Palmer v. Shawnee Mission Med. Ctr., Inc.

• Decision Date: 08 November 2018
• Docket Number: Case No. 16-2750-DDC-GLR
• Citation: 355 F.Supp.3d 1003
• Parties: Teresa Mary PALMER, et al., Plaintiffs, v. SHAWNEE MISSION MEDICAL CENTER, INC. and Mid America Physician Services, LLC, Defendants.
• Court: U.S. District Court — District of Kansas

355 F.Supp.3d 1003

Teresa Mary PALMER, et al., Plaintiffs,

v.SHAWNEE MISSION MEDICAL CENTER, INC. and Mid America Physician Services, LLC, Defendants.

Case No. 16-2750-DDC-GLR

United States District Court, D. Kansas.

Signed November 8, 2018

Gary D. Grider, Leawood, KS, pro se.

Teresa Mary Palmer, Leawood, KS, pro se.

Teresa Marita Palmer, Osburn, ID, pro se.

James William Palmer, Osburn, ID, pro se.

Bruce Keplinger, Christopher J. Lucas, Norris & Keplinger, LLC, Overland Park, KS, Christopher Hurst Logan, David M. Tyrrell, Jeff K. Brown, Merritt Bradley Watson, Scott Kremer Logan, Logan Logan & Watson, LC, Prairie Village, KS, for Defendants.

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

On November 5, 2014, plaintiff Teresa Mary Palmer gave birth to a son. Several hours before the baby's birth, Ms. Palmer began experiencing cramps and pain. So her husband, mother, and father drove her to Shawnee Mission Medical Center ("SMMC"). SMMC admitted Ms. Palmer to its Birth Center, but later diagnosed her with false labor and discharged her from the hospital. Ms. Palmer returned home, and she continued to experience cramps and pain. Eventually, her family called 911, and EMS responded to her home. Shortly thereafter, EMS assisted Ms. Palmer as she gave birth to her son on the floor of the bathroom in her home. Neither Ms. Palmer nor her son sustained any physical injuries from the home birth. To the contrary, Ms. Palmer testified that her son is "normal and healthy." Doc. 142-9 at 20–21 (Teresa Mary Palmer Dep. 76:21–77:5).

This lawsuit arises from Ms. Palmer's unanticipated home birth. Ms. Palmer, her husband, her mother, and her father, all proceeding pro se,¹ assert two claims against defendants SMMC and Mid America Physician Services, LLC. Ms. Palmer asserts a claim against SMMC for violating the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd. And all four plaintiffs assert a Kansas state law claim for intentional infliction of emotional distress against both SMMC and MAPS.

This matter comes before the court on the parties' cross motions for summary judgment. Defendants SMMC and MAPS have filed separate Motions for Summary Judgment. Docs. 133, 141. Defendants' motions ask the court to grant summary judgment against each of plaintiffs' claims. Also, plaintiffs have filed a Motion for Summary Judgment. Doc. 145. Plaintiffs ask the court to grant summary judgment in their favor on each claim they assert against defendants in this lawsuit.

After considering the parties' arguments, the court grants defendants' Motions for Summary Judgment and denies plaintiffs' Motion for Summary Judgment. The court explains why below.

I. Admissible Summary Judgment Evidence

Before turning to the parties' summary judgment motions, the court addresses what evidence it can consider on these motions. Specifically, the parties dispute whether the court can consider two pieces of evidence that plaintiffs rely on both to support their Motion for Summary Judgment and to controvert defendants' facts supporting their Motions for Summary Judgment. The two pieces of evidence are: (1) a report prepared by the Centers for Medicare & Medicaid Services ("CMS") (Doc. 145-1), as well as other documents referring to Ms. Palmer's complaint to CMS (see, e.g. , Docs. 145-3, 145-18, 145-20) (collectively "CMS documents"); and (2) a revised version of SMMC's Patient Care Protocol No. 308, a revision that SMMC issued after November 5, 2014 (Docs. 145-5, 145-24).

For the court to consider this evidence on summary judgment, plaintiffs must establish that the content and substance of the evidence is admissible. See Johnson v. Weld Cty. , 594 F.3d 1202, 1209 (10th Cir. 2010) (explaining that it is "well settled in this circuit" that, at summary judgment, courts can consider only admissible evidence); see also Fed. R. Civ. P. 56(c)(2) ("A party may object that the material cited to support or dispute a fact [on summary judgment] cannot be presented in a form that would be admissible in evidence."). For reasons explained below, the court concludes that both items of evidence are, in present form, inadmissible, and thus the court may not consider either one to decide the summary judgment motions.

A. CMS Documents

Plaintiffs ask the court to take judicial notice of the CMS documents under Fed. R. Evid. 201(b)(2). Doc. 149-29. Fed. R. Evid. 201(b)(2) allows a court to take judicial notice of a fact not subject to reasonable dispute because it "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." The court declines to take judicial notice of the CMS documents under this rule because, as defendants correctly argue, plaintiffs have not authenticated the documents and they contain many hearsay statements. Thus, the CMS documents are not "from sources whose accuracy cannot reasonably be questioned," as Fed. R. Evid. 201(b)(2) requires.

