THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CLIFFORD HEARNE, an individual, CASE NO. C16-1010-JCC 10 Plaintiff, ORDER 11 v. 12 HUB BELLEVUE PROPRETIES, LLC, a Delaware Limited Liability Company, et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiff’s motion for reconsideration (Dkt. No. 16 79). Having considered the parties’ briefing and the relevant record, the Court hereby DENIES 17 the motion for the reasons explained herein. 18 I. BACKGROUND 19 Plaintiff previously moved for partial summary judgment on the issue of damages, asking 20 the Court to hold that he has incurred $259,385.60 in reasonable medical expenses due to the 21 elevator accident that gave rise to this case. (Dkt. No. 46 at 22–24.) To contest those expenses, 22 Defendants offered the reports of Dr. Ramon Kutsy, Dr. Patrick Bays, and William Skilling. (See 23 Dkt. No. 60 at 132–148.) The Court held that while it would not consider Dr. Bay’s and Dr. 24 Kutsy’s reports because Defendants had failed to properly disclose those reports, Mr. Skilling’s 25 report was admissible and created a genuine dispute over the value of Plaintiff’s reasonable 26 1 medical expenses. (Dkt. No. 77 at 12–13.) Accordingly, the Court denied Plaintiff’s motion for 2 summary judgment as to the issue of his reasonable medical expenses. 3 In a footnote, the Court noted Plaintiff’s argument that Mr. Skilling lacks proper 4 credentials and that it was illegal for him to provide a medical opinion about the reasonableness 5 or medical necessity of Plaintiff’s medical treatment. (Id. at 12–13 n.5.) Although the Court 6 found the argument to be inadequately supported, the Court invited Plaintiff to renew his 7 argument with proper support if he so desired. (Id.) Plaintiff took the Court up on its offer by 8 filing what he termed a “motion for reconsideration on [the] issue of reasonable and necessary 9 medical treatment.” (Dkt. No. 79 at 1.) In the motion, Plaintiff argues that there is no genuine 10 dispute as to Plaintiff’s reasonable medical expenses because Skilling (1) “offered no opinion on 11 the medical necessity of [Plaintiff’s treatment]” and (2) lacks the necessary credentials to speak 12 to the necessity of Plaintiff’s treatment. (See id. at 2–6.) 13 Because Plaintiff’s motion raised new arguments, the Court construed Plaintiff’s motion 14 as a renewed motion for summary judgment and gave Defendants an opportunity to respond. 15 (Dkt. No. 83 at 1–2.) In their response, Defendants argue that the Court should deny Plaintiff’s 16 motion because (1) the motion is untimely; (2) Skilling gave a qualified opinion about the 17 necessity of Plaintiff’s medical treatment; and (3) even if Skilling did not give a qualified 18 opinion about the issue, Dr. Christopher Hofstetter, Plaintiff’s treating physician, offered 19 evidence in his deposition that some of his treatment was unrelated to the elevator accident. (See 20 Dkt. No. 85 at 3–8.) 21 II. DISCUSSION 22 A. Nature of Plaintiff’s Motion 23 The parties make several arguments on the assumption that Plaintiff’s motion is properly 24 understood as a motion for reconsideration. For example, Defendants argue that Plaintiff’s 25 motion was untimely because Plaintiff did not file the motion in 21 days, (see Dkt. No. 95 at 1– 26 2) (citing W.D. Wash. Local Civ. R. 7(H)(2)), and Plaintiff argues that Defendants should not be 1 allowed to raise new evidence, (see Dkt. No. 87 at 2–3). These arguments misapprehend 2 Plaintiff’s motion. The motion addresses arguments that the Court previously declined to 3 consider because those arguments were inadequately briefed. (See Dkt. No. 77 at 12–13 n.5.) 