United States District Court, S.D. Texas, Houston Division
Joseph K. Bennington, Plaintiff,
United States of America, Defendant.
MEMORANDUM OPINION AND ORDER
H. MILLER SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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).
court will first examine the United States's motion for
partial summary judgment before turning to Bennington's
request to modify the scheduling order.
Motion for Partial Summary Judgment
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.
Texas law,  “[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) ...