Opinion
CIVIL ACTION NO. 00-3349, SECTION "K" (5)
January 15, 2004
MINUTE ENTRY
Before the Court are a Motion for Summary Judgment filed by Walter Scallan ("Scallan") (Doc. 52) and a Motion for Dismissal or for Summary Judgment (Doc. 57) filed by the United States of America. In addition, the United States filed a Motion to Limit the Ad Damnum Clause (Doc. 5-1). Having reviewed the pleadings, memoranda and the relevant law. the Court finds that neither plaintiffs Motion for Summary nor defendant Motion for Dismissal or for Summary Judgment has merit. However, the Motion to Limit the Ad Damnum Clause is meritorious.
The Court will outline the facts of this case and then address each motion.
Background
Walter Scallan is a Navy Diver veteran who has been a patient at the VA Medical Center ("the VA") in New Orleans since 1973. In 1994, plaintiff allegedly sought treatment at the YA for ear inflamation and blockage. While the cleared, the blockage remained in the left ear.In February of 1994, an audiogram was conducted at the VA. That spring, plaintiff contends Dr. Badeaux, a resident there, reviewed those results. Scallan previously had cholesteatoma in the right ear and was concerned that this malady could be the cause of his problem in the left car. He contends that he so informed the doctor. Nonetheless, Dr. Badeaux allegedly refused to order a CAT scan, which Scallan had requested, because the procedure was too expensive. Nonetheless, plaintiff continued to report to the VA every three to sixth months, but the treatment was limited to physical inspections, audiograms and other tests.
Scallan, who still was suffering with the effects of the blockage, decided to seek private treatment. On September 26, 1995, Seallon Saw Dr. Herbert Marks, a private physician Plaintiffs contends that Dr. Marks immediately ordered a CAT scan which was done on November 14. 1995 and discussed the results with plaintiff on November 24, 1995. On December 21. 1995. Dr Marks conducted another examination and noted what he believed to a cholesteatoma that needed immediate surgery which was performed on January 17, 1996 with reconstructive surgery being done on July 26, 1996.
Concomitantly, Scallon continued treatment at the V A. On November 28. 1995. Dr. Simmons at the VA ordered a CAT scan and then noted the possibility of cholesteatoma. While Scallon apparently did not discuss his private treatment with the V A doctors, a CAT scan was ordered. Plaintiff contends that on January 9, 1996, Dr. Badeaux allegedly refused to discuss the results of the VA CAT scan other than to say that there was no tumor. However, on that same day, Dr. Badeaux apparently acknowledged the possibility of a cholesteatoma and order plaintiff to return on February 6, 1996.
On February 10, 1997, Scallon applied to the Department of Veterans Affairs ("Veterans Affairs") for service connected disability benefits under 38 U.S.C. § 1151. In that request ho complained of increased hearing loss caused by the VA's failure to provide timely treatment. In a letter dated November 18, 1997, again in relation to the increase in benefits, he noted that he could not function normally as a full-time teacher.
On November 20, 1997, the Standard Form 95 seeking redress administratively under the FTCA was filed. In that form, he requested $97,896.52 in damages for the VA's actions. The total damages were itemized as follows:
Pain and Suffering, Stress and mental Anguish $15,000.00 Medical Expenses to date $15,896.52 Future Medical Expenses $8,500.00 Loss of hearing $50,000.00
TOTAL $97,896.52
No mention of loss wages was made in this claim.
At the time the problem in his left ear developed and when this claim was filed, plaintiff was a teacher at Chalmette High School. However, a result of the loss of hearing, Scallon had to take early retirement in late 1998 even though he had intended to teach until 2005.
On October 21, 1998, his claim against the VA based on the FTCA was denied. Apparently after having quit teaching, Scallan then began to work at the Superdome as a utility guy in the television production area in 1998.
On April 6, 1999, Scallan sought reconsideration of the FTCA claim; he apparently did not amend or supplement that claim to include a lost wage claim.
