Mowry v. United States

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DAVID C. MOWRY, et al., ) CASE NO.: 5:19-cv-00627

)

Plaintiffs, )

)

v. ) JUDGE JOHN R. ADAMS

)

UNITED STATES OF AMERICA, ) MEMORANDUM OF OPINION AND

) ORDER

Defendant. ) (Resolves Docs. 64, 65, 69, 70, 75)

This matter arises out of a motor vehicle accident between a motorcycle, operated by Plaintiff

David C. Mowry (“Mowry”), and a United States Postal Service (“USPS”) delivery vehicle,

operated by a USPS employee. (Compl. ¶¶ 6-8, ECF No. 1.) Mowry and his wife, Beverly Mowry,

(collectively, “Plaintiffs”) bring a claim against Defendant United States of America (“United

States”) pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. and 28 U.S.C. § 1346,

for negligence while operating a motor vehicle in violation of R.C. 4511.43(A). (Id. at ¶¶ 2, 9, 18,

20.) Currently pending before this Court are various fully briefed motions and position statements.

This Court rules as follows.

I. PLAINTIFFS’ REQUEST FOR LEAVE TO FILE A MOTION FOR PARTIAL SUMMARY JUDGMENT

Plaintiffs allege the United States is liable for its employee’s negligence in operating a motor

vehicle in violation of R.C. 4511.43(A), which resulted in a motor vehicle accident. (See Compl.

¶¶ 2, 6-9, 18, 20, ECF No. 1.) To prevail under Ohio law on a negligence claim, Plaintiffs must

prove “(1) a duty requiring the defendant to conform to a certain standard of conduct, (2) breach

of that duty, (3) a causal connection between the breach and injury, and (4) damages.” Cromer v.

Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-229, 29 N.E.3d 921, ¶ 23

(citing Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984)).

With respect to the first element, the general “common-law duty of care is that degree of care

which an ordinarily reasonable and prudent person exercises, or is accustomed to exercising, under

the same or similar circumstances.” Mussivand v. David, 45 Ohio St.3d 314, 318-19, 544 N.E.2d

265 (1989). In short, “[a] person is to exercise that care necessary to avoid injury to others.” Id. at

319.

In addition to general negligence claims, Ohio law recognizes negligence per se, which

involves legislatively imposed duties of care – a “violation of a statutory duty constitutes

negligence per se.” Lang v. Holly Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495, 909

N.E.2d 120, ¶ 14 (citing Robinson v. Bates, 112 Ohio St.3d 17, 2006-Ohio-6362, 857 N.E.2d 1195,

¶¶ 23-25; Chambers v. St. Mary’s Sch., 82 Ohio St.3d 563, 565, 697 N.E.2d 198 (1998) (“Where

a legislative enactment imposes a specific duty for the safety of others, failure to perform that duty

is negligence per se.”)). In effect, “[t]he concept of negligence per se allows the plaintiff to prove

the first two prongs of the negligence test, duty and breach of duty, by merely showing that the

defendant committed or omitted a specific act prohibited or required by statute; no other facts are

relevant.” Lang at ¶ 15 (citing Chambers at 565-66). Although Plaintiffs’ complaint only generally

alleges negligence and not negligence per se, this Court’s conclusion applies to both negligence

and negligence per se claims.

On October 2, 2019, this Court held a Case Management Conference and determined that

dispositive motion practice would only be permitted in this matter upon motion by the parties.

(Case Management Conference Plan 1, 3, ECF No. 18.) On December 10, 2020, Plaintiffs filed a

motion requesting leave to file a motion for partial summary judgment, arguing the motion for

partial summary judgment “will be sought to establish negligence/liability on behalf of the

Defendant in this motor vehicle accident” which, in effect, would “limit the issues at trial and

streamline the judicial process. . ..” (Mot. for Leave 1, ECF No. 65.) The United States opposed

Plaintiffs’ request for leave arguing it is moot given the United States does not dispute that a USPS

employee, acting in the course and scope of his employment, was at fault for the motor vehicle

accident at issue, which establishes the elements of duty and breach for Plaintiffs’ negligence

claim, but does not blanketly establish liability upon the United States because Plaintiffs still must

prove the causation and damages elements of their claim. (Opp’n to Mot. for Leave 1-2, ECF No.

66.)

