Date: 07-06-2013

Case Style: Scott Boling v. Shadow Mountain Behavioral Health System, LLC

Case Number: CJ-2012-3026

Judge: Mary Fitzgerald

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Kendall Wallace Johnson and Philip Bruce

Defendant's Attorney: David Branscum and Whitney Cheshier Buergler

Description: Scott Boling sued Shadow sued Mountain Behavioral Health System, LLC, UHS of Delaware, Inc., University Health Services, Inc.and Liliana Cardona on negligence theories claiming:

1. Plaintiffs are residents of Tulsa, Tulsa County, State of Oklahoma.

2. Defendant Liliana Cardona is a resident of Tulsa, Tulsa County, State of Oklahoma.

3. Defendant Shadow Mountain is a foreign limited liability company, formed under the laws of Delaware, with its principal place of business in Tulsa, Tulsa County, State of Oklahoma.

4. Defendant UHS of Delaware is a foreign corporation, incorporated in Delaware, with its principal place of business in Pennsylvania.

5. Defendant UHS is a foreign corporation, incorporated in Delaware, with its principal place of business in Pennsylvania.

6. The causes of action arose in Tulsa County, State of Oklahoma. Thus, this Court is a proper venue for this cause of action.

7. This Court has jurisdiction over the causes of action and the parties hereto.

STATEMENT OF FACTS

8. Scott and Brenda Boling adopted I.B. four years ago when I.B. was eleven years old. Prior to her adoption, I.B. had a long and traumatic history of sexual abuse, which caused severe mental and behavioral impairments.

9. Defendants Shadow Mountain, UHS Delaware, and UHS are in the business of providing psychiatric and psychological treatment, counseling, education, and psychotherapy to minor children who have mental and behavioral impairments in the nature suffered by I.B., Plaintiff herein.

10. Defendants UHS and UHS Delaware own and operate Defendant Shadow Mountain.

11. Defendant Cardona was a mental health technician for Defendants Shadow Mountain, UHS Delaware, and UHS from approximately June 2010 to October 2011.

12. In January 2011, Plaintiffs admitted I.B. to Defendants’ outpatient residential therapy program at Riverside Behavioral Health (“Riverside”) for the specific purpose of treating and diagnosing her mental and behavioral impairments caused in part by her history of sexual abuse.

13. While at Riverside, Defendant Cardona facilitated, arranged for, and allowed I.B. and a male resident to have private, intimate and/or sexual contact on at least two occasions.

14. Defendants subsequently discharged I.B. from Riverside in or around September, 2011 and, after an internal investigation, terminated Defendant Cardona from her employment.

15. Plaintiffs Scott and Brenda Boling were then required to admit I.B. to a different treatment facility.

16. Prior to December 23, 2011, the Oklahoma Department of Human Services (“DHS”) initiated an investigation into Defendants’ actions or acquiescence in allowing I.B. to have private, intimate and/or sexual contact with another resident while under Defendants’ care and treatment.

17. At no time did Defendants inform or notify Plaintiffs Scott and Brenda Boling about the private, intimate and/or sexual contact or the investigation thereof.

CAUSES OF ACTION

NEGLIGENCE

18. Plaintiffs re-allege and incorporate by reference all the prior paragraphs in this Petition.

19. On or about January 28, 2011, I.B. was admitted to Riverside.

20. Scott and Brenda Boling specifically explained and described I.B.’s long history of sexual abuse to Defendants and described how she had a history of inappropriate and unhealthy behavior, including sexually acting out or forming unhealthy relationships with males.

21. Scott and Brenda Boling gave their informed consent for Defendants to supervise, care for, and treat I.B. for her mental and behavioral issues.

22. Defendants had a duty of care to both Scott and Brenda Boling and I.B..

23. Defendants breached their duty and standard of care when, on at least two occasions, Defendants facilitated, arranged, or were complicit in allowing I.B. to have sexual contact with a male resident.

24. Defendants did not report any investigation or allegations of the sexual contact to Scott or Brenda Boling to help the procure further proper treatment of I.B..

25. After I.B. was discharged, Defendant Cardona further made personal contact with I.B. on a social networking site, breaching ethical duties and the standard of care.

26. The negligence of Defendants resulted in damages to Plaintiffs in an amount in excess of $75,000.

RESPONDEAT SUPERIOR

27. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

28. Defendant Cardona was an employee of Shadow Mountain, which UHS Delaware and UHS own and operate.

29. Defendant Cardona was acting within the scope of her employment and authority when she facilitated, arranged, or was complicit in allowing I.B. to have sexual contact with another resident.

