State Court of Muscogee County

State of Georgia

CORY BROWN, individually and as representative of the estate of JEFFREY TODD BROWN,

                                  Plaintiff,

— versus —

WILLIAM E. TAYLOR, MD,

COLUMBUS SURGICAL SPECIALISTS, LLC,

JAMES E. HULL, DO,

SOUTHEASTERN HOSPITALIST SERVICES, PC,

MICHAEL N. METRY, MD,

ST. FRANCIS HEALTH, LLC,

LIFEPOINT HEALTH, INC,

EMORY HEALTHCARE, INC,

EMORY HEALTHCARE SERVICES MANAGEMENT, LLC, and

JOHN/JANE DOE 1-10,

                                 Defendants.

CIVIL ACTION

FILE No. SC 2021 CV 001416

Hon. Andy Prather

Plaintiffs’ Response to

Motion to Strike Portions of Plaintiff’s Complaint

DISCUSSION

There is law governing motions to strike part of a complaint. In their motion to strike, however, the Defense all but ignores the governing law. The Defense mentions the governing statute in passing — OCGA 9-11-12(f) — but never recites or discusses the criteria laid out in the statute. For good reason: Nothing in the Complaint meets any of those criteria. The Defense also gives passing mention to the leading case on motions to strike — our Supreme Court’s decision in Chappuis v. Ortho Sport (2019). But the Defense does not recite the standard endorsed by Chappuis for striking part of a complaint. Also for good reason: The Defense motion does not come within sight of that standard. From Chappuis:

[M]otions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation. If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied.[1]

Instead of showing the governing law and how it applies, the Defense spends nearly five pages — almost the entire motion — dwelling on the length and detail of the Complaint. But then in a footnote, the Defense concedes that mere length and detail do not authorize striking part of a complaint. In footnote 4, the Defense disclaims any request to strike part of the complaint because of length and detail:

Defendants anticipate that Plaintiff may claim that her Complaint is just “unusual” due to its length and that “unusual” does not mean incorrect under Georgia’s pleading standards. However, for the reasons set forth herein, this is a mischaracterization of the issue(s) and defective nature of Plaintiff’s Complaint. Defendants point out that it nowhere states that portions of Plaintiff’s Complaint should be stricken simply because the Complaint is “too long and too detailed”….

The footnote is at odds with the body of the motion, but the footnote is right: Mere length and detail do not authorize striking part of a complaint.

Since the Defense disclaims any request to strike part of the Complaint merely based on the length and detail of it, we do not brief that issue here. We only refer the Court to our brief on that issue, filed on October 25, 2021, in Jones v. Nicolais et al, Muscogee County State Court, File No. SC-2021-CV-001143.

Cory Brown, widow of Jeff Brown, asks the Court to deny the motion to strike parts of the Complaint.

    1.         The Defense does not meet the high standard for striking part of a complaint — and doesn’t even try.

The standard

Setting aside the grumbling about mere length, the sole basis the Defense asserts for striking part of the Complaint is OCGA 9-11-12(f). That statute grants authority to strike parts of a pleading on four grounds: “the court may order stricken from any pleading any … redundant, immaterial, impertinent, or scandalous matter.”

In Chappuis v. Ortho Sport (2019), the Supreme Court endorsed the general standard adopted by the Court of Appeals as well as federal courts, for the application of Section 12(f) and the comparable federal rule:

Generally, such motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation.  If there is any doubt as to whether under any contingency the matter may raise an issue, the motion should be denied.

305 Ga. 401, 403 (2019). The Chappuis court went on to discuss the special situation of allegations that are both (a) marginally relevant and (b) highly scandalous. That situation does not apply here. In the present case, the standard is the basic one: “motions to strike are not favored and should not be granted unless it is clear that the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation.”

