Akpan v. UNITED STATES OF AMERICA

Filing 27

MEMORANDUM AND ORDER denying 21 Motion for Continuance except that docket call is rescheduled to 9:00 a.m. on January 30, 2018; denying 22 Motion for Relief from Order. Bench trial scheduled to begin at 9:00 a.m. on February 14, 2018.(Signed by Judge Nancy F Atlas) Parties notified.(TDR, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRENDA AKPAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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January 12, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-2981

MEMORANDUM AND ORDER
This Federal Tort Claims Act (“FTCA”) case is before the Court on the “Motion
for Relief From Order” (“Motion”) [Doc. # 22] filed by Plaintiff Brenda Akpan, to
which Defendant United States of America filed an Opposition [Doc. # 25]. Plaintiff
seeks reconsideration of the Court’s Memorandum and Order [Doc. # 17] entered
December 21, 2017. The Court denies the Motion.1
I.

BACKGROUND
On April 15, 2014, Plaintiff was driving her vehicle when it was struck by a

U.S. Postal Service delivery vehicle. Plaintiff was examined at the scene by first
responders from the Cy-Fair Volunteer Fire Department (“Cy-Fair F.D.”). Plaintiff
complained of head and right knee pain, and asked to be transported to Houston

1

Having denied the Motion for Relief from Order, the Court finds no basis to grant the
Motion for Trial Continuance [Doc. # 21], which seeks a 90-day continuance based
on issues that are now moot.

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Methodist West Hospital (“Hospital”). Plaintiff was examined at the Hospital and
released the same day.
Plaintiff filed this FTCA lawsuit on October 5, 2016. She claimed damages
based on injuries to her left knee, neck and lower back. Plaintiff failed to designate
experts and provide expert reports by the Court-imposed deadline. Following the
close of discovery, Defendant filed a Motion for Summary Judgment and a Motion for
Summary Judgment on Damages. Plaintiff then filed a Motion for Leave to Designate
Expert Witnesses late, which was denied in the December 21, 2017 Memorandum and
Order. Plaintiff does not seek reconsideration of this ruling.
The Court noted in its prior ruling that Plaintiff had an extensive history of
injuries that could be pre-existing or alternative causes for the damages she claimed
in this case. Therefore, the Court held that Plaintiff needed expert testimony to
establish the causal connection between the motor vehicle accident in this case and the
injury to her left knee, neck and back. The only exception, the Court held, was
Plaintiff’s ability to provide non-expert testimony regarding the causal connection
between the accident and the treatment by the Cy-Fair F.D. at the scene and at the
Hospital on the date of the accident, something within the common experience of a lay
witness. Plaintiff seeks reconsideration of this ruling, arguing that Plaintiff should be
allowed to present and rely on her own testimony regarding the causal connection

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between the motor vehicle accident on April 15, 2014, and her alleged left knee, neck
and back injuries.
The Court also noted that Plaintiff failed to present evidence that any charges
for the medical treatment she received on the date of the accident were reasonable and
necessary. Therefore, the Court limited Plaintiff to her own testimony regarding the
pain and discomfort she experienced that day in connection with the accident.
Plaintiff seeks reconsideration of the Court’s ruling, arguing that she should be
permitted to rely on affidavits obtained pursuant to Section 18.001 of the Texas Civil
Practices and Remedies Code.
II.

STANDARD FOR RECONSIDERATION
Rule 59(e)2 permits a litigant to file a motion to alter or amend a judgment.

FED. R. CIV. P. 59(e). Reconsideration of a judgment is an “extraordinary remedy that
should be used sparingly.” Waites v. Lee County, Miss., 498 F. App’x 401, 404 (5th
Cir. Nov. 26, 2012) (quoting Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir.
2004)). A motion for reconsideration “is not the proper vehicle for rehashing
2

Plaintiff cites Rule 60(b) of the Federal Rules of Civil Procedure as the basis for her
Motion. Where, as here, the motion “was filed within twenty-eight days after the
entry of the judgment, the motion is treated as though it was filed under Rule 59, and
if it was filed outside of that time, it is analyzed under Rule 60.” Demahy v. Schwarz
Pharma, Inc., 702 F.3d 177, 182 n.2 (5th Cir. 2012) (citing Texas A & M Research
Found. v. Magna Transp., Inc., 338 F.3d 394, 400 (5th Cir.2003)). Therefore, the
Court will treat the Motion as if filed under Rule 59(e). Nonetheless, the Court has
also considered Plaintiff’s arguments under Rule 60(b).

