foster & Pool, Savannah, GA, for Defendant.

ORDER

ANTHONY A. ALAIMO, District Judge.

Plaintiffs, Pat Deen, in her capacity as Conservator for Kenneth Deen, an incapacitated adult, and Linda Deen, individually, filed the above-captioned case against Dr. Shannon Egleston, D.M.D., alleging claims for (1) medical malpractice, (2) negligence per se, (3) simple negligence, (4) constructive fraud, and (5) loss of consortium.

Presently before the Court is Egleston's motion for summary judgment. Because the evidence is insufficient to support any claim against Egleston for constructive fraud, and because the claims asserted for simple negligence and negligence per se are actually claims for medical malpractice, the motion will be GRANTED in part. Because Georgia Code section 9-3-73 is unconstitutional as applied to Kenneth Deen, the motion will be DENIED in part.

BACKGROUND

Viewing the facts in the light most favorable to the Deens, as the Court must on a summary judgment motion, the facts are as follows. This action was instituted by Linda Deen, as next friend of her husband, Kenneth Deen. Linda Deen was later appointed as her husband's conservator. On December 1, 2008, by order of the Glynn County Probate Court, Kenneth Deen's mother, Patricia Deen, was appointed as her son's successor conservator. Dkt. No. 60, Ex. A.

On July 18, 2005, Mr. Deen sought treatment at the dental office of Dr. Tami Kidney, D.D.S., doing business as "Gentle Dental," in Brunswick, Georgia. At the office, Dr. Shannon Egleston evaluated Mr. Deen, who complained of a toothache. Previously, Deen had a root canal on tooth nine, and, in July 2005, the surgical site had become infected. Deen's gums had swollen near the tooth and pus was draining into his mouth.

Egleston believed that the tooth could be saved, and recommended that Deen have a new bridge to address the problem after taking care of the infection. Egleston referred Deen to Dr. Randolph Stevens, an endodontist on St. Simons Island, Georgia, to get his opinion regarding treatment of tooth number nine. Egleston made the referral appointment for Deen for the next day, July 19, 2005.

Deen saw Dr. Stevens, and Stevens has testified that he called Gentle Dental after his consultation with Deen. Stevens noted Deen's dental problems and has stated that he advised Dr. Kidney's office of his proposed treatment plan. Stevens noted that Deen had an infection in and around tooth number nine. Dkt. No. 72, Ex. 4, Stevens Dep. 37 & 39. The results of this consultation were not recorded in Deen's patient records at Gentle Dental.

On August 4, 2005, Deen was treated at the offices of Gentle Dental, where Trina Dorsey, a dental hygienist, performed a full mouth debridement. A full mouth debridement is a cleaning where there is excessive tartar buildup on the teeth. According to Dorsey, such a procedure is (mostly) above the gum line,¹ on the surface of the teeth, and does not require the use of anesthesia. The procedure is more invasive and time consuming than a regular cleaning, and is usually necessitated in cases where the patient has not been to the dentist recently. Dkt. No. 72, Ex. 6, Dorsey Dep. 38-40 & 51; Dkt. No. 72, Ex. 7, Kidney Dep. 12-13.

Subsequently, Deen began to exhibit troubling symptoms. After August 14 2005, Deen experienced painful headaches and he and his wife called his back surgeon, Dr. John Shutack. On August 18, 2005, around 11:00 p.m., Deen went to the hospital in Brunswick. Deen was experiencing significant swelling of the brain, and one of his eyes bulged out of its socket. Deen did not have a CT scan at that time, but he incorrectly told the doctor on duty that he had a CT scan previously. Deen was released around two in the morning on the following day, August 19, 2005.

Later that day, Deen had a CT scan of his brain and sinus at the hospital in Brunswick, which revealed that Deen had suffered a hematoma, edema, and brain hemorrhaging. Deen's complaints were not recognized as being related to his tooth infection. Deen went home after the CT scan and awaited results from the test.

