Stephan Brewington v. United States of America et al

Filing 96

FINDINGS OF FACT AND CONCLUSIONS OF LAW signed by Judge Dolly M. Gee: The Court awards Plaintiff Stephan Brewington $725,147.25 in future medical expenses; $632,536 in past and future lost earnings; and $250,000 in noneconomic damages. Plaintiffs counsel may submit a motion for reasonable attorneys fees within 30 days from the date of this Order. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STEPHAN BREWINGTON,
Plaintiff,

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v.
UNITED STATES OF AMERICA,
Defendant.

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) Case No. CV 13-07672-DMG (CWx)
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) FINDINGS OF FACT AND
) CONCLUSIONS OF LAW
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This matter is before the Court following a bench trial which took place on June

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30, 2015 through July 2, 2015. John F. DeNove, Diane M. Corwin, and Alicia S. Curran

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appeared on behalf of Plaintiff Stephan Brewington.

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appeared on behalf of Defendant United States of America.

Garrett Coyle and Julie Zatz

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Having carefully reviewed the evidence and the arguments of counsel, as presented

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at trial and in their written submissions, the Court makes the following findings of fact

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and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

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I.

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FINDINGS OF FACT

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On August 12, 2011, Stephan Brewington went to the Department of Veteran

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Affairs Greater Los Angeles hospital (the “VA”) for treatment of a branch retinal vein

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occlusion that affected the vision in his left eye. The prescribed treatment was an

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injection into his left eye of Avastin, a drug used to treat conditions like macular edema.

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(Final PreTrial Conference Order (“PTO”) 5a, b [Doc. # 45].) Instead of injecting

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Avastin, the VA injected Mr. Brewington’s left eye with Velcade, a chemotherapy drug,

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causing irreversible blindness in Mr. Brewington’s left eye. (PTO 5c, d.) There was no

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evidence presented as to any approved or medically indicated intraocular use of Velcade.
To the contrary, whether directly or indirectly, Velcade caused serious injury to Mr.
Brewington, including blindness in the left eye, mild chemical meningitis, left
hemisensory deficits, chronic daily headache of a migrainous nature, rebound headaches,
neuropathic orbital pain syndrome, depression, and anxiety. (Trial Declaration of H.
Ronald Fisk, M.D. (“Fisk Decl.”) ¶ 8 [Doc. # 56]; Trial Declaration of Raghu C. Murthy,
M.D. (“Murthy Decl.”) ¶¶ 14-15 [Doc. # 50].)
Mr. Brewington maintains 20/20 vision in his right eye. (PTO 5g.) At the time of
the Velcade injection, Mr. Brewington was 42 years of age. (PTO 5h.)

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The Velcade injection initially caused significant ocular inflammation in Mr.

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Brewington’s left eye. Ocular inflammation can cause pain in the inflamed area as well

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as around the eye.

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migraine-type headache. (Trial Declaration of Pradeep Prasad, M.D. (“Prasad Decl.”) ¶ 8

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[Doc. # 53].) By at least March 12, 2013, however, the ocular inflammation was fully

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resolved. (Prasad Decl. ¶ 8; Defendant’s Exhibit 101 at 724-25.) The results of an

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October 14, 2011 MRI of Mr. Brewington’s left orbit showed resolution of the globe

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enhancement, no abnormal orbital enhancement, normal appearance of the optic nerve,

This inflammation triggered Mr. Brewington’s orbital pain and

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and resolution of prior swelling of the soft tissues of the eyelid. (Prasad Decl. ¶ 9;

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Defendant’s Exhibit 101 at 44.) These results, as well as Dr. Prasad’s examination of Mr.

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Brewington’s left eye, confirmed the absence of objective signs of orbital inflammation.

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(Prasad Decl. ¶ 9.) Thus, a little after a month following the Velcade injection, signs of

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the inflammation associated with the injection had abated.

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Brewington reported that he continued to experience pain around his left eye radiating to

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the back of his head. (Id.)

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A.

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(Id.)

Nonetheless, Mr.

Treatment Since the Injury
Since the injection, Mr. Brewington has continued to receive treatment at the VA.

