Delano v. United States of America

Filing 70

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTDECISION AND ORDER re 1 Complaint filed by Daniel DelanoFor reasons stated herein, Court finds for plaintiff and awards plaintiff the sum of $103,625 for lost past wages; $526,489 for lost future wages; and $150,000 for past and future pain and suffering. The total amount of damages shall be reduced by 10 percent to reflect plaintiff's comparative negligence and by the amount of &# 036;70,022 to reflect plaintiff's workers' compensation buyout. The judgment also shall reflect the parties' stipulation as to the workers' compensation lien in the amount of $146,820.50. Parties are to submit within 30 days of entry of this Decision & Order a joint proposed judgment incorporating these findings and (if appropriate) a provision for accrual of post-judgment interest.So Ordered. Signed by Hon. Hugh B. Scott on 3/12/2012. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DANIEL DELANO,
Plaintiff,
-vs-

08-CV-610-HBS

UNITED STATES OF AMERICA,
Defendant.

APPEARANCES:

J. MICHAEL HAYES, ESQ., Buffalo, New York, Attorney for
Plaintiff.
WILLIAM J. HOCHUL, UNITED STATES ATTORNEY (MICHAEL
S. CERRONE, Assistant United States Attorney, of Counsel),
Buffalo, New York, Attorneys for Defendant.

In this action against the United States, brought pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680, plaintiff Daniel Delano seeks money
damages for injuries sustained on October 26, 2005, while unloading mail at the Post
Office in Dunkirk, New York, in the course of his employment with Wayman Trucking
under contract with the United States Postal Service (“USPS”). The parties consented
to have the undersigned conduct all proceedings in this case, including trial, the entry of
final judgment, and all post-trial proceedings, in accordance with 28 U.S.C. § 636(c)
and Rule 73 of the Federal Rules of Civil Procedure, and a non-jury trial on the issues
of liability and damages was held before this Court on October 5, 6, 7, and 11, 2011.
The parties submitted post-trial memoranda, and the Court heard final arguments on
January 24, 2012.

The following constitutes the Court’s findings of fact and conclusions of law, in
accordance with Fed. R. Civ. P. 52.1

FINDINGS OF FACT
The facts relating to plaintiff’s claim were developed at trial through the
presentation of testimony and related exhibits received into evidence, summarized
herein below. Plaintiff testified, and offered the testimony of Douglas Moreland, M.D.,
his treating neurosurgeon; former USPS employee Bohdan Panas; Dunkirk Postmaster
Jami Sorrento; and economist Ronald Reiber, Ph.D. Defendant offered the testimony
of John J. Leddy, M.D., Associate Professor of Clinical Orthopedics, as its expert
medical witness.

1.

Plaintiff Daniel Delano

Plaintiff was born on September 10, 1961, and was 50 years old at the time of
trial. He and his wife Margaret have been married for 25 years, and have two sons,
aged 26 and 17. Plaintiff has a high school education. He obtained his commercial
driver’s license in 1991, and began working as a truck driver and mail delivery man for
Wayman Trucking in 1993. Wayman Trucking contracts with the USPS to transport

1

Rule 52 states in relevant part:

In an action tried on the facts without a jury . . . , the court m ust find the facts specially
and state its conclusions of law separately. The findings and conclusions m ay be stated
on the record after the close of evidence or m ay appear in an opinion or a m em orandum
of decision filed by the court. Judgm ent m ust be entered under Rule 58.
Fed. R. Civ. P. 52(a). W hile “punctilious detail” is not required, In re Mazzeo, 167 F.3d 139, 142 (2d
Cir.1999) (internal quotation m arks om itted), the Court m ust set forth its findings and conclusions
sufficiently to perm it m eaningful appellate review. See, e.g., United States v. Sasso, 215 F.3d 283, 292
(2d Cir. 2000).

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mail from the main Buffalo Processing and Distribution Center on William Street
(“Buffalo P&DC”) to several post offices in the region, including the post office in
Dunkirk, New York. Plaintiff worked for Wayman until mid- 2006, when Dr. Moreland
advised him to seek less physically demanding work. Tr. 11-15.2
On October 26, 2005, plaintiff arrived at the Buffalo P&DC at approximately
2:00 a.m. to begin his regular twice-a-day run between the Buffalo, Dunkirk, and
Fredonia Post Offices. According to standard procedure, he backed his truck up to an
assigned door at the loading dock where a mail handler would help him load the mail
brought from inside the facility. At the Buffalo P&DC, the loading dock and truck line up
“perfectly level,” and a “flip plate” is manually positioned to allow for the load to be
pushed from the dock on to the truck. Tr. 17. The load that day consisted of 3-5 all
purpose containers (“APCs”) for Fredonia, and one wire container (or “wiretainer”) for
Dunkirk. The wire container was filled to the top with bundled magazines and catalogs,
which plaintiff referred to as “five digit mail.” Id. The mail handler used a forklift to bring
the loaded wire container from inside the facility to the loading dock and drop it at
plaintiff’s truck door. Plaintiff then pushed the three APCs and the wire container on to
his truck. He could not recall if the mail handler helped him push the load on to the
truck that morning, although it was “most likely.” Tr. 18. The load was secured inside
the truck by 6-foot aluminum shoring bars attached to tracks along the interior side
walls. After loading his truck, plaintiff left the Buffalo P&DC and proceeded to the
Dunkirk facility. Tr. 15-19.

2

References preceded by “Tr.” are to pages of the trial transcript, consecutively num bered and
entered on the Court’s docket as Dkt. Nos. 62-65.

