O'Neal v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

ALEXANDRIA DIVISION

RANDY G O'NEAL CASE NO. 19-cv-1472

JUDGE DRELL

USA . MAGISTRATE JUDGE PEREZ-MONTES

RULING

Before the Court is a motion for reconsideration (Doc. 54) of this Court’s memorandum

ruling and judgment, (Docs. 52, 53), filed by defendant United States of America (“government”).

The motion has been fully briefed. For the reasons discussed below, the motion is GRANTED in

part and DENIED in part.

I. Background

On December 20, 2021, this matter was tried on the merits before the undersigned. The

case is a Federal Tort Claims Act (“FTCA”) claim filed by plaintiff Randy O’Neal (“O’Neal’”’)

against the government for damages sustained in a September 25, 2017, motor vehicle accident.

The Court entered judgment in favor of O’Neal against the government as follows:

Special Damages

Past Medical Expenses $35, 109.94

Future Medical Expenses $206,764.07

Vehicle Property Damages $4,611.59

General Damages inclusive of past and future

pain, suffering, anguish, and diminished quality

of life $260,000.00

(Doc. 52). The Court also found O’Neal 50% at fault in causing the subject accident and

reduced O’Neal’s award accordingly. (Id.). In addition, the judgment awarded interest from the

date of judgment until paid and one half of the costs of these proceedings. The government now

moves for reconsideration of those awards.

I. Law

“In FTCA suits, state substantive law applies; however, the Federal Rules of Civil

Procedure govern the manner and time in which defenses are raised and when waiver occurs.” Lee

United States, 765 F.3d 521, 523 (Sth Cir. 2014) (citation and internal quotation marks omitted).

The parties agree that the instant motion is controlled by Federal Rule of Civil Procedure Rule

59(e), and to prevail the movant must show either: (1) an intervening change in controlling law;

(2) the availability of new evidence not previously available; or (3) the need to correct a clear error

or prevent manifest injustice. In re Benjamin Moore & Co., 318 F.3d 626, 629 (Sth Cir. 2002). A

Rule 59(e) motion “calls into question the correctness of a judgment.” In re Transtexas Gas Corp.,

303 F.3d 571, 581 (Sth Cir.2002). Fifth Circuit precedent holds that Rule 59(e) “is not the proper

vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised

before the entry of judgment.” Templet v. HydroChem Inc., 367 F.3d 473, 479 (Sth Cir. 2004)

(citing Simon v. United States, 891 F.2d 1154, 1159 (Sth Cir.1990)).

Il. Analysis

The government moves for reconsideration of the award for future medical expenses,

property damage, interest, and costs. .At the onset, we requested pretrial memoranda. The

government’s memorandum, (Docs. 46, 47), was limited entirely to the comparative fault analysis

and failed to provide any analysis of damages, or more specifically the future medical expenses

and property damages it now prays we reconsider. After O’Neal filed his memorandum, which

included an analysis of future medical expenses and property damage, the government failed to

further address those issues. Additionally, the government’s opening and closing arguments

during the bench trial also failed to address many of the points it now raises. In fact, it appears

from the government’s motion that many of the facts and arguments it now raises were taken from

this Court’s ruling, which facts are in the record and were within the government’s knowledge

prior to filing its pretrial memorandum and certainly prior to trial. For these reasons alone the

Court may, and likely should, decline to address much of the motion to reconsider as it pertains to

future medical expenses and property damage. In a similar vein, see, e.g., Templet v. HydroChem

Inc., 367 F.3d 473, 479 (Sth Cir. 2004) (citing Russ v. Int'l Paper Co., 943 F.2d 589, 593 (Sth

Cir.1991)) (‘[A]n unexcused failure to present evidence available at the time of summary

judgment provides a valid basis for denying a subsequent motion for reconsideration.”).

Nonetheless, we consider the present arguments for clear error and any manifest injustice that may

flow therefrom.

