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Defendant's Attorney: Charles D. Miller and Robert T. Veon

Description: Kansas City, Kansas personal injury lawyers represented Plaintiff, who sued defendants on medical malpractice negligence theories claiming to have suffered more than $75,000 in damages and/or injuries as a direct result of the death of Lula Robertson.


Plaintiff, acting for himself and the Estate of Lula Robertson, alleges Robertson died on August 28, 2018 as a result of Defendants[1] failure to adequately

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staff their Topeka, Kansas nursing home. Defendants generally deny Plaintiff's allegations.

Pursuant to the Scheduling Order entered in this case, comparative fault designations were due by December 6, 2019. (Doc. 26.) On that date, Defendant Manorcare of Topeka KS, LLC filed its comparative fault designation, identifying American Medical Response and Topeka Fire Department “[i]f investigation and discovery reveal negligent assessment, care and treatment of Lula Robertson from August 28, 2018, to the date of her death.” (Doc. 41.) Also on that date, Defendants HCR Healthcare, LLC, HCR Manorcare, Inc., and Promedica Health System, Inc filed their comparative fault designation which, in relevant part, identified the same two parties with the same language.[2] (Doc 42.)

Plaintiffs argue that the designations are improper because Defendants failed to “actually state [they] will be comparing fault against anyone, only that they might at some point in the future.” (Doc. 195, at 2.) Plaintiffs contend that, as a result, they “continued to litigate this case of the belief that there would be no comparative fault at issue.” (Id., at 3.) The Court notes that Plaintiffs did not, however, object to the comparative fault designations at the time of their filing or at any time prior to filing the present motion last week.

Defendants expert designation of Dr. Jeffrey Kerr, filed on March 2, 2022, arguably compares fault with unnamed EMS personnel. (See generally Doc. 1761.) The report makes numerous references to apparent mistakes made by paramedics - removing the I-gel airway and leaving decedent's airway “open to free flowing emesis,” failing to timely identify decedent's heart rhythm, improperly delaying the administration of epinephrine, failing to evaluate decedent's airway with a laryngoscope, and inappropriate management of decedent's airway. (Doc. 176-1, at 10-11.) Plaintiffs argue that the expert designation does not constitute a supplemental designation of comparative fault “as it fails to identify the purported at fault individuals or entities. Indeed, there were multiple emergency responding entities and individuals at the August 28, 2018 scene.” (Doc. 195, at 4.)

Plaintiffs contend that they first became aware that Defendants intended to compare the fault of Scott Hunt and Malcom Gillum during the parties' mediation on June 14, 2022. (Id.) Hunt and Gillum were responding EMS paramedics to the decedent's August 28, 2018, choking event. Plaintiffs complain that the names of Hunt and Gillum “appear nowhere in the defective designations of comparative fault filed December 6, 2019, nor in Dr. Kerr's report.” (Id.) Plaintiffs argue that “[a]ny permitted comparison of fault at this stage of litigation would constitute significant prejudice to plaintiffs and undue delay in a case that has been pending since March 16, 2019.” (Id.) Defendants respond that the comparative fault designations are appropriate because 1) they timely identified parties with whom they intended to compare fault; they questioned Plaintiffs' experts “concerning fault and actions of paramedics” and defense expert Dr. Kerr's report “fully explained” their allegations of comparative negligence; and 3) Plaintiffs chose not to depose Dr. Kerr or identify rebuttal experts. (See generally Doc. 197.)



Under Kansas law, the issue of comparative fault is governed by K.S.A. §60-258a. Pursuant to the concept of comparative fault, a defendant has a right to have the fault of all participants in an occurrence measured in one action, and to reduce his or her liability by the amount of fault attributable to the other participants, irrespective of whether they are joined as parties or are immune from liability.” Hefley v. Textron, Inc., 713 F.2d 1487, 1496 (10th Cir.1983); see also Lawson v. Australian Defense Indus. Ltd., No. 95-2322, 1996 WL 159642, at *1 (D.Kan. Apr. 4, 1996) (holding that “a party asserting a claim under the Kansas comparative-fault statute, K.S.A. 60-258a, may pursue only one action to
adjudicate the fault as to everyone whose fault might compared. Such comparison includes the fault of both parties and non-parties.”).


Kansas courts interpreting the statute have held that, where the possibility exists that multiple parties are at fault for tort claims and plaintiff does not bring claims against all such parties, the party or parties sued will be responsible only for their proportionate share of damages. Haysville U.S.D. No. 261 v. GAF Corp., et al., 233 Kan. 635, 666 P.2d 192, 198 (1983) (citation omitted). Thus, under Kansas law, a defendant is entitled to compare its fault to any other individual or entity potentially at fault for plaintiff's alleged damages in tort, even if that defendant “missed the court's deadline for designating parties at fault as is set out in the scheduling order.” Wheeler v. Numark Industries Co., Inc., No. 02-2444CM, 2006 WL 763664, at *6 (D. Kan. March 24, 2006).

It is undisputed that Defendants filed their comparative fault designations in a timely manner. Plaintiffs argue, however, that the designations insufficiently set forth the individuals or entities whose fault was to be compared. Plaintiffs argue -and the Court agrees - that the underlying designations (Docs. 41, 42) in are improperly vague and do not “actually state” that Defendants “will be comparing fault against anyone,” but rather merely indicate that they might at some point in the future.” (Doc. 195, at 2.)...

Outcome: "IT IS THEREFORE ORDERED that Plaintiffs' Motion to Strike (Doc. 195) is DENIED.

IT IS SO ORDERED." Murray v. Manorcare of Topeka KS, LLC (D. Kan. 2022)

Plaintiff's Experts:

Defendant's Experts: Dr. Jeffrey Kerr

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