30. Defendants Shadow Mountain, UHS Delaware, and UHS are liable for the acts of their employee and agent.

31. Defendants’ actions under the liability theory of respondeat superior resulted in damages to Plaintiffs in an amount in excess of $75,000.

NEGLIGENT TRAINING AND SUPERVISION

32. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

33. Defendant Cardona was a mental health technician for Defendants.

34. Her employment position with Defendants required Defendant Cardona to supervise, care for, and provide certain treatments for I.B. and other residents.

35. While in her supervisory role, Defendant Cardona facilitated, arranged, or was complicit in allowing I.B. and another resident to have sexual contact.

36. This contact was harmful to I.B. based on her behavioral and mental health problems caused by her history of sexual abuse, which Defendants knew or should have known about.

37. Defendants Shadow Mountain, UHS Delaware, and UHS failed to properly train and supervise Defendant Cardona in how to supervise and care for patients with mental and behavioral disorders associated with sexual abuse.

38. Defendants’ negligent training and supervision resulted in damages to Plaintiffs in an amount in excess of $75,000.

NEGLIGENCE PER SE

39. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

40. In addition to the duty Defendants have to exercise ordinary care, there are also other duties imposed on Defendants by various statutes and regulations applicable to the care and treatment of I.B.

41. The violation of those statutes and regulations were a direct cause of Plaintiffs’ injuries.

42. The applicable various statutes and regulations were in force and effect at the time of Defendants’ violations and conduct,

43. The Plaintiffs were the type of class the various regulations and statutes sought to protect.

44. The injuries sustained by Plaintiffs due to Defendants’ conduct were also the type of injury the various regulations and statutes sought to prevent.

45. Defendants’ violation of the various regulations and statutes resulted in damages to Plaintiffs in an amount in excess of $75,000.

BREACH OF FIDUCIARY DUTY

46. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

47. Plaintiffs reasonably placed their trust and confidence in Defendants for the care, treatment, and supervision of I.B.

48. Defendants knowingly accepted Plaintiffs’ trust and confidence to undertake the care, treatment, and supervision of I.B. on behalf of Plaintiffs.

49. Defendants breached this fiduciary duty by arranging or being complicit in allowing I.B. to have sexual contact with another resident while I.B. was in their care and supervision.

50. Defendants’ breach directly resulted in damages to Plaintiffs in an amount in excess of $75,000. BREACH OF CONTRACT

51. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

52. On or around January 28, 2011 Plaintiffs Scott and Brenda Boling signed a Parent/Legal Guardian Contract for Treatment (the “Contract”).

53. The Contract was contained in the Riverside Behavioral Health Patient Care Handbook (the “Handbook”).

54. The terms of the Handbook expressly and/or impliedly created the terms, conditions, obligations, and promises that both Plaintiffs and Defendants were required to follow.

55. The Handbook expressly states that Defendants would not allow sexual contact between patients.

56. Defendants facilitated, arranged, or were complicit in allowing I.B. to have sexual contact with another resident, thus breaching the Contract.

57. As a result of Defendants’ breach of contract, Plaintiffs have sustained damages in excess of $75,000 or, alternatively, damages in an amount that will put Plaintiffs in a position in as good a position had Defendants not breached the contract.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

58. Plaintiffs re-allege and incorporate by reference all of their prior paragraphs in this Petition.

59. Defendants’ actions in the setting in which they occurred were so extreme and outrageous as to go beyond all possible bounds of decency and would be considered atrocious an utterly intolerable in a civilized society.

60. Defendants’ actions intentionally or recklessly caused severe emotional distress to Plaintiffs beyond that which a reasonable person could be expected to endure.

61. Defendants’ actions resulted in damages to Plaintiffs in an amount in excess of $75,000.

PRAYER FOR RELIEF

WHEREFORE, premises considered, Plaintiffs pray for judgment against Defendant Shadow Mountain Behavioral Health System, LLC, Defendant UHS of Delaware, Inc., Defendant United Health Services, Inc., and Defendant Liliana Cardona in an amount in excess of $75,000, including all actual damages, punitive damages, costs, interest, and for a reasonable attorney fee and for such other relief as the Court deems just.

Shadown Mountain Behavioral Halth System, LLC, UHS of Delaware, Inc., and University Health Services, Inc. appeared and answered as follows:

1. Each and every allegation in the Plaintiffs’ Petition is denied, including the prayer for relief, unless specifically admitted in this Answer.

