Robles Bush v. Thoratec Corporation
Filing
231
ORDER & REASONS regarding the 204 Motion to amend the judgment by Defendant United States and the 205 Motion for New Trial or to Amend Judgment by Plaintiff Diana Robles Bush. IT IS ORDERED that an amended judgment be entered and that the ame nded judgment (1) require the United States to pay $1,897.00 for funeral expenses, (2) require the calculation of judicial interest in accordance with 31 U.S.C. § 1304, and (3) expressly state the actual amount of damages to be paid by the United States (that is, the entire amount of damages with credit for the amount of the prior settlement). IT IS FURTHER ORDERED that the amended judgment be SEALED. Signed by Judge Eldon E. Fallon on 5/30/14. (dno)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DINA M. ROBLES BUSH
CIVIL ACTION
VERSUS
NO. 11-1654
THORATEC CORPORATION, ET AL.
SECTION "L" (3)
ORDER & REASONS
Before the Court are motions to amend the judgment by Defendant United States (Rec.
Doc. 204) and Plaintiff Diana Robles Bush (Rec. Doc. 205). Having considered the parties'
memoranda and applicable law, and having heard oral argument, the Court now issues this order.
I.
BACKGROUND
Mrs. Bush brought this action on behalf of her deceased husband, Pete Bush ("Mr.
Bush"). Mr. Bush was a recipient of the Thoratec HeartMate II left ventricular assist system
("LVAS"), a surgically implanted heart pump manufactured by now-dismissed Defendant
Thoratec Corporation ("Thoratec"). It was implanted by the Hunter Holmes McGuire VA
Medical Center ("McGuire"), a facility operated by Defendant United States, and Mr. Bush
received follow-up care at both McGuire and at Tulane University Medical Center and Clinic
("Tulane"), a facility operated by Defendant University Healthcare System, L.L.C., which has
also been dismissed.
Mrs. Bush originally filed suit in Civil District Court for the Parish of Orleans against
Thoratec and Tulane. On July 14, 2011, Thoratec removed to this Court, and on October 24,
2011, the Court denied Mrs. Bush's motion to remand and granted Tulane's motion to dismiss on
the basis that Mrs. Bush had not proceeded through a medical review panel with respect to her
claims against Tulane. (Rec. Doc. 40).
On November 29, 2011, the Court granted Thoratec's motion to dismiss Mrs. Bush's
claims. (Rec. Doc. 41). Mrs. Bush filed an amended complaint (Rec. Doc. 44) and then sought
and received leave to file a second amended complaint (Rec. Doc. 68) against Thoratec.
On July 27, 2012, Mrs. Bush requested leave to further amend her complaint, this time
adding claims against the United States. (Rec. Doc. 90). The Court granted Mrs. Bush's request
(Rec. Doc. 91), and her third amended complaint was entered into the record. (Rec. Doc. 92).
The third amended complaint was dismissed without prejudice shortly thereafter and
immediately re-entered, following the presumed final denial of Mrs. Bush's administrative appeal
in Virginia. (Rec. Docs. 98, 99, 100). All claims against Thoratec were then settled and
dismissed on June 28, 2013. Currently, the only remaining claims were those against McGuire
under the Federal Tort Claims Act ("FTCA"). Specifically, Mrs. Bush alleged:
Dr. Gundars Katlaps, Lisa Martin and other employees of
McGuire failed to properly monitor [the] LVAS, failed to properly
instruct the Bushes on how to monitor the percutaneous lead of
[the] LVAS for damage, failed to provide proper notice to the
Bushes regarding the defects of the . . . LVAS, failed to render
proper medical care to him at the time of his medical emergency
on May 4, 2010, and committed other acts of negligence and
medical malpractice . . . .
(Rec. Doc. 100 at 14).
On November 5 and 6, 2013, the case was tried without a jury. Following the trial, this
Court issued findings of fact and conclusions of law, holding that Dr. Katlaps and Ms. Martin
had breached the applicable standard of care and that the breach had been the proximate cause of
Mr. Bush's death. (Rec. Doc. 202). It then ordered that "the United States pay Mrs. Bush
$200,000.00 for sorrow, mental anguish, and solace and pay $23,535.00 in compensation for
reasonably expected loss of income of the decedent and services, protection, care and assistance
provided by the decedent, with a credit for the amount of consideration paid for the prior
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settlement."1 (Rec. Doc. 202 at 37). A judgment was entered in Mrs. Bush's favor, ordering
payment of the above-listed amounts "in addition to court costs and judicial interest from the
date of judgment until paid." (Rec. Doc. 203 at 1).
