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Bennington v. United States

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

December 3, 2019

Joseph K. Bennington, Plaintiff,
United States of America, Defendant.



         Pending before the court is defendant United States of America's (“United States”) motion for partial summary judgment against plaintiff Joseph K. Bennington (“Bennington”). Dkt. 21. Having considered the motion, response, reply, and relevant law, the court finds that the United States's motion for partial summary judgment should be GRANTED.

         I. Background

         Bennington alleges that on December 6, 2016, while the two were stopped at an intersection in Humble, Texas, Immigrations and Customs Enforcement (“ICE”) Agent Peter Loera “backed his vehicle into . . . Bennington's vehicle . . . causing significant damage to [his] vehicle and injuries to [him].” Dkt. 1 at 4. Agent Loera filed a Driver's Crash Report with the Texas Department of Transportation on the day of that accident. Dkt. 21-1 at 2. In the report, Agent Loera report “there were no injuries as a result of this accident.” Id.

         Bennington first presented his claims administratively to the Department of Homeland Security (“DHS”) and ICE on May 10, 2017. Dkt. 1 at 3. Bennington specifically claimed property damages to “numerous areas of the front of [his] truck and steering wheel, ” and personal injury damages because he suffered from “[w]hiplash and [he] had to have injection on C7-C8 after the accident.” Dkt. 21-1 at 4. Bennington filed this suit pursuant to the Federal Torts Claims Act (“FTCA”) on November 26, 2018. Dkt. 1. DHS denied Bennington's claim on August 1, 2019, “[a]lthough administrative review of the claim [had] not been completed [because] filing of suit terminates administrative adjudication of a claim.” Dkt. 21-3 at 7.

         The court issued a scheduling order in this case on April 12, 2019. Dkt. 14 Bennington's expert witness designation deadline was set for June 3, 2019. Id. Discovery closed on July 31, 2019. Id. Dispositive motions and all other pretrial motions were due on August 14, 2019. Id.

         On August 13, 2019, the United States filed its motion for partial summary judgment. Dkt. 21 at 1. This motion sought summary judgment on Bennington's personal injury claims only. Id. Bennington filed his response on September 3, 2019. Dkt 22 at 1. In addition to addressing the United States's arguments, Bennington also asked this court to give leave to “supplement his disclosures” and, in effect, allow him to designate additional experts as an alternative to granting the United States's motion. Id. at 21.

         II. Legal Standard

         A court shall grant summary judgment when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 436 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2540 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

         III. Analysis

         The court will first examine the United States's motion for partial summary judgment before turning to Bennington's request to modify the scheduling order.

         A. Motion for Partial Summary Judgment

         The United States argues that Bennington's failure to “come forth with qualified expert opinion evidence to prove that the accident caused his claimed injuries” entitles it to judgment as a matter of law. Dkt. 21 at 8.

         Under Texas law, [1] “[t]he general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 665-66 (Tex. 2007) (citing Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713 (Tex. 1966)). However, Texas law acknowledges “an exception to the general rule whereby causation findings linking events and physical conditions could, under certain circumstances, be sufficiently supported by non-expert evidence.” Guevara, 247 S.W.3d at 666 (citing Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 706 (Tex. 1970)). Non-expert testimony “is adequate to prove causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition.” Guevara, 247 S.W.3d at 666 (quoting Lenger, 455 S.W.2d at 733). Such lay testimony “could suffice to support a causation finding between the automobile accident and basic physical conditions which (1) ...

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