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Port v. United States

United States District Court, E.D. Washington

April 15, 2019

JOANNE PORT, individually, and as the Personal Representative of the Estate of Ricky Alan Port, Plaintiff,



         BEFORE 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.


         Plaintiff 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.

         The 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.

         Critically, 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.

         Notably, 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.

         It is 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”).

         Plaintiff's Motion for Reconsideration (ECF No. 93) is therefore denied.


         A. Standard of Review

         A 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.

         Per 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 ...

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