Stalvey et al v. United States Of America

Filing 77

ORDER re 70 Appeal of Magistrate Judge Decision to District Court. Plaintiff's Objection is OVERRULED, and the Magistrate's Order is AFFIRMED. Since the Court addressed the substance of Defendant's two Rule 52(c) motions in this Order, both are DENIED as moot. The Plaintiff is entitled to recover from the Defendant the sum of $68,716.33. The Clerk is DIRECTED to close this case. Signed by Judge Lisa G. Wood on 4/9/2020. (ca)

In the United States District Court
for the Southern District of Georgia
Waycross Division

FILED
Scott L. Poff, Clerk
United States District Court

By CAsbell at 12:46 pm, Apr 09, 2020

DONALD IVEY STALVEY, JR.
Plaintiff,
v.

No. 5:18-cv-019

UNITED STATES OF AMERICA,
Defendant.

ORDER
On October 15, 2019, the Court conducted a bench trial in the
above-captioned case. After hearing testimony from Mr. Stalvey and
his wife, viewing the videotaped trial deposition of Mr. Stalvey’s
treating physician, Dr. Hellman, hearing the cross-examination of
Defendant’s expert witness, Dr. Sofianos, and considering all the
evidence tendered at the trial, the Court makes the following
findings of fact and conclusions of law pursuant to Rule 52 of the
Federal Rules of Civil Procedure.
Firstly,

however,

Plaintiff

objected

to

the

Magistrate

Judge’s Order excluding his treating physician, Dr. Hellman, from
testifying

on

causation.

Dkt.

No.

70;

see

Dkt.

No.

66.

His

objection is fully briefed by the parties, dkt. nos. 70, 71, 75,
and ripe for review. For the reasons below, Plaintiff’s objection,

dkt. no. 70, is OVERRULED and the Magistrate Judge’s Order is
AFFIRMED.
I.

PLAINTIFF’S OBJECTION TO THE MAGISTRATE JUDGE’S ORDER
On October 8, 2019, the Magistrate Judge issued an Order,

dkt. no. 66, granting Defendant’s motion to exclude Dr. Hellman’s
testimony

on

causation,

dkt.

no.

57,

and

denying

as

moot

Defendant’s motion in limine regarding the same, dkt. no. 65. In
his Order, the Magistrate Judge reasoned that since there was
“nothing in Dr. Hellman’s testimony or in the medical records
demonstrating

that

Dr.

Hellman

considered,

evaluated,

or

determined the cause of Plaintiff’s injuries during the course of
treatment or that such a determination was material in any way to
Plaintiff’s treatment,” Dr. Hellman could not testify about the
cause of Mr. Stalvey’s injuries without first providing an expert
witness

report

pursuant

to

Federal

Rule

of

Civil

Procedure

26(a)(2)(B). See Dkt. No. 66.
On October 12, 2019, Plaintiff filed his objection to the
Magistrate Judge’s Order. Dkt. No. 70. There, Plaintiff argued
that the Order “established a rule that is impossible for any
treating physician to meet,” and, moreover, one which is contrary
to case law, Federal Rule of Civil Procedure 26(a)(2)(C), and
Federal Rule of Evidence 702. Id. at 6. Defendant responded by
arguing that the Order did not establish new law but instead

2

“correctly applied governing law” to the facts of this case. Dkt.
No. 71 at 1, 2. Defendant has the better argument.
A.

Standard of Review

When considering a party’s objections to a magistrate judge’s
ruling on a non-dispositive matter, the district judge must “modify
or set aside any part of the order that is clearly erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a). Otherwise, the magistrate
judge’s ruling stands. “A ruling is clearly erroneous where either
the magistrate judge abused his discretion or the district court,
after reviewing the entirety of the record, is left with a definite
and firm conviction that a mistake has been made.” Jackson v. Deen,
No. 4:12-CV-139, 2013 WL 3991793, at *2 (S.D. Ga. Aug. 2, 2013)
(citing Pigott v. Sanibel Dev., LLC, No. CIVA 07-0083, 2008 WL
2937804, at *5 (S.D. Ala. July 23, 2008)). A decision by the
magistrate judge is contrary to law when it “fails to follow or
misapplies the applicable law.” Id. (citations omitted).
B.

Discussion

In his Order granting Defendant’s motion to exclude the
testimony of Dr. Hellman, dkt. no. 66, the Magistrate Judge held
that

Dr.