See United States v. Burch , 169 F.3d 666, 672 (10th Cir. 1999) (refusing to take judicial notice of facts from photocopy of a map and hearsay affidavit because these were not sources "whose accuracy cannot reasonably be questioned" as Fed. R. Evid. 201(b)(2) requires).

Although not cited by plaintiffs, the court has considered whether the hearsay exception for public records found in Fed. R. Evid. 803(8) makes the CMS documents admissible. Plaintiffs have not made any showing that the CMS documents qualify as a public record under this Rule. See Brown v. Perez , 835 F.3d 1223, 1232 (10th Cir. 2016) (holding that a letter was inadmissible evidence at trial because it was hearsay and the party offering the letter failed to identify any applicable hearsay exception); see also Woodhull v. Cty. of Kent , No. 1:04-cv-203, 2006 WL 2228986, at *5 n.4 (W.D. Mich. Aug. 3, 2006) (refusing to consider an investigative report on summary judgment because the party offering the report never "provided foundational facts establishing that the [report] falls within Fed. R. Evid. 803(8), which provides a hearsay exception for certain ‘public’ records and reports").

And, even if plaintiffs had asserted that the CMS documents qualify as a public record under Rule 803(8)'s hearsay exception, plaintiffs have not authenticated the CMS documents properly. Although Fed. R. Evid. 902 allows for self-authentication of public records, the CMS documents are not self-authenticating because they contain neither seal (as Fed. R. Evid. 902(1) requires) nor a certification (as Fed. R. Evid. 902(2) and 902(4) require). And plaintiffs don't authenticate the CMS documents using any of the other means in Fed. R. Evid. 901. Thus, the court cannot consider the CMS documents on summary judgment because they are not authenticated. See United States v. Baker , 538 F.3d 324, 331 (5th Cir. 2008) (explaining that "[r]egardless of whether [the evidence] falls within the ambit of [Fed. R. Evid.] 803(8)... [the party offering the evidence] did not authenticate [it], which is necessary as a predicate for admission under" Fed. R. Evid. 803(8) ); see also United States v. 478.34 Acres of Land , 578 F.2d 156, 159 (6th Cir. 1978) (holding that a Corp. of Engineers statistical survey was inadmissible evidence because no "effort [was] made to verify or authenticate the data in accordance with Rule 901," and the evidence thus "did not come within the exception to the hearsay rule admitting deeds and public records, Rule 803(8), (14), (15), or any other exception to the hearsay rule"); In re Marshall Complex Fire , No. CV-09-0010-RMP, 2010 WL 1416843, at *4 (E.D. Wash. Apr. 8, 2010) (concluding that a state agency's report was inadmissible on summary judgment because the report was not authenticated under either Fed. R. Evid. 901 or 902, and thus did "not satisfy the threshold requirement of authentication" for the court to consider whether it fell within the hearsay exception of Fed. R. Evid. 803(8) ).

Also, to the extent plaintiffs ask the court to accept any legal conclusion the CMS documents may contain, the court cannot consider that kind of evidence on summary judgment. See Sprint Commc'ns Co. v. Vonage Holdings Corp. , 500 F.Supp.2d 1290, 1304 (D. Kan. 2007) (explaining that legal conclusions are not "facts as would be admissible in evidence" as Fed. R. Civ. P. 56 requires (citations and internal quotation marks omitted) ); see also Shelter Mortg. Corp. v. Castle Mortg. Co., L.C. , 117 F. App'x 6, 10 (10th Cir. 2004) (holding that the district court "correctly struck inadmissible hearsay and inadmissible legal conclusions" on summary judgment).

For all these reasons, the court rules that it may not consider the CMS documents to decide the current summary judgment motions because they are not admissible under the Federal Rules of Evidence.

B. Revised Version of Patient Care Protocol No. 308

Also, the court can't consider the revised version of SMMC's Patient Care Protocol No.308. SMMC issued the revised version of this policy after November 5, 2014. Thus, the revised policy was not in effect when Ms. Palmer presented to SMMC's Birth Center on November 5, 2014. Defendant SMMC argues that this evidence is inadmissible under Fed. R. Evid. 407 because it qualifies as a subsequent remedial measure. Plaintiffs never responded to this argument.

Fed. R. Evid. 407 provides that "[w]hen measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove ... culpable conduct...." The Tenth Circuit has recognized "two primary grounds for the exclusion of evidence under Rule 407 : (1) the limited probative value of subsequent remedial measures; and (2) ‘[the] social policy of encouraging people to take ... steps in furtherance of added safety.’ " Stahl v. Bd. of Cty. Comm'rs , 101 F. App'x 316, 321 (10th Cir. 2004) (quoting Hull v. Chevron, U.S.A. , 812 F.2d 584, 587 (10th Cir. 1987) ). Thus, under Rule 407, "courts have excluded ...