White et al v. United States of America
MEMORANDUM OF OPINION AND ORDER: For the foregoing reasons, the court hereby ORDERS that judgment be entered in favor of the plaintiffs, Vernie White, Roland White Sr., Rolynn White, and Rolland White Jr., against the defendant, United States of Ame rica. The court further ORDERS that the plaintiffs areAWARDED judgment in the following amounts: (1) Vernie White is awarded $30,000 in damages; (2) Roland White Sr. is awarded $30,000 in damages; (3) Rolynn White is awarded $2,500,000 in damages, including past medical bills and the cost of future medical care; and (4) Roland White Jr. is awarded $225,000, in damages, including past medical bills, for a total judgment of $2,785,000. (See document for further details). Signed by Judge Joseph R Goodwin on 7/5/12. (LAD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
VERNIE WHITE, et al.,
UNITED STATES OF AMERICA,
MEMORANDUM OPINION AND ORDER
On January 17, 2012, the court conducted a bench trial in this action. On March 5, 2012,
the United States submitted its Proposed Findings of Fact [Docket 115]. On March 15, 2012, the
plaintiff submitted its Proposed Findings of Fact and Conclusions of Law [Docket 116]. Having
considered the pleadings, the testimony of witnesses, the documents in evidence, and the
supplemental post-trial memoranda, the court makes its Findings of Fact and Conclusions of Law
in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.
FINDINGS OF FACT
The following discussion represents the court’s findings of fact as to liability. Each
finding is made by a preponderance of the evidence.
A. The Accident
This case arises out of injuries the minor plaintiffs, Rolynn White and Roland White Jr.,
sustained in a school bus accident on May 19, 2009. The plaintiffs allege that the accident
occurred as a result of the negligence of the bus driver, Glenn Thomas Tate.
The parties stipulate that the Cibecue Community Education Board retained Glenn Thomas
Tate to drive a school bus for Cibecue Community School (“CCS”), and that he was in fact driving
the school bus when it was involved in a single vehicle accident on May 19, 2009. (Proposed
Findings of Fact of the United States [Docket 115].) I FIND that at the time of the accident, the
school bus was traveling northbound on State Route 73 near milepost 328.9. (Arizona Traffic
Accident Report, Pl.’s Ex. 24.) I FIND that the bus drifted to the right and exited the roadway.
(Id.) I FIND that the bus then travelled down an embankment, striking two large tree branches
and a large steel culvert. (Id.) I FIND that the bus then vaulted a small wash and came to rest
with the front end against a large tree. (Id.)
I FIND that at the time of the accident, nine
students and Tate were on board the bus, including Roland White Jr. and Rolynn White. (Id.)
Following the accident, Tate was interviewed inside a WMAT ambulance. (Id.) When asked
what caused the collision, Tate stated that he blacked out while he was driving. (Arizona Traffic
Accident Report, Pl.’s Ex. 24.)
I FIND that when the accident occurred, Rolynn White was sleeping and listening to music
on the bus on her way home from school at CCS. (Trial Tr. 103:8-108:2.) I FIND that the bus
did not have seat belts. (Id.) Rolynn testified that she was awakened when she felt the ride
become bumpy. (Id.) She grabbed a hold of the seat and felt herself fly forward. (Id.) The
next thing she remembers is waking up on the floor of the bus to stabbing pains, which were 10 out
of 10 on a pain scale. (Id.) After that, she remembers being in the hospital in Phoenix. (Id.)
Roland White also testified that he was sleeping at the time of the accident and woke up
when the bus exited the roadway. (Trial Tr. 78:20-84:21.) His last memory of the accident is
when the bus hit the tree. (Id.) He testified that he woke up in the local hospital, with his jaw and
hip in the worst pain he could imagine. (Id.)
B. Violation of Arizona Traffic Statutes
Accident Reconstructionist Patrick DeJonghe testified regarding the dynamics of the bus
(Trial Tr. 59:21-61:14.)
DeJonghe was tendered as an expert in accident
reconstruction. (Trial Tr. 58:15-59:17). Defense counsel questioned DeJonghe regarding his
qualifications, and made no objection to his admission as an expert in the field of accident
reconstruction. (Trial Tr. 58:11-59:17.) DeJonghe testified that the accident occurred on a
two-lane roadway. The road at the location of the accident is “extremely straight.” (Trial Tr.
59:23-24.) DeJonghe testified that the accident occurred when the bus “simply veered off of the
roadway at a very slight angle in the neighborhood of about four degrees.” (Trial Tr. 59:25-60:5.)
The bus then “got off into the serious decline of the roadway in which it went faster.” (Id.)
Finally, the bus “struck culverts and a tree and came to a stop.” (Id.)
DeJonghe testified that following the accident, the school bus was inspected and found to
be mechanically sound. (Trial Tr. 60: 6-7.) Additionally, DeJonghe testified that the roadway
was in excellent condition at the time of the accident. (Trial Tr. 60:8-10.) Specifically, he
testified the roadway had no flaws, no ruts or holes, and was well painted. (Id.) Based on
DeJonghe’s testimony and the accident report entered into evidence, the court FINDS that the
school bus was mechanically sound at the time of the accident. The court FINDS that the
roadway was in good or better condition at the time the accident occurred. Additionally, the court
FINDS that no evidence has been presented to suggest that the accident was the result of
mechanical malfunction or road conditions.
DeJonghe testified that veering off the roadway and into a tree is a violation of two Arizona
safety standards. (Trial Tr. 60:11-18.) First, it is a violation of A.R.S. § 28-701, which requires
a driver to control the speed of his vehicle and not strike objects adjacent to the roadway. (Id.)
Second, it is a violation of § 28-729, which prohibits a driver from changing lanes or moving out of
a lane until the movement can be made safely. (Id.) Based on the violation of these statutes,
DeJonghe opined that the driver of the school bus involved in this accident was negligent. (Trial
DeJonghe also testified regarding the Federal Motor Carrier Safety regulations and the
rules adopted by the State of Arizona at R-17, Chapter 9. (Trial Tr. 60:24-61:14.) Specifically,
DeJonghe stated that these regulations prohibit a person who is ill, sick, or fatigued from operating
a commercial motor vehicle. (Id.) He stated that, in his opinion, a driver whose medical records
include a history of vomiting, headaches, dizziness, and possible fainting would be violating
regulations including 49 CFR § 392.3 by driving a school bus. (Id.)
FINDINGS CONCERNING EVIDENCE AND WITNESS CREDIBILITY
The following witnesses provided uncontroverted testimony for the plaintiffs at trial. The
defendant did not present any witnesses.
A. Vernie White
Vernie White is the mother of Roland Jr. and Rolynn White. She is also a plaintiff in this
case. Ms. White testified regarding her knowledge of the events that occurred on May 19, 2009.
She also testified regarding the impact of Rolynn and Roland Jr.’s injuries on their daily activities
and on their family. The court credits Ms. White’s testimony as it relates to these events and has
relied on it both for background information and to place exhibits in context. I FIND that Ms.
White appeared sincere and forthright, and her testimony was not contradicted in the record.
B. Dr. Martha Miller
Dr. Martha Miller is a board-certified diplomat in internal medicine. (Trial Tr. 48:7-12,
49:4-11.) The parties stipulated to Dr. Miller’s expertise in general and internal medicine. (Trial
Tr. 49:17-50:2.) Dr. Miller testified regarding Glenn Thomas Tate’s medical records. I FIND
that Dr. Miller appeared knowledgeable and forthright, and her testimony was not contradicted in
the record. The court credits her testimony and has relied on it both for background information
and to place exhibits in context.