            The Defense omits any mention of the governing standard. That’s not because Chappuis failed to turn up in their search. They do cite Chappuis, at page 6, in the second-to-last paragraph of their argument on the motion to strike. They cite Chappuis to support the proposition that Complaints might go back with the jury to the jury room. The Defense cites Chappuis for that near-obsolete point, but leaves out the central point — the standard that governs a motion to strike under Section 12(f).

Applying the standard

The Defense asks the Court to strike the bulk of the Complaint: The General Medical Principles, the General Safety Principles, and the Medical Chronology of Jeffrey’s Treatment. (Motion, page 5.)

However, the Defense doesn’t bother to apply the standard to these sections of the Complaint. After generalities about issue pleading versus notice pleading and grumbling about length, at the bottom of page 5 the Defense finally gets around to the parts of the Complaint they want the Court to strike. But even here the Defense offers no analysis, no explanation, no demonstration of how these parts of the Complaint have “no possible bearing upon the subject matter of the litigation.”

This is a medical malpractice case. Even as medical malpractice cases go, this case is complicated. Here, from the Complaint (at paragraph 8), is our effort to boil the case down to its bare essentials. Multiple medical issues arise:

a. In an outpatient procedure, Surgeon William Taylor excised a lesion from Jeffrey’s rectum, plus additional tissue as margins. Pathologist Clinton McElroy found that the lesion had only a stage-1 cancer, that Dr. Taylor had excised the entire lesion, and that the margins were negative for carcinoma and even dysplasia.

b. Nevertheless, misrepresenting those findings, Dr. Taylor urged Jeffery to undergo LAR surgery—a major surgery to excise part of his bowel. Dr. Taylor then performed the non-indicated surgery, without obtaining Jeffrey’s actual informed consent.

c. Three days later, after Dr. Taylor and Intensivists Michael Metry and James Hull had failed to treat Jeffrey with antibiotics, fecal matter appeared in Jeffrey’s surgical drain.

d. Although the fecal matter was a clear sign of an anastomotic leak and fecal peritonitis, Dr. Taylor did not even try to achieve timely source-control. In fact, for about 24 hours, Dr. Taylor and Dr. Hull failed even to obtain a CT scan, to confirm or rule out the leak and peritonitis.

e. By the time Dr. Taylor performed a laparotomy to fix the anastomotic leak, Jeffrey was critically ill with septic shock and organ failure. Three days later, after cardiac arrest, he was dead from multi-system organ failure.

The section on General Medical Principles explains a variety of the medical issues in the case: the anatomy of the digestive system, how cell abnormalities progress into destructive cancer, types of colorectal surgeries, anastomotic leaks, infection, sepsis, peritonitis, etc. The purpose of laying out these principles in the Complaint — consistent with the purpose of the Civil Practice Act (see OCGA 9-11-1) — is to find agreement on the relevant medicine, and to identify any disputes. But setting the purpose aside, do allegations on these topics have any “possible bearing upon the subject matter of the litigation”? Obviously.

Similarly, does the Medical Chronology of Jeffrey Brown have any possible bearing upon the subject matter of the litigation? A child could answer that.

In addition to asserting claims for professional malpractice, the Complaint also asserts a claim for negligence in the management of the hospital:

720.    Insofar as they managed or administered the Hospital, Defendants St. Francis Health, LifePoint, and the Emory Defendants owed patients a duty to safeguard their safety and provide quality care at the Hospital.

721.    Insofar as they managed or administered the Hospital, these Defendants, through their managers and administrators, breached those duties in providing care to Mr. Brown.

722.    The repeated confounding failures by the individual providers reveal and exemplify such managerial and administrative failures.

The Complaint’s section on General Safety Principles walks through some of the basics of patient safety in a hospital setting, and the hospital leadership’s responsibilities for creating systems that protect patient safety. These principles are not common knowledge. For example,

327. It is now generally accepted that medical errors result largely from system failures.

328. That is, medical errors are not caused solely by “bad apple” individual clinicians directly involved in patient care.