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According to his regular schedule, plaintiff would arrive at Dunkirk at
approximately 3:15 a.m., unload the Dunkirk mail, and proceed to the Fredonia facility,
where he would arrive at approximately 3:30 a.m. After unloading the Fredonia mail, he
would return to Buffalo for the second, “hot mail” run (priority mail, express mail, letters,
Social Security checks, etc.), scheduled to begin at 5:00 a.m. On the day of the
incident at issue, plaintiff arrived at the Dunkirk facility at approximately 3:00 or
3:10 a.m. and backed his truck up to the loading dock. There is never anyone present
at the Dunkirk Post Office at that early hour, but plaintiff had a key to the facility which
he signed for at the Buffalo P&DC. Because the loading dock is approximately three
feet lower than the floor of the truck bed, there is a “scissor jack” located on the loading
dock to assist with unloading the truck. Plaintiff obtained the power cord for the scissor
jack from inside the facility and raised the scissor jack to be flush with the truck bed
floor. He then unsecured the wire container and pushed it on to the scissor jack. He
lowered the jack and tried to push the wire container down a short inclined ramp and on
to the dock, but the container became stuck on the concrete. He testified that when the
wire container is fully-loaded, it weighs about 3,000 pounds, and the protruding metal
corners of the container often become stuck on the concrete floor as the wire container
comes off the scissor jack on an incline. He identified Exhibit 45 as a photograph of an
empty wire container positioned on the inclined ramp between the scissor jack and the
concrete floor of the loading dock at the Dunkirk facility, similar to the positioning of the
fully-loaded wire container when it became stuck on October 26, 2005. Tr. 19-24.
Plaintiff testified that he spent 20-25 minutes trying “everything in [his] power” to
free the stuck wire container, but it would not budge. He tried “juggling” the scissor jack
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apparatus up and down, and manually pushing and pulling the wire container, all to no
avail. He testified that he considered unloading the wire container one piece at a time,
but there were no other empty containers to put the mail in, and he was already behind
schedule. He noticed an extra shoring bar on the loading dock, and used it as a lever
to lift the wire container enough to roll under its own weight down the incline and on to
the loading dock. Tr. 24-27.
Immediately after lifting up on the shoring bar, he stood up and felt a burning
sensation in his back. Although in pain, he pushed the wire container into the facility,
locked the doors, and proceeded to Fredonia. He was able to unload the APCs
himself, since the loading dock at Fredonia is flush with the level of the truck. He then
returned to Buffalo for his second run, which he completed with help from mail handlers
at all three facilities. Upon returning to the Buffalo P&DC after his second run, he
parked his truck and went to the emergency room at St. Joseph’s Hospital. Tr. 24-29.
Plaintiff testified that he also received emergency room treatment in 1996
following a motor vehicle accident. In 2002, he felt tightness in his back when he
picked up a mail bag, and went to the emergency room as a precaution. He was
involved in another motor vehicle accident in March 2005, approximately six months
before the incident at issue, and reported to the emergency room with tightness in his
upper chest. On each of these occasions, he returned to work the next day and
received no follow-up medical treatment. Tr. 82-85.
Exhibit 47 is a series of two photographs depicting an empty wire container
positioned on the scissor jack apparatus at the Dunkirk Post Office loading dock.
Plaintiff identified a “drop down rod” on the front of the wire container. According to
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plaintiff, this rod also becomes stuck on the concrete, along with the protruding metal
corners of the wire containers. Exhibit 43 is a photograph depicting the gouges in the
concrete loading dock floor. Plaintiff testified that these gouges are caused by the wire
containers coming off the ramp from the scissor jack. Exhibit 46 is a photograph
depicting a closer view of the apparatus. Also visible is a Wayman’s truck backed up to
the loading dock in the vicinity of the scissor jack, showing the truck bed positioned well
above the dock. Exhibit 50 is a photograph depicting a “hand jack” positioned in front of
the wire container. According to plaintiff, this photograph demonstrates that the hand
jack would not work under these circumstances because it does not fit under the wire
container, and was designed for a different purpose. Tr. 85-91.
Plaintiff testified that the same problem had existed at the Dunkirk facility since
the introduction of this particular wire container in July-August 2005, just a few months
prior to the incident at issue. Every time these containers were used they would get
stuck, whether they were fully loaded or completely empty. Within the first week of their
implementation, plaintiff complained about the problem to Jami Sorrento, the Dunkirk
Postmaster, and to Bill Brown, the Supervisor. He reiterated his complaints on a
weekly basis. Tr. 29-32. In his view, the problem was caused by a combination of
factors: overloading of the wire containers, and the design and construction of the
loading dock at the Dunkirk facility. Tr. 153-54.
Plaintiff testified that immediately after he finished his second run at 7:00 a.m. on
October 26, 2005, he went right to St. Joseph’s Hospital emergency room. He was
examined, given 800 mg. Motrin, and referred to Health Works physical therapy. He
returned to work on his next scheduled day. He attended weekly physical therapy
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sessions for approximately a month, and was referred to Dr. Collard, an orthopedic
specialist. Dr. Collard examined plaintiff, ordered an MRI, ordered plaintiff not to return
to work, and referred him to Dr. Moreland. According to plaintiff, physical therapy was
not helping, and he was in significant pain, so he accepted Dr. Moreland’s
recommendation of surgery, which was performed on February 1, 2006. Tr. 91-94.
Plaintiff was released to his home the same day of the surgery, but it was over a
month before he was able engage in any physical activity. He returned to physical
therapy, which increased his strength, and followed with Dr. Moreland. He went back to
work in May 2006. He still had some numbness in his left leg and foot, but the pain had
decreased. He moderated his work activity with respect to delivery of heavy, bulky mail,
and refused to deliver heavily loaded wire containers. Tr. 94-99.
On July 6, 2006, plaintiff was on his way to Dunkirk on his afternoon run. He
stopped for fuel, and stepped out of his truck. When he reached the ground, he
buckled over in pain and could not move. He managed to call his boss in Binghamton,
and an alternate driver was sent to finish the delivery run. Plaintiff drove the alternate’s
car back to Buffalo. He stayed out of work until he was able to see Dr. Moreland,
approximately three weeks later. Dr. Moreland ordered an MRI, and upon further
evaluation recommended physical therapy three times per week. He also
recommended that plaintiff not return to his job delivering heavy loads of mail, and
suggested occupational retraining. Tr. 99-103.
Plaintiff contacted Mueller Security, and was eventually offered a job in October
2006, at a rate of $7.50 an hour. He had been earning $22 an hour at Wayman
Trucking. He worked for Mueller until August 2007, when he was hired by J.C. Penney
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as a Loss Prevention Officer, starting at $9.50 an hour. He makes $16.50 an hour in
his current position as Loss Prevention Supervisor. His job duties include internal and
external investigations of retail theft and fraud, monitoring closed circuit TV systems,
safety audits, and other loss prevention activities. He recently received an award from
J.C. Penney recognizing his efforts in reducing losses from theft or misappropriation at
the store from 2.47% of total inventory in 2008 to .96% in 2010, realizing a savings to
the company of over $250,000.00. He also currently works two nights per week for
Independent Security. He has never collected unemployment, and does not anticipate
doing so in the future. He plans to work full-time for one or two more years, then parttime for a while. He testified that his back problems continue to cause certain functional
limitations, both at work and at home. He takes pain medications, and uses a TENS
unit. He has received workers’ compensation as a result of his injury, and took a lump
sum buyout which resulted in a net payment of $70,200. He had to sell his boat and his
classic car in order to pay his bills. Tr. 103-14; 157-60.
Plaintiff testified on cross-examination that he worked for Wayman Trucking for
approximately 14 years. During that time he lifted and carried heavy items such as
canvas mail bags and USPS tubs, and had to push heavy APCs, canvas hampers, and
wire containers filled with mail, all on a daily basis. His back would occasionally get
sore, but not to the point where he would need medical attention. In fact his whole
body would get sore from the physical demands of the job. At the time of the incident at
issue, plaintiff was 5' 11" tall and weighed 275 pounds. Tr. 161-70.
Plaintiff testified that he suffered a bruised hip as a result of the motor vehicle
accident in 1996. In 2002 he suffered a muscle strain in his back while lifting a canvas
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mail bag. In the March 2005 motor vehicle accident he hurt his upper chest. Tr. 17376.
Following his surgery, which was performed on February 1, 2006, plaintiff
returned to work in May 2006 without restriction. He still had some numbness in his
leg, but his back problems had improved with therapy. He worked without incident for
eight weeks prior to July 6, 2006, when he felt sharp pain in his back as he stepped out
of his truck. He went back to Dr. Moreland, who compared the results of a new MRI
with previous studies. Dr. Moreland advised plaintiff that there was no new herniation,
and no need for further surgery. Tr. 176-80.
Plaintiff testified that the majority of his working day as a Loss Prevention
Supervisor at J.C. Penney involved sitting inside a camera room watching closed-circuit
television, and sitting at his desk doing safety audits. He would occasionally walk the
floor to supervise his subordinates and keep an eye on the store. He did not do any
lifting. Tr. 180-81.
Plaintiff testified that, prior to his accident, he had never refused an overloaded
wire container at the Buffalo P&DC. If he saw that the container was overloaded he
would ask the mail handlers to break the load down into two containers. When he
arrived at the Buffalo P&DC on October 26, 2005 and saw the overloaded wire
container, he could have found a mail handler to break the load down. He could have
called his boss in Binghamton to let him know about the overloaded container, and
about the problem he had unloading it at the Dunkirk facility. He could have called the
transportation desk or the expediter’s desk at the P&DC for directions, and he could
have partially unloaded the stuck wire container. Tr. 182-90.
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On redirect, plaintiff testified that he had no recollection of ever refusing a load of
mail prior to the incident on October 26, 2005. He could have called his boss in
Binghamton that morning and awakened him at 3:00 a.m. He could have called the
P&DC, but his experience is that no one answers the phone at that early hour. He
testified that maintaining the delivery schedule is very important because the mail
effects the lives of so many people. It crossed his mind to partially unload the wire
container, but there were no other containers on the loading dock to put the mail in. He
did try to get the container loose by maneuvering the scissor jack, but it would not
move. Tr. 190-93.