A. Future Medical Expenses

The Court’s award of future medical expenses includes costs for additional ablation therapy

and cervical fusion. The government argues that the award was entered erroneously and is

manifestly unjust because: (i) O’Neal indicated a desire to not undergo surgery; (ii) a significant

temporal gap existed without a compelling explanation between O’Neal’s first right side ablation,

and his first left side ablation, arguably diminishing O’Neal’s need for future ablation therapy and

cervical fusion; (iii) expert witness for the government Dr. Harold Granger and O’Neal’s pain

management physician Dr. Sean Stehr each testified by deposition that O’Neal’s injury does not

necessitate surgery; (iv) the base cost of ablation therapy was incorrectly determined; and (v) a

bald assertion that the award of future medical expenses was based upon past medical expenses.

i. O’Neal’s desire to not undergo surgery

The government’s claim that O’Neal simply desires not to undergo future surgery is not

supported by trial testimony. O’Neal has long been active singing in a local band and providing

announcing services for community events and sporting events at a local high school and college.

Accordingly, he deemed the preservation of his voice justification for his reluctance to consider

surgery. O’Neal explained his reluctance to consider surgery was because a cervical fusion, unlike

ablation therapy, would, at best be temporary, and at worst permanently affect his voice; whereas

the ablations provided temporary relief for 12 to 18 months and could be repeated.

O’Neal’s treating neurosurgeon, Dr. Erich Wolf II, confirmed in his deposition testimony

that he recommended O’Neal see Dr. Stehr, a pain management specialist, for injections in hopes

of avoiding surgery. This was suggested because O’Neal expressed concerns about losing his

voice. Dr. Wolf also stated that relief from the ablation therapy could last 12 to 18 months,

depending upon the patient, but that over time, the efficacy of repeated ablations declined. He

believed it was more likely than not that O’Neal would eventually require surgery within the next

ten years.

Upon review we do not deem it clearly erroneous for us to have awarded O’Neal future

medical costs to cover ten years of ablation therapy and cervical fusion surgery. In this award, the

court did not add in an inflation factor which, in itself, would likely have increased the award.

ii. Temporal Gap

O’Neal explained he had been unable to schedule a first left side ablation until three years

after a first right side ablation because of financial issues and hospital shutdowns from hurricanes

and the COVID pandemic. We noted that O’Neal had the financial means to undergo a first left

side ablation shortly after the first right side ablation but that the surgery was halted on account of

problems he had under anesthesia. On affordability issues, O’Neal’s counsel covered medical

expenses as part of his representation, and ample time existed between hospital shutdowns from

hurricanes and the COVID pandemic to schedule another ablation. (Doc. 52 pp 11-12).

Nevertheless, the fact that O’Neal’s first attempt to undergo the first left side ablation was

halted on account of difficulties under anesthesia did not preclude a finding that future financial

issues could well have prevented rescheduling. Beyond hospital shutdowns, the COVID pandemic

put several temporary halts on elective surgeries. Under the unique circumstances presented by

the COVID pandemic, hurricanes, and the government’s failure to argue these facts before or at

trial, we do not deem it clearly erroneous to award O’Neal future medical cost to cover yearly

ablations.

iii. Testimony of Dr. Granger and Dr. Stehr

Dr. Harold Granger, a board-certified orthopedic surgeon who specializes in the treatment

of adult and pediatric bone and joint disorders, performed an independent medical examination of

O’Neal on behalf of the government. The Government makes the point that Dr. Granger opined

O’Neal did not require surgery. Instead, he recommended physical therapy and chiropractic

manipulation. As discussed above, this Court’s memorandum ruling did not mention Dr.

Granger’s opinion and recommendation in part because the significance of his opinion and

recommendation was not argued before us in memorandum or at trial and because of the following.

In revisiting the testimony of Dr. Granger we note several of his salient observations. In

his deposition of November 10, 2021, Dr. Granger testified that while he does evaluate patients

with neck issues, he has not performed any cervical surgery since his residency. (Ex 3A-7). His

biomechanical testimony regarding the supposed minor nature of the plaintiff's accident was

objected to (although the objection was not renewed at trial) and appears to us to have been of little

value without a foundation for his expertise in making that judgment. On the subject of appropriate

treatment for Mr. O’Neal, Dr. Granger acknowledged the therapeutic nature of ablations (Doc 3A-

36 and 3B-30) and agreed that they constituted appropriate, conservative treatment and that,

ultimately, Mr. O’Neal “would be looking at a multiple level anterior cervical discectomy....”

