Hill v. United States of America et al

Filing 81

MEMORANDUM DECISION AND ORDER denying 77 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

SEAN HILL
Case No. 1:11-cv-00413-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,

Defendant.

INTRODUCTION
Before the Court is Plaintiff Sean Hill’s Motion for Attorney’s Fees Pursuant to
F.R.C.P. 37(c)(2) (Dkt. 77). Hill argues that he is entitled to attorney’s fees pursuant to
37(c)(2) “because Defendant unreasonably failed to admit negligence, and unreasonably
failed to admit past medical expenses and certain items on the Life Care Plan were
reasonable, necessary, and proximately caused by the Defendant’s negligence.” Pl’s
Reply, p. 1, Dkt. 79. After reviewing the motion and facts the Court will deny the motion
as set forth below.

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
Plaintiff Sean Hill suffered a spinal cord injury after seeking treatment from Terry
Reilly Health Services, a community health center. During his second visit to Terry
Reilly, Hill saw Kyle George, a physician’s assistant. Mr. George ordered a series of
spine x-rays be taken to investigate the source of Hill’s back pain. After the x-rays had
been taken but before the radiologist returned a report, Mr. George left for a
Thanksgiving vacation. He did not return to the clinic’s Caldwell location until a couple
of weeks later. No one at Terry Reilly reviewed the spinal x-rays while Mr. George was
on vacation. In the meantime, Hill suffered a spinal cord injury resulting from an
undiagnosed epidural abscess.
On September 2, 2011, Hill filed a complaint, alleging that he received negligent
medical services from Terry Reilly, which proximately caused his spinal cord injury.
Compl. ¶¶ 20-12, Dkt. 1. Because Terry Reilly is deemed an “employee” of the Public
Health Service pursuant to 42 U.S.C. § 233(g)-(n), the United States assumes liability for
the acts and omissions of Terry Reilly. Hill therefore named the United States as the
defendant. In its answer, the United States denied Hill’s allegations. Answer, ¶ XVII, Dkt.
6.
On February 4, 2013, Hill first served requests for admission on the United States.
The United States responded on March 8, 2013. In its responses to the requests for
admissions, the United States denied Kyle George was negligent and denied that Kyle
George’s negligence caused Hill’s damages:

MEMORANDUM DECISION AND ORDER - 2

REQUEST FOR ADMISSION NO. 4: Admit that Kyle George's failure to
arrange for someone to review records and lab results for his patients while
he was away was a breach in the applicable standard of care
RESPONSE: Deny.
***
REQUEST FOR ADMISSION NO 6: Admit that Kyle George's failure to
coordinate other providers to monitor his patient files in November to
December 2009 was negligent.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 7: Admit that Kyle George's
negligence was a proximate cause of Sean Hill's damages.
RESPONSE: Deny.
Kluksdal Aff. ¶ 3, Ex. B. Hill never asked the United States to admit that Terry Reilly or
Defendant was negligent.
On May 1, 2013, Hill moved for partial summary judgment on the issues of
negligence and proximate cause. The United States offered no defense to allegations
against Terry Reilly but argued that Kyle George was not negligent:
Defendant does not have a defense to the allegations against the clinic. The
defense recognizes that the distinction between asserting that Mr. George
was negligent and that the clinic was negligent is legally irrelevant in the
context of this motion. However, Defendant makes the differentiation
because the distinction does matter to the involved individuals.
Def.’s Resp. to Mot. Sum. Judg. at 3-4, Dkt. 38. On June 21, 2013, the Court entered a
decision granting Hill’s motion. Memorandum Decision and Order, Dkt. 40.
Before the Court entered summary judgment in favor of Hill on the issue of
liability, but after the close of discovery, Hill propounded a second request for

MEMORANDUM DECISION AND ORDER - 3

admissions relating to damages. On June 18, 2013, the United objected to the requests on
the grounds that they were propounded after the close of discovery:
REQUEST FOR ADMISSION NO. 8: Attached hereto as Exhibit "A" is a
Recapitulation of Medical Expenses. Please admit these expenses are
reasonable, necessary, and proximately caused by Sean Hill's spinal cord
injury.
RESPONSE: Defendant objects to Request for Admission No. 8 because it
was not timely propounded within the discovery deadline.
***
REQUEST FOR ADMISSION NO. 11: Attached hereto as Exhibit "B" is
the Economic Report completed by Dr. Barry Ben-Zion. Please admit that
the value of Sean Hill's past loss of household services is $17,644.
RESPONSE: Defendant objects to Request for Admission No. 11 because
it was not timely propounded within the discovery deadline.
REQUEST FOR ADMISSION NO 12: Attached hereto as Exhibit "C" is
the Earning Capacity Evaluation and Life Care Plan completed by Dr
Marry Barros-Bailey. Please admit that the future needs and current costs
identified in the Life Care Plan are reasonable, necessary, and proximately
caused by Sean Hill's spinal cord injury
RESPONSE: Defendant objects to Request for Admission No 12 because it
was not timely propounded within the discovery deadline.
REQUEST FOR ADMISSION NO. 13: Attached hereto as Exhibit "B" is
the Economic Report completed by Dr. Barry Ben-Zion. Please admit that
the present value of the costs associated with Sean Hill's Life Care Plan is
$1,171,028.
RESPONSE: Defendant objects to Request for Admission No. 13 because
it was not timely propounded within the discovery deadline.
REQUEST FOR ADMISSION NO. 14: Please admit that the Life Care
Plan and DL Ben-Zion's calculations based on that plan, sets forth
reasonable and necessary expenses which have been proximately caused by
Sean Hill's spinal cord inju1y