Hellman——although

disclosed

as

a

Rule

26(a)(2)(C)

witness——was still required to provide a Rule 26(a)(2)(B) report
because he intended to offer opinion testimony on causation that
he formed beyond his course of treatment for Mr. Stalvey. Indeed,
Dr. Hellman’s opinion regarding the cause of Mr. Stalvey’s injuries

3

was developed beyond his course of treatment. As the Magistrate
Judge noted, there is nothing in Dr. Hellman’s deposition testimony
or

medical

records

that

shows

he

considered,

evaluated,

or

determined the cause of Mr. Stalvey’s injuries. Similarly, Dr.
Hellman makes no mention in his deposition or medical records as
to how his perceived cause of Mr. Stalvey’s injuries was material
to his diagnosis or treatment of Mr. Stalvey.
Based on these facts, the Magistrate Judge’s holding is
squarely

in

line

with

current

caselaw

on

this

issue.

See

Kondragunta v. Ace Doran Hauling & Rigging Co., No. 1:11-cv-01094,
2013 WL 1189493, at *3 (N.D. Ga. Mar. 21, 2013) (a properly
disclosed treating physician expert can testify on causation, so
long as they formed that opinion during their course of treatment);
In

re

Denture

Cream

Prods.

Liab.

Litig.,

No.

09-2051,

2012

WL 5199597, at *4 (S.D. Fla. Oct. 22, 2014) (holding that when a
proponent of the treating physician’s testimony fails to show that
his or her opinions are based on observations made during the
course

of

treatment,

Rule

26(a)(2)(B)

reports

are

required);

Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 826
(9th Cir. 2011) (same); Advendt v. Covidien, Inc., 314 F.R.D. 547,
555 (E.D. Mich. 2016) (same).
Despite Plaintiff’s failure to provide Defendant with a Rule
26(a)(2)(B) report, the Magistrate Judge was still willing to
permit Dr. Hellman’s causation testimony to be heard at trial

4

because Defendant did not argue that the lack of Dr. Hellman’s
report was unjustified, prejudicial, or surprising. See Fed. R.
Civ. P. 37(c)(1) (the Court may admit a Rule 26(a)(2)(B) expert’s
testimony without a report if failure to provide the report is
“substantially justified or is harmless”). However, the Magistrate
Judge ruled that Mr. Stalvey could present such testimony only if
Dr. Hellman’s testimony survived the scrutiny of Federal Rule of
Evidence 702. See United States v. Henderson, 409 F.3d 1293, 1300
(11th Cir. 2005). It did not, and the Magistrate Judge properly
excluded the testimony.
Here,

the

Magistrate

Judge

held

that

Dr.

Hellman’s

methodology was unreliable and that his testimony would ultimately
be unhelpful to the jury. This conclusion was not erroneous, nor
was it contrary to law. First, Dr. Hellman’s testimony and writings
show how he identified Plaintiff’s injuries (MRI scans, x-rays,
and physical exams) and how he determined which injuries caused
Plaintiff to experience pain (history), but——as the Magistrate
Judge points out——“nothing in the record shows how Dr. Hellman
determined that the October 26, 2015 accident caused Plaintiff’s
injuries.” Dkt. No. 66 at 14. At best, Dr. Hellman notes the
temporal relationship between the accident and the onset of Mr.
Stalvey’s pain; however, that is not enough to carry the day under
a Daubert analysis. McClain v. Metabolife, Int’l, Inc., 401 F.3d
1233, 1243 (11th Cir. 2005) (assuming causation from a temporal

5

relationship is a post hoc ergo propter hoc logical fallacy). Since
Dr. Hellman’s testimony is based on an unreliable methodology, it
is unhelpful to the factfinder. Daubert, 509 U.S. at 591. Under
these facts, the Magistrate Judge’s conclusion that Dr. Hellman’s
causation testimony should be excluded for failing to meet the
requirements of Rule 702, Daubert, and its progeny was not clearly
erroneous nor was it contrary to law. Accordingly, Plaintiff’s
objection, dkt. no. 70, is OVERRULED and the Magistrate Judge’s
Order, dkt. no. 66, is AFFIRMED. Dr. Hellman’s causation testimony
was properly excluded.
II.

