Hearne v. Hub Bellevue Properties, LLC et al

Filing 91

ORDER denying Plaintiff's 79 Motion for Reconsideration; granting Plaintiff's 80 Motion for Extension of Time. Signed by U.S. District Judge John C Coughenour. (LH)

Case 2:16-cv-01010-JCC Document 91 Filed 08/27/20 Page 1 of 5

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CLIFFORD HEARNE, an individual,

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Plaintiff,

ORDER

v.

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CASE NO. C16-1010-JCC

HUB BELLEVUE PROPRETIES, LLC, a
Delaware Limited Liability Company, et al.,

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Defendants.

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This matter comes before the Court on Plaintiff’s motion for reconsideration (Dkt. No.

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79). Having considered the parties’ briefing and the relevant record, the Court hereby DENIES
the motion for the reasons explained herein.

I.

BACKGROUND
Plaintiff previously moved for partial summary judgment on the issue of damages, asking

the Court to hold that he has incurred $259,385.60 in reasonable medical expenses due to the
elevator accident that gave rise to this case. (Dkt. No. 46 at 22–24.) To contest those expenses,
Defendants offered the reports of Dr. Ramon Kutsy, Dr. Patrick Bays, and William Skilling. (See
Dkt. No. 60 at 132–148.) The Court held that while it would not consider Dr. Bay’s and Dr.
Kutsy’s reports because Defendants had failed to properly disclose those reports, Mr. Skilling’s
report was admissible and created a genuine dispute over the value of Plaintiff’s reasonable

ORDER
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medical expenses. (Dkt. No. 77 at 12–13.) Accordingly, the Court denied Plaintiff’s motion for

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summary judgment as to the issue of his reasonable medical expenses.

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In a footnote, the Court noted Plaintiff’s argument that Mr. Skilling lacks proper

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credentials and that it was illegal for him to provide a medical opinion about the reasonableness

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or medical necessity of Plaintiff’s medical treatment. (Id. at 12–13 n.5.) Although the Court

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found the argument to be inadequately supported, the Court invited Plaintiff to renew his

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argument with proper support if he so desired. (Id.) Plaintiff took the Court up on its offer by

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filing what he termed a “motion for reconsideration on [the] issue of reasonable and necessary

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medical treatment.” (Dkt. No. 79 at 1.) In the motion, Plaintiff argues that there is no genuine

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dispute as to Plaintiff’s reasonable medical expenses because Skilling (1) “offered no opinion on

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the medical necessity of [Plaintiff’s treatment]” and (2) lacks the necessary credentials to speak

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to the necessity of Plaintiff’s treatment. (See id. at 2–6.)

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Because Plaintiff’s motion raised new arguments, the Court construed Plaintiff’s motion

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as a renewed motion for summary judgment and gave Defendants an opportunity to respond.

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(Dkt. No. 83 at 1–2.) In their response, Defendants argue that the Court should deny Plaintiff’s

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motion because (1) the motion is untimely; (2) Skilling gave a qualified opinion about the

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necessity of Plaintiff’s medical treatment; and (3) even if Skilling did not give a qualified

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opinion about the issue, Dr. Christopher Hofstetter, Plaintiff’s treating physician, offered

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evidence in his deposition that some of his treatment was unrelated to the elevator accident. (See

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Dkt. No. 85 at 3–8.)

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II.

DISCUSSION

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A.

Nature of Plaintiff’s Motion

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The parties make several arguments on the assumption that Plaintiff’s motion is properly

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understood as a motion for reconsideration. For example, Defendants argue that Plaintiff’s

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motion was untimely because Plaintiff did not file the motion in 21 days, (see Dkt. No. 95 at 1–

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2) (citing W.D. Wash. Local Civ. R. 7(H)(2)), and Plaintiff argues that Defendants should not be
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allowed to raise new evidence, (see Dkt. No. 87 at 2–3). These arguments misapprehend

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Plaintiff’s motion. The motion addresses arguments that the Court previously declined to

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consider because those arguments were inadequately briefed. (See Dkt. No. 77 at 12–13 n.5.)

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Thus, the motion is not a motion for reconsideration; it is a renewed motion for summary

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judgment. Accordingly, the Court deems the motion timely and will, in fairness, consider

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Defendants’ new evidence and arguments. 1

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B.

