Lo v. United States of America et al

Filing 174

FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Court AWARDS Mr. Lo total overall damages of $204,296.20. The Court AWARDS Mr. Lo judgment against the Government, which shall be entered separately. Signed by Judge Tana Lin. (LH)

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 1 of 52

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CASE NO. 2:17-cv-01202-TL

KA WAI JIMMY LO,
v.

Plaintiff(s),

FINDINGS OF FACT &
CONCLUSIONS OF LAW

UNITED STATES OF AMERICA,

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Defendant(s).

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This matter was tried before the Court without a jury from May 9 to May 16, 2022.

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Having heard all the testimony at trial, reviewed the admitted trial exhibits, and reviewed the

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Parties’ briefing, the Court makes the following findings of fact and conclusions of law by a

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preponderance of the evidence, pursuant to Federal Rule of Civil Procedure 52. The findings and

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conclusions below are based upon the Court’s consideration of all the admissible evidence and

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the Court’s own assessment of the credibility of the trial witnesses. Any conclusion of law

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denominated as a finding of fact shall be deemed a conclusion of law, and any finding of fact

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denominated as a conclusion of law shall be deemed a finding of fact.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 1

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 2 of 52

I.

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1.

BACKGROUND

This matter arises out of a motor vehicle collision that occurred in Renton,

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Washington on November 23, 2012 (the “2012 MVA”), involving Plaintiff Ka Wai Jimmy Lo

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and a United States Postal Service (“USPS”) postal truck driven by a USPS employee within the

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scope of his employment.

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2.

Mr. Lo brings this action against the United States of America (the

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“Government”) under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and

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2679(b)(1).

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3.

Mr. Lo first filed a claim under the FTCA with USPS on November 14, 2014,

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seeking up to $300,000 in recovery. Dkt. No. 59-7 at 2 (FTCA claim form). Following the denial

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of his claim, Mr. Lo filed suit against the Government on August 9, 2017. Dkt. No. 1

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(complaint).

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4.

The Government does not contest liability. Dkt. No. 141 at 3.

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5.

At trial, the Court was tasked with determining the appropriate amount of

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damages that Mr. Lo sustained as a proximate cause of the Government’s negligence in the 2012

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MVA and whether he failed to mitigate any such damages. Mr. Lo seeks damages for lost wages,

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lost earning capacity, cost of retraining, future medical expenses and related costs, and

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noneconomic damages. Plaintiff does not seek to recover for property damage and is barred from

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seeking past medical expenses. See Dkt. No. 141 at 3; Dkt. No. 92 at 6 (granting partial summary

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judgment to the Government on past medical claims).
II.

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A.

FINDINGS OF FACT

The Parties

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6.

Plaintiff Ka Wai Jimmy Lo is a resident of Seattle, Washington.

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7.

The United States of America is the sole Defendant in this matter.

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 2

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 3 of 52

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8.

The USPS employee who struck Mr. Lo’s car was acting as an agent of the

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Government within the scope of his employment at the time of the 2012 MVA.

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B.

Before the 2012 Motor Vehicle Accident

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9.

Mr. Lo was born in Hong Kong in 1977. He moved to the United States in 1992.

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10.

In 2006, Mr. Lo was involved in a minor motor vehicle collision in which another

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vehicle bumped his vehicle while he was stopped.

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11.

Mr. Lo did not suffer any significant injuries from the collision but presented to

the emergency room at the recommendation of emergency personnel at the scene.

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12.

Mr. Lo complained of neck pain following the accident. A cervical X-ray showed

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no new fractures 1 but showed signs of degenerative changes. A CT scan of the abdomen and

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pelvis showed slight stenosis at the L3-4 level in Mr. Lo’s lumbar spine.

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13.

Degeneration is synonymous with arthritis. Degenerative changes in a spine take

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years to develop and can be simply caused by aging. However, trauma can also cause arthritis or

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degeneration.

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14.

Stenosis is the narrowing of the spinal canal. It can be a congenital or

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degenerative condition. As the Government’s expert Dr. Edward Dagher credibly opined, while

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stenosis can also be caused by trauma, such a case would be expected to be accompanied by

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significant bone injury, such as a fracture or a dislocation.

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15.

Prior to the 2012 MVA, Mr. Lo did not have any notable health issues, including

any neck or back pain. Mr. Lo also did not have any notable mental health issues.

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The X-ray did show calcification that suggested an old fracture, but it did not show any new fractures.

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 3

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 4 of 52

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C.

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16.

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18.

At the time of the collision, Mr. Lo was operating a 2011 Toyota Yaris and

traveling straight and southbound on 87th Avenue S.

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The collision occurred at the intersection of 87th Avenue S. and S. 123rd Street in

Renton, Washington.

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On November 23, 2012, at approximately 2:00 p.m., Mr. Lo was involved in a

motor vehicle collision with a USPS employee.

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The 2012 Motor Vehicle Accident 2 and Immediate Treatment

19.

The USPS employee, who was operating a USPS vehicle, had been traveling in

the same direction on 87th Avenue S. The USPS employee pulled to the right of the road by the

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entrance to S. 123rd Street and was attempting a U-turn to travel north when the collision

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occurred.

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20.

The USPS vehicle collided with the front right corner of Mr. Lo’s vehicle.

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Mr. Lo’s vehicle spun, and there was a secondary impact with the left front side of Mr. Lo’s

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vehicle.

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21.

Mr. Lo was traveling approximately 25 miles per hour at the time of impact.

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22.

Immediately after the accident, Mr. Lo called Tiffany Chim, his long-term

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girlfriend, to tell her about the accident.

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23.

UW Valley Medical Center for further treatment.

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Mr. Lo was transported from the scene by ambulance to the emergency room at

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Mr. Lo complained of abdominal pain and right-sided chest pain on the way to the

hospital and at the emergency room. He also complained of pain in his right ankle.

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Paragraphs 16–21 and 23 are stipulated to by the Parties. See Dkt. No. 141 at 3.

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 4

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25.

Providers at the emergency room performed a physical examination of Mr. Lo, an

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X-ray of Mr. Lo’s cervical spine and right ankle, a CT scan of Mr. Lo’s chest abdomen and

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pelvis, and various lab tests.

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26.

There was no evidence of acute injury, such as a fracture, or other trauma from

the X-ray and CT scan. The CT scan showed degenerative changes in the lumbar spine.

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27.

Mr. Lo was diagnosed with a chest muscle strain, an ankle strain, and abdominal

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pain and discharged with pain medication and instructions to follow up with a primary care

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provider.

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D.

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Physical Health from November 2012 to November 2014
28.

Following the 2012 MVA, Mr. Lo consistently experienced the following

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categories of pain: (1) neck pain (i.e., in his cervical spine); (2) pain in his right upper extremities

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as well as numbness and tingling in his right arm and hand; (3) back pain, particularly in his

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lower back (i.e., in his lumbar spine); (4) hip pain; and (5) right leg pain.

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29.

Mr. Lo’s pain was intense enough that he could not walk, sit, lie down, or

otherwise maintain any position for a significant period of time.
30.

Mr. Lo’s treatment providers reported varied levels of range of motion in his

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cervical and lumbar spine in the ensuing months, with at least two noting limited range of motion

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(on November 26, 2012 and on February 1, 2013) while another noted normal range of motion in

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his cervical spine (on January 17, 2013).

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31.

On January 29, 2013, an MRI of Mr. Lo’s lumbar spine showed degenerative

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changes but no evidence of acute trauma or injury. Specifically, the MRI showed disk

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desiccation and a small disk bulge to the left at L3-4 and L4-5, central canal stenosis, bilateral

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mild compression on the L4 nerve root, and bilateral osteoarthritis. Desiccated (dehydrated)

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disks occur over a period of years.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 5

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 6 of 52

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32.

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back pain.

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33.

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Mr. Lo was advised by his providers that surgery was not indicated for his low

Mr. Lo initially attempted to manage his pain with over-the-counter pain

medication and other painkillers.
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As his pain persisted, Mr. Lo was prescribed painkillers and muscle relaxants.

Mr. Lo found limited relief from the medication.

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35.

Mr. Lo was referred to chiropractic care, massage therapy, and physical therapy.

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36.

Starting soon after the 2012 MVA, Mr. Lo attended regular chiropractic sessions

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at Columbia City Chiropractic.

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37.

Mr. Lo also attended regular massage therapy sessions at Massage Envy Spa.

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38.

Starting in early 2013, Mr. Lo attended physical therapy sessions at Outpatient

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Physical Therapy & Rehabilitation Services.
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The chiropractic care, massage therapy, and physical therapy sessions only

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provided Mr. Lo with temporary or mild relief. Indeed, physical therapy made Mr. Lo’s pain

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worse, and he stopped physical therapy treatment as a result.

