Wheeler v. United States of America

Filing 104

MEMORANDUM AND ORDER denying 93 Plaintiff's Motion for Leave to Amend Dr. Kurt Krueger's Expert Disclosure. Signed by District Judge J. Thomas Marten on 12/28/2018. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RICKY WHEELER, personally and as the
Special Administrator of the Estate of
Gretchen Konrad, deceased, and as
the father and natural guardian of
L.W., a minor,
Plaintiff,
vs.

No. 17-2249-JTM

UNITED STATES OF AMERICA,
Defendant.

MEMORANDUM AND ORDER

The plaintiff Ricky Wheeler has moved for leave to amend the disclosure of his
expert, Dr. Kurt Krueger, as to the damages for loss of services, care, and guidance due
to the death of Gretchen Konrad. In Wentling v. Medical Anesthesia Serv., 237 Kan. 503, 701
P.2d 939 (1985), the Kansas Supreme Court recognized an economic claim for the loss of
such services and care. Wheeler argues that a recent decision by the same court, Burnette
v. Eubanks, 425 P.3d 343 (2018), decided after the parties disclosed their experts,
potentially changes the rule established in Wentling, such that Dr. Krueger should be
permitted to amend his report.
The defendant opposes the motion (Dkt. 94), arguing that Burnette simply applies
established law—in fact, acknowledging Wentling as the “established standard,” 425 P.3d

at 347—and therefore the decision does not warrant altering Dr. Krueger’s report.
Alternatively, the defendant argues that if Dr. Krueger is allowed to amend his report, it
should be given leave to present its own expert testimony on the issue, and the
opportunity to challenge any amended report by Dr. Krueger. Plaintiff argues in reply
(Dkt. 96) that the court should permit the amendment, but preclude the defendant from
responding by challenging an amended report or presenting its own expert to address
the issue.
The court finds that Burnette does not fundamentally transform Kansas law
regarding so-called Wentling damages so as to justify modification of Dr. Krueger’s
report. Plaintiff in fact concedes that “[i]t is unclear what impact Burnette may have on
this case and other wrongful damages.” (Dkt. 93, at 5). The court concludes Burnette does
not have substantial impact on this case, and so does not warrant modification of the
existing expert report.
Burnette acknowledged that “each case has nuanced circumstances,” 425 P.3d at
347, and its ultimate holding that the district court had erred in submitting a claim for
Wentling damages to the jury was closely tied to the particular circumstances of that case.
In Wentling (as in this case), the claim for Wentling damages was premised on the death
of a spouse and parent. In addition, the claims were accompanied by traditional economic
loss claims for loss of services.
In Burnette, by contrast, the plaintiffs sought Wentling damages for the loss of their
adult son. More importantly, as the court repeatedly stressed, the parents’ claim
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presented “no ‘loss of services’ claim of the type that are more typically understood as
economic damage.” 425 P.3d at 357. The plaintiffs’ evidence for such damages were
“generalized” in nature, taking the form of “evidence about Joel's close relationship and
loving companionship with his parents, his attentiveness, or his caring nature.” Id. at 361,
364.
Reduced to its essence, plaintiffs simply asked the jury to be fair and just
when considering this component of their claimed economic losses, which
is the same valuation methodology used for noneconomic damages. The
evidence provided nothing on which a jury could base an economic
valuation—even under Wentling's presumption that juries are capable of
converting economic losses into their monetary equivalents on the basis of
their own experience and knowledge. Wentling, 237 Kan. 503, Syl. ¶ 1, 701
P.2d 939.
425 P.3d at 364.
The Burnette court did not depart from or modify the rules in Wentling, but simply
applied them to the nuanced facts of the case:
The economic damages in Wentling were supported by evidence
about actual services lost, which were understood to be of the type capable
of being purchased, e.g., providing in-home, rather than out-of-home, care
for a disabled child; or things that would have otherwise economically
benefitted plaintiffs, e.g., guidance that would have contributed to the
child's ability to obtain future employment. But there was no loss of services
claim by Joel's parents. And the evidence presented about actual losses
from Joel's death did not establish—or even reference—any economic
dimension. The jury had nothing to associate the loss of care and attention
claim to some reasonable basis for monetary computation or equivalence to
enable it to arrive at an economic loss recovery.
Given this, it becomes readily apparent this item of loss was
indistinguishable from those for which the jury was permitted to award
noneconomic damages under the jury instruction defining those to include
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“[l]oss of society, loss of comfort, or loss of companionship.” And the jury
gave Joel's parents all they asked for in noneconomic damages.
Id.
The standards for economic losses recognized in Wentling—that they are “capable
of computation or conversion using some equivalence to a monetary basis or material
standard based on the marketplace,” even though they “need not be proven with
mathematical precision through experts”—were not modified but reiterated by Burnette.
425 P.3d at 361-62 (citing Wentling, 237 Kan. at 508, 514-15).
The court finds that the plaintiff has failed to show good cause for amendment of
the existing expert report.
IT IS ACCORDINGLY ORDERED this day of December, 2018, that the plaintiff’s
Motion to Amend (Dkt. 93) is hereby denied.

s/ J. Thomas Marten
J. Thomas Marten, Judge

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