Free Memorandum of Contentions of Fact and Law - District Court of Federal Claims - federal

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 1 of 15

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (E-Filed February 22, 2008) LAVETTA ELK, Plaintiff,
V°

THE UNITED STATES OF AMERICA, Defendant.

) ) ) ) ) ) ) ) ) )

No. 05-186L Judge Francis M. Allegra

DEFENDANT'S MEMORANDUM OF CONTENTIONS OF FACT AND LAW DATED: February 22, 2008 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division

STEVEN D. BRYANT SARA E. COSTELLO Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (phone) (202) 305-0267 (fax) [email protected] Of Counsel: Major Lanny Acosta U.S. Army Litigation Division Sharon Pudwill Department of Interior

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 2 of 15

TABLE OF CONTENTS
Io

Defendant's Contentions of Fact ................. 2

H. m. IV. V.

Procedural History ..................................................... 4

Defendant's Contentions of Law ......................................... 5 Plaintiff is Not Entitled to the Compensation 6 She Seeks Conclusion ........................................................... 11

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 3 of 15

TABLE OF AUTHORITIES CASES

Cosmo Const. Co. v. United States, 6 196 Ct. C1. 463 (Ct. C1. 1971) ...................

Doe v. City of Waterbury, 5 453 F. Supp. 2d 537 (D. Conn. 2006 ) ...............

Elk v. United States, 4, 5 70 Fed. C1. 405 (Fed. C1. 2006) ...................

Fernandez v. Standard Fire Ins. Co., 5 44 Conn. App. 220, 688 A.2d 349 (1997) ..............

Glenn v. Copeland, 5 2006 WL 1662921 *2 (N.D. Fla. 2006) ................

Jennings v. Rivers, 5 394 F.3d 850 (10th Cir. 2005) ..................

Martinmaas v. Engelmann, 5 612 N.W. 2d. 600 (S.D. 2000) ....................

Mitchell v. United States, 229 Ct. C1. 1,664 F.2d 265 (1981) (en banc), af__f_~__d__~, United States v. 6 463 U.S. 206 (1983) ................................................... Puritan Associates v. United States, 6-8, 10, 11 215 Ct. C1. 976 (1977) ............................................

STATUTES Article I, Treaty with the Sioux of April 29, 1868, 5 15 Stat.

Uniform Code of Military Justice ("UCMJ") 4 10U.S.C. § 815 ........................................................ 4 10 U.S.C. § 934 .......................................................

ii

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 4 of 15

IN THE UNITED STATES COURT OF FEDERAL CLAIMS (E-Filed February 22, 2008) )

LAVETTA ELK,

)
Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. ) ) ) No. 05-186L Judge Francis M. Allegra

)
)

)
)

)
DEFENDANT'S MEMORANDUM OF CONTENTIONS OF FACT AND LAW

On January 25, 2008, Plaintiff Lavetta Elk ("Plaintiff') filed her

Contentions of Fact and Law. Pursuant to RCFC, Appendix A, ¶ 14(b), Defen

States of America ("Defendant"), hereby submits its responsive pretrial Contentions of Fact and Law.

In this case, Plaintiff brings suit against Defendant for compensat

Men" clause of the Treaty with the Sioux of April 29, 1868. Specificall

she was sexually assaulted, on January 7, 2003, by Joseph P. Kopf, United

Sergeant ("Sergeant"). Plaintiff seeks damages in the amount of $100,000

emotional and psychological injuries allegedly sustained as a direct an

incident, plus attorneys fees and costs, Defendant, however, submits th

that she is entitled to damages in the amount of $!00,000,000.00. At tri

evidence will show that Plaintiff clearly is not entitled to the plainl seeks.

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 5 of 15

I.

Defendant's Contentions of Fact

Plaintiff is a member of the Oglala Sioux Tribe. Def.'s Answer, ¶

interested in joining the United States Army; and, in 2002, Plaintiff w Army by the Sergeant. Deposition of Lavetta Elk, 19 (Attach. as Ex. 1);

January 7, 2003, the Sergeant made a visit to Plaintiff's home. ld. at ¶

entered a government vehicle, driven by the Sergeant, and departed with h Plaintiff alleges that they turned off the main road and parked behind Lavetta Elk, 53.