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evidence, legal theories, or arguments that could have been offered or raised before
the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (5th Cir.
2004); Knight v. Kellogg Brown & Root Inc., 2009 WL 1471788, at *6 (5th Cir. 2009)
(quoting Templet, 367 F.3d at 479). Instead, Rule 59(e) serves the narrow purpose of
allowing a party to bring errors or newly discovered evidence to the Court’s attention.
See In re Rodriguez, 695 F.3d 360, 371 (5th Cir. 2012) (citing In re Transtexas Gas
Corp., 303 F.3d 571, 581 (5th Cir. 2002)).
A litigant seeking relief under Rule 59(e) “must clearly establish either a
manifest error of law or fact or must present newly discovered evidence.”
Balakrishnan v. Bd. of Supervisors of La. State Univ. & Agr. & Mech. Coll., 452 F.
App’x 495, 499 (5th Cir. 2011) (citing Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.
2005) (quotation marks and citation omitted)). A Rule 59(e) motion “cannot be used
to argue a case under a new legal theory.” Id. (citing Ross, 426 F.3d at 763).
Moreover, “an unexcused failure to present evidence available at the time of summary
judgment provides a valid basis for denying a subsequent motion for reconsideration.”
Templet, 367 F.3d at 479 (citing Russ v. Int’l Paper Co., 943 F.2d 589, 593 (5th Cir.
1991)); see also Tate v. Starks, 444 F. App’x 720, 729 (5th Cir. June 21, 2011).

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III.

DISCUSSION
A.

Causation

As noted in the Court’s prior ruling, a viable negligence claim under Texas law
requires proof of “a duty, a breach of that duty, and damages proximately caused by
the breach.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006). A plaintiff
generally may prove causation either through lay testimony or through expert
testimony. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th
Cir. 2004). As noted in the Court’s prior ruling, however, a plaintiff may rely on nonexpert testimony only where “general experience and common sense” would allow a
layman to determine, with reasonable probability, the causal relationship between the
event and the medical condition and treatment. Id. (citing Morgan v. Compugraphic
Corp., 675 S.W.2d 729, 733 (Tex. 1984)). Determining whether the accident at issue,
rather than some other event or a pre-existing condition, caused the need for specific
medical treatment is beyond “common experience” and requires expert testimony by
a qualified expert. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1994). Plaintiff
has not demonstrated that this ruling was a manifest error of law or fact. As a result,
for the reasons stated in the December 21, 2017 Memorandum and Order, the Court
denies the request for reconsideration of the ruling on causation.

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B.

Damages

The Court noted in the prior Memorandum and Order that, in order to recover
damages for the medical treatment she received on April 15, 2014, Plaintiff must
prove (1) the amount of the charges for the medical expenses; (2) the reasonableness
of the charges; and (3) the necessity of the charges. See Owens v. Perez, 158 S.W.3d
96, 110 (Tex. App. – Corpus Christi 2005, no pet.). In Texas state court, Plaintiff may
prove that her medical expenses were reasonable and necessary either (1) by
presenting expert testimony on the issue or (2) through the submission of affidavits
that comply with the requirements of Section 18.001 of the Texas Civil Practice and
Remedies Code. See Hilland v. Arnold, 856 S.W.2d 240, 241 (Tex. App. – Texarkana
1993, no pet.).
In this case, in opposition to Defendant’s Motions for Summary Judgment,
Plaintiff presented a Cy-Fair F.D. Medical Records Affidavit [Doc. # 13, Exh. B],
which was not accompanied by any evidence of charges. Plaintiff also presented a
Hospital Affidavit for Medical Records [Doc. # 13, Exh. C], which did not attest that
the treatment and charges were reasonable and necessary. As a result, Plaintiff failed
to present evidence that raises a genuine issue of material fact regarding whether the
Cy-Fair F.D. and Hospital charges were reasonable and necessary.

