Ream v. United States of America

Filing 73

FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING BENCH TRIAL: As a direct and proximate result of her injury, Plaintiff has incurred damages as follows: Past Loss of Wages: $ 86,965Future Loss of Wages: $ 333,800Past and Future Medical Expenses: $ 883,983.29Past Pain, Suffering, Disability: $ 100,000Future Pain, Suffering, Disability: $ 50,000Total Damages: 1,454,748.29Signed by Judge Richard A. Jones. (MW)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ANNA REAM,
Plaintiff,

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Case No. 17-1141-RAJ

v.
UNITED STATES OF AMERICA,

FINDINGS OF FACT AND
CONCLUSIONS OF LAW
FOLLOWING BENCH TRIAL

Defendant.

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I.

INTRODUCTION

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Plaintiff Anna Ream filed a complaint against Defendant United States of America

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(“the government”) pursuant to the Federal Tort Claims Act (“FTCA”). Dkt. # 1. The

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Court heard this matter in a bench trial that began on July 1, 2019 and concluded on July

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8, 2019. Following cross-motions for summary judgment, the only issues remaining for

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trial were causation and damages. See Dkt. # 37. The trial included the testimony of

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several lay and expert witnesses and the admission of various exhibits into evidence. The

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parties also submitted proposed findings of fact and conclusions of law. Dkt. ## 65, 66.

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This matter now comes before the Court following the presentation of evidence.

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The Court has considered the evidence, particularly including careful attention to the

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testimony of witnesses. The Court, in weighing the testimony of the witnesses, has

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considered: (1) the witnesses’ intelligence; (2) the witnesses’ memory; (3) the witnesses’

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abilities and opportunities to see, hear, or know the things that they testified about; (4) the

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ORDER – 1

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witnesses’ manner while testifying; (5) any interest, bias, or prejudice the witnesses may

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have; and (6) the reasonableness of the witnesses’ testimony when considered in light of

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all the evidence in the case. See Fed. Civ. Jury Instr. 9th Cir. § 1.14 (2017). The Court has

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further considered the written arguments submitted by counsel for the parties and the

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authority cited therein.

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Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following

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findings of fact and conclusions of law, which are based upon consideration of all the

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admissible evidence and this Court’s own assessment of the credibility of the trial

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witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered

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Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent,

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if any, that Conclusions of Law, as stated may be considered Findings of Fact, they shall

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be deemed Findings of Fact.
II. FINDINGS OF FACT

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A.

Accident on August 10, 2013

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1.

At approximately 7:55 a.m. on August 10, 2013, a three-vehicle military

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convoy left Joint Base Lewis-McChord (JBLM) for the Yakima Training

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Center. Dkt. # 34. The convoy consisted of two Heavy Expanded Mobility

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Tactical Trucks (HEMTTs) and one M1083 LMTV towing a generator. Id.

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Sergeant (SGT) Sean Reeves was the convoy’s Master Driver and the truck

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commander for the lead HEMTT. Id. Specialist (SPC) Sean Reeves drove

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the LMTV and Private Second Class (PV2) Ishayaa Muhammad served as

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the LMTV’s truck commander. Id. The convoy’s military orders placed

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SPC Reeves’ LMTV between the two HEMTTs. Id.

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2.

The convoy route traveled north on Interstate 5 to State Route (SR) 18 and

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then east on SR 18 to Interstate 90. Id. Traffic along the route was

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moderate which allowed the convoy to maintain a speed of approximately

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55 mph. Id. The weather was clear and the road surface was dry. Id. The

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ORDER – 2

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convoy traveled north on Interstate 5 and merged onto SR 18. This section

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of SR 18 consists of two lanes in each direction separated by a median. Id.

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3.

As the convoy crested a rise in the roadway, the passengers in the convoy’s

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lead vehicle saw a pickup truck towing a horse trailer stopped in the right

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travel lane approximately 100 meters ahead with a female standing in the

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roadway waving her arms at the oncoming vehicles. Dkt. # 64 at 62:22-

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63:1.

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The lead HEMTT came to a sudden stop about ten feet from the female and
the horse trailer. Id. at 63:2-4. Plaintiff, who was directly behind the lead

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HEMTT, slammed her vehicle’s brakes and came to a stop less than two

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feet from the back of the lead HEMTT. Id. at 63:4-6. SPC Reeves applied

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the brakes on the LMTV directly behind Plaintiff but he struck the right

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rear corner of her trailer.

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B.

Post-Accident Treatment

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5.

