Bennett et al v. United States of America

Filing 21

ORDER granting Defendant's 15 Motion for Partial Summary Judgment. To the extent Plaintiffs seek to recover damages associated with Bennett's gallstone pancreatitis, that claim is DISMISSED with prejudice. Signed by U.S. District Judge John C Coughenour. (SWT)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 GEORGE BENNETT and MARTHA BENNETT, husband and wife, 10 CASE NO. C16-0091-JCC ORDER Plaintiffs, 11 v. 12 UNITED STATES OF AMERICA, 13 Defendant. 14 15 This matter comes before the Court on the motion for partial summary judgment by 16 17 18 19 20 21 22 23 24 25 26 Defendant the United States of America (Dkt. No. 15). Having thoroughly considered the motion and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein. I. BACKGROUND On November 1, 2013, Plaintiff George Bennett’s vehicle collided with a government vehicle driven by a Homeland Security Investigations agent. (Dkt. No. 16-1 at 4.) Plaintiffs allege that the collision was negligently caused by the government agent and that, as a result, Bennett incurred “medical costs of about $100,000.” (Dkt. No. 1 at 4-5.) According to the United States, Plaintiffs have identified two categories of injuries that allegedly resulted from the collision: (1) aggravation of Bennett’s pre-existing neck injury, ORDER PAGE - 1 1 which required surgery in April 2015, and (2) gallstone pancreatitis, which was caused by a 2 coughing fit, which in turn was caused by dysphagia (difficulty swallowing) Bennett developed 3 after the surgery. (Dkt. No. 15 at 1-2.) 4 The United States moved for partial summary judgment, arguing that Plaintiffs fail to 5 show that any action by the United States was the proximate cause of Bennett’s gallstone 6 pancreatitis. (Id. at 2.) Plaintiffs did not respond to the motion. 7 II. DISCUSSION 8 A. Summary Judgment Standard 9 The Court shall grant summary judgment if the moving party shows that there is no 10 genuine dispute as to any material fact and that the moving party is entitled to judgment as a 11 matter of law. Fed. R. Civ. P. 56(a). In making such a determination, the Court must view the 12 facts and justifiable inferences to be drawn therefrom in the light most favorable to the 13 nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Once a motion for 14 summary judgment is properly made and supported, the opposing party must present specific 15 facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. 16 Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Material facts are those that may affect the 17 outcome of the case, and a dispute about a material fact is genuine if there is sufficient evidence 18 for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248-49. 19 Ultimately, summary judgment is appropriate against a party who “fails to make a showing 20 sufficient to establish the existence of an element essential to that party’s case, and on which that 21 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 22 B. Causation 23 To establish a cause of action for negligence, a plaintiff must demonstrate that (1) the 24 defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) damages resulted, 25 and (4) the defendant’s breach proximately caused the damages. Tincani v. Inland Empire 26 Zoological Soc’y, 875 P.2d 621, 624 (Wash. 1994). Washington law recognizes two elements of ORDER PAGE - 2 1 proximate cause: cause-in-fact and legal causation. Hartley v. State, 698 P.2d 77, 82 (Wash. 2 1985). “Cause in fact refers to the ‘but for’ consequences of an act—the physical connection 3 between an act and an injury.” Id. at 83. Cause-in-fact is a question for the trier of fact unless 4 “but one reasonable conclusion is possible.” Id. Legal causation is a question of law that asks 5 whether, as a matter of policy, a defendant’s act should give rise to liability. Id. 6 To establish causation, medical testimony must be sufficiently definite to establish that 7 the defendant’s act “probably” or “more likely than not” caused the plaintiff’s injuries. 8 O’Donoghue v. Riggs, 440 P.2d 823, 830 (Wash. 1968). The opinion must not be speculative or 9 conclusory and it must have adequate foundation. Safeco Ins. v. McGrath, 817 P.2d 861, 865 10 (Wash. Ct. App. 1991). 11 C. Expert Testimony 12 Moreover, under Federal Rule of Evidence 702, an expert witness must be qualified by 13 “knowledge, skill, experience, training, or education,” and may testify “if (1) the testimony is 14 based upon sufficient facts or data, (2) the testimony is the product of reliable principles and 15 methods, and (3) the witness has applied the principles and methods reliably to the facts of the 16 case.” This “knowledge” must be based on “more than subjective belief or unsupported 17 speculation.