GRACIANO V. BLUE SKY LOGISTICS LLC, ET AL.
Filing
69
MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 9/13/2019. For the foregoing reasons, judgment be entered in favor of Plaintiff on his negligence claim and Defendants are jointly and severally liable to Plaintiff. FURTHER that Plaintiff is entitled to recover from Defendants $116,897.91 in compensatory damages for Defendants' negligence. A judgment consistent with this Memorandum Opinion and Order will be entered contemporaneously herewith. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CASIMIRO GRACIANO,
Plaintiff,
v.
BLUE SKY LOGISTICS LLC and
MICHAEL WALKER DANIELS,
Defendants.
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1:17CV889
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Casimiro Graciano seeks recovery for personal
injuries suffered in a traffic accident. Plaintiff was operating
a tractor-trailer on March 1, 2016, in Surry County, North
Carolina, and was hit from behind by a tractor-trailer operated
by Defendant Michael Walker Daniels (“Daniels”), who worked for
Defendant Blue Sky Logistics LLC (“Blue Sky”). On July 16, 2019,
this court held a bench trial. Plaintiff, Plaintiff’s counsel,
and Defendants’ counsel were present at trial. Neither Defendant
appeared for trial despite notice from this court.
This court issued findings of fact and conclusions of law
regarding liability in open court following the trial, pursuant
to Federal Rule of Civil Procedure 52(a). This court found in
Plaintiff’s favor as to liability, determining that Daniels
negligently operated a tractor-trailer by failing to reduce
speed to avoid an accident and, as a result, crashed into the
rear of Plaintiff’s tractor-trailer on March 1, 2016. This court
will briefly make additional findings of fact as to liability
and then proceed to damages.
These written findings of fact and conclusions of law are
issued pursuant to Federal Rule of Civil Procedure 52(a). For
the following reasons, this court finds that Defendants are
liable for negligence and that Plaintiff is entitled to recover
damages in a total amount of $116,897.91.
I.
PARTIES
Plaintiff was a citizen and resident of Texas at the time
of filing. (Complaint (“Compl.”) (Doc. 1) ¶ 1.) Blue Sky is a
Utah corporation headquartered in Utah and Daniels is a citizen
of Nevada. (Id. ¶¶ 2–3.) The amount in controversy exceeds
$75,000.00. (Id. ¶ 4.) Venue is proper in the Middle District of
North Carolina because the accident occurred within the
district. See 28 U.S.C. § 1391(b)(2).
Plaintiff alleges that Blue Sky is responsible for Daniels’
actions under the doctrine of respondeat superior. (Id. ¶¶ 41,
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43, 60–62.) Defendants admit that Blue Sky employed Daniels as a
driver at the time of the accident. (Pl.’s Ex. 12 ¶¶ 2, 4.)1
II.
JURISDICTION AND GOVERNING LAW
Jurisdiction is based upon diversity of citizenship. See 28
U.S.C. § 1332. A federal court sitting in diversity jurisdiction
applies state substantive law and federal procedural law. See
Hanna v. Plumer, 380 U.S. 460, 465–66 (1965); Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 72–73, 79–80 (1938). A federal court
sitting in North Carolina must use North Carolina conflict of
law rules. See, e.g., Klaxon Co. v. Stentor Elec. Mfg. Co., 313
U.S. 487, 496–97 (1941).
North Carolina courts have consistently held “that matters
affecting the substantial rights of the parties are determined
by lex loci, the law of the situs of the claim . . . . For
actions sounding in tort, the state where the injury occurred is
considered the situs of the claim.” Boudreau v. Baughman, 322
N.C. 331, 335, 368 S.E.2d 849, 853–54 (1988). Because damages
are a substantive issue, they must also be determined under the
law of the state of injury. See Tenn. Carolina Transp., Inc. v.
Strick Corp., 283 N.C. 423, 440, 196 S.E.2d 711, 722 (1973);
All exhibits were admitted during the trial in hard copy
form. (See Exhibit and Witness List attached to Doc. 67.)
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Stetser v. TAP Pharm. Prods., Inc., 165 N.C. App. 1, 15–16, 598
S.E.2d 570, 580–81 (2004).
The vehicle accident and alleged injuries occurred in North
Carolina. Therefore, this court will apply North Carolina law to
determine both liability and damages.