C. Patrick DeJonghe
Patrick DeJonghe testified regarding the dynamics of the bus accident.
59:21-61:14.) DeJonghe is an accident reconstructionist. He was tendered as an expert in
(Trial Tr. 58:15-59:17).
Defense counsel questioned DeJonghe
regarding his qualifications, and made no objection to his admission as an expert in the field of
accident reconstruction. (Trial Tr. 58:11-59:17.)
I FIND that Mr. DeJonghe appeared knowledgeable, candid, and truthful. The court
credits Mr. DeJonghe’s testimony regarding the dynamics of the accident and has relied on it for
background and to place exhibits in context.
The court does not credit Mr. DeJonghe’s statement regarding whether Mr. Tate was
supervised by CCS. When asked, “[I]s it your conclusion or among your conclusions that Mr.
Tate was not closely supervised by the—his employers at Cibecue Community School?”,
DeJonghe replied “Correct.” The defendant has offered this statement as evidence that Mr. Tate
was an independent contractor rather than an employee. However, DeJonghe’s statement was
made in the context of discussing the circumstances that led up to the bus accident itself. The
court does not understand this statement to relate in any way to the employment relationship
between Tate and CCS. DeJonghe was hired to investigate the bus accident and has no expert
knowledge of Tate’s employment status. For these reasons, the court FINDS that DeJonghe’s
statement has little probative value.
CONCLUSIONS OF LAW
A. Subject Matter Jurisdiction
For the reasons discussed below, the court FINDS that it has subject matter jurisdiction
over this matter pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b),
2671-80. The FTCA is the exclusive legal remedy for claims against the United States for
damages based on “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.”
The parties stipulate that Cibecue Community School (“CCS”) is a grant school pursuant to
the Tribally Controlled Schools Act, P.L. 101-512, codified at 25 U.S.C. § 450f, Historical and
Statutory Notes. (Proposed Final Pretrial Order [Docket 84], at 3.) The parties further stipulate
that persons found to be employees of Cibecue Community Education Board, Inc., and whose
services are paid for with federal grant monies are federal employees for purposes of the Federal
Tort Claims Act. (Id.)
I FIND that CCS is a K-12 school that was originally operated as a Bureau of Indian
Affairs School, but is now operated as a grant school funded from the Bureau. (Santiago Dep.,
58:19-60:4.) The school serves approximately 500 students. (Id.) CCS provides transportation
for children to and from school by operating school buses on a daily basis. (Pls.’ Ex. 49, CCS’
Student Transportation Policy; Dep. Ervin Quay, 122:10-19.) I FIND that CCS’ transportation
costs are funded through a federal grant from the Bureau of Indian Affairs. (Pls. Ex. 46, Tribally
Controlled School Grant Conditions; Dep. Santiago, 58:19-60:4, 88:15-20.)
a. Relationship between Glenn Thomas Tate and CCS
As set forth below, the court FINDS that Glenn Thomas Tate was an employee of CCS for
purposes of the FTCA.
As an initial matter, the United States admitted in its Answer to the Amended Complaint
that Tate was an employee of CCS. (Answer [Docket 12], a 2-3 (“Defendant admits that the bus
was driven by Glenn Thomas Tate, an employee of Cibecue Community School.”).) This answer
was filed on October 26, 2010. The United States maintained its position on Tate’s status as an
employee of CCS for nearly a year, and well past the Scheduling Order’s deadline for amending
the pleadings in this case. On November 10, 2011, over a year after the answer was filed and
eight months after the deadline to amend its pleadings under the Scheduling Order, the defendant
inexplicably changed its position on the issue of Tate’s status as an employee and filed a motion
for leave to amend its Answer. The defendant provided the court with no explanation for its
sudden change of position and did not offer any evidence to show that it had been diligent in
attempting to comply with the amendment deadline in the Scheduling Order. Because the
defendant failed to demonstrate good cause to amend the scheduling order, its motion to amend its
Answer was denied. Therefore, the court CONCLUDES that the defendant has made a valid
admission that Tate was an employee of CCS.
Even if the defendant had not admitted that Tate was an employee of CCS, the court
FINDS that a preponderance of the evidence establishes that Tate was an employee of CCS.
Whether an individual is a federal employee for purposes of the FTCA is a question of
federal law. Autery v. United States, 424 F.3d 944, 957 (2005). Common law agency principles
are also instructive. Id. “The critical test for distinguishing an agent from a contractor is the
existence of federal authority to control and supervise the ‘detailed physical performance’ and
‘day-to-day operations’ of the contractor, and not whether the agent must comply with federal
standards and regulations.” Ducey v. United States, 713 F.2d 504, 516 (9th Cir. 1983) (citing
United States v. Orleans, 425 U.S. 807, 814–15 (1976)).
The Ninth Circuit has applied the factors from the Restatement (Second) of Agency to
determine whether an individual is an employee or an independent contractor. These factors
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the locality,
the work is usually done under the direction of the employer or by a
specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is part of the regular business of the
(i) whether or not the parties believe they are creating the relation of
master and servant; and
(j) whether the principal is or is not in business.
Slage v. United States, 612 F.2d 1157, 1160 (9th Cir. 1980) (quoting RESTATEMENT (SECOND) OF
AGENCY, § 220(2) (1958)). Other factors that have been considered by the Ninth Circuit include:
whether an individual receives a fixed salary on a regular basis; whether he is subject to tax
deductions; whether he “can refuse the call for assistance”; and whether he is “required to be
available at a particular time.” Id. at 1160. An individual may be an employee for one purpose
and an independent contractor for another. Carnation Co. v. NLRB, 429 F.2d 1130, 1134 (9th Cir.
The government has offered two primary arguments in support of is assertion that Tate was
an independent contractor. First, the government points to the way that Tate was retained and the
way his pay was handled within CCS. The government points out that Tate was retained by the
Cibecue Community Education Board pursuant to the terms of a document entitled “Contracted
Services Agreement.” (Def.’s Exs. 100, 103). The court FINDS, however, that Tate did not sign
the document. (Id.) The court also FINDS that the document includes a line for the payee’s
social security number, which was left blank. (Id.) The Contracted Services Agreement states:
“As the payee, I understand that I am contracted to perform only the services stipulated above, and
that I will perform these services as an independent contractor, not an employee of the
school . . . .” (Id.) The document further provides that Tate would not be covered by workers’
compensation, retirement, social security, or other benefits. (Id.) Tate is identified on the
document as the “payee.”
The Contracted Services Agreement was signed by the
superintendent, a representative of the business office, and a representative of the school board,
and was approved by the Cibecue Community Education Board. (Def.’s Ex. 103.) Ervin Quay
testified that he received a copy of the Contracted Services Agreement and delivered it to Tate.
(Quay Dep. 79:2-79:9.)
However, Tate’s signature on the agreement was not obtained. (Id.)
Irvin Santiago, CCS director of school support services, testified in his deposition that the
Contracted Services Agreement was a form of documentation required by the CCS business office
to confirm that the CCS’ Board had approved the person to work. (Santiago Dep. 19:17-22;
93:5-16.) Santiago testified that CCS sometimes used the Contracted Services Agreement to
avoid the requirement that a job be advertised and posted for more than thirty days. (Santiago
Dep. 101:8-20.) CCS used this same agreement for probationary employees. (Santiago Dep.
Santiago testified that the same form that was used for Tate was used for
independent contractors. However, independent contractors were required to sign the form.
(Santiago Dep. 83:1-18.) The court FINDS that Tate was not required to and did not sign the
Contracted Service Agreement. (Def.’s Ex. 100, Contracted Service Agreement.)