329. Instead, medical errors are often the result of systemic failures.

330. Systemic sources of medical error are well recognized. They include:

a. The failure to implement or enforce protocols for urgent or emergent care.

b. The failure to train, supervise, or support healthcare providers.

c. Lack of teamwork and communication.

…

e. Defects in procedures for the handoff of patient care.

Do allegations concerning the principles of patient safety and managerial responsibility have any possible bearing on a claim for negligence in the management of a hospital? Again, obviously yes.

The Defense does not even say their motion to strike meets the standard laid out by the Supreme Court in Chappuis.

·      The Defense does not even say the General Medical Principles could have “no possible bearing upon the subject matter” of this medical malpractice case.

·      The Defense does not even say the Medical Chronology of Jeffrey Brown could have “no possible bearingupon the subject matter” of medical mistreatment that led to Jeffrey’s death.

·      The Defense does not even say the General Safety Principles could have “no possible bearing upon the subject matter” of a claim against the corporate hospital Defendants for negligence in creating patient safety systems.

The Defense does not say these things, because some things are too embarrassingly inane to say out loud. Instead, the Defense pretends they don’t know the standard set forth in Chappuis.

While the Defense’s refusal to acknowledge the standard is likely harmless here, the ethical duty of candor to the tribunal makes no exception for a harmless effort to hide governing law. Chappuis is binding precedent, and it governs the Defense motion. But the Defense does not acknowledge it.

The Defense’s made-up criteria for striking part of a complaint

Instead of acknowledging the governing standard, the Defense offers the Court a handful of made-up criteria for striking part of a complaint. Thus:

·      “evidentiary and testimonial in nature, and thus would potentially be appropriate witness testimony, not that of a complaint” (Motion, page 4)

·      “improper, unnecessary, not specifically tailored to this Action, are evidentiary in nature” (Id., page 5)

·      “contain duplicative information, contain incomplete screenshots of purported medical records” (Id.)

These criteria are empty. Some are all but meaningless. (What factual allegation is not “evidentiary and testimonial in nature”? Has any court, anywhere, anytime said a complaint cannot address facts that a witness might testify about? The Defense cites no such case.) More importantly, these factors form no part of the standard for striking part of a complaint. And even if they were part of the standard, the Defense does not show that the Complaint actually is or does any of these things. The Defense does not, for example, show a single allegation that is duplicative. The Defense does not show a single allegation that is unnecessary. The Defense does not show that even their own made-up criteria apply here.

—————

Nothing in the Complaint meets the standard for striking part of a complaint. The Defense doesn’t acknowledge the standard, and doesn’t say their motion meets it — much less does the Defense show they meet the standard. Cory Brown asks the Court to deny the motion to strike parts of the Complaint.

    2.         The Defense’s extraneous grievances and arguments likewise fail to justify striking part of the Complaint.

Formally, the Defense moves to strike part of the Complaint pursuant to Section 12(f). But instead of discussing that, they dwell on extraneous issues. At the risk of elevating the extraneous issues, we address them here.

First, their discussion of issue pleading versus notice pleading is half-baked. Before the adoption of the Federal Rules of Civil Procedure in 1938, issue pleading required often lengthy, often detailed complaints. The rationale was that such complaints help to lay out the issues, identify the disputed and undisputed points, and streamline the litigation. However, the requirement for long, detailed complaints had counterproductive side effects. So the modern rules eliminated the requirement. But the modern rules did not forbid long, detailed complaints. In many if not most cases, such complaints add no value. But in some cases they do, and the modern rules preserve the option. Indeed, in some areas of law — securities fraud, for example — federal procedure has explicitly imposed more extensive pleading requirements. And the US Supreme Court in Twombly and Iqbal[2] nudged all federal pleading toward a somewhat more detailed form of pleading. In any event, the drafters of the modern rules knew the difference between eliminating a requirement for a thing, versus forbidding the thing. “You are not required to attend church” is very different from “You are forbidden to attend church.” The Defense pretends they don’t know the difference. More’s the pity.[3]

