Moe v. United States of America

Filing 42

DECISION AND ORDER denying 25 Motion in limine, awarding plaintiff $300,000 for past pain and suffering, $150,000 for future pain and suffering and $11,242.82 for medical expenses incurred. Signed by Hon. Richard J. Arcara on 12/2/2010. Clerk of Court to close case. (JMB)

Moe v. United States of America

Doc. 42

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

K A R E N M. MOE, P la in tiff, D E C IS IO N AND ORDER 0 6 -C V -5 7 7 A v.

UNITED STATES OF AMERICA, D e fe n d a n t.

I.

IN T R O D U C T IO N P e n d in g before the Court is the final resolution of plaintiff's damages

c la im s , following a bench trial and subject to defendant's pending motion in lim in e . Plaintiff seeks both economic and non-economic damages stemming fro m a motor-vehicle accident in which an employee of defendant struck plaintiff's m o to rc yc le while on duty with the United States Postal Service. Having p re vio u s ly awarded plaintiff summary judgment as to liability, the Court presided o ve r a bench trial1 as to damages on May 5, May 6, and June 23, 2010. After b rie fin g from the parties, the Court held oral argument regarding proposed fin d in g s of fact and conclusions of law on October 15, 2010. Upon consideration

As the federal government was the sole defendant in this case, the F e d e ra l Tort Claims Act ("FTCA"), 60 Stat. 842 (codified as amended in scattered s e c tio n s of 28 U.S.C.), required the Court to conduct the trial without a jury. See 2 8 U.S.C. § 2402.

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of all of the evidence admitted at trial and of all of the papers and arguments s u b m itte d by the parties, the Court will deny defendant's motion in limine and a w a rd plaintiff damages as explained below. II. B AC K G R O U N D AND FINDINGS OF FACT T h e following constitutes the Court's findings of fact pursuant to Rule 52 of th e Federal Rules of Civil Procedure. A. P e rtin e n t Events

T h is case concerns a motor vehicle accident that occurred on August 28, 2 0 0 3 , at the intersection of Tonawanda Creek Road and Orbit Drive in Amherst, N e w York. That day, postal worker Robin Truby2 was delivering mail along her re g u la r delivery route in the ordinary course of her employment with the United S ta te s Postal Service ("USPS"). The USPS considered Ms. Truby's delivery ro u te to be a rural route. Although not a lot of background details emerged at tria l, the nature of Ms. Truby's rural route and the logistics of accommodating ru ra l routes led USPS to instruct Ms. Truby to work her delivery route in a p a rtic u la r way. In accordance with USPS instructions, Ms. Truby worked her ro u te with her own vehicle, a white Buick LeSabre sedan. In contrast to USPSis s u e d delivery vehicles, which are built with or adapted to right-hand drive to p la c e postal workers within arm's reach of rural mailboxes while driving, Ms.

The Court found Ms. Truby generally credible to the extent that she could re c a ll details of the accident. 2

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Truby's personal vehicle featured the common left-hand drive configuration. To c o m p e n s a te for Ms. Truby's inability to reach mailboxes from the driver's side of h e r vehicle, USPS instructed her to sit in the front passenger's seat and to reach o ve r with her left arm and left foot to operate the vehicle. Ms. Truby then would p ro c e e d to drive along the shoulder of any road on her route, stopping at each m a ilb o x. The instructions that USPS gave Ms. Truby are important because the a lte re d angles from which Ms. Truby would have been looking out of her vehicle's m irro rs almost certainly factored into the events that followed. A "misdelivery" at a mailbox set in motion the events leading to the a c c id e n t at the heart of this case. As Ms. Truby testified, she was working her ro u te without incident when she realized that she made a mistake with the d e live ry to the last mailbox behind her that she serviced. The mailbox in question w a s on Tonawanda Creek Road near the intersection of Orbit Road. Rather than p u t her vehicle into reverse to back up to the mailbox, Ms. Truby decided to re tu rn to that mailbox by driving forward through a double U-turn. That course of a c tio n required to Ms. Truby to cross both lanes of traffic twice,3 once for each Utu rn . Ms. Truby began this course of action by pulling out of the shoulder where s h e was and into the same flow of traffic in which her vehicle was pointed. As M s . Truby pulled into traffic, she never saw plaintiff riding up the road on her