Under the terms of the Contracted Services Agreement, Tate was not eligible to receive
health insurance benefits, retirement benefits, paid vacation leave, or paid sick leave. (Def.’s Ex.
100; Tate Dep. 101:16-102:9.) Additionally, Tate did not have federal income taxes, state income
taxes, or social security taxes withheld from his pay. (Tate. Dep. 101:16-102:9; 103:21-23.)
Tate received a 1099 Form rather than a W-2. (Def.’s Ex. 101.) The 1099 Form indicates that he
received “non-employee compensation.” (Id.; Tate Dep. 103:13-104:21.) Tate was paid by
CCS through the use of Purchase Orders and Purchase Requisitions. (Def.’s Ex. 102; Quay Dep.
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96:14-17.) Meanwhile, other bus drivers were paid using the regular payroll system. (Quay
Dep. 95:19-96:17; Santiago Dep. 76:20-77:4.)
Santiago testified, however, that CCS was
mistaken in its tax treatment of Tate and others. Santiago further testified that, following a 2010
audit, individuals like Tate have been reclassified as employees for tax purposes. Based on these
statements in the record, the court FINDS that CCS’ admitted error and the fact that Tate was paid
with purchase orders are relevant but not dispositive. See United States v. Becker, 378 F.2d 319,
322 (1967) (finding employee status for a pilot who was paid using a voucher system and whose
salary was not subject to deductions for benefits and taxes).
Next, the government argues that CCS did not maintain a substantial level of control over
Tate’s day-to-day responsibilities as a bus driver. In determining whether an individual is an
employee or independent contractor, the most important factor to consider is the extent of control
the master exercises over the details of the individual’s work. See Ducey v. United States, 713
F.2d 504, 516 (9th Cir. 1983) (citing Orleans, 425 U.S. at 814–15) (“The critical test for
distinguishing an agent from a contractor is the existence of federal authority to control and
supervise the ‘detailed physical performance’ and ‘day-to-day operations’ of the contractor.”).
The United States maintains that CCS had a minimal amount of control over the details of
Tate’s work. Specifically, the government has argued that Tate’s discretion over basic driving
decisions—when to turn the steering wheel, how fast to accelerate, and when to
brake—establishes that he is an independent contractor. The court is not persuaded by this
argument. The court does not accept that a bus driver is never an employee unless he is provided
with the type of step-by-step instruction and supervision normally found only in a new driver’s
education course. Rather, the court understands Tate’s discretion over basic driving decisions to
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be a necessary and inherent part of any bus driver’s job. Cf. RESTATEMENT § 220, cmt. D (“Thus,
the full-time cook is regarded as a servant although it is understood that the employer will exercise
no control over the cooking.”).
I FIND that Tate filled out an “Application for Employment” with CCS on August 23,
2007. (Pls.’ Ex. 47, Application for Employment). I FIND that on the application, Tate applied
for the position “bus driver.” (Id.) Quay testified that Tate was looking for a job as a bus driver
because the previous school he had worked for had shut down. (Quay Dep. 13:21-24.) I FIND
that Tate did not own a school bus company; rather, he was simply looking for a job driving the
school bus. (Tate Dep. 82:24-83:1; Quay Dep. 25:24-26:4.) I FIND that at the time Tate applied
for the job, CCS was urgently looking for an additional bus driver. (Quay Dep. 13:13-14:1.)
Ervin Quay testified in his deposition that he knew Tate was looking for a job and understood that
Tate wished to be a CCS employee and bus driver. (Quay Dep. 29:21-30:9.) I FIND that Tate
was hired to fill a bus driver position. (Quay Dep. 38:8-10.) I FIND that in October 2007, Tate
began driving the school bus for CCS. (Tate Dep. 31:20-22.) I FIND that CCS Director of
School Support Services Irvin Santiago considered Tate to be an employee of CCS. (Santiago
Dep. 37:13-18.) Additionally, I FIND that Tate considered himself to be an employee. (Tate
I FIND that Tate received at least $87,257 in workers compensation benefits for medical
bills and time missed from work. (Pls.’ Ex. 48, Loss History; Tate Dep. 70:1-16.) In Arizona,
workers compensation must be paid to employees, but is not required for independent contractors.
A.R.S. § 23-902.
CCS has not challenged Tate’s status as an employee for workers’
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compensation purposes although CCS informed its workers’ compensation carrier of the
contracted services agreement used by CCS. (Santiago Dep. 15:3-14; 82:9-15.)
Irvin Santiago testified that Tate worked full time for CCS prior to the accident. (Santiago
Dep. 39:5-14.) I FIND that Tate generally worked forty hours a week. I FIND that Tate was
required to record the hours he worked. I FIND that he was paid by the hour, at a rate of $10.00
per hour. (Pls.’ Ex. 57, Time Card; Quay Dep. 14:8-19.) I FIND that other CCS bus drivers
were also paid $10.00 per hour. (Quay Dep. 28:17-19.) Santiago testified that if Tate worked
more than forty hours in a week, he was entitled to time and a half pay due to the Fair Labor
Standards Act. (Santiago Dep. 39:2-14.) I FIND that Tate’s hourly wage was paid bi-weekly by
CCS. (Quay Dep. 56:1-22.) I FIND that Tate’s wage was paid with federal grant monies.
(Santiago Dep. 88:18-20.) I FIND that Tate’s hours were set by CCS. (Santiago Dep. 25:1-4.)
I FIND that Tate was not allowed to vary the number of hours he worked per day. I FIND that if
Tate was unable to work, a CCS supervisor would drive the route in his place. I FIND that Tate
was not permitted to subcontract the work. (Santiago Dep. 25:1-6; Quay Dep. 58:4-21; Tate Dep.
I FIND that the school bus was leased by the government to CCS. I FIND that Tate did
not provide or lease the bus. (Quay Depo. 15:15-21.) I FIND that CCS paid for gasoline to fuel
the bus. (Quay Dep. 15:24-17:12; Tate Dep. 82:2-8.) I FIND that CCS also paid for insurance
for the school bus. (Id.) I FIND that Tate was not required to provide his own liability insurance
to drive the school bus. (Id.) I FIND that CCS provided Tate with a cell phone, which CCS paid
for. I FIND Tate was once reprimanded for misusing the cell phone and required to reimburse
CCS for the improper usage. (Id.; Quay Dep. 23:15-23; 112:25-113:24.) I FIND that CCS
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provided the first aid kit, fire extinguisher, and radio on the bus. (Quay Dep. 25:7-23.) I FIND
that CCS arranged and paid for maintenance and repairs of the school bus.
26:25-27:10; 55:13-56:13; Tate Dep. 80:9-13.) I FIND that Tate was not required to maintain or
perform any maintenance on the bus. (Quay Dep. 26:8-24.)
I FIND that Tate’s compensation
was not tied to his performance. I FIND that Tate did not have profit motive in the bus’
operation. (Santiago Dep. 25:23-25.)
I FIND that CCS established Tate’s route and where the school bus would stop. (Quay
Dep. 18:7-20:25.) I FIND that CCS also decided what time the students would be picked up at
the bus stops and when and where the bus would drop them off at school. (Id.) I FIND that if
Tate did not comply with the time and location directions he was given by CCS, he could be fired.
(Quay Dep. 21:11-23.) I FIND that Tate was required to check in at CCS when he arrived in the
morning. (Quay Dep. 98:25-99:3.) I FIND that Quay ensured that Tate was on schedule driving
the bus both in the morning and in the afternoon. (Quay Dep. 14:23-15:1.) I FIND that on at
least two occasions, Quay rode along with Tate to supervise his driving.
