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Gibson v. The United States

United States District Court, D. Montana, Great Falls Division

January 16, 2020

BARBARA A. GIBSON individually, and as Personal Representative of the Estate of Johnny G. Gibson, JOHN TRAVIS MORGAN GIBSON, and DIXIE LEE GIBSON, Plaintiffs,
v.
THE UNITED STATES, and DOES 1-10, Defendants.

          FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

          Brian Morris United States District Court Judge.

         This matter came before the Court for trial without a jury on October 15-16, 2019. Plaintiffs Barbara Gibson as personal representative of the Estate of Johnny Gibson and individually, John Travis Morgan Gibson, and Dixie Lee Gibson (collectively “Plaintiffs”), were represented by John Morrison. Defendant United States of America (“Defendant”) was represented by Assistant United States Attorney Chad C. Spraker.

         From the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law:

         FINDINGS OF FACT

         I. Background

         1. Barbara Gibson is the surviving spouse of Johnny Gibson and the personal representative of the Estate of Johnny Gibson. (Final Pretrial Order, Doc. 66 at 5.)

         2. John Travis Morgan Gibson and Dixie Lee Gibson are the adult children of Johnny Gibson. (Id.)

         3. Central Montana Community Health Center (“CMCHC”) is a federally funded community health center located in Lewistown, Montana. (Id. at 3.)

         4. Kimberlee D. Decker worked as a Nurse Practitioner at CMCHC. (Id.) Decker saw Johnny Gibson at CMCHC on September 14, 2015. (Id. at 3-4.) At that time, CMCHC and Nurse Decker were deemed employees of the Public Health Service under 42 U.S.C. § 233(a) and (g). (Id. at 4.)

         5. Johnny Gibson, born 1952, was seen by Decker at the CMCHC on September 14, 2015, with symptoms that included chest pain, pressure like pain between the shoulder blades, heartburn and fatigue. (Id. at 4.) Decker referred Gibson to CMCHC for an ultrasound of his gallbladder. (Id.) Decker did not prescribe or perform an EKG or stress test, did not mention potential heart issues in the medical record, and did not otherwise perform a heart workup or refer Gibson for a heart workup. (Id.)

         6. Defendant concedes the issues of negligence regarding the departure from the standard of care by Decker and CMCHC and causation in the form of negligent failure to evaluate and to treat Gibson's heart disease by Decker and CMCHC. Defendant further concedes that the negligence of Decker and CMCHC more probably than not proved a substantial factor in Gibson's death. (Doc. 34 at 6.)

         7. The morning of September 21, 2015, Johnny Gibson said he felt good enough to travel with his family home to Colorado Springs, Colorado. (Doc. 35 ¶ 27.) Barbara and Johnny Gibson and their daughter Dixie Lee Gibson started driving back that day. The family stopped at the Flying J truck stop in Lockwood, Montana because of chest pain that Johnny Gibson was experiencing. Barbara called an ambulance that transported Johnny Gibson to St. Vincent Hospital in Billings, Montana at approximately 9:33 p.m. on September 21, 2015. Johnny Gibson was suffering a myocardial infarction. He died in surgery at St. Vincent's Hospital at 5:27 a.m., on September 22, 2015. (Doc. 66 at 5.)

         8. Proper treatment of Johnny Gibson at CMCHC during his visit on September 14, 2015, would have made it more probable than not that Gibson would have lived a normal life expectancy. Id.

         II. Surviving Family Members

         A. Barbara Gibson

         9. Barbara Gibson was 69 years old at the time of trial. (Trial Tr. Vol. 1, Doc. 64 at 39:5-6.) Barbara met Johnny Gibson when she was 23 years old and married him four months later in April 1973. (Id. at 23:11-12.)

         10. Barbara and Johnny Gibson lived in Elbert, Colorado from 2002 to 2012. (Id. at 24:23-24.) Barbara, Johnny, and Dixie Lee Gibson lived in Montana during the summers of 2012 through 2015. (Id. at 26:19-27:11.)

         11. Barbara Gibson's testimony reflected a good marriage with Johnny Gibson. (Id. at 40:25-42:17.) Barbara Gibson has experienced loss of consortium, loss of care, protection, and companionship, aid, comfort, guidance, and society, and grief, sorrow, and mental anguish following her husband's death. (Id. at 82:2-89:14.)

         B. Dixie Lee Gibson

         12. Dixie Lee Gibson is Johnny and Barbara Gibson's daughter. (Id. at 105:7-8.) Dixie Lee was born in 1981. (Id. at 105:13-16.) She lived in the same household as Barbara and Johnny Gibson and continues to live with Barbara. (Id. at 106:23-24.) Dixie Lee and Johnny Gibson did ranch work together before Johnny Gibson's death. (Id. at 107:14-16, 108:19-25.) Dixie Lee's testimony reflected a good relationship with her father. (Id. at 109:6-113:5.) Dixie Lee experienced loss of care, protection, and companionship, aid, comfort, guidance, and society, and grief, sorrow, and mental anguish following her father's death. (Id. at 118:15-126:5.)

         C. John Travis Morgan Gibson

         13. John Travis Morgan Gibson is Johnny and Barbara Gibson's son. (Id. at 127:7-8.) John Travis lives in the Denver, Colorado area with his wife and children. (Id. 129:19-20.) John Travis lived with his parents until 2005 when he was 27. (Id. at 130:13-131:5.) John Travis and Johnny Gibson worked together as painters and ranch workers. (Id. at 132:14-133:8.) John Travis's testimony reflected a good relationship with his father during John Travis's formative years. (Id. 132:14-141:14.) John Travis experienced loss of care, protection, and companionship, aid, comfort, guidance, and society, and grief, sorrow, and mental anguish following his father's death. (Id. at 150:6-159:1.)