FINDINGS OF FACT
The Court makes the following findings of fact:
1.
At the time of trial, Donald Stalvey was 44 years old. He is

married to Candace Stalvey. Together they have two minor children:
an eleven-year-old girl and a seven-year-old boy. Mr. Stalvey has
an adult child from a previous marriage.
2.
Prior to the accident, Mr. Stalvey had no back or neck pain.
Although Mr. Stalvey had degenerative disc disease and arthritis
prior

to

the

significant.

accident,

Mr.

Stalvey

the

conditions

was

asymptomatic

treatment for those underlying conditions.

6

were
and

not

clinically

never

received

3.
There is no medical evidence or testimony that Mr. Stalvey
suffered

from

herniated

discs

or

bulging

discs

prior

to

the

accident.
4.
Prior to the accident, Mr. Stalvey enjoyed watching his
children participate in sporting events and roughhousing with his
young son.
5.
Prior to the accident, Mr. Stalvey played bass in his church’s
praise band and helped other men at the church set up chairs and
tables for social gatherings.
6.
Mr. Stalvey owns and operates Stalvey Heating and Cooling.
His work history prior to the accident primarily consisted of
manual labor. At Stalvey Heating and Cooling, Mr. Stalvey ran the
office and installed products for customers. This occasionally
involved crawling under houses, stooping in attics, and lifting
HVAC units.
7.
Mr. Stalvey owns a blueberry farm and tends honeybees. Prior
to the accident, Mr. Stalvey tended to his blueberry farm and
beehives without incident and could maintain the family home
without assistance.

7

8.
Prior to the accident, Mr. Stalvey played a larger role in
planning, traveling to, and participating in family vacations.
9.
On October 26, 2015, at approximately 2:54 p.m., Mr. Stalvey
was the front passenger in a 2014 Chevrolet Silverado traveling
northbound on Georgia Highway 11 at approximately 55 miles per
hour. Mr. Stalvey’s adult daughter was driving the Silverado, which
was owned by Stalvey Heating and Cooling.
10.
At the same time, D’Arcy Nicole Jackson was operating her
personal vehicle, a 2000 Jeep Cherokee, traveling west on Norman
Eva Road.
11.
Norman Eva Road and Georgia Highway 11 intersect in Echols
County, Georgia, with vehicles on Georgia Highway 11 having the
right-of-way.
12.
Although the Silverado occupied by Mr. Stalvey had the rightof-way, Ms. Jackson failed to yield at a stop sign and struck the
Silverado in the intersection of Norman Eva Road and Highway 11.

8

13.
At the time of the collision, Ms. Jackson was a rural letter
carrier employed by the United States Postal Service and she was
acting within the scope of her employment with the United States.
14.
Following

the

accident,

Plaintiff

amassed

the

following

medical bills:
A.

CRH Physician Practices

$150.00

B.

Schumachergroup (Emergency Treatment)

$1,213.00

C.

Radiology Associates of South Georgia

$98.00

D.

Douglas Spine Center

$1,803.00

E.

Georgia Sports Medicine

$1,099.00

F.

Open MRI of Douglas

$4,200.00

G.

Rehab Services of Coffee County

$1,389.00

H.

The Medicine Cabinet

$164.33

Total:

$10,116.33
15.

Mr. Stalvey experienced pain following the accident but did
not seek medical treatment until the following day, October 27,
2015. On that date, he presented to the Coffee County Regional
Hospital’s emergency room in Douglas, Georgia complaining of neck
and back pain. He was charged $1,213 for this hospital visit.
X-rays were taken during this visit, for which Mr. Stalvey was
charged $98.00.

9

16.
On October 29, 2015, Mr. Stalvey sought treatment at CRH
Physician Practices. Mr. Stalvey was charged $150.00 for the visit.
17.
From November 9, 2015 to January 6, 2016, Mr. Stalvey received
chiropractic treatment from Dr. Luis D. Rojas, D.O. of the Douglas
Spine Center. Mr. Stalvey was treated by Dr. Rojas seventeen times.
Mr.

Stalvey

has

submitted

medical

bills

for

eight

of

those

seventeen visits (November 9, 2015 through December 4, 2015) for
a total of $1,048.00; however, the account balance reflected on
the account statement is $1,803.00.
18.
At the end of his last visit on January 6, 2016, Dr. Rojas
recommended Mr. Stalvey consult an orthopedist to further evaluate
his neck.
19.
On January 27, 2016, Mr. Stalvey began treatment with Dr.
Hellman, an orthopedist at Georgia Sports Medicine. Mr. Stalvey
saw Dr. Hellman, or one of his physician’s assistants, at Georgia
Sports Medicine, nine times from January 27, 2016 through the date
of the trial. The last time Mr. Stalvey received treatment at
Georgia Sports Medicine prior to the trial was July 12, 2019.