Linda Deen found her husband later that day, unresponsive at their home, and called the ambulance to transport him back to the hospital, where he was admitted. Another CT scan followed, which revealed increased edema, possible encephalitis, and a subdural empyema, which is a life-threatening brain infection. Due to the subdural empyema, Deen was disabled and rendered incompetent to handle his own affairs. Deen remained hospitalized until December 8, 2005. After release from the hospital, Deen has resided in nursing homes in and around Brunswick.²

Before the Deens filed the complaint, Egleston moved to Florida, and the Deens brought this action under the Court's diversity jurisdiction. The Court notes that Plaintiff's first amended complaint contains a curious statement relating to the amount in controversy. The complaint reports that Deen sustained injuries "in excess of" $10,000. Dkt. No. 47, ¶ 56.

The amount in controversy requirement for diversity cases was raised from $10,000 to $50,000 in 1989, and was increased again in 1996 to the current statutory amount of $75,000. 14B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3701 (3d ed. 1998). "[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith." St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 82 L.Ed. 845 (1938).

Dismissal for pleading an inadequate amount in controversy for diversity jurisdiction under 28 U.S.C. 1332 is inappropriate unless it appears to the Court to a legal certainty that the plaintiff's claim is actually for less than the statutory amount. Id. at 289, 58 S.Ct. 586. Plaintiffs have asserted a claim for more than $10,000; the sum they seek is not necessarily less than $75,000. Based on the evidence related to Plaintiff's incapacity and medical bills since August 19, 2005, it appears that substantially more than $75,000 is at stake in this litigation. Therefore, the Court has subject matter jurisdiction, and the case is not due to be dismissed based on the pleading relating to the amount in controversy.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(c) provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and must draw "all justifiable inferences in his favor[,]" United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal quotation marks omitted).

DISCUSSION

I. Motion to Strike

Egleston objects to the Deens' use of deposition testimony, taken in other medical malpractice cases against other providers involved in Kenneth Deen's care, which are or were pending before the Georgia state courts. Egleston was not present at said depositions, and could not cross-examine the witnesses, but Federal Rule of Civil Procedure 32 does not preclude the Court's consideration of this evidence on summary judgment. As Plaintiffs explain, they are relying on these depositions as "affidavits" at this stage of the proceedings.

Affidavits are admissible at the summary judgment stage, even though the affiants are not subject to impeachment. As with affidavits, the deponents were under oath and testified about matters on which they had personal knowledge. As such, the depositions may be considered.' RSBI Aerospace v. Affiliated FM Ins. Co., 49 F.3d 399, 403 (8th Cir.1995); Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir.1981); see also Tingey v. Radionics, 193 Fed.Appx. 747, 765-66 (10th Cir.2006); Kelley v. Price-Macemon, Inc., 992 F.2d 1408, 1415 n. 12 (5th Cir.1993); Langston v. Johnson, 478 F.2d 915, 918 (D.C.Cir.1973); Askew v. Bloemker, 548 F.2d 673, 679 (7th Cir.1976); Beiswenger Enters. Corp. v. Carletta, 46 F.Supp.2d 1297, 1299 (M.D.Fla.1999).

The Southern District of Georgia case relied on by Defendant, Sires v. Luke, 544 F.Supp. 1155 (1982), is not to the contrary. In Sires, Judge Dudley H. Bowen, Jr., recognized that affidavits were admissible on summary judgment, and paraphrased the familiar rule that statements must be based on personal knowledge to be considered as evidence. Id. at 1158 & 1160.

The material that is submitted in support of a summary judgment motion is not necessarily itself admissible at trial, but must set forth evidence that would be admissible if presented in appropriate form at trial. In other words, "the evidence need not be admissible in form (for example, affidavits are not normally admissible at trial), but it must be admissible in content."

Sphere Drake Ins., Ltd. v. All Am. Life Ins. Co., 300 F.Supp.2d 606, 614 (N.D.Ill. 2003) (quoting Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir.2002)).

The Court will consider the depositions...