2. These Defendants are without sufficient information to either admit or deny the allegations contained in Paragraphs 1, 2, 8, 17 and 24 of the Petition. As such, these allegations are denied.

3. With regard to the allegations contained in Paragraph 3 Plaintiffs’ Petition, it is admitted that Defendant Shadow Mountain Behavioral Health System, L.L.C. is a limited liability company, formed under the laws of Delaware, with its principal place of business located in King of Prussia, Pennsylvania. All other remaining allegations contained in Paragraph 3 are denied.

4. With regard to the allegations contained in Paragraph 4 Plaintiffs’ Petition, it is admitted that Defendant UHS of Delaware, Inc. is a foreign corporation, incorporated in Delaware, with its principal place of business located in King of Prussia, Pennsylvania. All other remaining allegations contained in Paragraph 4 are denied.

5. With respect to the allegations contained in Paragraph 5 of Plaintiffs Petition, it is admitted that Defendant Universal Health Services, Inc. is a foreign corporation, incorporated in Delaware, with its principal place of business in King of Prussia, Pennsylvania. All remaining allegations contained in Paragraph 5 are denied.

6. With respect to the allegations in Paragraph 6 of Plaintiffs’ Petition, it is admitted that the allegations contained within Plaintiffs’ Petition arose in Tulsa County, State of Oklahoma. However, the remaining allegations contained in Paragraph 6 are legal conclusions to which no response is required. To the extent a response is required, the allegations are denied.

7. The allegations contained in Paragraphs 7, 21, 22, 24, 40, 47 and 48 of Plaintiffs’ Petition are legal conclusions to which no response is required. To the extent a response is required, the allegations are denied.

8. With respect to the allegations contained in Paragraph 9 of Plaintiffs’ Petition, it is admitted that Defendant Shadow Mountain Behavioral Health System, L.L.C. d/b/a Shadow Mountain Behavioral Health System provides behavioral health care services to children and adolescents. It is further admitted that UHS of Delaware, Inc. is a healthcare management company that provides management services to Shadow Mountain Behavioral Health System, L.L.C. In addition, it is admitted that Defendant Shadow Mountain Behavioral Health System, L.L.C. d/b/a Shadow Mountain Behavioral Health System is an indirect subsidiary of Defendant Universal Health Services, Inc. All remaining allegations are denied.

9. The allegations contained in Paragraph 10 of Plaintiff’s Petition are denied. Defendants advise that Shadow Mountain Behavioral Health System, L.L.C. owns and operates Shadow Mountain Behavioral Health System. Defendants further advise that Defendant Shadow Mountain Behavioral Health System, L.L.C. d/b/a Shadow Mountain Behavioral Health System is an indirect subsidiary of Universal Health Services, Inc. and that UHS of Delaware, Inc. provides management services to Shadow Mountain Behavioral Health System, L.L.C.

10. The allegations contained in Paragraphs 11, 12, 13, 14, 15, 18, 19, 20,23, 25,26, 27, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 41, 44, 45, 46, 49, 50, 51, and 52 through 61 of Plaintiff’s Petition are specifically denied. Defendants specifically deny that they, or any of their employees and/or agents, were negligent in any manner during the care and treatment of the Minor Plaintiff. Moreover, Defendants and all of their employees and agents performed all care and treatment relating to the Plaintiffs properly and within the standard of care applicable to these Defendants.

11. With regard to the allegations contained in Paragraph 16 of Plaintiffs’ Petition, it is admitted that pursuant to Defendants’ report of the minor plaintiff’s allegation that she and another patient had hugged and kissed, but not had sexual intercourse, an investigation by the Oklahoma Department of Human Services was conducted. All remaining allegations are denied.

12. The allegations contained in Paragraphs 14 and 33 of Plaintiffs’ Petition are admitted.

13. With regard to the allegations contained in Paragraph 34 of Plaintiffs’ Petition, it is admitted that as a Mental Health Technician, Defendant Cardona provided direct care services and management of children and adolescent patients as prescribed by the physician, therapist, and the treatment team. All remaining allegations are denied.

14. With regard to the allegations contained in Paragraphs 40, 42 and 43 of Plaintiffs’ Petition, Defendants are without sufficient information to either admit or deny these allegations. As such, these allegations are denied

15. These Defendants specifically deny that any act or omission on the part of their employees was the direct or proximate cause of any injury to Plaintiffs.