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40.

As indicated by the above findings, the records, and Mr. Lo’s testimony, Mr. Lo’s

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pain was generally at a moderate level prior to November 2014. This is also supported by

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Mr. Lo’s ability to withstand regular chiropractic care during this period, which—as the

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Government’s experts Dr. Patrick Bays and Dr. Dagher credibly testified—Mr. Lo could not

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have tolerated if he suffered from injuries that were more severe than muscle strains (such as a

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fracture or dislocation) at the time.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 6

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 7 of 52

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E.

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Escalation of Pain in November 2014
41.

On or around November 25, 2014, Mr. Lo experienced an extreme spike in his

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back pain, which radiated down to his leg. The pain was so severe that Mr. Lo was not able to

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speak or walk.

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42.

Mr. Lo presented to the emergency room at Valley Diagnostic the same day. He

was provided with painkillers and sent home.

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43.

Three days later, on November 28, Mr. Lo presented to the emergency room at

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Overlake Medical Center. The treating physician noted that Mr. Lo’s symptoms were consistent

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with radiculopathy, but also that the pain could have been a result of a poor pain management

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regimen. Radiculopathy is a malfunctioning of a spinal nerve root that can cause symptoms such

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as numbness, weakness, tingling, or pain in the area affected by the specific nerve root.

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44.

Mr. Lo was prescribed with painkillers, which again did not significantly relieve

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his pain. Overlake discharged Mr. Lo with instructions to follow up with Dr. Alan Brown, M.D.,

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an orthopedic surgeon at Bellevue Bone and Joint Physicians, for further evaluation.

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45.

MRI scans of Mr. Lo’s lumbar spine taken in November 2014, 3 January 2015, and

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November 2015 consistently showed degenerative changes in Mr. Lo’s lumbar spine, including a

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left-sided disk bulge at L3-4 and stenosis at L3-4.

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46.

each other and the prior imaging of Mr. Lo’s lumbar spine.

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The degenerative changes in these MRI studies were generally consistent with

47.

Mr. Lo also continued to experience neck pain. Cervical MRI scans of Mr. Lo’s

cervical spine taken in November 2014, January 2015, November 2015, and December 2016 also

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The Government appears to have submitted the incorrect image for Exhibit D-16, which does not contain the
November 2014 MRI of Mr. Lo’s lumbar spine as labeled. However, the Court is able to rely on the remaining
medical records and expert testimony to make findings regarding Mr. Lo’s lumbar spine from the MRI.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 7

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 8 of 52

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showed degenerative changes to the cervical spine, including disk bulges, disk desiccation, and

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slight spinal canal stenosis.

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48.

In December 2014, Mr. Lo received an epidural steroid injection in his lumbar

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spine, at the L3-4 disk. Mr. Lo received significant but temporary relief in his back and right leg

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pain, but it returned to baseline within a few weeks.

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49.

Mr. Lo was then re-referred to physical therapy and massage therapy. Mr. Lo

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attended five physical therapy sessions at Outpatient Physical Therapy & Rehabilitation

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Services.

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50.

The precise cause of Mr. Lo’s new pain was difficult to determine.

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51.

In January 2015, Dr. Brown found that Mr. Lo exhibited “bizarre pain behavior,”

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including dry heaving and “writhing on the table,” which Dr. Brown found difficult to explain

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and “completely out of proportion” to any objective findings.

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52.

The same month, Mr. Lo’s lab work showed that he had high markers of

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inflammatory conditions that could be causing pain (including C-reactive protein, or “CRP,” and

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the erythrocyte sedimentation rate, or “ESR”), and he was referred to an emergency room. The

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emergency room lab work did not show any reason for concern. However, at least one other

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treating physician also expressed concerns that Mr. Lo was potentially suffering from

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inflammatory arthritis.

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53.

Mr. Lo’s primary care provider, Dr. Ginger Allen, M.D., at Valley Medical

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Center, examined Mr. Lo multiple times but was also unable to find a cause for his various pains.

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She found that Mr. Lo’s reported pain did not match the various imaging and lab results she

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studied. Dr. Allen posited that Mr. Lo’s pain was in part caused by his anxiety and general

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chronic pain, and she encouraged Mr. Lo to seek pain management and psychological treatment.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 8

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 9 of 52

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54.

Dr. Allen also prescribed Mr. Lo with pain medication, which provided moderate

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relief for Mr. Lo’s pain. Dr. Allen encouraged Mr. Lo to engage in exercise to build up his

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muscles, which he attempted to do with limited success.

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55.

In February 2016, Dr. Ray Baker, M.D., of Evergreen Surgical Center, performed

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a second epidural steroid injection in Mr. Lo’s lumbar spine. The injection provided significant

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but temporary relief.

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56.

Mr. Lo also received cervical epidural steroid injections from Dr. David Hou,

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M.D., of Multicare Orthopedics and Sports Medicine, with the last one appearing to have

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occurred in September 2018. See, e.g., P-36 at 521, 583 (September 12, 2018 records).

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57.

Mr. Lo experienced significant but temporary relief of his lower back, right leg,

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and neck pain from these injections.

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F.

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Right Upper Extremities
58.

Dr. Allen, Mr. Lo’s primary care physician, struggled to find an explanation for

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Mr. Lo’s right upper extremities pain, including numbness and tingling, which had continued

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since the 2012 MVA.

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59.

In particular, Dr. Allen found no significant findings to support cervical

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radiculopathy, as Mr. Lo’s right-arm numbness did not fit a neurological distribution: Mr. Lo

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reported numbness in his entire hand, which was inconsistent with a nerve root malfunction.

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Mr. Lo’s neurological examination results were also normal.

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60.

Other treatment providers also explored the possibility of a brachial plexopathy in

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connection to his right upper extremities pain. The brachial plexus is a conglomeration of nerve

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roots outside the spine, located above the collarbone and running down into the armpit. A

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brachial plexopathy is damage to the brachial plexus, and it can result in malfunction in the

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corresponding limb involving multiple muscles and muscle groups.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 9

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 10 of 52

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61.

Dr. Daniel Fosmire, M.D., of Overlake Medical Center performed a nerve

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conduction study, MRI, and EMG of the brachial plexus to understand if Mr. Lo suffered from a

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brachial plexopathy. These three procedures are used to determine a diagnosis of brachial

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plexopathy.

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62.

Mr. Lo’s nerve conduction study and MRI did not show evidence of a brachial

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plexopathy. The nerve conduction study showed a normal result for sensory loss, which was

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inconsistent with Mr. Lo’s subjective complaints of numbness and tingling. The MRI also

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showed a normal result, with no mass, nothing compressing on the brachial plexus, and the

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surrounding muscles presenting as normal.

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63.

Mr. Lo’s EMG showed reinnervation, indicating nerve damage that could be

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consistent with an injury to the brachial plexus or a condition called complex regional pain

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syndrome (“CRPS”). 4 However, as Dr. Dagher credibly testified, this EMG result was not

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sufficient to conclude that Mr. Lo suffered from brachial plexopathy, given the normal results of

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Mr. Lo’s MRI and nerve conduction study.

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64.

Dr. Fosmire recommended that Mr. Lo undergo a stellate ganglion block. A

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stellate ganglion block is a procedure that involves the numbing of a chain of nerves alongside

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the front of the spine (i.e., the stellate ganglion), which can provide temporary relief. A stellate

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ganglion block is also diagnostic and can assist in making diagnoses.

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65.

ganglion blocks on Mr. Lo to diagnose and treat the suspected CRPS in Mr. Lo’s arm.

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From December 2015 to March 2016, Dr. Baker performed three right stellate

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Mr. Lo experienced significant but temporary relief in his right arm pain from the

stellate ganglion blocks.

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No medical expert provided an explanation of CRPS at trial. The Court previously excluded the opinions of
Plaintiff’s expert, Dr. Wright, on CRPS. See Dkt. No. 91.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 10

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67.

In May 2016, based on the lack of long-term progress in improving Mr. Lo’s right

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upper extremities pain, Dr. Baker and Dr. Fosmire decided to discontinue stellate ganglion

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blocks. Dr. Fosmire discharged Mr. Lo from his care and recommended that Mr. Lo continue to

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see his primary care physician and other treatment providers as needed. Dr. Fosmire did not

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diagnose Mr. Lo with brachial plexopathy, CRPS, or cervical radiculopathy at the time of

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discharge.

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G.

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2016 Lumbar Laminectomy
68.