In her deposition, Plaintiff described the Sergeant's romantic over

According to Plaintiff, the Sergeant stated that he wanted a chance to ta

noticed that she had been sad recently and that "he wanted to know what h

make it better." ld. at 54. Plaintiff further alleges that the Sergea

him ... that Plaintiff was the only one that understood him and ... mad stated that the Sergeant said he wanted to take care of her and make her

Plaintiff alleges that the Sergeant then put his arm around her an

According to Plaintiff, she told him to stop and pushed him away, and the

"come on, I thought you liked me." ld. Plaintiff further alleges that a

proceeded to touch her breasts under her shirt and sweater, and rub his ha

the outside of her pants. Id. at 55; Def.'s Answer, ¶ 12. According to P

acquiesced to Plaintiff's protestations when she started crying, and mov

seat. Plaintiff did not suffer any bruises, red marks, or scratches. De 57-58.

2

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 6 of 15

Plaintiff stated that the Sergeant then said "he thought it was wh Id. at 61-62. Plaintiff explained that "what he was doing was wrong."

to Plaintiff, the Sergeant asked "how it was wrong." Id. at 57. Plainti

wrong because he was my [Army] recruiter, because he was married, and he h

According to Plaintiff, the Sergeant responded that it did not matter be through a divorce. Id.

Plaintiff stated that she wanted to go home, and the Sergeant began

57, 59. According to Plaintiff, she indicated that she needed to go to th Sergeant stopped at a convenience store. Id. at 59. Plaintiff alleges that

Sergeant to leave her at the convenience store because she "didn't have a

didn't know what to do." Id. at 61. Plaintiff and the Sergeant then retu PlaintifFs request, the Sergeant drove Plaintiff to her cousin's house, away. Id.

After arriving at her cousin's house, Plaintiff reported the assaul Affairs police. Pl.'s Mem. of Contentions of Fact and Law, 2, see also

Ex. 2). In speaking with the Bureau of Indian Affairs Special Agent, Pl

assault involved forcible intercourse rape; rather, she reported that the

her and touch her through her clothing. DEF 91. During the interview, P

Id. She reported no injuries to the Bureau of Indian Affairs police. DEF

that the Sergeant made no threats of harm during the assault. DEF 94. In

PlaintifFs clothes were tom during the assault. Deposition of Lavetta E

no red marks, bruises, or scratches on PlaintifFs body. /d. Further, the

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 7 of 15

no physical marks on Plaintiff's body at all. /d. at 57-58.

On August 8, 2003, in nonjudicial criminal proceedings, conducted pu

Uniform Code of Military Justice ("UCMJ") (10 U.S.C. § 815), United State

Colonel William Rosten found beyond a reasonable doubt that the Sergeant

Plaintiff on January 7, 2003, in violation of Art. 134, UCMJ (10 U.S.C. §

and touching her breasts against her will. Def.'s Answer, ¶ 12. As a re

Sergeant was punished with a reduction in rank from Staff Sergeant to Se

military pay. Id. at ¶ 2. Defendant does not concede liability in this will not contest the findings arising from these nonjudicial criminal II. Procedural History On February 3, 2005, Plaintiff filed suit against the United States the "Bad Men" clause of the Treaty with the Sioux of April 29, 1868. See

Compl. Plaintiff's Complaint sought damages in the amount of $100,000,00

emotional and psychological injuries allegedly sustained as a direct and assault, plus attorneys fees and costs. Id.

