Owens v. USA
MEMORANDUM OPINION & ORDER: (1) USA's 33 MOTION for Summary Judgment or MOTION for Partial Summary Judgment is GRANTED IN PART and DENIED WITHOUT PREJUDICE in part, (2) Plt's 31 MOTION for Disclosure is DENIED; (3) Court grants leave for plt to make amendment to witness list to disclose Dr. Collier and extends time for discovery in this matter through 4/10/2017; (4) further dispositive motions due by 5/10/2017; (5) FINAL PRETRIAL CONFERENCE set for 2/27/ 2017 CONTINUED to 8/28/2017 at 11:00 AM in LEXINGTON before Judge Joseph M. Hood; (6) BENCH TRIAL set for 3/7/2017 CONTINUED to 9/26/2017 at 9:00 AM in LEXINGTON before Judge Joseph M. Hood, (7) unless parties request it, no ini tial pretrial conference before Magistrate Judge is necessary. Parties contact Magistrate Judge Wier's chambers w/in 10 days and advise whether they wish for him to set and conduct initial PTC; (8) USA's 27 Motion in limine and Plaintiff's 32 Motion for partial summary judgment remain pending. Signed by Judge Joseph M. Hood on 2/6/2017.(STC)cc: COR,D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
EDITH JOYCE OWENS,
UNITED STATES OF AMERICA,
Civil Case No. 15-cv-225-JMH
MEMORANDUM OPINION & ORDER
This matter is before the Court upon the United States’
Motion for Summary Judgment [DE 33] and Plaintiff’s Motion to
Disclose Expert Rebuttal Testimony [DE 31].
As a preliminary matter, the Court is of the opinion that
the United States is entitled to an offset for certain benefits
paid or otherwise provided to Plaintiff.
See Fed. R. Civ. P.
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
law.”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986) (holding that existence of some alleged factual dispute
between parties does not defeat a properly supported motion for
summary judgment where there is no genuine issue of material
For example, the United States has presented evidence
monthly disability benefit payments of $1,162.38 and that it has
allowance to modify it to suit her needs as a result of her
Department of Veterans Affairs.
Because the United States will pay any federal tort claims
award by an appropriation from unfunded general tax monies, the
disability benefits and equipment and assistive devices, these
Plaintiff and against Defendant would be offset by the value of
credit to Defendant.
See Douglas v. United States, 658 F.2d
445, 449 (6th Cir. 1991) (holding that state collateral source
rules apply in FTCA actions); Schwartz v. Hasty, 175 S.W.3d 621,
626 (Ky. Ct. App. 2005) (holding that a tortfeasor generally may
not receive credit for payments that the plaintiff receives from
others, such as insurance companies); see also United States v.
Harue Hayashi, 282 F.2d 599 (9th Cir. 1960) (holding that where
the Veterans administration has paid hospital expenses incurred
in connection with injury and paid disability benefits under the
Veterans Act, compensatory damages awarded under FTCA should be
decision is in error, the Court will entertain a motion for
With respect to the United States’ other argument, that
Plaintiff’s claim fails as a matter of law because she does not
have expert testimony to support her contention that the VAMC
caused her injury, the Court is not inclined to grant summary
judgment on this issue at this time, particularly in light of
Plaintiff’s Motion to Disclose Expert Rebuttal Testimony.
proposed testimony of Dr. Paul Collier would not operate as
burden of proof.
The Court understands Plaintiff’s motion as an
effort to introduce testimony on the merits of her case, which
necessitates an extension of the deadlines set by the Court.
Rather than dismiss her case outright or permit evidence to be
introduced beyond the discovery framework, the Court is inclined
to reopen the discovery period for a brief time, select a new
deadline for dispositive motions, and set a new trial date so
that this matter may be resolved on its merits.
Accordingly, IT IS ORDERED:
That the United States’ Motion for Summary Judgment
or, in the Alternative, Partial Summary Judgment [DE 33] is
GRANTED IN PART and DENIED WITHOUT PREJUDICE in part;
That Plaintiff’s Motion to Disclose Expert Rebuttal
Testimony [DE 31] is DENIED; and
Upon the Court’s own motion, IT IS FURTHER ORDERED:
That the Court grants leave for Plaintiff to make an
amendment to the witness list to disclose Dr. Collier as an
matter through April 10, 2017, for the sole purpose of discovery
with respect to Dr. Collier.
Any further dispositive motions and motions in limine
should be filed no later than May 10, 2017.
The Court continues the final pretrial conference from
February 27, 2017, to Monday, August 28, 2017, at 11:00 a.m.;
The bench trial in this matter is continued from March
7, 2017, to September 26, 2017, at 9:00 a.m.
The Court further concludes that, unless the parties
request it, no initial pretrial conference before the Magistrate
Judge is necessary.
The parties should contact Magistrate Judge
Wier’s office within ten (10) days of entry of this order and
advise him whether they wish for him to set and conduct an
conference should be conducted no later than one week prior to
Monday, August 28, 2017.
Testimony of Carol White [DE 27] and the Plaintiffs’ Motion for
Partial Summary Judgment on Breach of the Standard of Care of
Defendant [DE 32] remain pending and shall be submitted to the
anticipated by the Local Rules.
This the 6th day of February, 2017.
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