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Boden v. United States

United States District Court, W.D. Virginia, Roanoke Division

December 17, 2019



          Michael F. Urbanski Chief United States District Judge

         This matter comes before the court on plaintiff Robert Boden's motions in limine to exclude an expert witness, ECF No. 32, and evidence of emails to a treating physician, ECF No. 43. The government has responded, ECF Nos. 38 and 46, and a hearing was held on the motions on October 3, 2019. For the reasons stated below, the court will DENY Boden's motions.


         On June 7, 2018, Boden filed his complaint against the United States of America pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2674, Compl, ECF No. 1. Boden alleges that John H. Bonk, D.P.M., a podiatrist practicing medicine at the Salem Veteran Affairs Medical Center ('VAMC"), acted negligently with regard to his treatment of Boden's injured ankle, eventually resulting in an amputation of the right leg below the knee. Boden has filed two motions in limine to exclude (i) testimony by the government's expert witness as to the excessiveness of Boden's proposed life-care plan and (ii) evidence relating to emails Boden sent to Dr. Greenwood regarding the cause of one of Boden's ankle surgeries.

         Boden initially injured his ankle in 1990 after jumping off a tank in Canada while serving in the United States Army. He received minimal treatment for the injury and continued to suffer from ankle pain with it "giving out" into the early 2000s. Id. at 3. Boden sought treatment for his ankle pain at the Salem VAMC beginning in 2005. Over the course of nine years, Boden's primary care provider and orthopedists treated his ankle several times a year. The doctors at the Salem VAMC prescribed Boden bracing, physical therapy, and steroid injections, but none of these successfully alleviated his ankle pain. Boden was then diagnosed with lateral ankle instability and referred by the Salem VAMC orthopedic department to the podiatry department for potential surgery.

         Boden saw a Salem VAMC podiatrist on April 23 and April 24, 2014, to evaluate his ankle. The doctor performed a physical exam, reviewed radiographs and MRIs, injected Boden with a nerve block, and referred Boden to a neurologist. On May 21, 2014, a Salem VAMC neurologist determined that Boden had normal nerve functions in his foot and ankle.

         Boden returned to the Salem VAMC podiatry department and saw Dr. Bonk on June 10, 2014. Boden and Dr. Bonk discussed surgical options, and Boden agreed to a lateral ankle stabilization surgery to address his ankle deformity. Dr. Bonk performed the surgery on July 14, 2014. Boden continued to experience pain and the ankle deformity returned. Dr. Bonk determined the surgery failed and recommended a second surgery. Boden elected to proceed with an ankle and subtalar joint fusion surgery using a rod and screws. Dr. Bonk performed the second surgery on December 8, 2014. Nearly four weeks after the surgery, Boden saw Dr. Bonk for a follow-up appointment and "register[ed] no complaints at th[at] time." Def.'s Reply Br., ECF No. 37, 3. On February 3, 2015, days after returning from a trip to Florida, Boden complained to Dr. Bonk of a "pop" in his ankle, and x-rays revealed that a screw was backing out. Id. Boden's post-operative orders were to be non-weightbearing on his ankle. Id.

         On February 25, 2015, Boden saw a non-VA podiatrist, paid for by the Salem VAMC. Dr. Greenwood determined that Boden's anklebones were not fusing together - a "nonunion." Id. On March 12, 2015, Dr. Greenwood operated to reinsert a screw that was backing out. Dr. Greenwood's post-operative instructions were similar to Dr. Bonk's, ordering Boden to "be strictly non-weightbearing." Def.'s Reply Br., ECF No. 46, 2. On March 21, 2015, Boden drove his vehicle on an eight-hour trip, which resulted in an automobile accident. At a March 25, 2015 follow-up appointment, Boden told Dr. Greenwood about the car accident and how his right foot hit the center console of the vehicle. At the meeting, Boden "denie[d] any significant injury or worsening of pain to his right foot." Id. at 3.

         Dr. Greenwood performed a second ankle surgery on August 6, 2015. On August 17, 2015, Boden saw Dr. Greenwood again and she noted that Boden "also request[ed] a letter stating that the current surgery was not in direct relationship to the car accident he was in on March 21, 2015." Pl's Mot, ECF No. 43, 2. Dr. Greenwood provided Boden with a letter stating that "[t]he non-union to his right ankle and problems occurred prior to this accident [and] this accident was not directly related to the surgery that was performed on August 6." Id

         On December 21, 2015, Boden wrote another email to Dr. Greenwood, asking her to "please write up a letter stating that the screw in my ankle came loose and eventually had to be removed as a result of the accident." Id. On December 22, 2015, Dr. Greenwood responded to Boden, stating "I cannot directly correlate the screw backing out of your right calcaneus as a result of the motor vehicle accident you were in." Def.'s Reply Br., ECF No. 46, 4. Dr. Greenwood performed three total surgeries on Boden's ankle, all of which ultimately were unsuccessful, leading to a non-union. Boden men opted for a below-the-knee amputation at the Gainesville, Florida VAMC. Compl, ECF No. 1, 10.

         In preparation for trial, Boden retained Craig Lichtblau, M.D. as an expert witness to create a life-care plan detailing Boden's projected future medical needs, Pl's Mot., ECF No. 32-1. Dr. Lichtblau's report lists numerous projected medical services, detailing the period, frequency, and cost of each service. Originally, Dr. Lichtblau's report provided minimal explanation for his projections. However, during his deposition, he further elaborated on the reasoning for each item in his report. The United States retained Susan Wirt, a registered nurse and a certified life-care planner, [1] to complete a report to rebut Dr. Lichtblau's report. She prepared a life-care plan critique wherein she identifies areas of disagreement with Dr. Lichtblau's report. She did not prepare her own life-care plan. Wirt's first report, PL's Mot., ECF No. 32-3, provided an extensive critique to almost every item on Dr. Lichtblau's report. Following her review of Dr. Lichtblau's deposition where he "provided further clarification on his opinions," Def.'s Reply Br., ECF No. 38-1, Wirt submitted an amended critique.

         Wirt's amended opinion provides the following critiques to Dr. Lichtblau's report:

Mobility Equipment: Wirt agrees that Boden will require a scooter or other mobility device. However, Wirt disagrees that Boden requires a scooter lift for his car. Wirt identifies that there are numerous lightweight scooters than can be broken down into several smaller components.
Bathing: Wirt acknowledges that Boden will need a bench or chair for his shower. However, Wirt points out that Boden already has a shower chair that will need to be replaced periodically.
Home Modifications: Wirt acknowledges that Boden will requite a grab rail in his shower. However, Wirt points out that Boden already has a grab rail in his shower, and one should not be included in his life-care plan.
Support Care: Wirt disagrees with Dr. Lichtblau that Boden will require aide and attendant care at the level detailed in his report. Wirt asserts that there is no medical evidence that Boden cannot independently complete his activities of daily living.

         ECF No. 38-1. Boden seeks to exclude both Wirt's expert testimony and the evidence relating to his emails with Dr. Greenwood about the cause of one of his ankle surgeries.


         A. Wirt&# ...

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