On May 11, 1999 and again on August, 24 1999. Scallan wrote letters in to the Department of Veteran Affairs in New Orleans Regional Office. It is not clear whether these letters properly referenced the FTCA claim; however, reviewing the context, it would appear that these letters probably were in reference thereto. In them, Scallan does not mention any problem with vertigo: however, he does note that "I am not a manual laborer. I am a professional qualified by 50 years experience in my field with a Master of Fine Arts in Communications. I cannot hold down a position that I am qualified for because of my hearing handicap."
On September 2, 1999, a hearing was held concerning his 1151 request for hearing loss of the left ear. At this hearing, he testified that he was having trouble with his Superdome job because it requires him to hear with which he had trouble-hearing cues, and the like. He told them at that hearing that he had quit his previous teaching job as well. There was no mention of vertigo.
On September 13, 1999, Scallan supplemented the FTCA claim record with a report from Dr. Marks concerning the cholesteatoma. No mention was made of a lost mage claim.
November 5, 1999, the VA apparently approved service connection status for hearing loss in plaintiffs left ear in lieu of compensation under 38 U.S.C. § 1151.
On May 4, 2000, Scallan apparently in reference to a request for increased disability rating, mentioned for the first time a problem with vertigo to the United States.
On July 5, 2000, a letter from Dr. Marks was sent concerning Scallan's vertigo with respect to the grant of service connection.
On September 12, 2000, the Office of the General Counsel denied the FTCA claim and the subject suit was filed.
In that Complaint, he did not specifically seek "lost wages"; however, in Paragraph XXXIV he state that he suffered, inter alia, "impairment in his chosen profession" and "permanent impediments".
Scallan now seeks lost wages as a result of the alleged failure to provide competent treatment in the following amounts:
1998 $3,951.38
1999 $14,574.40
2000 $11,476.63
2001 $22,094.90
2002 $28,500.00
2003 $28,500.00
He also seek $3,645.29 in costs. There is a medical Hen of $9,728.58. He also seeks $28.500 in future lost wages for 2004 and 514,250.00 for future lost wages in 2005.
Motions Before the Court
In the United States's Motion for Dismissal it contends that the case should be dismissed under Fed.R.Civ.P. 12(b)(1), for lack of jurisdiction, or 12(b)(6), for failure to state a claim upon which relief can be granted. Alternatively, the Government seeks summary judgment under Feel. R. Civ. P. 56(c) contending that plaintiff cannot prove the essential elements of his malpractice claim. The Government's motion was filed in response to plaintiffs Motion for Summary Judgment in which Scallan contends that there are no disputed issues of fact and that he is entitled to damages including lost wages. The third motion, the Motion to Limit the Ad Dumnum clause, was filed by the United States seeking to limit plaintiff's recovery to the amount he claimed in his administrative claim. The Court will first address the Motion to Dismiss under Rule 1 2 filed by the United States.
Standard for Motion to Dismiss for Lack of Subject Mailer Jurisdiction and Failure to State a Claim
The United States contends that the Court lacks subject matter jurisdiction over plaintiff's claims because the complaint fails to state a cognizable or actionable claim under the Federal Fort Claims Act ("FTCA") 28 U.S.C. § 1346(b). In essence the United States, argues that he-cause plaintiff failed to designate the specific doctors whom he contends failed in their duty of care in his complaint and because he did not alleged that the doctors at issue were not independent contractors such that the United States would be liable, the complaint is void of factual allegations which support jurisdiction and a claim under the FTCA. As such, the United States contends that its sovereign immunity is preserved.
To state a claim under the FTCA, six elements are necessary: (1) the claim must be against the United States; (2) for money damages; (3) for injury of loss of property or personal injury or death; (4) caused by a negligent or wrongful act or omission of any employee of the government; (5) while acting within the scope of his office or employment; (6) under circumstances where the United States if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred. Franklin Sav. Corp. v. United States, 970 F. Supp. 885, 868 (S.D. Kan. 1997).