It is clear the parties do not dispute that the United States’ employee, during the course and

scope of his employment, was at fault for the motor vehicle accident at issue in this matter.

(Compare Compl., ECF No. 1 with Opp’n to Mot. for Leave, ECF No. 66.) This agreement

establishes that there is no genuine issue of material fact as to the first two elements of Plaintiffs’

claim, duty and breach, regardless of whether it is a common law negligence claim carrying the

common law duty of care or a negligence per se claim. Because the parties factually agree with

respect to the duty and breach elements, motions for summary judgment are unnecessary.

With respect to the causation and damages elements, these are purely factual in nature and,

necessarily, must be presented to the trier of fact. For causation specifically, it is clear the parties

maintain disagreement, particularly with respect to Mowry’s pre-existing conditions and whether

they were proximately caused or even negatively affected by the accident. (See Opp’n to Mot. for

Leave 2, ECF No. 66.) Because genuine issues of material fact remain with respect to the second

two elements of Plaintiffs’ negligence or negligence per se claim – causation and damages –

Plaintiffs’ argument that filing a motion for partial summary judgment would “establish

negligence/liability” and streamline this matter is incorrect. (Mot. for Leave 1, ECF No. 65.)

Plaintiffs must prove all four elements to “establish negligence/liability,” and two of those

elements must be presented to the trier of fact.

Because the parties agree there is no genuine issue of material fact as to duty and breach, but

disagree with respect to causation and damages, the filing of motions for summary judgment are

unnecessary. This matter will proceed to trial on the issues of causation and damages. Accordingly,

Plaintiffs’ Motion for Leave is DENIED. (Mot. for Leave, ECF No. 65.) In addition, Plaintiffs’

Motion for Partial Summary Judgement is DENIED as MOOT. (Mot. for Partial Summ. J., ECF

No. 64.)

II. UNITED STATES’ REQUEST TO EXCLUDE DR. MELISSA BICKETT’S TESTIMONY

On January 15, 2021, the United States filed an amended motion in limine requesting this Court

exclude testimony from Dr. Melissa Bickett (“Dr. Bickett”) which discusses compensating Mowry

for medical conditions he had prior to the motor vehicle accident at issue. (Bickett Am. Mot. in

Limine 1, ECF No. 70.) Such pre-existing medical conditions include diabetes, high blood

pressure, serious kidney issues, hematuria, congestive heart failure, and an enlarged prostate,

among other medical issues. (Id.) The United States argues that because Dr. Bickett is an

orthopedic surgeon who treated Mowry for injuries to his leg caused by the motor vehicle accident,

and Plaintiffs have not identified an expert witness qualified to testify regarding the impact of the

motor vehicle accident to any of Mowry’s pre-existing conditions, Dr. Bickett’s testimony should

be limited to that of her knowledge and expertise as an orthopedic surgeon and should not include

testimony regarding whether the motor vehicle accident at issue negatively affected Mowry’s pre-

existing conditions. (Br. in Supp. Bickett Am. Mot. in Limine 1, 5-8, ECF No. 70-1.)

In opposition, and without substantively addressing the pre-existing condition issue the United

States seeks to address, Plaintiffs argue the United States’ request should be overruled because Dr.

Bickett will only be “called to testify regarding her care and treatment of David Mowry” following

the motor vehicle accident at issue “and the effect of preexisting conditions on a patient’s ability

to heal.” (Opp’n to Bickett Am. Mot. in Limine 1, 5, ECF No. 72.)

Federal Rule of Evidence 702, provides that a qualified expert witness may provide opinion

testimony if:

(a) the expert’s scientific, technical, or other specialized knowledge will help

the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the

case.

Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589 (1993) explains that Fed. R. Evid. 702

“clearly contemplates some degree of regulation of the subjects and theories about which an expert

may testify.” Looking to Fed. R. Evid. 702, “[t]he subject of an expert’s testimony must be

‘scientific . . . knowledge’” where “’scientific’ implies a grounding in the methods and procedures

of science” and “’knowledge’ connotes more than subjective belief or unsupported speculation.”

Id. at 589-90. Expert witnesses are given “wide latitude to offer opinions, including those that are

based on firsthand knowledge or observation,” which is provided “on an assumption that the

expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” Id.

at 592. In short, this Court “must ensure that any and all scientific testimony or evidence admitted

is not only relevant, but reliable.” Id. at 589.

