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Kelley v. Apria Healthcare, LLC

United States District Court, E.D. Tennessee, Knoxville

June 22, 2017

Kenneth Kelley, as the son, next of kin, and heir at law of JIMMY KELLEY, deceased, Plaintiff,
v.
APRIA HEALTHCARE, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

         Jimmy 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.

         Kenneth 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.

         Now 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.

         For the 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.

         I

         First, 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 be reduced.

         A

         Apria 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.

         Second, 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 February 22.

         B

         Apria 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.

         In 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.” Id.

         Apria 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 unreasonable. Id.

         C

         1

         Apria 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.

         Again, 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.

         The 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.

         For 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.

         Nor is 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.

         The 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.

         Apria 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.

         Apria 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).

         Neither 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).

         In 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.

         This 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).

         This 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.

         And in 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.

         Apria 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.

         2

         Next, 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.

         The 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 ...

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