101:19-120:1;120:5-10.) Quay testified that he did not ride along with Tate more often because
the bus route started a long way from the school. Quay further testified that if there had been
complaints about Tate, Quay would have ridden with him more often.
I FIND that Tate was required to follow CCS school policies regarding attire and treatment
of students on the bus. (Quay Dep. 21:1-11; 54:11-55:4.)
I FIND that Tate was not permitted
to eat on the bus, to wear headphones while driving, or talk on his cell phone while driving the bus.
(Quay Dep. 46:19-49:7.) I FIND that CCS required Tate to perform a daily inspection of the bus
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and turn in his inspection report. (Pls. Ex. 52, Vehicle Inspection Reports; Quay Dep. 35:21-36:6;
Tate Dep. 89:6-13.) I FIND that CCS also required Tate to keep track of and report his daily
mileage, to clean the bus, and to attend monthly staff meetings. (Quay Dep. 70:8-24; 105:14-22;
23;24-25:16; Tate Dep. 89:14-18.) Based on these factors, the court FINDS that CCS retained
close control of Tate.
I FIND a preponderance of the evidence establishes that CCS retained very substantial
control over the way Tate carried out his duties. I FIND that Tate was provided with a detailed
route he was required to drive each day. I FIND that Tate was required to check in when he
arrived at CCS, and his supervisor would make sure that he drove his routes on schedule. I FIND
that on two occasions, a supervisor rode with Tate to ensure that he was driving the routes
correctly. I FIND that Tate was subject to detailed policies regarding how to interact with
students, what to wear, and how to conduct himself while driving the bus. I FIND that Tate was
required to report student misbehavior to his supervisor, to perform a daily inspection of the bus, to
report his daily mileage, and to attend monthly staff meetings.
For the reasons discussed above, the court FINDS and CONCLUDES that Tate was an
employee of Cibecue Community School at the time of the accident.
I FIND that at the time of the accident, Tate was driving the school bus transporting CCS
students home after school. (Tate Dep. 67:22-68:4.) The defendant has not argued that Tate was
outside the scope of his employment at the time of the accident, and the court CONCLUDES that
any such argument has been waived. Further, the court CONCLUDES that the evidence in the
record clearly establishes by a preponderance of the evidence that Tate was within the scope of his
employment at the time of the accident. Therefore, for the reasons set forth above, the court
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FINDS and CONCLUDES that Tate was an employee of CCS acting within the scope of his
employment at the time the accident in this case occurred.
b. Exhaustion of Administrative Remedies
For the reasons set forth herein, the court CONCLUDES that the plaintiffs in this case
timely and properly exhausted their administrative remedies.
The parties have stipulated that the administrative claims of Vernie White, Rolynn White,
and Roland White Jr. were timely submitted and these plaintiffs properly exhausted their
administrative remedies. (Proposed Final Pretrial Order [Docket 84], at 3.) Therefore, the court
CONCLUDES that the administrative remedies of Vernie White, Rolynn White, and Roland
White Jr. were timely submitted and have been properly exhausted.
The defendant has argued, however, that Roland White Sr.’s administrative remedies had
not been exhausted at the time suit was filed. A denial of an administrative claim under the FTCA
must occur before suit is filed. See McNeil v. United States, 508 U.S. 106 (1993) (finding the
FTCA requirement of administrative exhaustion was not satisfied where the plaintiff received a
final rejection from the appropriate agency after he had filed suit but before any substantial
progress in the litigation had been made). If an agency has not made a final disposition of a claim
within six months, the claimant is entitled to treat “the agency failure to act as a final denial of the
claim.” 28 U.S.C. § 2675(a); Canton v. United States, 495 F.2d 635, 638 (9th Cir. 1974).
In this case, the plaintiffs filed suit on July 22, 2010. The DOI did not send a written final
denial of the plaintiffs’ claims until August 16, 2011. The defendant argues that because Roland
White Sr., did not sign the claim forms submitted to the DOI in January, his claims were not
properly presented to the agency until March.
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I FIND that the United States Department of the Interior (“DOI”) received Standard Form
95 forms regarding Rolynn White’s injuries on January 12, 2010, and regarding Roland White Jr.’s
injuries on January 13, 2010. (Pl.’s Exs. 36 & 36.) I FIND that both claim forms were signed by
Vernie White. (Id.)
The requirement that a claimant sign a claim form is not found in the text of the FTCA
itself, which requires only that a claimant “shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally denied” before he is permitted to file suit. 28
U.S.C. § 2675(a). The signature requirement is found in the regulations accompanying the
statute, 28 C.F.R. § 14.2, which states:
For the purposes of the provisions of 28 U.S.C. 2401(b), 2672, and
2675, a claim shall be deemed to have been presented when a
Federal agency receives from the claimant, his duly authorized
agent or legal representative, an executed Standard Form 95 or other
written notification of an incident, accompanied by a claim for
money damages in a sum certain for injury to or loss of property,
personal injury, or death alleged to have occurred by reason of the
incident; and the title or legal capacity of the person signing, and is
accompanied by evidence of his authority to present a claim on
behalf of the claimant as agent, executor, administrator, parent,
guardian, or other representative.
Id. Similar instructions are also printed on the claim form itself.
In Warren v. United States Department of Interior Bureau of Land Management., 724 F.2d
776, 778 (9th Cir. 1984), the Ninth Circuit ruled that failure of a claimant’s attorney to present
extrinsic evidence of his authority to sign a claim form was not a jurisdictional defect. The court
held although Congress gave the Attorney General power to promulgate regulations pursuant to
§ 2672, such regulations are not jurisdictional requirements under 28 U.S.C. § 2675. Instead,
§ 2675 was intended by Congress only to “give agencies sufficient notice to enable them to begin
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their own investigations.” Id. at 779. “Minimal notice requires claimants to (1) give an agency
sufficient written notice to commence investigation and (2) place a value on the claim.” Id.
Applying this rule, the court in Warren determined that the action of the agency in denying the
claim on the merits was “persuasive evidence that the jurisdictional requirement of minimal notice
was satisfied.” Id. Thus, while failure to comply with the regulations could possibly delay or
prevent settlement negotiations with the agency, it did not affect the jurisdiction of a court after the
claim had been denied.
I FIND that sets of claim forms were filed in January 2010, one for claims arising from
Roland, Jr.’s injuries, and the other for claims arising from Rolynn White’s injuries. I FIND that
on the first, Roland White Jr., Vernie White, and Roland White Sr., are all listed as claimants, the
claim is stated to arise “from personal injuries and damages suffered by Roland White Jr., and his
parents, Roland White Sr. and Vernie White, as a result of a May 19, 2009 bus crash, as described
in Section 9,” and the amount of claim is listed as $125,000 allotted to Roland, Jr., and $125,000 to
“Parents.” I FIND that similarly, the claim form relating to Rolynn White’s injuries lists Rolynn
White, Vernie White, and Roland White Sr., as claimants, states that the claim “arises from
personal injuries and damages suffered by Rolynn White, and her parents, Roland White Sr. and
Vernie White,” and seeks $2,500,000 for Rolynn White and $600,000 for “Parents.” I FIND that
on both forms, Roland White Sr. is explicitly listed as a claimant and a specific amount is
requested for which the agency might settle with both Roland Sr., and Vernie White together as
“parents.” Based on this information, the court CONCLUDES that the DOI was given sufficient
written notice in January 2010 to begin investigating Roland White Sr.’s claims and to inform the
DOI of a sum certain amount for which those claims might be settled. See Warren, 724 F.2d at
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779 (stating that the exhaustion requirement of the FTCA was intended to give agencies minimal
notice to begin investigating the claims); see also Mader v. United States, 654 F.3d 794, 809–810
(8th Cir. 2011) (Bye, J., dissenting) (observing that “the judicial consensus is that section 2675
mandates only ‘minimal notice’”). Therefore, the court CONCLUDES that the claims of all
plaintiffs, including Roland White Sr., were presented to the DOI as required by 28 U.S.C.