A district court may dismiss a complaint pursuant to Fed.R.Civ.P. 2(b)(1) based on the "(1) complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts" Barrera-Montenegor v. United States, 74 F.3d 657. 659 (5th Cir. 1996), citing Voluntary Purchasing Groups. Inc. v. Reilly, 889 F.2d 1380. 13S4 (5th Cir. 1989). Considering the voluminous administrative record, the deposition testimony and other exhibits, it is clear that this Court has jurisdiction to consider this matter. There are sufficient allegations to support a claim against the United States based on its failure to provide care at the VA through the actions or inactions of Drs. Badeaux, Simon or others, whether the handwritings are legible or not. There is simply no proof presented that these doctors are independent contractors, and the Court will not interpret the facts to preclude this case from being brought.
Standard for Motion for Summary Judgment
Summary judgment is proper only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.C.P. 56
The party seeking summary judgment bears the exacting burden of demonstrating that there is no actual dispute as to any material fact in the case . . . in assessing whether the movant has met this burden, the courts should view the evidence introduced and all factual inferences from that evidence in the light most favorable to the party opposing the motion. . . . All reasonable doubts about the facts should be resolved in favor of the non-moving litigant . . . Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the factual inferences that should be drawn from these facts. . . . If reasonable minds might differ on the inferences arising form undisputed facts, then the court should deny summary judgment.Martin v. John W. Stone Oil Distributor, Inc., 819 F.2d 547, 548 (5th Cir. 1987) (quoting Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026. 1031 (5th dr. 1982).
Both Scallon and the United States contend that they are entitled 10 summary judgment. However, there is contradictory evidence and testimony presented that create questions of fact respect to causation. Dr. Specter's deposition testimony (the Government's own expert) creates a question as to whether the failure to treat Scallan timely resulted in his extreme hearing loss. In particular, Dr. Specter noted that after the physical exam on February 1994 and the hearing test done on February 25, 1994, the next physician to see Scallon should have ordered a CT scan. Or. Specter stated that it certainly should have been ordered by August 11, 1994 where the records indicated that Scallon first returned to the VA hospital and he testified that there may have been an earlier visit. (Dep. of Specter pp. 8-16). Moreover, he testified that live three months could have contributed to the failure to detect the cholesteatoma. Furthermore, the Government seems to focus on its misapprehension that this case only focuses on alleged failures in 1995; this case simply is not so limited in scope; the administrative claim certainly demonstrates that reality. Indeed, there are myriad questions including, out no; limited to, whether any VA employees violated the appropriate standard of care, particularly with respect to whether there was a failure to treat in a timely manner; whether Drs. Badeaux and Simon violated the standard of care; whether these residents were in fact VA employees or independent contractors. The expert testimony of Dr. Specter makes it clear that summary judgment would be inappropriate. Accordingly,
IT IS ORDERED that the Motion for Summary Judgment filed by Walter Scallan ("Scallan") (Doc. 52) and a Motion for Dismissal or for Summary Judgment (Doc. 57) filed by the United States of America are DENIED.
The Court will now take up the Motion to Limit the Ad Damnum Clause.
Motion to Limit the Ad Damnum Clause
Finally, the United States has filed a Motion to Limit the Ad Damnum Clause. Under the FTCA, the United States has granted a limited waiver of sovereign immunity allowing it to be liable for certain torts to the same extent as a private party. Thomas v. Calvar Corp., 679 F.2d 415, 418 (5th Cir. 1982). As such, when a party pursues a claim under the FTCA, he is limited to recover the amount sought in the administrative proceeding. 28 U.S.C. § 2675(b). This statute states:
Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increase: amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening (acts, relating to the amount of the claim.28 U.S.C. § 2675(b).