10

20.
On January 27, 2016, Dr. Hellman noted that Mr. Stalvey’s
back

pain

was

quite

a

bit

better

and

was

almost

completely

resolved; however, Mr. Stalvey continued to complain of neck pain
as a result of the motor vehicle accident. This neck pain prompted
him to visit Dr. Hellman.
21.
On February 10, 2016, Mr. Stalvey presented to Dr. Hellman’s
office as a follow-up to his previous appointment and to review an
MRI of his neck. The MRI of his neck revealed a disc herniation at
the C5-6 level. Mr. Stalvey presented with no complaints of back
pain.
22.
On May 24, 2016, Mr. Stalvey presented to Dr. Hellman’s office
as a follow-up to his previous appointment regarding neck pain
following a motor vehicle accident. Mr. Stalvey presented with no
complaints of back pain.
23.
On October 19, 2016, Mr. Stalvey presented to Dr. Hellman’s
office as a follow-up to his previous appointment regarding neck
pain following a motor vehicle accident. Mr. Stalvey presented
with no complaints of back pain.

11

24.
On May 5, 2017, Mr. Stalvey presented to Dr. Hellman’s office
as a follow-up to his previous appointment regarding neck pain
following a motor vehicle accident. Mr. Stalvey presented with no
complaints of back pain. Dr. Hellman noted that Mr. Stalvey managed
his neck pain for the past seven months by taking prescription
pain medication occasionally; however, Mr. Stalvey’s pain was
aggravated when he rode his tractor (during which he bounced up
and down and looked over his shoulder frequently).
25.
On September 5, 2018, Mr. Stalvey presented to Dr. Hellman
complaining of neck pain. For the first time, Mr. Stalvey also
complained of back pain. The appointment was not a follow-up from
Mr. Stalvey’s prior appointments; however, Dr. Hellman noted that
Mr. Stalvey had a similar complaint of neck pain in 2017, that it
was ongoing, and that he presented in the office for some relief.
26.
On October 15, 2018, Mr. Stalvey presented to Dr. Hellman’s
office as a follow-up to his previous appointment regarding neck
and back pain. Mr. Stalvey also presented to review the findings
of a recent cervical spine MRI. At this appointment, Dr. Hellman
ordered an MRI of Mr. Stalvey’s lumbar spine.

12

27.
On February 6, 2019, Mr. Stalvey presented to Dr. Hellman’s
office as a follow-up to his previous appointment regarding back
pain and to review an MRI of his lumbar spine. He did not present
to Dr. Hellman to receive treatment for his neck pain.
28.
On July 12, 2019, Mr. Stalvey presented to Dr. Hellman’s
office to recheck his neck and back pain. Mr. Stalvey stated that
working on his blueberry farm increased his back pain.
29.
Mr. Stalvey only submitted medical bills for six of his visits
with Dr. Hellman: January 27, 2016, February 10, 2016, May 24,
2016, October 19, 2016, September 5, 2018, and October 15, 2018.
None of the submitted medical bills were for visits or procedures
related exclusively to complaints of back pain. The total for these
visits is $1,099.00.
30.
At all of Mr. Stalvey’s appointments, Dr. Hellman recommended
conservative treatment of his neck or back pain. Dr. Hellman wrote
Mr. Stalvey a prescription for pain medication at each visit.
31.
Since the accident, Mr. Stalvey underwent three MRIs. On
February 2, 2016 and on October 4, 2018, he underwent an MRI of
his cervical spine. Both revealed disc herniation at the C5-6. On

13

January 30, 2019, Mr. Stalvey underwent an MRI of his lumbar spine.
This revealed a disc herniation there too. The cost of each MRI
was $1,400.00, for a total of $4,200.00.
32.
Dr. Hellman referred Mr. Stalvey to Rehab Services of Coffee,
Inc. to receive treatment for his neck and back pain. From December
20, 2018 to March 12, 2019, Mr. Stalvey received such treatment on
eight

occasions.