MEMORANDUM DECISION AND ORDER - 4

RESPONSE: Defendant objects to Request for Admission No. 14 because
it was not timely propounded within the discovery deadline.
***
REQUEST FOR ADMISSION NO .. 16: Please admit Sean Hill's past
medical bills associated with the spinal cord injury, as seen on the
Recapitulation of Medical Expenses attached as Exhibit "A", amounts to
$304,801.71.
RESPONSE: Defendant objects to Request for Admission No. 16 because
it was not timely propounded within the discovery deadline.
Kluksdal Aff. ¶ 4, Ex. C.
Hill maintains that the purpose of propounding these requests was to narrow the
issues for trial. In the cover letter accompanying the May 23, 2013 requests for
admission, Plaintiff’s counsel stated: “I believe there are many issues in this case that are
undisputed and I am attempting to narrow those down.” Kluksdal Aff. ¶ 5, Ex D. After
receiving the denial of the requests for admission on damages, Plaintiff’s counsel wrote
on July 11, 2013: “Now that we have a trial date, I need to start scheduling my experts. In
that vein, I don't want to schedule someone unless I have to. Can you tell me what you
will be contesting?” Id. ¶ 6, Ex. E Defense counsel wrote back: "I will contest the
damages." Id. In response, Plaintiff’s counsel wrote: "What portion of the damages will
you contest? For example, the past medical expenses on our recapitulation. Will any of
those be contested?” Id.
Because Defendant never admitted that any portion of the Life Care Plan, nor any
portion of the past medical expenses, were reasonable, necessary, and proximately caused

MEMORANDUM DECISION AND ORDER - 5

by the spinal cord injury, Hill argues that he is entitled to attorney fees pursuant to Rule
37(c)(2).
ANALYSIS
If a party fails to admit what is requested under Rule 36 and if the requesting party
later proves a document to be genuine or the matter true, the requesting party may move
that the party who failed to admit pay the reasonable expenses, including attorney's fees,
incurred in making that proof. The court must so order unless:
(A) the request was held objectionable under Rule 36(a);
(B) the admission sought was of no substantial importance;
(C) the party failing to admit had a reasonable ground to believe that it might
prevail on the matter; or
(D) there was other good reason for the failure to admit.
Fed. R. Civ. P. 37(c)(2) (Emphasis added). The Federal Rules are intended “to secure the
just, speedy, and inexpensive determination of every action.” Fed.R.Civ.P. 1. Parties may
not view requests for admission as a mere procedural exercise requiring minimally
acceptable conduct. They should focus on the goal of the Rules – full and efficient
discovery – not evasion and word play. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 93637 (9th Cir. 1994).
The United States insists that the denials to Hill’s admission requests should be
excepted from sanctions under Rule 37(c)(d) because there was good reason to deny the
requests. Def.’s Resp. at 2, Dkt. 78. The Court agrees. Although the United States’
justification for the denials may appear to Hill as mere “word play,” this is not supported
by the factual record. (Dkt. 74). Hill did not ask the United States to admit that

MEMORANDUM DECISION AND ORDER - 6

“Defend was neg
dant
gligent,” or “Terry Rei Health Clinic was negligent.” Instead, H
r
illy
”
Hill’s
question asked the United Sta to admi that Kyle George wa negligent – an allegation
ns
e
ates
it
e
as
t
the United States co
onsistently denied. The United St
e
tates’ respon were t
nses
therefore
reasonab and not a blatant attempt to fo plaintif to expen excess ti and mo
ble,
t
a
orce
ffs
nd
ime
oney.
Hill has also failed to show the matter wa later prov to be tru requirin the Court
e
as
ved
ue,
ng
t
order san
nctions.
Additionally the denial to Request for Admi
A
y,
ls
ission Nos. 8-16 were proper give
en
that Hill propounde the reque after the deadline f discovery had pass The Co
l
ed
ests
for
sed.
ourt,
as well as both part
a
ties, had an interest in discovery r
responses being compl
leted by the
e
deadline of April 12 2013. (D 16). The United St
e
2,
Dkt.
e
tates cannot be held to pay Hill’s fees
t
simply for refusing to capitula to discov
f
ate
very after th discovery deadline p
he
y
passed.
ORDER
O
IT IS ORDE
T
ERED that the motion for attorne fees (D 77) is D
t
n
ey’s
Dkt.
DENIED.

DAT
TED: July 15, 2014

__________
__________
_____
___
B. L
Lynn Winm
mill
Chief Judge
ited
District Cou
urt
Uni States D

MEMORA
ANDUM DECI
ISION AND ORDER - 7
R