2.

Douglas Moreland, M.D.

Dr. Moreland testified that he is a board certified practicing neurosurgeon
focusing on treatment of diseases involving the cervical, thoracic and lumbar spine. He
is also on the teaching faculty at the University of Buffalo Medical School and the
Daemen College physicians assistant program. He has published several articles and
lectured on surgical procedures for treatment of herniated discs, including
microdiscectomy of the type he performed on the plaintiff, Daniel Delano. Tr. 35-36.
Dr. Moreland first saw plaintiff on January 10, 2006. Plaintiff reported that he
was attempting to dislodge a 2,000 pound container of mail at work on October 26,
2005, when he began to have severe pain in his back and left leg. Plaintiff had tried
physical therapy without improvement, and was taking strong pain medications. Upon
examination, Dr. Moreland noted significant loss in range of motion of the lower back,
with pain down the left leg. Straight leg raising on the left side was positive to 30
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degrees, indicating significant irritation to the nerve root as a sign of disc herniation.
Review of plaintiff’s recent MRI (Exhs. 34, 52 and 53) revealed a large free fragment
disc herniation on the left side at the L4-L5 level. Based on the demonstrated level of
pain, indication of neurological deficit, and the results of physical therapy, Dr. Moreland
recommended surgery. Tr. 36-41.
Dr. Moreland requested and received workers’ compensation authorization for
microdiscectomy, which he performed on February 1, 2006. He described the surgical
procedure in detail, as reflected in his office records (Exh. 6). The ultimate goal of the
procedure was to remove the disc fragments causing pressure on the nerve. This
procedure is typically performed as outpatient surgery. Dr. Moreland’s notes reveal that
he saw plaintiff on regular follow-up visits during his post-operative period of disability.
On February 16, 2006, plaintiff had less pain, but still had numbness, tingling, and
weakness in his left leg. On April 6, plaintiff reported continuing improvement overall.
He still had some foot drop as a result of damage to the L4-L5 nerve root caused by the
disc rupture. On May 4, plaintiff indicated that he had gone back to work. He still had
some numbness and foot drop on the left side, but stated that it did not bother him. He
was motivated to return to his job at Wayman Trucking, and Dr. Moreland gave him
permission to do so. Tr. 41-46.
Dr. Moreland saw plaintiff again on July 25, 2006. Plaintiff reported that he had
been off from work for about three weeks from severe back pain after feeling a sudden
grabbing in his back as he was stepping out of his truck. Physical examination revealed
75% loss of range of motion in his back, and slow and deliberate gait, with a fair
amount of pain. Dr. Moreland ordered an MRI, which he reviewed with plaintiff at a visit
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on August 24, 2006. At that time, plaintiff was having intermittent stabbing back pains
on his lower left side, radiating into his buttocks. Review of the MRI showed normal
post-operative changes at L4-5, with some scar tissue. Dr. Moreland did not feel that
further surgery was necessary. He recommended physical therapy and vocational
retraining, finding plaintiff to be disabled from his job driving a truck and pushing around
heavy wire mail containers. Dr. Moreland made the assessment that the pain plaintiff
experienced as a result of the July 2006 occurrence was related to the original injury in
October 2005. This was based on the character and location of the pain reported by
plaintiff at the L4-5 location, as well as the large size of the herniation as indicated by
the images on the MRI. According to Dr. Moreland, plaintiff had significant nerve
damage, which made him vulnerable to subsequent aggravation. Tr. 46-55.
Dr. Moreland saw plaintiff for the last time in October 2006. Plaintiff reported
continuing significant back pain. He was given a transelectrical nerve stimulation
(“TENS”) unit, which sends a subtle electrical charge to the nerve to override the pain
stimulation. Dr. Moreland assigned 40% permanent partial disability relative to the
original injury in October 2005, and released plaintiff for work under that limitation.
Tr. 55-57.
Dr. Moreland testified that plaintiff’s ability to perform his security job under his
current medications and with the freedom to rest, stretch, and otherwise take measures
to alleviate his pain, is within the standard deviation of what could reasonably be
expected as the employment status for a person with this type of injury following this
type of surgery. Dr. Moreland also stated his opinion that, statistically, it was more likely
that plaintiff will not be able to work to the age of 65, and that he has already worked
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beyond what the statistics show a 50-year old male with plaintiff’s injury would ordinarily
be able to work. Tr. 57-60.
On cross-examination, Dr. Moreland testified that when he first saw plaintiff in
January 2006 he did not report any pre-existing back injuries, and there is no mention in
Dr. Moreland’s records of plaintiff’s pre-existing injuries as the result of lifting a large
canvas mail bag on April 21, 2002, or motor vehicle accidents in 1996 and March 2005.
He testified that he was aware that plaintiff had performed the physically demanding job
at Wayman Trucking for 14 years, and that plaintiff was clearly overweight at the time of
the injury at issue. The MRI taken in October 2005 showed not only disc herniation at
L4-5, but also degeneration at L4-L5 and L5-S1. Based on these circumstances, and in
the absence of a pre-accident MRI, it was possible that th L4-L5 herniation existed prior
to the October 26, 2005 accident. Tr. 62-73.
Three months after surgery, plaintiff had complete resolution of his back and leg
pain. He still had numbness and foot drop, which had improved but was not completely
resolved. Dr. Moreland cleared plaintiff to return to work without restriction in May
2006. Following plaintiff’s injury in July 2006, Dr. Moreland ordered and reviewed new
MRI images. There was no new herniation or injury at the L4-L5 level, and further
surgery was not recommended. Dr. Moreland’s opinion that the July 2006 injury was
causally connected to the October 2005 injury is based on plaintiff’s self-reporting of
symptoms. Tr. 73-76
On redirect, Dr. Moreland testified that given plaintiff’s medical and work history
following his three prior emergency room visits, it was still his opinion to a reasonable
degree of medical certainty that plaintiff’s L4-L5 herniation was the result of the
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October 26, 2005 incident at issue. In reaching his conclusions when he testifies in
personal injury cases, whether as the plaintiff’s treating physician or as an independent
medical examiner for insurance companies, Dr. Moreland bases his conclusions on the
physical examination; how well the medical history reported by the patient correlates
with the information in the medical records; the imaging studies; and the credibility of
the patient. In this case, Dr. Moreland found plaintiff to be very credible. Tr. 77-80.

3.

Bohdan Panas

Mr. Panas is retired from the USPS. He was working at the Dunkirk Post Office
on October 26, 2005. He was not present at 3:00 a.m. when plaintiff got hurt, but he
was present at approximately 7:15 a.m. when plaintiff returned with his second load.
He spoke with plaintiff, and noticed that he was in some discomfort. Plaintiff told Mr.
Panas that he got hurt as he was trying to push a heavy wire container which had
become stuck on the dock. Tr. 119-23.
Mr. Panas testified that there was a metal bar that would get caught on the
concrete when the wire container became top heavy. Exhibit 44 is a photograph
depicting the metal bar and corner protection devices on the type of wire container in
use at the time. Mr. Panas testified that, when the wire container was too heavy, the
entire front part of the container would become stuck on the concrete as it came off the
scissor jack. This condition had existed at the Dunkirk facility ever since this particular
wire container design had been implemented, and it was something the other
employees and drivers were aware of and complained about. Mr. Panas did not recall

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speaking with the postmaster about the problem, but he did speak with a supervisor
named Kim. Tr. 123-27.
Mr. Panas testified further that the problem occurred when the wire container
was loaded to the top. If the container was empty or up to one-quarter full, there was
no problem pushing it off the scissor jack and onto the dock. If the container was full, it
weighed 2,500 or 3,000 pounds and would get stuck on the concrete. It was the
delivery person’s job to get the mail off the truck and onto the dock. If a container got
stuck, the postal employees at the facility would often help push the container on to the
dock, but there was no one there to help at 3:00 a.m. Tr. 128-30.