4 Thus, the motion is not a motion for reconsideration; it is a renewed motion for summary 5 judgment. Accordingly, the Court deems the motion timely and will, in fairness, consider 6 Defendants’ new evidence and arguments.1 7 B. Skilling’s Expert Opinion 8 In the “brief record review” section of Skilling’s expert report, Skilling quotes 9 extensively from the reports of Dr. Kutsy and Dr. Bays. (See Dkt. No. 60 at 140–44.) Those 10 quotes express Dr. Kutsy’s and Dr. Bays’s respective opinions that Plaintiff received 11 unnecessary medical treatment. (See, e.g., id. at 144) (“[Plaintiff] would have fully resolved from 12 the effects of the subject incident . . . within approximately 12 months . . . . In my opinion, 13 [Plaintiff] does not require any further treatment . . . .”). But Skilling does not express the same 14 opinion in the “summary of findings and conclusions” section of his report. Instead, Skilling 15 focuses on whether and to what extent Plaintiff is employable. (See id. at 144–48.) Skilling’s 16 focus on employability is evident from the summary of his seven “rehabilitation opinion[s],” 17 which are as follows: 18 1. [Plaintiff] is currently employable as a database administrator; 2. If Dr. Kutsy is assumed to be correct, [Plaintiff] has been fully employable 19 as a Database Administrator continuously since approximately June 1, 2016; 20 3. If Dr. Bays is assumed to be correct, [Plaintiff] has been fully employable as a Database Administrator continuously since approximately March 1, 21 2017; 22 4. If Dr. Robinson, Dr. Daly, and Dr. Wendt are assumed to be correct, [Plaintiff] has been fully employable as a Database administrator 23 continuously since July 18, 2017; 5. If Dr. Hofstetter is assumed to be correct, [Plaintiff] has been fully 24 employable as a Database Administrator continuously since February 5, 25 1 For the same reason, the Court GRANTS Plaintiff’s motion for an extension of time to file a 26 motion for reconsideration (Dkt. No. 80). 2018. 1 6. Based upon his transferable skills, knowledge, and other qualifications, 2 [Plaintiff] has been employable in less stressful alternative occupations continuously since the dates listed above; 3 7. It is evidence from a review of the records that [Plaintiff] has reached maximum medical improvement and is no longer receiving treatment for 4 conditions associated with the subject incident. Therefore, a Life Care Plan associated with the subject incident is not indicated. 5 (Id. at 147–48.) Of these opinions, only the seventh is arguably related to the value of the 6 medical expenses that Plaintiff incurred due to the elevator accident. But Skilling’s seventh 7 opinion is unclear—Skilling does not say when Plaintiff “reached maximum medical 8 improvement”—and Skilling does not state the factual basis for the opinion. (See id.) Thus, 9 Skilling’s report does not create a genuine dispute over the value of Plaintiff’s reasonable 10 medical expenses.2 See Fed. R. Civ. P. 56(a); Walton v. U.S. Marshals Serv., 476 F.3d 723, 730 11 (9th Cir. 2007) (quoting Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985) (“Expert 12 opinion is admissible and may defeat summary judgment if . . . the factual basis for the opinion 13 is stated in the affidavit . . . .”) 14 C. The Deposition Testimony of Plaintiff’s Treating Physician 15 At Dr. Hofstetter’s deposition, Defendants asked Dr. Hofstetter whether he believed that 16 Plaintiff’s lumbar surgery was unrelated to the elevator accident. (See generally Dkt. No. 86.) In 17 response, Dr. Hofstetter repeatedly stated that he could not say on a more probable than not basis 18 that Plaintiff’s lumbar condition was related to the elevator accident. (See, e.g., id. at 15) 19 (Question: “[C]an you say on a more probable than not basis the lumbar condition . . . is related 20 to the elevator accident?” Answer: “No, I can’t. I cannot.”). In fact, when Dr.
