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No. 13-1579
DENISE
C.
WILKINS,
Individually
and
as
Personal
Representative of the Estate of Justin Lamar Davis,
Plaintiff Appellant,
v.
VICKI MONTGOMERY, Director, Central State Hospital, in her
individual and official capacities,
Defendant Appellee,
and
CENTRAL STATE HOSPITAL; THE COMMONWEALTH OF VIRGINIA;
UNIDENTIFIED EMPLOYEES OF CENTRAL STATE HOSPITAL, in their
individual and official capacities,
Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
John A. Gibney, Jr.,
District Judge. (3:12-cv-00152-JAG)
Argued:
Decided:
May 5, 2014
motion
to
amend
her
complaint;
and
granting
summary
Appellant
She
filed
three
claims:
grossly
negligent
he
Appellants
was
second
disclosed
motion
in
to
an
amend
untimely
her
fashion;
complaint
to
denied
add
two
For the
Central
State
Hospital
(CSH),
an
inpatient
facility
patient
activity.
See
J.A.
355-68. 1
AOD
reports
during the week of February 21, 2010, reflect that Davis struck
a staff member in the face and hit another patient.
On February
Id.
issued
the
following
day
on
February
26,
explained
that
Davis feels others want to harm him and wanted to be moved off
the unit.
J.A. 365.
Id.
Id.
Phillips
was
observation
(EOS),
on
suicide
status
which
observation
(VOS),
required
assigned staff.
and
15
status
escape
minute[]
(SOS),
violence
observation
monitoring
status
checks
by
duty
of
carrying
out
the
15
minute
checks
that
night.
Between
9:36 p.m. and 9:56 p.m. that night, Phillips left his room,
entered Daviss room, and proceeded to strangle Davis to death
in his bed.
28, that another staff member discovered that Davis was dead.
An
[s]taff
investigation
[n]eglect
led
to
by
the
Daviss
hospital
murder,
concluded
and
found
that
that
J.A.
[]
Thompson
was
at
her
assigned
monitoring
post
and
Id.
B.
Exactly two years after Daviss death, February 27,
2012, Appellant -- Daviss mother -- filed suit against CSH, the
Commonwealth
of
Virginia,
Several
of
Yet
as
Vicki
Montgomery
Unidentified
(Appellee),
Employees
of
[CSH]. 2
and
See
supervision,
and
42
U.S.C.
1983
claim
for
supervisory liability.
On April 4, 2012, Appellant filed the First Amended
Complaint
(FAC).
In
the
FAC,
Appellant
dropped
the
state
individual
listed
as
and
official
director
of
capacity),
the
CSH,
who
and
was
Several
J.A. 9.
incorrectly
as
of
Yet
summary
judgment.
In
the
motion
for
summary
judgment,
Appellee argued that because she was not director of CSH at the
time of Daviss death, she had no supervisory responsibility or
authority
over
any
security
personnel,
treatment
staff,
or
medical staff.
The district court entered a pre-trial order and set
the trial date for February 19, 2013.
expert
disclosures
were
to
be
produced
by
October
22,
2012;
experts
2012.
was
December
21,
On
November
21,
Appellant
4,
--
which
2012,
had
been
Appellant
agreed
to
disclosed
by
what
Appellant
she
--
on
called
as its name suggests, was only one page and simply contained a
list of the materials the expert reviewed, and two sentences of
opinion:
Based on review of the above listed documents, it is
my opinion to a reasonable degree of medical certainty
that the care and treatment provided to Mr. Justin
Lamar Davis fell substantially below an acceptable
standard of care.
Administration of the hospital
failed to provide adequate services and supervision;
and members of the treatment team failed to provide
adequate monitoring, safety and treatment, amounting
to deliberate indifference to the patients needs and
premature death of Mr. Justin Davis.
J.A. 99.
On December 13, 2012, Appellee filed a renewed motion
for summary judgment and a motion to exclude Appellants expert
witness.
disclosure
deadline
date
for
agreed
filing
to
by
motions
Appellant,
to
exclude
and
on
experts
the
--
courts
Appellant
day.
See
J.A.
268-70
(the
February
Order).
She
of
CSH
at
the
time
Davis
was
murdered
--
and
Dr.
Yaratha.
