Hullett v. United States of America
MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 3/31/15. (SAC )
2015 Mar-31 PM 02:40
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SAMMIE L. HULLETT,
UNITED STATES OF AMERICA,
Case No.: 2:12-cv-02831-KOB
This matter comes before the court on plaintiff Sammie L. Hullett’s “Motion to
Reconsider.” (Doc. 92). Hullett asks the court to reconsider its ruling in favor of the United
States of America after a January 20, 2015 bench trial. (Doc. 88).
Hullett’s brief meanders from subject to subject without clear headings or section breaks.
Essentially, Hullett argues that the court should not have allowed the government’s expert, Dr.
Carlton Young, to testify at trial and that without Young’s testimony the government failed to
rebut Hullett’s argument that the Birmingham Veterans Administration Medical Center left a
catheter fragment in Hullett after surgery . Alternatively, Hullett argues that if Dr. Young’s
testimony is allowed, his testimony and the other evidence presented by Hullett prove a case of
negligent mis-diagnosis by Hullett. Hullett’s argues that “[i]t doesn’t seem that this expert can
have it both ways, the fragment, catheter is not in the Plaintiff, but it was lost in December, 2007;
which is it lost or nonexistent or incorrect data reporting.” (Doc. 92, 17).
The court is not persuaded by Hullett’s arguments. Thus, the court DENIES Hullett’s
motion to reconsider.
Hullett filed his complaint on August 28, 2012. (Doc. 1). Hullett’s complaint is a mishmash of unnumbered paragraphs and disjointed headings. Hullett appears to make the following
claims in his complaint:
“Count One Negligence 1,” which appears to be a tort claim for breach of
the standard of care by (1) failing to inspect a catheter before removal; (2)
failing to inspect a wound; (3) failing to account for all hardware used in
catheterization; (4) leaving a foreign body in Hullett; and (5) failing to
diagnose a dangerous condition;
“Negligence Two,” which appears to be a claim for breach of the standard
of care by failing to properly fix Hullett’s catheter line on December 25,
“Count Two,” which appears to be a negligent infliction of emotional
distress claim; and
“Count Three,” which appears to be a medical malpractice claim for
violation of the standard of care, mis-diagnosis, and failure to warn
resulting from the VA’s failure to measure Hullett’s catheter line.
(Doc. 1). The government answered on November 5, 2012. (Doc. 9).
Hullett objected to government expert Dr. Young on January 19, 2014 because,
according to Hullett, Dr. Young is not qualified to interpret radiographs and missed
images of the retained catheter fragment in Hullett. (Doc. 51). The court held a hearing on
the motion on April 16, 2014, and largely denied Hullett’s Daubert motion. (Doc. 70).
The court held a pretrial conference on May 28, 2014. (See unnumbered docket
entry from May 28, 2014). The court entered a Pretrial Order on June 18, 2014 based on
the parties’ proposed pretrial order. (Doc. 75). The Contested Issues of Fact in the Pretrial
Order only discuss whether the VA left a catheter fragment in Hullett. (Doc. 75, 5-6).
Mis-diagnosis is not discussed. (Doc. 75, 5-6). The Agreed Applicable Propositions of
Law in the Pretrial Order only discuss how Alabama law treats retained foreign objects.
(Doc. 75, 6-10). Hullett’s position statement only discusses his retained foreign object
theory of liability. (Doc. 75, 11-12). The government’s position statement only discusses
a retained foreign object theory of liability. (Doc. 75, 12-15).
The court held a bench trial for all of Hullett’s claims on January 20, 2015. All of
Hullett and the government’s evidence focused on whether the VA left a catheter
fragment in Hullett. Hullett did not present evidence related to mis-diagnosis by the VA.
The court ruled in favor of the government and against Hullett. (See unnumbered docket
entry from January 20, 2015).
The court entered Findings of Fact and Conclusions of Law on January 27, 2015.
(Doc. 87). The court also entered a Final Judgment in favor of the government and
against Hullett on January 27, 2015. (Doc. 88).
Hullett filed an amended motion to reconsider on February 19, 2015. (Doc. 92).
Standard of Review
Whether to grant a motion to reconsider under Federal Rule of Civil Procedure 59(e) or
60(b) is within the discretion of the trial court. See Smith v. Casey, 741 F.3d 1236, 1241 (11th
Cir. 2014). A motion to reconsider “must demonstrate why the court should reconsider its prior
decision and ‘set forth facts or law of a strongly convincing nature to induce the court to reverse
its prior decision.’” Fidelity & Deposit of Maryland v. Am. Consertech, Inc., 2008 WL 4080270,
at *1 (S.D. Ala. Aug. 28, 2008) (quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D. 294 (M.D.