4.

Jami Sorrento

Ms. Sorrento has been the Postmaster at the Dunkirk Post Office since 2001.
She is responsible for oversight of the entire operation. When she arrived at the post
office at 8:30 a.m. on October 26, 2005, Mr. Panas told her about plaintiff’s injury. As
part of her duties as Postmaster, Ms. Sorrento conducted an inquiry into the incident.
Exhibit 58 is a Report of Hazard, Unsafe Condition or Practice, signed by Mr. Panas on
October 26, 2005, which Ms. Sorrento reviewed and signed the next day. Mr. Panas
wrote on the report that the large metal containers are too heavy to push around; they
are almost impossible to push through the doors; pushing the heavy container can be
harmful physically; and it was impossible to stop the container’s momentum. Tr. 13138.
Ms. Sorrento testified that these particular wire containers had been in use at the
Dunkirk facility for a few months prior to plaintiff’s accident. The complaints started
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soon after their implementation. She had spoken with the Wayman Trucking drivers
and postal employees about the problems they were having pushing the containers
around when they were heavily loaded, and she was aware that the containers would
catch on the concrete and cause gouging. She spoke with people working at the
Buffalo P&DC to try to get them to stop sending the heavily loaded wire containers, to
no avail. She also brought the matter up at a district-wide Postmasters’ meeting in
Mt. Morris prior to the accident at issue, but no other facility was having this problem
with the wire containers. Tr. 138-42.
Ms. Sorrento testified that it was plaintiff’s responsibility to unload the early
morning mail, bring the mail into the vestibule, and lock the vestibule doors. It would
not be acceptable to leave the mail unattended on the loading dock. Prior to the
accident, most of the Dunkirk facility employees were aware of the problem of
overloaded wire containers becoming stuck on the loading dock. There are forklifts and
hand jacks available on the dock, but these devices do not fit under the wire containers.
Ms. Sorrento was not aware of any other mechanical devices that might be available to
assist with the operation, and made no inquiries in this regard. Tr. 143-46.
On cross-examination, Ms. Sorrento testified that she advised mail clerks at the
Dunkirk facility that when an overloaded wire container was delivered they should
unload it until it becomes easier to move. The containers have sides which drop down
making it easier to unload. The load usually consists of “flats,” described as 8 by 10
inch-size pieces of mail such as magazines and catalogues shrink-wrapped into
bundles. There are also flat buckets to hold these items, all of which can be lifted out of
the wire container and placed on the dock, or in other containers. Tr. 147-48.
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Ms. Sorrento testified that the volume of mail delivered to the Dunkirk Post Office
by Wayman Trucking has dropped off since 2005. There are no Sunday deliveries, and
there are discussions in Congress about eliminating Saturday deliveries as well. There
USPS is also discussing whether to eliminate one of the two morning runs between
Buffalo and Dunkirk. Tr. 149-52.

5.

John Leddy, M.D.

Dr. Leddy is board certified in internal medicine and sports medicine. He is an
associate professor of clinical orthopedics at the University of Buffalo Medical School.
He is not a surgeon. His work consists of non-operative orthopedic clinical treatment of
patients, research, and teaching. He has given lectures on back injuries, and sees
many patients with back problems. If the patient does not respond to non-surgical
treatment, and if called for by the medical history and diagnostic imaging, he will refer
the patient for surgery and will perform post-surgery follow up. He has experience
interpreting MRIs, and with treatment of obesity. Tr. 200-05.
In rendering his opinion and testifying with regard to plaintiff’s medical condition
on behalf of the government in this case, Dr. Leddy reviewed plaintiff’s hospital records;
surgical records; medical records and reports from Drs. Moreland, Rehmatullah, Henry,
and Calabrese; MRIs; and plaintiff’s deposition transcripts. He also performed an
independent medical examination (“IME”) of plaintiff in June 2009, which included
orthopedic and neurological evaluation. Exhibit 25 is Dr. Leddy’s report of the
examination. Plaintiff was 5' 10" and weighed 280 pounds. He carried a lot of weight in
the mid-section, which can be expected to have a detrimental effect on the lower back.
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His body mass index (“BMI”) was 40, indicating morbid obesity which has a negative
effect on life expectancy as well as work life expectancy. In Dr. Leddy’s opinion, given
plaintiff’s obesity and the physical demands of his job, plaintiff could be expected to
have been able to work at Wayman Trucking until the age of 54, absent his injury at
age 44. Tr. 206-12.
Dr. Leddy ‘s review of plaintiff’s medical records indicated evidence of preexisting back injuries in April 2002, when he was treated for injury to the left sacroiliac
joint, and in March 2005, when he was treated for mid-back and right shoulder pain
following a car accident. There was also indication of similar injuries prior to 2002.
Dr. Leddy was not surprised by plaintiff’s testimony regarding soreness in his back from
performing the regular duties of his job at Wayman Trucking. Tr. 212-15.
During his IME, plaintiff reported that he injured his back while using a large
shoring bar to lever a container that got stuck as he was unloading it from his truck.
MRIs taken in December 2005 (after the accident but prior to surgery) indicated
degenerative disc disease at multiple levels, with disc herniation at L4-L5, caused by
the work injury in October 2005. In Dr. Leddy’s opinion, the disc degeneration was
caused over time by plaintiff’s age, weight, and the physical demands of his job. Tr.
215-18.
Dr. Leddy testified that the discectomy surgery performed by Dr. Moreland in
February 2006 was a success. Dr. Leddy was shown Exhibit 26, which contains
images from the MRI taken on August 4, 2006, following the incident in June 2006
when plaintiff experienced pain as he stepped out of his truck. The images reveal
surgical changes at L4-5 and the same degenerative changes at L5-S1, but no new
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disc herniation, consistent with Dr. Moreland’s assessment. However, Dr. Leddy
disagreed with Dr. Moreland’s opinion that the incident in July 2006 represented an
aggravation of the original injury in October 2005. Rather, in Dr. Leddy’s opinion, the
July 2006 incident represented a new injury because the MRI shows no evidence of
aggravation, exacerbation or re-injury at the L4-5 level. According to Dr. Leddy, Dr.
Moreland’s assessment was based on plaintiff’s self-reporting regarding the character
and location of the pain, and it is well-known that pain patterns are unreliable in
establishing a level of spinal injury because they overlap. Dr. Leddy testified that in his
opinion, considering plaintiff’s testimony with respect to his activities in his current
position as a Loss Prevention Supervisor, plaintiff could be expected to work until his
retirement age of 65. Tr. 218-23.
On cross-examination, Dr. Leddy testified that the incident of October 26, 2005
resulted in a herniated disc at L4-5, and that plaintiff was disabled from his employment
from that date until approximately three months after his surgery in February 2006. The
prior history of thoracic and shoulder injuries and muscle spasms had no relation to the
L4-5 herniation. The second injury occurred in July 2006, while plaintiff was back at
work for Wayman Trucking. As part of workers’ compensation, treating physicians are
required to attest to the relationship between the treatment rendered and the work injury
in order to receive payment. In addition, insurance carriers for the Workers’
Compensation Board ordinarily conduct their own independent medical examinations.
Dr. Leddy reviewed the report of Dr. N. Rehmatullah (Exh. 15, pp. 188-92), an
orthopedic surgeon who performed an IME of plaintiff on behalf of the workers’
compensation carrier in June 2006. Dr. Rehmatullah reported that plaintiff had back
-19-