         III. Damages to the Estate

         A. Loss of Johnny Gibson's Income

         14. Johnny Gibson's 2009 IRS Form W-2 lists wages of $7, 943.79. (Ex. 2, Doc. 60-1.)

         15. Johnny Gibson and Barbara Gibson's 2010 tax return lists wages of $4, 545. (Ex. 3, Doc. 60-2 at 1.)

         16. Johnny Gibson and Barbara Gibson's 2011 tax return lists gross receipts of $3, 337 and a net loss of $913. (Ex. 4, Doc. 60-3 at 1, 4.) Barbara Gibson did not recall whether Johnny Gibson received any income for the tax year 2011 above the gross receipts figure of $3, 337. (Trial Tr. Vol. 1, Doc. 64 at 96:15-97:7.)

         17. Johnny Gibson and Barbara Gibson's tax return for the year 2012 lists wages of $8, 125. (Ex. 5, Doc.60-4 at 1.)

         18. Johnny Gibson and Barbara Gibson's tax return for the year 2013 lists wages of $10, 634. (Ex. 6, Doc. 60-5 at 1.)

         19. Johnny Gibson and Barbara Gibson's tax return for the year 2014 lists business income of $5, 000. (Ex. 7, Doc. 60-6 at 1.)

         20. Johnny Gibson and Barbara Gibson's tax return for 2015 lists wages of $6, 375. (Ex. 8, Doc. 60-7 at 1.)

         21. Johnny Gibson was not employed apart from late spring to early fall for the years 2012 to 2015. (Trial Tr. Vol. 1, Doc. 64. at 99:12-18.) Barbara Gibson testified that Johnny Gibson ordinarily worked during the winter, but that she and Gibson had taken care of Gibson's mother, then age 93-95, who suffered from broken hips and an injured leg, during the winters of 2012, 2013, and 2014. (Id. at 102:14-19).

         22. Barbara Gibson testified that Johnny Gibson's employers sometimes paid him in cash and sometimes paid him in-kind and that she believed his income typically ranged between $10, 000 and $25, 000 each year. (Id. at 34:9-10.) These in-kind payments, especially during their years working and living on the Layne Ranch near Elbert, Colorado, included housing, areas to cultivate their own food, and hunting access to obtain further food stocks.

         23. Plaintiffs called Dr. Ann Adair as an expert witness regarding damages. Adair works an Associate Professor of Economics at Rocky Mountain College. (Id. at 160:8-9.) She also operates an economic consulting firm, Yellowstone Economic Associates, where she performs forensic evaluations. (Id. at 160:9-11.) Dr. Adair has been doing work as a forensic economist since 1992. (Id. at 161:17-19.)

         24. Adair assumed that Johnny Gibson most likely would have a work life until an age of 67 years and 4 months. (Id. at 164:4-10.) Adair assumed that Gibson would have lived an additional 18.7 years until an age of 81 years and 9 months.Id. at 164:11-15)

         25. Adair's calculation of past and future earning capacity losses totaled $150, 256. See Ex. 34(c). Adair calculated Gibson's annual earning capacity at $27, 310, which represents the mean earning capacity of farm workers in Montana. (Id. at 170:1-3; Ex. 34(b).) Adair derived that figure using a 2, 080 hour work year. (Trial Tr. Vol. 2, Doc. 65 at 213:18-22.)

         26. Adair subtracted Gibson's actual earnings of $6, 375 from an annual earning capacity of $27, 310 to calculate an earning capacity of $20, 935 for the year 2015. (Trial Tr. Vol. 1, Doc. 64 at 171:16-18; see Ex. 34(d).)

         27. Sean Black, CPA, testified as an expert for Defendant. Black projected $26, 450 for loss of past earnings (measured from Gibson's date of death until March 31, 2019) and $17, 046 for a loss of future earnings (measured from April 1, 2019 until a retirement age of 68.6) for a total of $43, 496. Black used an average of Gibson's reported income in the three years before his death-$8, 125 wages in 2012, $10, 634 wages in 2013, and $5, 000 Schedule C income in 2014- along with an annual growth rate of 2.1 percent.

         28. Gibson and his family appear to have relied, in part, on unreported in-kind payments for his services as a ranch hand. Barbara Gibson testified to that effect. The Court agrees that Gibson's earning capacity, as opposed to his actual reported income, provides the appropriate method for evaluating Johnny Gibson's loss of future earnings. The Court finds that $150, 256 represents a reasonable estimate of the remaining earning capacity of Gibson lost as result of his premature death.

         B. Loss of Gibson's Household Services

         29. Barbara Gibson testified that Gibson performed a long list of household services. (Trial Tr. Vol. 1, Doc. 64 at 70-74.) Adair calculated Gibson's loss of past and future household services at $144, 434. (Id. at 176:21-25; Ex. 34(c).) Defendant presented no evidence to dispute this amount.

         C. Gibson's Physical Pain and Mental Suffering

         30. Plaintiffs contend that Gibson suffered physical pain and mental and emotional distress as a result of his acute myocardial infarction and the prospect of his death. Nurse Amanda Steiner of St. Vincent's Hospital noted that Gibson told her that his pain was “gradually getting worse starting this morning around 0830. Pain was intermittent, bilat sides, of Sternum, which is sharp, and pressure. Pain was extremely bad at 1730 and pursued ...


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