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Fulcher v. United States

United States District Court, W.D. Kentucky, Paducah Division

December 29, 2014



THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court upon a number of motions filed in preparation for a bench trial to be held on December 30, 2014. The issues before the Court include Plaintiff Regina Fulcher's objections to the Government's list of trial witnesses and exhibits, (Docket No. 14), to which the Government has responded, (Docket No. 17). The Government also filed objections to Fulcher's proposed exhibits list, (Docket No. 16), to which Fulcher responded, (Docket No. 22). Additionally, in Fulcher's Pretrial Memorandum, she raised issues concerning the collateral source rule. (Docket No. 11.) The Government responded in a brief of its own, (Docket No. 19), to which Fulcher replied, (Docket No. 21), and the Government filed an additional brief, (Docket No. 24). Fully briefed, these matters stand ripe for adjudication.[1] The Court will address each in turn.

Factual Background

In her Complaint and supporting memoranda, Fulcher alleges that on the rainy afternoon of January 25, 2012, she traveled to the United States Post Office located at 225 West Broadway, Mayfield, Kentucky ("the Post Office") to check her mail. She entered through the wheelchair accessible door and stepped onto a floor mat saturated with rain, causing her to slide, lose her balance, and fall forward onto the wet floor, striking a display shelf before ultimately landing on her right side. Fulcher did not report the fall that day, although her husband briefly spoke with a USPS employee after the incident. However, she returned to the Post Office the following day and reported her fall and the resultant pain in her right shoulder and right side to a customer service supervisor.

On January 27, 2012, Fulcher complained to her internist, Dr. Patrick Finney, of pain in both shoulders, in her chest and ribs, and down the right side of her body.[2] She saw Dr. Finney again on March 7, 2012, where she complained of pain and swelling in her right foot. Upon Dr. Finney's referral, a three-phase bone imaging diagnostic study revealed radiotracer activity in the right ankle. During subsequent appointments on June 4, 2012, and September 5, 2012, Fulcher was referred for x-rays that demonstrated a nondisplaced medial malleolus fracture-that is, a broken ankle-with overlying soft tissue edema.[3] Dr. Finney then referred Fulcher to Dr. William R. Adams of the Orthopaedic Institute of Western Kentucky. On October 8, 2012, Fulcher complained to Dr. Adams of pain in her right foot; agreeing with the previous diagnosis of nondisplaced medial malleolus fracture, he prescribed a pneumatic walking boot to immobilize the ankle.

An MRI performed in December revealed a more significant injury: Dr. Harold Halfhill diagnosed a nonunited fracture involving the medial malleolus, but observed minimum displacement rather than the nondisplacement previously noted. On January 11, 2013, Fulcher returned to the Orthopaedic Institute complaining of ongoing ankle pain despite the walking boot. In light of her persistent pain, coupled with numbness and tingling in her toes, Dr. Adams instructed Fulcher to forego wearing the boot and to instead begin physical therapy. He also explained that her treatment options included either long-term ankle bracing or surgery to excise the fractured ligament and reattach the deltoid ligament.

However, Fulcher was financially unable to pay for physical therapy. Instead, she returned to Dr. Finney, who prescribed Neurontin for severe foot pain on May 3, 2013. On December 4, 2013, Dr. Marissa Stewart-Jaynes of Mercy Primary Care-Paducah also referred Fulcher to physical therapy. She eventually began a physical therapy regimen on January 7, 2014, which lasted until March 5, 2014. Although she reports improved strength, she alleges that her ankle pain persists.

According to Fulcher, X-rays taken prior to her fall at the Post Office did not reveal a fracture of either her right ankle or her right foot. The Government disagrees, arguing that Hale's records prior to the January 2012 indicate swelling and problems in her right foot predating her fall at the Post Office. The Government further notes that an April 2012 medical report regarding Fulcher's bone scan does not reference a specific event relative to her foot swelling and pain. Instead, the scan demonstrated possible arthritic changes in the right ankle. The Government also contends that the September 2012 x-ray demonstrated an "[i]ndeterminate age medial malleolus fracture. This appears to be chronic though there is overlying soft tissue edema." Finally, the Government points to the testimony of Nurse Practitioner Amanda Hale, who testified that Fulcher's ongoing diabetes and osteoporosis left her vulnerable to chronic foot injuries, even without a traumatic event.

Fulcher brings this lawsuit pursuant to the Federal Tort Claims Act. See 28 U.S.C. §2671, et seq. She alleges that the Government, through employees of the United States Postal Service ("USPS"), failed to exercise ordinary care by neglecting to replace the wet floor mat with a dry one. She also alleges that USPS employees negligently failed to comply with agency regulations requiring the use of signs to caution customers of a wet floor. (Docket No. 1, ¶¶ 7-12.) She alleges that she has exhausted her administrative remedies, having submitted a claim for $47, 417.02-including $12, 385.46 in medical damages-to the USPS on December 10, 2012, and filing a timely request for reconsideration upon its rejection, also denied. Upon the second denial, she filed the instant complaint within the six-month period set forth by the statute.


I. Fulcher's Objections to the Government's Trial Witness and Exhibit Lists

The Court now turns to the substance of the parties' pretrial motions, beginning with Fulcher's objections to the Government's list of trial witnesses and exhibits. (Docket No. 14.) Fulcher first argues that although the Government indicated in its Rule 26(a)(1) disclosures that it intended to call a representative of Cintas National Rental Program ("Cintas"), it did so in only the most general terms and failed to provide the name or contact information of any individual Cintas employees. Without this information, Fulcher contends that she was unable to contact and perhaps depose the unknown Cintas employee at issue.

To be sure, the Government fell short of its Rule 26 obligations, which require a party to provide the name, address, and telephone number of each witness that it may call at trial. See Fed.R.Civ.P. Rule 26(a)(3)(A)(i). However, the Government no longer plans to call a Cintas employee to testify. ( See Docket No. 17.) Without the possibility of such testimony, Fulcher's objection to the incomplete disclosure is rendered moot.

Fulcher next objects to the Government's Exhibit No. 14, entitled "Weather Data for January 25, 2012." ( See Docket No. 8, Defendant's Exhibit and Witness Lists. This exhibit describes weather conditions in the cities of Murray and Paducah, neither of which was the location of the alleged accident. The Government explains that it relies upon official weather data associated with the Murray and Paducah airports only because no such official data exists for Mayfield. Should either party acquire official weather data for Mayfield, the Court welcomes its introduction and assumes that neither party ...

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