and leg pain, numbness and weakness in the left leg and foot, and was unable to walk
on his left heel. He was found to be mild to partially disabled, and restricted from
bending and lifting over 20 pounds. This report shows that as of June 2006, plaintiff
had not completely recovered from the October 2005 injury. Tr. 224-30.
Dr. Leddy’s conclusion that plaintiff’s injury in July 2006 was unrelated to the
October 2005 injury was based on his examination of plaintiff in June 2009, nearly four
years after the original accident. He agreed that, while pain patterns are generally
recognized as unreliable, they can be of value to a knowledgeable physician. He
indicated in his report that the second injury was at a different level than where the
surgery was performed, but he did not indicate what the level was. In addition to the
reports of Dr. Moreland and Dr. Rehmatullah, Dr. Leddy also reviewed the reports of
IMEs performed on behalf of the workers’ compensation insurance carrier by Dr. Barry
Katzman (March 2007, Exh. 7, pp. 334-36) and Dr. Owen Young (March 2008, Exh. 18,
pp. 1375-79), as well as the records of Dr. Ashraf Henry, a pain management specialist
(Exh. 11). All of these physicians related plaintiff’s present symptoms and complaints
to the original injury in October 2005. However, Dr. Leddy testified that he considered
more information than these treating and examining physicians had, and came to the
conclusion that plaintiff’s current symptoms are related to the second injury combined
with his degenerative disease, not the first injury which he recovered from. Tr. 230-38.

6.

Ronald Reiber, Ph. D.

Dr. Reiber received his doctorate in economics from the University of Arizona.
He has been a member of the faculty in the Economics Finance Department at
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Canisius College since 1971 . He was engaged by plaintiff in this case to provide
expert testimony regarding lost wages and economic damages sustained as a result of
the accident and injury at issue in this case. He reviewed information relating to
plaintiff’s work activity and wages earned before the accident and after he returned to
work, and provided calculations of losses sustained up to the present time, as well as
anticipated future losses. Tr. 254-59.
In his most recent report, dated October 7, 2011 (Exh. 65), Dr. Reiber noted
plaintiff’s date of birth (September 10, 1961); the date of his injury (10/26/05); plaintiff’s
age at the end of the year of injury (44); the date used to separate past and future
losses (10/7/11); and plaintiff’s normal life expectancy, as represented by standard
government tables (age 78). As reflected in his W-2 statements, plaintiff averaged
$38,565 a year at Wayman Trucking for the three years prior to the accident. Based on
the wage rates in effect in October 2011, he would currently be earning approximately
$52,000 in wages and overtime at Wayman. Adjusting for inflation, Dr. Reiber
calculated that had plaintiff not been injured he would have earned $246,900 in wages,
plus $19,207 in 401(k) contributions, from 2006 through the date of trial. He then
subtracted the income plaintiff actually earned following his injury ($135,085), resulting
in past economic loss of $131,021. Dr. Reiber then calculated future economic loss for
each year, ending on plaintiff’s birthday and adjusting for inflation. By way of example,
according to these calculations had plaintiff not been injured and continued working for
Wayman Trucking until full Social Security age 67, he would have earned $1,122,633 in
wages and $87,333 in 401(k) contributions. Subtracting his adjusted actual earnings at
J.C. Penney and Independent Security through age 67, amounting to $829,244,
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plaintiff’s cumulative future economic loss at full Social Security age would be
$380,752. Dr. Reiber also calculated future economic loss without subtracting adjusted
actual earnings beyond age 53, based on the assumption that plaintiff will be unable to
work past that age. This results in cumulative future economic loss in the amount of
$1,091,474 at full Social Security age. Finally, Dr. Reiber adjusted his past and future
economic loss calculations to incorporate the likelihood of unemployment, using the
standard method of reducing the number of compensable work weeks from 52 to 49.
Tr. 259-73.
On cross-examination, defense counsel pointed out several discrepancies
between the calculations made by Dr. Reiber in his earlier report, attached to an
affidavit dated February 4, 2010 (Exh. 22), and his October 2011 report (Exh. 65) which
he relied upon as the basis for his direct testimony. According to Dr. Reiber, the earlier
report was based on information made available to him at the time, and his later report
was updated to reflect more complete wage information. He explained that his
calculations with respect to the anticipated growth of both salary and 401(k)
contributions are based on the long term average inflation rate of 2.6%. Tr. 275-303.
Dr. Reiber further explained on redirect examination that his original report
incorporated plaintiff’s wage and earnings data from 2002 through 2009. He modified
the report as more complete and detailed information became available regarding
plaintiff’s earnings at Wayman Trucking, J.C. Penney, and Independent Security.
According to Dr. Reiber, these modifications resulted in a more accurate basis for his
opinions as to plaintiff’s past and future economic losses.

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CONCLUSIONS OF LAW
I.

Liability
A.

Negligence Under the FTCA

Pursuant to the Federal Tort Claims Act, the federal government has consented
to be sued for the negligent or wrongful acts or omissions of its employees acting within
the scope of their employment “under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); see Ford v. United
States, 2000 WL 1745044, at *4 (S.D.N.Y. Nov. 27, 2000) (“Under the FTCA, the
liability of the United States for the negligent acts of its agents is governed by the law of
the state in which the alleged negligence occurred.”), quoted in Kwitek v. U.S. Postal
Service, No. 07CV826, 2010 WL 3992192, at *9 (W.D.N.Y. Oct. 12, 2010) (Curtin, J.).
The parties agree that, since the allegedly negligent acts and omissions forming the
basis for plaintiff’s action took place in New York State, New York negligence law
governs this case.
Thus, in order to establish the government's liability for negligence in this case,
plaintiff must show by a preponderance of the evidence that: “(1) the defendant owed
the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the
plaintiff suffered damage as a proximate result of that breach.” Stagl v. Delta Airlines,
Inc., 52 F.3d 463, 467 (2d Cir. 1995) (citing Solomon v. City of New York, 66 N.Y.2d
1026, 1027 (1985)); see also Kwitek, supra, 2010 WL 3992192, at *9.

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1.