II.
PRESENT MOTIONS
A.
United States' Motion to Amend
The United States now moves to amend the judgment pursuant to Federal Rule of Civil
Procedure 59(e). (Rec. Doc. 204). Specifically, it seeks to amend the calculation of judicial
interest. First, it argues that judicial interest must accrue, not from the date of the judgment, but
from the date the judgment becomes final after review or appeal and after it has been filed with
the Treasury Department, pursuant to 31 U.S.C. § 1304. (Rec. Doc. 204-1 at 2). Second, the
United States argues that the language of the judgment should be amended to clearly indicate
that it is only required to pay judicial interest on the amount it owes, not the amount the entire
amount of damages before subtracting the prior settlement amount. Mrs. Bush responds that the
judgment should not be amended because the procedure for filing the judgment with the
Treasury Department is undefined. (Rec. Doc. 209). Specifically, Mrs. Bush notes that the
Treasury Department has been unable to provide any guidance on how to comply with the filing
requirement contained within 31 U.S.C.§ 1304. The United States replies that 31 C.F.R. § 256.32
provides specific instructions. (Rec. Doc. 222).
B.
Mrs. Bush's Motion to Amend
Mrs. Bush also moves for a new trial under Rule 59(a) or, in the alternative, to amend the
judgment pursuant to Rule 59(e). (Rec. Doc. 205). First, she argues that "[i]n every case where
1
The findings of fact and conclusions of law also state that "the Court finds that Mrs. Bush has not
sustained any injury due to the negligence of the United States or its employees, Dr. Katlaps and Ms. Martin." (Rec.
Doc. 202 at 37). The negligence of Dr. Katlaps and Ms. Martin resulted in injury to Mr. Bush, for which the United
States was liable to Mrs. Bush. This is stated clearly in both the findings of fact and conclusions of law, as well as
the subsequent judgment.
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the Court highlighted the age of the decedent, the survivor was awarded general damages greater,
and in some circumstances far greater," than the general damages she received. (Rec. Doc. 205-1
at 1). She thus believes the damages should be increased. Second, Mrs. Bush argues that he Court
erred in concluding that Mr. Bush's life expectancy was two years at the time of his death. In
particular, she reasons that, because Dr. Katlaps testified his life expectancy was five years at the
time of implantation, that means his life expectancy was three years and five months at the time
of his death (that is, five years minus the one year and seven months since it was implanted). As
a result, Mrs. Bush seeks an increase in the amount of loss of income based on life expectancy of
five years, equating to an additional $66,139.55. (Id. at 4). Third, Mrs. Bush argues that the
Court should have—but did not—award any damages for loss of society, companionship,
comfort, guidance, kindly offices, and advice. Alternatively, if the Court does not award such
damages, she argues that the United States should not be given credit for the prior settlement's
award of such damages. Fourth, Mrs. Bush argues that the Court should have—but did not—
award damages for reasonable funeral expenses because the United States had not previously
stipulated to pay such damages.
The United States responds. (Rec. Doc. 211). First, it argues that the damage award was
not only reasonable, but supported by the cited precedent, in which larger awards were
distributed among multiple survivors or in which the decedent's life expectancy was far greater
than Mr. Bush's. Second, the United States argues that Dr. Katlaps' testimony regarding Mr.
Bush's life expectancy was taken out of context. Specifically, Dr. Katlaps stated that Mr. Bush
could have survived five years at most with the device from the time it was implanted. Thus, the
United States contends that the amount of loss of income was reasonable. Third, it argues that
damages for loss of society, companionship, comfort, guidance, kindly offices, and advice are a
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subset of damages for sorrow, mental anguish, and solace, for which the Court already awarded
damages. Therefore, it suggests that it is not appropriate to award additional damages or to
reduce the credit for the prior settlement to account for non-duplicative damages. Fourth, the
United States agrees that the parties did not enter any stipulation regarding whether funeral
expenses had been paid, only as to the amount of those expenses. The United States, however,
suggests that Mrs. Bush should be precluded from seeking such an award, however, because she
failed to mitigate her losses by applying for repayment from the VA. Mrs. Bush then replies,
reasserting her previous arguments. (Rec. Doc. 217).