On April 10, 2013, the district court held a hearing
on the remaining outstanding motions, including the motion to
amend.
The court ruled from the bench, granting the motion for
See J.A.
filed
timely
notice
of
appeal
of
the
review
the
district
courts
exclusion
of
SherwinWilliams Co., 318 F.3d 592, 595 (4th Cir. 2003); Laber
v. Harvey, 438 F.3d 404, 428 (4th Cir. 2006); Sloas v. CSX
Transp., Inc., 616 F.3d 380, 388 (4th Cir. 2010).
9
As to the
of
the
law
regarding
relation
back
de
novo.
See
Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir.
2006).
We
review
judgment de novo.
Cir. 2014).
the
district
courts
grant
of
summary
Fed. R.
v.
Stroud,
13
F.3d
791,
798
(4th
Cir.
1994)
(internal
citations omitted).
III.
A.
We first discuss Appellants challenge to the district
courts
exclusion
of
her
expert,
Dr.
Voskanian.
This
issue
10
558.
At
the
April
10
hearing,
regarding
the
Rule
59
Hosp., No. 3:12-cv-00152 (E.D. Va. filed Aug. 21, 2012), ECF No.
11
2012)
(order
granting
consent
motion
to
amend
pre-trial
order).
Federal Rule of Civil Procedure 26(a)(2) provides,
[A] party must disclose to the other parties the
identity of any witness it may use at trial to present
evidence under Federal Rule of Evidence 702, 703, or
705. . . . Unless otherwise stipulated or ordered by
the court, this disclosure must be accompanied by a
written report -- prepared and signed by the witness
-- if the witness is one retained or specially
employed to provide expert testimony in the case[.]
Fed.
R.
Civ.
P.
26(a)(2)(A),
(B)
(emphasis
supplied).
in
the
sequence
the
court
orders.
Fed.
R.
Civ.
P.
(quoting
S.
States
Rack
&
Fixture,
Inc.
v.
Sherwin
Williams Co., 318 F.3d 592, 595 (4th Cir. 2003)) (alteration
omitted); see also S. States, 318 F.3d at 592 n.2 (The Rule
37(c)
advisory
sanction
of
committee
exclusion
notes
emphasize
provides
that
strong
the
automatic
inducement
for
as
evidence.
(quoting
Fed.
R.
Civ.
P.
37(c)
advisory
13
burden
of
establishing
these
factors
lies
is
the
obligation
of
the
party
with
the
non-
facing
sanctions
for
(quoting Wilson v.
Bradlees of New England, Inc., 250 F.3d 10, 21 (1st Cir. 2001))
(alterations omitted).
was
required
to
weigh
the
Southern
States
factors
before
tick
through
each
of
the
Southern
States
factors.
Southern
14
was
United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) ([T]he
common meaning of should suggests or recommends a course of
action, while the ordinary understanding of shall describes a
course of action that is mandatory.); Hoyle v. Freightliner,
LLC, 650 F.3d 321, 330 (4th Cir. 2011) ([T]he fact that the
district court did not expressly mention the five-factor test we
adopted in Southern States is not indicative of an abuse of
discretion.); Carr v. Deeds, 453 F.3d 593, 604 (4th Cir. 2006)
(affirming the district courts exclusion of testimony for Rule
26(a)
violation
mentioned).
when
the
Southern
States
factors
were
not
. . . [W]e
And
the
not
lateness
with
which
the
expert
was
identified
would
to
the
reasons
provided
by
the
district
In
court,
It is hard to accept
but
after
[the
opponent]
had
filed
its
motion
for
summary judgment).
For these reasons, we find no abuse of discretion in
the district courts exclusion of Dr. Voskanian as an expert
witness.
B.
We next turn to Appellants argument that the district
court abused its discretion in denying her motion to amend her
complaint for the second time.
In the proposed amended complaint, Appellant sought to
add two defendants:
motion
because
it
would
be
futile,
i.e.,
there
was
no
that
indifferent
to
Drs.
the
Davis
knowledge
and
of
Yaratha
the
were
risk.
deliberately
J.A.
659.
As
Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (We
17
may
affirm
the
district
court
on
any
ground
in
the
record[.]).
1.
Appellant
proposed
amended
filed
the
second
on
December
complaint
motion
27,
to
2012,
amend
ten
and
months
See Lewis v.