Duty

“[A] a duty of reasonable care owed by a tortfeasor to an injured party is
elemental to any recovery in negligence.” Palka v. Servicemaster Management
Services Corp., 83 N.Y.2d 579, 584 (1994). As recognized by the Second Circuit, “[t]he
existence of a duty is thus a sine qua non of a negligence claim: ‘In the absence of a
duty, as a matter of law, no liability can ensue.’ ” Alfaro v. Wal-Mart Stores, Inc.,
210 F.3d 111, 114 (2d. Cir. 2000) (quoting McCarthy v. Olin Corp., 119 F.3d 148, 156
(2d Cir. 1997)).
It is well settled in New York that a landowner, including the federal government
as owner of a postal facility, has a general duty to “ ‘exercise reasonable care to
maintain its premises in a safe condition in view of the circumstances . . . .’ ” Robinson
v. United States, 330 F. Supp. 2d 261, 287 (W.D.N.Y. 2004) (quoting Michalski v. Home
Depot Inc., 225 F.3d 113, 117 (2d Cir. 2000)); see also Basso v. Miller, 40 N.Y.2d 233,
241 (1976). As stated by the New York Court of Appeals:
The nature and scope of that duty and the persons to whom it is owed
require consideration of the likelihood of injury to another from a
dangerous condition on the property, the seriousness of the potential
injury, the burden of avoiding the risk and the foreseeability of a potential
plaintiff's presence on the property.
Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004), quoted in Kwitek, supra,
2010 WL 3992192, at *11.
Considering these factors in light of the preponderance of the evidence
presented at trial, the Court finds that the circumstances encountered by plaintiff during
his first run on October 25, 2005, including the overloaded wire container weighing as
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much as 3,000 pounds; the alignment and operation of the scissor jack apparatus at
the Dunkirk loading dock; the absence of mail handlers or other postal employees at
the scheduled delivery time; and the absence of any other operable means of
mechanical assistance, combined to create a dangerous condition which presented a
significant risk of serious injury to plaintiff. The proof also shows that the risk could
have been avoided at minimal expense by, for example, using different containers to
transport the mail, or dividing the load into two wire containers which could be more
easily maneuvered on the dock. The risk of injury to plaintiff was also foreseeable,
since plaintiff himself complained about the problem to the Dunkirk Postmaster, the
Facility Supervisor, and other postal employees soon after the new wire containers
were implemented, and reiterated his complaints on a regular basis. Under these
circumstances, it is clear to the Court that the USPS had a duty of care to provide
plaintiff and other mail delivery personnel a reasonably safe method of unloading the
early morning mail at the Dunkirk facility.

2.

Breach

The testimony at trial also establishes by a clear preponderance that the
government breached its duty of care by failing to take any corrective measures despite
having actual notice of the dangerous condition. As outlined above, the Dunkirk
Postmaster and Facility Supervisor were made aware soon after the new wire
containers were implemented that the truck drivers and mail handlers were having
problems maneuvering the heavily loaded wire containers onto and around the loading
dock. The Postmaster brought this problem to the attention of employees at the Buffalo
-25-

P&DC and other USPS officials, but no action was taken. The testimony also
establishes that simple, relatively inexpensive measures were available to alleviate the
problem, such as lighter loads and more maneuverable containers, but the heavily
loaded wire containers kept coming.
The government argues that it should not be charged with breach of duty
because the proof indicates there were several things plaintiff could have done, besides
using the shoring bar as a lever, that would have minimized the likelihood of injury. For
example, he could have refused to take the overloaded wire container at the P&DC, or
asked the mail handler to split the load into two containers; he could have telephoned
the P&DC, or his boss, for guidance once the wire container got stuck; or he could
have partially unloaded the wire container to make it easier to move. However,
plaintiff’s failure to take available ameliorative measures, or his use of the shoring bar,
does not negate the government’s duty of care to plaintiff, or its breach; rather,
plaintiff’s conduct with regard to the incident “simply raise[s] issues of fact as to [his]
comparative fault.” Tuttle v. Anne LeConey, Inc., 258 A.D.2d 334, 335, 685 N.Y.S.2d
204, 204-05 (1st Dep’t 1999).

3.

Damage and Proximate Cause

In addition to establishing the government’s breach of a cognizable duty of care,
“[a]s in any other negligence case, a plaintiff in a Federal Tort Claims Act case must
also establish by a preponderance of the credible medical evidence that the injury
complained of was causally related to the occurrence.” DiPirro v. United States, 43 F.
Supp. 2d 327, 342 (W.D.N.Y. 1998) (Heckman, Mag. J.) (citing cases). In this regard,
-26-

the government does not dispute – and the Court finds – that the occurrence on
October 26, 2005, was the proximate cause of plaintiff’s disc herniation at L4-L5 which
resulted in the microdiscectomy surgery performed by Dr. Moreland on February 1,
2006. This finding is fully supported by Dr. Moreland’s testimony and the reports of
examining physicians (including defendant’s medical expert, Dr. Leddy), as well as the
diagnostic imaging studies and other documentary medical evidence.
Relying on the opinion of Dr. Leddy, the government contends that there is no
credible medical evidence to support Dr. Moreland’s opinion that the injury suffered by
plaintiff when he stepped off his truck on July 6, 2006, was an aggravation of, and was
causally related to, the disc herniation injury suffered on October 26, 2005. According
to Dr. Leddy, since the August 2006 MRI did not show any new herniation as a result of
the July, 2006 incident, Dr. Moreland’s assessment as to the relationship between the
two incidents was based solely on plaintiff’s self-reporting of symptoms which, in
Dr. Leddy’s opinion, is an unreliable basis for a medical opinion on causation.
Following this reasoning, the government argues that any finding of liability for
negligence on the part of the USPS must be limited by the full resolution of plaintiff’s
original injury three months after his surgery, as evidenced by his return to work without
restriction in May, 2006.
However, this Court’s review of the medical evidence of record reveals ample
support for Dr. Moreland’s assessment to find in favor of plaintiff on this point as well.
Specifically, plaintiff has produced the records of two orthopedic surgeons, Dr. Katzman
and Dr. Young, who performed IMEs of plaintiff on behalf of the Workers’
Compensation Board in 2007 and 2008 and found plaintiff’s mild to moderate disability
-27-

to be causally related to the original injury in October 2005. On the other hand,
Dr. Leddy identified no objective findings to support his opinion that the July 2006 injury
occurred at a different level than L4-5, beyond his own observations following an
examination of plaintiff in June 2009 – almost four years after the original injury. He
testified that he reached his opinion after considering more information than the other
physicians had, but was unable to specifically identify any such information.
The government also argues that even if this Court finds a causal connection
between the defendant’s conduct and the injury complained of, plaintiff’s conduct
constitutes an intervening or superseding cause relieving the USPS of liability because
it was simply not foreseeable that plaintiff would attempt to use a shoring bar as a lever
to move the 3,000 pound mail container off the scissor jack ramp. In this regard, the
New York courts have held that “a defendant’s conduct is not the proximate cause of a
plaintiff’s injury if there is an ‘intervening act [that] is extraordinary under the
circumstances, not foreseeable in the normal course of events, or independent of or far
removed from the defendant’s conduct.’ ” Bacon v. United States, 104 Fed. Appx. 208,
209 (2d Cir. 2004) (quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315
(1980)). Thus, a plaintiff’s “reckless and unforeseeable” actions may sever the causal
connection between the defendant’s conduct and the plaintiff’s injuries. Tryon v.
Square D Co., 275 A.D.2d 567, 568-69, 712 N.Y.S.2d 676, 678 (3d Dep’t 2000).
Based on the testimony and documentary evidence presented at trial, the Court
cannot conclude that plaintiff’s conduct was sufficiently reckless or unforeseeable to
break the chain of causation and relieve the government of liability in this case. As
discussed above, the USPS was fully aware that the heavily-laden wire containers
-28-

would sometimes get stuck when coming off the scissor jack ramp and on to the
loading dock at the Dunkirk facility. Given the failure of the USPS to address the
situation despite repeated complaints, it was therefore entirely foreseeable that the
problem might occur on plaintiff’s early morning run, and that plaintiff might need to take
whatever means necessary to unload the stuck container in order to maintain his
delivery schedule. While partial unloading of the container was certainly an option,
there was no evidence or argument presented at trial to suggest that this option was
any less likely to result in the type of injury suffered by plaintiff than using a shoring bar
as a lever. Under these circumstances, the Court finds that plaintiff’s conduct was not
so reckless, extraordinary, or unforeseeable as to sever the causal connection between
defendant’s failure to correct the dangerous condition at the loading dock and the injury
caused by that failure.
Accordingly, this Court finds by a preponderance of the credible medical
evidence that the injury suffered by plaintiff on July 6, 2006 was causally related to the
occurrence on October 26, 2005, and that both injuries were the proximate result of
defendant’s negligence in failing to address the dangerous condition at the loading dock
of the Dunkirk Post Office.