Additionally, the Federal Rules of Evidence provide that
“[i]n a civil case, state law governs the effect of a
presumption regarding a claim or defense for which state law
supplies the rule of decision.” Fed. R. Evid. 302. The Fourth
Circuit has recognized that some evidentiary rules straddle the
line between procedure and substance and “that a state
procedural rule must be followed in a diversity case if it is
intimately bound up with the state right or obligation.”
DiAntonio v. Northampton-Accomack Mem’l Hosp., 628 F.2d 287, 291
(4th Cir. 1980) (internal quotation marks and citation omitted);
see also Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109–10
(4th Cir. 1995). Any North Carolina-specific evidentiary
presumptions that bear upon substantive state policy decisions
apply to this case.
III. LIABILITY
This court adopts and incorporates herein its findings made
in open court following the bench trial. This court found that
Daniels was negligent by failing to reduce speed to avoid a
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collision. A negligence claim has four elements: “[1] defendants
owed plaintiff a duty of care, [2] defendants’ conduct breached
that duty; [3] the breach was the actual and proximate cause of
plaintiff’s injury; and [4] damages resulted from the injury.”
Lamm v. Bissette Realty, Inc., 327 N.C. 412, 416, 395 S.E.2d
112, 115 (1990). In summary, Daniels was negligent in that he
owed Plaintiff a duty of reasonable care while operating his
tractor-trailer; he breached that duty by failing to reduce
speed to avoid an accident; and his negligence was the actual
and proximate cause of injury to Plaintiff resulting in damages.
Blue Sky admits that it employed Daniels at the time of the
crash and that Daniels was acting in the scope of his
employment. (Pl.’s Ex. 12 ¶¶ 2, 4.) An employer is liable under
respondeat superior for an employee’s tortious act “(1) when
expressly authorized; (2) when committed within the scope of his
employment and in furtherance of his master’s business — when
the act comes within his implied authority; (3) when ratified by
the principal.” Snow v. De Butts, 212 N.C. 120, 193 S.E. 224,
226 (1937); see also Hogan v. Forsyth Country Club Co., 79 N.C.
App. 483, 491, 340 S.E.2d 116, 121–22 (1986). At the time of the
accident, Daniels was working in the scope of his employment, in
furtherance of Blue Sky’s business, and within his implied
authority to drive trucks.
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Blue Sky and Daniels are jointly and severally liable for
Plaintiff’s injuries arising from the March 1, 2016 accident.
IV.
DAMAGES
The principle dispute between the parties relates to
damages. Plaintiff contends that he is entitled to recover
damages of $360,000.00.2 Defendants argue that they are liable
for, at most, $55,000.00.
A.
Legal Framework
In North Carolina, a plaintiff bears the burden of proving
“both that the medical attention [the plaintiff] received was
reasonably necessary for proper treatment of [plaintiff’s]
injuries and that the charges made were reasonable in amount.”
Ward v. Wentz, 20 N.C. App. 229, 232, 201 S.E.2d 194, 197
(1973); see also Jacobsen v. McMillan, 124 N.C. App. 128, 134–
35, 476 S.E.2d 368, 372 (1996). The plaintiff must also “show
that the medical records at issue reflect treatment of an injury
that was causally related to the alleged negligence of the
defendant.” Daniels v. Hetrick, 164 N.C. App. 197, 201, 595
S.E.2d 700, 703 (2004); see also Gillikin v. Burbage, 263 N.C.
During closing arguments, Plaintiff’s counsel identified
the following damage amounts: (1) $16,000.00 for lost wages, (2)
$109,000.00 for past medical expenses, (3) $10,000.00 for future
medical expenses, (4) $73,000.00 for past pain and suffering,
(4) $16,000.00 for future pain and suffering, (5) $55,000.00 for
past physical impairment, and (6) $82,000.00 for future physical
impairment. These amounts add to $361,000.00.
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317, 324, 139 S.E.2d 753, 759 (1965) (“To hold a defendant
responsible for a plaintiff’s injuries, defendant’s negligence
must have been a substantial factor, that is, a proximate cause
of the particular injuries for which plaintiff seeks
recovery.”). A doctor may demonstrate the causal connection of
medical bills “by his own opinion, or by testifying that he
either relied on [certain] documents for his diagnosis or that
the documents reflect the work of another medical professional
to whom the plaintiff was referred by him.” Daniels, 164 N.C.
