Lackey v. Cmty. Health Care, Inc., No. 169-3-07 Wmcv (Wesley, J., Feb. 18, 2010)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT                                                                           WINDHAM SUPERIOR COURT
WINDHAM COUNTY                                                                             DOCKET NO. 169-3-07 Wmcv


ERIN LACKEY, individually and in her
capacity as administratrix of the
ESTATE OF KAYLA LACKEY,
       Plaintiff,

v.

COMMUNITY HEALTH CARE, INC.,
and WALTER D. SLOWINSKI, M.D.,
     Defendants.


                                  OPINION & ORDER
                   GRANTING PLAINTIFF’S MOTION TO AMEND COMPLAINT

Introduction

           On April 4, 2005, Stephen Fairchild, a recovering heroin addict, veered his truck into

oncoming traffic on Route 9, and drove head-on into a truck driven by Plaintiff Erin Lackey.

Fairchild and Plaintiff’s daughter, Kayla Lackey, died as a result of the collision, and Plaintiff

suffered injuries. On March 28, 2007, Plaintiff brought this action against Defendant

Community Health Care, Inc. (CHC), a methadone clinic, and Defendant Walter D. Slowinski,

M.D., Fairchild’s treating physician.1 Plaintiff alleges Defendants provided negligent care to

Fairchild, and in doing so endangered the public by prescribing a combination of drugs

including: Methadone, Trazodone, and Klonopin, which made it unsafe for Fairchild to drive.

           Plaintiff has now moved to amend her Complaint to add a claim for punitive damages.

CHC responds the Motion should be denied because it is: (1) futile, (2) has been unduly delayed,

and (3) will be prejudicial to CHC.




1
    Defendant Slowinski has since been dismissed by stipulation.
       For the followings reasons, Plaintiff’s Motion to Amend is GRANTED, subject to the

condition that Plaintiff shall pay one half of CHC’s reasonable expenses incurred as a result of

re-deposing Plaintiff’s experts on the issue of punitive damages.

Standard for Motion to Amend

       When a party must seek permission to amend a pleading, leave to do so should be

liberally granted when justice so requires. See V.R.C.P. 15(a). In determining whether to allow

an amendment, trial courts consider factors including: (1) whether the amendment would be

futile, (2) whether the request was unduly delayed, and (3) whether the amendment would cause

prejudice to the opposing party. Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313 (1982).

Futility

       CHC first argues the conduct alleged by Plaintiff does not approach the high threshold

required to state a cause of action for punitive damages, thus the motion to amend should be

denied as being futile.

       Punitive damages are permitted upon evidence of malice. Bolsta v. Johnson, 176 Vt.

602, 602 (2004). Malice is shown by “conduct manifesting personal ill will or carried out under

circumstances evidencing insult or oppression, or even by conduct showing a reckless or wanton

disregard of one’s rights.” DeYoung v. Ruggiero, 185 Vt. 267, 278 (2009) (internal quotes

omitted). To establish malice, the conduct in question must be accompanied by some evidence

of bad motive, as mere “indifference attributable to negligence” lacks the egregiousness

normally associated with punitive damages. See Brueckner v. Norwich Univ., 169 Vt. 118, 132

(1999) (defendant university’s “inaction and inattention” to issue of hazing did not warrant

punitive damages). While bad motive is most apparent when a defendant acts on personal

animus toward a particular plaintiff, the concept is not limited to cases of personal ill will. See,




                                                  2
e.g., DeYoung, 185 Vt. at 279 (bad motive established where attorney defrauded client for sole

purpose of securing financial gain).

       In support of punitive damages here, Plaintiff first points to a sequence of events which,

according to Plaintiff, tends to show (1) that Fairchild was a high-risk patient, and (2) that CHC

inadequately supervised his treatment to a wanton and reckless degree. As delineated by the

motion, these events are described as follows:

       1. May, 1999 – Fairchild was in an alcohol, related roll over accident;
       2. September, 2001 – Fairchild passed out on the side of the road;
       3. July, 2002 – An employer reported that given the medications Fairchild was taking, it
           was not safe for Fairchild to operate machines;
       4. February, 2003 – Fairchild involved in a motor vehicle accident;
       5. January 16, 2004 – Fairchild reports receiving numerous speeding tickets;
       6. January 16, 2004 – Fairchild drives to the Defendant CHC Health Care, Inc. clinic
           while his license was suspended;
       7. July 1, 2004 – Fairchild stormed out of a psychiatrist’s office;
       8. August 4, 2004 – Fairchild smashed up his car;
       9. November 2004 – Fairchild failed to return a methadone bottle – a requirement of the
           Defendant CHC Health Care, Inc. for continued take home privileges;
       10. December, 2004 – Fairchild reported that his benzodiazepine medications were lost or
           stolen – which he had done on at least four previous occasions, a classic sign of
           patient addiction to this medication that slows reaction time and impairs driving
           skills;
       11. December, 2004 – Fairchild engaged in threatening behavior;
       12. January 13, 2005 – 2 ½ months prior to the collision of April 4, 2005, Fairchild
           appears at Defendant Community Health Care Inc.’s clinic with burn marks on his
           clothing and a burn mark on his chest – a classic sign of sedation for substance
           abusers – DEFENDANT CHC HEALTH CARE, INC. ORDERS BLOOD TESTS
           TO DETERMINE PEAK LEVELS OF SEDATION BUT NEVER DOES THE
           TEST;
       13. February 17, 2005 – Fairchild missed another counseling session – a continuation of a
           long history of missed counseling and dosing sessions – indicating patient is not
           clinically stable;
       14. April 4, 2005 – Fairchild crosses center line on Rte. 9 in Marlboro, Vt. striking
           Plaintiff Erin Lackey’s vehicle, substantially injuring Erin Lackey and killing 8 year
           old Kayla Lackey and himself[.]

