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Dimsdale v. United States

United States District Court, W.D. North Carolina, Asheville Division

August 18, 2017

GENE DIMSDALE, PLAINTIFF,
v.
UNITED STATES OF AMERICA DEFENDANT.

          ORDER

          Dennis L. Howell United States Magistrate Judge

         THIS MATTER has come before the undersigned, pursuant to a Verified Petition to Preserve Gene Dimsdale's Testimony(#1) filed by counsel for Plaintiff, pursuant to Rule 17(a) of the Federal Rules of Civil Procedure. In the Petition, counsel describes that Plaintiff expects to be a party, either personally, or though his duly qualified Administrator or Executor, in an action against the United States and seeks to preserve the Plaintiff's testimony by way of deposition for use in the potential action. Rule 27(a)(1) of the Federal Rules of Civil Procedure provides as follows:

Rule 27. Depositions to Perpetuate Testimony (a)Before an Action Is Filed.
(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;
(B) the subject matter of the expected action and the petitioner's interest;
(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons too perpetuate it;
(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E) the name, address, and expected substance of the testimony of each deponent.

         The facts that the Plaintiff wishes to establish by his proposed testimony are described in the Petition (#1). The Plaintiff was treated on November 28, 2014 at the Charles George Veterans Administration Hospital for injuries relating to a dog bite. At that time, a chest x-ray of Plaintiff was taken that showed a potential malignancy. The Plaintiff was not advised of the result of the x-ray or of the malignancy.

         On December 14, 2016 the Plaintiff again went to the Charles George Veterans Administration Hospital for treatment related to a cough. A chest x-ray was again taken of Plaintiff and a comparison was made of the chest x-ray of December 14, 2016 with that of one taken on November 28, 2014. The comparison showed a pulmonary malignancy or cancer. On December 14, 2016, the Risk Manager and Administrator of the Charles George Veterans Administration Hospital, advised the Plaintiff of the failure to report the results of the November 28, 2014 x-ray, and presented to the Plaintiff a Form 95 which is a form to present a Federal Tort Claim action and claim against the United States.

         Within the last two months, the Plaintiff has lost over 40 pounds. The Plaintiff's health status is very poor and his prognosis as to his death from cancer is uncertain. There is thus a reason to establish his proposed testimony and perpetuate it so the testimony may be used in either his tort claim or personal injury action against the United States or in any potential wrongful death action of his estate. If his deposition is not taken, his testimony and establishment of his claim may be lost.

         The Petition further describes that the Plaintiff cannot bring or present a complaint or tort claim at this time because he has not been able as of yet to obtain a certification of an expert medical witness and has further not had sufficient time to file his Administrative Tort Claim and potential civil claim, pursuant to the Federal Tort Claims Act, against the United States.

         The subject matter of the expected action of the Plaintiff or his estate will be either a claim for personal injury and damages arising out of professional negligence or a claim for wrongful death arising out of professional negligence. The substance of the facts that the Plaintiff wishes to establish by his proposed testimony would be those related to his treatment at the Charles George Veterans Administration Hospital in November of 2014 and December of 2016. Further evidence would be the fact that he was never advised of the result of the 2014 x-ray until December of 2016. He further wishes to establish his testimony concerning his conversations with the Risk Manager and Administrator of the Charles George Veterans Administration Hospital. Other testimony would relate to his medical expenses, loss of earnings, pain and suffering, scarring or disfigurement, partial loss of a part of the body and permanent injury. In addition, the ...


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