Holcombe v. United States

• Decision Date: 07 February 2022
• Docket Number: SA-18-CV-00555-XR Consolidated Cases
• Citation: 584 F.Supp.3d 225
• Parties: Joe HOLCOMBE, et al., Plaintiffs v. UNITED STATES of America, Defendant
• Court: U.S. District Court — Western District of Texas

584 F.Supp.3d 225

Joe HOLCOMBE, et al., Plaintiffs
v.
UNITED STATES of America, Defendant

SA-18-CV-00555-XR Consolidated Cases

United States District Court, W.D. Texas, San Antonio Division.

Signed February 7, 2022

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Mark W. Collmer, Collmer Law Firm, Robert E. Ammons, April A. Strahan, Pro Hac Vice, The Ammons Law Firm, L.L.P., Houston, TX, Daniel D. Barks, Speiser Krause, P.C., Atlanta, GA, for Plaintiffs.

Clayton R. Diedrichs, James Edward Dingivan, John F. Paniszczyn, U.S. Attorney's Office, Jacquelyn Michelle Christilles, United States Attorney's Office - Western District Civil Section, James F. Gilligan, Kristy Karen Callahan, Assistant United States Attorney, San Antonio, TX, Daniel P. Chung, Jocelyn Krieger, James G. Touhey, Jr., Paul D. Stern, Stephen E. Handler, U.S. Department of Justice, Torts Branch, Civil Division, Washington, DC, Kristin K. Bloodworth, Stewart, Melvin, & Frost, Gainesville, GA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

These consolidated cases stem from the mass shooting at the First Baptist Church in Sutherland Springs, Texas on November 5, 2017. The shooter, Devin Patrick Kelley ("Kelley"), entered the church and opened fire, killing twenty-six people and wounding twenty-two more. After fleeing the scene, Kelley later died from a self-inflicted gunshot wound. Plaintiffs are survivors of the shooting and relatives of those injured or killed. They seek recovery against Defendant United States ("the Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 – 2680.

From April 7 to April 20, 2021, the Court held a bench trial to resolve disputed issues of fact as to the Government's liability for the shooting. After the trial, the Court concluded that the Government failed to exercise reasonable care in its undertaking to submit Kelley's criminal history to the FBI and that the Government was 60% responsible for the Plaintiffs’ injuries. Holcombe v. United States , No. SA-18-CV-555-XR, 2021 WL 2821125, at *51 (W.D. Tex. July 6, 2021). From October 4 to November 29, 2021, the Court held a bench trial to resolve disputed issues of fact as to Plaintiffs’ damages. Having considered the evidence and applicable law, the Court now issues its findings of fact and conclusions of law as to Plaintiffs’ damages.

CONCLUSIONS OF LAW

Texas law controls the award of damages in this case. See Lebron v. United States , 279 F.3d 321, 326 n.4 (5th Cir. 2002). In personal injury and wrongful

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death cases, there are two broad categories of compensatory damages—economic and noneconomic damages. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 763 (Tex. 2003).

I. Economic Damages

In Texas, economic damages consist of "compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages." TEX. CIV. PRAC. & REM. CODE § 41.001(4). Such damages at issue here are past and future medical expenses, past and future loss of earning capacity, and pecuniary losses for wrongful death including loss of services and support. See generally ECF No. 578.

At the start of the damages trial, the Government provided the Court with stipulations as to the Plaintiffs’ economic losses. ECF Nos. 530, 559, 576. These stipulations reflect conclusions from the Government's experts concerning such losses. ECF No. 579 at 4. They further reflect the agreed value of Plaintiffs’ past medical expenses. ECF No. 576 at 1.

1. Pecuniary Loss

Pecuniary losses in the wrongful-death context are defined as the loss of the earning capacity of the decedent as well as the value of advice, counsel, services, care, maintenance, and support provided by the deceased. Badall v. Durgapersad , 454 S.W.3d 626, 637 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) ; Texas Pattern Jury Charges—General Negligence, Intentional Personal Torts & Workers’ Compensation (2020), PJC 29.3 to 29.6. Pecuniary loss may also include certain expenses incurred by the claimant, such as funeral expenses. See Landers v. B.F. Goodrich Co. , 369 S.W.2d 33, 34–35 (Tex. 1963). Though valuing pecuniary loss is an economic assessment, "measuring a beneficiary's pecuniary loss is inherently speculative and imprecise and is therefore best left to the [fact finder's] common sense and sound discretion." Samco Props., Inc. v. Cheatham , 977 S.W.2d 469, 480 (Tex. App.—Houston [14th Dist.] 1998, pet. denied). The fact finder may apply their own knowledge and expertise to estimate the value of the services provided by the decedent without proof of their value. Badall , 454 S.W.3d at 638 (citing Excel Corp. v. McDonald , 223 S.W.3d 506, 510 (Tex. App.—Amarillo 2006, pet. denied) ). Spouses, parents, and children of the deceased may recover pecuniary loss for wrongful death. See id. (loss of parent's services); Dougherty v. Gifford , 826 S.W.2d 668, 681 (Tex. App.—Texarkana 1992, no writ) (loss of spouse's services); Fibreboard Corp. v. Pool , 813 S.W.2d 658, 683 (Tex. App.—Texarkana 1991, writ denied) (loss of child's services). Importantly, pecuniary losses are treated "as distinct from intangible or emotional damages recoverable in a loss of consortium claim." Ellis v. United States , 673 F.3d 367, 379 (5th Cir. 2012) (applying Texas law).