At the time of the accident, Tonawanda Creek Road was a two-lane road w ith one lane in each direction. 3

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motorcycle. The nature and timing of Ms. Truby's entrance into the flow of traffic c a u s e d plaintiff to slam into the side of Ms. Truby's vehicle. The collision threw p la in tiff from her motorcycle and into the air. Plaintiff landed on a grassy area just o ff of Orbit Road, about 35­40 feet from Ms. Truby's vehicle. Resident Kurt S c h u ltz ,4 on whose parcel plaintiff landed, recalled that plaintiff landed with her h e a d pointed toward Orbit Road. Emergency responders treated plaintiff at the s c e n e and then transported her to Erie County Medical Center. T h e basic events of the accident, as the Court has summarized them a b o ve , led to a traffic citation to Ms. Truby for failure to yield the right of way when e n te rin g a roadway, in violation of N.Y. Vehicle and Traffic Law § 1143.5 The a c c id e n t, together with the resulting violations of the Vehicle and Traffic Law, p e rs u a d e d this Court to adopt a Report and Recommendation from Magistrate J u d g e Leslie G. Foschio (Dkt. No. 20) and to grant plaintiff partial summary ju d g m e n t as to liability. B. D am ages

T h e parties largely do not dispute some of plaintiff's damages claims. Plaintiff testified at trial that she briefly lost consciousness after the accident and

The Court found Mr. Schultz generally credible to the extent that he could re c a ll details of the accident. Ms. Truby later pled guilty to violations of Sections 1110(a) (failure to o b e y traffic-control devices) and 1201(a) (parking violation). 4
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was in considerable pain when she regained consciousness.6 Emergency room p h ys ic ia n s diagnosed plaintiff with a minor closed head injury, a comminuted fra c tu re of the right clavicle, and three fractures in her right foot. Plaintiff's injuries k e p t her out of work until late December 2003 and required physical therapy for a b o u t a year after the accident. Plaintiff's mother, Luise Moe, testified credibly th a t she had to help plaintiff with meals, dressing, and bathing until plaintiff had re g a in e d enough strength to handle those activities on her own. Plaintiff was a b le to return to full-time work in late December 2003 to her job as a team leader in the rod job department at the General Motors ("GM") Power Train plant in T o n a w a n d a , New York. Plaintiff has not lost time at work since, except for a few m o n th s in early 2006 that relate to strongly disputed injuries that the Court will a d d re s s later. W ith respect to the aspects of plaintiff's damages claims that the Court just d e s c rib e d above, the only notable dispute between the parties concerns how the C o u rt would calculate plaintiff's lost overtime wages if it chose to make an award fo r them. Plaintiff seeks recovery for overtime hours lost between January and A p ril 2006, based on the number of hours that would have been available to her u n d e r her employer's rules for overtime assignments. GM labor relations official

The Court found plaintiff generally credible with respect to details of her a c c id e n t, her rehabilitation, and her shoulder problems. The Court discounted h e r testimony about her foot pain to the extent that she testified about its severity b e yo n d a chronic condition, related to the accident, that may worsen over time. 5

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Kevin Barton testified credibly about how, in general, GM calculates how many o ve rtim e hours it needs from its employees and how it assigns those hours based o n seniority. Mr. Barton's testimony, though generally credible, was of limited use to the Court because it did not address how many overtime hours plaintiff actually w o u ld have worked in early 2006. Defendant, accordingly, challenges the c a lc u la tio n of lost overtime hours as too speculative and asks the Court not to g u e s s what overtime assignments plaintiff actually would have accepted and w h ic h she might have passed to co-workers with less seniority. T h e parties strongly dispute plaintiff's claims of injuries to her right s h o u ld e r. Plaintiff submitted credible evidence that she took about a year after th e accident to address her right clavicle fracture with conservative, non-surgical tre a tm e n t and therapy. Plaintiff took this course of action on the advice of her tre a tin g physician, Dr. Marcus Romanowski, M.D.7 Plaintiff returned to Dr. R o m a n o w s k i in November 2004 to report ongoing pain and tenderness in her rig h t shoulder. An x-ray showed that the clavicle fracture healed, leading Dr. R o m a n o w s k i to recommend a non-surgical approach to plaintiff's complaint. Plaintiff returned to Dr. Romanowski again in August 2005 to report continuing p a in and tenderness. Further x-rays and examination revealed that the clavicle fra c tu re altered the alignment of plaintiff's shoulder joint in such a way that it
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The Court found Dr. Romanowski very credible with respect to his tre a tm e n t and his connection between plaintiff's current shoulder condition and h e r clavicle. 6