The parties mainly dispute the scope of Dr. Bickett’s knowledge as contemplated by Fed. R.

Evid. 702. Because Dr. Bickett is an orthopedic surgeon, the scope of her specialized knowledge

and experience of her discipline is limited to the orthopedic treatment she provided Mowry. This

does not limit her from discussing how Mowry’s pre-existing conditions could have possibly

affected his recovery from the orthopedic injuries she treated. However, Mowry’s pre-existing

conditions affecting his orthopedic recovery and the motor vehicle accident itself affecting

Mowry’s pre-existing conditions are not the same issue. Dr. Bickett may not offer testimony

regarding the latter. In other words, Dr. Bickett cannot offer speculation as to why Mowry was

treated for his pre-existing conditions after the motor vehicle accident or whether the course of

treatment for Mowry’s pre-existing conditions occurred because of the motor vehicle accident at

issue given she did not treat Mowry for these conditions either before or after the motor vehicle

accident at issue. This distinction maintains the reliability of Dr. Bickett’s expert testimony.

Accordingly, the United States’ Amended Motion in Limine excluding specific testimony from

Dr. Bickett is GRANTED. (Bickett Am. Mot. in Limine, ECF No. 70.) The United States’ original

Motion in Limine on this issue is DENIED as MOOT. (Bickett Mot. in Limine, ECF No. 69.)

III. PLAINTIFFS’ REQUEST TO EXCLUDE DR. LAWRENCE BILFIELD’S TESTIMONY

On March 15, 2021 Plaintiffs filed a motion in limine requesting this Court blanketly exclude

all testimony of Dr. Lawrence Bilfield (“Dr. Bilfield”) in this matter. (Bilfield Mot. in Limine 1,

ECF No. 75.) Plaintiffs request this Court preclude the United States from calling Dr. Bilfield as

an expert witness at trial arguing the United States has videotaped Dr. Bilfield’s direct examination

trial testimony and refuses to allow Plaintiffs to cross-examine Dr. Bilfield’s trial testimony unless

they pay for Dr. Bilfield’s time, a requirement which “runs counter to the federal civil rules and

law requiring parties to bear their own costs of trial.”. (Id.) In support of this argument, Plaintiffs

classify Dr. Bilfield’s first deposition as the one conducted for the purpose of discovery and

classify any additional deposition of Dr. Bilfield as trial deposition, rather than a continuation of

the discovery deposition, for which Plaintiffs should not have to pay to cross-examine Dr. Bilfield.

(Id. at 1-3.) In opposition, the United States asks this Court deny Plaintiffs’ request because this

dispute simply involves the continuation of Dr. Bilfield’s discovery deposition. (Opp’n to Bilfield

Mot. in Limine 1-5, ECF No. 80.)

Both parties have confirmed in their submissions to this Court that Plaintiffs deposed Dr.

Bilfield for two hours on November 30, 2020 and the United States deposed Dr. Bilfield for two

hours on December 21, 2020. (Bilfield Mot. in Limine 1-2, ECF No. 75; Opp’n to Bilfield Mot. in

Limine 4, ECF No. 80.) Despite Plaintiffs’ insistence that the United States’ December 21, 2020

deposition was for the specific purpose of obtaining a trial deposition instead of for the purposes

of discovery, Federal Rule of Civil Procedure 32 allows for the use of any deposition at trial, under

certain circumstances, making it unnecessary to classify either of Dr. Bilfield’s depositions as

either a “discovery deposition” or “trial deposition.”

Plaintiffs are to pay for Dr. Bilfield’s time on November 30, 2020 and the United States is to

pay for Dr. Bilfield’s time on December 21, 2020 in accordance with Federal Rule of Civil

Procedure 26(b)(4)(E). Any additional deposition testimony taken of Dr. Bilfield is merely a

continuation of his previous depositions and each party shall bear the costs of their time deposing

Dr. Bilfield prior to trial. Accordingly, Plaintiffs’ Motion in Limine is DENIED. (Bilfield Mot. in

Limine, ECF No. 75.)

IV. USE OF AN ADVISORY JURY

The parties have submitted position statements regarding whether this Court should empanel

an advisory jury for this matter. (Plaintiffs’ Position Statement, ECF No. 55; United States’

Position Statement, ECF No. 56.) The United States objects to the use of an advisory jury arguing

the Federal Torts Claims Act (“FTCA”) is a limited waiver of sovereign immunity, with one such

limitation being that claims brought under the FTCA “shall be tried by the court without a jury.”