16. Since discovery has not begun, these Defendants reserve the right to amend their Answer in any manner necessary.

Affirmative Defenses

1. The Petition fails to state a claim against these Defendants upon which relief can be granted, either in whole or in part.

2. Plaintiffs’ claim is barred by the doctrine of estoppel, either in whole or in part.

3. Plaintiffs’ damages, if any, were proximately caused or contributed to by the negligence or other wrongful act or omission of the Minor Plaintiff. In addition, and in the alternative, Plaintiffs’ damages, if any, were proximately caused or contributed to by the negligence of other parties over whom these Defendants exercised no control.

4. Plaintiffs assumed the risk of the injury alleged.

5. Plaintiff lacks proper standing to bring this action, either in whole or in part.

6. This court lacks subject matter jurisdiction of Plaintiffs’ claims.

7. Defendants deny any negligence in the care and treatment of I.B. during her admission or, any act or failure to act on the part of any agent, servant or employee of Defendants that caused and/or contributed to any injury to I.B.

8. The injuries alleged to have been sustained by I.B. were the result of an unforeseeable intervening or supervening cause or event.

9. Defendants deny responsibility or liability for the criminal acts of third parties.

10. Defendants deny that the actions of Liliana Cardona as described in Plaintiffs’ Petition were foreseeable.

11. Defendants owed no duty of care to the Plaintiffs.

12. Plaintiffs’ claims are subject to the provisions of the Oklahoma Affordable Access to Health Care Act, effective July 1, 2003.

13. Defendants deny that they are liable for any punitive andJor exemplary damages. Defendants deny any act or failure to act on the part of any agent, servant or employee of Defendants in relation to the Plaintiffs sufficient to warrant the imposition of punitive damages.

14. Plaintiffs’ claim for punitive damages violates provisions of the Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution in each of the following ways:

(a) Oklahoma law permits the imposition of unlimited punitive damages that are vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.

(b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by any rational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.

(d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.

(e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably ascertainable, and thus “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.

(f) Oklahoma fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

(g) Oklahoma law permits civil punishment upon a standard of proof less than required for the imposition of criminal sanctions.

(h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.

(i) Oklahoma law and procedures governing Plaintiffs’ punitive damage claim violates the Fifth Amendment guarantee against self-incrimination under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.

(j) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.

15. Moreover, any award of punitive damages in this case would be violative of Defendants’ procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of proportionality regarding punitive damages. Furthermore, post-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages awards are insufficient, and, therefore, violate Defendants’ right to due process of law.

16. Whereas discovery is still ongoing, Defendants reserve the right to plead additional defenses as information is made known to them.

17. Plaintiffs’ claims are subject to the provisions of the Oklahoma Comprehensive Lawsuit Reform Act of 2009, Laws 2009, HB 1603, c. 228, § 2, effective November 1, 2009.

18. Defendants raise the defense of lack of capacity of a party to sue.

19. Defendants are validly-formed and existing limited liability companies and corporations, and are entitled to the protection of the particular business form each has chosen.

20. Plaintiffs have failed to comply with the expert opinion requirements of 12 O.S. § 19(A).

21. Any action by the Plaintiffs against these Defendants is barred by the statute of limitations. Having answered, Defendants Shadow Mountain Behavioral Health System, L.L.C., a foreign limited liability company, UHS of Delaware, Inc., a foreign corporation, and Universal Health Services, mc, a foreign corporation, pray Plaintiffs take nothing and they be awarded their costs, fees and any further relief the Court finds to be equitable.


Liliana Cardon appeared and answered as follows:

1. Defendant Cardon is without proof or information to admit or deny ¶1, ¶13, ¶10, ¶19, ¶21-22, ¶24, ¶30, ¶37, ¶47-48 and ¶52-5 7, and so denies t1ie same.

2. ¶18, ¶27, ¶32, ¶39, ¶46, ¶51 and58 require no answer required.

3. Defendant Cardona is without proof or information admit or deny ¶ 12, ¶ 15, ¶17, ¶20, ¶31, ¶38 and ¶40-44, and so denies the same and demand strict proof thereof.

4. Defendant Cardona admits ¶2. Defendant Cardona is a resident of Tulsa, Tulsa County, State of Oklahoma.

5. Defendant Cardona admits ¶11 in part and denys in part in part. Defendant Cardona was a mental health technician for Defendant Shadow Mountain from approximately June 2011 — October 2011. Defendant Cardona is without sufficient information to admit or deny the remaining allegations and so denies the same and demands strict proof.