§ 2675(a), and CONCLUDES that these claims are properly before the court. (See Order
[Docket 82], at 7.)
For the reasons discussed above, the court CONCLUDES that subject matter jurisdiction
over this matter is proper pursuant to the FTCA.
B. Tate’s Negligence
To establish a claim for negligence under Arizona law, a plaintiff must prove:
1) a duty
requiring the defendant to conform to a certain standard of care; 2) a breach by the defendant of
that standard; 3) a causal connection between the defendant’s breach and the resulting injury; and
4) actual damages. Gipson v. Kasey, 214 Ariz. 141, 143 (2007) (citing Ontiveros v. Borak, 136
Ariz. 500, 504 (1983)).
I FIND that on May 19, 2009, a CCS school bus driven by Tate was involved in a
single-vehicle accident. (Pl.’s Ex. 24.) I FIND that the bus exited the roadway and fell down
and embankment. (Id.) I FIND that Rolynn White and Roland White Jr. were injured in the
Arizona follows the doctrine of negligence per se. Pursuant to that doctrine, the “breach
of a statute intended as a safety regulation is not merely evidence of negligence but is negligence
per se.” Brannigan v. Raybuck, 136 Ariz. 513, 517 (1983). “In Arizona, violation of a statute
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establishes the elements of duty and breach, requiring the plaintiff to prove only proximate cause
and damages.” Resolution Trust Corp. v. Dean, 854 F.Supp. 626, 640 (1994). Arizona’s traffic
code is a safety regulation that can be the basis for negligence per se. City of Phx. v. Mullen, 65
Ariz. 83, 86 (1946) (“”[I]f the proximate cause of an injury to another is the failure of the driver of
the vehicle to comply with the positive directions of the statute relating to the operation of motor
vehicles, such failure or violation is negligence per se and actionable negligence.”). Arizona
traffic statutes affirmatively required Tate to control the school bus so as to keep it within the lane
on the right side of the highway. A.R.S. § 28-721; (Trial Tr. 60:11-23.) Tate was required to
prevent the bus from moving out of the lane until the movement could be made safely. A.R.S.
§ 28-729; (Trial Tr. 60:11-23.)
I FIND that Tate failed to control the school bus, and
CONCLUDE that Tate violated A.R.S. § 28-729 when he failed to prevent the bus from exiting
the lane he was driving in and veering off the roadway.
Arizona law permits a defendant to avoid the effects of the negligence per se doctrine in
some circumstances if the defendant can prove that a driver’s failure to comply with the traffic
code resulted from a legally recognized excuse. One such excuse is the “sudden incapacity”
defense. Goodrich v. Blair, 132 Ariz. 459, 461 (1982). The sudden incapacity defense focuses
on the defendant’s decision to drive at all. Id. Therefore, “[i]f the defendant’s health was such
that a reasonably prudent man would not risk driving a car, then the defendant is negligent by
merely undertaking the task of driving . . . . If, on the other hand, a person is not negligent in
choosing to drive his car, then he is not negligent when he loses control of that car due to a heart
attack.” Id. The focus of the sudden incapacity defense is on whether the physical incapacity
was reasonably foreseeable. Id.
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In this case, I FIND that the defendant withdrew the sudden incapacity defense prior to
trial. (Pretrial Order [Docket 84], at 4.) Consistent with this withdrawal, the defendant did not
present any evidence or witnesses at trial to support a sudden incapacity defense. The court
therefore CONCLUDES that the defendant did not properly assert or maintain a sudden
incapacity defense. Even if the defendant had presented such a defense, I CONCLUDE that it
would not have been successful because I FIND that Tate’s sudden incapacity was reasonably
foreseeable in light of his medical history.
Based on the evidence set forth below, I FIND that Tate had a history of diabetes,
dizziness, headaches, sensitivity to light, and fainting spells, which pre-dated the May 2009
accident. (Pls.’ Exs. 28, 54, 62; Tate Dep. 19:14-16, 20:19-21:10, 35:17-38:8, 42:2-53:1.) I
FIND that prior to the accident, Tate had expressed concern about driving a school bus in light of
his health conditions. (Tate Dep. 26:19-27:14, 42:19-24) I FIND that at one point, following a
discussion with doctors, Tate stopped driving the school bus due to his health condition. (Tate
Dep. 41:8-43:8.) I FIND that Tate has stated that he is supposed to keep his blood sugars around
110-120. (Tate. Dep. 43:9-10.) I FIND that Tate has further stated that if his blood sugars reach
the 200s, he has headaches and feels “weird” or “strange.” (Tate Dep. 43:12-44:2.)
I FIND that in the summer of 2008, Tate applied for Social Security disability because he
had been told he should not drive a school bus. (Tape Dep. 55: 5-22.) I FIND that on August 19,
2008, Tate had a medical examination by the DOT. I FIND that on his health history form for this
application, Tate made several material misrepresentations. For example, when asked whether he
had had any illness or injury in the past five years, he checked no. In his deposition, Tate
admitted that these statements were false. (Tate Dep. 26:19-27:4; 42:19-24.)
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The plaintiffs presented the testimony of Dr. Martha Miller, M.D., who is a board-certified
diplomat in internal medicine. (Trial Tr. 48:7-12, 49:4-11.) The parties stipulated to Dr.
Miller’s expertise in general and internal medicine. (Trial Tr. 49:17-50:2.)
According to the testimony of Dr. Miller, in the year prior to the accident, Tate experienced
multiple syncopal episodes in which he either lost consciousness or felt very faint and had to lie
(Trial Tr. 51:25-53:2.)
These incidents included episodes of visual changes and
dizziness. In response to these episodes, Tate reported that he would sometimes check his sugars
and find them to be low. He told his doctors that he sometimes drank a regular soda when this
occurred. Dr. Miller further testified that in May 2008, Tate was instructed not to drive until he
was cleared to do so. (Trial Tr. 53:7-12.)
This instruction was given based on his syncopal
Dr. Miller testified that, according to Tate’s medical records, Tate had a long history of
reporting feelings of dizziness due to low blood sugars. Dr. Miller testified that Tate’s records
reflected that he had reported drinking regular soda in an attempt to bring up his blood sugars.
The records further reflected that Tate’s nutritionist and doctors told him he should not do this
because of the risk of rebound hyperglycemia followed by hypoglycemia as his body tries to
compensate. (Trial Tr. 53:21-54:2.) She testified that, based on Tate’s records, he woke on the
day of the accident with a headache and feeling strange, so he drank a soda pop. (Trial Tr. 54:
4-8.) Based upon her review of Tate’s medical records, Dr. Miller opined that a reasonable
person in Tate’s shoes on the day of the accident would have recognized that he was not in any
condition to drive. (Trial Tr. 55:11-14.)