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In the “brief record review” section of Skilling’s expert report, Skilling quotes

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Skilling’s Expert Opinion

extensively from the reports of Dr. Kutsy and Dr. Bays. (See Dkt. No. 60 at 140–44.) Those

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quotes express Dr. Kutsy’s and Dr. Bays’s respective opinions that Plaintiff received

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unnecessary medical treatment. (See, e.g., id. at 144) (“[Plaintiff] would have fully resolved from

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the effects of the subject incident . . . within approximately 12 months . . . . In my opinion,

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[Plaintiff] does not require any further treatment . . . .”). But Skilling does not express the same

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opinion in the “summary of findings and conclusions” section of his report. Instead, Skilling

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focuses on whether and to what extent Plaintiff is employable. (See id. at 144–48.) Skilling’s

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focus on employability is evident from the summary of his seven “rehabilitation opinion[s],”

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which are as follows:
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2.

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3.

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4.

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5.

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[Plaintiff] is currently employable as a database administrator;
If Dr. Kutsy is assumed to be correct, [Plaintiff] has been fully employable
as a Database Administrator continuously since approximately June 1,
2016;
If Dr. Bays is assumed to be correct, [Plaintiff] has been fully employable
as a Database Administrator continuously since approximately March 1,
2017;
If Dr. Robinson, Dr. Daly, and Dr. Wendt are assumed to be correct,
[Plaintiff] has been fully employable as a Database administrator
continuously since July 18, 2017;
If Dr. Hofstetter is assumed to be correct, [Plaintiff] has been fully
employable as a Database Administrator continuously since February 5,

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For the same reason, the Court GRANTS Plaintiff’s motion for an extension of time to file a
motion for reconsideration (Dkt. No. 80).
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6.

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(Id. at 147–48.) Of these opinions, only the seventh is arguably related to the value of the
medical expenses that Plaintiff incurred due to the elevator accident. But Skilling’s seventh
opinion is unclear—Skilling does not say when Plaintiff “reached maximum medical
improvement”—and Skilling does not state the factual basis for the opinion. (See id.) Thus,
Skilling’s report does not create a genuine dispute over the value of Plaintiff’s reasonable
medical expenses. 2 See Fed. R. Civ. P. 56(a); Walton v. U.S. Marshals Serv., 476 F.3d 723, 730
(9th Cir. 2007) (quoting Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985) (“Expert
opinion is admissible and may defeat summary judgment if . . . the factual basis for the opinion
is stated in the affidavit . . . .”)
C.

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The Deposition Testimony of Plaintiff’s Treating Physician

At Dr. Hofstetter’s deposition, Defendants asked Dr. Hofstetter whether he believed that

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2018.
Based upon his transferable skills, knowledge, and other qualifications,
[Plaintiff] has been employable in less stressful alternative occupations
continuously since the dates listed above;
It is evidence from a review of the records that [Plaintiff] has reached
maximum medical improvement and is no longer receiving treatment for
conditions associated with the subject incident. Therefore, a Life Care Plan
associated with the subject incident is not indicated.

Plaintiff’s lumbar surgery was unrelated to the elevator accident. (See generally Dkt. No. 86.) In
response, Dr. Hofstetter repeatedly stated that he could not say on a more probable than not basis
that Plaintiff’s lumbar condition was related to the elevator accident. (See, e.g., id. at 15)
(Question: “[C]an you say on a more probable than not basis the lumbar condition . . . is related
to the elevator accident?” Answer: “No, I can’t. I cannot.”). In fact, when Dr. Hofstetter was
asked by Plaintiff’s own counsel whether “a negative history of lower back complaint before the
elevator accident [could] be a factor to consider as to whether his lower back pain and surgery
was caused by the elevator accident,” Dr. Hofstetter responded, “I mean, yea, again . . . now sort
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Because the Court concludes that Skilling did not properly articulate an opinion about the
reasonableness of Plaintiff’s medical expenses, the Court need not reach the parties’ arguments
about whether Skilling was qualified to give such an opinion.
ORDER
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of looking at it as more probably than nonprobable, I would say it’s -- It doesn’t fit together. . . . I

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have a hard time to link those two together.” (Id. at 19.) These statements, which are plain and

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unambiguous, create a genuine dispute about the value of the medical expenses that Plaintiff

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incurred due to the elevator accident. Accordingly, the Court DENIES Plaintiff’s request for

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summary judgment as to that issue. 3

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III.

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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for reconsideration (Dkt.

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No. 79). The Court further GRANTS Plaintiff’s motion for an extension of time to file a motion

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for reconsideration (Dkt. No. 80).

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DATED this 27th day of August 2020.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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After his deposition, Dr. Hofstetter signed a declaration that contradicts the statements he made
during his deposition. (See Dkt. No. 88-1 at 11–14.) It is up to the jury to resolve that
contradiction at trial. Cf. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (observing the
jury usually resolves inconsistencies between deposition testimony and declarations submitted to
oppose summary judgment).
ORDER
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