United States District Court, E.D. Tennessee, Knoxville
Kenneth Kelley, as the son, next of kin, and heir at law of JIMMY KELLEY, deceased, Plaintiff,
APRIA HEALTHCARE, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
Kelley lived in a camper on property occupied by his son
Kenneth. Jimmy, in his early seventies, used medical oxygen
and equipment provided by Apria Healthcare, LLC. In February
2012, a fire broke out in the camper. Jimmy was killed.
sued Apria and others. All defendants settled except Apria.
After a five-day trial, a jury returned a verdict for
Kenneth. The jury found that Apria was negligent, and that
its negligence was 51% to blame for Jimmy's death.
Kenneth was awarded $1 million in damages for the suffering
Jimmy experienced before dying and $1.5 million for the value
of Jimmy's life.
before the Court are Apria's post-trial motions:
1. A motion for a post-trial directed verdict, new trial, or
reduction in damages;
2. A motion for a reduction in damages; and
3. A motion for relief from costs.
reasons that follow, the first and third motions will be
denied, and the second will be granted. Kenneth's damages
will be reduced to $750, 000.
Apria asks that the Court override the jury verdict and enter
judgment in its favor. Alternatively, Apria requests a new
trial or a lowering of the jury award for the value of
Jimmy's life. The Court sees no basis for second-guessing
the jury verdict, and the award for Jimmy's life will not
offers eight reasons why the Court should enter judgment in
its favor. But first, the Court must address two other
points. First, Apria has renewed its overruled objections and
motions by simply saying that it “hereby renews”
them. [D. 392 at 2]. It offers no reason why the Court should
revisit those objections and motions. And a “party
waives issues that it adverts to in a perfunctory manner,
unaccompanied by some effort at developed
argumentation.” Thomas v. United States, 849
F.3d 669, 679 (6th Cir. 2017). The Court will not revisit
those objections and motions.
Apria says that it has not yet been served with an actual
signed judgment. Thus, it reserves the right to file a Rule
50, Rule 59, or Rule 60 motion once it has been served. A
signed judgment, however, has been entered on ECF. [D. 375].
Notice of a judgment is served according to Federal Rule of
Civil Procedure 5(b). Fed.R.Civ.P. 77(d)(1). Under Rule 5(b),
a party can be served electronically if it consents in
writing. Id. 5(b)(2)(E). Registering as a user on
ECF constitutes consent to electronic service of all
documents. Electronic Case Filing Rules and Procedures for
the Eastern District of Tennessee 8, perma.cc/M8BB-KRDF (last
visited June 19, 2017). Apria has so registered. And the
ECF-generated notice of a judgment being electronically filed
constitutes service of the judgment as soon as the notice
goes out. Id. at 10; see Fed. R. Civ. P.
5(b)(2)(E). According to the receipt attached to the signed
judgment on ECF, the notice went out on February 22, 2017.
Apria was thus served with an actual signed judgment on
has moved for a post-trial directed verdict in its favor
under Rule 50(b). The Court had this case through diversity
jurisdiction, and Apria's Rule 50(b) arguments are based
on the sufficiency of the evidence. In a diversity case, when
a Rule 50 motion is based on the sufficiency of the evidence,
the Court applies the standard of review from the state whose
substantive law governs. American Trim, LLC v. Oracle
Corp., 383 F.3d 462, 471 (6th Cir. 2004). Tennessee law
governs this suit, so the Court will apply its standard for
motions for a post-trial directed verdict.
ruling on a motion for a post-trial directed verdict,
“the court must take the strongest legitimate view of
the evidence in favor of the non-moving party.”
Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn. 1994).
To do so, the court must resolve any conflict in the evidence
by construing it in the light most favorable to the nonmoving
party and disregarding all countervailing evidence.
Id. The court may then grant the motion only if
“reasonable minds could not differ as to the
conclusions to be drawn from the evidence.”
has alternatively moved for a new trial under Rule 59. A new
trial is warranted when the jury reaches a “seriously
erroneous result, ” as shown by (1) the verdict being
against the clear weight of the evidence; (2) excessive
damages; or (3) the trial being influenced by prejudice or
bias against the nonmoving party. Cranpark, Inc. v.