6. Defendant Cardona admits ¶14 that “after internal investigation, (her employer) terminated Defendant Cardona from her employment.” She denies the remaining allegations and is without sufficient proof to admit or deny the same and as such denies the same.

7. Defendant Cardona admits ¶16 that “prior to December 23, 2011, the Oklahoma Department of Human Services (“DHS”) initiated an investigation into Defendants’ actions,” and denies the remaining allegations and demands strict proof thereof.

8. Defendant Cardona admits ¶28 that “Defendant Cardona was an employee of Shadow Mountain,” and denies the remaining allegations as she is without sufficient information of knowledge to admit or deny legal relationships of all Defendants at this time.

9. Defendant Cardona admits ¶29 that “Defendant Cardona was acting within the scope of her employment and authority when she worked,” however denies the remaining allegations and demands strict proof thereof.

10. Defendant Cardona admits ¶33 that “Defendant Cardona was a mental health technician for Defendants.”

11. Defendant Cardona admits ¶34 that “Her employment position with Defendants required Defendant Cardona to supervise residents,” however denies the remaining allegations and demands strict proof thereof.

12. Defendant Cardona denies paragraphs ¶13, ¶23, ¶25, ¶26, ¶35-36, ¶38, ¶45, ¶49-50 and ¶59-61, and demands strict proof thereof.

13. Any allegation not expressly admitted herein is denied along with all prayers for relief.

14. Since discovery has not begun, Defendant reserves the right to amend their Answer in any manner necessary.

AFFIRMATIVE DEFENSES

1. The Petition fails to state a claim against Defendant upon which relief can be granted, in whole, or alternatively, in part.

2. Plaintiffs’ claim is barred by estoppel in whole or in part.

3. Plaintiffs’ claim is barred in whole or in part by the bad acts of Plaintiff.

4. Plaintiff I.B. by act or words, gave Defendant Cardona reason to believe by false pretenses, deceit, misrepresentation, and other manipulation or acts, that she must talk with another resident - not have sexual intercourse with him or hug him or kiss him. Furthermore, that one or more of Plaintiffs engaged in other deceits and misrepresentations designed to entrap Defendant Cardona into unwanted conversations with one or more Plaintiffs which they now attempt to use to Plaintiff’s benefit against that of Defendants. Plaintiffs should be barred from their claims based on estoppel, fraud, misrepresentation and deceit.

5. Plaintiff assumed the risk of the injury alleged

6. Plaintiff I.B. placed Defendant Cardona under duress to coerce her to perform acts that she ordinarily would not.

7. Plaintiffs and Defendants were contributory negligent by failing to advise, train or counsel Defendant Cardona that I.B. employs deceptive, misleading and/or manipulative tactics and as otherwise may be discovered.

8. Plaintiffs’ damages, if any, were proximately caused or contributed to in whole or in part by the acts of the Minor Child I.B. or others over whom this Defendant has no control.

9. Defendant denies any negligence on her part or that any injury to Plaintiff was reasonably foreseeable.

10. Should Plaintiff have suffered any injuries, they were not the result of this Defendant’s conduct, but unforeseeable or supervening causes.

11. Defendant Cardona denies any responsibility or liability for the criminal acts of others, if any, contributing to this alleged incident.

12. Defendant Cardona generally denies any liability or the existence of any damages suffered by Plaintiffs as a result of her allowing I.B. to converse with a resident or any other action or inaction by her.

13. Defendant Cardona owed no duty of care to Plaintiffs.

14. Plaintiff has failed to state a claim against Defendant Cardona for breach of contract. Defendant Cardona had no contractual agreement directly with Plaintiffs. Otherwise, there was a failure of consideration. This Defendant had no contract with Plaintiff.

15. Defendant Cardona was injured by a fellow servant who was not present for assistance when he should have been.

16. Should any negligence be found, Defendants were contributorily negligent or the cause in whole of said negligence not this Defendant.

17. Defendant Cardona has the right to contribution, indemnity or set off from other parties and Plaintiffs.

18. Any and all matters complained of occurred during the course of Defendant’s employment with Shadow Mountain and as such Defendant Cardona should be dismissed.

19. This Defendant acted legally within the scope of her employment at all times and as such is not a proper party in this action.

20. This Defendant is an improper party.

21. Failure to allege with specificity any and all statutes and regulations in support of Negligence Per Se as to this this Defendant who is without proper notice to defend this claim.

22. Arbitration agreement if there is any such agreement between any Defendants and Plaintiff precludes jurisdiction in this forum at this time.