Mr. Lo began to see Dr. Benjamin Chen, M.D., of Multicare Orthopedics and

Sports Medicine, to treat his low back, hip, and right leg pain.
69.

In August 2016, Dr. Chen reviewed another MRI of Mr. Lo’s lumbar spine and

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believed that Mr. Lo had a disk herniation and moderate stenosis in his lumbar spine that was

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putting pressure on the L4 nerve root in particular, along with other mild degenerative changes in

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the cervical and lumbar spines. Dr. Chen believed that Mr. Lo’s right leg pain was consistent

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with the compressed spinal nerve root at L4.

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70.

Dr. Chen recommended that Mr. Lo undergo surgery on his lumbar spine, in

particular to treat the L3-4 disk.
71.

Dr. Chen explained the nature and risks of the surgery to Mr. Lo, including the

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possible complications (including a very low chance of permanent paralysis or death) and the

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possibility of unsuccessful results from the surgery. A lumbar laminectomy is a common and

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routine surgical procedure with very low risk of permanent paralysis or death.

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72.

Mr. Lo understood Dr. Chen’s explanation, including that the risks of death or

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paralysis were slim, and decided to proceed with the surgery. Mr. Lo experienced significant fear

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and anxiety leading up to the surgery.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 11

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73.

On August 29, 2016, Dr. Chen performed a lumbar laminectomy on Mr. Lo. 5

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During the surgery, Dr. Chen found and corrected Mr. Lo’s stenosis, particularly at the L3-4

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level. Dr. Chen did not find a disk herniation, and he found that Mr. Lo’s disk bulge was not

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significant enough to warrant a diskectomy (the removal of a part of a disk).

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74.

several weeks, but he was eventually able to navigate down the stairs after about a month. 6

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Following the surgery, Mr. Lo used crutches and was largely bedridden for

75.

The lumbar laminectomy was successful at treating Mr. Lo’s right leg pain almost

immediately and completely.

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76.

At approximately six weeks after the lumbar laminectomy, Mr. Lo reported

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continued resolution of his right leg pain and significant relief of his lower back pain. Mr. Lo

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was no longer on pain medication and was able to walk. He was released from physical

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restrictions and directed to attend physical therapy sessions.

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77.

Mr. Lo’s right leg pain and the extreme levels of his lower back pain have not

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returned since the lumbar laminectomy.

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H.

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Subsequent Events & Medical Treatment
78.

On or around May 23, 2017, Mr. Lo was involved in a hit-and-run motor vehicle

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collision (the “2017 MVA”) in which Mr. Lo’s vehicle was T-boned on the driver’s side.

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Mr. Lo’s vehicle was totaled as a result.

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During trial, the Court struck any of Dr. Dagher’s testimony that relied on Dr. Chen’s operative report. The Court
therefore does not rely on Dr. Dagher’s testimony related to the process and findings from the lumbar laminectomy.

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The Government objects to much of the evidence regarding Mr. Lo’s recovery from the lumbar laminectomy. Dkt.
No. 170 at 1. But, as Mr. Lo points out, details of the lumbar laminectomy and the recovery process have been
available in the medical records disclosed through discovery, and the Government had a chance to depose Mr. Lo
and other treatment providers or experts on the topic but chose not to do so. In any case, as the Court ultimately
concludes that the lumbar laminectomy does not arise out of the 2012 MVA and awards no damages arising out of
the lumbar laminectomy, the Government suffers no prejudice from the Court’s consideration of such evidence.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 12

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 13 of 52

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79.

Mr. Lo experienced some amount of increased pain in his neck and lower back

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following the 2017 MVA. Mr. Lo attended at least 10 chiropractic sessions at Clark Chiropractic

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Clinic. Mr. Lo made a full recovery (that is, he returned to his baseline pain levels before the

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2017 MVA) following the chiropractic sessions.

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80.

On or around January 15, 2020, Mr. Lo was involved in a minor motor vehicle

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collision in which a vehicle in the next lane bumped into his vehicle while Mr. Lo was driving

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straight. No one was injured, though Mr. Lo’s vehicle required some repair. The incident was so

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minor that Ms. Chim could not recall it during her testimony.

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81.

which Mr. Lo’s hip pain substantially decreased.

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In July 2020, Mr. Lo underwent hip surgery for a congenital deformity, after

82.

As he credibly testified at trial, Mr. Lo continues to experience some pain in his

low back, neck, and right upper extremities. Mr. Lo also experiences slight pain in his right leg.

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83.

Mr. Lo continues to be under the care of Dr. Hou for pain management.

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84.

In July 2019, September 2019, and March 2020, Dr. Hou performed medial

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branch blocks on Mr. Lo’s cervical spine at C2-3, C3-4, and C4-5. Medial branch blocks are

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injections of an anesthetic into a joint to temporarily numb the nerve (the “medial branch”) and

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eliminate the pain at that joint. Mr. Lo experienced temporary relief in his neck and right

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shoulder from the medial branch blocks.

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85.

Dr. Hou also periodically administers cervical radiofrequency ablations 7 on

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Mr. Lo for his neck and right upper extremities pain. The ablations involve placing a very hot

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needle on each cervical joint identified during the medial branch blocks to disrupt the nerves.

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The records indicate that the last ablation occurred in 2020, though Mr. Lo testified that he had

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Mr. Lo referred to these as “nerve burning” during testimony.

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 13

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undergone another ablation two or three weeks prior to trial. Mr. Lo experiences longer-term

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relief from the ablations than the medial branch blocks, with improved mobility in his right upper

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extremities in particular.

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I.

5

Mental Health Symptoms & Treatments
86.

Following the 2012 MVA, Mr. Lo suffered from a number of negative mental

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health and related symptoms, including anxiety, depression, suicidal thoughts, self-harm

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(including suicide attempts), paranoia, insomnia and other sleep disturbances, panic attacks, and

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sexual dysfunction.

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87.

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Mr. Lo’s self-harm also included stabbing himself with scissors, biting himself,

and consuming excessive amounts of alcohol.
88.

Mr. Lo began to avoid his friends because he felt that he had to hide his anxiety

and depression from his friends in their presence.
89.

Based on these symptoms and conditions, Mr. Lo’s treatment providers diagnosed

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him, at various times, with Major Depressive Disorder (“MDD”) and post-traumatic stress

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disorder (“PTSD”).

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90.

Starting as early as March 2013, Mr. Lo presented these mental health symptoms

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to various providers and was referred to psychological services, including therapy and

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medication as needed. In July 2014, Mr. Lo requested a referral to mental health services for his

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depression.

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91.

Dr. Allen repeatedly encouraged Mr. Lo to seek counseling services for his pain

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management. Dee Dee Vasquez, ARNP, a psychiatric nurse practitioner at NAVOS, also

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encouraged Mr. Lo to engage in therapy.

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92.

Mr. Lo attended therapy sessions, but his attendance was not regular.

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FINDINGS OF FACT &
CONCLUSIONS OF LAW - 14

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 15 of 52

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93.

From late 2014 to early 2015, Mr. Lo attended several therapy sessions at Valley

Cities Behavioral Health Care.
94.

From late 2015 to 2019, Mr. Lo also sought periodic but inconsistent therapy

counseling at NAVOS.

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95.

Mr. Lo has not attended a counseling session since 2019.

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96.

Mr. Lo had a strong negative reaction to therapy.

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97.

Mr. Lo testified that mental health issues are not generally understood in Hong

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Kong culture and that those with mental health challenges are simply considered “crazy.” He

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testified that he himself had not understood mental health issues until he experienced them.

10

Indeed, at a mental health assessment session at Valley Cities, Mr. Lo flagged that he is an Asian

11

American immigrant who is not used to speaking about anxiety, depression, and other issues due

12

to his culture. One counselor noted that Mr. Lo’s articulation was difficult to understand due to

13

his accent.

14

98.

Mr. Lo felt that therapy exacerbated his depression by reminding him of the 2012

15

MVA and its aftermath. He felt that the therapists were telling him to give up and accept that he

16

had permanently changed after the 2012 MVA, which he found difficult to accept given his

17

dedication to making a full recovery and returning to providing for his family.

18

99.

Mr. Lo saw at least two or three different counselors.

19

100.

Mr. Lo also received periodic mental health treatment through various

20
21

medication, which provided Mr. Lo with moderate relief.
101.

Mr. Lo had other stressors in his life following the 2012 MVA that contributed to

22

his mental health issues, including an ongoing custody, childcare, and child support dispute with

23

his ex-wife, his family’s absence during family trips, and this litigation.

24
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 15

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1

J.

2

Employment History
102.