On April 19, 2005, Defendant filed a Motion to Dismiss asserting th

fully exhaust her administrative remedies before filing her Complaint. O

Court denied this motion finding that the "Bad Men" clause did not requ administrative remedies. Elk v. United States, 70 Fed. C1. 405, 411-12

Court further held that even if exhaustion of administrative remedies we

effectively met her burden, given the fact that the Army denied her Fede

claim, the Department of Justice elected not to prosecute the Army Sergea

4

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 8 of 15

of the Interior failed to act on the claim under the Treaty. Id. at 411

After the Court ruled on its Motion to Dismiss, Defendant filed its

17, 2006. The parties have completed discovery. On October 25, 2007, the

trial shall commence on April 28, 2008 in Rapid City, South Dakota. On J Plaintiff filed her Memorandum of Contentions of Fact and Law, Exhibit

In conjunction with this Memorandum, Defendant files its Exhibit list, in Limine. III. Defendant's Contentions of Law

The parties agree that the "Bad Men" clause provides, in relevant p

If bad men among the whites, or among other people subject to the a the Untied States, shall commit any wrong upon the person or proper Indians, the United States will, upon proof made to the agent and f Commissioner of Indian Affairs at Washington city, proceed at once offender to be arrested and punished according to the laws of the Un and also reimburse the injured person for the loss sustained. Article I, Treaty with the Sioux of April 29, 1868, 15 Stat. 635. The elements of the intentional tort of sexual assault, are: (1)

contact with a person; (2) intended to cause the person such contact; and

act. Doe v. City of Waterbury, 453 F. Supp. 2d 537 (D. Conn. 2006 ); see al

Standard Fire Ins. Co., 44 Conn. App. 220, 224, 688 A.2d 349 (1997); Marti Engelmann, 612 N.W. 2d. 600, 618 (S.D. 2000) (Amundson, J., dissenting)

intentional tort of sexual assault). "It is axiomatic that a plaintif

evidence in support of her damages claim." Jennings v. Rivers, 394 F.3d

2005) (discussing damages claim in sexual assault action); Glenn v. C

1662921 *2 (N.D. Fla. 2006) ("The burden rests upon Plaintiff to provide 5

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 9 of 15

his claims of longterm physical and medical damages.").

Here, Plaintiff's claim is founded on the "Bad Men" clause set fort

the Sioux of April 29, 1868. As noted above, the Treaty provides that rei

made for the "loss sustained" by the injured person. Accordingly, absen

the damages for the loss, there can be no recovery. Cosmo Const. Co. v. U C1. 463 (Ct. C1. 1971) ("[T]here must be some evidence of damage to support

liability.") (emphasis in original); Puritan Associates v. United Stat (1977) (the "plaintiff as part of its proof of entitlement, must show it extent").1 IV. Plaintiff is Not Entitled to the Compensation She Seeks

As noted above, Plaintiff seeks damages in the amount of $100,000,000

emotional and psychological injuries allegedly sustained as a direct and incidents, plus attorneys fees and costs. The evidence before the Court, Plaintiff is not entitled to the extensive damages she seeks.

In conjunction with the instant action, Plaintiff was examined by D

M.D, a board certified forensic psychiatrist. A review of Dr. Mills' c

that he has extensive psychiatric experience. See Def.'s Expert Report of

Defendant notes that even in a breach of trust action, Mitchell v. U of Claims held that the types of damages permitted for a breach of a fidu include damages that are not a direct result of the alleged breach. 229 Ct 273-74 (1981) (en banc), aff'd by, United States v. Mitchell, 463 U.S. 2 added). Accordingly, the Court of Claims excluded entitlement for "other compensation: indirect or consequential business, economic, or personal d loss (total or partial) of their property, or personal, psychological, or the Indian owners or the tribe as a consequence of federal mismanagement Id. (emphasis added). 6

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 10 of 15

3). Dr. Mills served as chief of psychiatry for the largest psychiatric Def.'s Expert Report of Mills, 2. Prior to holding that position, Dr.