(PTO 5e.) He has seen medical providers in a variety of specialties, including neurology,
ophthalmology, pain management, and psychiatry. (See Defendant’s Exhibit 101.) Mr.
Brewington has also been prescribed increasing doses of opiates, such as Methadone,
Dilaudid, Fentanyl, and OxyContin, to address his complaints of pain. He has also been
taking anti-inflammatory medication and anti-anxiety medication. (See id.)
Mr. Brewington was offered but declined the opportunity to participate in the
Comprehensive Pain Management and Rehabilitation Programs at the VA hospital.

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(Trial Testimony of Quynh Pham and Hyung Kim; Defendant’s Exhibit 101 at 834 (note

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in record stated “discussed comprehensive pain and rehab program, but patient declined

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at this time”).) He also turned down the VA’s offer to attend a non-VA pain management

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program of his choice, which the VA would subsidize. (Id.; Defendant’s Exhibit 101 at

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740-42 (“Pt was once again reminded that he has been approved by the administration to

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seek outside expertise for the management of his pain.”); 746 (“Pt has been approved by

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the VA Administration to seek outside pain providers, should he wishes [sic] to seek this

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option. Pt has previously declined this option because he feels that, this being a VA-

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initiated issue, he would like the VA to address his concerns.”); 759 (“Of note, pt has

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been approved by the VA Administration to seek outside pain providers, and this option

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was presented to the patient as well, especially given the time associated with his travel

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from his residence in Pasadena to WLA.”).)

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B.

Medical Conditions

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The parties’ experts disagree as to whether Mr. Brewington suffers from Central

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Pain Syndrome, which is an irreversible condition, or from Centralized or Centralization

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of Pain syndrome, which may potentially be reversed with proper care and treatment.

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(Trial Declaration of Laura Audell (“Audell Decl.”) ¶ 14; Fisk Decl. ¶ 17e.) The Court

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cannot determine by a preponderance of the evidence which of these syndromes actually

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Pain

applies to Mr. Brewington. What the experts can agree upon, and which the Court does
find, is that Mr. Brewington suffers from chronic pain, resulting from the Velcade
injection. Without applying any labels to it, the experts appear to agree that due to
neuroplasticity, the severity or persistence of pain alters the central nervous system
pathways of pain processing, increasing the number and excitability of the nociceptors
that allow pain signals to travel through the sensory nerve fibers. (Audell Decl. ¶ 14; Fisk
Decl. ¶¶ 13-14.)

Generally, once these changes occur, a person may experience

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hyperalgesia, an increased response to a normally painful stimulus, and allodynia, a pain

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response to a stimulus that does not normally produce pain. (Id. ¶ 15.)

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According to the National Institute of Neurological Disorders and Stroke, Central

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Pain Syndrome is distinct: it is a “neurological condition caused by physical damage to

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or dysfunction of the central nervous system (CNS),” which is typically the result of

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“stroke, multiple sclerosis, tumors, epilepsy, brain or spinal cord trauma, or Parkinson’s

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Disease. . . .” (Audell Decl. ¶ 22.)

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Although Mr. Brewington posits that he has Central Pain Syndrome, there is little

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support in the record that Mr. Brewington suffers from that condition as it has been

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defined by the National Institute of Neurological Disorders and Stroke.

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First, Mr.

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Brewington has not experienced any of the typical causes of the syndrome, such as

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stroke, multiple sclerosis, tumors, epilepsy, brain or spinal cord trauma, or Parkinson’s

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Disease. (See Defendant’s Exhibit 101.) Moreover, two MRIs of Mr. Brewington’s

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brain have not revealed any evidence of physical damage to the central nervous system.

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(Trial Declaration of Edwin Amos, M.D. (“Amos Decl.”) ¶ 17 [Doc. # 65].)

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Defendant, on the other hand, asserts that Mr. Brewington has Opioid-Induced

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Hyperalgesia (“OIH”), which Defendant argues is also closely associated with altered

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central pain processing. OIH is a condition caused by exposure to opioids whereby a

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patient receiving opioids for the treatment of pain paradoxically becomes more sensitive

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to painful stimuli. (Fisk Decl. ¶ 19; Plaintiff’s Exhibit 22 (“A Comprehensive Review of
Opioid-Induced Hyperalgesia”).)
The evidence does not establish that Mr. Brewington has OIH.

