United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
C. Coggins, Jr. United States District Judge.
matter is before the Court on Plaintiffs' Motion in
Limine to Exclude Defendant from Presenting Argument or
Evidence Regarding Speculative Free Medical Care and Supplies
that the Veterans Administration Could Provide in the
Future. ECF No. 68. Defendant filed a Response,
ECF No. 69, and Plaintiffs filed a Reply, ECF No. 70.
Accordingly, the Motion is ripe for consideration.
filed a medical malpractice action against Defendant under
the Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 2671-80. ECF No. 1. Plaintiffs' Complaint
alleges that Plaintiff George Egan ("Mr. Egan")
received medical care at the William Jennings Bryan Dorn
Veterans Administration Medical Center in Columbia, South
Carolina ("VAMC") for a back injury received during
the Vietnam War. Id. at 1-3. In October 2010, Mr.
Egan's primary care physician at the VAMC ordered an MRI
of the lumbar spine, which showed a severe disc extrusion
causing compression of various nerves. Id. at 3. Mr.
Egan was then evaluated and treated by many VAMC medical
providers for worsening back pain and eventual neurological
deficits. In April 2012, a neurosurgery nurse practitioner on
staff at the VAMC diagnosed Mr. Egan with cauda equine
syndrome. Id. at 22. Mr. Egan then underwent
decompression surgery at a non-VA hospital. Id. This
surgery was unsuccessful in restoring Mr. Egan's
neurological strength or function below his waist.
Id. Mr. Egan now alleges that this delay in
diagnosis and treatment caused his permanent neurological
the parties submitted expert disclosures, Plaintiffs moved
for Partial Summary Judgment as to liability. ECF No. 54. The
Court granted Plaintiffs' Motion, finding that
"Defendant has failed to offer any actual evidence as to
standard of care, breach, or causation." ECF No. 65 at
10. Additionally, the Court noted that "Defendant has
again failed to provide Plaintiffs with any indication of
what opinions its experts will testify to as trial."
Id. at 11. The parties later requested a phone
conference with the Court to discuss whether the Order also
applies to Plaintiffs' allegations of gross negligence.
ECF No. 67. Additionally, Plaintiffs' informed the Court
that they would be moving to preclude Defendant from offering
evidence that Mr. Egan's future medical care could be
provided by the Defendant at no cost. Id. Plaintiffs
then filed a Motion in Limine addressing this issue, which
has been fully briefed by the parties and is ripe for this
the Court holds that its prior Order does not apply to
Plaintiffs' gross negligence claims. Plaintiffs'
Motion for Partial Summary Judgment did not ask the Court to
make a finding on gross negligence, and the issue was not
addressed during briefing. Although Plaintiffs' expert
affidavits and reports address gross negligence in various
degrees of detail, most the relevant opinions are simply
recitations of the gross negligence standards. Given the
procedural posture of Plaintiffs' Motion and the lack of
briefing on the issue, the Court cannot extend its prior
Order beyond the issues presented in the Motion. See
Fed. R. Civ. P. 56(f) (noting that the Court can only grant
summary judgment independent of a proper motion when the
parties are given notice and a reasonable opportunity to
respond). Thus, the parties must address gross negligence at
trial so that the Court may determine whether Defendant's
conduct satisfies the gross negligence standard. Defendant is
reminded that it has failed to properly disclose any expert
opinion on liability, including gross negligence.
Accordingly, the only question here will be whether the
Plaintiffs' evidence meets the applicable legal standard.
Defendant is, of course, entitled to cross examine
Plaintiffs' experts as well as offer any properly
disclosed factual evidence to rebut Plaintiffs'
allegations of gross negligence.
Future Medical Care
to the Motion in Limine, Plaintiffs have asked the Court to
preclude Defendant from presenting argument or evidence that
the Veterans Administration ("VA") could provide
Mr. Egan with free medical care in the future. ECF No. 68. To
that end, Plaintiffs contend that both South Carolina law and
federal law allow for the recovery of future medical expenses
here, and Plaintiffs' offer several federal cases in
support of their position. In response, Defendant contends
that (1) an offset is permissible because the collateral
source rule does not apply in this case; (2) durable medical
products should not be considered in calculating damages; and
(3) the Court should establish a reversionary medical trust
so that Plaintiffs are not allowed to double recover. As
detailed below, the Court finds that the overwhelming weight
of authority supports Plaintiffs' argument and grants
Plaintiffs' Motion in Limine.
issue presented to this Court has been addressed by many
federal courts. Most recently, the United States Court of
Appeals for the Second Circuit addressed the issue in
Malmberg v. United States, 816 F.3d 185 (2d Cir.
