Dеnise 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.
No. 13-1579
United States Court of Appeals, Fourth Circuit
May 5, 2014
751 F.3d 214
THACKER, Circuit Judge
As I havе noted, the majority has found that “Attorney Allen labored under a conflict of interest that caused her communications with Blackledge to be so broken that a ‘fundamental step for adequate representation‘-basic trial preparation-failed to occur,” Majority Op., at 197, and that he was “forced to be represented by a lawyer asserting multiple conflicts of interest with whom he had not prepared for trial because of their inability to communicate,” id. at 199. Given the definitive nature in which the majority has spoken, I fail to understand how the district court can “reconsider” these appellate findings or how it can do anything on remand other than appoint Blackledge new counsel and conduct another commitment hearing. I suspeсt that if the district court “reconsidered” the motions on remand and denied them, my colleagues in the majority-to be consistent with the majority opinion-will overturn the district court‘s decision if there is a subsequent appeal.
tion in part to form their opinions regarding whether Blackledge meets the commitment criteria, and they utilized the deposition during their testimony to help explain their opinions. See J.A. 184, 186, 187, 195, 215-16. The admission of the deposition was thus entirely consistent with the well-settled principle that the “serious difficulty” element “turns on the significance of the factual information as viewed by the expert psychiatrists and psychologists.” Francis, 686 F.3d at 275. Regardless, it bears repeating that to whatever extent the district judge may have believed Blackledge‘s testimony was relevant, the judge had Blаckledge‘s deposition testimony before him, and Blackledge has not explained what additional relevant testimony he would have given at the commitment hearing.
V
Based on the foregoing, I dissent. I would affirm the judgment of the district court.
Before GREGORY, WYNN, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge THACKER wrote the opinion, in which Judge GREGORY and Judge WYNN joined.
THACKER, Circuit Judge:
Appellant Denise C. Wilkins (“Appellant“) appeals the district court‘s orders striking her expert witness; denying her second motiоn to amend her complaint; and granting summary judgment to Appellee Vicki Montgomery, Assistant Director for Clinical Administration at Central State Hospital. Appellant brought this action against Montgomery after her son, Justin Lamar Davis, was murdered by another patient at Central State Hospital. She filed three claims: grossly negligent supervision, gross negligence under the
The district court struck Appellant‘s expert witness because he was disclosed in an untimely fashion; denied Appellant‘s second motion to amend her complaint to add two defendants because such amendment would be futile; and finally, concluded there was insufficient evidence to support the claims against Montgomery, who was an assistant director in charge of administrative matters at the time of Davis‘s death. For the reasons set forth below, we affirm.
I.
A.
On January 5, 2010, Justin Lamar Davis was transferred to Central State Hospital (“CSH“), an inpatient facility providing treatment for patients with mental illnesses who are referred by the court system. On February 16, 2010, George Phillips was admitted to CSH while waiting to be prosecuted for attempted capital murder. Both Phillips and Davis were housed in the forensic unit, Ward 39-8.
CSH had a policy whereby staff would issue 24-hour reports (also called “Administrator On Duty” or “AOD” reports) re-
The next day, on February 25, 2010, Phillips and Davis had an altercation in the gymnasium. Phillips attacked Davis from behind, but Davis was not injured. The AOD report, which was 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. It also stated that Dr. Sridhar Yaratha, the psychiatrist on Davis‘s treatment team at CSH, was “aware” of Davis‘s desire to move. Id. In addition, the report stated that after the altercation, Phillips told staff “he was tired of Mr. Davis and that he could have easily snapped his neck.” Id. On the evening and night of February 25, Phillips was “monitored constantly by staff and behavior documented [on] every shift.” Id. Indeed, on that day, and for at least onе week prior, Phillips was on suicide observation status (“SOS“), violence observation status (“VOS“), and escape observation status (“EOS“), which required “15 minute[] monitoring checks by assigned staff.” Id. at 356, 373.
On February 27, 2010, Davis was also on VOS and also required 15 minute checks. The charge nurse, Lawrence Harris, assigned to Essence Thompson, Forensic Mental Health Technician, the duty of carrying out the 15 minute checks that night. However, rather than conducting the required checks, both Harris and Thompson were watching television in a nearby room. Between 9:36 p.m. and 9:56 p.m. that night, Phillips left his room, entered Davis‘s room, and proceeded to strangle Davis to death in his bed. It was not until the following morning, February 28, that another staff member discovered that Davis was dead.
