Dikes v. United States

Decision Date13 December 2018
Docket Number3:17-CV-00573-BR
Citation353 F.Supp.3d 1018
Parties Rebecca DIKES, Personal Representative FOR the ESTATE OF Shawn C. DIKES, Plaintiff, v. UNITES STATES of America, Defendant.
CourtU.S. District Court — District of Oregon

PATRICK D. ANGEL, Angel Law P.C., 3 Centerpointe Dr., Suite 190, Portland, OR 97223, (503) 953-8224, Attorney for Plaintiff

BILLY J. WILLIAMS, United States Attorney, SEAN E. MARTIN, Assistant United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204-2902, (503) 727-1000, Attorneys for Defendant


BROWN, Senior Judge.

This 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 Defendant's Motion.


Plaintiff 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.

I. Summary Judgment

Summary 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 omitted).

A 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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." Peering 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. 2009) (citation omitted).

The 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. Id.

II. Oregon's Noneconomic Damages Cap

Pursuant to Oregon law, an award of noneconomic damages is limited as follows:

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).1


Damages 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, 112 S.Ct. 711, 116 L.Ed.2d 731 (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, 906 P.2d 789 (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, 376 P.3d 998 (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.

I. Greist v. Phillips (1995)

From 1967 until 1987 when the Oregon Legislature enacted the statutory-damages cap at issue in Defendant's Motion, there was not a cap on noneconomic damages under Oregon law.

In 1995 the Oregon Supreme Court in Greist v. Phillips addressed whether the statutory-damages cap applies to a claim for wrongful death and whether that cap violates provisions of the Oregon state and federal constitutions.

In Greist the plaintiff brought a wrongful-death action pursuant to Oregon Revised Statutes § 30.020 against the defendants for their alleged negligence that resulted in a motor-vehicle accident and the death of the plaintiff's 10-month-old child. In addition to economic damages, the jury awarded $1,500,000 to the plaintiff for noneconomic damages. Pursuant to the statutory-damages cap, the trial court reduced the noneconomic damages to $500,000. On the plaintiff's appeal the Oregon Court of Appeals reversed the trial court's decision. 128 Or. App. 390, 875 P.2d 1199 (1994). The Oregon Supreme Court, however, affirmed the trial court's decision and held a wrongful-death claim is a statutory creation that did not exist at common law, that the statutory cap on noneconomic damages does not violate either state or federal constitutional provisions, and that the statutory-damages cap does not violate the remedies provision (Article I, section 10) of the Oregon Constitution "when the legislature alters (or even abolishes) a cause of action, so long as the party injured is not left entirely without a remedy." 322 Or. at 290, 300, 906 P.2d 789(citing Hale v. Port of Portland , 308 Or. 508, 523, 783 P.2d 506 (1989) ). The court also noted

[t]he remedy for wrongful death is substantial, not only because 100 percent of economic damages plus up to $500,000 in noneconomic damages is a substantial amount, but also because the statutory wrongful death action in Oregon has had a low limit on recovery for 113 years of its 133-year history.

322 Or. at 291, 906 P.2d 789. Moreover, the court concluded the statutory-damages cap does not violate the privileges and immunities provision (Article I, section 20) of the Oregon Constitution because "[n]othing in the wording of [the constitutional provision] restricts the legislature's authority to set a substantive limitation on a purely statutory remedy." 322 Or. at 296, 906 P.2d 789.2

As to the alleged violation of federal due-process rights, the court stated:

The Oregon legislature did not act in a "demonstrably arbitrary or irrational" way when it enacted ORS 18.560(1).... The legislative history of that provision shows that the purpose of the limitation on noneconomic damages ... was to reduce the costs of insurance premiums and litigation.

322 Or. at 298-99, 906 P.2d 789. Finally, the court concluded the statutory-damages cap does not violate federal equal-protection rights on the grounds that the statute "does not categorize the plaintiff on the basis of an inherently suspect characteristic" and

does not jeopardize the exercise of a recognized fundamental right in this case, because the right to collect damages for wrongful death is a statutory right only, which has incorporated a dollar limit on recovery for most of its existence ... [and] there existed a rational basis for the legislature to impose the statutory limit.

322 Or. at 300, 906 P.2d 789.

Following Greist , Oregon state courts and courts in this district have held the statutory-damages cap on noneconomic damages applies to wrongful-death claims. See, e.g., Hughes v. PeaceHealth , 344 Or. 142, 178 P.3d 225 (2008) ; Sonsteng v. Dominican Sisters of Ontario, Inc. , No. 2:06-cv-00476-SU, 2007 WL 2984002 (D. Or. Oct. 9, 2007) ; Glenn v. Washington County , No. 3:08-cv-00959-MO, 2010 WL 11579692 (D. Or. Apr. 13, 2010) ; Estate of Glenn Severns v. Alcoa , No. 3:10-cv-00834-HA, 2010 WL 3649948 (D. Or. Sept. 14, 2010).

II. Horton v. Oregon Health and Science University (2016)

In 2016 in Horton v. Oregon Health and Science University the Oregon Supreme Court addressed the issue as to whether the statute limiting a state employee's tort liability violates provisions of the Oregon Constitution.

In Horton the plaintiff, on behalf of her minor child, brought a personal-injury action against a state university and the surgeon it employed and alleged the defendants were negligent when performing cancer surgery...

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