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In support of her pending Motion, Plaintiff relies on § 18.001 of the Texas Civil
Practice & Remedies Code, which provides:
Unless a controverting affidavit is filed as provided by this section, an
affidavit that the amount a person charged for a service was reasonable
at the time and place that the service was provided and that the service
was necessary is sufficient evidence to support a finding of fact by judge
or jury that the amount charged was reasonable or that the service was
necessary.
TEX. CIV. PRAC. & REM. CODE § 18.001. Based on this provision, Plaintiff submits
the Affidavit of the Custodian of Records for Cy-Fair F.D., attesting that the unpaid
charges in connection with the April 15, 2014 accident were $1,811.34. See Affidavit
[Doc. # 22-2], p. 5. Plaintiff also submits the Affidavit of the Custodian of Records
for Houston Methodist West Hospital, attesting that the total amount paid for services
in connection with the April 15, 2014 accident was $1,609.30 and an unpaid balance
remains of $14,099.80. See Affidavit [Doc. # 22-2], p. 11. Each of the Affidavits
references supporting medical records that are not attached.
Plaintiff’s reliance on § 18.001 is misplaced. The Texas Supreme Court has
now held that § 18.001 is a procedural rule. See Haygood v. De Escabedo, 356
S.W.3d 390, 397 (Tex. 2011). As a result, the Federal Rules of Evidence, rather than
§ 18.001, govern. See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559
U.S. 393, 417 (2010) (“It is a long-recognized principle that federal courts sitting in
diversity ‘apply state substantive law and federal procedural law.’”), citing Hanna v.
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Plumer, 380 U.S. 460, 465 (1965); see also Spratling v. United States, 2014
WL 12537175, *1 (W.D. Tex. Aug. 13, 2014) (“Federal law governs procedural
matters in FTCA cases in federal courts.”), citing Vance v. United States, 90 F.3d
1145, 1148 (6th Cir. 1996).
Additionally, the current affidavits do not warrant reconsideration because they
are not “newly discovered.” The Cy-Fair F.D. Affidavit is dated February 20, 2017,
and the Hospital Affidavit is dated May 19, 2017. Each Affidavit, therefore, was
available for Plaintiff to submit on November 15, 2017, with her Response in
opposition to Defendant’s Motions for Summary Judgment. Failure to present readily
available evidence does not constitute “newly discovered evidence” which would
allow reconsideration. See Templet, 367 F.3d at 479 (citing Russ v. Int’l Paper Co.,
943 F.2d 589, 593 (5th Cir. 1991)); see also Tate, 444 F. App’x at 729.
Plaintiff argues that the Affidavits were not submitted in opposition to the
summary judgment motions through mistake or inadvertence, relying on Rule 60(b)(1)
for relief. Relief under Rule 60(b)(1) is available where the movant establishes
“mistake, inadvertence, surprise, or excusable neglect.” FED. R. CIV. P. 60(b)(1).
Rule 60(b)(1) relief is unavailable, however, when the proffered justification is the
“inadvertent mistake” of counsel. Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350,
356-57 (5th Cir. 1993). “Gross carelessness, ignorance of the rules, or ignorance of

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the law” are also insufficient bases for Rule 60(b)(1) relief. Id. at 357. Indeed,
granting relief on the sole basis of counsel’s carelessness would be an abuse of
discretion. See id.
Based on the foregoing, the Court denies Plaintiff’s Motion seeking
reconsideration of the Court’s ruling that she failed to present evidence that the
charges for medical care on April 15, 2014, were reasonable and necessary. At trial,
Plaintiff will be permitted to present her own testimony regarding the pain she
experienced on the date of the accident, the only element of damages for which she
may recover in this case.
IV.

CONCLUSION AND ORDER
Plaintiff has failed to demonstrate that the Court’s December 21, 2017

Memorandum and Order involved manifest error of law or fact. Plaintiff has failed
to present newly-discovered evidence that would provide a basis for reconsideration
of the prior ruling. As a result, it is hereby
ORDERED that Plaintiff’s Motion for Relief From Order [Doc. # 22] is
DENIED. It is further
ORDERED that Plaintiff’s Motion for Trial Continuance [Doc. # 21] is
DENIED to the extent that Plaintiff seeks a 90-day continuance, but is GRANTED

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only to the extent that the docket call for this case is RESCHEDULED to
January 30, 2018, at 9:00 a.m. It is further
ORDERED that the case is scheduled for a bench trial beginning at 9:00 a.m.
on February 14, 2018.
SIGNED at Houston, Texas, this 12th day of January, 2018.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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