Palacio, et al v. United States of America

Filing 131

STIPULATION AND ORDER REGARDING DAMAGES signed by Judge John A. Mendez on 9/29/2015. (Michel, G.)

1 BENJAMIN B. WAGNER
United States Attorney
2 VICTORIA L. BOESCH
CHI SOO KIM
3 Assistant United States Attorneys
501 I Street, Suite 10-100
4 Sacramento, CA 95814
Telephone: [phone]
5 Facsimile: [phone]
[e-mail]
6 [e-mail]
7 Attorneys for the United States
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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I. P., A MINOR, BY AND
THROUGH HER GUARDIAN AD LITEM,
FACUNDO PALACIO DIAZ; MICAELA
PALACIO,

SECOND JOINT STIPULATION AND
ORDER REGARDING DAMAGES

Plaintiffs,

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JUDGE: HON. JOHN A. MENDEZ
CTRM.: 6, 14th Floor

v.

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CASE NO. 2:13-CV-01012 JAM-CKD

UNITED STATES OF AMERICA,
TRIAL DATE: SEPTEMBER 24, 2015
Defendant.

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Defendant the United States and Plaintiffs I.P. and Micaela Palacio respectfully submit the

19 following further Joint Stipulation and Proposed Order regarding damages. The Court previously
20 approved the parties’ first Joint Stipulation Regarding Damages. [Dkt 126] The parties have met and
21 conferred to narrow the damages issues in order to streamline trial proceedings and conserve the parties’
22 and the Court’s time and resources. In the event of a liability finding following trial, the parties further
23 stipulate to the following:
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A.

Plaintiffs and the United States have each submitted life care plans for Plaintiff I.P.’s future
care. Plaintiffs submitted the life care plan from its expert, Karen Preston. Plaintiffs’ life
care plan is comprised of the last 7 pages of Exhibit 16, titled “Life Care Plan Tables.” The
United States submitted the life care plan from its expert, Tim Sells. Defendant’s life care
plan is Exhibit 247.

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JOINT STIPULATION AND ORDER REGARDING DAMAGES
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B.

The life care plans of Plaintiffs and the United States both identify specific items of care, the
costs for each item of care, and the frequency and/or quantity for each item of care for
Plaintiff I.P.

C.

Attendant care is one component of the parties’ life care plans. Both parties’ life care plans
provide for 24-hour attendant care. The difference is between the type of attendant care and
the quantity of Case Manager hours.

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1) Plaintiffs’ life care plan provides for 24-hour agency Licensed Vocational Nurse
(“LVN”) attendant care and 24 hours per year of Case Manager time. Exh. 16 at p.2
(“Case Manager” entry in table titled “Future Ancillary Care & Periodic
Evaluations”) and p.11, for “Home/ Facility Care.”

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2) The United States’ life care plan provides two proposals for attendant care: (a) 24hour private hire Home Health Attendant (“HHA”) care, two weeks of 24-hour
agency LVN care to account for time off for the HHA, 48 hours per year of Case
Manager time, annual Payroll Services, and 100 hours for the first year of
Conservator-Fiduciary time (and 60 hours per year thereafter); (b) 18-hour private
hire LVN care, 6-hour private hire HHA, two weeks of 24-hour agency LVN care to
account for time off of the private hire LVN or HHA, 48 hours per year of Case
Manager time, annual Payroll Services, and 100 hours for the first year of
Conservator-Fiduciary time (and 60 hours per year thereafter). Exh. 247 at p18.

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D.

The United States designated and disclosed an insurance expert, Paul Adams. The United
States life care plan takes into consideration insurance for the costs for certain items of care,
as provided by Mr. Adams. Plaintiffs’ life care plan (Preston) did not take insurance into
account. Plaintiffs agree that the United States is entitled to an offset for insurance.

E.

Except for attendant care, Plaintiffs accept all the items of care and costs as presented in the
United States’ life care plan (Sells), which includes costs that have taken insurance into
account. Plaintiffs also accept the United States’ life care plan (Sells) recommendation for
48 hours per year of Case Manager time and 100 hours for the first year of ConservatorFiduciary time (and 60 hours per year thereafter). Therefore, insurance-related issues are no
longer in dispute and the United States will not present testimony at trial from its insurance
expert, Mr. Adams.

F.

Plaintiffs and the United States have each disclosed and designated one life expectancy
expert for trial. Plaintiffs’ life expectancy expert, Dr. Ira Lott, submits a life expectancy
opinion for Plaintiff I.P. to age 28. The United States’ life expectancy expert, Steven Day,
submits a life expectancy opinion for Plaintiff I.P. to age 20-24.