Rogers Grp., 821 F.3d 723, 737 (6th Cir. 2016). If a
party argues that the verdict is against the clear weight of
the evidence, the court must decide if the verdict was
first argues that Kenneth's suit falls under the
Tennessee Health Care Liability Act, and so should have been
dismissed for not complying with it. On summary judgment and
on reconsideration, the Court ruled that, under the Act,
Apria was not a health care provider providing health care
services. Kelley v. Apria Healthcare, LLC, ___
F.Supp.3d ___, 2017 WL 473882, at *9 (E.D. Tenn. 2017).
Again, Apria argues against this conclusion.
its arguments are unconvincing. See In re Moncier,
488 F. App'x 57, 57 (6th Cir. 2012) (“No means
no.”). A suit falls under the Act if it alleges that a
“health care provider or providers have caused an
injury related to the provision of, or failure to provide,
health care services.” Tenn. Code Ann. §
29-26-101(a)(1). First, Kenneth's suit was not related to
the provision of, or failure to provide, health care
services. Apria brought Jimmy his equipment, taught him how
to use it, and ensured that the environment was safe for the
equipment. The Court ruled that these were not health care
services. Kelley, 2017 WL 473882, at *7. Apria
contends that these services were related to the provision of
prescribing medical oxygen, a health care service.
Court disagrees. To be sure, prescribing medical oxygen is a
health care service. But Apria's reading of
“related to” is too broad. For one, it overlooks
the fact that Jimmy was visited only by delivery technicians.
The only health care workers Apria employs are respiratory
therapists. And Tennessee law expressly bans delivery
technicians from doing the work of respiratory therapists.
Tenn. Code Ann. § 63-27-110(a)(2). So Jimmy could not
have received health care services from Apria.
another, Apria's approach contains no limiting principle.
Under its reading of “related to, ” the Act would
cover instances when a delivery technician rear ends a
customer's car while pulling into the customer's
driveway. Were the customer to sue the driver, she would have
to prove her case with expert healthcare witnesses licensed
in Tennessee or a bordering state Id. §
29-26-115(b). Of course, there would be little point in
bringing healthcare experts into a fender-bender suit. Yet
Apria's reading of “related to” would require
it. Kenneth's suit is not related to the provision of, or
failure to provide, health care services.
Apria a health care provider. Under Tennessee Code §
29-26-101(a)(2)(B), a health care provider is a
“nongovernmental health care facility licensed under
title 68, chapter 11.” And a facility is “any
institution, place or building providing health care services
that is required to be licensed” under title 68,
chapter 11. Id. § 68-11-201(15). This
definition presents three requirements:
1. that Apria be an institution, place or building;
2. that it provide health care services as an institution,
place or building; and
3. that is must be licensed under title 68, chapter 11.
Court ruled that Apria met the third requirement but not the
first two. Kelley, 2017 WL 473882, at *3. As for the
first requirement, the Court read institution, place or
building to mean places where people go to receive
services. Apria points to trial testimony that people visit
Apria locations to receive services. On this point, Apria is
right. Tr. at 721:4-25.
also contends that the services people receive at its
locations are health care services. The evidence, however,
says otherwise. By the time Jimmy died, people would visit
Apria locations to pick up equipment, learn how to use their
equipment, and have their equipment serviced. Id.
But these were exactly the services that Apria provided Jimmy
at his home. As explained above, these were not health care
services. See also Kelley, 2017 WL 473882, at *7.
tries to counter this conclusion by renewing its argument
based on Osunde v. Delta Medical Center, 505 S.W.3d
875 (Tenn. Ct. App. 2016). The Court, however, has already
rejected that argument. Id. at *8. And Apria offers
no new reason why that rejection was wrong. Apria is not a
health care provider under § 29-26-101(a)(2)(B).
is Apria a health care provider under §
29-26-101(a)(2)(E). Under subparagraph (E), a health care
provider is a company that consists of at least one health
care practitioner licensed or regulated under title 63 or 68.
The Court ruled that Apria's respiratory therapists are
not health care providers under the Act. Id. at *7.
It interpreted health care practitioner to mean
“someone who can provide medical services without
oversight, or is being trained to do so.” Id.
at *6. Apria's respiratory therapists cannot provide
their services without physician oversight, so they are not
health care practitioners. Apria now contends that this
definition goes against Ellithorpe v. Weis-mark, 479
S.W.3d 818 (Tenn. 2015).
fact, the Tennessee Supreme Court's decision in
Ellithorpe comfortably falls within the Court's
definition of health care practitioner. In
Ellithorpe, the court ruled that licensed clinical
social workers are health care providers under §
29-26-101(a)(1). 479 S.W.3d at 827. Its reasoning was
concise: Weismark was a licensed clinical social worker.