Plaintiff departed the scene in the tractor and drove to Multicare Auburn

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Medical Center in Auburn, Washington, where she complained of neck and

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low back pain. Trial Exhibit 56. She was asymptomatic with regard to her

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lumbar spine prior to the trauma before the collision. Dkt. # 62 at 87:15-

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18. X-rays of her lumbar spine showed no acute abnormality. Trial Exhibit

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56. She was given prescriptions for Flexeril and Tramadol and discharged.

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Id.

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She drove herself back to her home in Las Vegas and sought treatment

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August 15, 2013. She was assessed with lumbar strain, cervical strain,

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chest wall contusion, knee contusion and lumbar radiculopathy. Id. at p. 3.

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She was referred to physiatry and physical therapy given her lack of

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progress with pain management over nine days since the accident. Trial

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Exhibit 56 at pp. 5-6. X-rays of her cervical spine, left ribs, chest, and left

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knee showed no abnormalities. Id. at pp. 12-15. Plaintiff was then referred

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for an MRI of her lumbar spine. Id. at p. 11.

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Plaintiff had two MRIs of her lumbar spine, on September 1, 2013 and

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September 3, 2013. Trial Exhibits 218-219; 238-239. Findings on the MRI

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of September 3, 2013 provided: “Degenerative disk change at L5-S1.

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Central disk protrusion without any significant mass effect at that level.

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Borderline bilateral foraminal encroachment at L4-5 and L5-S1.” Trial

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Exhibit 239.

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Plaintiff was referred to Dr. Jason Garber in late September 2013. Trial

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Exhibit 73; Dkt. # 45 at 16:13-16. Dr. Garber ordered an electromyogram

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(EMG) study; plain film x-rays, and physical therapy. Id. at 29:19-21.

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10.

Plaintiff began physical therapy at Matt Smith Physical Therapy on October

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3, 2013. Trial Exhibit 224. Physical therapists noted their opinion of

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inconsistencies in Plaintiff’s complaints of pain. Trial Ex. 232.

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Plaintiff underwent the EMG study on October 17, 2013, which showed no

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evidence of lumbar radiculopathy or peripheral neuropathy. Dkt. # 61 at

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118:24-119:1. Plaintiff then underwent an x-ray of the lumbar spine on

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November 13, 2013, which showed no evidence of an osseous abnormality,

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but moderate to severe degeneration at L5-S1. Trial Exhibits 240; 246.

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Alain Coppel but reported no significant relief. Trial Exhibit 69.

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On December 16, 2013, Plaintiff had an epidural steroid injection by Dr.

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Plaintiff had a provocative lumbar discogram on May 12, 2014. Trial

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Exhibit 70. Dr. Coppel indicated his interpretation that the discogram

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showed concordant pain at L4-L5 and L5-S1, but no evidence of pain at

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L3-4. Trial Exhibit 59 at p. 25; Dkt. # 45 at 39:13-25.

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which showed evidence of fissures on at L3-4, 4-5, and 5-1. Id. In Dr.

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Plaintiff also underwent a post-discography CAT scan on May 12, 2014,

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Garber’s opinion, there was evidence of internally disruptive discs at L4-5

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and L5-SI, disc herniation, and pathology at those discs. Id. at 42:1-7.

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15.

Following Plaintiff’s discogram, Dr. Garber recommended a two-level

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transforaminal lumbar interbody fusion surgery at L4-L5 and L5-S1. Dkt. #

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61 at 51:4-9; Dkt. # 45 at 42:12-13. Plaintiff also saw Dr. Flangas who

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agreed with Garber’s recommendation. Trial Exhibit 48.

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16.

In September 2014, Plaintiff underwent the fusion surgery. Dkt. # 61 at

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51:3-4. After additional physical therapy and time spent on pain

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management, Plaintiff reported no relief. Dkt. # 62 at 95:5-9.

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Dr. Garber released Plaintiff to return to light-to-sedentary capacity work

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on February 24, 2015 with certain conditions: “No bending at the waist, no

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lifting greater than 10 to 15 pounds, and alternate sitting, standing and

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walking.” Dkt. # 45 at 49:15-18. However, Plaintiff has not returned to

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worked since being cleared and continued to report consistent pain. Dkt. #

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62 at 98:24-25.

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In early 2016, Plaintiff underwent a spinal cord stimulator trial to address

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her continued pain complaints. Id. at 96:10-11. She eventually came under

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the care of Dr. Jorg Rosler. Plaintiff experienced some pain relief using the

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spinal cord stimulator. Dkt. # 61 at 53:5-10. Rosler believed that Plaintiff

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might be a candidate for an implantable spinal cord stimulator. [Id.]