Prior to the 2012 MVA, Mr. Lo worked in a wide range of jobs, including bus

3

driver, retail salesperson, barista, short-order cook, freight handler, insurance agent, and real

4

estate agent. He has also held a real estate agent license and an insurance agent license, both of

5

which are now expired.

6

103.

In or around 1999, Mr. Lo began to “flip” or develop real property by purchasing

7

real property, renovating it (or building a new house on the land), and then usually selling the

8

property. Mr. Lo worked on several properties, including building the house that he and his

9

family currently live in. Mr. Lo performed much of the construction or renovation work himself.

10

104.

From approximately 2005 to 2008, Mr. Lo worked on developing two properties. 8

11

One resulted in a profit ($18,910), while the other, which suffered damage from a fire from its

12

resident renters, resulted in foreclosure in or around 2009 because Mr. Lo struggled to rent or sell

13

the property in a then-bad housing market.

14
15

105.

Mr. Lo also owned or operated a dessert store for approximately a year in 2007

and 2008 and an aquarium store for approximately two years, selling the store in 2011.

16

106.

From 2008 to 2012, Mr. Lo reported, at most, approximately $2,000 a year in

17

income (excluding capital gains). More specifically, according to his tax records, Mr. Lo’s

18

adjusted gross income between 2006 to 2012 was as follows: $52,924 in 2006, $70,982 in 2007,

19

no income in 2010, 9 $20,874 in 2011 (of which approximately $19,000 was capital gains from

20

the sale of real property), and $2,074 in 2012.

21
22
23
24

More specifically, Mr. Lo’s second property comprised of two separate lots, one of which was a vacant lot that was
sold and the other contained the building that Mr. Lo eventually foreclosed on.

8

The Parties stipulated to Mr. Lo’s tax records for, among other years, 2008 and 2009 (see Dkt. No. 141 at 9
(pretrial order showing that P-13 was stipulated to)), but Mr. Lo’s exhibit reflecting these records was not ultimately
admitted at trial (see Dkt. No. 151 (showing no P-13)). While the Government’s exhibit of Mr. Lo’s tax records was
admitted, this version does not appear to contain records for 2008 or 2009. See D-167.
9

FINDINGS OF FACT &
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1

107.

Mr. Lo’s earnings from 2011 and 2012, the two years leading up to the 2012

2

MVA, were largely from self-employment in various construction “side projects,” earning a

3

couple hundred dollars per project. Mr. Lo did not work on “flipping” or developing property

4

during this time. This was in part due to Mr. Lo’s decision to stay home and take care of his two

5

young children.

6

108.

Following the 2012 MVA, Mr. Lo did not find significant employment until 2017,

7

when he began to work in kitchen cabinet sales. In 2017, Mr. Lo also attempted to restart a

8

construction business, but he did not work on any projects or generate any income from the

9

business.

10
11

109.

According to his tax returns, Mr. Lo earned $1,935 in 2013, $828 in 2014, $2,548

in 2015, $1,800 in 2016, $7,730 in 2017, $4,763 in 2018, and $9,953 in 2019.

12

110.

After working in cabinet sales for a few months, Mr. Lo worked part-time as an

13

office manager in the small real estate office of Ms. Kimberly Tso, a mentor and friend, from

14

approximately June 2018 to February 2020, when Mr. Lo was laid off due to the COVID-19

15

pandemic.

16

111.

Mr. Lo received unemployment benefits from early 2020 to early 2021, collecting

17

approximately $25,000 a year. To do so, he attested to his physical ability to work, as

18

unemployment benefits are not available to those who are disabled and unable to work.

19

112.

From early 2021 to the beginning of 2022, Mr. Lo worked once a week as a

20

bartender, at a restaurant owned by Ms. Chim’s parents.

21

K.

Mr. Lo’s Quality of Life

22

113.

Prior to the 2012 MVA, Mr. Lo had an active lifestyle.

23

114.

In addition to his work in construction and various stores, which required physical

24

labor, Mr. Lo enjoyed such hobbies as running, swimming, hiking, and fishing.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 17

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 18 of 52

1

115.

Mr. Lo enjoyed driving and frequently took weekend road trips with his family.

2

116.

Mr. Lo enjoyed taking care of aquariums of fish.

3

117.

Mr. Lo enjoyed cooking and cooked for his family nearly on a daily basis.

4

118.

Mr. Lo regularly saw friends, going out to see them every week or inviting them

5

to his house for dinner or drinks.

6

119.

Mr. Lo was not able to continue leading his active lifestyle after the 2012 MVA.

7

120.

Following the 2012 MVA, Mr. Lo could not sleep, walk for an extended period,

8
9
10
11
12
13
14

or maintain a sitting or lying position for a long time.
121.

Mr. Lo also felt more fatigued, depressed, and anxious. He felt withdrawn from

activities he used to find enjoyable, such as fishing or social engagements.
122.

Mr. Lo lost significant weight, losing around 40 pounds of weight in the two years

or so following the 2012 MVA.
123.

Mr. Lo could not fully return to fishing, one of his main hobbies, due to his right

upper extremities pain and loss of sensitivity.

15

124.

He could no longer cook regularly due to his pain.

16

125.

Mr. Lo was not able to drive for several years. He became scared of driving and

17

became particularly agitated when he saw lights from an ambulance, police, or fire truck. He also

18

could not drive because he could not sit for an extended period.

19
20

126.

Mr. Lo and Ms. Chim have a son and daughter, aged 14 and 13 respectively at the

time of trial. The four of them live together.

21

127.

Mr. Lo’s relationship with his children has significantly suffered.

22

128.

Prior to the 2012 MVA, Mr. Lo went to the park or other excursions with his

23

family every week and regularly enjoyed holding them, playing with them, and teaching them

24
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 18

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 19 of 52

1

various activities such as drawing, fishing, and swimming. Mr. Lo was closely involved in

2

raising his children, having chosen to stay home to care for them prior to the 2012 MVA.

3

129.

Following the 2012 MVA, Mr. Lo has been significantly limited in his ability to

4

interact with his children. He was often unable to attend the children’s birthday parties,

5

performances, or field trips. Mr. Lo was unable to pick up or hold his children (ages five and

6

three at the time) following the 2012 MVA.

7

130.

Mr. Lo’s relationship with Ms. Chim has also significantly suffered.

8

131.

Prior to the 2012 MVA, Mr. Lo was the primary breadwinner of his family and, as

9
10
11
12

previously noted, helped take care of the young children.
132.

Due to Mr. Lo’s health limits since the 2012 MVA, Ms. Chim has taken on nearly

all of the household chores, childcare, driving, and other family responsibilities.
133.

The couple has experienced heightened tension in their relationship, including

13

more frequent arguments. Mr. Lo has frequently been unable to fully engage in sexual

14

intercourse with Ms. Chim, due to his pain and discomfort following the 2012 MVA.

15

134.

Mr. Lo’s inability to be the primary breadwinner for the family or care for his

16

family as he did prior to the 2012 MVA has caused Mr. Lo’s self-esteem to suffer, as he feels

17

that he is failing as a partner to Ms. Chim and father to their two children. Mr. Lo also feels that

18

he missed critical parts of his children’s lives, such as school performances and being able to

19

pick them up while they were young enough to be picked up.

20

135.

Mr. Lo has a son from a prior marriage who is now 17 years old. Mr. Lo was not

21

able to go visit his son for a period of time after the 2012 MVA due to Mr. Lo’s inability to

22

drive, which led to some deterioration of their relationship. However, Mr. Lo also admitted at

23

trial that he had not been seeing his oldest son frequently prior to the 2012 MVA, and indeed had

24

generally stopped seeing the son in 2011.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 19

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1

136.

Mr. Lo’s social life has suffered since the 2012 MVA. Due to his pain, mental

2

health symptoms, and general discomfort, Mr. Lo stopped going out to see his friends or hosting

3

them at his house.

4

137.

Over time, Mr. Lo has recovered from some of his physical and mobility

5

limitations since the 2012 MVA. For example, he accompanied his family on a road trip to

6

California in 2015, though he required frequent stops to rest. Since 2020, Mr. Lo has

7

accompanied his family on flights, including to Las Vegas and to Florida.

8
9

138.

Mr. Lo has also recently been able to pick back up some of the family

responsibilities, such as cooking or performing yardwork, on occasion.

10

139.

More recently, Mr. Lo has been able to go back to hiking and gardening.

11

140.

Mr. Lo returned to regular driving in or around 2017. He continues to experience

12

occasional panic attacks while driving.

13

141.

Recently, Mr. Lo has been teaching his son and daughter how to cook and has

14

been able to attend outdoor events with his children.