B.

Comparative Negligence

Having found that plaintiff has established the elements of his negligence claim,
the Court next takes up the question of comparative negligence. Under the law of New
York regarding comparative liability, a plaintiff's damages “otherwise recoverable shall
be diminished in the proportion which the culpable conduct attributable to the claimant
-29-

or decedent bears to the culpable conduct which caused the damages.” N.Y.C.P.L.R.
§ 1411; see Robinson, supra, 330 F. Supp. 2d at 289 (citing Catherman v. United
States, 1992 WL 175258, at *14 (N.D.N.Y. July 21, 1992) (plaintiff “owed a duty to
himself to recognize obvious hazards and exercise the appropriate level of caution.”);
Lolik v. Big v. Supermarkets, 210 A.D.2d 703, 704, 620 N.Y.S.2d 167, 169 (3d Dep’t
1994) (plaintiff was “bound to see what by the proper use of her senses she might have
seen.”), rev'd on other grounds, 86 N.Y.2d 744 (1995)). Defendant bears the burden of
proof on this affirmative defense. N.Y.C.P.L.R. § 1412 (“Culpable conduct claimed in
diminution of damages, in accordance with section fourteen hundred eleven, shall be
an affirmative defense to be pleaded and proved by the party asserting the defense.”);
Allison v. Rite Aid Corp., 812 F. Supp. 2d 565, 569 (S.D.N.Y. 2011).
In order to assess whether the government has met its burden on the issue of
comparative negligence, the Court as trier of fact “must weigh all factors that caused
[the] injury and the relative culpability of each party for those contributing factors. There
is no magic formula governing the analysis.” Furey v. United States, 458 F. Supp. 2d
48, 55 (N.D.N.Y. 2006).
In this case, as alluded to above, the government argues that plaintiff acted
negligently because there were several steps he could have taken to address the
situation with minimal likelihood of injury, such as refusing to take the overloaded wire
container at the P&DC, asking the mail handler to split the load into two containers, or
using his cell phone to call for guidance. Based on plaintiff’s credible testimony, it is
clear to the Court that refusal of the container was not an option considered by plaintiff,

-30-

since he had never refused a load in fourteen years driving mail delivery trucks prior to
his injury. Using his cell phone to call either his boss or a USPS “expediter” when the
container got stuck on the Dunkirk loading dock presented even less of a viable option,
considering his need to adhere to the delivery schedule, as well as the likelihood that he
would get no helpful guidance at 3:00 a.m. from his boss in Binghamton or from anyone
at the P&DC.
However, notwithstanding plaintiff’s testimony as to his belief that he tried
“everything in [his] power” to free the wire container from the scissor jack, the
preponderance of the evidence at trial establishes that plaintiff did not pursue the option
which, in this Court’s view, presented the best solution under the circumstances –
unloading enough mail from the wire container to allow it to roll off the scissor jack and
on to the loading dock. Indeed, as Postmaster Jami Sorrento testified, this was the
recommended procedure for handling overloaded wire containers at the Dunkirk facility.
Tr. 147-48. Plaintiff testified that he considered this option, but decided against it,
primarily because there were no empty containers available at the facility to load the
mail into. Tr. 26. However, Ms. Sorrento also testified that the mail could have been
lifted out of the unloaded container and placed on the loading dock floor until the wire
container could be moved. Tr. !47-48. From this testimony, the reasonable inference
can be drawn by the trier of fact that, once the wire container was sufficiently unloaded,
the handler could singlehandedly move it off the scissor jack and onto the loading dock,
place the mail back in the container, and move it into the facility. The inference can
also be drawn that this could be accomplished with considerably less likelihood of injury

-31-

than the handler might suffer by levering the fully-loaded container off the scissor jack
with a shoring bar.
In addition, plaintiff testified that he could have asked the mail handler at the
P&DC to split the load into two containers. Under the circumstances presented by the
testimony and other evidence at trial, this was a feasible alternative which would
likewise have minimized the “sticking” problem plaintiff encountered at the Dunkirk
loading dock, and the likelihood of the injury he suffered.
Accordingly, the Court finds that defendant has satisfied its burden to establish
by a preponderance of the evidence that plaintiff should bear some proportional
responsibility for the damages suffered, “based on the relative culpability and causal
significance of [his] conduct.” Integrated Waste Services, Inc. v. Akzo Nobel Salt, Inc.,
113 F.3d 296, 300 (2d Cir. 1996). Having duly weighed the factors contributing to the
injury and the parties’ relative culpability, the Court also finds it reasonable to diminish
the damages recoverable in this case by 10 percent.

II.

Damages
Under New York law, if the trier of fact finds the defendant negligent, and that the

defendant’s negligence is the proximate cause of the plaintiff's injuries, the plaintiff is
entitled to recover “a sum of money which will justly and fairly compensate the plaintiff
for the loss resulting from the injuries sustained.” Kehrli v. City of Utica, 105 A.D.2d
1085, 1083, 482 N.Y.S.2d 189, 190 (4th Dep’t 1984), quoted in Robinson, supra, 330 F.
Supp. 2d at 290. Generally, a plaintiff may recover for past and future loss of earnings,
medical expenses, and mental and physical pain and suffering attributable to the
-32-

defendant's negligence. Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1082 (2d Cir.
1988) (citing 36 N.Y.Jur.2d Damages § 57, at 102-03).
Pain and suffering has been held to encompass recovery for physical pain, the
adverse emotional consequences attributable to that pain and the injury that caused it,
and loss of enjoyment of life. McDougald v. Garber, 73 N.Y.2d 246, 253-55 (1989).
There is no precise rule for fixing the value of pain and suffering. Instead, the trier of
the facts must determine the value from all of the evidence in the particular case.
DiPirro, supra, 43 F. Supp. 2d at 345. Damages for future pain and suffering may be
recovered only when it is reasonably certain from the evidence that such damages will
necessarily result from the original injury. Id. As the New York Court of Appeals has
noted, “an award of damages to a person injured by the negligence of another is to
compensate the victim, not to punish the wrongdoer. The goal is to restore the injured
party, to the extent possible, to the position that would have been occupied had the
wrong not occurred.” McDougald, supra, 73 N.Y.2d at 253-54 (citation omitted).
An award of damages for past or future economic loss must be reduced by
collateral source income, N.Y.C.P.L.R. 4545(c), and any award for future economic loss
or future pain and suffering must be discounted to present value. Ulrich, supra,
853 F.2d at 1083. Additionally, as recognized by the Court in its order dated August 25,
2010, plaintiff’s maximum recovery is limited pursuant to 28 U.S.C. § 2675(b) to the
amount set forth in his administrative claim – $750,000.

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A.

Lost Wages

Plaintiff’s economist, Dr. Reiber, was the only witness called at trial to offer proof
regarding an appropriate method for the Court to utilize in calculating past and future
economic loss suffered by plaintiff as a consequence of the injuries traceable to the
October 26, 2005 occurrence. Dr. Reiber presented two separate sets of calculations
of past and future lost wages, as set forth in his expert report (Exh. 65) and explained
during his testimony at trial: Set #1, with no reduction for any period of unemployment,
and Set #2, representing reduced lost wages based on a 6% chance of unemployment.
Notwithstanding Dr. Reiber’s testimony that Set #2 represented the standard method
used by economists to calculate lost wages, the Court gives credence and weight to
plaintiff’s testimony that he has never applied for unemployment benefits and has no
intention of doing so. Accordingly, the Court will rely on Dr. Reiber’s calculations in Set
#1, representing plaintiff’s lost wages unreduced by any period of unemployment.