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Based on these facts, the court FINDS that Tate’s decision to drive the school bus, given
his medical history, was negligent. Further, the court CONCLUDES that Tate’s violation of
safety statues was negligence per se and FINDS that Tate has provided no explanation or excuse
for permitting the bus to veer off the side of the road. See, e.g., Matthews v. Greyhound Lines,
Inc., 882 F.Supp. 146 (D. Ariz. 1995). The court FINDS that Tate’s negligence was the direct
cause and proximate cause of the bus accident that took place on May 19, 2009. The court
FINDS that the injuries Rolynn and Roland White Jr. sustained in the May 19 accident were the
direct and proximate result of Tate’s negligence.
C. Liability of the United States
The FTCA is the exclusive legal remedy for claims against the United States for damages
based on “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.”
The parties stipulate that Cibecue Community School (“CCS”) is a grant school pursuant to
the Tribally Controlled Schools Act, P.L. 101-512, codified at 25 U.S.C. § 450f, Historical and
Statutory Notes. (Proposed Final Pretrial Order [Docket 84], at 3.) The parties further stipulate
that persons found to be employees of Cibecue Community Education Board, Inc., and whose
services are paid for with federal grant monies are federal employees for purposes of the Federal
Tort Claims Act. (Id.) CCS provides transportation for children to and from school by operating
school buses on a daily basis. (Pls.’ Ex. 49, CCS’ Student Transportation Policy; Dep. Ervin
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Quay, 122:10-19.) CCS’ transportation costs are funded through a federal grant from the Bureau
of Indian Affairs. (Pls. Ex. 46, Tribally Controlled School Grant Conditions; Dep. Santiago,
For the reasons discussed above, the court has found that Tate is an employee of CCS and
that he was acting in the scope of his employment at the time of the accident. The court has also
found that the plaintiffs suffered personal injury as a result of Tate’s negligence. The court
therefore CONCLUDES that the circumstances of the accident in this case are such that a private
person “would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b)(1). Therefore, the court CONCLUDES that the
United States is liable to the plaintiffs for the personal injuries sustained by Rolynn White and
Roland White Jr.
For the reasons discussed herein, I FIND that each plaintiff is entitled to an amount of money
that will reasonably and fairly compensate him or her for each of the following elements of
damages proved by the evidence to have resulted from the defendant’s fault:
a. The nature, extent, and duration of the injury;
b. The pain, discomfort, suffering, disability, disfigurement, and
anxiety already experienced, and reasonably probable to be
experienced in the future as a result of the injury;
c. Reasonable expenses of necessary medical care, treatment, and
services rendered, and reasonably probable to be incurred in the
d. Lost earnings to date, and any decrease in earning power or
capacity in the future;
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e. Loss of love, care, affection, companionship, and other
pleasures of the family relationship;
f. Loss of enjoyment of life, that is, the participation in life’s
activities to the quality and extent normally enjoyed before the
Revised Arizona Jury Instructions (RAJI (Civil) 4th), Personal Injury Damages 1, Measure of
1. Rolynn White
Dr. Marjorie Eskay-Auerbach, a board-certified expert in orthopedics with a specialty in
spinal injuries, testified by videotaped deposition regarding Rolynn White’s injuries. The parties
stipulated to Dr. Eskay-Auerbach’s expertise in orthopedic injuries. (Eskay-Auerbach Dep.
Dr. Eskay-Auerbach reviewed Rolynn’s medical records and examined her.
(Eskay-Auerbach Dep. 8:17-9:1.)
I FIND that as a result of the May 2009 accident, Rolynn White suffered multiple injuries
including, but not limited to a dislocated elbow, a burst fracture at L-2, a fracture of the sacrum,
and pelvic hematomas. (Eskay-Auerbach Dep. 14:10-15:4.) I FIND that as a result of these
injuries, Rolynn has a 12% permanent impairment of her person related to her spinal injury and a
3% impairment of her person as a result of her elbow injury. Thus, I FIND that Rolynn has a total
15% impairment of her whole person as a result of the accident. (Pl.’s Ex. 3, 6; Eskay-Auerbach
I FIND that Rolynn underwent two surgeries on her elbow, a closed
reduction of the coccyx, and a lumbar fusion. (Eskay-Auerbach Dep. , 15:5-15.)
I FIND that doctors were initially able to pop Rolynn’s dislocated elbow back into place
and put her in a brace. I FIND that the elbow popped back out and damaged her collateral
ligament. I FIND that as a result, the elbow required an additional surgery and Rolynn had to be
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placed in an external fixator. (Pls.’ Ex. 10; Eskay-Auerbach Dep. 15:20-17:11.) I FIND that in
August 2009, Rolynn underwent general anesthesia in order to have the external fixator removed
from her elbow. (Trial Tr. 40:10-13.)
I FIND that Rolynn also suffered a burst injury to her L-3 vertabae in her back. (Ex. 11;
Eskay-Auerbach Dep. 17:12-18:23.) I FIND that as a result of this injury, Rolynn underwent an
open reduction, internal fixation of the fracture, along with bone grafting to repair the fracture.
(Eskay-Auerbach Dep. 19:10-20:14.) I FIND that Rolynn’s entire lumbar spine, L1-L5, was
fused. (Pl.’s Ex. 3, at 3-4.) I FIND that the hardware from the procedures remains in Rolynn’s
spine. (Eskay-Auerbach Dep. 20:15-20.) I FIND that Rolynn’s injuries were very painful and
that some of the pain was excruciating.
(Eskay-Auerbach Dep. 31:21-32:13.)
Eskay-Auerbach’s IME report indicates that Rolynn will continue to have chronic back and elbow
pain. (Pl.’s Ex. 6.)
Rolynn also testified regarding her injuries. She stated that she continues to suffer from
pain in her tailbone, which requires her to often use a pillow when sitting.
112:14-113:3.) Both her elbow and her back cause her pain and limit her activities on a daily
basis. (Trial Tr. 41:19-15, 113:4-116:17.) Rolynn testified that she is concerned about her
future due to her injuries. (Trial Tr. 40:23-41:14; 117:22-118:3.) Prior to the accident, she was
able to enjoy playing basketball and participating in other sports and outdoor activities. (Trial Tr.
4!:15-18; 117:3-8.) Due to her injuries sustained in the bus accident, Rolynn stated that she can
no longer play basketball. She also cannot ride a horse, an activity she previously enjoyed.
(Trial Tr. 46:6-15; 116:24-117:2.)
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The parties stipulate that Rolynn White’s medical providers billed $386,944.46 for
accident-related medical care provided to her. (Proposed Final Pretrial Order [Docket 84], at 3;
see also Pl.’s Exs. 12-13(h).) The parties further stipulate that the Arizona Health Care Cost
Containment System Administration (AHCCCS) paid $82,652.38, and the federal share totaled
Reasonableness of Medical Bills
The defendant argues that the plaintiffs failed to prove the necessity of the medical services
rendered and the reasonableness of the medical expenses charged for medical services rendered to
Rolynn White. The plaintiffs offered the testimony of Dr. Eskay-Auerbach to support the
reasonableness and necessity of the past medical mills.
The defendants argue that Dr.
Eskay-Auerbach’s testimony on this issue should be excluded because her opinion was not
The plaintiffs admit that they did not explicitly disclose Dr.
Eskay-Auerbach’s opinions regarding the reasonableness and necessity of Rolynn’s past medical
bills. However, they argue that her opinion was implicit in the disclosure of her expert report.
Further, they assert that even if the court finds Dr. Eskay-Auerbach’s opinion on this issue was not
properly disclosed, the failure was harmless under Federal Rule of Civil Procedure 37(c)(1).
