United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
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
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.
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.
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.
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.
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
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
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.
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,  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.
amended opinion provides the following critiques to Dr.
• 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
• 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.
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.