Richmond City Police Dept, 947 F.2d 733, 735 (4th Cir. 1991)
(There is no federal statute of limitations for 1983 claims,
so the state limitations period which governs personal injury
actions is applied.
. . .
barred
dismissal.
by
the
statute
of
limitations
and
subject
to
determining
whether
an
amended
complaint
relates
18
. . .
(B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence
set out -- or attempted to be set out -- in the
original pleading; or
(C) the amendment changes the party or the naming of
the party against whom a claim is asserted, if Rule
15(c)(1)(B) is satisfied and if, within the period
provided by Rule 4(m) for serving the summons and
complaint, 6 the party to be brought in by amendment:
(i) received such notice of the action that it
will not be prejudiced in defending on the
merits; and
(ii) knew or should have known that the action
would have been brought against it, but for a
mistake concerning the proper partys identity.
Fed. R. Civ. P. 15(c)(1); see also Robinson v. Clipse, 602 F.3d
605,
608
(4th
Cir.
2010)
(explaining
that
when
proposed
party
can
make
the
although
it
does
19
Specifically,
We have
explained,
Rule [15]s description of when such an amendment
relates back to the original pleading focuses on the
notice to the new party and the effect on the new
party that the amendment will have.
These core
requirements
preserve
for
the
new
party
the
protections of a statute of limitations.
They assure
that the new party had adequate notice within the
limitations period and was not prejudiced by being
added to the litigation.
Goodman,
494
F.3d
at
470
(citation
omitted)
(emphases
in
original); see also Norton v. Intl Harvesters Co., 627 F.2d 18,
20 (7th Cir. 1980)
of
statutes
of
limitations
have
been
effectively
served.).
2.
The proposed amended complaint in this case clearly
meets the first requirement of Rule 15(c)(1)(C)(3) -- that Rule
15(c)(1)(B) is satisfied, that is, the claims in the amended
complaint arose out of the conduct, transaction, or occurrence
in the original complaint -- because it seeks to add defendants
rather
than
to
alter
the
underlying
causes
of
action.
See
within the period of time provided by Rule 4(m), Drs. Davis and
Yaratha received such notice of the action that [they] w[ould]
not be prejudiced in defending on the merits, and knew or
should
have
known
that
the
action
would
have
been
brought
notice
of
prejudice
the
that
However,
the
receive
notice
argues
complaint
could
record
of
be
that
and
thus,
Davis
there
identified.
evidence
the
Drs.
shows
lawsuit
that
against
and
was
Yaratha
had
absolutely
no
Appellants
Br.
32.
Dr.
did
not
he
was
Yaratha
Appellee
until
she
offers
merely
no
contends
evidence
that
to
Drs.
the
Davis
contrary.
and
Yaratha
they
were
represented
489
by
the
same
office
as
Appellee.
(indicating
that
Dr.
Davis
and
Dr.
See J.A.
Yaratha
were
not
by
the
represented Appellee).
Office
of
the
Attorney
General,
which
medicine
[at
CSH].
Appellants
22
Br.
35.
This
Daviss
deposition,
stating
that
he
retired
from
CSH
in
May
should
be
have
2010).
Appellant
imputed
to
Drs.
also
Davis
submits
and
that
Yaratha
knowledge
because
they
we
can
conclude
that
when
plaintiff
Goodman
alleges
functioning
entities
in
business
that
group,
entities
barring
or
a
corporations,
contrary
the
showing,
other
will
be
Indeed, the
corporation].
that
Id.
Goodman
This
intended
case
is
to
sue
markedly
[the
parent
different.
As
Moreover, Appellant
has provided no evidence that Dr. Davis even kept in touch with
the employees at CSH after his retirement in May 2010 such that
23
he
could
still
even
be
considered
closely
related
to
CSH.
in
reviewing
the
evidence
presented
at
defending
[the
15(c)(1)(C)(i).
claim]
on
the
merits.
Fed.
R.
Civ.
P.
that
the
added
party
had
constructive
notice
of
the
initial complaint within the Rule 4(m) period, and the added
party
did
not
challenge
that
finding),
with
J.A.
657-58
relate back, and the district court did not abuse its discretion
in denying the motion to amend.
24
C.