One of the

hallmarks of OIH is the worsening of pain at the original site or the appearance of distant
and more diffuse pain throughout the body. (Id.) First, with respect to worsening pain,
the record does not reflect definitive instances where Mr. Brewington’s pain increased
after taking opioids or decreased after ceasing to use opioids, which would be consistent

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with OIH. Instead, Mr. Brewington has generally experienced some relief after taking

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opioids. (See, e.g., Fisk Decl. ¶ 6(13), (15), (16), (20), (30), (31) (summary of notes in

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medical record); ¶ 19.)

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Second, with respect to distant or diffuse pain, Mr. Brewington has reported pain

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in areas as disparate as his left leg and buttock and thigh areas. (See Fisk Decl. ¶ 6(28)

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(summary of September 26, 2012 note in medical record).) The parties disagree as to

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whether pain in these areas constitutes “diffuse” pain. Plaintiff asserts that diffuse pain

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would be distributed more evenly across the body and would radiate outward from a

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location on the body. Defendant, on the other hand, argues that discrete pockets of pain,

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so long as they are located other than in the left eye, indicate diffuse pain. The Court

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declines to resolve this issue in light of the conflicting medical testimony presented at

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trial.

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Although there are instances in Mr. Brewington’s medical record where OIH is

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mentioned as a possible concern, he was never diagnosed with OIH.

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Exhibit 101 at 44, 357, 362, 577, 702, 745, 759.) Nor did Mr. Brewington’s doctors at

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the VA prescribe treatment—namely, cessation of opioid use—that would be appropriate

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for an OIH diagnosis. Instead, the VA continued to prescribe opioids at ever-increasing

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dosages to Mr. Brewington. (See Defendant’s Exhibit 101.)

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(Defendant’s

In short, it has not been shown by a preponderance of the evidence in the record
that Mr. Brewington has OIH.
Although the Court cannot find by a preponderance of the evidence that Mr.
Brewington has Central Pain Syndrome, Centralization of Pain Syndrome, or OIH, the
record is clear that Mr. Brewington has chronic pain resulting from the Velcade injection.
As a result of the chronic pain, Mr. Brewington has taken increasing dosages of opioids
and, in the process, developed opioid tolerance.

(See Fisk Decl. ¶ 6(32) (“Mr.

Brewington is thinking about going off meds for a while as he believes he is developing a

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tolerance to it – in the past, this seems to have worked for him.”).) A person with opioid

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tolerance requires more opioids to achieve the same pain-dampening effect. Moreover,

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Mr. Brewington’s prolonged opioid use has exacerbated other problems, such as

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hypogonadism and sleep apnea. (See Fisk Decl. ¶ 6(28) (medical record noted secondary

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hypogonadism from pain medication use); (30) (note in medical record indicated

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concerns with prolonged regimen of high dose opioids on Mr. Brewington’s endocrine

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function, immune system function, and central sleep apnea).)

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Mr. Brewington has Medication Overuse Headaches (“MOH”). The International

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Classification of Headache Disorders (3rd edition) has defined MOH as a chronic

Medication Overuse / Rebound Headaches

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headache disorder in which the headache occurs for more than three months on 15 or

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more days per month due to regular overuse of medication. Medications most implicated

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in MOH include opioids such as methadone and dilaudid, triptans, combination

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analgesics, and anti-inflammatories. (Audell Decl. ¶ 16.)

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3.

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Mr. Brewington has depression and anxiety, which were caused by the Velcade

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injection. Both can worsen pain. (Fisk Decl. ¶ 25i, j.) Although the Court does not find

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that Mr. Brewington has OIH, his increasing tolerance to opioids has heightened his use

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of opioids. The prolonged use of opioids has affected his wellness in other areas, such as

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Depression and Anxiety

his libido and ability to sleep, deepening his depression and anxiety. This in turn has
negatively impacted his experience of pain, propelling him to seek higher dosages of
opioids to address the pain.
4.