He

submitted

medical

bills

for

all

eight

occasions, totaling $1,389.00.
33.
Mr. Stalvey received prescription medication to help manage
his pain; however, he did not always get them refilled. Instead,
Mr. Stalvey took——and continues to take——anti-inflammatory overthe-counter medication, used (and continues to use) icepacks, and
applied (and continues to apply) CBD oil to help alleviate his
pain. Mr. Stalvey is afraid of becoming addicted to prescription
pills and limits their use. Mr. Stalvey has spent $164.33 at the
Medicine Cabinet filling these prescriptions.
34.
Mr. Stalvey presented no credible evidence showing that his
injuries are permanent.

14

35.
Mr. Stalvey established that he suffered pain in his lumbar
spine after the accident. That pain resolved itself within three
months of the accident.
36.
The

lumbar

pain

he

is

currently

experiencing

was

first

documented in his medical records on September 5, 2019 and was
noted as “recent” at that time.
37.
Mr.

Stalvey

has

established

that

he

experienced

pain

originating from his cervical spine, received treatment for that
pain, and that the pain was related to the car accident involving
Ms. Jackson.
38.
Mr. Stalvey has established with the requisite degree of proof
that he will return to the doctor for medical treatment related to
the pain in his cervical spine; however, Mr. Stalvey has not
established with the requisite degree of proof the frequency of
those visits, the treatment he will receive, or the cost of such
treatment.
39.
Mr. Stalvey presented no evidence that he is permanently
disabled because of the accident. Mr. Stalvey has presented no

15

evidence that he currently has any disability rating because of
the accident.
40.
Although the pain has impacted his life, Mr. Stalvey is still
able to do most of the activities he did prior the accident;
however, he can no longer do them as comfortably.
41.
Although Mr. Stalvey has been able to maintain his role as
the owner and operator of Stalvey Heating and Cooling, he is now
limited in what he can do for the company. Due to his neck pain,
his tasks at work have shifted from servicing customer’s homes to
working from the office. In addition, Mr. Stalvey has had to hire
help to perform some of the work he was doing prior the accident,
like crawling under houses, climbing into attics, and lifting HVAC
units. Mr. Stalvey presented no evidence regarding the cost of
hiring this additional help.
42.
Prior to the accident, Mr. Stalvey harvested honey. Doing so
required

lifting

wooden

boxes

full

of

honey

that

weighed

approximately 75-80 pounds. Mr. Stalvey can no longer perform these
tasks. Although Mr. Stalvey keeps bees still, he is no longer
active with regard to handling the honey.

16

43.
Mr. Stalvey can no longer perform household duties that
require heavy lifting including moving furniture and maintaining
the home. Now, he must hire people to perform those tasks. Mr.
Stalvey’s inability to lift heavy objects due to his neck pain
results in Mrs. Stalvey performing most of the household chores,
like bringing in the groceries.
44.
Mr. Stalvey’s ongoing neck pain has had some impact on his
ability to enjoy life. Mr. Stalvey still travels and vacations
with

his

family.

He

still

watches

his

children

play

sports.

However, those experiences are no longer pain free.
45.
Although Mr. Stalvey still travels, Ms. Stalvey has taken
over most of the driving responsibilities. Mr. Stalvey travels
with a special pillow to make his ride in the car more comfortable.
46.
Mr. Stalvey can no longer wrestle and roughhouse with his son
like he did before the accident. This causes Mr. Stalvey to feel
like he is not the father he should be.
47.
Although Mr. Stalvey still plays the guitar at his church,
the strap around his neck and shoulders now causes discomfort.

17

48.
The neck pain Mr. Stalvey experiences interrupts his sleep.
49.
Taken together, Mr. Stalvey has shown that the accident has
caused pain in his back that resolved itself three months after
the accident. Mr. Stalvey has also shown that the accident caused
neck pain that continues to the present day; however, the pain——
in frequency, duration, and severity——is inconsistent. Most days
it is managed by over-the-counter drugs. Some days it is managed
by ointments and creams. On other days, it is managed by prescribed
narcotics. On rare occasions, it is worth scheduling a visit with
Dr. Hellman. Although it impacts Mr. Stalvey’s life, the pain has
by no means immobilized him. He can carry on a relatively normal
life.
50.
Mr. Stalvey’s neck pain is exacerbated by certain activities:
heavy lifting, driving his tractor, vigorous exercise, extended
time riding in the car, and sitting on bleachers without back
support for extended periods of time.
III. CONCLUSIONS OF LAW
The Court makes the following conclusions of law:
1.
This action is brought by Mr. Stalvey under the Federal Tort
Claims Act. 28 U.S.C. §§ 2671 et seq. Because the motor vehicle