1.

Past Wages

Dr. Reiber has calculated plaintiff’s lost past wages at $131,021. Defendant
does not dispute the essential numerical calculation, but contends that the Court should
reduce this amount to account for Dr. Reiber’s improper assumption that plaintiff was
regularly paid 2.5 hours of weekly overtime, and received 401(k) contributions of $3,000
yearly while working at Wayman Trucking.
Upon review of the testimony and exhibits in the trial record, the Court agrees
with defendant’s contention in this regard. There is simply no evidence to support

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Dr. Reiber’s inclusion of overtime and 401(k) contributions. Although plaintiff testified
that he regularly worked “full time, 40 hours plus …” (Tr. 104), he submitted no
accounting records or other documentation to support the assumption that he averaged
2.5 hours of overtime per week, and there is no testimony or other evidence regarding
any 401(k) contributions made on plaintiff’s behalf by Wayman Trucking.
Accordingly, Dr. Reiber’s calculation of lost past wages in the amount of
$131,021 is reduced by 6.25% ($8,189) to account for improper inclusion of lost
overtime, and by $19,207 to account for improper inclusion of lost 401(k) contributions,
for a total award of lost past wages in the amount of $103,625.

2.

Future Wages

Dr. Reiber’s lost future wage calculations in Exhibit 65 are presented under two
basic scenarios: (1) plaintiff will be able to continue working, and (2) plaintiff will be
unable to work beyond age 53. Dr. Reiber provides separate amounts of lost future
wages calculated cumulatively to plaintiff’s birthday for each year from 2012 to 2028,
which is the year plaintiff turns 67 and becomes eligible for unreduced Social Security
benefits. Thus, in Scenario (1), Dr. Reiber calculates lost future wages to a maximum
of $380,752 in the year 2028, based on the assumption that plaintiff would be able to
work at J.C. Penney and Independent Security Service until his retirement age of 67. In
Scenario (2), Dr. Reiber calculates lost future wages to a maximum of $1,091,474 in
2028, based on the assumption that plaintiff would be unable to work past the age of
53.

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Defendant contends that scenario (2) should be rejected outright, as there is
insufficient evidence to support a finding that plaintiff will be unable to work full-time
beyond the age of 53. In this regard, the Court notes plaintiff’s testimony describing the
light physical demands of his duties as a Loss Prevention Supervisor, where he spends
the majority of his time sitting while doing paperwork or watching closed-circuit
television monitors, with some time spent walking around the store, and no lifting. He
testified that he took the position at J.C. Penney because it allowed him to sit, stand,
walk, or even lie down at his discretion in order to accommodate his physical limitations.
Tr. 108, 180-81. Since taking the job, he has received promotions, pay raises, and
company awards recognizing his accomplishments, and his job evaluations reflect his
“top level performance” and “excellent attitude.” Tr. 106-07). The Court also notes
Dr. Leddy’s opinion that plaintiff could be expected to work at this job until age 65.
Tr. 222-23.
On the other hand, plaintiff’s treating surgeon, Dr. Moreland, gave his opinion
that plaintiff has already exceeded the work life expectancy for a 50-year old male with
the same injury, and that it was statistically unlikely that plaintiff would be able to
continue working to the age of 65. Tr. 57-60. Defendant argues that, in the absence of
any supporting statistics, studies or other documentary evidence, Dr. Moreland’s
opinions must be regarded as speculative. However, the same can be said for
Dr. Leddy’s opinion that plaintiff could be expected to work at his current job until age
65. Tr. 222-23. In any event, the Court agrees with Dr. Moreland’s assessment that
plaintiff is a very credible self-reporter, and must give considerable weight to plaintiff’s
testimony regarding his pain and physical limitations while performing even the light
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physical demands of his current job, as well as his diminished activity at home. Tr. 10711. Considered along with the totality of the credible medical, expert, and lay testimony
presented at trial with respect to plaintiff’s work life expectancy, the Court deems it
appropriate to compromise the difference between the two scenarios presented by
Dr. Reiber. Accordingly, for the purposes of assessing lost future wages in this case,
the Court accepts Dr. Reiber’s assumptions that plaintiff will be able to keep working
35 hours a week at his present job with J.C. Penney, and 14 hours a week at his
present job with Independent Security, until the age of 60. At that point, assuming
Dr. Reiber’s applied annual inflation rate of 2.6%, plaintiff’s cumulative lost future wages
will amount to $526,489, discounted by 2% to reflect present value.

3.

Pain and Suffering

The Court also finds it appropriate to award damages for pain and suffering.
Although plaintiff has submitted no authority for such an award, defendant has
submitted citations to several New York cases in which the jury awarded damages for
pain and suffering for similar injuries. For example, in Clark v. Eklecco, 2001 WL
34553842 (N.Y. Sup. Ct. 2001), the jury awarded $150,000 for pain and suffering for a
herniated disc at C6-7, disc protrusions at L1-2, L4-5, L5-S1, C7- T1, T2-T3, and knee
injuries. In Smith v. Monroe Muffler, 1998 WL 34201606 (N.Y. Sup. Ct. 1998), the jury
awarded $150,000 for pain and suffering for herniated discs at C6-7 & L4-5 and bulging
discs at C5-6, resulting in a discectomy at L5-S1 and a discectomy and fusion at C6-7
with bone grafting from his right hip, surgical scarring of his neck, hip and lower back.
In Parody v. Buker, 1997 WL 682240 (N.Y. Sup. Ct. 1997), the jury awarded $171,600
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for pain and suffering for herniated discs at L4-5 and L5-S1, requiring a
hemilaminectomy and a discectomy and fusion at L4-5. In Loft v. Ziegler, 2004 WL
4402057 (N.Y. Sup. Ct. 2004), the jury awarded $253,000 for pain and suffering for
herniated discs C4-5, C5-6, rotator cuff tears, and disc protrusions L4-5, L5-S1.
Based on these examples, each involving more serious injuries than those
suffered by plaintiff in this case, defendant suggests that the Court should award a
maximum of $150,000 for pain and suffering. In the absence of any submission by
plaintiff in support of a greater amount, the Court finds this suggestion acceptable.
Accordingly, plaintiff is awarded the amount of $150,000 for past and future pain
and suffering, with damages for future pain and suffering discounted by 2% to reflect
present value.

4.

Medical and Other Expenses

The parties have stipulated that New York Transportation WC Trust maintains a
continuing worker’s compensation lien in the amount of $146,821.50 against any
recovery for injuries or damages arising out of the October 26, 2005 incident. See
Exh. 67; Tr. 306.

3.

Collateral Sources

Plaintiff testified that he received a total net payout of $70,200 from worker’s
compensation. Tr. 113. Accordingly, plaintiff’s award of damages in this case will be
reduced by this amount.

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CONCLUSION
Based on the foregoing, and for the reasons stated, the Court finds in favor of
plaintiff, and awards plaintiff the sum of $103,625 for lost past wages; $526,489 for lost
future wages (discounted by 2 percent to reflect present value); and $150,000 for past
and future pain and suffering (with the award for future pain and suffering discounted by
2 percent to reflect present value). The total amount of damages awarded shall be
reduced by 10 percent to reflect plaintiff’s comparative negligence, and by the amount
of $70,200 to reflect plaintiff’s workers’ compensation buyout. Finally, the judgment
shall also reflect the parties’ stipulation as to the workers’ compensation lien in the
amount of $146,821.50.
The parties are directed to submit, within 30 days of the date of entry of this
Order, a joint proposed judgment incorporating these findings (including, if appropriate,
a provision for accrual of post-judgment pursuant to 31 U.S.C. § 1304).
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated:

Buffalo, New York
March 12, 2012

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