Cognitive Dysfunction

Absent a structural brain problem or chemical meningitis, neither of which Mr.
Brewington demonstrated he has, Mr. Brewington’s cognitive dysfunction is likely due to
incompletely treated depression and narcotic medication side effects. (Amos Decl. ¶¶ 17,

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24.) Any cognitive dysfunction is thus not directly attributable to the Velcade injection

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and is potentially remediable. (Amos Decl. ¶ 21.)

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5.

Summary Prognosis

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Mr. Brewington suffered an injury to his left eye caused by an injection of

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Velcade, which caused inflammation to the orbit of the eye and the optic nerve, acute

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pain, and irreversible blindness in that eye.

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subsided, the severity or duration of the acute pain Mr. Brewington experienced changed

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the central nervous system pathways that process painful stimuli. Mr. Brewington now

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experiences chronic pain. Because of his complaints of chronic pain, Mr. Brewington

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was prescribed opioids at increasing dosages, eventually developing opioid tolerance.

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Although the orbital inflammation has

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Nothing is preventing Mr. Brewington, however, from participating in a comprehensive

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pain management and rehabilitation program. (Fisk Decl. ¶ 16.)

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The Velcade injection also led to depression and anxiety, for which he also takes

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medication. He has been or is prescribed medication for other conditions, such as sleep

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apnea, low testosterone, and hypertension. As a result of his heavy use of medication,

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Mr. Brewington experiences Medication Overuse Headaches.

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exhibits mild cognitive dysfunction, but it is not directly attributable to the injection.

Mr. Brewington also

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Mr. Brewington has retained normal sight in his right eye. Furthermore, he does

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not have deep vein thrombosis, significant cardiac disease, endocrine disease (except low

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testosterone), urologic disease (except low libido), or gastrointestinal disease.

Defendant’s Exhibit 101.) Mr. Brewington also drives an unmodified car, albeit on a
limited basis. (PTO ¶ 6b.)

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Mr. Brewington’s life expectancy as an African American 46.4-year-old male is

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28.61 years. (Declaration of Jerald Udinsky (“Udinsky Decl.”) ¶ 12.)
In light of the factual findings above, the Court concludes that, even were he to

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(See

learn to manage his pain without heavy dependence on opioid medication, Mr.

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Brewington will not be able to return to work because of his chronic pain, depression,

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and anxiety, which were caused by the injection. Given the nature and range of Mr.

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Brewington’s ailments, the prognosis for his recovery to the point where he can regain

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his ability to work is poor.

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C.

Award of Damages

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1.

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Mr. Brewington has incurred no medical expenses up to the point of trial because

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all of his care has been provided and paid for by the VA. (PTO 5e, f.) With respect to

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future medical benefits, should Mr. Brewington choose not to continue receiving medical

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care at the VA, the Affordable Care Act (“ACA”) ensures that Mr. Brewington will have

Future Health Care and Life Plan Needs

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access to insurance covering his future medical care needs as a result of the Velcade

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injection. (Pub.L. No. 111, 148, 124 Stat. 119 (Mar. 23, 2010).) Mr. Brewington has

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access to health insurance plans on California’s health benefit exchanges. (See California

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Health Benefit Exchange, http://hbex.coveredca.com/ (last visited July 16, 2015).)

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Based upon the Court’s factual findings, described supra, a review of the relevant

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health care services provided for in the parties’ respective life care plans, and Mr.

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Brewington’s access to ACA coverage, the Court finds by a preponderance of the

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evidence that $725,147.25 is a reasonable amount to award Mr. Brewington for his future

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health care expenses.

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2.

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Back and Front Pay

For 10 months prior to the Velcade injection, Mr. Brewington had not been
employed as a production scheduler. (PTO ¶ 6a.) Based upon his earning history and the
published wage data for production schedulers in Los Angeles County, Mr. Brewington’s
earning capacity in the last year that he worked prior to his injury as a contract production
scheduler was about $42,000 per year. (Declaration of Roger Thrush, Ph.D. (“Thrush
Decl.”) ¶ 6 [Doc. # 62].) Given Mr. Brewington’s lack of any documented earning

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history as a personal trainer and the absence of any reliable data on wages of self-

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employed personal trainers, it is too speculative to conclude what Mr. Brewington would

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have earned had he become a self-employed part-time personal trainer. (Id.)
As of June 30, 2015, the present cash value of Mr. Brewington’s past and future

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lost earnings as a result of the Velcade injection is $632,536.