15

L.

16

Expert Opinions
1.

17
18
19
20

Medical Experts
a.

142.

Dr. Sanford Wright

At trial, Mr. Lo presented the medical testimony of Dr. Sanford Wright, M.D., a

neurological surgeon.
143.

Dr. Wright’s opinions were based on a January 6, 2021, physical examination of

21

Mr. Lo, Mr. Lo’s self-reported medical history, and a review of Mr. Lo’s medical records.

22

Dr. Wright’s review of the medical records was primarily based on the report of a records

23

specialist, who reviewed and summarized the medical records for Dr. Wright. During his

24
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 20

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1

testimony, Dr. Wright did not identify any specific imaging or other file from Mr. Lo’s medical

2

records he personally reviewed.

3

144.

Dr. Wright opined that the 2012 MVA caused injury to Mr. Lo’s lumbar and

4

cervical spines (both of which had existing degenerative conditions) and stretched Mr. Lo’s

5

brachial plexus, all of which caused Mr. Lo pain in his back, neck, hip, right leg, and right upper

6

extremities. Specifically, Dr. Wright diagnosed Mr. Lo with muscular strains in the cervical,

7

thoracic, and lumbar areas (for up to three months following the MVA), a left-sided disk bulge in

8

his lumbar spine at L3-4, 10 brachial plexopathy on the right side, and cervical radiculopathy on

9

the right side, all of which he opined were caused by the 2012 MVA. Dr. Wright opined that the

10

degenerative conditions in Mr. Lo’s spine were “lit up,” or aggravated, by the 2012 MVA.

11

145.

Dr. Wright acknowledged at trial that left-sided impingement, such as the left-

12

sided disk bulge in Mr. Lo’s lumbar spine, is generally inconsistent with extreme pain only

13

reported on the right side of the body. Dr. Wright also admitted that in concluding that Mr. Lo

14

had cervical radiculopathy, he primarily relied on Dr. Fosmire’s EMG results but did not review

15

the EMG itself.

16

146.

Dr. Wright opined on Mr. Lo’s current functional limitations. He opined that

17

Mr. Lo has permanent or long-term limitations in his ability to sit, stand, or walk for long periods

18

of time, as well as his ability to use his upper extremities. Dr. Wright opined that Mr. Lo will

19

likely continue to experience pain for approximately another decade.

20

147.

Dr. Wright did not consider the effect of Mr. Lo’s other motor vehicle accidents

21

in 2006, 2017, and 2020 in formulating his opinions. Dr. Wright testified that he understood

22

Mr. Lo’s 2017 MVA was very minor and agreed that it would have been relevant to his opinions

23
24

10

Dr. Wright initially diagnosed Mr. Lo with a disk herniation but corrected his opinion at trial to a disk bulge.

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 21

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 22 of 52

1

to learn that Mr. Lo’s car had been totaled in the collision. Dr. Wright was not aware that Mr. Lo

2

had attended at least 10 chiropractic appointments after the 2017 MVA. Dr. Wright also did not

3

know any details about Mr. Lo’s 2006 or 2020 MVAs, including that Mr. Lo complained of neck

4

pain following the 2006 accident.

5

148.

Dr. Wright acknowledged at trial that none of Mr. Lo’s treatment providers

6

ultimately diagnosed Mr. Lo with brachial plexopathy or cervical radiculopathy 11 and that no

7

provider explicitly found that Mr. Lo’s degenerative spine conditions had been aggravated by the

8

2012 MVA.

9

b.
149.

10
11

The Government presented the medical testimony of Dr. Edward I. Dagher, M.D.,

a physiatrist (i.e., a specialist in physical medicine and rehabilitation).
150.

12
13

Dr. Edward I. Dagher

Dr. Dagher’s opinions were based on his review of Mr. Lo’s medical records,

including Mr. Lo’s cervical and lumbar spine imaging, and Mr. Lo’s deposition.
151.

14

Dr. Dagher opined that Mr. Lo primarily suffered from spinal soft tissue strains,

15

particularly in the neck and low back, consistent with whiplash-like injury, as a result of the 2012

16

MVA.
152.

17

Dr. Dagher opined that Mr. Lo recovered from these injuries in about three

18

months after the 2012 MVA, as is typical of whiplash-like injuries. However, Dr. Dagher

19

acknowledged at trial that Mr. Lo has been “consistently symptomatic” beyond the first three

20

months after the 2012 MVA.

21
22
23
24

Dr. Fosmire initially diagnosed Mr. Lo with potential brachial plexopathy but ultimately concluded his treatment
without the diagnosis.
11

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 22

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 23 of 52

1

153.

Dr. Dagher opined that the 2012 MVA did not cause cervical radiculopathy,

2

brachial plexopathy, lumbar disk herniation or disk bulge, or “lighting up” of prior degenerative

3

conditions in Mr. Lo’s spine.

4
5
6

154.

Dr. Dagher pointed to a lack of clinical and diagnostic findings, separate from

Mr. Lo’s subjective complaints, to support these diagnoses or causation opinions.
155.

Dr. Dagher testified that MRIs of Mr. Lo’s lumbar spine showed left-sided

7

impingement of the L3-4 disk, which was inconsistent with Mr. Lo’s reported right-sided pain.

8

Dr. Dagher also opined that the normal range of motion in the cervical and lumbar spine that

9

Mr. Lo reported in January 2013 was inconsistent with cervical radiculopathy. Dr. Dagher

10

acknowledged that other treatment providers around that time period, however, noted limited

11

range of motion in Mr. Lo’s cervical and lumbar spine, including in a February 1, 2013, physical

12

therapist note that Dr. Dagher had not reviewed for his report.

13

156.

Dr. Dagher testified that an acute injury causing an extreme pain “spike” two

14

years later is physiologically very rare. Dr. Dagher noted that some of Mr. Lo’s prior treatment

15

providers had hypothesized that psychological stressors or inflammatory or rheumatic conditions

16

could be behind at least some of Mr. Lo’s pain complaints since the 2012 MVA.

17

157.

Based on his opinion that the 2012 MVA only caused temporary injuries

18

consistent with whiplash, Dr. Dagher opined that Mr. Lo currently does not require any medical

19

treatment for the injuries sustained from the 2012 MVA and that Mr. Lo is medically safe and

20

capable of any employment of his choosing.

21

158.

Dr. Dagher also opined that, even if he were to adopt Dr. Wright’s views

22

regarding the injuries Mr. Lo suffered as a result of the 2012 MVA, Ms. Johnson’s life care plan

23

is not supported by medical foundation and necessity because it is inconsistent with the type and

24

frequency of treatment that Mr. Lo has received in the past.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 23

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1
2
3

c.
159.

Dr. Patrick N. Bays

The Government presented the medical testimony of Dr. Patrick N. Bays, D.O.,

an orthopedic surgeon.

4

160.

Dr. Bays’s opinions were based on his review of Mr. Lo’s medical records.

5

161.

Dr. Bays opined that Mr. Lo primarily sustained strains and sprains to his

6

cervical, thoracic, and lumbar spine consistent with whiplash and whiplash-associated disorder,

7

as well as injuries to his right shoulder, right knee, right hip, and the right ankle. Dr. Bays opined

8

that Mr. Lo recovered from these injuries within, at most, six months after the 2012 MVA.

9

162.

Dr. Bays also testified that Mr. Lo has a congenital central canal stenosis in his

10

spine, as well as degenerative changes and a left-sided disk bulge in the lumbar spine. Dr. Bays

11

opined that these conditions were neither caused by nor aggravated by the 2012 MVA,

12

particularly given that minor degenerative conditions were already present in Mr. Lo’s cervical

13

spine imaging in 2006. Dr. Bays also noted that the lumbar disk bulge was left-sided and did not

14

match the right leg pain that Mr. Lo reported, though he acknowledged that Dr. Chen had found

15

Mr. Lo’s stenosis was putting pressure on the L4 nerve root, the nerve root that was

16

decompressed during the 2016 laminectomy, on the right side.

17

163.

Dr. Bays opined that Mr. Lo’s spinal degenerative changes were not “lit up” by

18

the 2012 MVA because, rather than the “spike” in pain occurring just after the 2012 MVA, it

19

took two years for the intensified pain to develop. Dr. Bays testified that asymptomatic pre-

20

existing conditions will usually be “lit up” instantaneously, much like “flipping a light switch.”

21

He testified that he had only seen instances of injuries being “lit up” by an incident after two

22

years if the individual developed a traumatic arthritis after suffering from a fracture or

23

dislocation at the incident.

24
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 24

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 25 of 52

1
2
3

164.