Having fully considered the argument of each parties, the court CONCLUDES that the
plaintiffs failed to properly disclose Dr. Eskay-Auerbach’s opinion on the issue of the
reasonableness of the medical bills. The court further CONCLUDES, however, that this failure
was harmless under Rule 37(c)(1). The plaintiffs had previously disclosed that they were
claiming the full, reasonable amount of the billed medical charges for Rolynn White’s care.
Additionally, counsel for the United States was able to cross-examine Dr. Eskay-Auerbach on this
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issue at deposition. (Eskay-Auerbach Dep. 59:23-61:6.) Accordingly, the court FINDS that the
plaintiffs’ failure to disclose Dr. Eskay-Auerbach’s opinion on the reasonableness of medical bills
was harmless. The court will therefore consider Dr. Eskay-Auerbach’s testimony on this issue.
Furthermore, the court CONCLUDES that Dr. Eskay-Auerbach’s testimony on the
reasonableness of the medical bills is not essential to a finding that the medical bills were
reasonable in this case. See W. Gas Const. Co. v. Danner, 97 F. 882, 887 (9th Cir. 1899) (“The
reasonableness of the charge in such cases does not solely depend upon the testimony of experts,
although such testimony is proper, and entitled to weight, and is usually given as an aid to the jury
in determining the proper amount to be allowed; but the jury have the right, in this connection, to
consider the character and extent of the plaintiff’s injury, and extent and character of the medical
services and treatment to be received, and from all the evidence to determine the amount that
should be given.”). The plaintiffs have provided expert testimony as to the reasonableness and
necessity of the care provided to Rolynn and Roland White Jr., the medical bills are itemized and
were submitted into evidence, and there is no contention that the medical care provided was
unnecessary. The court therefore FINDS that expert testimony regarding the reasonableness of
the medical charges was not required in this specific case and FINDS that the medical charges of
$386,944.46 are reasonable. The court further FINDS that the United States is entitled to an
offset of $65,455.57, the amount that the parties have stipulated to be the federal share of the
b. Future Medical Bills and General Damages
In addition to testimony regarding the reasonableness of Rolynn’s past medical bills, Dr.
Eskay-Auerbach testified regarding the future care Rolynn is likely to require as a result of the
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accident. Economic consultant John Buehler, Ph.D., provided an estimated present value of the
cost of this care. The defendant has not offered any evidence or witnesses to contradict the
testimony of Dr. Eskay-Auerbach and Dr. Buehler.
I FIND that Rolynn White has a life expectancy of approximately 61 additional years.
(Trial Tr. 152:2-15.) Dr. Eskay-Auerbach opined to a reasonable degree of medical certainty that
Rolynn will have chronic low back pain as a result of the extensive surgery she underwent due to
the accident. (Pl.’s Ex. 4.) Due to this pain, Dr. Eskay-Auerbach opined that Rolynn likely will
need 10-12 physical therapy visits each year, at a cost of $125.00 per visit. The court credits this
testimony and FINDS that the cost of Rolynn’s White’s future physical therapy is $85,250. (Pl.’s
Exs. 4, 39, 39a; Eskay-Auerbach Dep. 25:8-10.) Because physical therapy is a human service, the
court FINDS that no reduction for present value is necessary. (Trial Tr. 154:7-17.)
Dr. Eskay-Auerbach testified that she anticipates Rolynn will have chronic low back pain
which may require formal pain management with a pain management specialist. (Pl.’s Ex. 4.)
The government offered no evidence or testimony to rebut Dr. Eskay-Auerbach’s testimony and
Dr. Eskay-Auerbach opined that a pain specialist is likely to recommend pain medications
on a long-term basis. She testified that Rolynn “may have occasional episodes where she’ll
require some short-term medications stronger than nonsteroidal anti-inflammatories.”
(Eskay-Auerbach Dep. 65:4-66:6.) I FIND that the retail cost of narcotic pain medications is
$2500 per month. Having fully considered the testimony and evidence, the court CONCLUDES
that there is insufficient evidence to find that Rolynn’s damages include the cost of chronic
narcotic pain medications.
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Dr. Eskay-Auerbach opined that it is more likely than not that that Rolynn will need an
annual course of epidural steroid injections beginning in her mid-thirties. (Eskay-Auerbach Dep.
63:25-65:3.) The government has not offered any evidence or testimony to contradict Dr.
Eskay-Auerbach’s assessment of the need for or the cost of epidural steroid injections. I FIND
that Rolynn will require epidural steroid injections. I FIND that the cost of these injections is
$1500 per injection. Dr. Eskay-Auerbach stated that she believes Rolynn may require three to
four injections per year for back and leg pain. Dr. Buehler calculated that the present value of
these injections is $117,230 for three injections per year, or $156,306 for four injections per year.
(Pl.’s Ex. 39(a).) The court FINDS that this calculation is correct.
Based on the evidence
before the court, the court FINDS that Rolynn White’s damages include the future cost of three
epidural steroid injections per year beginning in 2027.
Additionally, Dr. Eskay-Auerbach testified that due to increased wear and tear on the joints
above and below Rolynn’s spine, there is a 30% chance that Rolynn will need a lumbar fusion at
T12 and L5-S1 in the future. She testified that the cost of a lumbar fusion is between $50,000 to
$70,000. The court has considered the evidence at Dr. Eskay-Auerbach’s testimony and FINDS
that there is insufficient evidence to establish a reasonable medical probability that Rolynn will
require the lumbar fusion. The court therefore CONCLUDES that the cost of the lumbar fusion
is not within Rolynn’s damages.
The court accepts the uncontroverted testimony of witnesses detailing the pain, suffering,
and disability that Rolynn White has suffered as a result of the accident caused by the defendant’s
c. Total Damages
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Having fully considered the evidence and the testimony of all the witnesses presented, the
court FINDS that Rolynn White has sustained total damages in the amount of $2,500,000, and
AWARDS her the same from the defendant.
2. Roland White Jr.
I FIND that as a result of the accident, Roland White Jr. sustained medical bills totaling
$74,076.89. (Pls.’ Exs. 30-34.) The parties stipulate that medical providers billed AHCCCS
$50,274.20 for accident-related medical care provided to Roland Jr. (Proposed Final Pretrial
Order [Docket 84], at 3.) The parties further stipulate that AHCCCS paid $9,884.92 and the
federal share totaled $8,224.50. (Id.)
Dr. Bruce Davis is a board-certified general and trauma surgeon. (Davis Dep., 6:8-11.)
The parties stipulated to Dr. Davis’s expertise in general and trauma surgery. (Id.) Dr. Davis
testified that he was the trauma surgeon on duty at the trauma center on the day that Roland White
Jr. came in.
(Davis Dep. 6:24-8:10.)
He testified that Roland reported a brief loss of
consciousness, pain in the left hip and left jaw, and abrasions. (Id.) He further testified that
Roland was awake, alert, oriented, and able to communicate with doctors. (Id.) I FIND that
Roland was admitted to the trauma center and stayed there until May 22, 2009. (Davis Dep.
8:7-9.) Dr. Davis testified that given his level of injury, the services provided to Roland both at
the trauma center and en route to the trauma center were reasonable and necessary. (Davis Dep.
9:6-21.) I FIND that the services provided to Roland at the trauma center were reasonable and
necessary. Additionally, I FIND that the transportation services provided to Roland following
the accident were reasonable and necessary given the injuries he sustained and the distance
involved in the transport. (Id.)
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Having reviewed the evidence, the court FINDS that as a result of the bus accident, Roland
Jr. suffered a loss of consciousness, abrasions, a cut to the back of his head that required seven
staples, a mild pulmonary contusion, a fracture of his mandible (the lower jaw), a fracture in the
rami of his pelvis, and a non-displaced sacral fracture. (Davis Dep. 7:7-12; 18-25; 8:13-17.) I
FIND that due to the pulmonary contusion, Roland coughed up blood for approximately a week.
