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Akpan v. United States

United States District Court, S.D. Texas, Houston Division

January 12, 2018

BRENDA AKPAN, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM AND ORDER

          NANCY F. ATLAS, SENIOR UNITED STATES DISTRICT JUDGE

         This Federal Tort Claims Act (“FTCA”) case is before the Court on the “Motion for Relief From Order” (“Motion”) [Doc. # 2');">22');">2] filed by Plaintiff Brenda Akpan, to which Defendant United States of America filed an Opposition [Doc. # 2');">25]. Plaintiff seeks reconsideration of the Court's Memorandum and Order [Doc. # 17] entered December 2');">21, 2');">2017. The Court denies the Motion.[1]

         I. BACKGROUND

         On April 15, 2');">2014, Plaintiff was driving her vehicle when it was struck by a U.S. Postal Service delivery vehicle. Plaintiff was examined at the scene by first responders from the Cy-Fair Volunteer Fire Department (“Cy-Fair F.D.”). Plaintiff complained of head and right knee pain, and asked to be transported to Houston Methodist West Hospital (“Hospital”). Plaintiff was examined at the Hospital and released the same day.

         Plaintiff filed this FTCA lawsuit on October 5, 2');">2016. She claimed damages based on injuries to her left knee, neck and lower back. Plaintiff failed to designate experts and provide expert reports by the Court-imposed deadline. Following the close of discovery, Defendant filed a Motion for Summary Judgment and a Motion for Summary Judgment on Damages. Plaintiff then filed a Motion for Leave to Designate Expert Witnesses late, which was denied in the December 2');">21, 2');">2017 Memorandum and Order. Plaintiff does not seek reconsideration of this ruling.

         The Court noted in its prior ruling that Plaintiff had an extensive history of injuries that could be pre-existing or alternative causes for the damages she claimed in this case. Therefore, the Court held that Plaintiff needed expert testimony to establish the causal connection between the motor vehicle accident in this case and the injury to her left knee, neck and back. The only exception, the Court held, was Plaintiff's ability to provide non-expert testimony regarding the causal connection between the accident and the treatment by the Cy-Fair F.D. at the scene and at the Hospital on the date of the accident, something within the common experience of a lay witness. Plaintiff seeks reconsideration of this ruling, arguing that Plaintiff should be allowed to present and rely on her own testimony regarding the causal connection between the motor vehicle accident on April 15, 2');">2014, and her alleged left knee, neck and back injuries.

         The Court also noted that Plaintiff failed to present evidence that any charges for the medical treatment she received on the date of the accident were reasonable and necessary. Therefore, the Court limited Plaintiff to her own testimony regarding the pain and discomfort she experienced that day in connection with the accident. Plaintiff seeks reconsideration of the Court's ruling, arguing that she should be permitted to rely on affidavits obtained pursuant to Section 18.001 of the Texas Civil Practices and Remedies Code.

         II. STANDARD FOR RECONSIDERATION

         Rule 59(e)[2');">2" name="FN2');">2" id= "FN2');">2">2');">2] permits a litigant to file a motion to alter or amend a judgment. Fed.R.Civ.p. 59(e). Reconsideration of a judgment is an “extraordinary remedy that should be used sparingly.” Waites v. Lee County, Miss., 498 F. App'x 401, 404 (5th Cir. Nov. 2');">26, 2');">2012');">2) (quoting Templet v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2');">2004)). A motion for reconsideration “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 (5th Cir. 2');">2004); Knight v. Kellogg Brown & Root Inc., 2');">2009 WL 1471788, at *6 (5th Cir. 2');">2009) (quoting Templet, 367 F.3d at 479). Instead, Rule 59(e) serves the narrow purpose of allowing a party to bring errors or newly discovered evidence to the Court's attention. See In re Rodriguez, 695 F.3d 360, 371 (5th Cir. 2');">2012');">2) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2');">2002');">2)).

         A litigant seeking relief under Rule 59(e) “must clearly establish either a manifest error of law or fact or must present newly discovered evidence.” Balakrishnan v. Bd. of Supervisors of La. State Univ. & Agr. & Mech. Coll., 452');">2 F. App'x 495, 499 (5th Cir. 2');">2011) (citing Ross v. Marshall, 2');">26 F.3d 745');">42');">26 F.3d 745, 763 (5th Cir. 2');">2005) (quotation marks and citation omitted)). A Rule 59(e) motion “cannot be used to argue a case under a new legal theory.” Id. (citing Ross, 42');">26 F.3d at 763). Moreover, “an unexcused failure to present evidence available at the time of summary judgment provides a valid basis for denying a subsequent motion for reconsideration.” Templet, 367 F.3d at 479 (citing Russ v. Int'l Paper Co., 2');">2d 589');">943 F.2');">2d 589, 593 (5th Cir. 1991)); see also Tate v. Starks, 444 F. App'x 72');">20, 72');">29 (5th Cir. June 2');">21, 2');">2011).

         III. DISCUSSION

         A. Causation

         As noted in the Court's prior ruling, a viable negligence claim under Texas law requires proof of “a duty, a breach of that duty, and damages proximately caused by the breach.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2');">2006). A plaintiff generally may prove causation either through lay testimony or through expert testimony. See Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 884 (5th Cir. 2');">2004). As noted in the Court's prior ruling, however, a plaintiff may rely on nonexpert testimony only where “general experience and common sense” would allow a layman to determine, with reasonable probability, the causal relationship between the event and the medical condition and treatment. Id. (citing Morgan v. Compugraphic Corp., 675 S.W.2');">2d 72');">29, 733 (Tex. 1984)). Determining whether the accident at issue, rather than some other event or a pre-existing condition, caused the need for specific medical treatment is beyond “common experience” and requires expert testimony by a qualified expert. See Leitch v. Hornsby, 2');">2d 114');">935 S.W.2');">2d 114, 119 (Tex. 1994). Plaintiff has not demonstrated that this ruling was a manifest error of law or fact. As a result, for the reasons stated in the December 2');">21, 2');">2017 Memorandum and Order, the Court denies the request for reconsideration of the ruling on causation.

         B. ...


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