psychiatric evaluation for a large Veteran's Administration hospital a Mental Health for the Commonwealth of Massachusetts. Id. Since becoming psychiatrist, Dr. Mills has consulted on several dozen cases of claimed

on behalf of various plaintiffs and defendants. Id. Along with his w

psychiatrist, Dr. Mills also is a professor of clinical psychiatry at C

adjunct professor at New York Medical College, St. Vincent's Hospital. D

Mills. Accordingly, he is well qualified to offer testimony in this ca Dr. Mills' testimony will confirm that Plaintiff is not entitled

requests. Dr. Mills will explain that Plaintiff"appears to be a manip

witness." De£'s Expert Report of Mills, 3. Dr. Mills' conclusion is ba

of two psychological tests which he administered to Plaintiff.2 Plainti revealed "a pattern of exaggeration, manipulativeness and an inaccurate

herself as the victim of traumatic stress." Id. at 4. Dr. Mills obse

evident in her interviews, depositions, medical records, and psychologi

in assessing [Plaintiff's] credibility in her lawsuit." Def.'s Rebutta

Dr. Mills will demonstrate that Plaintiff "consistently minimizes or f

important stressors during the period in question and focuses almost ex

with [the Sergeant]." Def.'s Expert Report of Mills, 3. During this t experienced the death of several grandparents, disappointment about not

2 Specifically, Dr. Mills utilized the Minnesota Multiphasic Per Edition and the Personality Assessment Inventory. 7

li

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 11 of 15

Army, chronic difficulties in finding employment, emotional strains ass live with her parents, concerns about sexually transmitted diseases, and

Id. at 5-6. Dr. Mills will further explain that Plaintiff"had a histo depression prior to January 7, 2003, that was largely untreated." Def.'s

also DEF 662 (Attach. as Ex. 5) (admitting that Plaintiff sought profess

psychological assistance for depression on or about April 2002); DEF 691 (

(Prior to January 6, 2003, "I was diagnosed with depression."). Such find Plaintiff's request for extensive damages is unreasonable.

In addition, Dr. Mary D. Stephenson, MD, MSc, FACOG, examined Plainti

"she had repeated miscarriages because of ongoing stress, resulting from

the [Sergeant] on January 7, 2003." Def.'s Expert Report of Stephenson (A

Deposition of Lavetta Elk, 96-98. Dr. Stephenson, Director of the Recurre

Program at the University of Chicago, has extensive experience in the are

miscarriages. Def.'s Expert Report of Stephenson, 2. Dr. Stephenson curre

Professor of Obstetrics and Gynecology, in the Section of Reproductive En

Infertility, at the University of Chicago. Id. Previously, Dr. Ste

Pregnancy Loss Program at the British Columbia's Women's Hospital & Healt

Vancouver, Canada. Id. She also is the Principal Investigator, working wit throughout North America, on a randomized controlled trial investigating miscarriage. Id. Presently, Dr. Stephenson consults with approximately

for recurrent pregnancy loss on a yearly basis. /d. Consequently, she is offer testimony in this case.

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 12 of 15

Dr. Stephenson reviewed Plaintiff's medical records from "Aurora Med

Kenosha from September 21, 2005 to February 17, 2006 and various medical re

November 4, 1987 to August 2, 2006, which include, but are not limited to

Clinic Encounter, Pine Ridge Hospital and PCC Mental Health/Social Servi

Expert Report of Stephenson, 3. Based upon review her review of Plaintif

Dr. Stephenson will show that "[t]here is no statement in the medical re

care professional that her miscarriages were due to stress." Id. at 4. F Stephenson will explain that Plaintiff's miscarriages were most likely

random chromosome error.3 Id. at 3, 4. Accordingly, Plaintiff cannot use this her claim for damages.

Moreover, Plaintiff's estimation of her damages is speculative and

Memorandum of Contentions of Fact and Law includes no factual contention

calculated or estimated the figure of $100,000,000.00. In addition, it p

how Plaintiff intends to prove that she is entitled to such a sum. Inste contains only the assertions that Plaintiff "has suffered and continues

anxiety, depression, shame, humiliation, the inability to lead a normal

psychological and emotional trauma" and that her "injuries are persisten debilitating in nature." Pl.'s Mem. of Contentions of Fact and Law, 3.

