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Morris v. USA

United States District Court, W.D. Louisiana, Lake Charles Division

June 13, 2017

USA, on behalf of U.S. BUREAU OF PRISONS




         Before the court is the "United States' Partial Motion for Summary Judgment" (R. #70) wherein the mover seeks to have this court decide which law should be applied as the law of the case-Texas or Florida. For the reasons that follow, the court finds that the law of Texas shall apply to the alleged acts of negligence which occurred in Texas and the law of Florida shall apply to the alleged acts of negligence which occurred in Florida.


         The instant lawsuit against the United States involves a claim for medical malpractice. Plaintiff, Melvin Morris, [1] is the son of the late Cassandra Womack who was incarcerated by the Bureau of Prisons ("BOP") at FCI Tallahassee, Florida in 2003 and transferred to FMC Carswell in Fort Worth, Texas in June 2006. Ms. Womack was diagnosed with Stage IV colon cancer in August 2007; she was released from the BOP on April 2, 2008 and died on February 27, 2009. Plaintiff alleges that substandard medical care by BOP personnel regarding the timing of the cancer diagnosis proximately caused his mother's death.


         Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, when viewed in the light most favorable to the non-moving party, indicate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.[2] A fact is "material" if its existence or nonexistence "might affect the outcome of the suit under governing law."[3] A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party.[4] As to issues which the non-moving party has the burden of proof at trial, the moving party may satisfy this burden by demonstrating the absence of evidence supporting the non-moving party's claim."[5] Once the movant makes this showing, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial.[6] The burden requires more than mere allegations or denials of the adverse party's pleadings. The non-moving party must demonstrate by way of affidavit or other admissible evidence that there are genuine issues of material fact or law.[7] There is no genuine issue of material fact if, viewing the evidence in the light more favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party.[8] If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.[9] The court will construe all evidence in the light most favorable to the nonmoving party, but will not infer the existence of evidence not presented.[10]


         In its motion, the United States seeks to have this court apply only the laws of the State of Texas. Texas law has a medical malpractice cap, whereas Florida law does not. This suit is brought pursuant to the Federal Torts Claim Act ("FTCA"). The FTCA "requires application of the whole law of the [s]tate where the act or omission occurred, " including that state's choice of law rules.[11] To resolve the choice of law, both Florida courts and Texas courts use the "most significant relationship test"[12] which requires courts to consider: " '(a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered.' "[13]

         The government maintains that Texas law applies because Ms. Womack was incarcerated in Texas from the time of the definitive cancer staging in August 2007 and shortly before the time of her death. The government argues that there is a lack of definitive evidence that Ms. Womack suffered a change in cancer status between the time of her incarceration in 2003 and her transfer to Texas in 2006. The government asserts that the experts agree that it is likely that when Ms. Womack entered the BOP, she was already suffering from colon cancer.[14] Defendants rely on the opinion of their expert, Dr. Cohen, who opined that Ms. Womack was asymptomatic for colon cancer until August 2007, and she was likely to have had Stage IV when she presented herself to the BOP in 2003.[15] The government further submits the testimony of Dr. Shapiro, Plaintiff's expert, who testified that staging relies on tumor, node, and mestastasis ("TNM")[16] which was first obtained in 2007.[17] Dr. Shapiro also testified that an attempt at an earlier staging of Ms. Womack's cancer amounts to "complete speculation."[18]

         The connection Ms. Womack had with both Texas and Florida was that she was incarcerated within the states' BOP where the alleged negligent acts took place. Finally, the government argues that because the medical personnel provided interventions for Stage IV cancer in Texas, these interventions bear the most significance for the case and thus, Texas law should apply because it is the state with the most significant relationship. The government further seeks to dismiss any claims not recognized under Texas law.

         Plaintiffs rely on the following facts to support their position that either Florida law applies, or both Texas and Florida law applies to the alleged negligent conduct which occurred in each state:

(1) Failure to properly diagnose the cause of Ms. Womack's iron deficiency anemia which was not corrected by iron supplements:
(2) Failure to warn Ms. Womack that her iron deficiency anemia could be caused by bleeding in the colon related to colon cancer;
(3) Failure to ask Ms. Womack if she had any relatives who had suffered from colon cancer;
(4) Incorrectly diagnosing Ms. Womack's condition as dysfunctional uterine bleeding (DUB) despite placing her on birth control pills (which should have corrected the DUB) and not sending her to a gynecologist for proper testing and examination in order to make such a diagnosis;
(5) Ordering a pelvic ultrasound on 9/20/06, but not performing same until December 2006;
(6) Incorrectly diagnosing Ms. Womack's later abdominal pain as GERD, h. pylori and/or possible gallstones despite not sending her to a gastroenterologist for ...

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