Licensed clinical social workers “are a group licensed
and regulated under title 63 of the Tennessee Code.”
Thus, Weismark was a health care provider. Id. As
Apria points out, the court simply looked at whether licensed
clinical social workers are licensed under title 63 and
stopped there. Thus, Apria asserts, all professions licensed
and regulated under title 63 are health care practitioners,
including respiratory therapists.
argument is not persuasive. First, Ellithorpe was
not about the definition of health care practitioner
in § 29-26-101(a)(2)(E). Instead, it was about the
definition of health care provider in §
29-26-101(a)(1). What's more, someone cannot be a health
care practitioner simply because they work a job regulated by
title 63 or 68. Title 63 includes veterinarians. Tenn. Code
Ann. §§ 63-12-101 to -145. But actions under the
Health Care Liability Act are limited to those involving
medical care given “to a person.” Id.
§ 29-26-101(a)(1). And title 68 includes
bed-and-break-fast operators and innkeepers, who are a far
cry from health care practitioners. Id. §§
68-14-502, 68-14-601. Not every profession under titles 63
and 68 falls under § 29-26-101(a)(2)(E).
argument also goes against the text of subparagraph (E). It
defines health care practitioner as a company that
consists of “health care practitioners licensed,
authorized, certified, registered, or regulated under any
chapter of title 63 or 68.” Apria reads this to mean
that all professions listed in title 63 and 68 are health
care practitioners. But because titles 63 and 68 include
veterinarians, B&B owners, and innkeepers, this reading
cannot be correct. A better reading is that there are health
care practitioners not regulated under title 63 or 68, and
the Act applies only to those practitioners who must be
licensed under either title.
fact, there are health care practitioners who do not have to
be licensed under title 63 or 68. The Court defined
health care practitioner as someone who can provide
medical services without oversight, or is being trained to do
so. Title 33 covers mental-health and drug-treatment workers.
Id. §§ 33-2-421(a)(2), 33-2-402(12), (14).
Among other things, these professionals “prevent,
treat, or ameliorate mental illness, serious emotional
disturbance, alcohol and drug use, [and] intellectual or
developmental disabilities.” Id. §
33-2-402(14). Treatment of drug use can fairly be called a
medical service. So subparagraph (E)'s use of “any
chapter of title 63 or 68” is a limiting clause, not a
sufficient condition to being a health care practitioner.
also maintains that licensed clinical social workers to do
not “administer ‘medical care.'” [D.
392 Ex. 1 at 4]. So if they are health care practitioners
under Ellithorpe, then respiratory therapists are
too. But there are two problems with this argument. First,
the wording the Court used is whether a professional
“can provide medical services without oversight,
” not whether they can administer medical care. Second,
licensed clinical social workers meet this definition. Their
work includes “diagnosis and treatment of mental,
emotional and behavioral disorders, conditions and
addictions, including severe mental illness in adults and
serious emotional disturbances in children.” Tenn. Code
Ann. § 63-23-105(a). Treatment of the mind is as much
medicine as treatment of the body. And licensed clinical
social workers can practice without oversight (other than by
a licensing body). Id. § 63-23-105(b)(5), (c).
Respiratory therapists are not health care practitioners
under the Health Care Liability Act. Apria is not a health
care provider providing health care services, and
Kenneth's suit does not fall under the Act.
Apria contends that Kenneth's res ipsa loquitur claim
should not have gone to the jury. To prove negligence through
res ipsa loquitur, the plaintiff must show that the harmful
event is “of a kind which does not ordinarily occur in
the absence of negligence.” Burton v. Warren
Farmers Coop., 129 S.W.3d 513, 525 (Tenn. Ct. App.
2002). The harmful event was the fire, caused by a spark
meeting an oxygen-rich environment. The oxygen-rich
environment, in turn, was caused by oxygen leaking from
Jimmy's equipment. According to Apria, the evidence at
trial showed that oxygen equipment leaks even when used
perfectly. Thus, reasonable minds could only find that Jimmy
did not prove negligence through res ipsa loquitur.
Court disagrees. Apria relies on the testimony of
Kenneth's expert, Michael Mariscalco. He testified,
Q. The very fact that oxygen is being used . . . creates an
oxygen-rich environment, even when it's being used