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3.

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Based on the totality of the circumstances, and having considered the evidence and

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all of the relevant factors, the Court finds that $250,000 is reasonable compensation for

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Mr. Brewington’s past and future pain and suffering.

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Pain and Suffering Damages

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II.

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CONCLUSIONS OF LAW

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A.

California Law Applies Under the Federal Tort Claims Act

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In an action brought pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C.

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§ 2671 et seq., the law of the place where the allegedly negligent act or omission

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occurred governs the substantive law applied. 28 U.S.C. § 1346(b); Richards v. United

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States, 369 U.S. 1, 9, 82 S. Ct. 585, 591, 7 L. Ed. 2d 492 (1962). To have a cognizable

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claim, the claim must arise from the negligent or wrongful act of a government employee

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acting within the scope of his employment under circumstances where the United States,

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if it were a private individual, would be liable under the law of the state where the claim

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arose. 28 U.S.C. § 1346(b)(1); Firebaugh Canal Water Dist. v. United States, 712 F.3d

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1296, 1303 (9th Cir. 2013), cert. denied, 134 S. Ct. 1300, 188 L. Ed. 2d 303 (2014).

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California law is applicable because the accident occurred in California.

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B.

Plaintiff Must Prove His Claimed Damages Were Caused by the United

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States’ Acts

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In California, plaintiffs must prove by a preponderance of the evidence that their

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claimed damages were caused by the negligent acts or omissions of an employee of the

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United States. See 28 U.S.C. § 2674; Cal. Evid. Code § 115. Defendant admits liability

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for injecting Velcade into Mr. Brewington’s left eye, causing irreversible blindness.

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Therefore, the only element of his negligence claim is the resulting loss or damage. See

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Johnson v. Super. Ct., 143 Cal. App. 4th 297, 305 (2006).

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C.

Plaintiff’s Recovery

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1.

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To recover damages for future medical expenses, Mr. Brewington must prove by a

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preponderance of the evidence: (1) the reasonable value of each of the expected future

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medical expenses; (2) that the future medical care, services, and supplies are reasonably

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certain to be needed and given in treatment of the injury; and (3) that the condition

Economic Damages: Future Medical Expenses

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requiring the future medical care is causally connected to the injuries inflicted by the

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United States. Dimmick v. Alvarez, 196 Cal. App. 2d 211, 216, 16 Cal. Rptr. 308 (1961).

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Future medical expenses may not be awarded if they are deemed speculative. See

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Scognamillo v. Herrick, 106 Cal. App. 4th 1139, 1150-51, 131 Cal. Rptr. 2d 393 (2003).

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Defendant asserts an affirmative defense of offset for collateral sources under

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California’s Medical Injury Compensation Reform Act of 1975 (“MICRA”).

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particular, Defendant seeks to introduce evidence of Affordable Care Act coverage as a

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collateral source of future medical care expenses.

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California Civil Code, medical malpractice defendants may introduce evidence of “any

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amount payable as a benefit to the plaintiff as a result of the personal injury” under “any

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health, sickness or income-disability insurance, accident insurance that provides health

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benefits or income-disability coverage, and any contract or agreement of any group,

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organization, partnership, or corporation to provide, pay for, or reimburse the cost of

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medical, hospital, dental, or other health care services.” Cal. Civ. Code § 3333.1(a).

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“[S]ection 3333.1 does not preclude recovery of such damages, but rather, it allows the

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trier of fact to decide how to apply the evidence in calculation of damages.” S.H. ex rel.

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Holt v. United States, No. 2:11-CV-01963-MCE, 2014 WL 5501005, at *3 (E.D. Cal.

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Oct. 30, 2014) (quoting Hernandez v. Cal. Hosp. Med. Ctr., 78 Cal. App. 4th 498, 506,

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93 Cal. Rptr. 2d 97 (2000)) (internal quotation marks and brackets omitted).