Meanwhile, continuing with periodic ablations was appropriate.

The Government suggests Dr. Granger verified chiropractic to be the treatment of choice

but our reading of his testimony is that chiropractic has been a successful treatment choice for the

doctor. He, however, made no statement that it was THE treatment of choice for Mr. O’Neal. Dr.

Granger also certainly did not rule out or ever look with disdain at the use of a future surgical

intervention (see Ex. 3A-61).

Dr. Sean Stehr is a physical medicine and rehabilitation specialist who focuses on and is

board certified in pain management. Dr. Stehr performed radiofrequency ablation therapy on

O’Neal’s right side in 2018 and left side in 2020. The government asserts that like Dr. Granger,

Dr. Stehr recommended O’Neal not undergo surgery. While Dr. Stehr did state that he did not

think O’Neal needed surgery, it was because he felt O’Neal could undergo ablation therapy once

a year, indefinitely. Comparatively, Dr. Wolf believed the efficacy of the ablation therapy would

diminish and surgery was inevitable. —

After weighing the testimony of Dr. Granger, an orthopedic surgeon who does not operate

on necks, beside Dr. Wolf, a neurosurgeon, and Dr. Stehr, a pain management specialist, we

determined that greater weight should be placed on Drs. Wolf and Stehr’s testimony. Not only

were they O’Neal’s treating physicians! but diagnosis and treatment plans were similar. Although

1 See, ¢.g., Ponthier v. Vulcan Foundry, Inc., 668 So. 2d 1315, 1317 (La. App. 1 Cir. 1996) (“[T]he general

jurisprudential rules are that a treating physician's opinion is given more weight than a non-treating physician, and

the testimony of a specialist is entitled to greater weight than a general practitioner.”) (citations omitted); Freeland v.

Bourgeois, 950 So. 2d 100, 119-20 (La. App. 3 Cir. 1/24/07), writ denied, 954 So. 2d 144 (La. 4/5/07) (“It has long

the government argues that Dr. Wolf saw O’Neal only twice, Dr. Granger saw O’ Neal only once.

Dr. Granger is an orthopedic surgeon who specializes in bone and joint disorders whereas Dr. Wolf

specializes in minimally-invasive spine surgery. While we understand that some orthopedic

surgeons do conduct spinal surgeries, they do not have the same specialization when it comes to

care of the spine and nerves therein. The same is true for pain management specialists.

Accordingly, we place greatest weight on the testimony of Dr. Wolf followed by that of Dr. Stehr.

iv. Cost of ablation therapy

Future medical expenses were based upon the cost of ten bilateral ablations and the cost of

surgery. In his trial memorandum, O’Neal provided the cost/value of $7,500 for a single ablation

without citation to the record. The government did not rebut this value in its memorandum or at

trial. It now points out that record evidence shows the actual cost to be $6,507 each. (Plaintiff's

Trial Ex. 4, Doc. 51-10). O’Neal responds that record evidence and trial testimony supports the

$7,500 cost but is unable to reference specifics in the record or trial testimony where such support

is found. It may be arguable that inflation will affect future costs in excess of that shown in Doc.

51-10 but we cannot speculate about that. Accordingly, we agree with the government that the

award should be reduced. If ablation therapy for a single side costs $6,507, and O’Neal requires

bilateral ablations over the course of ten years, the award of future medical expenses for ablation

therapy should be $130,140. After including the cost of cervical fusion at $56,764.07, O’Neal’s

future medical expenses are now reduced and calculated to be $186,904.07.

been held that, in general, the observations and opinions of the treating physician are to be accorded greater weight

than those of a physician who has only seen the party for purposes of rendering an expert opinion concerning the

party's condition.”).

v. Whether that the award of future medical expenses was based upon past

medical expense

‘The government also claims that this Court based its award of future medical expenses on

past medical expenses. The government, despite its argument, admits that “[t]here is a tenuous

link, at best, between O’Neal’s past medical expenses [comprising doctor’s visits, one □

electromyography test, cervical imaging via x-rays and MRIs, pain medication, and two ablations]

to the [sum awarded O’Neal].” The government is correct that there is a tenuous link between the

two because the only aspect of O’Neal’s past medical expenses that informs the future medical

expenses is the cost of ablation therapy. O’Neal sought damages for ablation therapy and cervical

surgery. Had he sought future medical expenses for further doctor visits, imaging, or pain

medication, his award could possibly have been greater.

