United States District Court, E.D. Washington
JOANNE PORT, individually, and as the Personal Representative of the Estate of Ricky Alan Port, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S MOTION FOR
O. RICE CHIEF UNITED STATES DISTRICT JUDGE
THE COURT is Defendant United States of America's Motion
for Summary Judgment (ECF No. 78) and Plaintiff Joanna
Port's Motion for Reconsideration (ECF No. 93). The
Motions were submitted for consideration without a request
for oral argument. The Court has reviewed the record and the
briefing, and is fully informed. For the reasons discussed
below, Defendant's Motion for Summary Judgment (ECF No.
78) is granted and Plaintiff's Motion
for Reconsideration (ECF No. 93) is denied.
requests the Court reconsider its Order Granting
Defendant's Motion to Exclude (ECF No. 91). ECF No. 93.
“Reconsideration is appropriate if the district court
(1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” Sch. Dist. No. 1J, Multnomah
Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.
1993) (citation omitted). Despite conceding the validity of
the basis for the Order, Plaintiff argues the initial
decision was manifestly unjust because the Order is
tantamount to a dismissal given Plaintiff has only presented
one expert opinion for her claim of medical negligence.
Court recently excluded Plaintiff's expert report
(see ECF No. 71-2) because it provided opinions that
were not relevant nor adequately explained, in violation of
Federal Rule of Evidence 702 (governing expert opinions, as
expanded upon in Daubert v. Merrell Dow Pharm.,
Inc.) and Federal Rule of Civil Procedure 26 (governing
initial disclosures of expert opinions). See ECF No.
91 at 4-7. Plaintiff requests the Court reconsider its
decision to exclude the opinion - conceding the problems
raised by the Court in light of Daubert - and
suggesting the Court allow the evidence on the condition that
Plaintiff will cover the costs associated with Defendants
deposing Dr. Sonett. ECF No. 93 at 2. In other words,
Plaintiff concedes the validity of the ruling, but requests
the Court soften the blow by allowing/requiring Defendant to
flush out the details in a deposition paid for by Plaintiff.
Plaintiff requests the Court allow the introduction of an
expert opinion that does not comply with the Federal Rules of
Evidence. Fed.R.Evid. 702. Plaintiff does not request an
extension of the deadline to file expert reports nor does she
request more time in responding to Defendant's Pending
Motion for Summary Judgment to provide a proper expert
opinion. The Court cannot comply with this request without
rewriting the rules of evidence. If it were simply a failure
to provide timely disclosures, there are circumstances where
excluding an expert opinion may be too severe. However, the
opinion failed to meet the basic requirement for an expert
opinion under Federal Rule of Evidence 702 and the Court
cannot simply bend the rules of evidence and ignore Supreme
Court case law to avoid the consequences of failing to
introduce competent evidence. It is beyond dispute that
unexplained expert opinions are not admissible under Federal
Rule of Evidence 702 and Plaintiff concedes such.
Plaintiff has provided a supplemental declaration from Dr.
Sonett addressing the contentions of Defendant's expert
witness. See ECF No. 94-1. However, as discussed
more below, the supplemental declaration suffers from the
exact issues raised by the Court in excluding the first
declaration: the expert opinion delves into the merits of the
VA's decision not to place Mr. Port on the transplant
list based on his BMI and otherwise proffers conclusions
without any substantive explanation. Plaintiff has
effectively been given a second bite of the apple and still
comes up short.
worth mentioning that, in the Motion for Reconsideration,
Plaintiff opines that her claims may have been misconstrued.
Plaintiff states: “Plaintiff maintains again that
expert Dr. Sonett's opinion of Mr. Port not being timely
placed on a transplant list has nothing to do with a benefits
determination.” ECF No. 93 at 7. Plaintiff is correct
that the issue of timeliness in detecting Mr. Port's
condition (at issue here) is separate from the issue of
whether the VA properly excluded Mr. Port from the transplant
list (an issue not subject to review). However, in his
declaration, Dr. Sonnet did not directly opine that the VA
should have detected Mr. Port's pulmonary fibrosis at an
earlier time, but rather spends most of the time arguing the
merits of a decision to exclude Mr. Port from the list based
on a BMI above 30, which clearly goes to whether the VA
properly excluded Mr. Port from the transplant list.
See ECF No. 71-2; see also ECF No. 93 at 7
(arguing the national “standard of care for putting
patients on the transplant list does not exclude them if
their BMI is over 30”).
Motion for Reconsideration (ECF No. 93) is therefore
FOR SUMMARY JUDGMENT
Standard of Review
movant is entitled to summary judgment if “there is no
genuine dispute as to any material fact and that the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A fact is “material” if it
might affect the outcome of the suit under the governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is “genuine” where the evidence
is such that a reasonable jury could find in favor of the
non-moving party. Id. The moving party bears the
“burden of establishing the nonexistence of a
‘genuine issue.'” Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986). “This burden
has two distinct components: an initial burden of production,
which shifts to the nonmoving party if satisfied by the
moving party; and an ultimate burden of persuasion, which
always remains on the moving party.” Id.
Rule 56(c), the parties must support assertions by:
“citing to particular parts of materials in the
record” or “showing that the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact.” Only admissible evidence may be
considered. Orr v. Bank of America, NT & SA, 285
F.3d 764 (9th Cir. 2002). The nonmoving party may not defeat
a properly supported motion with mere allegations or denials
in the pleadings. Liberty Lobby, 477 U.S.
at 248. The “evidence of the non-movant is to be
believed, and all justifiable inferences are to be ...