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Stanley P. Laskowski, Iii; and Marisol Laskowski v. Department of Veteran Affairs

October 24, 2011


The opinion of the court was delivered by: Judge Munley

Before the court are plaintiffs' motions in limine. Having been fully briefed, the matters are ripe for disposition.


This case arises from the alleged deficient treatment Plaintiff Stanley P. Laskowski, III (hereinafter "Mr. Laskowski") received for post traumatic stress disorder (PTSD) at Wilkes-Barre Veterans Affairs Medical Center (WBVAMC) between April 11, 2007 and August 13, 2007. Mr. Laskowski was a member of the United States Marine Corps. While he was a marine, Mr. Laskowski participated in the invasion of Iraq. Upon completing his tour of duty in Iraq, Mr. Laskowski served as an instructor at Paris Island. In early 2007, Mr. Laskowski was honorably discharged and he moved to Northeastern Pennsylvania to raise his young family.

Shortly after his discharge from the Marines, in April 2007, Mr. Laskowski was diagnosed with PTSD. He was treated for this condition at WBVAMC. Plaintiffs allege that WBVAMC provided grossly deficient care from the time Mr. Laskowski first sought treatment on April 11, 2007 until August 13, 2007, when Mr. Laskowski was arrested after breaking into a pharmacy to steal prescription medication. Mr. Laskowski spent 42 days in jail and was later admitted to the Coatsville Veterans Affairs Medical Center PTSD inpatient program. Mr. Laskowski has been rated by the VA as unemployable since August 2007. Plaintiffs seek a total of $10,000,000 in damages, including a $5,000,000 loss of consortium claim for Mr. Laskowski's wife--Plaintiff Marisol Laskowski.

Plaintiffs have filed four motions in limine in anticipation of the pre-trial conference. Defendant, the Department of Veterans Affairs (hereinafter the "government"), opposes all of plaintiffs' motions in limine. Plaintiffs' motions will be discussed in the order they were filed.


Plaintiffs bring this claim pursuant to the Federal Torts Claims Act. We have jurisdiction under 28 U.S.C. § 1331 ("The district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We also have jurisdiction under 28 U.S.C. § 1346(b)(1) ("The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.").


Plaintiffs filed four motions in limine. The first motion seeks to exclude evidence that Mr. Laskowski receives disability benefits from the Department of Veterans Affairs. (Doc. 24). The second motion seeks to preclude the government from introducing evidence it obtained from Mr. Laskowski's therapy sessions after August 13, 2007. (Doc. 25). The third motion seeks to prevent the government from asserting the "felony conviction recovery rule." (Doc. 26). The fourth motion seeks to preclude the government from arguing that the treatment provided to Mr. Laskowski met the applicable standard of care. (Doc. 27). We will address each motion in turn.

A. First Motion in Limine

Plaintiffs' first motion in limine petitions the court to prevent the government from introducing evidence of the monetary benefits Mr. Laskowski received from the Department of Veterans Affairs on the grounds that such evidence is barred by the collateral source rule. (Doc. 24). Under Pennsylvania law, the collateral source rule allows a plaintiff to recover from a defendant as well as another, independent source, such as an insurance policy. See Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995) (citing Beechwoods Flying Serv., Inc. v. Hamilton Contracting Corp., 476 A.2d 350 (Pa. 1984)). The principle behind this rule is clear, "it is better for the wronged plaintiff to receive a potential windfall than for a tortfeasor to be relieved of responsibility for the wrong." Id.

Plaintiffs assert there are two reasons why the collateral source rule prohibits the government from introducing the evidence of the Department of Veterans Affairs disability benefits (hereinafter "VA benefits") to reduce plaintiffs' damages. First, plaintiffs contend that Mr. Laskowski's VA benefits are funded from a separate source and not the general revenues of the United States. The Third Circuit has held that government benefits paid from a separate source, and not from general revenues, are a collateral source. Titchnell v. United States, 681 F.2d 165, 175-76 (3d 1982) (holding that payments to plaintiff by the Medicare program are collateral in a tort suit against the federal government because plaintiff contributed to the Medicare trust fund); Smith v. United States, 587 F.2d 1013, 1016 (3d Cir. 1972) (finding that Social Security was a collateral source under Pennsylvania law because it is a program that is funded by employee contributions). Second, plaintiffs assert that Mr. Laskowski "contributed" to the VA benefits through military service and is entitled to those payments. Plaintiffs support this reasoning by analogizing Mr. Laskowski's situation to that of plaintiffs who were allowed to keep federal sick pay as collateral in a tort suit against the federal government. See Leeper v. United States, 756 F.2d 300, 303-04 (3d Cir. 1985).

Defendants counter plaintiffs' motion by citing longstanding federal precedent finding that VA benefits are not collateral in FTCA lawsuits against the department.

See United States v. Brown, 348 U.S. 110, 111 (1954) (holding that a veteran's "recovery under the Tort Claims Act should be reduced by the amounts paid by the United States as disability payments under the Veterans Act"); Brooks v. United States, 337 U.S. 49, 53 (1949) ("[W]e now see no indication that Congress meant the United States to pay twice for the same injury"); Carter v. United States, 982 F.2d 1141, 1145 (1992) (finding that "[w]hen the VA is both injurer ...

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