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In connection with Dr. Rosler’s recommendation for an implantable spinal

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cord stimulator, Plaintiff underwent a pre-surgical psychological

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assessment. Dkt. # 42 at 11:8-23-25. She was diagnosed with Somatoform

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Symptom Disorder, a clinical diagnosis from the Diagnostic and Statistical

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Manual, Fifth Edition, indicating her pain complaints were likely

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exaggerated and out of proportion to her symptoms. Id. at 20:8-21:3; Trial

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Exhibit 221. Plaintiff ultimately elected not to pursue that treatment,

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claiming that the stimulator was shocking her. Dkt. # 62 at 97:9-16.

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In 2018, Plaintiff visited Dr. Paul Schwaegler. Dkt. # 61 at 53:21-24; Trial

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Exhibit 63. Dr. Schwaegler was concerned that Plaintiff’s fusion surgery

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might not have consolidated. See Dkt. # 61 at 83:20-23. He also

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recommended possible revision surgery consisting of an anterior/posterior

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approach if it was determined that Plaintiff had pseudoarthrosis. See Dkt. #

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61 at 96:21-97-10.

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Dr. Virtaj Singh conducted a medical examination of Plaintiff on May 18,

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2018. Trial Exhibit 205; Dkt. # 63 at 48:4-8. While he agreed that the

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failed fusion required revision, he did not believe that the failed fusion was

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the source of her ongoing and unchanged pain complaints. Id. at 76:13-16.

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He further opined that Plaintiff’s subjective pain complaints were likely the

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result of central sensitization, and psychosocial factors including

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somatization disorder, a high disability conviction, deconditioning and

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opioid-induced hyperalgesia. Id. at 59:8-59:19; 67:12-15.

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He also concluded that Plaintiff was capable of work in the light-to-

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sedentary range would benefit from a pain management program to address

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her pain complaints. Id. at 110:9-16, 112:4-5.

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In 2019, Dr. William Smith reviewed Plaintiff’s CT scans and determined

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that she had pseudoarthrosis at both L4-5 and L5-S1, with broken hardware

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screws at L4 and L5, and adjacent segment disease with significant facet

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arthropathy secondary to screw impingement at the L3-4 region. Trial

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Exhibit 71. Dr. Smith thought Plaintiff was a surgical candidate. Id.

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procedure. Dkt. # 61 at 89:8-9. Dr. Schwagler, who will be performing the

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Plaintiff’s revision surgery is approximately $500,000 for the anterior

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surgery believes Plaintiff could potentially be cleared for work one year

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from the revision surgery. Id. at 133:21-24.

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III. CONCLUSIONS OF LAW

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A.

Liability

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1.

Plaintiff brought this case pursuant to the Federal Tort Claims Act
(“FTCA”). This court has jurisdiction pursuant to 28 U.S.C. § 1346(b)(1).

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U.S.C. § 1402 because the acts and omissions complained of occurred in

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this district.

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Venue is proper in the Western District of Washington pursuant to 28

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Pursuant to the FTCA, the United States shall be liable for tort claims “for

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injury . . . caused by the negligent or wrongful act or omission of any

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employee of the Government while acting within the scope of his office or

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employment, under circumstances where the United States, if a private

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person, would be liable to the claimant in accordance with the law of the

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place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).

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4.

Because Plaintiff’s injuries occurred in Washington State, the law to be

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applied in this case is the substantive law of Washington State. Liebsack v.

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United States, 731 F.3d 850, 855 (9th Cir. 2013).

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5.

Under Washington law, a party asserting a claim of negligence has the

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burden to prove, by a preponderance of the evidence, duty, breach,

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causation and damage. Tolliver v. United States, 957 F. Supp. 2d 1236,

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1244 (W.D. Wash. 2012) (citing Keller v. City of Spokane, 44 P.3d 845

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(Wash. 2002)).

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6.

By Order dated May 21, 2019, the Court granted Plaintiff’s cross-motion

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for summary judgment and determined that the United States was negligent

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as a matter of law. Dkt. ## 20, 24.

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B.