       Plaintiff argues that, notwithstanding CHC’s knowledge of the events detailed above, “it

failed to properly monitor, supervise and treat Fairchild, and was wanton and reckless in its




                                                 3
treatment” of him. Specifically, Plaintiff argues CHC failed to properly coordinate with Dr.

Slowinski on a host of issues, and otherwise provided negligent treatment by: (1) failing to

advise Slowinski “to discontinue long term treatment of Fairchild with addicting benzodiazepine

medication such as klonopin and other sedating drugs such as trazadone”; (2) “fail[ing] to warn

Fairchild not to drive while taking methadone in combination with klonopin and trazodone”; (3)

fail[ing] to properly supervise Fairchild’s treatment, including ordering, but failing to conduct,

blood tests of Fairchild “to determine peak sedation levels in January, 2005, 2 ½ months prior to

the subject collision”; (4) “fil[ing] a methadone take-home authorization form on March 3, 2005,

with false and inaccurate information; (5) “[a]ssign[ing] a counselor/case manager to Fairchild

between November 2004 and April 4, 2005 who was inexperienced, overwhelmed and admitted

to never having read Fairchild’s medical history; (6) “authoriz[ing] the distribution of methadone

to Fairchild without taking into account his particular circumstances”; (7) “fail[ing] to put in

place appropriate safeguards and procedures to ensure that large volume of patients, including

Stephen Fairchild, were treated, medicated, tested, and monitored properly”; and (8) “fail[ing] to

properly implement the procedures that were put in place.”

       In sum, Plaintiff argues:

               [t]he conduct of the defendant Community Health Care Inc., a privately owned
               and for profit company, as set forth above constitutes a reckless and wanton
               disregard for the public in general and the Plaintiffs in particular and was
               motivated by a desire to maximize its profits and enrich itself for the benefit of its
               owners[.]

       CHC disputes Plaintiff’s characterization of its conduct, but argues Plaintiff’s amendment

is futile even accepting the accuracy of the events just described. Specifically, CHC argues

Plaintiff’s allegations make out nothing more than a negligence claim, from which, as in

Brueckner, no inference of malice can be drawn, because the allegations lack the necessary




                                                 4
element of bad motive. Plaintiff responds that CHC’s sensitive role as a methadone provider

amplifies the outrageousness of its conduct, arguing that the bad motive element is satisfied by

CHC’s alleged quest for profits at the expense of providing adequate supervision and care to its

patients, who in turn inevitably posed a significant risk to public safety. Unlike Brueckner,

where defendant recklessly ignored issues of hazing, Plaintiff maintains here that CHC knew

Fairchild was dangerously over-medicated, yet deliberately continued down an unsafe treatment

path to maximize profits.

       CHC’s reliance on Bolsta v. Johnson, 176 Vt. 602, 604 (2004) serves to emphasize the

fine distinctions which characterize the jurisprudence involving punitive damages, despite

several recent attempts by the Vermont Supreme Court to bring clarity to the subject. See, e.g.,

Follo v. Florindo, 2009 VT 11 (distinguishing malice implied as a matter of law from a

determination of “actual fraud”, compared with the intentional and deliberate wrongdoing with

the “character of outrage frequently associated with crime” described in Bruekner). Addressing

the facts found wanting in Bolsta, CHC maintains that if the reckless conduct of a drunk driver,

whose BAC was .156, and who was driving with a suspended license as a result of a prior DUI

conviction, lacked bad motive to merit punitive damages, then Plaintiff’s allegations here must

also fail. Conceding that the boundary for “bad motive” remains imprecise, the Court is not

convinced that Bolsta controls the outcome here. Rejecting the notion that bad motive should be

inferred from any repeat DWI conviction, the Supreme Court held that punitive damages

required evidence demonstrating “special circumstances, such as personal ill will, or bad

motive”, beyond the mere conviction. Id. at ¶ 9. Here, unlike Bolsta, Plaintiff’s allegations that

CHC recklessly dispensed dangerous drugs to Fairchild while placing profit from the continuing

relationship above any concern for public safety, state a claim which, if proved, would allow the




                                                 5
jury to find the improper motive necessary to a punitive damages award. See DeYoung, 185 Vt.

at 280-81 (fact that attorney’s motive was to enrich himself, rather than intentionally to harm

defrauded client not determinative of malice; “[i]f that were the case, punitive damages would

never be available against companies that, for example, knowingly placed dangerous products

into the market, hoping that people would not get hurt, but willing to ignore a great risk of harm

to increase profits”).

