Doe v. United States of America et al

Filing 140

MEMORANDUM AND ORDER denying 134 Motion for Reconsideration. Signed by District Judge Daniel D. Crabtree on 1/8/2021. Mailed to pro se party Mark E. Wisner by regular mail. (ca)

Case 2:16-cv-02315-DDC Document 140 Filed 02/08/21 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN DOE P.M.,
Plaintiff,
v.

Case No. 16-2315-DDC

UNITED STATES OF AMERICA AND
MARK WISNER,
Defendants.

MEMORANDUM AND ORDER
This case is before the court on Defendant United States of America’s Motion for
Reconsideration (Doc. 134). In a Memorandum of Decision Under Rule 52(a) entered
November 2, 2020, this court awarded $1,527,064 in economic and non-economic damages to
plaintiff. Of this amount, $429,405 represented economic damages to compensate plaintiff for
psychiatric treatment outside the Veterans Administration (“VA”) for the rest of his life. The
remaining $667,659 of economic damages compensated plaintiff for the loss of the free health
care benefits with the VA that he had earned through his military combat service. Defendant
asks the court either to reconsider and vacate the award of $667,659, or to place all economic
damages plaintiff received—totaling $1,097,064—in a reversionary trust that would revert to
defendant if not used for health care.
The court construes a motion to reconsider as a motion to alter or amend pursuant to Fed.
R. Civ. P. 59(e) when, as here, a party files the motion within 28 days after entering the order at
issue. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). “Grounds warranting a
motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence
previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.”

Case 2:16-cv-02315-DDC Document 140 Filed 02/08/21 Page 2 of 5

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion to reconsider “is
not appropriate to revisit issues already addressed or advance arguments that could have been
raised in prior briefing.” Ferluga v. Eickhoff, 236 F.R.D. 546, 549 (D. Kan. 2006) (citing
Servants of Paraclete, 204 F.3d at 1012). So, “a motion for reconsideration is appropriate [only]
where the court has misapprehended the facts, a party’s position, or the controlling law.” Id.
(citing Servants of Paraclete, 204 F.3d at 1012). “The decision whether to grant a motion to
reconsider is committed to the district court’s discretion.” Coffeyville Res. Ref. & Mktg., LLC v.
Liberty Surplus Ins. Corp., 748 F. Supp. 2d 1261, 1264 (D. Kan. 2010) (citing In re Motor Fuel
Temperature Sales Practices Litig., 707 F. Supp. 2d 1145, 1166 (D. Kan. 2010)); see also
Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 944 (10th Cir. 1995) (noting “the decision to
grant reconsideration is committed to the sound discretion of the district court”).
Defendant first claims that the court’s award of $667,659 in damages was clear error and
manifestly unjust. The District of Kansas has applied a high standard to claims of manifest
injustice, requiring that the injustice be “apparent to the point of being indisputable.” Layne
Christensen Co. v. Bro-Tech Corp., No. 09-2381-JWL-GLR, 2011 WL 6934112, at *2 (D. Kan.
Dec. 30, 2011) (quoting Tri-State Truck Ins., Ltd. v. First Nat’l Bank of Wamego, No. 09-4158SAC, 2011 WL 4691933, at *3 (D. Kan. Oct. 6, 2011)). According to defendant, the court’s
award expanded the law on damages in Kansas, and therefore is clear error and manifestly
unjust. Defendant contends that plaintiff did not prove defendant caused these damages. And
defendant also claims that they duplicate the award for future psychiatric treatment costs—
thereby violating the Supreme Court’s acknowledgment that the United States should not pay
twice for the same injury. See Brooks v. United States, 337 U.S. 49, 53 (1949) (stating that there