In

Under Section 3333.1(a) of the

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Although the Ninth Circuit determined in Taylor v. United States, 821 F.2d 1428,

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1431-32 (9th Cir. 1987), that Section 3333.2 applies to FTCA actions, it has not explicitly

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held yet that Section 3333.1(a) applies to an FTCA action. S.H., 2014 WL 5501005, at

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*4. Nor has it decided whether Section 3333.1(a) allows introduction of future collateral

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source benefits.

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consideration. See Silong v. United States, 2007 WL 2580543, at *13-18 (E.D. Cal. Sept.

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5, 2007) (finding that Section 3333.1 allows the trier of fact to determine how to apply

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future insurance benefits to damages calculation.); Leung v. Verdugo Hills Hosp., 2013

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WL 221654, at *4 (Jan. 22, 2013) (assuming without deciding that “the statute permits a

Other district courts have taken future insurance benefits into

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defendant to introduce evidence of future insurance benefits that the plaintiff is

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reasonably certain to receive”). Thus, this Court finds it appropriate to take insurance

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benefits available under the ACA into consideration in calculating reasonable future life

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care plan needs.

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2.

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To recover damages for lost earnings, Mr. Brewington must prove by a

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preponderance of the evidence the reasonable amount of the earnings lost on account of

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his injuries from the injection. CACI No. 3903C (Sept. 2003). To recover damages for

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future loss of earnings or earning capacity, Mr. Brewington must prove by a

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preponderance of the evidence the following: (1) the reasonable amount of the expected

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future income, earnings, salary, or wages; (2) that Mr. Brewington is reasonably certain

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to lose such future income, earnings, salary, or wages; and (3) that the future lost income,

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earnings, salary, or wages is causally connected to the injuries inflicted by the United

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States. CACI No. 3903C (Sept. 2003).

Economic Damages: Lost Earnings

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3.

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There is no fixed standard to calculate the amount a plaintiff is entitled to for pain

Noneconomic Damages: Pain and Suffering

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and suffering.

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reasonable and based on the evidence and factfinder’s common sense. CACI No. 3905A

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(Dec. 2009). In addition, any award of pain and suffering damages must be causally

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connected to the tortious act. Miller v. San Diego Gas & Elec. Co., 212 Cal. App. 2d

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555, 558, 28 Cal. Rptr. 126 (1963).

Any damages awarded for pain and suffering, however, must be

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MICRA caps a plaintiff’s recovery of noneconomic damages for pain and suffering

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at $250,000. Cal. Civ. Code § 3333.2b; Taylor, 821 F.2d at 1431-32 (MICRA applies to

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medical malpractice cases brought under the FTCA).

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4.

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The above findings of fact were made in recognition of California law, which has

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long required plaintiffs to “take reasonable steps to mitigate [their] damages” and bars

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“recover[y] for any losses which could have been thus avoided.” Shaffer v. Debbas, 17

The Duty to Mitigate

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Cal. App. 4th 33, 41, 21 Cal. Rptr. 2d 110 (1993). Mr. Brewington’s future medical

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expenses and pain and suffering damages have been caused at least in part by his failure

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to mitigate damages by accepting the VA’s repeated offers of a comprehensive pain

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management and rehabilitation program. Although its conclusion is tempered by the fact

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that successful completion of such a program depends in large part on an individual’s

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motivation to reduce opioid dependence and manage one’s pain using alternative

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techniques, the Court concludes that Mr. Brewington could have avoided some of his

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future medical expenses and pain and suffering (both as a direct result of the injection

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and as a side effect of his medication use) by agreeing to attend a comprehensive pain

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management and rehabilitation program whether at the VA or elsewhere. Accordingly,

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the Court took Plaintiff’s failure to mitigate into account in calculating damages.

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5.

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Attorney’s fees are limited to a maximum of 25% of any recovery. 28 U.S.C. §

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Attorney’s Fees

2678.

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III.

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CONCLUSION

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In light of the foregoing, the Court awards Plaintiff Stephan Brewington

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$725,147.25 in future medical expenses; $632,536 in past and future lost earnings; and

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$250,000 in noneconomic damages.

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reasonable attorney’s fees within 30 days from the date of this Order.

Plaintiff’s counsel may submit a motion for

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DATED: July 24, 2015

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DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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