Causation

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Washington law requires Plaintiff to prove by a preponderance of the

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evidence that the United States’ negligence was the cause in fact and the

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legal cause of her claimed damages. Harris v. Groth, 99 Wash.2d 438, 451

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(1983).
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“Cause in fact” is “but for” causation, or the physical connection between

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an act and the resulting injury. Christen v. Lee, 113 Wash.2d 479, 507

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(1989). Legal causation rests on policy considerations as to how far the

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consequences of defendant’s acts should extend and involves a

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determination of “whether liability should attach as a matter of law given

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the existence of cause in fact.” Id. at 508.
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The Court finds that it was more likely than not that Plaintiff developed

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symptomatic annular tears and herniated discs from the accident requiring

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medical care. 1 Dkt. # 61 at 119:14-120:1. The Court credits lay testimony

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that Plaintiff was asymptomatic before the accident and experienced neck

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and back pain immediately following the accident and has continued to

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experience persistent back pain since that time. The September 2013 MRI

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identified an annular tear at L5-S1 and the May 2014 discography showed

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that there were annular tears that were symptomatic at both L4-5 and L5-

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S1. Id. at 119:13-120:1. Accordingly, the government’s negligence was

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the cause in fact and the legal cause of Plaintiff’s damages.

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C.

Injuries and Damages

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10.

Plaintiff is presently 50 years old and has limited educational capacity. She

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did not complete high school or obtain a GED. Plaintiff worked off-and-on

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in several low-skilled jobs before becoming a truck driver. Prior to this

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The Court discredits the government’s expert testimony that the forces sustained by
Plaintiff’s low back after being hit by a military vehicle were within the range or even below
the force generated during every day, normal activities. Dkt. # 64 at 105:22-25.

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accident, Plaintiff was physically able to do her work without any

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disability.

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1. Past Medical Expenses

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Under Washington law, Plaintiff may recover only the reasonable value of

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medical services received, not the total of all bills paid, and must prove that

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the medical costs were reasonable. Patterson v. Horton, 84 Wash. App.

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531, 543 (Div. 2, 1997). “[M]edical records and bills are relevant to prove

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past medical expenses only if supported by additional evidence that the

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treatment and the bills were both reasonable and necessary. Id. (citing

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Nelson v. Fairfield, 40 Wash.2d 496, 501 (1952); Carr v. Martin, 35

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Wash.2d 753, 761 (1950); Trudeau v. Snohomish Auto Freight Co., 1

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Wash.2d 574, 585-86 (1939)).

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The Court concludes from the preponderance of the evidence that the

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medical care provided to Plaintiff to date was reasonably necessary and

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causally related to the accident.

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13.

The government disputes whether the fusion surgery performed by Dr.

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Garber was reasonable and necessary. Based on the expert testimony of Dr.

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Schwagler, the Court finds that the evidence sufficiently demonstrates that

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the fusion surgery was reasonable and necessary to address low back pain

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causally linked to the accident. See also Dkt. # 63 at 86: 9-11, 88:16-19.

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Dr. Schwagler testified that, after conservative measures failed and the

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discography confirmed Plaintiff’s symptomatic discs, surgery to

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decompress the nerves and get Plaintiff out of pain was reasonable and

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necessary. Dkt. # 61:7-8, 147:8-9.

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14.

The government also contends that discograms are controversial tests

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subject to high false positive results and thus did not provide a reasonable

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foundation for Dr. Garber to proceed with fusion surgery. The Court

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acknowledges that lumbar discograms are somewhat controversial. Some

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orthopedists do not do discograms and do not find them to be sufficiently

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reliable. Others do discograms, but with varying criteria for when and

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under what circumstances the procedure should be done. Ultimately, the

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Court finds that the evidence sufficiently supported the use of discograms

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in 2014 as part of the overall clinical and diagnostic work-up prior to

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surgery.

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reasonable medical costs totaled $375,729.95. Dkt. # 49 at 68:1-4.

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Expert testimony from Jamie Gamez demonstrated that Plaintiff’s

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However, some of Plaintiff’s medical bills and costs were excluded or not

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offered into evidence, including bills and records relating to Plaintiff’s

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bariatric surgery in March 2019. Trial Exhibits 12, 25, 36, 46, 47, and 64.

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Thus, the Court finds a total of $362,983.29 in past reasonable medical

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costs.

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2. Future Medical Services

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Future consequences, diseases, or conditions, possibly resulting from

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existing injuries, are a compensable item of damages under Washington

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law. See RCW § 4.56.260. Mathematical exactness is not required because

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the need for future medical treatment raises a presumption that the plaintiff

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will incur related costs.