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 CLIFFORD HEARNE, an individual, CASE NO. C16-1010-JCC 10 Plaintiff, ORDER 11 v. 12 HUB BELLEVUE PROPRETIES, LLC, a Delaware Limited Liability Company, et al., 13 Defendants. 14 15 This matter comes before the Court on Plaintiff’s motion for reconsideration (Dkt. No. 16 79). Having considered the parties’ briefing and the relevant record, the Court hereby DENIES 17 the motion for the reasons explained herein. 18 I. BACKGROUND 19 Plaintiff previously moved for partial summary judgment on the issue of damages, asking 20 the Court to hold that he has incurred $259,385.60 in reasonable medical expenses due to the 21 elevator accident that gave rise to this case. (Dkt. No. 46 at 22–24.) To contest those expenses, 22 Defendants offered the reports of Dr. Ramon Kutsy, Dr. Patrick Bays, and William Skilling. (See 23 Dkt. No. 60 at 132–148.) The Court held that while it would not consider Dr. Bay’s and Dr. 24 Kutsy’s reports because Defendants had failed to properly disclose those reports, Mr. Skilling’s 25 report was admissible and created a genuine dispute over the value of Plaintiff’s reasonable 26 1 medical expenses. (Dkt. No. 77 at 12–13.) Accordingly, the Court denied Plaintiff’s motion for 2 summary judgment as to the issue of his reasonable medical expenses. 3 In a footnote, the Court noted Plaintiff’s argument that Mr. Skilling lacks proper 4 credentials and that it was illegal for him to provide a medical opinion about the reasonableness 5 or medical necessity of Plaintiff’s medical treatment. (Id. at 12–13 n.5.) Although the Court 6 found the argument to be inadequately supported, the Court invited Plaintiff to renew his 7 argument with proper support if he so desired. (Id.) Plaintiff took the Court up on its offer by 8 filing what he termed a “motion for reconsideration on [the] issue of reasonable and necessary 9 medical treatment.” (Dkt. No. 79 at 1.) In the motion, Plaintiff argues that there is no genuine 10 dispute as to Plaintiff’s reasonable medical expenses because Skilling (1) “offered no opinion on 11 the medical necessity of [Plaintiff’s treatment]” and (2) lacks the necessary credentials to speak 12 to the necessity of Plaintiff’s treatment. (See id. at 2–6.) 13 Because Plaintiff’s motion raised new arguments, the Court construed Plaintiff’s motion 14 as a renewed motion for summary judgment and gave Defendants an opportunity to respond. 15 (Dkt. No. 83 at 1–2.) In their response, Defendants argue that the Court should deny Plaintiff’s 16 motion because (1) the motion is untimely; (2) Skilling gave a qualified opinion about the 17 necessity of Plaintiff’s medical treatment; and (3) even if Skilling did not give a qualified 18 opinion about the issue, Dr. Christopher Hofstetter, Plaintiff’s treating physician, offered 19 evidence in his deposition that some of his treatment was unrelated to the elevator accident. (See 20 Dkt. No. 85 at 3–8.) 21 II. DISCUSSION 22 A. Nature of Plaintiff’s Motion 23 The parties make several arguments on the assumption that Plaintiff’s motion is properly 24 understood as a motion for reconsideration. For example, Defendants argue that Plaintiff’s 25 motion was untimely because Plaintiff did not file the motion in 21 days, (see Dkt. No. 95 at 1– 26 2) (citing W.D. Wash. Local Civ. R. 7(H)(2)), and Plaintiff argues that Defendants should not be 1 allowed to raise new evidence, (see Dkt. No. 87 at 2–3). These arguments misapprehend 2 Plaintiff’s motion. The motion addresses arguments that the Court previously declined to 3 consider because those arguments were inadequately briefed. (See Dkt. No. 77 at 12–13 n.5.) 4 Thus, the motion is not a motion for reconsideration; it is a renewed motion for summary 5 judgment. Accordingly, the Court deems the motion timely and will, in fairness, consider 6 Defendants’ new evidence and arguments.1 7 B. Skilling’s Expert Opinion 8 In the “brief record review” section of Skilling’s expert report, Skilling quotes 9 extensively from the reports of Dr. Kutsy and Dr. Bays. (See Dkt. No. 60 at 140–44.) Those 10 quotes express Dr. Kutsy’s and Dr. Bays’s respective opinions that Plaintiff received 11 unnecessary medical treatment. (See, e.g., id. at 144) (“[Plaintiff] would have fully resolved from 12 the effects of the subject incident . . . within approximately 12 months . . . . In my opinion, 13 [Plaintiff] does not require any further treatment . . . .”). But Skilling does not express the same 14 opinion in the “summary of findings and conclusions” section of his report. Instead, Skilling 15 focuses on whether and to what extent Plaintiff is employable. (See id. at 144–48.) Skilling’s 16 