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Wrongful Death Suit Reinstated for Plaintiff Substitution; Dismissed Again

by Bob Williams

The United States Court of Appeals for the Tenth Circuit has reversed the dismissal of a wrongful death suit and allowed the deceased prisoner's wife to be substituted as plaintiff. On remand, the United States District Court for the District of Kansas granted summary judgment for the United States due to lack of evidence.

Raymond Esposito, a federal prisoner at USP Leavenworth, Kansas, suffered from heart problems. Between January and July 1998, Esposito visited the USP cardiac care unit 11 times to monitor his cardiac medications. In August 1998 he suffered toxic levels of digoxin and coumadin. Though he recovered, by September he had breathing difficulties and was under treatment for congestive heart failure and edema. Despite the seriousness of his condition, a medical transfer wasn't prepared until October 31, 1998. By mid-November he was seen for cardiac and liver toxicity and was briefly hospitalized on November 20 for increasing dsypenea, cardiac arrhythmias and chest pain. It was determined that the USP clinic could not care for him. In January 1999, Esposito was again hospitalized and finally transferred to the Springfield Medical Care Center for Federal Prisoners with a six-month life expectancy. He died on March 12, 1999.

On February 22, 2002, attorney Pantaleon Florez, Jr. filed a wrongful death action naming Raymond Esposito as plaintiff. Florez also alleged that administrative remedies under the Federal Tort Claims Act (FTCA) were previously exhausted when a claim was filed by Mr. Esposito with the Bureau of Prisons (BOP). Mr. Esposito was, however, already dead. The BOP denied the claim on August 23, 2001.

The United States moved for dismissal of the suit due to lack of subject matter jurisdiction, claiming the court did not have jurisdiction over Mr. Esposito's estate because the estate did not exhaust FTCA administrative remedies and the deceased Esposito could not maintain a suit as the real party in interest.

Responding to a show case order, Florez claimed an honest mistake in incorrectly believing that the plaintiff had to be the one who suffered the harm, stating that this was his first wrongful death action. The district court dismissed the suit, finding that Florez had showed an "honest" mistake but not an "understandable" one.

On appeal, the Tenth Circuit found that a showing of both was not necessary under F.R.Civ.P. 17(a). The Court also held that capacity is controlled by the law of the individual's domicile and thus Kansas law controlled. Under Kansas law a decedent lacks capacity to sue; therefore, Mr. Esposito could not bring the suit on his own behalf. Yet Kansas law does allow Mr. Esposito's wife, Yolanda, to bring the action as the decedent's heir. Now the catch.

Mrs. Esposito could bring the action but the statute of limitations had expired. The Court accepted, however, that she had exhausted FTCA administrative remedies since Mr. Esposito was already deceased when the BOP claim was filed. Florez filed suit for the deceased Esposito in time but did not exhaust FTCA claims. The Court found granting substitution of Mrs. Esposito as the real party in interest solved the problem and remanded the case to the district court. In doing so, the appellate court rejected the United States' position that substitution, and its concomitant relation back doctrine, were not available because Mr. Esposito could not bring suit in the first place, thus rendering it a nullity.

On remand the district court entered a joint scheduling order requiring mandatory disclosures, designation of expert witnesses and disclosure of expert reports. While the United States complied, Florez did not and thereby produced no evidence. The United States moved for summary judgment since there was no evidence by plaintiff that they had breached a duty of care or that any breach caused harm to Mr. Esposito.

The only defense presented by Florez was a claim of "common knowledge exception" to the general rule requiring expert testimony to establish the elements of a medical negligence case. The district court again found Kansas law controlling, which held that a plaintiff in a medical malpractice claim must prove (1) that a duty was owed by the physician to the patient; (2) the duty was breached; and (3) the breach was the proximate cause of Mr. Esposito's death.

This can only be accomplished without medical expertise if Mr. Esposito's condition was such that it would ordinarily not have occurred if the BOP had exercised due care. With the undisputed evidence showing Mr. Esposito "was in a terminal stage of disease" and no evidence produced by Florez that the BOP had deviated from the standard of care or that any such deviation caused Mr. Esposito's death, summary judgment was granted. The dismissal of the case was affirmed on appeal.

See: Esposito v. United States, 368 F.3d 1271 (10th Cir. 2004); on remand, Esposito v. United States, USDC KS, Case No. 02-2078-KHV, Memorandum and Order dated Jan. 31, 2005 (2005 WL 246777), affirmed, 165 Fed.Appx. 671 (10th Cir. 2006) (unpublished).

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Esposito v. United States

Esposito v. United States

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