App. at 201, 595 S.E.2d at 703.
N.C. Gen. Stat. § 8-58.1 establishes a rebuttable
presumption that the amount of medical expenses is reasonable
when the injured party testifies regarding medical bills.3
However, the statute requires that “records or copies of such
charges showing the amount paid or required to be paid in full
satisfaction of such charges accompany such testimony.” N.C.
Gen. Stat. § 8-58.1(a). The statute also “establishes a
permissive presumption that [any] services provided were
reasonably necessary.” N.C. Gen. Stat. § 8-58.1(c). But “no
presumption is established that the services provided were
This court is satisfied that § 8-58.1 articulates a state
public policy to lower the evidentiary burden for injured
plaintiffs seeking to recover medical expenses in negligence
cases. Therefore, § 8-58.1 applies in a federal diversity case
under the Hottle standard. See Hottle, 47 F.3d at 109–10.
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necessary because of injuries caused by the acts or omissions of
an alleged tortfeasor.” Id. While lay testimony is permitted to
establish causation in simple cases, “where the exact nature and
probable genesis of a particular type of injury involves
complicated medical questions . . . , only an expert can give
competent opinion evidence as to the cause of the injury.” Click
v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d
389, 391 (1980); accord Peagler v. Tyson Foods, Inc., 138 N.C.
App. 593, 598–601, 532 S.E.2d 207, 210–12 (2000) (finding that
expert testimony was required to show a connection between the
plaintiff’s work accident and herniated disk).
B.
Undisputed Facts
Two damage categories are not in dispute. Plaintiff and
Defendants agree that Plaintiff is entitled to recover lost
wages of $16,000.00. Further, Defendants concede that Plaintiff
is entitled to recover expenses associated with the
decompression surgery performed by Dr. Jose Dones-Vazquez (“Dr.
Dones”) on January 31, 2017, in the amount of $13,540.00. This
court agrees that Plaintiff should recover at least $29,540.00
for lost wages and past medical expenses. The remaining issues
are disputed, in whole or in part.
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C.
Findings of Fact
This court begins its analysis with relevant findings of
fact and will then proceed to legal analysis, discussing
evidentiary issues as necessary.
1.
Plaintiff was born on June 14, 1987, and is 32
years old. Plaintiff was 28 years old at the time of the
accident. Prior to the accident, Plaintiff credibly testified,
and Defendants do not appear to dispute, that he did not have
any neck or back pain. Immediately following the crash, this
court finds that Plaintiff experienced neck and back pain that
was proximately caused by the accident. Both medical doctors
agree, and this court finds, that the accident was the proximate
cause of Plaintiff’s neck and back pain. (See Pl.’s Ex. 1 at 32
(“[I]f that didn’t happen then the mechanism of injury certainly
goes along with his complaint.”); Pl.’s Ex. 2 at 31 (“[W]e have
to assume that, indeed, the crash was the one that, you know,
unravel all this — you know, his problems.”).) In general, to
the extent Plaintiff sought medical treatment for neck and back
pain in the year following the accident, this court finds that
the accident was likely a but-for cause of this treatment.
2.
The accident occurred on March 1, 2016. (Compl.
(Doc. 1) ¶¶ 42–47.) This court credits Plaintiff’s testimony
that he was shaken up and experienced pain, particularly in his
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back, immediately after the accident. Plaintiff remained in his
tractor-trailer, called 911, and required assistance to get out
of the truck. This court also credits the testimony of
Plaintiff’s wife, Edith Graciano, who testified that Plaintiff
appeared to be in pain when he first returned home after the
accident.
3.
Following the accident, Plaintiff was transported
by ambulance to a hospital — Twin County Regional Hospital in
Galax, Virginia — where he was treated for a few hours and then
released. Plaintiff subsequently received bills from the Twin
County emergency room for $4,982.25, (see Pl.’s Ex. 35), and
from Surry County Emergency Services for $746.50, (see Pl.’s Ex.
33), for a total expense of $5,728.75. No evidence has been
presented to suggest these charges are not reasonable and
Defendants’ expert, Dr. Ronald Gioffre, reviewed these records
and did not indicate any belief that they were not connected to
the accident. (See Pl.’s Ex. 3 at 9; Defs.’ Ex. 4.)