The Fifth Circuit articulated the two-told inquiry for the proper interpretation of this state
"First, the evidence must support the increase in the prayer over the administrative claim" . . . "Next the allegedly newly discovered evidence or intervening facts must not have been reasonably capable of detection at the time the administrative claim was filed." . . . Therefore, it seems there is first a subjective test as to whether the specific injuries were known at the time the administrate complaint was made. Then there is an objective test as to whether the the plaintiff could have made out its worst-case scenario based on the basic severity of the injuries that were known. Reilly v. United States, S63 F.2d 149, 172-73 (1st Cir. 1988.).Dickerson v. United States, 280 F.3d 470, 475 (5th Cir. 2002).
In explaining what would constitute "new evidence" the Fifth Circuit has noted that:
"new information cannot surmount the bar created by § 2675(b) if the information merely concerns the precision with which the nature, extent or duration of a claimant's condition can be known. Information can be newly discovered evidence or an intervening fact, however, if it sheds new light on the basic severity of the claimant's condition — that is, if it materially differs from the worst-case prognosis of which the claimant knew or could reasonably have known when the claims was field See, e.g., Fraysier v. United States, 766 F.2d 478, 481 (11th Cir. 1985), cited in Low [v. United States], 795 F.2d [466] at 470 [(5th Cir. 1986)]. Requiring the plaintiff to guard against a worst-case scenario in preparing his claim gives the Government full notice of its maximum potential liability in the case. This encourages settlement of FTCA cases in accordance with the statute's purposes. See Low, 795 F.2d at 470-71. Reilly v. United States, 863 F.2d 149, 172-73 (1st Cir. 1988).Lebron v. United States, 279 F.3d 321, 321 (5th Cir. 2002). The plaintiff bears the burden of a basis for increasing the amount of damages over the administrative claim by proving such intervening facts or newly discovered evidence. Broom v. United States, 1993 WL.329967 (E.D.La. Aug. 20. 1993) cuing Dickens v. United States, 545 F.2d 886, 893 (5th Cir. 1977); Bonner United States, 339 F. Supp. 640, 650 n. 5 (E.D.La. 1972).
Plaintiff maintains that there are two factual considerations-that is there are two different loss wage claims at issue. First there is the lost wage claim arising from the loss of hearing. Then there is the loss wage claim arising from the onset of vertigo which resulted in Scallan having to quit his employment at the Superdome.
With respect to the first claim, plaintiff has failed to prove that his inability to teach as the result of cholesteatoma was not foreseeable; he knew or reasonably should have known of this possibility when he filed his claim. There is no proof adduced that plaintiff's hearing ability changed from the time of filing the FTCA claim to the time that he left his teaching position; rather it is that he realized that his ability to teach was permanently jeopardized as the result of that hearing loss. Certainly, the "worst-case scenario" would have included that consequence. As such, the Court finds that the requirements of 28 U.S.C. § 2675(b) are not satisfied to allow recovery above the sums initially claimed.
However, the lost wage claim arising out of the onset of vertigo presents a different analysis. At the time of the FTCA claim being made, there is no evidence presented that plaintiff sufferer with vertigo, albeit that he had had that problem when he had his first incident of cholesteatoma., Furthermore, at the time of the claim, plaintiff's equilibrium and ability to navigate was not an integral, required part of his employment, nor did could he have foreseen that his next job would require these abilities. As noted above, information can be newly discovered evidence or an intervening fact, if it sheds new light on the basic severity of the claimant's condition — that is, if it materially differs from the worst-case prognosis of which the claimant knew or could, reasonably have known when the claims was filed."Lebron v. United Stales, 279 F.3d at 321. As such, there remains a question of fact for trial in this regard. The Court will deny the Motion to Limit in this regard. Accordingly,
IT IS ORDERED that the Motion to limit the Ad Damnum Clause is GRANTED with, respect to the lost wage claim arising from the loss of hearing and DENIED with respect to the lost wage claim arising from the onset of vertigo.