III.
LAW & ANALYSIS
A.
Law
Rule 52(b) provides that, "[o]n a party's motion . . . the court may amend its findings—or
make additional findings—and may amend the judgment accordingly." FED. R. CIV. P. 52(b).
Such a motion is made pursuant to Rule 59. FED. R. CIV. P. 59(a)(2), -(e). It may be used "to
correct manifest errors of law or fact" but not "to relitigate old issues, to advance new theories, or
to secure a rehearing on the merits." Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th
Cir. 1986). Any new or amended findings of fact or conclusions of law must generally be based
on evidence and testimony already in the record. Id.
B.
Analysis
The present motions request that the findings of fact and conclusions of law, as well as
the judgment, be amended for several reasons. Each will be addressed in turn. First, the United
States requests that the judgment be entered to correct the method for calculating judicial
interest. As it is exists now, the judgment provides that the United States pay "judicial interest
from the date of judgment." (Rec. Doc. 203 at 1). This is incorrect. The United States Court of
Appeals for the Fifth Circuit has determined that "interest cannot be awarded against the
5
government in an FTCA suit absent express statutory authority" and that authority is provided by
31 U.S.C.§ 1304. Lucas v. United States, 807 F.2d 414, 423 (5th Cir. 1986). Accordingly, the
judgment must be amended to reflect that the United States pay judicial interest from the date the
judgment becomes final after review on appeal or petition by the United States, and then only
from the date of filing of the transcript of the judgment with the Secretary of the Treasury
through the day before the date of the mandate of affirmance. 31 U.S.C. § 1304(b)(1)(A).
Additionally, the United States has suggested that the judgment be clarified to state that judicial
interest must only be paid on the amount actually owed by the United States (that is, the total
amount of damages with credit for the amount of the prior settlement). The amount actually
owed was omitted from the judgment because the prior settlement is sealed. However, in the
interest of clarity, the amount actually owed by the United States will be stated in the amended
judgment and that judgment will be filed under seal. Judicial interest is due only on the amount
actually owed by the United States.
Second, Mrs. Bush suggests that the amount of general damages was inadequate in
comparison to awards made in similar cases. In its findings of fact and conclusions of law, the
Court stated:
Prior to reaching a determination as to damages, it is
relevant to consider the awards made in other instances where
medical malpractice has resulted in death. Of course, prior awards
are not dispositive since each case is dependent on its own unique
facts, but prior awards for similar damages are instructive. A
survey of these awards demonstrates that general damages—that
is, those for sorrow, mental anguish, and solace—are usually
between $150,000.00 and $950,000.00 for each survivor and
specific damages vary. See, e.g., Estate of Robertson v. Perry,
2013 WL 7139777 (Va. Cir. Ct. 2013) (awarding $50.466.80 in
medical expenses, $10,316.85 in funeral expenses, and
$216,822.27 to each survivor of an 89-year-old patient); Estate of
Willever v. Williams, 2012 WL 4503122 (Va. Cir. Ct. 2012)
(awarding $438,000.00 in medical expenses and $390,500.00 to
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each survivor of a 73-year-old patient); Estate of Madison v.
Chesapeake Anesthesiologists, 2011 WL 7163456 (Va. Cir. Ct.