Second, from its tone, the Defense motion sounds like a howl against some monstrous prejudice. But in its actual argument, the Defense barely mentions any prejudice. The word itself only appears twice: “… thus require Defendants to respond to such unnecessary information, thereby prejudicing Defendants” (Motion, page 5); and “the Complaint could ultimately be seen and reviewed by the jury of this Action, which would also prejudice Defendant due to its contents” (id, page 6). The Defense doesn’t substantiate even these meager references to prejudice.

To the contrary, the Complaint is a gift to the Defense — especially to whoever pays the lawyers’ hourly fees. This case involves multiple medical issues, none of which are intuitive. We spent the better part of 300 hours learning these issues and reducing them to a clear explanation. The Defense lawyers will have to learn these issues, too. But because we did that work and put the results into the Complaint, the Defense lawyers will have to spend a small fraction of the time we spent. The same goes for plowing through the medical records — which are never in chronological order — and figuring out the narrative. Of course the Defense lawyers will still have to do their own work, but the Complaint gives them a big jump on it. And of course the Complaint gives them a detailed understanding of the theory of Plaintiff’s case. That’s a gift defendants don’t often get.

Furthermore, many defendants and defense lawyers, in multiple cases, have answered similar complaints with no apparent difficulty. In the Jones case, despite their initial complaining, all the defendants filed answers that betrayed no overwhelming difficulty. In Doggett v. Murray et al, in Tift County State Court, File No. 2021-CV-0269, all the defendants filed answers to a similar complaint, without even the initial complaining. In Smith v. Cooney et al, in Whitfield County State Court, File No. 21-CI-00561, again the defendants filed answers without apparent difficulty or complaining. Here, too, if the Defense knuckles down, they’ll be able to answer the Complaint with less work than it usually takes to learn a medical malpractice case. And the Defense — unlike Plaintiff’s counsel — has the advantage of having physicians and hospitals for clients. The length and detail of the Complaint creates no unfair prejudice.

Third, the Defense complains about the use of screenshots and other visuals. Particularly in the treatment chronology section, we make a point of including citations to the records, along with screenshots of the relevant pages. We do so in order to deny the Defense the chance to respond with a sham claim of ignorance. As our Court of Appeals and Supreme Court have documented in a century of caselaw, it commonly occurs that in answering complaints, defendants suffer acute, dramatic attacks of ignorance. We include the citations and screenshots to make it harder for the Defense to claim “lack of knowledge or information sufficient to form a belief as to the truth of an averment.” That serves our purposes, but the citations and screenshots also help the Defense lawyers learn the case more easily. Furthermore, the Complaint expressly says the Defense need not respond to the screenshots themselves: “343. To make it as easy as possible for Defendants to confirm and answer the numerated allegations, this section has screenshots of Jeffrey’s medical records. Defendants need not answer the statements in the screenshots.” The screenshots create no unfair prejudice for the Defense.

Fourth, the Defense speculates generally that there must be some point at which a complaint just becomes too long. (Motion, footnote 3.) But a complaint that appears abusive merely by its length will turn out, on examination, to attain its length by including irrelevant or incomprehensible material. Thus, as we discussed in the prior brief in Jones v. Nicolais et al, in a 2015 decision the Eleventh Circuit surveyed its entire body of law on “shotgun pleadings” and found that the issue is never length by itself, but incomprehensibility and lack of fair notice to the defendants. See Weiland v. Palm Beach, 792 F.3d 1313 (11th Cir. 2015). Here, of course, the Defense makes no effort to show anything irrelevant or incomprehensible in the Complaint. Whatever the generic potential for abusively long, incomprehensible complaints, this Complaint is not one of those complaints.