2. Loss of Inheritance

Additionally, a plaintiff may recover damages for loss of inheritance in a wrongful death action. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238, 254 (Tex. 2008). In Texas, loss of inheritance is defined as "the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful act causing the premature death." Yowell v. Piper Aircraft Corp. , 703 S.W.2d 630, 633 (Tex. 1986). Thus, the plaintiff must offer proof as to the "decedents’ salaries, expected raises, expected promotions and salary increases, earning capacities, enforced

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savings through pension plans, spending habits, age, health, and relationship with the wrongful death beneficiaries." Id. at 634.

3. Loss of Earning Capacity

In a personal injury case, a plaintiff may recover damages for past and future loss of earning capacity. Texas PJC – General Negligence, Intentional Personal Torts and Workers’ Compensation (2020), PJC 28.3 & comment. "Lost earning capacity is an assessment of what the plaintiff's capacity to earn a livelihood actually was and the extent to which that capacity was impaired by the injury." Big Bird Tree Svcs. v. Gallegos , 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied). "Loss of past earning capacity is a plaintiff's diminished ability to work during the period between the injury and the date of trial." Hospadales v. McCoy , 513 S.W.3d 724, 742 (Tex. App.—Houston [1st Dist.] 2017, no pet.). The key focus in analyzing a plaintiff's past loss of earning capacity is "(1) what the plaintiff's capacity to earn was, and (2) how that capacity was impaired by the injury." Perez v. Arredondo , 452 S.W.3d 847, 862 (Tex. App.—San Antonio 2014, no pet.).

An award of damages for loss of future earning capacity can be based on a number of factors: "(1) past earnings; (2) the plaintiff's stamina, efficiency, and ability to work with pain; (3) the weakness and degenerative changes that will naturally result from the plaintiff's injury; and (4) the plaintiff's work-life expectancy." Virlar v. Puente , 613 S.W.3d 652, 682 (Tex. App.—San Antonio 2020, pet. filed) ; Perez , 452 S.W.3d at 862. Evidence of actual earnings at the time of trial is evidence of future earning capacity, "but it is not the only evidence in an inquiry that looks many years or decades into a person's future." W&T Offshore, Inc. v. Fredieu , 610 S.W.3d 884, 889 (Tex. 2020). The fact that the plaintiff's post-injury wage is higher than her pre-injury wage does not preclude an award of damages for loss of future earning capacity. See id. (plaintiff could recover damages for loss of future earning capacity in spite of a higher hourly wage post-injury because he worked fewer hours, his new job did not cover living expenses whereas his prior job did, and he would face difficulty finding new employment if he lost his job at the time of trial). If the plaintiff is a child who has never earned money, "the jury must determine the value of [plaintiff's] lost earning capacity altogether from their common knowledge and sense of justice." McIver v. Gloria , 140 Tex. 566, 169 S.W.2d 710, 712 (1943) ; see also Durham Transp. Co., Inc. v. Beettner , 201 S.W.3d 859, 865 (Tex. App.—Waco 2006, pet. denied).

4. Loss of Services

A parent may recover for loss of services of an injured child. Morrell v. Finke , 184 S.W.3d 257, 290–91 (Tex. App.—Fort Worth 2005, pet. denied). "Services" includes the performance of household and domestic duties. Whittlesey v. Miller , 572 S.W.2d 665, 666 n.2 (Tex. 1978). The parent must prove their child is incapable of performing household services. Gonzalez v. Hansen , 505 S.W.2d 613, 614–15 (Tex. App.—San Antonio 1974, no writ).

II. Noneconomic Damages

Noneconomic damages include "physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages." TEX. CIV. PRAC. & REM. CODE § 41.001(12). Plaintiffs

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have asserted various claims for pain and suffering, mental anguish, disfigurement, impairment, and loss of companionship or consortium. The process of awarding noneconomic damages "is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss." Dawson v. Briggs , 107 S.W.3d 739, 750 (Tex. App.—Fort Worth 2003, no pet.) ; Dollison v. Hayes , 79 S.W.3d 246...