focus on employability is evident from the summary of his seven “rehabilitation opinion[s],” 17 which are as follows: 18 1. [Plaintiff] is currently employable as a database administrator; 2. If Dr. Kutsy is assumed to be correct, [Plaintiff] has been fully employable 19 as a Database Administrator continuously since approximately June 1, 2016; 20 3. If Dr. Bays is assumed to be correct, [Plaintiff] has been fully employable as a Database Administrator continuously since approximately March 1, 21 2017; 22 4. If Dr. Robinson, Dr. Daly, and Dr. Wendt are assumed to be correct, [Plaintiff] has been fully employable as a Database administrator 23 continuously since July 18, 2017; 5. If Dr. Hofstetter is assumed to be correct, [Plaintiff] has been fully 24 employable as a Database Administrator continuously since February 5, 25 1 For the same reason, the Court GRANTS Plaintiff’s motion for an extension of time to file a 26 motion for reconsideration (Dkt. No. 80). 2018. 1 6. Based upon his transferable skills, knowledge, and other qualifications, 2 [Plaintiff] has been employable in less stressful alternative occupations continuously since the dates listed above; 3 7. It is evidence from a review of the records that [Plaintiff] has reached maximum medical improvement and is no longer receiving treatment for 4 conditions associated with the subject incident. Therefore, a Life Care Plan associated with the subject incident is not indicated. 5 (Id. at 147–48.) Of these opinions, only the seventh is arguably related to the value of the 6 medical expenses that Plaintiff incurred due to the elevator accident. But Skilling’s seventh 7 opinion is unclear—Skilling does not say when Plaintiff “reached maximum medical 8 improvement”—and Skilling does not state the factual basis for the opinion. (See id.) Thus, 9 Skilling’s report does not create a genuine dispute over the value of Plaintiff’s reasonable 10 medical expenses.2 See Fed. R. Civ. P. 56(a); Walton v. U.S. Marshals Serv., 476 F.3d 723, 730 11 (9th Cir. 2007) (quoting Bulthuis v. Rexall Corp., 789 F.2d 1315, 1318 (9th Cir. 1985) (“Expert 12 opinion is admissible and may defeat summary judgment if . . . the factual basis for the opinion 13 is stated in the affidavit . . . .”) 14 C. The Deposition Testimony of Plaintiff’s Treating Physician 15 At Dr. Hofstetter’s deposition, Defendants asked Dr. Hofstetter whether he believed that 16 Plaintiff’s lumbar surgery was unrelated to the elevator accident. (See generally Dkt. No. 86.) In 17 response, Dr. Hofstetter repeatedly stated that he could not say on a more probable than not basis 18 that Plaintiff’s lumbar condition was related to the elevator accident. (See, e.g., id. at 15) 19 (Question: “[C]an you say on a more probable than not basis the lumbar condition . . . is related 20 to the elevator accident?” Answer: “No, I can’t. I cannot.”). In fact, when Dr. Hofstetter was 21 asked by Plaintiff’s own counsel whether “a negative history of lower back complaint before the 22 elevator accident [could] be a factor to consider as to whether his lower back pain and surgery 23 was caused by the elevator accident,” Dr. Hofstetter responded, “I mean, yea, again . . . now sort 24
25 2 Because the Court concludes that Skilling did not properly articulate an opinion about the reasonableness of Plaintiff’s medical expenses, the Court need not reach the parties’ arguments 26 about whether Skilling was qualified to give such an opinion. 1 of looking at it as more probably than nonprobable, I would say it’s -- It doesn’t fit together. . . . I 2 have a hard time to link those two together.” (Id. at 19.) These statements, which are plain and 3 unambiguous, create a genuine dispute about the value of the medical expenses that Plaintiff 4 incurred due to the elevator accident. Accordingly, the Court DENIES Plaintiff’s request for 5 summary judgment as to that issue.3 6 III. CONCLUSION 7 For the foregoing reasons, the Court DENIES Plaintiff’s motion for reconsideration (Dkt. 8 No. 79). The Court further GRANTS Plaintiff’s motion for an extension of time to file a motion 9 for reconsideration (Dkt. No. 80). 10 DATED this 27th day of August 2020. A 11 12 13 John C. Coughenour 14 UNITED STATES DISTRICT JUDGE
15 16 17 18 19 20 21 22 23
24 3 After his deposition, Dr. Hofstetter signed a declaration that contradicts the statements he made during his deposition. (See Dkt. No. 88-1 at 11–14.) It is up to the jury to resolve that 25 contradiction at trial. Cf. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012) (observing the jury usually resolves inconsistencies between deposition testimony and declarations submitted to 26 oppose summary judgment).