The opinion of the court was delivered by: SAM A. CROW
On May 6, 1989, Lance Foster, a student at the University of Kansas, was injured when a "large coke machine" fell on him at his scholarship hall. Foster was transported to Lawrence Memorial Hospital (LMH) in Lawrence, Kansas. At LMH, Foster received treatment from Dr. Michael Geist. Foster was later "life-flighted" to the Kansas University Medical Center in Kansas City, Kansas. On May 7, 1989, Foster died.
On April 30, 1991, Mary Alice Foster, as representative of the estate of Lance Foster, and Wade and Mary Foster, individually, brought this action against LMH, Michael Geist, M.D. and John Doe Defendants (1-3) for negligence and violation of "the Social Security Act § 1867(a)(b)(1)(A) as amended and/or 42 U.S.C. § 1395, and 42 U.S.C. § 1395dd . . ."
On January 9, 1992, this court issued an order denying LMH's Fed. R. Civ. P. 12(b)(6) motion to dismiss the plaintiffs' 42 U.S.C. § 1395dd "COBRA" claim. In that order the court granted Geist's and LMH's motion to determine the place of trial. This case will be tried in Topeka, Kansas. On March 24, 1992, the plaintiffs filed their first amended complaint.
On September 11, 1992, this court granted in part and denied in part LMH's motion for summary judgment. In that order, the court granted LMH's motion for summary judgment on the plaintiffs' COBRA claims. The court also granted LMH summary judgment on some, but not all, of the plaintiffs' negligence claims.
On December 10, 1992, the court denied Dr. Michael Geist's motion for partial summary judgment, or in the alternative, motion to strike on plaintiffs' spoliation of evidence claim. The court concluded that Kansas would, under the circumstances of this case, recognize the tort of spoliation. The court also concluded that genuine issues of fact precluded ...