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Askew v. United States

United States Court of Appeals, Eighth Circuit

May 26, 2015

Dirk Askew; Beulah Askew, Plaintiffs - Appellees,
United States of America, Defendant - Appellant

Submitted: September 8, 2014.

Appeal from United States District Court for the Eastern District of Missouri - St. Louis.

For Dirk Askew, Beulah Askew, Plaintiffs - Appellees: David Damick, The Law Offices of David N. Damick, Saint Louis, MO; Jeanne Anne Steffin, Alhambra, CA.

For United States of America, Defendant - Appellant: Matthew M. Collette, U.S. Department of Justice, Civil Division, Appellate Staff, Washington, DC; Nicholas P. Llewellyn, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Missouri, Saint Louis, MO; Mark William Pennak, U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, DC.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.


Page 1092

COLLOTON, Circuit Judge.

Dirk Askew is a veteran of the United States Armed Services and a former employee of the United States Postal Service. In February 2009, Askew underwent a cardiac stent placement at the John Cochran Veterans Administration Medical Center in St. Louis. He was readmitted later in the month with an infection, and it is uncontested that the medical center responded negligently. As a result of the infection and attendant loss of blood, Askew suffered severe anoxic brain injury and the amputation of his right leg. Askew and his wife later sued the government in the district court under the Federal Tort Claims Act.

The United States did not dispute liability, and the case was tried to the court on damages. Askew and his wife sought non-economic, economic, and medical damages. One component of the requested award was future medical damages, designed to compensate Askew for medical expenses that he would incur after the judgment. The government requested that the court structure these future medical damages as a reversionary trust by providing for periodic payments from the trust to Askew and a reversionary interest in favor of the United States. Under that approach, any

Page 1093

unspent funds upon Askew's death would revert to the United States.

The district court declined to order a reversionary trust, reasoning that the government had failed to show that it was in the best interests of the injured party. The district court awarded $253,667 in past economic damages, $525,000 in past non-economic damages, $4,000,000 in future economic damages, and $2,000,000 in future non-economic damages to Dirk Askew. The court awarded $1,525,000 to Askew's wife for loss of consortium. The United States appeals, arguing that the district court erred by failing to itemize future medical damages and by refusing to create a reversionary trust for the award of future medical damages. For the reasons that follow, we vacate the judgment and remand for further proceedings.

The Federal Tort Claims Act operates as a limited waiver of sovereign immunity for the United States. Under the Act, the United States may be held liable for certain tort claims " in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674. The " law of the place where the act or omission occurred" determines whether the United States would be liable as a private individual. 28 U.S.C. § 1346(b)(1). In determining how a private party would be treated in " like circumstances," a court may apply the " most reasonable analogy" to the applicable state statute. Lozada ex rel. Lozada v. United States, 974 F.2d 986, 988-89 (8th Cir. 1992); see generally United States v. Olson, 546 U.S. 43, 46-47, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005).

Under the Missouri law that governs a medical negligence action against a private individual in circumstances like those at issue here, a court is required to itemize what portion of future economic damages constitutes " future medical damages." Mo. Rev. Stat. § 538.215.1. Where the total damages award exceeds $100,000, the court, upon the request of any party, " shall include in the judgment a requirement that future damages be paid in whole or in part in periodic or installment payments." Id. § 538.220.2. The court is required to create a " periodic payment schedule" for future medical damages. Id. ยง 538.220.2. If the plaintiff dies, periodic payments of future medical expenses continue " only for as long as ...

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