(United States’ Position Statement 1, ECF No. 56.) The United States’ argument is that empaneling

an advisory jury would defeat Congress’s intent that courts, not juries, hear claims brought under

the FTCA, given the fear that juries might look at the United States as a defendant with the deepest

pockets. (Id. at 3.) Plaintiffs, on the other hand, believe an advisory jury should be empaneled to

“assist the Court in determining damages and ensure that David Mowry is fully and fairly

compensated for his injuries.” (Plaintiffs’ Position Statement 1, ECF No. 55.) Plaintiffs argue that

Mowry did not get to choose his defendant and the associated inability to present his case to a jury.

(Id.)

Although the Sixth Circuit Court of Appeals has not provided guidance regarding advisory

juries empaneled for FTCA claims, and this Court is afforded the discretion to “try any issue with

an advisory jury” pursuant to Federal Rule of Civil Procedure 39(c)(1), this Court believes that

utilizing an advisory jury for the issues of causation and damages in this matter would like “create[]

more problems than it solves.” In re Air Crash Disaster at Metropolitan Airport Detroit, 619 F.

Supp. 13, 17 (E.D. Mich. 1984). If the advisory jury’s opinion is the same as this Court’s, it would

not be useful, but if the advisory jury’s opinion is different from this Court’s, it would be difficult

to give it effect. See id.

In this Court’s opinion, the most instructive case on this specific issue for this specific case is

Carter v. United States, Case No. 08-4145, 2009 U.S. Dist. LEXIS 57675 (D. Ks. July 7, 2009).

Carter, like the current matter, involved an FTCA claim for injuries and damages following an

motor vehicle accident with a USPS employee. Id. at *1. While the Carter court agreed that Federal

Rule of Civil Procedure 39(c) “permits a court in its discretion, to empanel an advisory jury in any

action not triable of right by a jury” and also acknowledged that any advisory jury finding is solely

advisory and nonbinding, it ultimately opted not to empanel an advisory jury. Id. at *2-5. Because

the claims in Carter were only against the United States, meaning no jury was already trying non-

federal defendants, and the court would be required to make finding of fact and conclusions of law

de novo even if an advisory jury were empaneled, the court determined that empaneling an

advisory jury would not be helpful. Id. at *3-5.

This Court agrees with the sound reasoning provided in Carter. Because there are no individual

defendants on trial in this matter requiring the empaneling of a jury, and this Court is required to

make de novo findings of fact and conclusions of law outside the opinions of an advisory jury,

empaneling an advisory jury in this matter would be of little assistance to this Court. This Court

will hold trial in this matter without an advisory jury as directed by the FTCA.

V. CONCLUSION

For the foregoing reasons, this Court will not entertain motions for summary judgment in this

matter. Therefore, Plaintiffs’ Motion for Leave to file a partial motion for summary judgment is

DENIED. (Mot. for Leave, ECF No. 65.) Given this decision, Plaintiffs’ currently pending Motion

for Partial Summary Judgement is DENIED as MOOT. (Mot. for Partial Summ. J., ECF No. 64.)

With respect to the currently pending motions in limine, Dr. Bickett’s testimony will be limited

to that of her specialized knowledge and the experience of her discipline as an orthopedic surgeon

and any speculative testimony regarding the motor vehicle accident’s effect on Mowry’s pre-

existing conditions will not be permitted. Accordingly, the United States’ Amended Motion in

Limine excluding specific testimony from Dr. Bickett is GRANTED. (Bickett Am. Mot. in Limine,

ECF No. 70.) The United States’ original Motion in Limine on this issue is DENIED as MOOT.

(Bickett Mot. in Limine, ECF No. 69.) Furthermore, each party shall bear their own costs deposing

Dr. Bilfield prior to trial and the United States is not precluded from calling Dr. Bilfield at trial.

Accordingly, Plaintiffs’ Motion in Limine is DENIED. (Bilfield Mot. in Limine, ECF No. 75.)

Finally, this Court shall not utilize an advisory jury at the trial of this matter.

IT IS SO ORDERED.

DATE: May 10, 2021 /s/ John R. Adams

Judge John R. Adams

UNITED STATES DISTRICT COURT