4.
According to his testimony, Plaintiff was
released from Twin County Regional Hospital and instructed to
“get more tests.” Plaintiff took a taxi to a nearby hotel, where
he spent the night. Plaintiff was able to walk on his own
without assistance, obtained his prescribed medication, traveled
to a storage facility, and was picked up by a co-worker in
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another tractor-trailer. Plaintiff traveled with his co-worker
to Pennsylvania to deliver a load and then returned home to
Texas, arriving a few days after the accident. Plaintiff
testified, and this court finds, that Plaintiff did not drive
during that trip because he was taking prescribed medications
which made him drowsy.
5.
Upon returning to Texas, Plaintiff continued to
have neck and back pain. Plaintiff sought treatment at the
emergency room of Valley Baptist Medical Center on March 7,
2016. Plaintiff received two separate bills for that visit,
including related treatment: one from Palm Valley Emergency Phys
for $1,070.00, (see Pl.’s Ex. 31), and one from Valley Baptist
Medical Center for $2,423.85, (see Pl.’s Ex. 36). Plaintiff
testified that he was released from the hospital, given
medication, and instructed to “go find a back doctor.”
Dr. Gioffre expressed no concern about this treatment.
6.
This court credits Plaintiff’s testimony that he
continued to experience some pain for several months following
the accident. This court finds that the pain was sufficient to
cause physical limitations for a period of several months.
Plaintiff remained out of work for three-and-a-half months.
During that time, this court credits Plaintiff’s testimony that
he was not able to work as a tractor-trailer driver. Plaintiff
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ultimately returned to work in a less physically-demanding
position driving refrigerator trucks, which does not require the
driver to load and secure the shipment.
7.
After his treatment and release from Valley Baptist
Medical Center, Plaintiff sought treatment from a “back doctor” —
Dr. John Morrison at the Rio Grande Health Clinic. Dr. Morrison, a
chiropractor, did not testify at trial. Although this court does
not impugn Plaintiff’s decision to see Dr. Morrison, there is no
evidence that the treatment Dr. Morrison provided was reasonably
necessary. Even if this court credits the release instructions
from Valley Baptist Medical Center as substantive evidence that it
was reasonably necessary for Plaintiff to see a back doctor, there
is no evidence from which this court can conclude that
Dr. Morrison was a back doctor capable of rendering the
recommended treatment. While Dr. Dones referred to “conservative
treatment” that Plaintiff received prior to the 2017 surgery,
Dr. Dones never mentioned Dr. Morrison specifically and the
testimony of Dr. Dones provides no basis for the court to conclude
that Dr. Morrison’s treatment was reasonably necessary or
addressed injuries caused by the crash.
8.
Dr. Morrison referred Plaintiff to Dr. Michael
Forman at the Headache and Pain Center. Dr. Forman did not testify
at trial, nor can this court determine that Dr. Forman’s full
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medical records were introduced into evidence. Dr. Dones and Dr.
Forman worked together to treat Plaintiff on at least some
occasions, (see Pl.’s Ex. 2 at 29), so some of Dr. Forman’s
records are included within Dr. Dones’ medical records. (See Pl.’s
Ex. 10.) According to Plaintiff’s testimony, Dr. Forman gave
epidural steroid injections to Plaintiff prior to the 2017
surgery. Defendants object to Forman’s records and bills due to
lack of evidence establishing causation.
9.
Dr. Forman referred Plaintiff to Dr. Dones.
Defendants object to the introduction of Dr. Dones’ medical
records to the extent Dr. Dones did not explain those records.
However, the records were introduced through Dr. Dones during his
deposition. (See Pl.’s Ex. 2 at 32; Pl.’s Ex. 10.) Dr. Dones
testified that he kept the records in the ordinary course of
business and created them at or near the time he saw or diagnosed
Plaintiff. (Pl.’s Ex. 2 at 32.) Dr. Dones also testified that that
he relied on the records to make treatment decisions. (Id.) Dr.
Dones identified Plaintiff’s Exhibit 10 as the paper file he
brought to his deposition, apparently the same as or similar to
Plaintiff’s Exhibit 9.
10.
The personal records of Dr. Dones, as admitted,
reflect the following treatment dates, (see generally Pl.’s Ex.
