Gess v. U.S.
| Decision Date | 06 December 1996 |
| Docket Number | Civil Action Nos. 94-D-1199-N to 94-D-1201-N.,Civil Action No. 94-D-0326-N.,Civil Action Nos. 93-D-1391-N to 93-D-1395-N.,Civil Action No. 93-D-0913-N.,Civil Action No. 93-D-1140-N. |
| Citation | 952 F.Supp. 1529 |
| Parties | Barbara GESS, et al., Joseph Givens, et al., Patrick G. Roberts, et al., Teresa Fowler, et al., David Barber, et al., Jay Dehaai, et al., Cheryl Pretiger Toms, et al., Alphonso Barnes, et al., Joseph Warrick, et al., Connie Mullen, et al., Donald Gregory Sharpe, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
George L. Beck, Jr., W. Terry Travis, L. Gilbert Kendrick, Randolph B. Moore, Montgomery, AL, for plaintiffs.
Kenneth E. Vines, Leura J. Garrett, U.S. Attorney's Office, Montgomery, AL, Gail K. Johnson, Heather S. Call, Lawrence A. Klinger, U.S. Dept. of Justice, Washington, DC, for defendant.
DE MENT, District Judge.
Eight years ago, in February of 1988, the first in a series of alarmingly similar "emergencies" arose in the obstetrics ward of the Air University Regional Hospital at Maxwell Air Force Base in Montgomery, Alabama ("Hospital"). A newborn child, seemingly in excellent health, suddenly stops breathing and turns blue. Fortunately, the child survives. Unfortunately however, the medical implications of this episode, which occurred during a critically sensitive developmental period, may be far from fortunate.
Over the next ten months this "emergency" would repeat itself at least eleven times.1 The plaintiffs in this case,2 eleven infants and one adult (Cheryl Pretiger Schoen-Toms), all suddenly and for no medically explainable reason, crashed from good health to the brink of death. In the ensuing effort to provide an explanation for these events, several consistent and telling facts emerged. First, each of these plaintiffs was under the exclusive care of the Hospital when the life threatening events occurred. Second, a certain medical technician, Michael Beckelic ("Beckelic"), was on duty and had some interaction with each of the plaintiffs shortly before the "emergencies" arose. Third, Beckelic always seemed to be the first one on the scene — the one to "discover" and come to the "rescue" of the plaintiffs. Fourth, once the plaintiffs were transferred from the Hospital to nearby Baptist Medical Center ("BMC"), they experienced no more life threatening events. Finally, once Beckelic was removed from the Hospital obstetrics ward, the "emergencies" ended.
Medical experts would later opine that the experiences of the plaintiffs were consistent with the injection of toxic doses of lidocaine or some other similar drug. Unfortunately, newborn babies make poor witnesses; only the adult plaintiff could testify directly about her experience (and her testimony is consistent with the toxic injection theory advanced by the plaintiffs). Nevertheless, the circumstantial evidence in this case obviates the need for the direct testimony of the infant plaintiffs.3
Too similar to be mere coincidence, in November of 1988 the Office of Special Investigation (OSI) for the United States Air Force began to investigate the alarming events at the Hospital. In the course of its investigation OSI contacted several medical experts: Lieutenant Colonel (Dr.) William F. Walsh, Chief of Neonatology, USAF Medical Center, Keesler Air Force Base; Colonel (Dr.) William H. Stigelman, Consultant for Clinical Pharmacy for the United States Air Force, Biomedical Service Corps; M. Gail Murphy, Division of Experimental Therapeutics of WRAIR; Colonel (Dr.) Robert Jones, Hospital Commander, presently Air Surgeon for the National Guard Bureau at Andrews Air Force Base; and Colonel (Dr.) Stanford P. Sadick, an osteopathic surgeon who was, at the time in question, Director of Hospital Services and head of Quality Assurance at the Hospital. OSI relied on these doctors and an independent review of Hospital records to generate a final report ("OSI report") setting out its findings.
Included in the OSI report was a statistical analysis of the events which took place in the Hospital. During 1988, more than six percent of the newborns at the Hospital experienced life threatening events. The pediatric population as a whole experiences life threatening events at the rate of 13/100 of one percent. With respect to Beckelic's role, after determining that Beckelic was the only one on duty when each of these incidents occurred, OSI calculated that the chance of this being mere coincidence was one in ten million. Further, the OSI noted that after Beckelic was removed from the Hospital nursery, all life threatening events stopped.