Dr. Bays testified that Mr. Lo’s pain could have been caused by an inflammatory

process affecting the spine from an autoimmune disease.
165.

Dr. Bays opined that, contrary to Dr. Chen’s recommendations, Mr. Lo’s 2016

4

lumbar laminectomy had not been indicated, given the mildness of the degenerative changes on

5

Mr. Lo’s spine. He acknowledged, however, that Mr. Lo experienced significant relief in his

6

lower back and right leg pain following the laminectomy.

7

2.

8
9
10
11

Psychological Experts
a.

166.

Dr. Michelle Brown

Mr. Lo also presented the medical testimony of Dr. Michelle Brown, PsyD, a

licensed clinical psychologist.
167.

Dr. Brown’s opinions were based on her review of Mr. Lo’s medical records and

12

a May 2021 evaluation of Mr. Lo, which included the administration of the Clinician-

13

Administered PTSD Scale (5th edition) (“CAPS-5”), Personality Assessment Inventory (“PAI”),

14

Trauma Symptom Inventory (2nd edition) (“TSI-2”), and the Detailed Assessment of Post-

15

Traumatic Stress (“DAPS”).

16

168.

Dr. Brown did not administer the Minnesota Multiphasic Personality Inventory

17

test (“MMPI”), which broadly tests for various mental health symptoms and validity scales,

18

because it been shown in clinical literature to over-pathologize the symptoms of clients of color.

19

In particular, the literature shows that members of the Asian American Pacific Islander

20

community tend to minimize their symptoms, particularly their emotional or purely

21

psychological symptoms (as opposed to physiological symptoms). Indeed, Dr. Brown found that

22

Mr. Lo’s validity indicators showed that he was minimizing his symptoms.

23
24

169.

Dr. Brown diagnosed Mr. Lo with post-traumatic stress disorder (“PTSD”) and

major depressive disorder (“MDD”) and opined that such disorders can have a negative effect on
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 25

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 26 of 52

1

one’s physical pain and symptoms. Dr. Brown opined that these disorders were caused by the

2

2012 MVA.

3

170.

Dr. Brown did not believe that Mr. Lo suffers from somatic symptom disorder

4

(“SSD”). SSD is a rare disorder characterized by an exaggerated or excessive preoccupation on

5

of one’s physical pain or other symptoms.

6

171.

While she agreed with Dr. Bates that Mr. Lo required therapy to treat his mental

7

health symptoms, Dr. Brown also opined that Mr. Lo required but did not receive (and was not

8

offered) culturally competent mental health counseling. She opined that, because trauma therapy

9

can be very stressful, Mr. Lo did not cause himself any injury by failing to obtain consistent

10

psychotherapy—which was not culturally appropriate when offered—for his trauma.

11
12
13
14

b.
172.

Dr. Brad L. Bates

The Government presented the medical testimony of Dr. Brad L. Bates, Ph.D., a

licensed clinical psychologist.
173.

Dr. Bates’s opinions were based on a February 5, 2021, examination of Mr. Lo

15

and his review of Mr. Lo’s medical and other records, including photographs of the 2012 MVA

16

and court documents related to Mr. Lo’s older son’s custody dispute.

17

174.

Dr. Bates administered the MMPI. Dr. Bates testified that the results of the MMPI

18

suggested that Mr. Lo may have been engaging in both under- and over-reporting of his

19

symptoms.

20

175.

Prior to administering the MMPI, Dr. Bates was aware of academic literature

21

showing a tendency for the MMPI to show inaccurate results (specifically, tending to show

22

erroneous diagnoses of malingering or faking symptoms) for Chinese individuals. In

23

administering the test regardless, Dr. Bates relied on a study showing that Asian Americans in

24

personal injury cases did not present any difference on the validity scales than the normative
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 26

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 27 of 52

1

group of individuals. However, Dr. Bates acknowledged that the article in question had only nine

2

Chinese participants and no participant who had difficulty reading and completing the MMPI in

3

English. Dr. Bates also knew of but did not administer the Chinese infrequency scale, which was

4

constructed and validated in China and Hong Kong to evaluate faking among Chinese nationals.

5

176.

Dr. Bates also departed from the standard administration process for the MMPI,

6

which usually occurs by having the respondent read and respond to each item of the MMPI on a

7

computer or paper booklet. However, Mr. Lo struggled with the language contained in the

8

MMPI, requiring Dr. Bates to explain approximately 21 words or phrases, such as “appetite,”

9

“keenly,” “spells of the blues,” and “brood,” to Mr. Lo. Mr. Lo also proceeded at approximately

10

half the typical speed of a respondent on the MMPI. Dr. Bates therefore orally administered the

11

remainder of the MMPI to Mr. Lo.

12

177.

Dr. Bates administered the Test of Memory Malingering (“TOMM”), which

13

indicated that Mr. Lo was feigning memory impairment. Dr. Bates also administered the DAPS,

14

which tests whether a respondent endorses any of eight pseudo-symptoms that are rarely

15

endorsed by individuals with actual mental health conditions but might be endorsed by those

16

feigning PTSD. Mr. Lo did not endorse any of the pseudo-symptoms.

17

178.

Dr. Bates also administered diagnostic measures of depression (PHQ-9), anxiety

18

(GAD-7), and trauma symptoms on Mr. Lo, which assisted in the PTSD and MDD diagnoses. He

19

administered the pain catastrophizing scale, the perceived injustice scale, and the World Health

20

Organization Disability Assessment Survey (“WHODAS”), which assisted in the SSD diagnosis.

21

179.

Dr. Bates opined that Mr. Lo suffers from MDD, PTSD, and SSD. Dr. Bates

22

acknowledged that Mr. Lo is among the approximately one percent of individuals with

23

experience of trauma who suffer from persistent PTSD. He also acknowledged that a patient who

24

suffers from SSD experiences actual distress and would require treatment.
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 27

Case 2:17-cv-01202-TL Document 174 Filed 02/15/23 Page 28 of 52

1

180.

Dr. Bates opined that these disorders were triggered by the pain that Mr. Lo

2

experienced following the 2012 MVA, rather than by the 2012 MVA itself. Dr. Bates did not

3

opine on whether the pain was caused by the 2012 MVA.

4

181.

Dr. Bates also opined that, had Mr. Lo sought early and consistent psychotherapy,

5

especially therapy aimed at treating trauma, at the onset of his mental health symptoms (in or

6

around July 2014), Mr. Lo would have attained improved and stable mental health symptoms by

7

June of 2016. Dr. Bates opined that Mr. Lo did not require culturally competent therapy, given a

8

lack of awareness or concerns about cultural competency expressed in Mr. Lo’s medical records.

9

3.

10
11

Vocational and Rehabilitation Experts
a.

182.

Ms. Cloie Johnson

At trial, Mr. Lo presented the testimony of Ms. Cloie Johnson, a vocational

12

rehabilitation counselor and case manager. Ms. Johnson presented her life care plan, which

13

outlines each item for the anticipated future medical care for Mr. Lo as well as each item’s

14

frequency, duration, and cost. See D-175. Ms. Johnson also opined as to Mr. Lo’s earning

15

capacity before and after the 2012 MVA.

16

183.

Ms. Johnson’s opinions were based on her review of Mr. Lo’s responses to

17

interrogatories and his deposition during this litigation, a June 2, 2021, interview of Mr. Lo, and

18

the medical opinion of Dr. Wright, including as to what injuries Mr. Lo suffered as a result of the

19

2012 MVA, what functional limitations such injuries imposed on Mr. Lo, and what medical

20

treatment and other accommodations are required for Mr. Lo in the future.

21

184.

Ms. Johnson does not have the qualifications, education, and experience

22

necessary to render medical opinions on her own. Ms. Johnson did not review Mr. Lo’s medical

23

records, consult with his treatment providers, or compare her life care plan to the treatment

24

Mr. Lo has received since 2012. Ms. Johnson did not conduct an independent functional
FINDINGS OF FACT &
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1

assessment of Mr. Lo’s capability to perform household tasks and relied on Dr. Wright to

2

understand Mr. Lo’s medical needs and functional limitations in employment.

3

185.

Future Medical Care (Life Care Plan). In her life care plan, Ms. Johnson opines

4

that the total reasonable value of the future medical expenses and other related costs for treating

5

Mr. Lo’s injuries arising out of the 2012 MVA is $287,735 to $453,329, in present cash value.