Likewise, Plaintiffhas not been able to identify any expenses assoc

Deposition of Lavetta Elk, 81-82. She did not expend any funds on medica

3 Plaintiff stated that she miscarried five times before the birth of Deposition of Lavetta Elk, 96. Dr. Stephenson, however, found that Plain two miscarriages. Def.'s Expert Report of Stephenson, 3.

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 13 of 15

psychological counseling, or medications as a result of this incident.

Plaintiffs lack of expenses for any sort of treatment, the evidence wil

adequately attempted to mitigate her psychological harm or injury. A re

medical records show that she was encouraged to pursue psychological coun

Plaintiff, however, made little attempt to receive such treatment.4 In he

also explained that she declined to take the medications prescribed to he and insomnia. Id. at 70.

Furthermore, it is apparent that Plaintiff has experienced a number

events which have affected her psychologically. As noted above, Plaintif

suffered five miscarriages in less than four years. Deposition of Lavet

deposition, Plaintiff acknowledged that the miscarriages caused her to f

94. In addition, both of Plaintiff's parents emphasized the many challe

living on the Pine Ridge reservation. Deposition of Emerson Elk, 16-17 (A Deposition of Jerilyn Elk 12-13 (Attach. as Ex. 9). Indeed, high levels alcoholism, and suicide are present at Pine Ridge.

In addition, Plaintiff's expert, Dr. Stephen P. Manlove, M.D. provid her extensive claim for damages. In his report, Dr. Manlove stated that

Plaintiff has "Posttraumatic Stress Disorder, Chronic as a result of the

Dr. Mills will testify that Dr. Manlove "takes some of [Plaintiff's] st

when they are evidently inaccurate." Rebuttal Report, 1. Dr. Mills will

4 Following January 7, 2003, Plaintiff made a limited number of visits and Pine Ridge Mental Health for treatment. DEF 519. For three or four mo participated in a women's group at Changleska, Inc. Id. In addition, she a minister and medicine man. Id. 10

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 14 of 15

Manlove's evaluation fails to acknowledge that Plaintiff requested medic

depressive disorder before the assault. Id. Dr. Mills will also explain

forensically, take into account the significant losses in Plaintiff's l following the incident with the [Sergeant]; nor does he acknowledge the exaggeration." Id. at 2.

Finally, it is also important to note that the evidence will demons

achieved a number of positive milestones in the past few years. For exam

show that Plaintiff graduated from the Milwaukee Career College. Depositi

84. She received the necessary training to work as a Certified Nursing As During this time, Plaintiff also got married and had a son. Id. at 89.

stated that her son brought her great happiness. Id. at 92. Plaintiff furth

relationship with her parents has grown closer in the past few years. /d

during this period, Plaintiff stopped drinking alcohol. /d. at 92-93. T

made these positive strides in spite of the assault also weighs against h unreasonably excessive damages. V. Conclusion

Plaintiff bears the burden of demonstrating that she is entitled to

$100,000,000.00 for alleged emotional and psychological injuries allegedl

and proximate result of the assault, plus attorneys fees and costs. For t

as well as based on the evidence to be presented at trial, Defendant resp

Court find that Plaintiff is not entitled to the extensive damages she s

11

Case 1:05-cv-00186-FMA

Document 54

Filed 02/22/2008

Page 15 of 15

DATED: February 22, 2008 Respectfully submitted, RONALD J. TENPAS Assistant Attorney General Environment and Natural Resources Division

s/Steven D. Bryant STEVEN D. BRYANT SARA E. COSTELLO Natural Resources Section Environment & Natural Resources Division United States Department of Justice P.O. Box 663 Washington, D.C. 20044-0663 (202) 305-0424 (phone) (202) 305-0267 (fax) [email protected]

Of Counsel: Major Lanny Acosta U.S. Army Litigation Division 901 N. Stuart Street 4th Floor Arlington, VA 22202 Sharon Pudwill Department of Interior Office of the Field Solicitor Bishop Henry Whipple Federal Bldg. 1 Federal Drive, Room 686 Twin Cities, MN 55111

12