2011) (awarding $425,000.00 to the spouse and $125,000.00 to
each child of a patient); Estate of Lopez v. Galumbeck, 2010 WL
5517655 (Va. Cir. Ct. 2010) (awarding $975,000.00 to the spouse
and $243,750.00 to each child of a 36-year-old patient); Estate of
Budnick v. Barry v. Walter, 2009 WL 5171892 (Va. Cir. Ct. 2009)
(awarding $46,997.56 for medical expenses, $2,675.00 for funeral
expenses, and $2,200,000.00 to the survivor of a patient); Estate of
Browder v. Gamache, 2009 WL 1912388 (Vir. Cir. Ct. 2009)
(awarding $211,953.29 for medical expenses, $785,000.00 for
economic loss, and $6,500,000.00 to the survivor of a patient);
Cumbee v. Nicholson, 2007 WL 4755239 (Va. Cir. Ct. 2007)
(awarding $56,163.29 in medical expenses, $10,512.38 in funeral
expenses, and $140,000.00 to each of survivor of a patient); Estate
of Butler v. Mid-Atlantic Permanente Med. Grp., P.C., 2003 WL
22111034 (Va. Cir. Ct. 2003) (awarding $950,000.00,
approximately $161,615.00 to $368,614.00 of which was for loss
of income, to the survivor of a 53-year-old patient with a life
expectancy of 15 to 20 years); Estate of Fadle v. Mueller, 1998
WL 1757227 (Va. Cir. Ct. 1998) (awarding $724,000.00 to the
survivor of a 63-year-old patient). Additionally, there does not
appear to have been any award for punitive damages in such a case
in the past decade.
(Rec. Doc. 202 at 34-35).
In awarding damages, a "trial court has great latitude." Parks v. Dowell Div. of Dow
Chem. Corp., 712 F.2d 154, 160 (5th Cir. 1983). Here, an award was fashioned after carefully
considering both the evidence and testimony, and after a thorough and comprehensive review of
other awards in Virginia. It is incontrovertible that the loss of a spouse is catastrophic event for
which a surviving spouse will never be made completely whole, regardless of the amount of
damages. Nonetheless, this Court attempted to reach a fair and just amount by painstakingly
considering the facts and the law. The fact that Mr. Bush had such a limited life expectancy and
lived such a restricted and precarious life must be considered. The Court sees no reason to
disturb its award now on the basis that it is disproportionate to the awards in other, factually and
legally distinguishable situations.
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Mrs. Bush also argues that the amount for loss of income was inappropriate because it
relied on an incorrect determination that Mr. Bush's life expectancy was two years, not five
years. In making a determination that Mr. Bush was expected to live two years, the Court relied
on the entirety of Dr. Katlaps' testimony, as well as the evidence and other testimony presented
at trial. Dr. Katlaps' testimony regarding life expectancy follows. Initially, he states that, from the
date of implantation, an average patient's life expectancy would be about five years with the
LVAD.
A:
. . . . So in a lab situation, the device was—they felt the
device might last for five to seven years. Now, but that is in
a lab setting when there is no, again, device—no device[]patient interaction in anyway. When, when the device is
implanted in an actual patient, then the lab settings don't
frequently work out.
. . . . So then we have to take into account the experience
of the centers who have already placed this device before.
And based on that, based on their experience, I could—I
was—you know, would have suggested that the chance that
the device will work for a year, two, three years after
implantation would be, you know, around may 80, 60, and
50 percent, something like that respectively.
....
I think it would be safe to say that approximately 50
percent of the patients that are receiving this [LVAD],
those days were still alive three years after implantation of
it.
(Katlaps Tr. at 36-37). He then states that, at the time of implantation, Mr. Bush's life
expectancy would have been only days or weeks without the LVAD.
A:
So, you know, as I describe, I believe that Mr. Bush would
have died within weeks or, or even days had he not
received implant of the [LVAD]. So with that, my estimate
that he could have been alive a year later without [it] would
have been zero, which means I estimate that he would have
had a hundred percent chance to be dead, not only at one
year. I estimate that he would have a hundred percent
8
chance to be dead at six months and at one year and at two
years.
(Id. at 52-53). Dr. Katlaps further states that, at the time of his death, Mr. Bush's life would have
increased to "[m]aybe, maybe, maybe one, two, or three years" with the LVAD.
A:
. . . . As you understand, there is no way to know . . . . But
there are some criteria that can help us make that estimate
more accurate, like patient's age, you know. Pete Bush was
already in his early sixties and comorbidities. Pete Bush
had had two entries into his chest. You know, his surgery
was more invasive than, than some others. Mr. Bush had,
they called it a history of terminal vascular disease, chronic
obstruction pulmonary disease, COPD. He had recorded a
history of a set of vascular accidents.
Taking all that into account, his life expectancy was limited
for many reasons, which were not—which had nothing to
do with the LVAD.2 And then, you know, we have some
help trying to incorporate some of his—the life expectancy
as it related to the LVAD. And we knew based on the
experience of, of ours and other centers at that time, again
that, you know, we had those, those again, the statistical
analysis, you know, one year, two year, three year survival
on these devices.