(Trial Tr. 91:16-25.)
Dr. Nish Shah, M.D., D.D.S., is a board-certified physician and dentist in oral and
maxillofacial surgery. (Shah Dep. 5:10-22.) The parties stipulated to Dr. Shah’s expertise in
oral and maxillofacial surgery. (Shah Dep. 6:6-9.) Dr. Shah testified that as a result of the bus
accident, Roland suffered a fracture to the left sub-condylar portion of his mandible jaw. (Shah
Dep. 7:19-8:3; Pl.’s Ex. 20.) I FIND that the jaw fracture was caused by the bus accident. (Pl.’s
Ex. 19; Shah Dep. 8:15-9:1.) I FIND that jaw fracture was treated with a closed reduction which
involved wiring Roland’s jaw shut in order to stabilize the fracture. (Pl.’s Ex. 21; Shah Dep.
10:19-12:7-22.) Dr. Shah testified that if this reduction had not been performed, Mr. White could
have suffered a malunion, malocclusion, or nonunion of the fracture. (Shah Dep. 12:23-13:12.)
I FIND that following the surgery, Roland was required to follow a liquid diet with activity
restrictions, pain control, and a preventative course of antibiotics. (Shah Dep. 13:20-14:13.) I
FIND that Roland later returned for a follow-up visit, at which time one of his wires had to be
replaced and Roland was prescribed additional pain medication.
(Shah Dep. 15:25-16:15;
I FIND Roland had to remain on a liquid diet until June 26, 2009. I FIND that on that
date, the vertical wires were removed and he was able to slowly begin eating a normal diet once he
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regained enough mobility in his jaw to permit him to do so. (Shah Dep. 17:12-18:12.) I FIND
that the remaining wires were not removed until July 27, 2009. (Shah Dep. 18:23-19:14.)
Dr. Shah testified that in the future, Roland may develop temporomandibular joint
problems due to the fracture of his lower jaw. (Shah Dep. 22:9-12.) Dr. Shah further testified
that the care he provided to Roland was reasonable and necessary, and that his charges for the
services provided were reasonable. (Shah Dep. 23:11-23.) I FIND that the care Roland received
for his jaw injury was reasonable and necessary and that the amount billed for this care was
Having reviewed the uncontroverted testimony and evidence offered by the plaintiffs, I
FIND that Roland White’s past medical bills totaled $50,274.20. (Stipulation, Proposed Final
Pretrial Order [Docket 84], at 3.) I FIND that this amount was reasonable for the necessary and
reasonable care provided. I further FIND that the defendant is entitled to an offset of $8,224.50
for the federal share of this amount paid to AHCCCS.
In addition to his past medical bills, the plaintiffs presented testimony regarding the impact
of Roland’s injuries on his quality of life. Prior to the accident, Roland enjoyed hunting, fishing,
and caring for his horse. (Trial Tr. 74:19-75:3-16.) He also participated in football, softball, and
baseball, and contributed to the household by performing chores like chopping wood. (Id.) As a
result of the accident, Roland’s ability to help the family with household chores was decreased.
(Trial Tr. 89:7-9.) I FIND that during the summer of 2009, Roland was unable to participate in
certain Apache dances due to the injuries he sustained in the accident. (Trial Tr. 95:24-97:3.) I
FIND that when he returned to school in the fall of 2009, he had difficulty walking up the stairs
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and getting on the school bus. (Trial Tr. 94:24-95:20.) I FIND that Roland continues to have
scars on his head and knees as a result of the accident. (Trial Tr. 92:15-93:5.)
The court accepts the uncontroverted testimony detailing the pain, suffering, and injuries
sustained by Roland White Jr. as a result of the accident caused by the defendant’s negligence.
Having fully considered all of the evidence and testimony presented, the court FINDS Roland
White Jr.’s full damages to be $225,000 and AWARDS him the same in judgment against the
3. Vernie White
I FIND that Vernie White is the mother of Rolynn White and Roland White Jr. (Trial Tr.
15:12-14.) Under Arizona law, a parent is permitted to assert a claim for loss of consortium based
on an injury to a child. Miller v. Westcor Ltd. P’ship, 171 Ariz. 387, 393-95 (1991).
Vernie White testified that on May 19, 2009, she was waiting for her children’s school bus
to arrive. The bus was late, and Vernie became alarmed. She then observed emergency response
vehicles driving in the direction from which the bus normally travelled. Vernie followed the
vehicles to the accident scene. At the scene, she had to wait approximately an hour before she
was able to see her children. (Trial Tr. 15:12-19:11.)
Vernie stated that she eventually found Roland in the ambulance where he was
complaining about pain in his jaw and hip. She then found Rolynn in another ambulance. At
this time, Rolynn was crying and in pain. Vernie testified that she tried to comfort Rolynn. (Trial
Tr. 18:7-21:17.) She learned that Rolynn would be taken to a hospital in Phoenix by helicopter.
Vernie wanted to go with her daughter in the helicopter but was told there was no room for her.
(Trial Tr. 21:18-22:19.)
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Vernie testified that she then went to the local hospital to find Roland. After arriving at
the hospital, she learned that Roland was also going to be sent to Phoenix. She was able to
arrange for both Roland and Rolynn to be at the same hospital. She then went with her son on the
air transport to the Phoenix area. After arriving at the hospital in Phoenix, Vernie went back and
forth between hospital rooms in order to be with both of her children. (Trial Tr. 23:17-26:20.)
Vernie testified regarding the stress and worry she experienced while Rolynn was
undergoing an eight-hour back surgery. Additionally, she testified that for months after the
surgery she had to provide constant care for Rolynn. In total, she spent twenty-two nights at
facilities in the Phoenix area in order to be with Rolynn. She also testified that she tried to calm
Roland as he was very frustrated by the limitations he experienced as a result of having his jaw
wired shut. (Trial Tr. 27:6-31:23.)
Based on these facts, the court FINDS that Vernie White has suffered a loss of the
relationship with her children due to their injuries and due to the anxiety, worry, and stress she
experienced on the day of the accident and while caring for her children’s injuries. The court
FINDS Vernie White’s full damages to be $30,000 and awards her the same in judgment against
4. Roland White Sr.
Roland White Sr. is the father of Rolynn White and Roland White Jr.
120:12-15.) Roland Sr. testified that he worries a great deal about Rolynn’s future due to her
injuries. Additionally, he stated that he has not been able to hunt and fish with his son as
frequently as he did prior to the accident. Roland Sr. testified that sports and Apache dances are
important parts of his relationship with his children. He has therefore suffered harm as a result of
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the injuries to his children. (Trial Tr. 120:22-132:10.)
The court FINDS Roland Sr.’s damages
to be $30,000 and AWARDS him the same in judgment against the defendant.
For the foregoing reasons, the court hereby ORDERS that judgment be entered in favor
of the plaintiffs, Vernie White, Roland White Sr., Rolynn White, and Rolland White Jr., against
the defendant, United States of America. The court further ORDERS that the plaintiffs are
AWARDED judgment in the following amounts: (1) Vernie White is awarded $30,000 in
damages; (2) Roland White Sr. is awarded $30,000 in damages; (3) Rolynn White is awarded
$2,500,000 in damages, including past medical bills and the cost of future medical care; and (4)
Roland White Jr. is awarded $225,000, in damages, including past medical bills, for a total
judgment of $2,785,000.
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
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July 5, 2012
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