23. Assumption of risk by other parties.

24. License and Waiver.

25. Plaintiffs’ claims are subject to the provisions of the Oklahoma Affordable Access to Health Care Act.

26. Defendant denies that she is liable for any punitive and/or exemplary damages. Defendant denies any act or failure to act on her part in relation to the Plaintiffs sufficient to warrant the imposition of punitive damages.

27. Plaintiffs’ claim for punitive damages violates provisions of the Oklahoma and U.S. Constitutions. For example, the imposition of punitive damages under Oklahoma law would violate the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution in each of the following ways:

a) Oklahoma law permits the imposition of unlimited punitive damages that are

vastly disproportionate to any acts or compensatory injury thereby violating the Fourteenth Amendment of the U.S. Constitution.

b) Disproportionate punitive damages constitute an arbitrary and capricious taking of property which is unjustified by any rational governmental interests, thereby violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

c) The award of punitive damages without specific standards to guide the jury’s discretion in determining the amount of damages is contrary to due process under the Fourteenth Amendment of the U.S. Constitution.

d) Oklahoma does not provide a reasonable limit on the amount of any punitive damages award, thus violating the Fourteenth Amendment of the U.S. Constitution.

e) The substance of standards of liability under which punitive damages are sought in this case are ambiguous, subjective, and not reasonably ascertainable, and thus “void for vagueness” under the Fourteenth Amendment of the U.S. Constitution.

f) Oklahoma fails to provide a clear, objective and consistent appellate standard for post-verdict review of punitive damages thus violating the Fifth and Fourteenth Amendments of the U.S. Constitution.

g) Oklahoma law permits civil punishment upon standard of proof less than required for the imposition of criminal sanctions.

h) Oklahoma law permits multiple awards of punitive damages for the same alleged act or omission.

i) Oklahoma law and procedures governing Plaintiffs’ punitive damage claim violates the Fifth Amendment guarantee against self-incriminating under the U.S. Constitution because said claim is penal in nature, while defendant is required to disclose documents and/or other evidence against its interests under the rules of discovery and evidence.

j) The procedural standards for imposing punitive damages are unduly vague and do not furnish the jury sufficient guidance in determining whether and how much to award punitive damages for the alleged tortious acts of the defendants and thereby permits arbitrary and capricious taking of property in violation of the due process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution.

28. Moreover, any award of punitive damages in this case would be violative of Defendant’s procedural and substantive due process rights because circumstances in this case are insufficient to support the reasonableness of an award of punitive damages and there are inadequate legal and procedural constraints imposed on the fact finder’s discretion to impose such awards. The standard for punitive damages lacks sufficiently objective criteria and procedural safeguards to give a jury adequate criteria on an appropriate range of proportionality regarding punitive damages. Furthermore, port-trial procedures and standards for trial court scrutiny of punitive damages awards and standards for appellate review of punitive damages wards are insufficient, and, therefore, violate Defendant’s right to due process of law.

29. Whereas discovery is still ongoing, Defendant reserves the right to plead additional defenses as information is made known to her.

30. Plaintiffs’ claims are subject to the provisions of the Oklahoma Comprehensive Lawsuit Reform Act of 2009, Laws 2009, HB 1603, c. 228, § 2, effective November 1,2009.

31. Defendant raises the defense of lack of capacity of a party to sue.

32. Plaintiffs have failed to comply with the expert opinion requirements of 12 O.S. § 19(A).

33. Any action by the Plaintiffs against Defendant is barred by the statute of limitations.

WHEREFORE, premises considered, the Defendant prays that upon hearing this cause the Court dismiss the action against her, award her attorney fees and costs against CoDefendants and Plaintiff, and any and all relief which this court deems equitable and just.

Outcome: CARTER, MARTHA: JOINT APPLICATION FOR APPROVAL OF SETTLEMENT, ORDER APPROVING SETTLEMENT AND DISTRIBUTION OF SETTLEMENT PROCEEDS SHALL EACH BE FILED UNDER SEAL, TO BE OPEN ONLY UPON ORDER OF THIS COURT. ORDER SUBMITTED AND SIGNED BY THE COURT.

COME NOW the Plaintiffs, Scoff Boling and Brenda Boling, individually and as parents and next friend of 1.8., a minor child, and hereby dismisses with prejudice all their claims and causes of action as against the Defendants, Shadow Mountain Behavioral Health System, L.L.C., a foreign limited liability company, UHS of Delaware, Inc., a foreign corporation, Universal Health Services, Inc., a foreign corporation, and Liliana Cardona, an individual.

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