An investigation by the hospital concluded that “[s]tаff [n]eglect” led to Davis‘s murder, and found that “Thompson ... remained seated in the chair directly facing the television” on the night of Davis‘s death, which “provided [] Phillips the opportunity to do serious harm to [] Davis.” J.A. 377. In addition, the hospital report concluded Harris “failed to provide the necessary supervision and leadership required to ensure [] Thompson was at her assigned monitoring post and carrying out her assigned duties. Instead, Mr. Harris sat one seat from [] Thompson directly facing the television.” Id.
B.
Exactly two years after Davis‘s death, February 27, 2012, Appellant-Davis‘s mother-filed suit against CSH, the Commonwealth of Virginia, Vicki Montgomery (“Appellee“), and “Several as of Yet Unidentified Employees of [CSH].”2 See Wilkins v. Cent. State Hosp., No. 3:12-cv-00152-JAG (E.D.Va. Feb. 27, 2012), ECF No. 1. The original complaint contained
On April 4, 2012, Appellant filed the First Amended Complaint (“FAC“). In the FAC, Appellant dropped the state defendants, and the only defendants remaining were Appellee (in her individual and official capacity), who was incorrectly listed as “director” of the CSH, and “Several as of Yet Unidentified Employees of [CSH].” J.A. 9. The FAC contained the same three counts and allegations as the original complaint.
On April 11, 2012, Appellee filed a motion to dismiss, but withdrew that motion on May 4, 2012, when she filed a motion for summary judgment. In the motion for summary judgment, Appellee argued that because she was not director of CSH at the time of Davis‘s death, she had no supervisory responsibility or authority over any security personnel, treatment staff, or medical staff.
The district court entered a pre-trial ordеr and set the trial date for February 19, 2013. Appellant‘s Rule 26(a)(2) expert disclosures were to be produced by October 22, 2012; however, this deadline was moved back to November 21, 2012, by agreement of the parties. The deadline for motions challenging experts was December 21, 2012. On November 21, Appellant provided the name of her purported expert witness, Dr. Pogos H. Voskanian, along with a curriculum vitae, but no written report. Almost two weeks after the November 21 deadline for Rule 26 disclosures-which had been agreed to by Appellant-on December 4, 2012, Appellant disclosed what she called a “preliminary report” by Dr. Voskanian.3 The prelimi-
nary report, as its name suggests, was only one page and simply contained a list of the materials the expert reviewed, аnd 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 patient‘s 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 Appellant‘s expert witness. On December 21, 2012-now one month after the expеrt disclosure date agreed to by Appellant, and on the court‘s deadline for filing motions to exclude experts-Appellant filed an additional, nine-page expert report by Dr. Voskanian.
The district court held a motions hearing on February 7, 2013, and granted the motion to exclude Dr. Voskanian the following day. See J.A. 268-70 (the “February 8 Order“). Appellant then filed a Rule 59 motion to alter or amend the February 8 Order.
In the meantime, on December 27, 2012, Appellant filed a motion for leave to file a second amended complaint. She sought only to add as defendants Dr. Charles Davis-the actual director of CSH at the time Davis was murdered-and Dr. Yaratha.
Appellant filed a timely notice of appeal of the February 8 and April 11 Orders.
II.
We review the district court‘s exclusion of a plaintiff‘s expert witness, its denial of a motion to amend the complaint, and its ruling on a Rule 59 motion to alter or amend for abuse of discretion. See S. States Rack & Fixture, Inc. v. Sherwin-Williams 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). As to the motion to amend the complaint, we review the district court‘s analysis of the law regarding relation back de novo. See Locklear v. Bergman & Beving AB, 457 F.3d 363, 365 (4th Cir. 2006).
We review the district court‘s grant of summary judgment de novo. See Pisano v. Strach, 743 F.3d 927, 932 (4th Cir. 2014). Summary judgment is appropriate if a party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
A.
We first discuss Appellant‘s challenge to the district court‘s exclusion of her expert, Dr. Voskanian. This issue imрlicates both the February 8 Order excluding Dr. Voskanian, and the portion of the April 11 Order denying Appellant‘s Rule 59 motion to alter or amend the February 8 Order.
At the February 7 motions hearing, the district court ruled as follows:
The expert will be excluded. You just can‘t-if we were to allow him to testify it would just turn everything that is in the pretrial order on its head. Let me just say that I think the question of deliberate indifference, if that is the standard used in this case, is one you can argue to the jury based on what the administrators knew and when they knew it. I don‘t think you need an expert on that.