6

D-175. This encompasses:

7

a. Physical medicine and rehabilitation evaluation and treatment, every three

8

months on average for the remainder of Mr. Lo’s life, for an estimated cost of

9

$33,969;

10

b. Pain management evaluation and treatment, every one to two months on

11

average for the remainder of Mr. Lo’s life, for an estimated cost of $66,362 to

12

$132,399;

13

c. Cervical radiofrequency ablations, every six to twelve months on average for

14

a minimum of one to two years, for an estimated cost of $1,888 to $4,720;

15
16

d. Cervical epidural spine injections, every four months on average for a
minimum of one to two years, for an estimated cost of $2,024 to $4,047;

17

e. Right-sided stellate ganglion blocks, every four months on average for the

18

remainder of Mr. Lo’s life, for an estimated cost of $11,998 to $35,988;

19

f. Third-party household services, for an average of six to eight hours a month

20

for the remainder of Mr. Lo’s life, for an estimated cost of $90,217 to

21

$120,289; and

22
23
24
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1

g. Third-party services for yard work and home repair, for an average of four to

2

six hours a month for the remainder of Mr. Lo’s life, for an estimated cost of

3

$81,277 to $121,915. 12

4
5

186.

Ms. Johnson testified that no life care plan would be needed for Mr. Lo if it were

based on the opinions of Drs. Dagher and Bays.
187.

6

Earning Capacity. Ms. Johnson testified that, absent his injuries and based on his

7

prior work experience, Mr. Lo’s earning potential would have been that of a general construction

8

worker. Ms. Johnson explained that this was because, although his work history reflects various

9

positions and endeavors, Mr. Lo has generally performed some type of construction work the

10

most consistently throughout his work history, and he has the skills of a general construction

11

worker. Based on this, Ms. Johnson opined that Mr. Lo’s pre-2012 MVA earning potential was

12

$50,838 a year.

13

188.

Ms. Johnson also testified that Mr. Lo’s physical capacity for employment

14

following the 2012 MVA is limited to that of working at minimum wage ($14.49 an hour) in a

15

sedentary physical demand level capacity, for an estimated earning potential of $30,139.20 a

16

year. Ms. Johnson’s understanding of Mr. Lo’s physical limitations was based on Dr. Wright’s

17

opinions.

18

189.

She testified that the annual difference of earning potential between the two

19

positions is $40,698.80 per year, which represents a net present value annualized over Mr. Lo’s

20

estimated working career (as stipulated to by the Parties).

21
22

190.

Ms. Johnson opined that, alternatively, the cost of retraining Mr. Lo to restore his

earning potential to that of a general construction worker would cost $120,676, which represents

23
24

Ms. Johnson’s life care plan for Mr. Lo excludes mental health treatment, per a prior order of the Court. See Dkt.
No. 129 at 25.

12

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1

a cost of $19,000 for tuition, books, and supplies for a two-year full-time retraining plan and two

2

years’ worth of lost wages.

3

191.

Ms. Johnson testified that, if her vocational recommendations were based on the

4

opinions of Drs. Dagher and Bays, she would have concluded that Mr. Lo only suffered

5

approximately 12 weeks of loss of wages and no loss of future wage-earning capacity. She did

6

not offer an opinion as to the amount of lost wages during this period.

7

b.
192.

8
9

Mr. John F. Berg

The Government introduced the expert opinion of Mr. John F. Berg, a vocational

expert and rehabilitation counselor. Mr. Berg’s opinions were based on his review of Mr. Lo’s

10

medical records, consultations with Drs. Dagher, Bates, and Bays, and a review of Mr. Lo’s

11

deposition.
193.

12

Mr. Berg opined that Mr. Lo’s career prior to the 2012 MVA was that of a self-

13

employed entrepreneur, with a developing interest in real estate, rather than that of a general

14

construction worker.

15

194.

Mr. Berg opined that Mr. Lo’s wage-earning capacity before and after the 2012

16

MVA was at minimum wage ($13.50 an hour), for a total full-time earning of more than $28,000

17

a year, 13 and therefore that Mr. Lo did not suffer any loss of wage-earning capacity after the

18

2012 MVA. Mr. Berg testified that Mr. Lo was on track to earn an income commensurate with

19

his wage-earning capacity during Mr. Lo’s employment at a kitchen cabinet store in 2017 and

20

2018. He also opined that Mr. Lo does not require retraining because he is already capable of

21

employment, such as working as a real estate or insurance agent.

22
23
24

13

Neither Ms. Johnson nor Mr. Berg explained the discrepancy in their respective minimum wage rates.

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195.

Mr. Berg opined that, based on the opinions of Drs. Dagher and Bays, Mr. Lo

2

suffered 12 to 13 weeks of total temporary work disability following the 2012 MVA. He did not

3

opine as to the amount of lost wages during this period.
III.

4
5
6

A.

CONCLUSIONS OF LAW

Daubert Determination
196.

The Court previously deferred ruling on certain portions of the Government’s

7

motion to exclude the expert opinion of Ms. Johnson: specifically, whether to exclude her

8

opinion regarding Mr. Lo’s lost earning capacity and life care plan (except as to Mr. Lo’s mental

9

health treatment plan, which was excluded). Dkt. No. 129 at 13, 16. The Court also previously

10

deferred ruling on Mr. Lo’s motion to exclude the expert opinions of Drs. Dagher and Bays as to

11

causation. Id. at 8, 9.

12

197.

When considering expert witness testimony, “the district court must perform a

13

gatekeeping role of ensuring that the testimony is both relevant and reliable under [Federal Rule

14

of Evidence] 702.” United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 1188 (9th Cir. 2019)

15

(internal quotation marks omitted) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,

16

597 (1993)). The reliability inquiry “requires that the expert’s testimony have a reliable basis in

17

the knowledge and experience of the relevant discipline.” Id. at 1188–89 (internal quotation

18

marks omitted) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)).

19

198.

Because the purpose of this inquiry is to “protect juries from being swayed by

20

dubious [expert] testimony,” in a bench trial “there is less need . . . to keep the gate when the

21

gatekeeper is keeping the gate only for himself.” United States v. Flores, 901 F.3d 1150, 1165

22

(9th Cir. 2018) (internal quotation marks omitted) (emphasis in original) (quoting David E.

23

Watson, P.C. v. United States, 668 F.3d 1008, 1015 (8th Cir. 2012)). “Vigorous cross-

24

examination, presentation of contrary evidence, and careful instruction on the burden of proof
FINDINGS OF FACT &
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1

are the traditional and appropriate means of attacking shaky but admissible [expert] evidence.”

2

Daubert, 509 U.S. at 596.

3

199.

At trial, the Court heard Ms. Johnson, Dr. Dagher, and Dr. Bays testify as to their

4

qualifications and methodology in forming their opinions. The Court also heard the testimony of

5

Ms. Johnson as to how she determined Mr. Lo’s lost earning capacity and life care plan and Drs.

6

Dagher and Bays as to how they determined causation.

7

200.

All three expert witnesses provided testimony that was relevant to the

8

determination of damages and causation. Further, all three expert witnesses were qualified to

9

provide their opinions as to these issues. The Court finds that all three experts’ opinions on these

10

issues, including their methodology, were reliable. Therefore, all three expert witnesses’

11

testimony was admissible, and any weaknesses in their opinions go to the question of weight.

12

B.

Negligence Under the FTCA

13

201.

Plaintiff asserts a claim of negligence against the Government under the FTCA.

14

202.

This Court has jurisdiction pursuant to 28 U.S.C. § 1346(b).

15

203.

Venue is proper in the Western District of Washington pursuant to 28 U.S.C.

16

§ 1402(b) because Mr. Lo resides in this judicial district and because the acts and omissions

17

complained of occurred in this District.

18

204.

Under the FTCA, the Government is liable for “personal injury . . . caused by the

19

negligent or wrongful act or omission of any employee of the Government while acting within

20

the scope of his office or employment, under circumstances where the United States, if a private

21

person, would be liable to the claimant in accordance with the law of the place where the act or

22

omission occurred.” 28 U.S.C. § 1346(b)(1).

23
24

205.

Washington law governs the substance of this matter because the collision

occurred in Renton, Washington. 28 U.S.C. § 1346(b)(1); Avina v. United States, 681 F.3d 1127,
FINDINGS OF FACT &
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1

1130 (9th Cir. 2012) (citing Richards v. United States, 369 U.S. 1, 7 (1962)) (applying California

2

law in FTCA case because events at issue occurred in California).

3

206.

The elements of negligence under Washington law are duty, breach of that duty,

4

injury, and proximate cause between the breach and injury. E.g., Nguyen v. City of Seattle, 317

5

P.3d 518, 523 (Wash. Ct. App. 2014) (“Government entities are held to the same negligence

6

standards as private individuals.”).

7

207.

