Amburgey et al v. United States of America et al
OPINION AND ORDER: This matter is before Court on parties' objections to opposing party's exhibit list. (DE 59 , 61 ). Delma objects to Dft's Exhibit 8, "Review of Biologic Matrices (Urine, Blod, Hair) as Indicators of Recent or Ongoing Cannabis Use." This objection is SUSTAINED. United States objects to items 3, 7, 16, 17, 18, and 19 on pla's Exhibit List. The plaintiff has not responded to objections. Item 3 is the expert report of plaintiff's expert wi tness and Item 7 is the expert report of government's expert witness. The government argues that neither report should be introduced on direct but instead can only be introduced for impeachment purposes. This objection is SUSTAINED. Items 16, 17, 18, and 19 are affidavits of lay witnesses. This objection is also SUSTAINED. Signed by Judge Karen K. Caldwell on 3/2/2016. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT PIKEVILLE
DELMA AMBURGEY, Individually, as
Amburgey’s estate and as Next Friend of
J.A., a minor
Civil Action No. 7:11-CV-132-KKC
OPINION AND ORDER
UNITED STATES OF AMERICA,
This matter is before the Court on the parties’ objections to opposing party’s exhibit list. (DE
The plaintiff Delma Amburgey’s husband, Jerry Amburgey, died after having a
severe reaction to the contrast dye administered to him during a CT scan at Whitesburg
Delma filed a complaint naming three defendants: Dr. Mahmood Alam, Mountain
Comprehensive Health Corporation (which operates Whitesburg Medical Clinic), and the
United States. She asserted six claims: personal injury, wrongful death, loss of spousal and
parental consortium, breach of fiduciary duty, and breach of contract. Because Mountain
Comprehensive Health is an agency of the United States, Delma asserted her claims under
the Federal Tort Claim Act, 28 U.S.C.§ § 1346(b), 2671, et seq.
The United States moved to dismiss all of the claims. In response, Delma conceded
her claims against Mountain Comprehensive and Dr. Alam were improper. She further
conceded that her breach-of-fiduciary duty and breach-of-contract claims against the United
States were improper. The government argued that the remaining tort claims were
untimely because Delma failed to present them to the appropriate federal agency within
two years of the claim’s accrual. The government argued that the claim accrued on the date
of Jerry’s death, not the date of the autopsy. This Court agreed with that assessment and
determined it lacked jurisdiction over the tort claims.
The Court further found that, even if Delma’s administrative claim were timely, her
loss of consortium claims failed because she did not first assert those claims at the
administrative level. Delma submitted her claims to the agency via Standard Form 95 and
listed claims only for personal injury and wrongful death, not loss of consortium.
Accordingly, the Court dismissed the consortium claims on this basis as well.
Delma appealed to the United States Court of Appeals for the Sixth Circuit. In its
decision, the Sixth Circuit stated, “[t]he sole issue on appeal is whether Delma timely filed
an administrative claim with the U.S. Department of Health and Human Services (HHS),
the answer to which determines the viability of her wrongful-death suit against the United
States.” Amburgey v. United States, 733 F.3d 633, 634-35 (6th Cir. 2013) (emphasis added).
The opinion discusses only the wrongful-death claim and whether it was timely filed with
the federal agency. It does not discuss the consortium claims or this Court’s alternative
basis for dismissing them. The Sixth Circuit reversed this Court’s decision and held that
the wrongful-death claim did not accrue until Delma received the autopsy report and, thus,
was timely. Id. at 641.
This matter is set for a bench trial commencing March 7, 2016. The parties have
filed objections to the opposing party’s exhibit lists.
Delma objects to Defendant’s Exhibit 8, “Review of Biologic Matrices (Urine, Blod,
Hair) as Indicators of Recent or Ongoing Cannabis Use.” This objection is SUSTAINED, the
Court having determined by separate opinion that Jerry’s marijuana use is irrelevant to
this wrongful-death action.
The United States objects to items 3, 7, 16, 17, 18, and 19 on the plaintiff’s Exhibit
List. The plaintiff has not responded to the objections.
Item 3 is the expert report of the plaintiff’s expert witness and Item 7 is the expert
report of the government’s expert witness. The government argues that neither report
should be introduced on direct but instead can only be introduced for impeachment
purposes. This objection is SUSTAINED. The reports constitute hearsay under Fed. R.
Evid. 801(c). They may not be introduced on direct but may be used for impeachment
Items 16, 17, 18, and 19 are affidavits of lay witnesses. This objection is also
SUSTAINED. The affidavits also are hearsay and, thus, may not be introduced on direct
but only for impeachment purposes. Item No. 17 is the affidavit of a witness, Gary
Amburgey’s affidavit should not be introduced into evidence for any purpose.
Dated March 2, 2016.
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