What, then, is the Defense’s problem with the Complaint? Their motion doesn’t say. They don’t show, or really even claim, any prejudice. They loiter in a fog of half-informed banalities about notice pleading and inapposite caselaw. But they never explain what’s motivating all the complaining.

We don’t pretend to be mind-readers, but our guess is the Defense wants to avoid taking positions, to keep options open, to sow confusion, to maximize the chance for surprise issues at trial. If they’re forced to answer detailed, specific allegations (and to answer in good faith), then they have to take positions. That will close down potential escape routes. That will seal up hidey holes. The Defense’s reluctance is understandable, but the law does not indulge litigants who want to hide in the weeds. One of the purposes of modern civil procedure is to avoid trial by ambush. Another purpose is to do so in a “just, speedy, and inexpensive” way.

In any event, the law is the law. Section 12(f) and Chappuis say what they say. The Defense’s extraneous gripes and musings don’t change the standard for striking part of a complaint, and they create no authority to strike part of this Complaint.

    3.         Plaintiff does not oppose granting all Defendants extra time to file Answers.

Because of the lengthy, detailed Complaint, it may take the Defense extra time to draft and finalize their Answers. Plaintiff has no objection to whatever additional time the Court deems reasonable.

CONCLUSION

The Complaint is proper, it serves the purposes of the Civil Practice Act, and the law provides no authority to strike it. The law permits striking part of a complaint only where “the matter sought to be stricken can have no possible bearing upon the subject matter of the litigation.”

It would invite ridicule to say general medical principles, or Jeffrey Brown’s medical chronology, can have no possible bearing on this medical malpractice case. That’s why even the Defense doesn’t say it. It would be laughable to say general principles of patient safety can have no possible bearing on a claim that hospital management was negligent in creating patient safety systems. Again, that’s why even the Defense doesn’t say it.

  Plaintiffs ask the Court to deny the Defense motions.

December 22, 2021

Respectfully submitted,

/s/ Lloyd N. Bell                    

LLOYD N. BELL

Georgia Bar No. 048800

DANIEL E. HOLLOWAY

Georgia Bar No. 658026

BELL LAW FIRM

1201 Peachtree Street, NE, Suite 2000

Atlanta, GA 30361

(404) 249-6768 (tel)

(404) 249-6764 (fax)

bell@BellLawFirm.com

Attorneys for Plaintiffs

In The State Court of Muscogee County

State of Georgia

CORY BROWN, individually and as representative of the estate of JEFFREY TODD BROWN,

                                  Plaintiff,

— versus —

WILLIAM E. TAYLOR, MD,

COLUMBUS SURGICAL SPECIALISTS, LLC,

JAMES E. HULL, DO,

SOUTHEASTERN HOSPITALIST SERVICES, PC,

MICHAEL N. METRY, MD,

ST. FRANCIS HEALTH, LLC,

LIFEPOINT HEALTH, INC,

EMORY HEALTHCARE, INC,

EMORY HEALTHCARE SERVICES MANAGEMENT, LLC, and

JOHN/JANE DOE 1-10,

                                 Defendants.

CIVIL ACTION

FILE No. SC 2021 CV 001416

Hon. Andy Prather

Certificate of Service

The undersigned has served PLAINTIFFS’ RESPONSE TO MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT AND REQUEST TO STAY DEADLINES FOR ANSWERING PLAINTIFFS’ COMPLAINT on all counsel of record, by filing the document with the Court’s efiling system, and by email to all counsel included on the Defense’s courtesy-copy email to the Court.

December 22, 2021

/s/ Lloyd N. Bell                    

LLOYD N. BELL

Georgia Bar No. 048800

[1] 305 Ga. 401, 403 (2019).

[2] Bell Atlantic v. Twombly, 550 US 544 (2007); Ashcroft v. Iqbal, 556 US 662 (2009).

[3] On issue pleading versus notice pleading, see generally Wright & Miller, 5 Fed. Prac. & Proc. Civ. § 1202 (3d ed.).