began deteriorating and caused a rotator cuff tear. Dr. Romanowski performed a rth ro s c o p ic surgery on plaintiff's right shoulder on January 20, 2006. Plaintiff m is s e d work from January 20 through April 30, 2006. Defendant disputes p la in tiff's injuries by submitting evidence that they do not relate to the accident b u t rather resemble repetitive-stress injuries that she has suffered intermittently fo r years. Although the Court considers credible the evidence of plaintiff's history w ith repetitive-stress injuries, it rejects defendant's attempt to label plaintiff's c u rre n t shoulder condition as another such injury. The Court finds credible the te s tim o n y of Dr. Mark Mieth, M.D. to the extent that he found plaintiff to have s ym p to m s of impingement syndrome at specific times in the past. Beyond that, h o w e ve r, defendant submitted insufficient evidence that plaintiff's repetitive-stress in ju rie s did not resolve each time or were cumulative in nature. The Court finds th a t the chronic nature of plaintiff's present condition, coupled with the evidence o f permanent shoulder realignment, makes her condition a consequence of her c la vic le fracture. The Court will address later whether plaintiff's current condition q u a lifie s legally as "newly discovered evidence" so as to defeat the pending m o tio n in limine. S im ila rly , the parties strongly dispute plaintiff's claims of injuries to her right fo o t. W h e n plaintiff visited Dr. Romanowski visited in November 2004, she m e n tio n e d that she was experiencing foot pain. Dr. Romanowski referred plaintiff to Dr. Michael Parentis, M.D., who examined plaintiff in December 2004. Dr. 7

Parentis formed the credible medical opinion that the joint synovitis that he found in plaintiff's great toe had its origins in the fractures that the accident caused in h e r foot. Dr. Parentis formed the additional credible opinion that plaintiff's joint s yn o vitis would have taken time to develop as a chronic consequence of the a c c id e n t. Defendant challenges, more or less in its entirety, the evidence both of th e severity of plaintiff's joint synovitis and of her experience of pain in dealing w ith it. The Court disagrees with most of defendant's challenge but agrees that th e evidence is insufficient to regard plaintiff's foot condition as more than a c h ro n ic irritant, like a typical arthritic condition, that may undergo degenerative c h a n g e s over time. III. D IS C U S S IO N A. D e fe n d a n t's Motion in Limine

A s a preliminary matter, the Court will address defendant's motion in lim in e . Defendant seeks preclusion of any evidence pertaining to injuries in p la in tiff's right shoulder and of any request for damages exceeding $750,000. Defendant seeks this relief because the FTCA limits claims to damages d e s c rib e d in a timely filed claim form, and plaintiff's claim form does not use the w o rd "shoulder." According to defendant, plaintiff treated for shoulder injuries b e fo re filing her claim and could have listed them on the claim form. Plaintiff a s s e rts that her claims about her right shoulder are timely because they

