NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0295n.06 Nos. 10-5656/5657 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT ROBERT B UMGARDNER; REI TA BU MGARDNER, Plaintiffs-Appellee s, Cross-Appellants,

v. UNI TED STATES OF AMERI CA, Def endant- Appellant, Cross-Appellee

. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: GRI FF I

N and KE THL EDGE, Circuit Judges; THA PAR, District J udg e. *

PER CURI AM. The United States appea ls the district court’s judgme nt rende red in this action filed under the Fe dera l Tort Claims Act (“F TCA”), 28 U.S.C. §§ 2671-2680, and Robert and Reita Bumg ardne r, husband a nd wife a nd Tenne ssee c itiz ens, cr oss-appe al. Robert Bumg ardne r suffe re d a f r a c tu r e in h is spine during his service as a Marine in Vietnam. He suffe red from chronic back pain as a result. Additionally , he was diag nosed as having ankylosing spondylitis , a condition that subjected him to the possibili ty of spinal fra cture s with any trauma. He

was a retire d schoolteac her who rec eived medical treatment from the Veteran s Ad m inistration (“ VA ”) h ospital in Nashville, Tennessee. On Februa ry 14, 2006, Bumg ardne r’s wife t ook him t o

The Honora

ble Amul R

. Thapa

r, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.Nos. 10-5656/5657

Bumgardner v . United States the emer g ency room following a fall. He fea red that he had suffe red a spinal fra cture
. Howeve r, an

x -ra y was taken and compar ed to e arlier x -ra y s in his rec ord, which indicated no new fra cture
. He

was there fore sent home. On Fe bruar y 21, the Bumg ardne rs returne d to the emer g ency room. Mrs. Bumg ardne r repor

ted that Mr. Bumg ardne r had not been eating and was drinking liquids only to take his medication. He was constipated, a nd repor ted pain in his back a

nd abdomen. After an enema

an d a b o we l movement he repor ted fee ling better and was ag ain sent home. On Fe bruar y 28, the Bumg ardne rs ag ain appea red at the emer g ency room. Mr. Bumg ardne r was complaining of back and abdominal pain and constipation. This visit was simil ar to that of a wee k ear lier. When they returne d home, howeve r, the hospital called and asked them to return beca use blood tests indicated that Mr. Bumg ardner was sever ely dehydrate d. On his return, he was g iven fluids and repor ted fee ling be tter. He was told that there wer e no beds at the hospital, but that he could be tra nsfer red to a differ ent hospital if he did not fee l he could g o home, althoug h there was no appar ent need for h o s p it a li za

ti o n . M r . Bumg ardne r declined hospitaliz ation. The following morning , Mr. Bu mg a r d n e r fell ag ain, hear d a popping sound in his back, and suffe red para ly sis of his lower extremiti es, which continues to this day

. T h e Bumga

rdner s filed an administrative claim ag ainst the g overnme nt alleg ing that the t re atm ent Mr. Bumg ardne r rec eived at the VA hospital in Nashville in Fe bruar y 2006 cau s ed h i s para ly sis. When no response was forthcoming from their claim, the Bumg ardne rs filed this a ction in the district court re asser ting their claims and see king twe nty milli on dollars in damag es for Mr. Bumg ardne r and five milli on dollars for loss of consortium. Specifica lly , the Bumg ardne rs’ theory

was that Mr. Bumg ardne r suffe red a non-displace d, or occult, fra cture from his fall on Fe bruar y 14 that defe ndant failed to diagnose. That fra cture worsene d until the Marc h 1 fall that cause d his -2-Nos. 10-5656/5657

Bumgardner v . United States para ly sis. Alternatively , the Bumg ardne rs argued that he should have b ee n h o s p i t alized on Fe bruar y 28, which would have avoided the disa strous fall the next day that para ly

zed him. The district court denied defe ndant’s motions to dismiss and for summary judgme nt, and the matter proce eded to an eig ht-day bench trial at which both sides prese nted expert testimony reg arding the cause of Mr. Bumg ardne r’s para l y s i s an d t he standard of car e of the VA hospital phy sicians. The district court found that the defe nse expert s we re persua sive in arguing that Mr. Bumg ardne r did not suffe r a non-displace d fra cture on Fe bruar y 14. Although the distri ct court found that Mr. Bumg ardne r should have rec eived a neurolog ical consultation at his last emer g ency

room visit on Fe bruar

y 28, the court also noted that defe ndant was not at fault for not hospitaliz ing Mr. Bumg ardne r beca

use he re fused the of

fer of hospitalization. The district court conclude d that Mr. Bumg ardne r’s para ly sis was not cause d b y t h e ac t ions of the VA hospital phy sicians in Nashville. Howe ver, the district court we nt on to find that, after Mr. Bumga rdner was tra nsfer red t o a VA hospital in Memphis, the s taff there breac hed the duty of care and caused hi m to s u ff er a stag e four bedsore , for whic h the cour t awar ded him $300,000 in damag es. The United States appea ls, arguing that the district court lacke d jurisdiction over any claim ag ainst the Memphis VA hospital beca use the Bumg ardne rs did not file an administrative cl aim reg arding the car e rec eived there and, alternatively , prese nted no expert testimony that the standard of car e was brea ched at that fac ility