J.A. 558. At the April 10 hearing, regarding the Rule 59 motion, the district court stated,
Th[e] motion [to alter or amend the February 8 Order] will be denied ..., for two reasons. First, the plaintiff was just way late in naming an expert in this case. And I know how hard it is to find experts for casеs like this. But we have those deadlines so we can move in an orderly fashion. And the lateness with
which the expert was identified would not allow that to happen. Second, the expert witness’ report is pretty much a brief of legal conclusions in the case, and I don‘t think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case.
Id. at 661.
The Pre-Trial Order in this case stated, “The parties will disclose the information required under Rule 26(a)(2) on the following schedule: Party with the burden of proof on an issue by October 22, 2012,” which was later moved to November 21, 2012, by consent of the parties. Wilkins v. Cent. State Hosp., No. 3:12-cv-00152 (E.D.Va. filed Aug. 21, 2012), ECF No. 26 at 2 (pre-trial order); see also id. ECF No. 30 (filed Oct. 25, 2012) (order granting consent motion to amend pre-trial order).
[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[.]
In light of this violation, we cannot say the district court abused its discretion in excluding Dr. Voskanian as an appropriate sanction.
If a party fails to provide information or identify a witness as required by
Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Rule 26 disclosures are often the centerpiece of discovery in litigation that uses expert witnesses. A party that fails to provide these disclosures unfairly inhibits its opponent‘s ability to properly prepare, unnecessarily prolongs litigation, and undermines the district court‘s management of the case. For this reason, “we give particularly wide latitude to the district court‘s discretion to issue sanctions underRule 37(c)(1) .”
Saudi v. Northrop Grumman Corp., 427 F.3d 271, 278-79 (4th Cir.2005) (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
In Southern States, we elaborated,
[I]n exercising its broad discretion to determine whether a nondisclosure of evidence is substantially justified or harmless for purposes of a
Rule 37(c)(1) exclusion analysis, a district court should be guided by the following factors: (1) the surprise to the party against whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt thе trial; (4) the importance of the evidence; and (5) the non-disclosing party‘s explanation for its failure to disclose the evidence.
S. States, 318 F.3d at 596-97 (emphasis supplied) (alterations omitted). The burden of establishing these factors lies with the non-disclosing party in this case, Appellant. See id. at 596 (” ‘It is the obligation of the party facing sanctions for belated disclosure to show that its failure to comply with
First of all, the district court was not required to tick through each of the Southern States factors. Southern States explains that district courts have “broad discretion” to decide harmlеssness and “should“-not “shall“-“be guided by” the five factors. S. States, 318 F.3d at 597; see also 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 court‘s exclusion of testimony for
Second, the district court implicitly addressed some of the Southern States factors when deciding whether to exclude Dr. Voskanian as an expert witness. For example, it invoked the third factor when it discussed the disruption of the trial date and Pre-Trial scheduling order. See J.A. 558 (“[I]f we were to allow him to testify it would just turn everything that is in the pretrial order on its heаd.“); id. at 661 (“[T]he plaintiff was just way late in naming an expert in this case.... [W]e have those deadlines so we can move in an orderly fashion. And the lateness with which the expert was identified would not allow that to happen.“). The district court also touched on the fourth factor, when it stated that the expert testimony would not assist a trier of fact. See id. at 558 (“Let me just say that I think the question of deliberate indifference ... is one you can argue to the jury based on what the administrators knew and when they knew it. I don‘t think you need an expert on that.“); id. at 661 (“[T]he expert witness’ report is pretty much a brief of legal conclusions in the case, and I don‘t think it is something that offers expert opinions on the issues on which an expert might be allowed to testify in this case.“). And, as to factor five, Appеllant provided no reason whatsoever for its failure to disclose the evidence in a timely manner. See Appellant‘s Br. 28-29 (providing arguments on the first four factors but not the fifth).
Finally, our own review of the Southern States factors demonstrates that Appellant‘s error was far from harmless. In addition to the reasons provided by the district court, Appellant‘s initial disclosure failed to provide Appellee with any con-
For these reasons, we find no abuse of discretion in the district court‘s exclusion of Dr. Voskanian as an expert witness.
B.
We next turn to Appellant‘s 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: Dr. Davis, director of CSH at the time Justin Davis was murdered, and Dr. Yaratha, the psychiatrist on Justin Davis‘s treatment team at CSH. The district court denied the motion because it would be futile, i.e., there was no evidence of a “pervasive risk of constitutional injury” and no evidence that Drs. Davis and Yaratha were “deliberately indifferent to the knowledge of the risk.” J.A. 659. As explained more fully below, we hold that Appellant‘s proposed third amended complaint would not relate back; therefore, we affirm the district court on any ground in the record[.]” United States v. Aparicio-Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc).