           In sum, considering (1) the high standard required to deny an amendment as futile, as

well as (2) the unclear and fact-dependent state of punitive damages law, the Court cannot

conclude at this stage that Plaintiff’s allegations necessarily fail to state a claim for punitive

damages.2

Undue Delay and Prejudice

           Motions to amend may be denied if they have been unreasonably delayed, causing

prejudice to the opposing party. Stratton v. Steele, 144 Vt. 31, 36 (1984). CHC argues

Plaintiff’s Motion to Amend is too late, given the case’s age, and the advanced state of

discovery. Plaintiff responds that pretrial discovery is ongoing,3 and argues that Vermont law

permits amendments to pleadings even at trial. See, e.g., Bevins v. King, 143 Vt. 252, 256

(1983). Plaintiff further argues its punitive damages claim only recently became apparent based

on “the state of the record elicited to date . . . .”

           Nonetheless, CHC argues it will be prejudiced if Plaintiff’s amendment is granted now,

as it will be required to re-depose Plaintiff’s experts, some out-of-state, at considerable expense.


2
 CHC has also argued Plaintiff’s amendment is futile because Plaintiff failed to timely disclose experts necessary to
prove punitive damages. However, given the plasticity of the discovery schedule to date, having been extended on
several occasions by stipulation, and the ongoing state of pre-trial development, the Court’s order below grants the
necessary extension to the scheduling order to accommodate late disclosure.
3
    At a February 2, 2010 hearing, both parties acknowledged this case will not be trial-ready for several months.



                                                            6
CHC argues “[a]t the very least, if the Motion is granted, the discovery schedule should be

extended once again to allow for the re-deposition of Plaintiff’s experts at the expense of

Plaintiff, including attorneys fees and travel costs.”

           One factor in determining whether to deny a motion to amend as prejudicial is whether

the prejudice can be lessened by attaching curative conditions. Id. at 256 (the trial court has

discretion to grant an amendment subject to costs) (citing Reporter’s Notes, V.R.C.P. 15). Other

jurisdictions have interpreted rules synonymous to 15(a) as permitting the court to condition

amendments on the late-filing party reimbursing the other party for resulting expenses including

attorney’s fees. See, e.g., Fengler v. N.W. Conn. Homes, 575 A.2d 696, 699 (Conn. 1990)

(noting the remedial purpose of permitting amendments subject to conditions); Leased Optical

Departments-Montgomery Ward v. Opti-Center, 120 F.R.D. 476, 480-82 (D.N.J. 1988)

(interpreting Federal Rule 15(a) to allow attorney’s fees).4

           Plaintiff’s rationale for her late amendment, that her punitive damages claim only

recently became apparent as a result of discovery, is reasonable only to a point. As argued by

Defendant, the Court is left unconvinced that the circumstances now proffered as grounds for

punitive damages were not patent prior to the depositions of a number of experts. While

declining to deny the motion to amend on account of this delay, the Court must balance

Plaintiff’s ability to pursue her rightful claims, with CHC’s right to avoid duplicative expenses.

           Weighing these factors, the Court will require Plaintiff to tender to CHC one half of any

estimated costs - including travel and expert witness fees, but excluding attorney’s fees - which

are associated with a demonstrated need to re-depose Plaintiff’s experts in order to address the

issue of punitive damages. This result avoids unduly penalizing Plaintiff for pursuing her claims,



4
    Vermont Rule 15 “is virtually identical to Federal Rule 15 . . . .” Reporter’s Notes, V.R.C.P. 15.


                                                             7
while recognizing that CHC will incur some additional expenses which might have been avoided

if the motion had been made more promptly.

       Based on the foregoing, it is hereby ORDERED:

       Plaintiff’s Motion to Amend her Complaint is GRANTED.

       It is further ordered Plaintiff shall tender to CHC one half of any estimated costs -

including travel and expert witness fees, but excluding attorney’s fees - which are associated

with a demonstrated need to re-depose Plaintiff’s experts in order to address the issue of punitive

damages.

       The parties shall within 5 days of this entry confer in good faith regarding an extension to

the existing scheduling order. Such stipulated proposal shall be submitted to the Court within 20

days of this entry, or each party shall submit its separate proposal in the event of disagreement,

with a Rule 26(h) affidavit explaining the grounds for dispute.



       Dated                       , at Newfane, Vermont.



                                              _________________________
                                                    John P. Wesley
                                                    Presiding Judge




                                                 8