9):
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May 9, 2016: Plaintiff appeared for an initial consultation
and was examined for cervical pain. Dr. Dones noted that
Plaintiff had “completed conservative treatment with slight
improvement.” Dr. Dones diagnosed a “broad based disc at
L4-5” and recommended pain medication and injections if
symptoms did not improve.
August 29, 2016: Plaintiff underwent a cervical discogram.
December 5, 2016: Plaintiff was examined for complaints of
neck pain. Dr. Dones reviewed Plaintiff’s discogram results
and noted a contained disc at C6-7. The care plan indicates
that “patient will benefit from disc decompression at C6-7
to be done with Dr. Forman.”
January 31, 2017: Dr. Dones’ surgical notes state that a
cervical disc decompression was performed.
February 13, 2017: Post-surgery evaluation. Dr. Dones noted
that Plaintiff had shown “marked improvement of symptoms
after surgery” and “was advised to stay active as tolerated
and to follow up as needed.”
11.
As described above, Dr. Dones examined and
treated Plaintiff intermittently from May 2016 until February
2017. Dr. Dones ordered an EMG and a discogram of Plaintiff’s
cervical area prior to the decompression surgery. (Pl.’s Ex. 2
at 22–25.) The EMG was performed by Lonestar Neuro Diagnostics &
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Rehab at a cost of $2,680.00. (Pl.’s Ex. 9; Pl.’s Ex. 30.)
Dr. Dones then recommended and performed a disc decompression
procedure. (Pl.’s Ex. 2 at 26). The procedure was performed at
the Headache and Pain Center with Dr. Forman on January 31,
2017. (Id. at 28-30; Pl.’s Ex. 34.) Dr. Dones last saw Plaintiff
in February 2017 and assumes Plaintiff has been doing okay
“because . . . he hasn’t been seen in the office” since. (Pl.’s
Ex. 2 at 31.)
12.
In terms of continuing pain, this court does not
find Plaintiff’s testimony fully believable or persuasive.
Plaintiff testified that he continues to experience certain
limitations because of his injuries and associated pain. For
example, Plaintiff stated that he must wear a supportive belt
while mowing the lawn, cannot play with his children in a normal
manner, and requires help from his wife to perform certain
household chores. This court does not fully credit that
testimony for several reasons.
First, neither Dr. Dones nor Dr. Gioffre expressed a
medical opinion that Plaintiff has any continuing injury or
should limit himself in any activities. Dr. Dones testified that
Plaintiff was better and improved after the surgery and did not
come in for further visits. (Pl.’s Ex. 2 at 30.) Dr. Gioffre
provided a ten percent disability rating for Plaintiff’s neck
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and no disability rating for Plaintiff’s lower back. (Pl.’s Ex.
1 at 32–34.) But Dr. Gioffre also testified that this rating was
based only on the possibility of arthritic issues in the future
and that, in his belief, Plaintiff does not currently need any
further treatment or suffer from any limitations. (Id. at 33.)
Second, this court finds that the limitations Plaintiff
identified are most likely caused by subjective beliefs about
what movements might cause pain. This is not persuasive on an
objective basis, particularly in light of expert testimony that
Plaintiff is not physically limited. Neither doctor indicated
that Plaintiff would need a brace to mow the lawn, and
Plaintiff’s challenges mowing the lawn appear inconsistent with
his ability to continue driving and operating a tractor-trailer
for long periods.
Third, Plaintiff has not sought medical treatment of any
kind since moving to Florida approximately two years ago. At the
time of Plaintiff’s deposition, Plaintiff testified he was not
taking any medication, including Advil. The court finds this
behavior inconsistent with Plaintiff’s testimony regarding the
pain he experiences after doing household chores. This court
accepts that Plaintiff has experienced occasional minor pain and
aggravation in his back since the surgery. However, this court
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finds, based on the expert testimony, that this pain and
aggravation is nominal.
13.
Dr. Gioffre found that Plaintiff had a ten
percent disability rating of the spine. Dr. Gioffre explained:
First of all, it’s a very generous disability that I
gave him and what it means is this, by definition a
disability is, is your anatomy of your neck any
different now than what it was before the injury, that
answer is yes. Why, because you had a piece of your
body or your disc removed. That might set you up for
some traumatic arthritic changes in your neck in the
future. So I gave him all the benefit of the doubt
that all might happen and then I gave him ten percent,
which most people would give you ten percent if they
opened your neck and put a bone graft in there and
plate.