1.
Appellant filed the second motion to amend and proposed amended complaint on December 27, 2012, ten months after the statute of limitations had expired. See Lewis v. Richmond City Police Dep‘t, 947 F.2d 733, 735 (4th Cir. 1991) (“There is no federal statute of limitations for
In determining whether an amended complaint relates back, we look to
An amendment to a pleading relates back to the date of the original pleading when,
...
(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 byRule 4(m) for serving the summons and complaint, 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 party‘s identity.
When an amendment seeks to add a defendant, the focus turns to the notice to that individual or entity. Specifically, as to
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. Int‘l Harvester Co., 627 F.2d 18, 20 (7th Cir. 1980) (“[P]rejudice within the meaning of [Rule 15] is prima facially established where a party named as an additional defendant in the amended complaint is deprived of the defense of the statute of limitations.“); Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir. 1973) (“[A]n amendment adding another party is a new cause of action which cannot be added after the time limitation has expired.“); cf. Goodman, 494 F.3d at 468 (”
2.
The proposed amended complaint in this case clearly meets the first requirement of
Appellant argues that Drs. Davis and Yaratha had notice of the complaint and thus, “there was absolutely no prejudice that could be identified.” Appellant‘s Br. 32. However, the record evidence shows that Dr. Yaratha did not receive notice of the lawsuit against Appellee until he was asked to attend a deposition in the matter on November 8, 2012-eight months after the initial complaint was filed and the statute of limitations had expired, and four months after the time period set forth in
Appellant offers no evidence to the contrary. Instead, she merely contends that Drs. Davis and Yaratha “clearly had notice of the complaint,” based on the allegations that they were represented by the same office as Appellee. Appellant‘s Br. 32. There is zero support in the record for this contention. Rather, it is belied by the record. See J.A. 444, 489 (indicating that Dr. Davis and Dr. Yaratha were represented at their depositions by the law firm Rawls McNelis & Mitchell, not by the Office of the Attorney General, which represented Appellee). Appellant further asserts that Dr. Davis had notice of the lawsuit because he “still has an office and practices medicine [at CSH].” Appellant‘s Br. 35. This assertion is also belied by the record. See J.A. 449-50 (Dr. Davis‘s deposition, stating that he retired from CSH in May 2010).
Appellant also submits that knowledge should be imputed to Drs. Davis and Yaratha because they have ” ‘a sufficient identity of interest with the original defendant.’ ” Appellant‘s Br. 36 (quoting Goodman, 494 F.3d at 474). Goodman states, “we can conclude that when a plaintiff alleges a comprehensible claim against one of a grouр of closely related and functioning business entities or corporations, the other entities in that group, barring a contrary showing, will be charged with knowledge under Rule 15[] of the entity properly answerable to the claim.” Goodman, 494 F.3d at 475.
But in Goodman, the business entities in question were a parent and subsidiary corporation, which were represented by the same lawyers. See Goodman, 494 F.3d at 475. Indeed, the subsidiary corporation in Goodman “concede[d] it had notice but thought ... that Goodman intended to sue [the parent corporation].” Id. This case is markedly different. As explained above, the evidence demonstrates that Drs. Yara-
Therefore, in reviewing the evidence presented at summary judgment, we must conclude that Drs. Davis and Yaratha “received [no] notice of the action” against Appellee within the 120-day period set forth in
C.
We now turn to whether the district court erred in granting summary judgment in favor of Appellee on the
1.
§ 1983 Claim
In order to succeed on a
(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 supervisor‘s 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 supervisor‘s inaction and the particular constitutional injury suffered by the plaintiff.
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994). As to the first element, “[e]stablishing a ‘pervasive’ and ‘unreasonable’ risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury.” Id. As to the second element, a plaintiff “may establish deliberate indifference by demonstrating a supervisor‘s continued inaction in the face of documented widespread abuses.” Id. (internal quotation marks omitted). Finally, as to the third element, “proof of causa-
Appellant fails to provide sufficient evidence on any of these three elements with regard to Appellee. First, there is no evidence that Appellee had actual or constructive knowledge that Harris and Thompson, the charge nurse and mental health technician, were engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to Davis. To the contrary, Appellee was not even working on the night in question, and there is no evidence the staff members had behaved in such a manner in the past such that their conduct was “widespread,” or that they had neglected their duties on “several different occasions.” Shaw, 13 F.3d at 799.
