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Hullett v. United States

United States District Court, N.D. Alabama, Southern Division

March 31, 2015

SAMMIE L. HULLETT, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION

KARON OWEN BOWDRE, Chief District Judge.

This matter comes before the court on plaintiff Sammie L. Hullett's "Motion to Reconsider." (Doc. 92). Hullett asks the court to reconsider its ruling in favor of the United States of America after a January 20, 2015 bench trial. (Doc. 88).

Hullett's brief meanders from subject to subject without clear headings or section breaks. Essentially, Hullett argues that the court should not have allowed the government's expert, Dr. Carlton Young, to testify at trial and that without Young's testimony the government failed to rebut Hullett's argument that the Birmingham Veterans Administration Medical Center left a catheter fragment in Hullett after surgery. Alternatively, Hullett argues that if Dr. Young's testimony is allowed, his testimony and the other evidence presented by Hullett prove a case of negligent mis-diagnosis by Hullett. Hullett's argues that "[i]t doesn't seem that this expert can have it both ways, the fragment, catheter is not in the Plaintiff, but it was lost in December, 2007; which is it lost or nonexistent or incorrect data reporting." (Doc. 92, 17).

The court is not persuaded by Hullett's arguments. Thus, the court DENIES Hullett's motion to reconsider.

I. Procedural Posture

Hullett filed his complaint on August 28, 2012. (Doc. 1). Hullett's complaint is a mish-mash of unnumbered paragraphs and disjointed headings. Hullett appears to make the following claims in his complaint:

1. "Count One Negligence 1, " which appears to be a tort claim for breach of the standard of care by (1) failing to inspect a catheter before removal; (2) failing to inspect a wound; (3) failing to account for all hardware used in catheterization; (4) leaving a foreign body in Hullett; and (5) failing to diagnose a dangerous condition;
2. "Negligence Two, " which appears to be a claim for breach of the standard of care by failing to properly fix Hullett's catheter line on December 25, 2007;
3. "Count Two, " which appears to be a negligent infliction of emotional distress claim; and
4. "Count Three, " which appears to be a medical malpractice claim for violation of the standard of care, mis-diagnosis, and failure to warn resulting from the VA's failure to measure Hullett's catheter line.

(Doc. 1). The government answered on November 5, 2012. (Doc. 9).

Hullett objected to government expert Dr. Young on January 19, 2014 because, according to Hullett, Dr. Young is not qualified to interpret radiographs and missed images of the retained catheter fragment in Hullett. (Doc. 51). The court held a hearing on the motion on April 16, 2014, and largely denied Hullett's Daubert motion. (Doc. 70).

The court held a pretrial conference on May 28, 2014. ( See unnumbered docket entry from May 28, 2014). The court entered a Pretrial Order on June 18, 2014 based on the parties' proposed pretrial order. (Doc. 75). The Contested Issues of Fact in the Pretrial Order only discuss whether the VA left a catheter fragment in Hullett. (Doc. 75, 5-6). Mis-diagnosis is not discussed. (Doc. 75, 5-6). The Agreed Applicable Propositions of Law in the Pretrial Order only discuss how Alabama law treats retained foreign objects. (Doc. 75, 6-10). Hullett's position statement only discusses his retained foreign object theory of liability. (Doc. 75, 11-12). The government's position statement only discusses a retained foreign object theory of liability. (Doc. 75, 12-15).

The court held a bench trial for all of Hullett's claims on January 20, 2015. All of Hullett and the government's evidence focused on whether the VA left a catheter fragment in Hullett. Hullett did not present evidence related to mis-diagnosis by the VA. The court ruled in favor of the ...


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