(Pl.’s Ex. 1 at 33.) This court credits that testimony and
Dr. Gioffre’s testimony that Plaintiff need only take Aleve or
Advil periodically to manage any pain. (Id. at 33–34.) Neither
Dr. Gioffre nor Dr. Dones indicated that he would place any
limitation on Plaintiff’s activities. The testimony by Plaintiff
and his wife regarding physical limitations is simply not
persuasive in light of the expert medical testimony.
D.
Conclusions of Law
1.
Emergency Services
This court finds that, as to the emergency room bills and
transport charge, Plaintiff is entitled to the presumptions in
N.C. Gen. Stat. § 8-58.1. This court does have some concerns
regarding the second emergency room trip, to Valley Baptist
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Medical Center on March 7, 2016. However, the services appear
reasonably necessary to treat ongoing neck and back pain caused
by the accident (pursuant to the presumption in N.C. Gen. Stat.
§ 8-58.1(c)). This court further concludes that the very small
gap in time (six days) between the accident and this visit
suggests that expert testimony is not necessary to link this
treatment to the accident. These services were reasonably
necessary emergency services immediately following the accident.
Therefore, their causation and necessity are not in dispute and
were established by Plaintiff’s lay testimony.
Plaintiff may recover $5,728.75 for his treatment in
Virginia and $3,493.85 for his treatment at Valley Baptist in
Texas (a total amount of $9,222.60).
2.
Records for Headache and Pain Center Treatment
This court finds that Dr. Dones’ personal medical records,
including his statements and Plaintiff’s statements within those
records, are admissible pursuant to both Fed. R. Evid. 803(6),
business records,4 and 803(4), statements made for medical
diagnoses or treatment. Although the portions of Plaintiff’s
This court also finds that Dr. Dones’ records are
accompanied by an affidavit of the custodian identifying the
records. Defendants had access to these records and the
affidavit before trial, and thus had a fair opportunity to
challenge those records. (See Pl.’s Ex. 2 at 32–33.) This court
finds, alternatively, that the records are admissible pursuant
to Fed. R. Evid. 803(6)(D), 803(6)(E), and 902(11).
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Exhibits 9 and 10 prepared independently by Dr. Dones are
admissible, the documents also include the records of other
medical providers — Dr. Forman, LV Imaging, Aldon B. Williams,
MD, and Dr. Morrison. While Dr. Dones may have relied upon those
records, neither he nor anyone acting under his direction
prepared those third-party records.
The third-party records are thus “double hearsay”; “[a]ny
information provided by another person, if an outsider to the
business preparing the record, must itself fall within a hearsay
exception to be admissible.” United States v. Gwathney, 465 F.3d
1133, 1141 (10th Cir. 2006); see also Fed. R. Evid. 805. If
double hearsay does not independently qualify under an
exception, “the only way to save the record from the jaws of the
hearsay exclusion is to establish that the business recipient
took precautions to guarantee the accuracy of the given
information. United States v. Pendergrass, Nos. 93–5422,
93-5738, 93–5423, 93–5425, 1995 WL 56673, at *4 (4th Cir. 1995).
Here, the third-party records contained within Dr. Dones’
records do not appear to fall within an independent hearsay
exception, nor has Plaintiff argued that they do. There is also
no evidence that Dr. Dones sought to independently verify any
information in these records. No other medical records have been
presented to support Dr. Forman’s bills, and Dr. Dones’ tacit
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endorsement of pre-surgery “conservative treatment” is not
sufficient to save these records because Dr. Dones did not
identify any specific treatment that he felt was conservative.
Therefore, this court finds that the third-party records
are not admissible. Plaintiff is not entitled to the
presumptions in N.C. Gen. Stat. § 8-58.1 for treatment rendered
by Dr. Morrison or Dr. Forman because full records documenting
this treatment have not been admitted into evidence. Further,
because this treatment occurred weeks and months after the
accident, this court finds that Plaintiff cannot rely on his own
recollection alone and instead must establish the necessity of
and reason for the treatment through expert testimony.
