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Dikes v. United States

United States District Court, D. Oregon

December 13, 2018

REBECCA DIKES, Personal Representative for the Estate of Shawn C. Dikes, Plaintiff,

          PATRICK D. ANGEL Angel Law P.C. Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney SEAN E. MARTIN Assistant United States Attorney Attorneys for Defendant



         This matter comes before the Court on Defendant United States of America's Motion (#27) for Partial Summary Judgment. For the reasons that follow, the Court GRANTS Defendant's Motion.


         Plaintiff Rebecca Dikes as Personal Representative of the Estate of Shawn C. Dikes, her husband, brings this wrongful-death action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b)(1). Plaintiff alleges the Portland Veterans Affairs Medical Center was negligent in providing medical services to her husband. Plaintiff seeks damages of $8, 000, 000 for (1) economic damages for loss of earnings, loss of earning capacity, and out-of-pocket expenses and (2) noneconomic damages for pain, suffering, mental anguish, death, loss of enjoyment, and loss of companionship.


         I. Summary Judgment

         Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R. Civ. P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine dispute as to a material fact for trial. Id. "This burden is not a light one .... The non-moving party must do more than show there is some 'metaphysical doubt' as to the material facts at issue." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted).

         A dispute as to a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues." Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A "mere disagreement or bald assertion" that a genuine dispute as to a material fact exists "will not preclude the grant of summary judgment." Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). When the nonmoving party's claims are factually-implausible, that party must "come forward with more persuasive evidence than otherwise would be necessary." LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).

         The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.

         II. Oregon's Noneconomic Damages Cap

         Pursuant to Oregon law, an award of noneconomic damages is limited as follows:

Except for claims subject to ORS 30.260 to 30.300 [the Oregon Tort Claims Act] and ORS chapter 656 [the Oregon Workers' Compensation Act], in any civil action seeking damages arising out of bodily injury, including emotional injury or distress, death or property damage of any one person including claims for loss of care, comfort, companionship and society and loss of consortium, the amount awarded for noneconomic damages shall not exceed $500, 000.

Or. Rev. Stats. § 31.710(1). [1]


         Damages awarded pursuant to the FTCA are determined under the law of the state in which the allegedly tortious act or omission occurred. Molzof v. United States, 502 U.S. 301, 305 (1992). See also Liebsack v. U.S., 731 F.3d 850, 855 (9th Cir. 2013). Thus, Defendant contends Plaintiff's recovery for noneconomic damages in this case is limited to the $500, 000 statutory noneconomic damages cap pursuant to Oregon Revised Statutes § 31.710(1). Defendant relies on Greist v. Phillips, 322 Or. 281 (1995), to support its position Plaintiff, in response, contends her noneconomic damages are not limited to $500, 000 on the ground that application of Oregon's damages cap was "significantly changed" by the Oregon Supreme Court's holding in Horton v. Oregon Health and Science University, 359 Or. 168 (2016). Plaintiff asserts (1) Horton removed any distinction between application of the statutory damages cap to wrongful-death claims and personal-injury claims, (2) the application of the statutory-damages cap is "highly case-specific" and cannot be applied as a matter of law, and (3) a determination as to whether the statutory cap is applicable cannot be made until evidence of Plaintiff s noneconomic damages is presented at trial.

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