Austin v. United States

          ORDER

          Kristen L. Mix United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Amend Findings of Fact, Conclusions of Law and Order (ECF No. 74) [#82]^[1] (the “Motion”). Plaintiff filed a Response in opposition to the Motion [#88], and Defendant filed a Reply [#89]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#82] is GRANTED, as follows.^[2]

         Plaintiff was injured on January 11, 2014, in Lakewood, Colorado, when a United States Postal Service delivery vehicle collided with the car he was driving. Plaintiff brought suit for damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, and 2680. Compl. [#1] ¶ 3. Defendant did not contest liability for the accident but did contest damages. See [#74] at 1. The case came before the Court for a bench trial on June 18-20, 2018. At the conclusion of trial, the Court took the matter under advisement and subsequently issued Findings of Fact, Conclusions of Law and Order [#74]. In the present Motion [#82], Defendant seeks amendment of a finding of fact and a portion of the order stemming from that finding of fact pursuant to Fed.R.Civ.P. 52(b).^[3]

         Specifically, Defendant takes issue with the last word of this sentence: “Dr. Goldman estimated the cost of his recommended treatment regimen at $7, 500 to $8, 500 annually.” Motion [#82] at 7. Defendant argues that the Court misconstrued Dr. Goldman's testimony and that $8, 500 was “the total cost of Plaintiff's plan of care, rather than an amount to be paid annually over Plaintiff's remaining life expectancy.” Id. at 1 (emphasis in original). Defendant primarily relies on the following evidence in support of its argument:

(1) Question to and answer by Dr. Goldman: “Q. And what was the cost you estimated for your plan? A. $8, 500.” Trial Transcript [#82-1] at 61.

(2) THE COURT: The question I would like you to answer, Dr. Goldman, as indicated, is what would the regiment -- if you were providing the regiment you suggested to Mr. Austin, what would it cost, based on your costs you would bill.

THE WITNESS: It would be -- would be a little less than that, actually, because we bill in the 95th plus or minus 3 percent of usual and customary ranges. So I estimated those based on up to 98 percent, not the highest 2 percent. So, transparency, that is what I am considering usual and customary. I am taking like a 98 percentile bell curve, not the last 2 percent. My cost would be a bit less.

THE COURT: What is the dollar amount?

THE WITNESS: If this was being done with the therapist and people I work with, it would probably [be] closer to [$]7, 500 to $8, 000 range.

(3) Q. (BY MR. PESTAL) So, Dr. Goldman, to recap that, if Mr. Austin had $8, 500 in his pocket, could he go out and implement your plan in the marketplace, without relying on insurance, without relying on any other source of healthcare?

A. With the people I work with, yes, he can negotiate that, and also have some spare change. They would be glad to take the cash.

(4) Dr. Goldman testified:

But I think [Plaintiff] would get back to that baseline. Usually most of my patients actually get better, if they stay with the program, they upgrade it every 3 months to every year, typically will get better for another 2 to even 5 years, very slowly, very slowly. We are not talking about gang ...