G.

Plaintiffs and the United States have each disclosed and designated an economist who has
submitted damages calculations for the present cash value for Plaintiff I.P.’s future medical
expenses using the parties’ respective life care plans and life expectancy opinions. Plaintiffs’
economist, Peter Formuzis, has submitted damages calculations for the present cash value for
Plaintiff I.P.’s future medical expenses using Ms. Preston’s life care plan and Dr. Lott’s life
expectancy opinion and a calculation using a 20 year additional life expectancy (to age 23).
The United States’ economist, Erik Volk, has submitted damages calculations for the present

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JOINT STIPULATION AND ORDER REGARDING DAMAGES
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cash value for Plaintiff I.P.’s future medical expenses using Mr. Sell’s life care plan and Dr.
Day’s life expectancy opinion. Mr. Volk also included the cost of insurance premiums and
out-of-pocket costs so that Plaintiff I.P. could purchase insurance and pay out-of-pocket costs
in the event that she lost her current health insurance for some reason

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H.

As part of the stipulation, the parties agreed to include in Plaintiff I.P.’s agreed-upon future
medical expenses, the cost of insurance premiums and out-of-pocket costs so that she could
purchase insurance and pay out-of-pocket costs in the event that she lost her current health
insurance for some reason.

I.

Because Plaintiffs accept all the items of care and costs as presented in the United States’ life
care plan (Sells) except for attendant care, the parties have reached agreement on the present
cash value amount for all of I.P.’s future medical expenses except for attendant care as
follows:

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1) If the Court determines that Plaintiff I.P. has a life expectancy to age 23, and the
Court applies the net discount rate offered by the United States’ economist Erik Volk,
the present cash value for I.P.’s future medical expenses for all items except for home
attendant care would be $517,882.

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2) If the Court determines that Plaintiff I.P. has a life expectancy to age 23, and the
Court applies the net discount rate offered by Plaintiffs’ economist Peter Formuzis,
the present cash value for I.P.’s future medical expenses for all items except for home
attendant care would be $544,139.

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3) If the Court determines that Plaintiff I.P. has a life expectancy to age 28, and the
Court applies the net discount rate offered by the United States’ economist Erik Volk,
the present cash value for I.P.’s future medical expenses for all items except for home
attendant care would be $635,815.

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4) If the Court determines that Plaintiff I.P. has a life expectancy to age 28, and the
Court applies the net discount rate offered by Plaintiffs’ economist Peter Formuzis,
the present cash value for I.P.’s future medical expenses for all items except for home
attendant care would be $676,471.

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J.

If the Court determines that Plaintiff I.P. has a life expectancy to an age other than to age 23
or to age 28, the parties will need to submit to the Court revised damages figures based on
the Court’s life expectancy finding and respectfully request the opportunity to do so.

K.

The remaining damages issues to be tried at trial are the following:

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1) Plaintiff I.P.’s life expectancy;

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2) What type of attendant care Plaintiff I.P. needs;

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3) The present cash value for this future attendant care;
4) The amount of Plaintiff I.P.’s projected lost earnings; and

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5) The net discount rate(s) to apply.

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L.

The parties will present testimony at trial on these remaining damages issues from the
following experts: Dr. Luis Montes (Plaintiffs’ medical expert), Ms. Karen Preston
(Plaintiffs’ life care planner), Dr. Peter Formuzis (Plaintiffs’ economist), Dr. Ira Lott
(Plaintiffs’ life expectancy expert), Dr. Joseph Capell (Defendant’s medical expert), Mr. Tim
Sells (Defendant’s life care planner), Mr. Erik Volk (Defendant’s economist), and Dr. Steven
Day (Defendant’s life expectancy expert).

M.

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In the event of a liability finding and imposition of judgment against the United States, the
United States will not request that the Court impose a reversionary trust that pays medical
expenses only as they are incurred in structuring the damages payment.

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Respectfully submitted,

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BENJAMIN B. WAGNER
United States Attorney

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10 Dated: September 29, 2015

By:

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/s/ Victoria L. Boesch
VICTORIA L. BOESCH
Assistant United States Attorney
/s/ Chi Soo Kim
CHI SOO KIM
Assistant United States Attorney
Attorneys for Defendant United States of America

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LAW OFFICE OF BRUCE G. FAGEL & ASSOCIATES

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By:

/s/ Bruce G. Fagel
BRUCE G. FAGEL
Attorneys for Plaintiffs

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IT IS SO ORDERED.
DATED: September 29, 2015
_/s/ John A. Mendez _________________
HON. JOHN A. MENDEZ
UNITED STATES DISTRICT JUDGE

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