United States District Court, D. Oregon
REBECCA DIKES, Personal Representative for the Estate of Shawn C. Dikes, Plaintiff,
UNITES STATES OF AMERICA, Defendant.
PATRICK D. ANGEL Angel Law P.C. Attorney for Plaintiff
J. WILLIAMS United States Attorney SEAN E. MARTIN Assistant
United States Attorney Attorneys for Defendant
OPINION AND ORDER
J. BROWN UNITED STATES SENIOR DISTRICT JUDGE
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
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.
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
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.
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.
Oregon's Noneconomic Damages Cap
to Oregon law, an award of noneconomic damages is limited as
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). 
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.
Grelst v. ...