2

Case 2:16-cv-02315-DDC Document 140 Filed 02/08/21 Page 3 of 5

is “no indication that Congress meant the United States to pay twice for the same injury” when
enacting the FTCA).
The court first addresses defendant’s position that the damages award is unprecedented
because it represents the value of an injury—lost medical insurance—that was not caused by
defendant. The court found that plaintiff proved an award allowing him to secure health care
through providers other than the VA is necessary to make him whole. By plaintiff’s combat
service to the United States, he had earned the right to free medical care at VA facilities.
Wisner’s conduct—conduct for which the United States is liable—deprived plaintiff of that right.
Plaintiff adduced persuasive evidence that one way to make him whole for his loss of that
medical care is a damages award sufficient to replace that right by purchasing equivalent private
health care insurance. The court rejects defendant’s position that causation was lacking and the
award conflicts with Kansas law.
As for the damages as duplicative argument, defendant is correct about one thing. Dr.
Ward testified that there “could be” overlap between the damages calculated to provide plaintiff
necessary psychiatric treatment and the damages calculated to replace the value of medical
benefits that he lost. On the other hand, Dr. Ward testified that there is no private insurance plan
comparable to the coverage offered by the VA, thus underestimating the damages arising from
his loss of VA health benefits. Dr. Ward also testified that no overlap may occur because the
private health insurance may not cover certain medications, treatment, or deductibles.
Plaintiff was not tasked with proving damages beyond a reasonable doubt or with
exacting precision. Instead, plaintiff’s burden required him to prove damages by a
preponderance of the evidence. The evidence showed that it was more likely than not that
plaintiff suffered both types of losses. Because of Wisner’s conduct, plaintiff needs significant

3

Case 2:16-cv-02315-DDC Document 140 Filed 02/08/21 Page 4 of 5

psychiatric therapy and medication. Also because of Wisner’s conduct, plaintiff was deprived of
his right to receive free medical care through the VA. Defendant has not shown that it was clear
error or manifestly unjust for the court to award damages to make plaintiff whole for both losses.
Defendant’s next argument is that, if the court will not reconsider the award of $667,659
in damages, it should order all economic damages placed in a reversionary trust. Defendant
argues that such a measure is warranted in this case to avoid a windfall to plaintiff. See, e.g.,
Deasy v. United States, 99 F.3d 354, 355 (10th Cir. 1996) (concluding a reversionary trust was
within the district court’s authority to “ensure[] that plaintiff does not receive a windfall”); State
ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 690 P.2d 380, 385 (Kan. 1984) (“[T]he basic
principle of damages is to make a party whole by putting him or her back in the same position as
if the injury had not occurred, not to grant a windfall.”) (internal quotation marks and citation
omitted); Short v. Wise, 718 P.2d 604, 609 (Kan. 1986) (same).
This court has considered the reversionary trust request twice before. In both cases, the
court decided it was not appropriate. Doe D. P. v. United States, No. 16-2267, Doc. 161, at 48–
49 (D. Kan. Jan. 15, 2021); Leininger v. United States, No. 16-2627-DDC, 2020 WL 6392458, at
*19 (D. Kan. Nov. 2, 2020). The same rationale applies here. The court has considered and
rejected defendant’s argument that any award of damages produces a windfall for plaintiff. This
is not a new argument, although the context in which defendant raises the argument in this case
may be new. Rehashing previously-rejected arguments is not a proper basis for reconsideration.
See Ferluga v. Eickhoff, 236 F.R.D. at 549 (citing Servants of Paraclete, 204 F.3d at 1012). And
certainly it is not manifestly unjust or clear error to permit plaintiff full control of a damages
award that will make him whole.

4

Case 2:16-cv-02315-DDC Document 140 Filed 02/08/21 Page 5 of 5

As a final note, this is the first time defendant has raised the argument that a reversionary
trust is warranted in this case. In Leininger, the court considered defendant’s argument when it
was not preserved in the pretrial order—assuming without deciding that preservation was
unnecessary. 2020 WL 6392458, at *19. But here, defendant neither preserved the request in
the pretrial order nor raised it at trial. Instead, defendant waited until the court awarded damages
and then, but only then, asked the court to impose a reversionary trust in its Rule 59(e) motion.
Defendant argues that its delay was proper, as the issue whether to place an award in a trust does
not ripen until the court awards damages. This logic has some appeal. But it also expands the
scope of Rule 59(e) review beyond that which the rule contemplates—that is, to consider
defendant’s request now is to allow argument that defendant could have presented earlier.
Indeed, defendant did present the argument earlier in both Leininger and Doe D.P. The court
does not find it appropriate for defendant to have waited until a Rule 59(e) motion to raise the
issue for the first time.
IT IS THEREFORE ORDERED that Defendant United States of America’s Motion for
Reconsideration (Doc. 134) is denied.
Dated this 8th day of February, 2021, at Kansas City, Kansas.

s/ Daniel D. Crabtree___________
Daniel D. Crabtree
United States District Judge

5