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developed over time as a result of her clavicle fracture and could not have been d is c o ve re d within the usual time to file an administrative claim. "Action under [the FTCA] shall not be instituted for any sum in excess of th e amount of the claim presented to the federal agency, except where the in c re a s e d amount is based upon newly discovered evidence not reasonably d is c o ve ra b le at the time of presenting the claim to the federal agency, or upon a lle g a tio n and proof of intervening facts, relating to the amount of the claim." 28 U .S .C . § 2675(b). W h a t "newly discovered evidence" means is straightforward: W ith respect to [plaintiff's shoulder injuries], for these considerations to constitute newly discovered evidence or intervening facts for p u rp o s e s of 28 U.S.C. § 2675(b), several requirements must be s a tis fie d . First, the evidence must support the increase in the prayer o ve r the administrative claim. Next, the allegedly newly discovered e vid e n c e or intervening facts must not have been reasonably c a p a b le of detection at the time the administrative claim was filed. That is, while courts do not charge a claimant with knowing that the p h ys ic ia n s could not tell him, the information must not have been d is c o ve ra b le through the exercise of reasonable diligence. Hence, w e have allowed an increase over the amount administratively c la im e d when, at the time the claim was filed, the claimant did not k n o w and could not have ascertained that an injury would not heal w ith o u t surgery. An increase has likewise been allowed when the s p e c ia lis ts on whom the claimant reasonably relied could not re a s o n a b ly have known the true nature or extent of the claimant's illn e s s . These various requirements are consistent with our recent o b s e rv a tio n s on the policy underlying 28 U.S.C. § 2675(b) . . . . Section 2675 should be interpreted so that "[t]he government will at a ll relevant times be aware of its maximum possible exposure to lia b ility and will be in a position to make intelligent settlement d e c is io n s ." L o w v. U.S., 795 F.2d 466, 470­71 (5th Cir. 1986) (citations omitted).

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Here, the original claim form that plaintiff timely submitted stated that "K a re n Moe sustained a fracture to her right collar bone and fractures to her foot w h ic h required surgery and external fixation." The mention of the clavicle fracture k e p t the door open for any injuries arising from it that could not have been d e te c te d at the time of the filing of the claim. As noted above, plaintiff has s u b m itte d sufficient credible evidence indicating that she has developed chronic s h o u ld e r joint irritation because the accident in question left her with a realigned s h o u ld e r structure. Further, plaintiff has submitted sufficient credible evidence th a t she could not have discovered her developing chronic irritation until re a s o n a b ly planned conservative management failed and an eventual MRI re ve a le d a partial rotator cuff tear. Under these circumstances, the only way to re je c t plaintiff's shoulder irritation as newly discovered evidence would be to hold th a t plaintiff should have insisted on additional testing even while her treating p h ys ic ia n was acting reasonably in thinking that conservative management would s u ffic e . The Court finds no reason to hold plaintiff to such a high level of a n tic ip a to ry preventive medicine. Accordingly, the Court denies defendant's m o tio n in limine and includes the evidence of plaintiff's shoulder irritation with the o th e r evidence of injuries that she has submitted. B. G e n e r a l Standards for Assessing Damages

T h e Court now turns to the task of converting its factual findings into a d a m a g e s award. Two general evidentiary principles will be helpful in crafting an 10

appropriate award. First, "[d]amages in FTCA actions are determined by the law o f the state in which the tort occurred. Generally, under New York law a plaintiff m a y recover his loss of earnings, medical expenses, and mental and physical p a in and suffering." Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1081­82 (2 d Cir. 1988) (citations omitted). Second, while the damages award in this case u ltim a te ly must fit plaintiff's particular circumstances, jury verdicts in cases in vo lvin g similar injuries can provide some guidance. See, e.g., Gasperini v. C e n te r for Humanities, Inc., 518 U.S. 415, 425 (1996) ("To determine whether an a w a rd deviates materially from what would be reasonable compensation, New Y o rk state courts look to awards approved in similar cases.") (internal quotation m a rk s and citations omitted); Furey v. U.S., 458 F. Supp. 2d 48, 56­57 (N.D.N.Y. 2 0 0 6 ) ("W h e n determining pain and suffering awards, courts often look to awards in similar cases.") (citations omitted). C. A s s e s s in g Plaintiff's Injuries 1. E c o n o m ic Injuries

"P e c u n ia ry damages assess the economic consequences of an injury and in c lu d e medical expenses, lost earnings and the cost of care." Furey, 458 F. S u p p . 2d at 56 (citations omitted). Here, the parties have stipulated to medical e xp e n s e s in the amount of $11,242.82. The Court will award those expenses. Plaintiff has stated that she is not making any claim for lost wages for straight tim e . Instead, plaintiff seeks reimbursement for the "lost opportunity" to work 11