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The preponderance of the evidence further supports a finding that the

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reasonable value of future medical care will be $521,000. Expert

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testimony sufficiently demonstrates that Plaintiff will require revision

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surgery to correct the fusion surgery ($500,000) and future pain

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management services ($21,000).

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3. Lost Wages

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employment opportunities.” RCW § 4.56.250(1)(a).

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Economic damages also include “loss of earnings” and “loss of business or

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The Court heard diverging testimony on Plaintiff’s economic damages

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based primarily on different assumptions regarding Plaintiff’s employment

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potential, both before and after the accident.

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The Court credits the evidence demonstrating that Plaintiff’s pre-injury

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earning capacity was consistent with the average earnings of a Nevada

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truck driver with a commercial driver’s license, or approximately $43,000
per year. Dkt. # 62 at 26:15-23.

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The Court finds that Plaintiff was unable to work from the time of the

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accident through June 2015 following Dr. Garber’s release to return to

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work. Dkt. # 63 at 16: 9-17. Accordingly, the Court awards Plaintiff

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$86,965, in past wages.

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Expert testimony further supports the conclusion that Plaintiff has

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“considerable dynamic loss” to her lumbar spine and functional limitations

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that will prevent her from doing long-haul trucking again. Even with a

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successful spinal surgery, her anterior lumbar would still result in limited

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dynamic functionality that will deteriorate over time. Dkt. # 61 at 159:14-

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23, 161:1-164:20, 177:5-11.

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Dr. Christina Tapia, a member of both the American Economic Association

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and the American Academy of Economic and Financial Experts, testified

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that the present value of Plaintiff’s future earnings as a truck driver amount

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to $568,362 to $792,881. Dkt. # 62 at 175:20-176:3. The totals are based

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on both the average work-life expectancy and the 75th percentile work-life

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expectancy for a woman with between zero and 12 years of education but

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less than a GED and high school diploma. Id. at 163:15-164:6.

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However, the Court credits testimony from both Dr. Schwagler and Dr.

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Singh that Plaintiff should be able to return to work following the revision

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surgery as well as expert testimony demonstrating that Plaintiff should be

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able to obtain low-skilled, sedentary to light work within three months

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thereafter, earning approximately $17,160 annually. Dkt. # 64 at 12:1-15:8;

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Trial Exhibit 290.

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Considering the reports of the economists, the Court determines that the

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sum of $333,800 will fairly compensate Plaintiff for loss of future earning

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capacity. See also Dkt. # 62 at 163:15-164:6, 175:20-176:3.
4. Noneconomic Damages

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There are no “fixed standards by which to measure noneconomic damages.”

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WPI 30.01.01. Noneconomic damages means subjective, nonmonetary

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losses, including, but not limited to pain, suffering, inconvenience, mental

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anguish, disability or disfigurement incurred by the injured party, emotional

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distress, loss of society and companionship, loss of consortium, injury to

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reputation and humiliation. RCW § 4.56.250(1)(b).

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29.

The Court finds that Plaintiff has experienced nonmonetary losses including,

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but not limited to, pain and suffering. Although there was some evidence of

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symptom magnification and exaggeration, the Court heard compelling

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testimony that following the accident Plaintiff needed assistance tying her

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shoes, putting on her clothes, bathing and going to the bathroom. Dkt. # 61

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at 35:16-25. She also reported episodes where she lost control of her bowels.

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Id at 65:24-25. The Court awards damages for past pain, suffering and

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disability in the amount of $100,000.

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30.

The Court also heard testimony that Plaintiff will still experience pain

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following the revision surgery and will be unable to return to her previous

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occupation and way of life. She will continue to have functional limitations

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ORDER – 12

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that prevent her returning to her former employment as a truck driver or any

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type of manual labor. These limitations, which include no bending at the

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waist or lifting greater than 10 to 15 pounds, will impact her daily life. In

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addition, she has an increased risk of back injury following the revision

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surgery. The Court awards damages for future pain, suffering and disability

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in the amount of $50,000.
IV. CONCLUSION

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As a direct and proximate result of her injury, Plaintiff has incurred damages
as follows:

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Past Loss of Wages: $ 86,965

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Future Loss of Wages: $ 333,800

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Past and Future Medical Expenses: $ 883,983.29

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Past Pain, Suffering, Disability: $ 100,000.

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Future Pain, Suffering, Disability: $ 50,000

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Total Damages: 1,454,748.29

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The clerk shall enter judgment for Plaintiff.

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DATED this 19th day of March, 2020.

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A

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The Honorable Richard A. Jones
United States District Judge

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ORDER – 13