Even assuming the third-party records were admissible, this
court is not able to determine which charges relate to which
services. For example, Plaintiff’s spreadsheet alleges a total
cost for the Headache and Pain Center of $63,774.40. (See Pl.’s
Ex 3.) Those records reflect two insurance payments, one for
$5,000.00 and one for $250.00, that neither Plaintiff nor his
wife explained during their testimony. (See Pl.’s Ex. 34.) More
significantly, the records reflect treatment on dates for which
there is no corresponding medical explanation and this court is
unable to match the expert testimony to specific charges, in
certain instances. For example, the billing records reflect that
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Plaintiff was treated by Dr. Forman and Jose Roman on April 14,
20, and 27, 2016. (Pl.’s Ex. 34 at 2.) However, there are no
corresponding medical records to explain what treatment
Plaintiff received on those dates.
This court is also unable to determine, in some instances,
exactly which treatments were recommended by which doctor. For
example, Dr. Dones testified that he referred Plaintiff for a
steroid injection in the lumbar spine. (See Pl.’s Ex. 2 at 45–
46.) However, Dr. Dones could not recall whether Plaintiff ever
received this injection, from whom Plaintiff would have received
the injection, or the specific cost of the injection as it would
appear in the medical billing records.
While the charges may be reasonable in amount, this court
is unable to find that the services were reasonably necessary
due to injuries caused by the accident. In the absence of the
§ 8-58.1 presumptions, Plaintiff bears the burden of showing
“that the medical attention [he] received was reasonably
necessary” due to injuries caused by Defendants’ negligence.
Ward, 20 N.C. App. at 232, 201 S.E.2d at 197. Plaintiff has
presented no admissible expert testimony that Dr. Morrison’s
treatment was reasonably necessary or linked to the accident.
Dr. Dones’ testimony is not sufficiently specific for the court
to conclude that Dr. Dones referred Plaintiff for any steroid
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injection (or other non-surgical treatment) that either
Dr. Morrison or Dr. Forman ultimately performed. Therefore,
Plaintiff may not recover the $11,920.94 expense for Dr.
Morrison’s treatment. Plaintiff also may not recover the portion
of the Headache and Pain Center bill not specifically tied to
the decompression surgery because there is no direct evidence
that this treatment was reasonably necessary or causally
related.
3.
Decompression Surgery
The total cost of Dr. Dones’ own treatment was $13,540.00.
(Pl.’s Ex. 3; Pl.’s Ex. 28.) The Headache and Pain Center issued
two separate charges for the January 31, 2017 surgery (one for
$3,502.37 and one for $891.94)5, (see Pl.’s Ex. 34); Lonestar
Neuro Diagnostics charged $2,680.00 for the EMG and NCV scans
Plaintiff received at Dr. Dones’ direction prior to surgery,
(see Pl.’s Ex. 30); and Accion Rehab charged $461.00 for the
cervical collar that Plaintiff wore following his surgery, (see
Pl.’s Ex. 24). This court finds, based on Dr. Dones’ testimony
and personal records, that these charges were reasonably
The $3,502.37 charge reflects a $5,000.00 payment on
January 30, 2017, labeled “Insurance Payment – SELF PAY.”
Without further evidence, this court is unable to discern
whether this payment was made by Plaintiff personally or by an
insurance provider; therefore, Plaintiff has not met his burden
and this amount is not recoverable.
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necessary and directly related to the surgery, which Dr. Dones
testified was causally linked to the accident. (See Pl.’s Ex. 2
at 21–26, 31; Pl.’s Ex. 9.) Therefore, Plaintiff may recover a
total amount of $21,075.31 for the surgery and related medical
expenses.
Dr. Dones referred Plaintiff for a discogram prior to
surgery. While this expense would ordinarily be recoverable in
light of Dr. Dones’ testimony regarding the surgery, this court
is unable to identify the specific cost of the discogram from
the medical billing records. Dr. Dones’ notes appear to indicate
that Plaintiff underwent the discogram on August 29, 2016, but
the Headache and Pain Center billing records contain no charge
for that service date and instead suggest the discogram was
performed on October 12, 2016. (Compare Pl.’s Ex. 9 with Pl.’s
Ex. 34.) This court is thus unable to conclude from the evidence
that the additional Headache and Pain Center charges, including
the cost of the discogram, are sufficiently identified through
expert testimony as reasonably necessary and causally related to
the accident.
This court ultimately finds that Plaintiff may recover
compensatory damages for past medical expenses of $30,297.91.
