United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Defendant's Motion
to Amend Findings of Fact, Conclusions of Law and Order (ECF
No. 74) [#82] (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.
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).
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
(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