276.3 hours of overtime and 48 hours of double time that GM needed its e m p lo ye e s to work from January 20, 2006 through April 30, 2006, when plaintiff m is s e d work because of her shoulder surgery. Plaintiff asserts that she had the o p p o rtu n ity to work all of the hours that were required during that time because of h e r seniority and qualifications at the plant. Plaintiff, however, has submitted in s u ffic ie n t evidence of a history of working all overtime hours available to her. W ith o u t at least some evidence that plaintiff repeatedly pulled rank on her cow o rk e rs and snapped up all available overtime opportunities, the Court has no w a y of knowing whether plaintiff would have worked over 300 hours of overtime in th e first quarter of 2006 simply because she could have. Cf., e.g., Walsh v. S ta te , 648 N.Y.S.2d 816, 818 (App. Div. 1996) ("Although there was testimony th a t before the accident claimant was paid for overtime which will no longer be a va ila b le to him, there was no proof as to the amount of overtime worked or the le ve l of additional compensation he received. Consequently, the allocation of $ 3 0 0 ,0 0 0 in recompense for loss of the opportunity to perform such work is w h o lly speculative and unsustainable.") (citation omitted). Accordingly, the Court d e c lin e s to make any award for lost overtime. 2. N o n -e c o n o m ic Injuries

"In New York, the term `pain and suffering' encompasses all items of g e n e ra l, non-pecuniary damages and includes the physical and emotional c o n s e q u e n c e s of an injury. It also includes the loss of the enjoyment of life which 12

compensates for the frustration and anguish caused by the inability to participate in activities that once brought pleasure." Furey, 458 F. Supp. 2d at 56 (citations o m itte d ) . W ith respect to past pain and suffering, the Court finds that an injury award is appropriate for several aspects of what plaintiff experienced after the accident. The accident caused multiple fractures in plaintiff's right foot and shattered her rig h t clavicle. The accident also left plaintiff with the lasting memory of slamming in to the side of a car, flying through the air, and landing 30­45 feet away in s ig n ific a n t pain, a memory tempered only by her momentary loss of c o n s c io u s n e s s at the accident scene. Months of painful recovery and re h a b ilita tio n followed, during which plaintiff relied heavily on her mother's care. Plaintiff eventually returned to work on a full-time basis, but the good fortune of s u c h a recovery does not nullify the pain and suffering that she experienced. Although prior verdicts in other state and federal cases can only provide g u id a n c e , the Court finds that the facts of the present case resemble the facts a n d the resulting verdict in Lufker v. Jeheber, 2010 W L 3028733 (N.Y. Sup. Ct. 2 0 1 0 ). Upon considering all of the evidence that the parties submitted and the c o m p a ra b le cases that the parties brought to the Court's attention, the Court a w a rd s plaintiff $300,000 for past pain and suffering.

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W ith respect to future pain and suffering, the challenge is how to place a m o n e ta ry value on chronic irritations that will persist regardless of whether they w o rs e n or stay the same. The Court agrees with plaintiff that her actuarial life e xp e c ta n c y is just under 32 years. In light of its finding that plaintiff's shoulder irrita tio n and joint synovitis developed as a result of the accident, the Court re c o g n iz e s that for the next 32 years, plaintiff will have to wake up every morning w ith chronic pain. These chronic conditions appear to have had only a marginal im p a c t on plaintiff's ability to work her job and to live her daily life. That said, th e s e conditions never will go away. Additionally, the realignment in plaintiff's s h o u ld e r may very well create the need for additional surgery and additional re h a b ilita tio n over the next 32 years. Upon considering all of the evidence that th e parties submitted and the comparable cases that the party brought to the C o u rt's attention, the Court awards plaintiff $150,000 for future pain and suffering. IV. C O N C L U S IO N F o r all of the foregoing reasons, the Court denies defendant's motion in lim in e (Dkt. No. 25). The Court awards plaintiff $300,000 for past pain and s u ffe rin g , $150,000 for future pain and suffering, and $11,242.82 for medical e xp e n s e s incurred. Pursuant to 28 U.S.C. § 2674, the Court does not award preju d g m e n t interest.

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As all trial proceedings now have concluded, the Clerk of the Court is d ire c te d to close this case. SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: December 2, 2010

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