2016). First addressing the applicable federal law, the
Malmberg Court recognized that "it is axiomatic
that the government does not 'pay twice for the same
injury.'" 816 F.3d at 190 (quoting Brooks v.
United States, 337 U.S. 49, 53 (1949)). On the other
hand, the Court recognized that it is "particularly
unseemly to force a plaintiff to receive medical services
from the tortfeasor responsible for his injuries."
Id. (citing Ulrich v. Veterans Admin.
Hosp., 853 F.2d 1078, 1084 (2d Cir. 1988)). These
dueling principles seem to be at odds, but the Court
recognized that "federal law does not require an offset
against a veteran's damages award for future medical care
that could be provided at a VA facility." Id.
at 192. Indeed, "[f]ederal law disfavors an outcome
whereby a litigant is 'obligated to seek medical care
from the party whose negligence created his need for such
care simply because that party offers it without
charge.'" Id. (citations omitted). The
Court recognized that a plaintiff could not recover for
past damages provided free of charge by the VA but
noted no federal authority that would require an injured
plaintiff to continue to seek free care simply because it is
response to Plaintiff's reliance on Malmberg,
the Defendant cites to Brooks v. United States, 337
U.S. 49 (1949). In Brooks, the Supreme Court of the
United States addressed the question of "whether members
of the United States armed forces can recover under [the
FTCA] for injuries not incident to their service." 337
U.S. at 50. The Supreme Court noted that the accident leading
to the lawsuit did not occur incident to the plaintiff's
military service and held that recovery under the FTCA was
permissible. Id. at 52. However, the Supreme Court
also noted that "this does not mean that the amount
payable under servicemen's benefit laws should not be
deducted, or taken into consideration, when the serviceman
obtains judgment under the [FTCA]. . . . [as] [i]t would seem
incongruous, at first glance, if the United States should
have to pay in tort for hospital expenses it had already
paid, for example." Id. at 53-54. This
language, however, was dicta and expressed the opinion of the
Supreme Court "[w]ithout the benefit of argument in [the
Supreme] Court, or discussion of the matter in the Court of
Appeals." Id. In fact, the Supreme Court
acknowledged that "the statutory scheme and the
Veterans' Administration regulations may dictate a
contrary result" and reiterated that "[t]he point
was not argued in the case as it came to [the Supreme Court]
from the Court of Appeals." Id. at 54.
Court adopts the reasoning of the Malmberg Court and
holds that federal law does not preclude Plaintiffs from
seeking future medical expenses. "We recognize, as other
courts have, that there is some risk of a double recovery to
the extent [Mr. Egan] elects to continue receiving services
from the VA, but any such concern is for Congress and not
this Court." Malmberg, 816 F.3d at 195.
Further, the Court does not find the dicta in Brooks
to be controlling, and the Court notes that in a more recent
case, "the Supreme Court decided, at least implicitly,
that nothing under the FTCA or other provision[s] of federal
law prohibited the government from paying twice for future
medical expenses." Molzof v. United States, 6
F.3d 461, 464 (7th Cir. 1993) (citing Molzof v. United
States, 502 U.S. 301, 310 (1992)). "Whether such an
award is permissible, the [Supreme] Court indicated, was a
matter of state law." Id.; see also
Malmberg, 816 F.3d at 193 ("Damages in FTCA actions
are determined by the law of the state in which the tort
occurred, so even if federal law does not require an offset
we must next consider whether such an offset is warranted
under state law.").
Carolina law recognizes the common-law collateral source
rule, which provides "'that compensation received by
an injured part from a source wholly independent of the
wrongdoer will not reduce the damages owed by the
wrongdoer.'" Covington v. George, 597
S.E.2d 142, 144 (S.C. 2004) (quoting Citizens and S.
Nat'l Bank of S.C. v. Gregory, 463 S.E.2d 317, 318
(1995)). This long-established rule recognizes that "[a]
tortfeasor cannot 'take advantage of a contract between
an injured party and a third person, no matter whether the
source of the funds received is an insurance company, an
employer, a family member, or other source.'"
Id. (quoting Pustaver v. Gooden, 566 S.E.2d
199, 201 (S.C. Ct. App. 2002)) (internal quotation marks
omitted). Defendant contends that compensation in the form of
future VA care is not "wholly ...