This total includes $5,728.75 for the Virginia treatment;
$3,493.85 for treatment at Valley Baptist; and $21,075.31 for
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treatment by Dr. Dones and the cost of the decompression
surgery, associated EMG and NCV tests, and neck brace.
4.
Lost Wages, Past Pain and Suffering
Plaintiff may recover $16,000.000 for lost wages. This
court finds that Plaintiff is also entitled to an award of
compensatory damages for past pain and suffering. Plaintiff asks
for $73,000.00 for past pain and suffering, or $100.00 per day
for the year immediately following the accident and $50.00 per
day thereafter. Defendants suggest that an award of $20,000.00
is reasonable.
This court ultimately finds that Plaintiff’s documented
medical treatment in the aftermath of the accident merits a
substantial award for past pain and suffering. This court
credits the testimony by Plaintiff and his wife that both the
injury and this treatment were painful and difficult to endure
and that Plaintiff suffered pain while recovering from his
injections and surgery. Further, Plaintiff’s decision to seek
treatment with no guarantee of future recovery or reimbursement
suggests that Plaintiff was suffering genuine pain from the
accident. This court is not persuaded that the full amount of
requested compensatory damages for medical expenses should be
awarded because there is no admissible evidence demonstrating
that all of this treatment was medically necessary. But this
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court credits Plaintiff’s testimony that he sought the treatment
due to legitimate pain stemming from the accident. This court
finds that the past pain and suffering amount should account for
this otherwise uncompensated medical treatment.
However, this court also finds that the decompression
surgery in January 2017 largely alleviated Plaintiff’s neck
pain, (see Pl.’s Ex. 2 at 30–31), and that pain and suffering
damages should be awarded only for the time period of March 1,
2016 through March 2017. Plaintiff has requested $100.00 per day
for that period, which would amount to a total recovery of
$36,500.00. This court is persuaded, after hearing the evidence,
that an amount slightly above Plaintiff’s request is reasonable
given the three-and-a-half months during which Plaintiff was
unable to work and the continuing pain from March 2016 to March
2017, which this court finds was credibly described by Plaintiff
in his testimony. This court ultimately finds that an award of
$55,000.00 for past pain and suffering is reasonable.
5.
Future Damages
This court, after considering all the evidence, finds that
Plaintiff is entitled to compensatory damages for future
disability, medical expenses, and pain and suffering. This court
finds that an award of $500.00 for future medical expenses is
reasonable, as this will cover the occasional purchase of over-
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the-counter pain medication. The court further finds that an
award of $15,000.00 for future physical impairment and
disability is appropriate. This number is based, in part, on the
North Carolina statutory worker’s compensation table. See N.C.
Gen. Stat. § 97-31(23).6 Because this court finds any future pain
and suffering to be nominal, this court will award $100.00.
Compensatory damages for future medical expenses, disability,
and pain and suffering come to a total of $15,600.00.
This court finds that Plaintiff is entitled to recover
damages in a total amount of $116,897.91 — $30,297.91 for past
medical treatment, $16,000.00 for lost wages, $55,000.00 for
past pain and suffering, and $15,600.00 for future medical
expenses, disability, and pain and suffering.
V.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that
judgment be entered in favor of Plaintiff on his negligence
A $56,000.00 annual salary produces an average weekly wage
of $1,076.92. For 300 weeks, the total is $323,076.92. Sixty-six
and two-thirds percent is $215,384.61, and ten percent (Dr.
Gioffre’s total disability rating) of that is $21,538.46. This
court concludes, based on Dr. Gioffre’s testimony, that the
disability rating accounts for the possibility that Plaintiff
will develop arthritis in the future. Because Dr. Gioffre stated
that he would give Plaintiff “all the benefit of the doubt” but
believes that “with this mini procedure that he [had]
[arthritis] will probably never happen,” (see Pl.’s Ex. 1 at
44), this court will further discount that number slightly.
6
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claim and that Defendants are jointly and severally liable to
Plaintiff.
IT IS FURTHER ORDERED that Plaintiff is entitled to recover
from Defendants $116,897.91 in compensatory damages for
Defendants’ negligence.
A judgment consistent with this Memorandum Opinion and
Order will be entered contemporaneously herewith.
This the 13th day of September, 2019.
_______________________________________
United States District Judge
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