18

accident giving rise to this action occurred in Georgia, Georgia’s
substantive tort law applies. 28 U.S.C. § 1346(b)(1).
2.
To prevail on an ordinary negligence cause of action under
Georgia law, a plaintiff must establish the essential elements:
duty, breach of duty, direct and proximate cause, and damages. The
plaintiff bears the burden of proof. The plaintiff must prove his
case by a preponderance of the evidence. When the defendant has
admitted negligence, the plaintiff must still prove causation and
damages. Arch Ins. Co. v. Clements, Purvis & Stewart, P.C., 850
F. Supp. 2d 1371, 1374 (S.D. Ga. 2011); see also Hunsucker v.
Belford, 304 Ga. App. 200, 201 (2010).
3.
A defendant may be held liable for an injury when that person
commits a negligent act that puts other forces in motion or
operation resulting in the injury when such other forces are the
natural and probable result of the act that the defendant committed
and that reasonably should have been foreseen by the defendant.
4.
Ordinary negligence means the absence of or the failure to
use the degree of care an ordinarily careful person would use under
the same or similar circumstances. Before a plaintiff can recover
damages from a defendant, there must be injury to the plaintiff
resulting from the defendant’s negligence.

19

5.
No plaintiff may recover for injuries or disabilities that
are not connected with the act or omission of the defendant in
this case. There can be no recovery for the plaintiff for any
injury

or

disability

that

was

not

proximately

caused

by

the

incident in question.
6.
Proximate cause is that which, in the natural and continuous
sequence, unbroken by other causes, produces an event and without
which the event would not have occurred. Proximate cause is that
which

is

nearest

in

the

order

of

responsible

causes,

and

distinguished from remote, that which stands last in causation,
not necessarily in time or place, but in causal relation.
7.
Expert testimony is not required when the facts show that the
alleged negligence caused the injury and it would be a matter of
common knowledge and observation that such an injury would not
have occurred if an act had been performed with ordinary skill and
care. However, “expert evidence is required where a ‘medical
question’ involving truly specialized medical knowledge (rather
than

the

sort

of

medical

knowledge

that

is

within

common

understanding and experience) is needed to establish a causal link
between

the

defendant’s

conduct

and

the

plaintiff’s

injury.”

Cowart v. Widener, 287 Ga. 622, 622 (2010) (emphasis in original).

20

8.
Expert testimony is not necessary “to prove causation of an
injury”

when

there

is

a

“short

lapse

of

time”

between

the

automobile accident and the treatment of an orthopedic injury (like
neck

or

back

pain)

which

the

plaintiff

“attributes

to

the

accident,” particularly when the reported pain is “previously
unexperienced” and onsets “within days of an accident and resulting
treatment.” Lancaster v. USAA, 223 Ga. App. 805, 807 (1998). In
such situations, “a [factfinder] could conclude there was a causal
connection as a matter of common sense based on the plaintiff’s
testimony and medical bills.” Id.
9.
The opposite is also true. Where the complained-of injury is
not temporally related to the accident, there must be expert
testimony connecting the complained-of injury to the accident. See
id. at 807-08. Indeed, making such a causal connection requires an
expert to answer “specialized medical questions” that are “beyond
the lay juror’s capacity.” Cowart, 287 Ga. at 627, 629.
10.
A plaintiff can also recover for aggravation of a preexisting
condition

that

was

present

prior

to

the

accident

if

exacerbation was caused by the negligence of the defendant.

21

such

11.
“Georgia law requires a claimant to prove with reasonable
certainty not only that he will sustain future medical expenses,
but

also

the

amount

of

such

expenses.”

Hendrix

v.

Raybestos

Manhattan, Inc., 776 F.2d 1492, 1507 (11th Cir. 1985). “Where a
party sues for damages, he has the burden of proof of showing the
amount of loss in a manner in which the jury . . . can calculate
the amount of the loss with a reasonable degree of certainty. An
allowance

for

damages

cannot

be

based

on

guess

work.”

Id.

(quotation omitted); see also Head v. Target Corp., No. 4:09-CV0012-HLM, 2009 WL 10664782 (N.D. Ga. Dec. 3, 2009); Bennet v.
Haley, 132 Ga. App. 512, 515 (1974).
12.
Pain and suffering is a legal item of damages. The measure is
the enlightened conscience of a fair and impartial adjudicator.
Questions of whether, how much, and how long the plaintiff has
suffered or will suffer are for the fact-finder to decide. Pain
and suffering include mental suffering, but mental suffering is
not a legal item of damage unless there is physical suffering also.
Anxiety, shock, and worry are examples of what might be included
under mental pain and suffering, and loss of capacity to work or
labor, separately from earnings, may be considered as an item
causing mental suffering.