. The Bumg ardne rs cross appea l, rea sserting their claims that Mr. Bumg ardne r’s para ly sis was cause d by an undiagnosed non-displace d fra cture on Fe bruar y 14 that

worsene d until Marc h 1, resulting in a fall causing a complete fra cture , o r al ternatively , that the failure to hospitaliz e Mr. Bumg ardne r on Fe bruar y 28 resulted in t he Marc h 1 fall and resultant para ly sis. The Bumg ardne rs respond to the g overnme nt’s appea l by asser ting that this court should -3-Nos. 10-5656/5657

Bumgardner v . United States

rema nd the case i n order for them to submit proof of the liability of the Memphis VA hospital for Mr. B umga

rdner ’s bedsore

. Prior to filing a complaint under the FTCA, a plaintiff must exhaust administrative reme dies. See 28 U.S.C. § 2675(a)

. This exhausti on require ment is jurisdictional. Joelson v

. United St ates , 86 F.3d 1413, 1422 (6th Cir. 1996). In this case , plaintiffs’ administrative claim related solely to the treatment Mr. Bumg ardne r rec eived in Nashville in Fe bruar y 2006. No mention of the bed sore he later suffe red in Memphis was found in the claim, or in the complaint filed i n t h e district court. Def endant filed a motion in limine to exclude evidenc e reg arding the bedso re. The district court denied the motion beca

use t he evidence was relevant to the i ssue of damag es i n the event that the defe ndant was f

ound liable for c ausing Mr. B umga rdner ’s par aly sis. In a simil ar case , the First Circuit found that an administrative claim limit ed to treatment rende red in 1996 did not put the defe ndant on notice of a claim from an ear lier y ear . Ramirez-Carlo

v. United States , 496 F.3d 41, 47 (1st Cir. 2007). Def endant’ s argument that the district court lacke d jurisdiction to awa

rd damag es for the bedsore Mr. Bumg ardne r suffe red in Memphis is persua sive. There fore , the awa

rd of $300,000 must be vaca ted for lack of jurisdiction, an d t h e Bumg ardne rs’ reque st that the matter be rema nded to allow them to prese nt proof of liability on this claim must be reje cted. The district c ourt’s fac tual finding s on the Bumg ardne rs’ exhausted claim are revie wed for clea r err or; under this standard, if the district court’s finding s are plausible, we may not reve rse even if we would have weig hed the evidenc e differ ently

. See Harlamert v. W orld Finer Foods, Inc. , 489 F.3d 767, 771 (6th Cir. 2007)

. Where the district c ourt’s decision is ba sed on cre diting witnesses’ plausible testimony , it can virtually never be cl ear err or. See Madden v. Chattanooga City W ide -4-Nos. 10-5656/5657

Bumgardner v . United States Serv. D ep’t , 549 F.3d 666, 674 ( 6th Cir. 2008). Here , the def ense e x perts’ te stimony

supports the district court’s finding that Mr. Bumga rdner did not suffe r a fra ctu re i n h i s Fe b ruary 14 fall. The Bumg ardne rs’ alternative theory that Mr. B umga rdner should have be en hospitalized on Fe bruar y 28 was properly reje cted by the di strict court because Mr. Bumga rdner chose to re turn home after

rec eiving fluids for his dehydration. Moreove r, plaintiffs wer e require d to introduc e evidenc e that it was more likely than not that the conduct of t he defenda nt wa s the cause of their damag es. See Miller v. Choo Choo Partners, L.P. , 73 S.W .3d 8 97, 901-02 (Tenn. Ct. App. 2001). The mere possibili ty that Mr. Bumg ardne r might not have fallen and suffe red the cata strophic fra cture if he had been hospitalized is not enoug h. See id. Acc ording ly , we aff

irm the district court’s judgme nt ex ce p t i n s ofar as it awa rded the Bumg ardne rs $300,000 in damag es. We vacate the district court’s judgme nt in part and rema nd for entry of an a mended judg ment not inconsistent with thi s opinion.

-5-