Q:
And so what is your, what is your opinion as to Mr. Bush's
life expectancy at that time?
A:
Maybe, maybe, maybe one, two, or three years.
(Id. at 67-68). He later states that, at the time of implantation, his life expectancy would not have
exceeded five years with the LVAD.
Q:
. . . [W]ould you agree that his life expectancy using the
[LVAD] would be no less than five years?
....
A:
Definitely less than five years.
....
2
Mrs. Bush notes Dr. Katlaps' testimony that, "if [Mr. Bush] had continued living on the LVAD, then most
likely he would have lived to a point when a good heart offer would have become available." (Katlaps Tr. at 70).
However, Dr. Katlaps' testimony also makes it clear that Mr. Bush could have died from other causes even had the
LVAD continued to function. Stated differently, whether he "continued living on the LVAD" depended on his own
good health as well as the good health of the device.
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Q:
No less than five years.
A:
Oh, it would definitely be less than five years.
....
Given his life expectancy, would that have been
significantly less than five years? Yeah.
....
. . . . [B]ased on the knowledge what I have now and the
knowledge I had then, I would have to say that I would not
expect his life expectancy past five years. Most patients
like Pete Bush would not live for more than five years, you
know, with an LVAD.
....
. . . . [N]either then nor now I would expect that he'll live
for more than five years on that device.
(Id. 133-36).
This testimony, in its entirety, formed the basis for the conclusion that Mr. Bush's life
expectancy at the date of his death was two years. Dr. Katlaps indicates that Mr. Bush might
have lived up to five years at the time the device was implanted, but was expected to live one to
three years at the time of his death. Accordingly, it is not necessary or appropriate to disturb this
finding and conclusion merely because there is some disagreement. Mr. Bush's life expectancy
was determined on the basis of the evidence and testimony determined to be most credible and
applicable.
Mrs. Bush next suggests that she should have been awarded damages for society,
companionship, comfort, guidance, kindly offices and advice in addition to damages for sorrow,
mental anguish, and solace. Under Virginia law, there are several categories of damages that are
available in a wrongful death action. One of those categories allows an award of damages for
"[s]orrow, mental anguish, and solace which may include society, companionship, comfort,
guidance, kindly offices and advice of the decedent." VA. CODE ANN. § 8.01-52 (emphasis
10
added). This construction clearly indicates that society, companionship, comfort, guidance,
kindly offices and advice are subcategories of sorrow, mental anguish, and solace because the
language indicates that former are included within the latter. Although the subcategories may be
considered in awarding damages for sorrow, mental anguish, and solace, they do not constitute a
separate category in addition to sorrow, mental anguish, and solace. Here, Mrs. Bush has already
been award damages for sorrow, mental anguish, and solace. Prior to setting that award, the
Court provided each of the categories of relief, including the subcategories at issue here. It
considered these in fashioning its determination of damages for sorrow, mental anguish, and
solace. Thus, is not necessary or appropriate to increase this award or reduce the credit for the
prior settlement.
Last, the parties are in agreement that they did not stipulate as to the payment of funeral
expenses, only as to the amount of those expenses. The United States has suggested that Mrs.
Bush should have attempted to mitigate this loss by requesting reimbursement from the VA.
However, at oral argument, the United States acknowledged that it is responsible for these
expenses, whether they are paid through the VA reimbursement process or through litigation. To
ensure that Mrs. Bush is reimbursed, the judgment must be amended to require the United States
to pay the stipulated amount of $1,897.00 for funeral expenses.
IV.
CONCLUSION
For these reasons, IT IS ORDERED that an amended judgment be entered and that the
amended judgment (1) require the United States to pay $1,897.00 for funeral expenses, (2)
require the calculation of judicial interest in accordance with 31 U.S.C. § 1304, and (3) expressly
state the actual amount of damages to be paid by the United States (that is, the entire amount of
damages with credit for the amount of the prior settlement).
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IT IS FURTHER ORDERED that the amended judgment be SEALED.
New Orleans, Louisiana, this 30th day of May, 2014.
UNITED STATES DISTRICT JUDGE
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