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Kasem v. Kasem

United States District Court, W.D. Washington, Tacoma

April 4, 2018

JEAN KASEM, Plaintiff,
v.
KERRI HELEN KASEM, et al., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR CONTINUANCE AS MOOT

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on the combined motion to dismiss and motion for summary judgment of Defendant Catholic Health Initiatives (“CHI”). Dkt. 31. Also before the Court is Plaintiff Jean Kasem's (“Jean”) motion for a continuance of CHI's summary judgment motion. Dkt. 34. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL HISTORY

         On June 15, 2017, Jean filed her complaint in this case as the surviving spouse of Casey Kasem (“Casey”) and the personal representative of Casey's estate. Dkt. 1. Jean brought claims for negligence, fraud, and the wrongful death of Casey[1] against CHI and individually named defendants Kerri Kasem, Mike Kasem, Jamil Aboulhosn, Julie Aboulhosn, and Troy Martin. Id. Jean claimed her lawsuit satisfied the diversity jurisdiction requirements of 28 U.S.C. § 1332.

         On October 3, 2017, the individual defendants moved for dismissal based on lack of subject matter jurisdiction. Dkt. 12. Because Casey, Jean (as the personal representative of Casey's estate), and all of the individual defendants in this action were citizens of California, there was no diversity jurisdiction under 28 U.S.C. § 1332. See Id. On October 30, 2017, Jean filed a motion to voluntarily dismiss the individually named defendants. Dkt. 24. On November 8, 2017, the Court granted the motion and dismissed the individually named defendants. Dkt. 28. Because the individually named defendants were dismissed and CHI is a Colorado corporation, the diversity of citizenship requirements under 28 U.S.C. § 1332 are presumably satisfied for Plaintiff's remaining claims against CHI.[2]

         On February 14, 2018, CHI filed its combined motion to dismiss and motion for summary judgment. Dkt. 31. CHI moves for dismissal on the basis that Jean has failed to allege any conduct on the part of CHI that constitutes negligence or some other tort. Id.

         Alternatively, CHI moves for summary judgment on the basis that Jean cannot support her wrongful death or negligence claims with expert testimony to establish a breach of the applicable professional standard of care or causation of any alleged damages. Id.

         On March 5, 2018, Jean responded to CHI's motion to dismiss and moved to continue CHI's summary judgment motion pursuant to Rule 56(d). Dkt. 34. In regards to CHI's motion to dismiss, Jean argues that the complaint alleges sufficient facts “that if accepted as true . . . demonstrate that [CHI]'s actions contributed to a scheme that resulted in the death of Mr. Casey Kasem.” Id. at 2. In response to CHI's motion for summary judgment, Jean seeks a Rule 56(d) continuance to conduct discovery and obtain an expert opinion supporting a theory that CHI negligently contributed to Casey's death. Id. at 3-4.

         On March 9, 2018, CHI replied. Dkt. 36.

         II. FACTUAL BACKGROUND[3]

         On May 30, 2014, Kitsap County Superior Court issued an order requiring an independent medical evaluation of Casey, age 82, at a hospital. Dkt. 1 at 6. On June 1, 2014, Casey was taken from the place he was residing with Jean and evaluated at St. Anthony's Hospital located in Gig Harbor, WA, which is owned and operated by CHI. Id. At the hospital, Casey was examined by Dr. Joseph Regimbal. Id. Casey was accompanied by his daughter, Kerri Helen Kasem (“Kerri”), and his own personal care provider, Dr. Donald Sharman. Id.

         The Kitsap County Superior Court's order was entered as the result of a dispute between Jean and Kerri (along with her siblings from Casey's previous marriage) in regards to the care and guardianship of Casey. Previously, on May 12, 2014, a California court had entered an order assigning Kerri and her siblings as Casey's guardians and legal health care decision-makers. Id. at 4. Kerri was appointed guardian pursuant to her purported authority under a “Durable Power of Attorney for Health Care, ” (“DPA”) executed by Casey in 2007. Id. Also, Kerri and her siblings purportedly “made numerous false allegations to the Los Angeles Adult Protective Services and the Police” that Jean was mistreating Casey. Id. at 3. Jean claims that the DPA was fraudulently obtained, but her complaint states that the California court nonetheless appointed Kerri and her siblings as guardians of Casey.

         After four hours of evaluation, Dr. Regimbal cleared Casey to return to the in-home care he was receiving from Dr. Sharman, where he was living with Jean. Id. However, Kerri requested that Casey remain at the hospital for an overnight observation. Id. The overnight observation was not necessary, but it was allowed by the hospital. Id. Kerri was acting as Casey's guardian and legal decision-maker pursuant to the above-mentioned California court decision. Id. at 4, 6.

         On June 2, 2014, Kitsap County Superior Court entered an order authorizing Casey to be released from the hospital. Id. at 7. After the Kitsap County Court entered the order, Jean called St. Anthony's Hospital and spoke with Dr. Ramon Basa. Id. Dr. Basa informed Jean that the overnight observation went well and that she ...


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