22

13.
If the plaintiff’s pain and suffering will continue, then
there should be an award for damages for such future pain and
suffering as the plaintiff will endure. In making such award, the
standard is that of the enlightened conscience of an impartial
adjudicator. The fact-finder may take into consideration the fact
that the plaintiff is receiving a present cash award for damages
not yet suffered.
14.
In a civil action against the United States, no attorney shall
charge, demand, receive, or collect for services rendered, fees in
excess of 25% of any judgment rendered. 28 U.S.C. § 2678.
IV.

Mixed Findings of Fact and Conclusions of Law
The Court makes the following mixed findings of fact and

conclusions of law:
1.
Ms. Jackson was negligent at the time of the November 2015
accident and is entirely at fault for the accident.
2.
The Defendant, the United States of America, is vicariously
liable for Ms. Jackson’s negligence.
3.
Expert

testimony

is

not

required

to

establish

that

the

accident was the cause of Mr. Stalvey’s neck pain from the date of

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the accident to the present. Defendant is liable to Plaintiff for
damages arising from that neck pain.
4.
Expert testimony is not required to established that the
accident was the cause of Mr. Stalvey’s back pain from the date of
the accident to January 2016. Defendant is liable to plaintiff for
damages arising from that back pain.
5.
The preponderance of the credible evidence shows that Mr.
Stalvey’s back pain resolved itself within three months of the
accident. It then resurfaced almost three years later. Given the
lack of temporal proximity, the causal connection between the 2015
accident and Mr. Stalvey’s 2018 lumbar spine disc herniation
presents a specialized medical question that a factfinder cannot
determine without expert testimony. Accordingly, Plaintiff did not
prove that the accident was the cause of his most recent back pain.
Therefore, Defendant is not liable to Plaintiff for damages arising
from his post-2018 back pain.
6.
Although Plaintiff claimed additional amounts at trial, the
Court

finds

that

the

Defendant

is

liable

for

the

following

submitted and itemized medical expenses, totaling $8,716.33:
A.

CRH Physician Practices

$150.00

B.

Schumachergroup (Emergency Treatment)

$1,213.00

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C.

Radiology Associates of South Georgia

$98.00

D.

Douglas Spine Center

$1,803.00

E.

Georgia Sports Medicine

$1,099.00

F.

Open MRI of Douglas

$2,800.00

G.

Rehab Services of Coffee County

$1,389.00

H.

The Medicine Cabinet

$164.33

Total:

$8,716.33
7.

The United States is not liable for the cost of Mr. Stalvey’s
2019 MRI of his lumbar spine.
8.
After considering the evidence and weighing the credibility
of the witnesses, the Court finds that Mr. Stalvey failed to prove
that he is entitled to compensation for future medical expenses.
Although Plaintiff proved it is reasonably certain that he will
have future medical expenses, he did not prove the nature or extent
of the treatment that might be required, nor did he prove the cost
of such treatment. Plaintiff’s attorney’s “take” on how this Court
should calculate Mr. Stalvey’s future medical needs lacked any
degree of certainty or even probability. The Georgia Court of
Appeals has previously rejected such calculations as “conjecture
and speculation.” Bennett, 132 Ga. App. at 515. Here, this Court
does the same.

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9.
After reviewing and solemnly considering the evidence and
testimony presented at trial, the enlightened conscience of this
Court finds that Mr. Stalvey should be awarded $60,000.00 for pain
and suffering.
10.
Attorney’ fees in this matter are governed by the Federal
Torts Claim Act. 28 U.S.C. § 2678. As such, they will be deducted
from the total judgment awarded.
V.

CONCLUSION
For the reasons provided above, Plaintiff’s Objection to the

Magistrate Judge’s Order, dkt. no. 70, is OVERRULED. Since the
Court addressed the substance of Defendant’s two Rule 52(c) motions
in this Order, both are DENIED as moot. Finally, the Plaintiff is
entitled to recover from the Defendant the sum of $68,716.33. The
Clerk is DIRECTED to close this case.
SO ORDERED, this 9th day of April, 2020.

_
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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