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Draughon v. United States

United States District Court, D. Kansas

April 6, 2018

DONALD DRAUGHON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Donald Draughon brought this Federal Tort Claims Act (“FTCA”) wrongful death action against the United States of America, alleging the Veterans Health Administration (“VA”) was negligent in treating his son William Draughon (“William”), which ultimately led to his suicide. He originally attempted to name William's surviving children as Plaintiffs, but due to his original status as a pro se litigant, they were dismissed.[1] This case was tried to the Court beginning on January 3, 2018. On February 23, 2018, the Court issued an opinion under Fed.R.Civ.P. 52(a), finding in favor of Plaintiff, but withholding an award of damages pending evidence that he provided notice as required by Mo. Rev. Stat. § 537.095.1, to all parties entitled to recover under Mo Rev. Stat. § 537.080.

         On March 23, 2018, Plaintiff filed a Notice of Certification Under Mo. Rev. Stat. § 537.095.1, informing the Court of its efforts to notify three individuals, other than himself, who are entitled to recover under the statute: R.B. and D.C., William's biological children; and Jane Wingerter, William's biological mother. Andrea Brightwell, R.B.'s mother, and Denise Cumberland, D.C.'s mother (“Movants”), retained the same counsel, and filed the following motions: (1) Motions to Serve as Next Friend Pursuant to Federal Rule of Civil Procedure 17(c)(2) (Docs. 192, 193), as to each movant, respectively; and (2) Amended Motion to Intervene (Doc. 198). These motions are fully briefed and the Court is prepared to rule. As described more fully below, the motions to serve as next friend are granted, and the motion to intervene is denied. This matter will be set for a damages and apportionment hearing as soon as practicable. Ms. Wingerter's attorney has entered an appearance on her behalf and she recently filed her own Motion to Intervene (Doc. 204), which is not yet ripe for decision. The Court will consider Ms. Wingerter's motion to intervene at the damages hearing.

         I. Background

         Donald Draughon filed the original Complaint in this matter pro se on June 5, 2014. At the time he filed the case, he notified Brightwell and Cumberland, but they informed him that they did not want to participate and did not want their children to be involved. In June 2015, the Court appointed counsel to represent Mr. Draughon, and the case proceeded through discovery. Plaintiff's counsel contacted Brightwell and Cumberland in August 2016, to inform them about the case, and that their children could potentially be entitled to share in any damages awarded. Plaintiff's counsel met with Ms. Brightwell on August 6, 2016, to discuss the case. Ms. Cumberland declined to meet with Plaintiff's counsel. Both women were deposed in late August 2016.

         On October 23, 2017, counsel Mark Murphy sent an e-mail to Plaintiff's counsel, informing him that Brightwell and Cumberland asked him to represent their interests in this case, and asking if they could speak by phone so that he could “understand everything before agreeing to continue to represent” their interests.[2] According to Plaintiff's brief, Mr. Murphy proceeded to agree to the representation and was present in the courtroom for much of the trial in this case. Mr. Murphy has not entered an appearance, but he filed the instant motions for his clients to serve as next friends for R.B. and D.C., and for intervention.

         II. Discussion

         When a plaintiff brings suit against the United States under the FTCA, the source of law is “the law of the place where the act or omission occurred.”[3] The Court has already determined that Plaintiff's claim arises under Missouri law.[4] Specifically, this action is governed by the Missouri Wrongful Death statute, Mo. Rev. Stat. § 537.080:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
. . . .
2. Only one action may be brought under this section against any one defendant for the death of any one person.

         Here, William's father filed suit and is the only named Plaintiff in this action. Nonetheless, Missouri law provides that any one person entitled to sue under this provision may recover damages without joinder,

provided that the claimant or petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under section 537.080. Any settlement or recovery by suit shall be for the use and benefit of those who sue or join, or who are entitled to sue or join, and of whom the court has actual written notice.[5]

         Recovery under the wrongful death statute by Mr. Draughon therefore must include all persons entitled to share in the proceeds, and the Court must make an apportionment determination “among those persons entitled thereto in proportion ...


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