Nonetheless, Appellant argues that Appellee had an overarching duty to keep the patients at CSH safe. See Appellant‘s Br. 12 (citing J.A. 160, 161-62) (Appellee agreed that she “was [in addition to Dr. Davis] rеsponsible for running the hospital” and that the hospital administration had a nondelegable obligation “to provide a safe environment for the patients[.]“). While this may be true, it does not relieve Appellant of the burden of showing a pervasive risk of harm that Appellee knew about, actually or constructively-a burden that Appellant has not met.
In addition, Appellant assumes that Appellee saw all of the AOD reports regarding the tension between Davis and Phillips. But as Appellee points out, she only worked Monday through Thursday during the week that Davis was murdered. 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 weekend. Therefore, the record evidence shows that Appellee would not havе seen the AOD report about the occurrences of February 25, which described the altercation in the gymnasium between Davis and Phillips, because it was generated the following day, February 26. In fact, the only knowledge of harm Appellee had about Davis and Phillips that week was the report from February 24, which reflected that Phillips felt threatened by Davis, and that Phillips had stated he (Phillips) could harm himself or someone else.
Appellant has also failed to show sufficient evidence that Appellee was deliberately indifferent to or tacitly authorized widespread abuses of patient supervision. In this regard, Appellant points to the deposition of the nursing coordinator and supervisor, Bernadette Spruill, who stated that she was not aware that Philliрs threatened to hurt or kill Davis, even though such information was listed in the AOD reports from that week. As a result, Spruill did not “take any actions in terms of staffing the unit to address any concerns regarding Mr. Davis‘s safety.” J.A. 416. While this lack of communication is gravely unfortunate, Appellant proffers no evidence to show either that this was a widespread problem or that Appellee knew about it but did nothing to remedy the situation.
In fact, there was a system in place to address threats like those made to Davis. Phillips was placed on VOS, EOS, and SOS, and was supposed to be monitored every 15 minutes, according to hospital policy. And, the fact that this was not done by staff members on a Friday night, which was Appellee‘s day off, does not impute deliberate indifference to her.
Appellant relies heavily on Slakan v. Porter, 737 F.2d 368 (4th Cir.1984). But
In addition, Dr. Yaratha had considered the idea of moving Davis to a different ward, but after deliberation, decided against it. See J.A. 377 (Dr. Yaratha “met and discussed informally with [other doctors] about moving Mr. Davis. It was decided that the best place to monitor and manage [him] was on ward 8. Mr. Davis was very violent and aggressive before coming to ward 8 and during his first few weeks on ward 8. He would not do well with changing wards.“). Thus, to the extent the decisions of Dr. Yaratha and others can be imputed to Appellee, those decisions clearly illustrate concern and discussion, rather than deliberate indifference.
Finally, Appellee‘s job duties were patently administrative in nature. See J.A. 146-48 (Appellee‘s position description for “Assistant Director for Clinical Administration,” which included, inter alia, “provid[ing] direction to and oversight of the operations of [CSH]“; “assess[ing], develop[ing], monitor[ing], and evaluat[ing] the clinical and forensic operations of the hospital“; and “[p]rovid[ing] administrative and operational supervision to medical/clinical department and forensic services directors“). Nowhere is there a requirement that she have supervision over the security or monitoring of the patients in Ward 39-8.
For these reasons, Appellant has failed to meet her burden on summary judgment, and the district court did not err in granting Appellee‘s motion on the
2.
Gross Negligence
Appellant also brought state law claims for common law grossly negligent supervision, and gross negligence under the
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., 268 Va. 482, 603 S.E.2d 916, 918 (2004). Gross negligence is more serious than simple negligence, which “involves the failure to use the degree of care that an ordinarily prudent person would exercise under similar circumstances to avoid injury to another.” Id.
Proof of gross negligence depends upon the facts and circumstances of the particular case. If fair minded people can differ respecting the conclusion to be drawn from the evidence, a jury question is presented. On the other hand, if the evidence is such that fair minded people cannot differ, the question whether gross negligence has been established is one of law. Meagher v. Johnson, 239 Va. 380, 383, 389 S.E.2d 310, 311 (1990) (internal quotation marks and alterations omitted).
Based on the dearth of evidence provided by Appellant, as explained above, Appellant falls far short of creating a triable issue as to whether Appellee‘s actions, or alleged lack thereof, “would shock fair-
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
STEPHANIE D. THACKER
UNITED STATES CIRCUIT JUDGE