We now turn to whether the district court erred in
granting summary judgment in favor of Appellee on the 42 U.S.C.
1983 and gross negligence claims.
that Drs. Davis and Yaratha cannot be added to this action, and
that Dr. Voskanian was properly excluded as an expert, we need
only
address
the
non-expert
record
evidence
with
respect
to
Appellee.
1.
1983 Claim
In order to succeed on a 1983 claim for supervisory
liability, a plaintiff must show:
(1) that the supervisor had actual or constructive
knowledge that h[er] subordinate was engaged in
conduct that posed a pervasive and unreasonable risk
of
constitutional
injury
to
citizens
like
the
plaintiff;
(2) that the supervisors response to that knowledge
was so inadequate as to show deliberate indifference
to or tacit authorization of the alleged offensive
practices,; and
(3) that there was an affirmative causal link
between the supervisors inaction and the particular
constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
As to the
25
that
the
conduct
engaged
in
by
the
subordinate
poses
an
Id.
the
deliberate
second
element,
plaintiff
may
establish
As to
of
causation
may
Id. (internal
direct
where
the
policy
Id. (internal
First, there
is
constructive
no
evidence
that
Appellee
had
actual
or
knowledge that Harris and Thompson, the charge nurse and mental
health
technician,
pervasive
Davis.
and
were
engaged
unreasonable
risk
in
of
conduct
that
posed
constitutional
injury
to
duty
to
Appellant
keep
the
26
argues
patients
that
at
Appellee
CSH
safe.
had
an
See
obligation
patients[.]).
to
provide
safe
environment
for
the
the
AOD
Phillips.
reports
regarding
the
tension
between
Davis
and
Her
time sheet shows that she clocked out at 6:41 p.m. on Thursday,
February 25, 2010, and did not work Friday, Saturday, or Sunday
of
that
Appellee
weekend.
would
Therefore,
not
have
the
seen
record
the
AOD
evidence
shows
that
report
about
the
gymnasium
between
Davis
and
Phillips,
because
it
was
was
the
report
from
February
24,
which
reflected
that
27
Appellee
was
deliberately
indifferent
to
or
tacitly
In this
regard,
nursing
Appellant
points
to
the
deposition
of
the
was
Davis,
not
even
aware
though
that
Phillips
such
threatened
information
was
to
hurt
listed
in
or
the
kill
AOD
is
gravely
J.A. 416.
unfortunate,
Appellant
proffers
no
Appellee
knew
about
it
but
did
was
system
nothing
to
remedy
the
situation.
In
fact,
there
in
place
to
address
Id.
could have known that the nursing staff would watch television
rather than check on Davis and Phillips.
In addition, Dr. Yaratha had considered the idea of
moving
Davis
decided
against
discussed
Davis.
to
different
it.
See
informally
with
ward,
J.A.
377
[other
but
after
(Dr.
deliberation,
Yaratha
doctors]
about
met
and
moving
Mr.
before coming to ward 8 and during his first few weeks on ward
8.
Thus, to the
those
decisions
clearly
illustrate
concern
and
Appellees
administrative in nature.
description
for
Administration,
direction
to
duties
were
patently
Assistant
which
and
job
Director
included,
oversight
of
inter
the
for
alia,
operations
Clinical
provid[ing]
of
[CSH];
and
[p]rovid[ing]
forensic
operations
administrative
and
of
the
operational
hospital;
supervision
and
to
Gross
negligence is
a degree of negligence showing indifference to another
and an utter disregard of prudence that amounts to a
complete neglect of the safety of such other person.
This requires a degree of negligence that would shock
fair-minded persons, although demonstrating something
less than willful recklessness.
Cowan v. Hospice Support Care, Inc., 603 S.E.2d 916, 918 (Va.
2004).
prudent
person
would
exercise
under
similar
Id.
30
explained
above,
Appellant
falls
far
short
of
creating
would
shock
fair-minded
persons.
Indeed,
the
574 S.E.2d 258, 260 (Va. 2003) (allowing gross negligence issue
to
go
to
jury
where
260-pound
football
coach
aggressively
an
skidded
upcoming
curve
46
and
feet
that
driver
collided
knew
head-on
about,
with
and
tree,
the
car
severely
the
foregoing
reasons,
the
judgment
of
the
district court is
AFFIRMED.
31