The sum awarded to O’Neal for future medical expenses was comprised exclusively of

ablation therapy and cervical surgery as other amounts, including issues of inflation/discount, were

neither sought nor proven.

Indeed, the government also claims that O’Neal’s award is not discounted to present value

or upon consideration of O’Neal’s life expectancy. We decline to consider these arguments.

Although some of the aforementioned arguments may be gleaned from the record, there is no

evidence in the record nor arguments presented relating to any proper inflation or discount

methodology.

B. Property Damage

The government claims that O’Neal has received insurance proceeds to compensate for

property damage to O’Neal’s vehicle and that any additional award for property damage would

result in double recovery. While that may be true, Louisiana applies the collateral source rule

pursuant to which “a tortfeasor may not benefit, and an injured plaintiff's tort recovery may not be

reduced, because of monies received by the plaintiff from sources independent of the tortfeasor's

procuration or contribution.” Bozeman v. State, 879 So. 2d 692, 698 (La. 7/2/04) (citing Louisiana

Dep't of Transp. & Dev. v. Kansas City S. Ry. Co., 846 So. 2d 734, 739 (La. 5/20/03). The

government does not provide any case law to suggest otherwise. Further, while a payment from a

third party could have resulted in an intervention for subrogation, O’Neal’s auto insurer Go Auto

is notably not a party in this suit. See St. Julian v. Wiltz, 21 So. 3d 449, 455 (La. App. 3 Cir.

10/7/09) (citing Great West Cas. Co. v. State ex rel. Dep't of Transp. and Dev., 960 So.2d 973

(La.App. 1 Cir. 3/28/07), writ denied, 963 So.2d 1005 (La.9/14/07) (‘[T]he collateral source rule

does not apply when the insurance policy which paid part of the debt owed by the tortfeasor

includes a subrogation clause.”’); Ellis v. Brown, 196 So. 3d 665, 669 (La. App. 2 Cir. 5/18/16)

(citing Southern Farm Bur. v. Sonnier, 406 So.2d 178 (La.1981); Smith v. English, 586 So.2d 583

(La.App. 2 Cir. 8/21/1991), writ denied, 590 So.2d 80 (1991)) (“[T]he collateral source rule does

not apply where the right of subrogation is involved; in such a case, the plaintiff may recover only

his remaining interest in the partially subrogated claim.”’). There is no evidence in this case proving

the existence of a subrogation clause in the Go Auto policy, nor do we have evidence of any

amount paid in property damage. Accordingly, it is not erroneous for us to award O’Neal the

property damage he incurred.

C. Interest

The parties are now in agreement that interest is due and payable after satisfaction of the

conditions of 31 U.S.C §1304(b)(1)(A). We agree. Accordingly, the government’s prayer for

reconsiderations on the interest award is granted and interest may be awarded pursuant to and in

satisfaction of the conditions provided in 31 U.S.C. § 1304(b)(1)(A).

D. Costs

The government argues that it can only be required to pay court costs after O’Neal files a

Bill of Costs with the Court pursuant to 28 U.S.C. § 2412. The position is correct. As O’Neal has

done so (see Doc. 56), the government’s argument is moot. The government’s objection to the

Bill of Costs will be resolved in the context of those filings and nothing in awarded costs in the

court’s order increases awardable costs and nothing in the costs award shall negatively affect the

provisions of 28 U.S.C.§2412.

IV. Conclusion

In light of the foregoing, it is

ORDERED that the motion for reconsideration is be GRANTED in part and the award

for future damages will be adjusted as described herein. All other aspects of the motion for

reconsideration are DENIED in part for the reasons expressed herein.

The court will issue an amended judgment in conformity with these findings.

THUS DONE AND SIGNED in Alexandria, Louisiana this od a of June 2022.

SS ae

DEE D. DRELL, SENIOR JUDGE

UNITED STATES DISTRICT COURT

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