The compelling OSI report and an independent investigation led the Air Force, in January of 1989, to publicly state: "We believe the symptoms displayed by 13 of the infants were caused either accidentally or intentionally and were not the result of infection or medical procedures employed at the birth of the children."4 The findings in the OSI report reverberated all the way to the Office of the Surgeon General of the Air Force in Washington, D.C. The Surgeon General let it be known that the Air Force would "take care" of these plaintiffs and their families. Astoundingly, not only does the United States of America ("defendant") now contest the claims of these plaintiffs it promised to "take care" of, but the defendant is guilty of directly impeding, through the destruction or redaction of critical evidence, the plaintiffs' ability to establish their claims.5
On July 22, 1993, the first of the plaintiffs filed suit. Subsequent suits were consolidated with the first, and twelve plaintiffs proceeded to trial alleging that the defendant, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2401, et seq., is liable for the injuries the plaintiffs suffered while at the Hospital. The plaintiffs claim they have suffered injuries as the result of being maliciously injected with toxic doses of lidocaine or other similar drugs. The plaintiffs contend that the defendant owed them a duty of care in the hiring and supervision of Beckelic, a duty to promptly and reasonably discover, and act to prevent, foreseeable life-threatening events, and a duty to have in place a properly functioning quality assurance program. The Court has limited its initial assessment to the existence of such a duty, and to whether the duty, if any, has been breached.6 Upon careful consideration of the evidence, the arguments of counsel, and the relevant case law, the Court finds that the defendant has breached its duty of care owed to the plaintiffs.
The Court conducted a non-jury trial from July 8-12, 1996. During the trial, the plaintiffs argued that their injuries were caused by the deliberate "tampering" of Michael Beckelic. The plaintiffs presented evidence in support of three theories of liability: (1) that the defendant was negligent in the hiring and supervision of Beckelic, (2) that the defendant was generally negligent in the operation of the Hospital, and (3) that the Hospital was negligent in failing to prevent foreseeable criminal acts.
The plaintiffs' first step towards proving any of these theories was to establish that Beckelic's tampering caused their injuries, and thus, link the plaintiffs' injuries with the defendant's negligence.7 In support of their contention, the plaintiffs rely heavily on the OSI report,8 which includes the factual findings and opinions of the aforementioned doctors,9 and the deposition testimony of Dr. Richard Colan.10
Upon consideration of all the evidence, the Court finds that each of the plaintiffs have established, by a preponderance of the evidence, that they were injured by the malicious acts of Beckelic. The plaintiffs presented extensive "general" (non-individualized) evidence from which the Court finds that plaintiffs established, prima facie, that their injuries stemmed from non-medical causes.11 To this end, Dr. Colan12 was unequivocal in his opinion that, given the huge statistical improbability that the events at the Hospital resulted from natural causes,13 and given the uniformity of symptoms among the plaintiffs,14 the plaintiffs' injuries resulted from intentional tampering. Pl.'s Ex. 70, Dr. Colan Depo., dated 3/3/94, at 18, 19, 172, 173. Plaintiffs also have put before the Court evidence which is more than sufficient to conclude that, as to each individual plaintiff, Beckelic's intentional acts contributed or caused the plaintiffs to experience life-threatening events while at the Hospital. See infra § II (Plaintiffs).
The defendant asserts that the injuries suffered by the plaintiffs resulted from medically explainable causes. Thus, despite several public statements to the contrary,15 the Government now contends that none of the plaintiffs' injuries are the result of a surreptitious injection of lidocaine or other similar drug. To support its position, the Government offered the testimony of Dr. Robert J. Roberts and Dr. Carter Snead.16 Although the Court initially found that these doctors were qualified as "experts," the Court finds that the testimony of these doctors is not credible. Particularly disturbing to the Court was that both of these doctors based their opinions on limited information17; they did not consider all of the relevant facts surrounding the incidents at the Hospital. In essence the defendant's experts reviewed the plaintiffs' medical records, drew conclusions and formed opinions in a "vacuum."18 These witnesses simply discounted or ignored far too much relevant and available, information for their opinions to carry significant weight with the Court.
Ironically, the one person who could, perhaps, have shed the most light on the events at the Hospital did not testify. The Court has serious questions as to why the defendant failed to call Beckelic as a witness in this case.19...
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