Three grounds justify reconsideration of an order: (1) an intervening change in the law,
(2) the availability of new evidence, and (3) the need to correct a clear error or manifest injustice.
See, e.g., Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D. Fla. 1994).
Reconsideration is an extraordinary remedy that should be employed sparingly in the interests of
finality and conservation of scarce judicial resources. Sonnier v. Computer Programs & Systems,
Inc., 168 F. Supp. 2d 1322, 1336 (S.D. Ala. 2001).
As Hullett points out in his motion, “Court opinions are not intended as mere first
drafts, subject to revision and reconsideration at a litigant's pleasure. Motions such as this reflect
a fundamental misunderstanding of the limited appropriateness of motions for reconsideration.”
Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D. Ill. 1988).
Dr. Young’s Daubert Motion
Hullett spends multiple pages in his brief re-arguing his Daubert motion to exclude Dr.
Young. (See Doc. 92, 8-15, 19-21). However, Hullett does not show any intervening change in
the law regarding Daubert motions or any new evidence uncovered since the court ruled on
Hullett’s Daubert motion on April 16, 2014.
Further, Hullett does not even clearly argue that clear error or manifest injustice exists.
Hullett just re-argues his Daubert motion in his motion to reconsider. This tactic is a
fundamental misunderstanding of the limited appropriateness of a motion to reconsider. See
Quaker Alloy Casting Co., 123 F.R.D. at 288.
Negligent Mis-Diagnosis Claim
Hullett also argues that he proved a negligent mis-diagnosis claim at trial and that the
court’s ruling, focused only on the retained foreign object claim, is incorrect. Hullett does not
present any intervening change in the law or new evidence and, thus, bases his argument solely
on the need to correct clear error or manifest injustice. No error or injustice exists, however.
First, Hullett never articulated in his complaint any negligent mis-diagnosis claim
throughout the stages of this litigation. Hullett never proffered an expert witness as would be
required under Alabama law to establish a negligent mis-diagnosis claim. Ala. Code § 6-5-548;
see Sorrell v. King, 946 So. 2d 854, 861 (Ala. 2006). Hullett did not present law, fact, or a
position statement regarding a negligent mis-diagnosis claim in the Pretrial Order. The
government did not mention a negligent mis-diagnosis claim in its position statement or prepare
to defend a negligent mis-diagnosis claim. Hullett did not present evidence to prove a negligent
mis-diagnosis claim at trial.
As the court noted on the record at trial:
Neither plaintiff’s administrative claim nor the complaint filed in this case nor the
pretrial order assert what could conceivably be viewed as a cause of action for
negligent misdiagnosis of the fragment that did not actually exist as a catheter
(Doc. 95, 15). Hullett argues that he did plead a mis-diagnosis claim in his complaint and, thus,
the court’s statement at trial is incorrect. However, the words mis-diagnosis are barely in
Hullett’s confusing and badly structured complaint and even if he had properly plead the claim in
his complaint, he abandoned the claim by trial.
Second, even if Hullett had presented a negligent mis-diagnosis claim, he failed to prove
this claim at trial and, thus, reconsideration would be futile. Hullett offered no expert medical
testimony at trial showing how Hullett’s alleged mis-diagnosis violated the standard of care as
required by Alabama law. As the court noted on the record at trial:
Even if the plaintiff could theoretically amend the complaint to conform to the evidence
that instead of having a fragment he was misdiagnosed as not having a fragment, then I
find that such a claim would be barred by the applicable statute of limitation, statutes of
repose, and the administrative claim requirement of submitting claims to the VA before
Even if those claims could somehow be construed to state a claim for negligent
misdiagnosis, then the defendant is still entitled to judgment because the plaintiff failed to
present any evidence, expert or otherwise, to support a claim for negligent misdiagnosis.
(Doc. 95, 15-16). Instead Hullett traveled on his retained foreign object theory to avoid the need
to present expert testimony regarding the standard of care. He failed to meet his burden of proof
In summary, the court declines to reconsider its judgment in favor of the government and
against Hullett. No intervening change in the law or new evidence exists. Further, no clear error
or manifest injustice exists. Instead, Hullett merely retries his case in his motion to reconsider.
This tactic is a fundamental misunderstanding of the limited appropriateness of a motion to
reconsider. See Quaker Alloy Casting Co., 123 F.R.D. at 288.
Therefore, the court DENIES Hullett’s motion to reconsider.
DONE and ORDERED this 31st day of March, 2015.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?