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993). Under this rule, 18 the Court assesses “whether the reasoning or methodology underlying the testimony is 19 scientifically valid [and] whether that reasoning or methodology properly can be applied to the 20 facts in issue.” Id. at 592–93. 21 D. 22 Because Plaintiffs did not respond to the motion, they did not present any evidence of a 23 Analysis link between the collision and Bennett’s gallstone pancreatitis. 24 The evidence presented by the United States, even viewed in a light most favorable to 25 Plaintiffs, makes only a threadbare connection. The evidence shows that, after the April 2015 26 surgery, Bennett had “dysfunctional swallowing.” (Dkt. No. 16-4 at 10, 17.) It also shows that, ORDER PAGE - 3 1 on the night before he presented with gallstone pancreatitis, Bennett choked on some food, which 2 caused a coughing fit. (Dkt. No. 16-4 at 10.) Based on this information alone, Dr. John Hruby, 3 M.D. opined that, “on a more than not probable basis,” Bennett’s difficulty swallowing caused 4 his gallstone pancreatitis (Id. at 9.) As support, Dr. Hruby stated that the “described episode of 5 significant choking and coughing the night before the onset of his abdominal pain with 6 pancreatitis could conceivably have caused sufficient intra-abdominal pressure to contract the 7 gallbladder and propel a gallstone down the biliary tract.” (Id.) (emphasis added.) 8 9 The United States argues that Dr. Hruby’s opinion is insufficient to establish causation. The Court agrees. Dr. Hruby himself admits he was unable to find any medical literature 10 confirming this causal relationship or any reports of this diagnosis having been made before. 11 (Dkt. No. 16-4 at 6.) This lack of supporting literature is confirmed by the United States’ expert, 12 who is “unaware of any medical literature, research, peer-reviewed, or even anecdotal reports of 13 such causation.” (Dkt. No. 17 at 5.) Rather, Dr. Hruby’s opinion is based on his general 14 understanding of physics and anatomy, which led him to hypothesize that the coughing fit could 15 have been the root cause of the pancreatitis. (Dkt. No. 16-4 at 6.) This is insufficient for the 16 Court to conclude that Dr. Hruby’s conclusion goes beyond speculation or that he reached his 17 conclusion via reliable methodology. 18 Moreover, it appears that Dr. Hruby’s opinion—or at least his level of certainty—was 19 developed for purposes of this litigation. This is an important factor in the Court’s analysis. See 20 Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th Cir. 1995) (“One very 21 significant fact to be considered is whether the experts are proposing to testify about matters 22 growing naturally and directly out of research they have conducted independent of the litigation, 23 or whether they have developed their opinions expressly for purposes of testifying.”). Dr. Hruby 24 was not Bennett’s treating physician when he was admitted to the hospital with gallstone 25 pancreatitis. (See Dkt. No. 16-5 at 2.) Instead, a month later, Bennett’s wife wondered to Dr. 26 Hruby if the choking episode could have caused the pancreatitis. (See Dkt. No. 16-4 at 10.) At ORDER PAGE - 4 1 that time, Dr. Hruby “suspect[ed] by [Bennett’s] history that [the] episode of coughing may have 2 precipitated passage of [the] biliary stone leading to his hospitalization.” (Id. at 12) (emphasis 3 added). Plaintiffs’ counsel subsequently asked Dr. Hruby if he would “feel comfortable in 4 making the statement that more likely than not a coughing spell such as the one [Bennett] 5 experienced could cause the pancreatitis?” (Id. at 17.) In response, Dr. Hruby opined that “on a 6 more than not probable basis,” Bennett’s choking fit caused him to develop gallstone 7 pancreatitis. (Id. at 9.) Although he used this language as to his level of certainty, Dr. Hruby 8 explained his opinion simply by stating that the choking fit “could conceivably have caused” the 9 pancreatitis. (Id.) In other words, Dr. Hruby determined only that this scenario was possible prior 10 to counsel’s request; it was not until he was asked to testify that he qualified his opinion with the 11 requisite level of probability. 12 III. 13 CONCLUSION In sum, the Court finds insufficient evidence of causation for Plaintiffs to maintain this 14 claim. The United States’ motion for partial summary judgment (Dkt. No. 15) is GRANTED. To 15 the extent Plaintiffs seek to recover damages associated with Bennett’s gallstone pancreatitis, 16 that claim is DISMISSED with prejudice. 17 DATED this 6th day of June, 2017. 20 A 21 John C. Coughenour UNITED STATES DISTRICT JUDGE 18 19 22 23 24 25 26 ORDER PAGE - 5

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