United States District Court, D. Kansas
Ricky Wheeler, personally and as the Special Administrator of the Estate of Gretchen Konrad, deceased, and as the father and natural guardian of L.W., a minor, Plaintiff,
United States of America, Defendant.
MEMORANDUM AND ORDER
Thomas Marten, Judge
plaintiff Ricky Wheeler has moved for leave to amend the
disclosure of his expert, Dr. Kurt Krueger, as to the damages
for loss of services, care, and guidance due to the death of
Gretchen Konrad. In Wentling v. Medical Anesthesia
Serv., 237 Kan. 503, 701 P.2d 939 (1985), the Kansas
Supreme Court recognized an economic claim for the loss of
such services and care. Wheeler argues that a recent decision
by the same court, Burnette v. Eubanks, 425 P.3d 343
(2018), decided after the parties disclosed their experts,
potentially changes the rule established in
Wentling, such that Dr. Krueger should be permitted
to amend his report.
defendant opposes the motion (Dkt. 94), arguing that
Burnette simply applies established law-in fact,
acknowledging Wentling as the “established
standard, ” 425 P.3d at 347-and therefore the decision
does not warrant altering Dr. Krueger's report.
Alternatively, the defendant argues that if Dr. Krueger is
allowed to amend his report, it should be given leave to
present its own expert testimony on the issue, and the
opportunity to challenge any amended report by Dr. Krueger.
Plaintiff argues in reply (Dkt. 96) that the court should
permit the amendment, but preclude the defendant from
responding by challenging an amended report or presenting its
own expert to address the issue.
court finds that Burnette does not fundamentally
transform Kansas law regarding so-called Wentling
damages so as to justify modification of Dr. Krueger's
report. Plaintiff in fact concedes that “[i]t is
unclear what impact Burnette may have on this case
and other wrongful damages.” (Dkt. 93, at 5). The court
concludes Burnette does not have substantial impact
on this case, and so does not warrant modification of the
existing expert report.
acknowledged that “each case has nuanced circumstances,
” 425 P.3d at 347, and its ultimate holding that the
district court had erred in submitting a claim for
Wentling damages to the jury was closely tied to the
particular circumstances of that case. In Wentling
(as in this case), the claim for Wentling damages
was premised on the death of a spouse and parent. In
addition, the claims were accompanied by traditional economic
loss claims for loss of services.
Burnette, by contrast, the plaintiffs sought
Wentling damages for the loss of their adult son.
More importantly, as the court repeatedly stressed, the
parents' claim presented “no ‘loss of
services' claim of the type that are more typically
understood as economic damage.” 425 P.3d at 357. The
plaintiffs' evidence for such damages were
“generalized” in nature, taking the form of
“evidence about Joel's close relationship and
loving companionship with his parents, his attentiveness, or
his caring nature.” Id. at 361,
Reduced to its essence, plaintiffs simply asked the jury to
be fair and just when considering this component of their
claimed economic losses, which is the same valuation
methodology used for noneconomic damages. The evidence
provided nothing on which a jury could base an economic
valuation-even under Wentling's presumption that
juries are capable of converting economic losses into their
monetary equivalents on the basis of their own experience and
knowledge. Wentling, 237 Kan. 503, Syl. ¶ 1,
701 P.2d 939.
425 P.3d at 364.
Burnette court did not depart from or modify the
rules in Wentling, but simply applied them to the
nuanced facts of the case:
The economic damages in Wentling were supported by
evidence about actual services lost, which were understood to
be of the type capable of being purchased, e.g.,
providing in-home, rather than out-of-home, care for a
disabled child; or things that would have otherwise
economically benefitted plaintiffs, e.g., guidance
that would have contributed to the child's ability to
obtain future employment. But there was no loss of services
claim by Joel's parents. And the evidence presented about
actual losses from Joel's death did not establish-or even
reference-any economic dimension. The jury had nothing to
associate the loss of care and attention claim to some
reasonable basis for monetary computation or equivalence to
enable it to arrive at an economic loss recovery.
Given this, it becomes readily apparent this item of loss was
indistinguishable from those for which the jury was permitted
to award noneconomic damages under the jury instruction
defining those to include “[l]oss of society, loss of
comfort, or loss of companionship.” And the jury gave
Joel's parents all they asked for in noneconomic damages.
standards for economic losses recognized in
Wentling-that they are “capable of computation
or conversion using some equivalence to a monetary basis or
material standard based on the marketplace, ” even
though they “need not be proven with mathematical
precision through experts”-were not modified but
reiterated by Burnette. 425 P.3d at 361-62 (citing
Wentling, 237 Kan. at 508, 514-15).
court finds that the plaintiff has failed to show good cause