The Parties do not dispute the Government’s liability. The only issue that remains

8

is what injuries were proximately caused by the Government’s negligence and how much in

9

damages Mr. Lo is entitled to recover. See Dkt. No. 141 at 3 (“The United States does not contest

10
11

liability but disputes the nature and extent of Plaintiff’s damages.”).
208.

The Court “must determine the amount of money that will reasonably and fairly

12

compensate the plaintiff for such damages as [the Court finds] were proximately caused by the

13

negligence of the defendant.” Wash. Pattern Jury Instructions - Civil (“WPI”) 30.01.01 (7th ed.).

14

209.

Proximate cause requires both (1) cause-in-fact, or “but for” causation, and

15

(2) legal causation, which is a policy determination as to how far the consequences of a

16

defendant’s acts should extend. E.g., Hartley v. State, 698 P.2d 77, 82–83 (Wash. 1985) (en

17

banc) (discussing difference between the two elements of proximate cause).

18

210.

Mr. Lo seeks noneconomic damages as well as economic damages in the form of

19

lost wages, lost earning capacity, cost of retraining, and/or future medical care (and other related

20

costs reflected in Ms. Johnson’s life care plan).

21

211.

Mr. Lo’s recovery under the FTCA is limited to the amount of the claim he

22

administratively filed before the USPS, “except where the increased amount is based upon newly

23

discovered evidence not reasonably discoverable at the time of presenting the claim to the federal

24

agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.”
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1

28 U.S.C. § 2675(b). Because Mr. Lo’s FTCA administrative claim was for the amount of

2

$300,000, his recovery is limited to that amount, except that he may recover up to $2.7 million in

3

any additional damages arising out of Plaintiff’s 2016 lumbar laminectomy pursuant to a prior

4

order of the Court. Dkt. No. 125 at 2, 6.

5

212.

The party asserting negligence—here, Mr. Lo—must prove each of the elements

6

of negligence by a preponderance of the evidence. See, e.g., Peirce v. United States, No. C05-

7

440, 2007 WL 1577762, at *4–5 (W.D. Wash. May 30, 2007) (finding plaintiff failed to show

8

negligence by preponderance of evidence at trial in MVA FTCA case); see also WPI 30.01.01.

9

213.

“Expert testimony is required to establish causation when an injury involves

10

obscure medical factors that would require an ordinary lay person to speculate or conjecture in

11

making a finding.” Bruns v. PACCAR, Inc., 890 P.2d 469, 477 (Wash. Ct. App. 1995); accord

12

Fox v. State Farm Ins. Co., No. C15-535, 2016 WL 1046128, at *3 (W.D. Wash. Mar. 16, 2016).

13

Medical testimony must be based upon a reasonable degree of medical certainty. McLaughlin v.

14

Cooke, 774 P.2d 1171, 1175 (Wash. 1989).

15

214.

However, “Washington courts have specifically rejected the argument that ‘only

16

medical testimony can show causation.’” See Fox, 2016 WL 1046128, at *3 (emphasis added)

17

(quoting Ma’ele v. Arrington, 45 P.3d 557, 561 (Wash. Ct. App. 2002)) (noting that it was “not

18

immediately apparent” that expert medical testimony was necessary to find that plaintiff’s head,

19

neck, and lower back pain was caused by car accident); see also McLaughlin, 774 P.2d at 1175

20

(“It is not always necessary to prove every element of causation by medical testimony. If, from

21

the facts and circumstances and the medical testimony given, a reasonable person can infer that

22

the causal connection exists, the evidence is sufficient.”). Therefore, the Court looks at the

23

totality of the evidence presented at trial, including both the expert medical testimony and lay

24

witness testimony, to determine causation.
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1
2
3

C.

Causation
215.

The Court finds by a preponderance of evidence that the following injuries were

proximately caused by the Government’s negligence in the 2012 MVA.

4

1.

Physical Injuries

5

216.

Mr. Lo suffered the following physical injuries as a result of the 2012 MVA:

6

a. cervical, thoracic, and lumbar muscular strains consistent with whiplash and

7

related conditions, which lasted approximately three months; and

8

b. pain, including numbness and tingling, in his right upper extremities (right

9

shoulder, arm, and hand), which Mr. Lo continues to suffer from.

10
11

a.
217.

Muscular Strains

The Parties’ medical experts agree that Mr. Lo suffered cervical, lumbar, and

12

minor thoracic muscular strains consistent with whiplash and related conditions as a result of the

13

2012 MVA.

14

218.

The experts generally agree that these injuries lasted for approximately three

15

months. Specifically, while Dr. Bays opined that it could have taken Mr. Lo up to six months to

16

recover, the Court notes and credits Drs. Wright and Dagher’s opinions that three months is the

17

typical period of expected recovery from whiplash and related conditions. This is also consistent

18

with Mr. Lo’s medical records.

19

b.

20

219.

Neck Pain, Lower Back Pain & Right Leg Pain

Mr. Lo failed to show that the 2012 MVA proximately caused any significant

21

lower neck pain, back pain, right leg pain (aside from the muscular strains identified above), or

22

other injuries to his cervical or lumbar spines.

23
24

220.

The Parties’ medical experts agree that: (1) Mr. Lo had mild degenerative

changes, which are caused by aging, in his cervical and lumbar spine since before the 2012
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1

MVA, including central canal stenosis in his cervical and lumbar spines and a left-sided disk

2

bulge in his lumbar spine; 14 (2) these conditions were not symptomatic prior to the 2012 MVA;

3

and (3) imaging of Mr. Lo’s cervical and lumbar spines shows no acute injury, such as a fracture,

4

following the 2012 MVA. 15

5
6

221.

The Parties disagree, however, as to whether Mr. Lo’s degenerative conditions

were “lit up” by the 2012 MVA.

7

222.

Dr. Wright testified that spinal degenerative changes are not ordinarily painful but

8

that an injury to the spine could cause a permanent pinching of the nerves, which in turn leads to

9

painful symptoms such as the ones Mr. Lo experienced following the 2012 MVA.

10

223.

But, as Drs. Bays and Dagher credibly explained, such an exacerbation of pre-

11

existing conditions would ordinarily be accompanied by some evidence of acute trauma or other

12

change to the spine, which did not occur with the 2012 MVA. Specifically, while spinal stenosis

13

can occur in the process of healing from a bone fracture or dislocation rather than from

14

degeneration, nothing indicates that Mr. Lo suffered such a fracture or dislocation from the 2012

15

MVA. Indeed, as Dr. Wright acknowledged at trial, none of Mr. Lo’s treatment providers found

16

that his degenerative spine conditions were aggravated by the 2012 MVA.

17
18

224.

Mr. Lo’s lower back pain and right leg pain were caused by the central canal

stenosis in his lumbar spine, which was present well before the 2012 MVA. Notably, much of

19
20
21
22
23
24

It is not clear whether these two conditions are degenerative. For example, Dr. Bays opined that Mr. Lo’s central
canal stenosis was congenital, meaning Mr. Lo was born with the condition. The Parties appear to have used the
term “degenerative changes” as a catchall for Mr. Lo’s pre-existing spinal conditions. See, e.g., Dkt. No. 158 at 30
(Government’s closing argument describing stenosis as degenerative). The Court adopts the same convention. In any
case, the distinction is not material in the Court’s findings and conclusions in this case.
14

To the extent that the medical experts differed in their opinions of Mr. Lo’s lumbar and cervical spine conditions,
the Court generally places greater weight on the opinions of Drs. Dagher and Bays, who personally reviewed
Mr. Lo’s medical records—including his various imaging studies—whereas Dr. Wright primarily relied on the
review and summaries of a records specialist in incorporating Mr. Lo’s records into his opinions.
15

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1

Mr. Lo’s lower back pain and virtually all of his right leg pain were resolved by his August 2016

2

lumbar laminectomy, which only treated his stenosis and the related compression of his nerve

3

root at L4. 16 Mr. Lo reported significant relief in his lower back and right leg pain within weeks

4

following the surgery.

5

225.

In particular, Mr. Lo failed to show what—if any—portion of his lower back and

6

right leg pain after the November 2014 “spike” is attributable to the 2012 MVA. As Dr. Dagher

7

credibly testified, the two-year delay between the 2012 MVA and the November 2014 “spike” in

8

Mr. Lo’s lower back and right leg pain is, physiologically, nearly impossible. Drs. Dagher and

9

Bays also credibly opined that the two-year delay disproves that Mr. Lo’s lower back and right

10

leg pain were caused by the 2012 MVA. 17 Because the August 2016 lumbar laminectomy

11

followed and treated the November 2014 “spike,” Mr. Lo cannot recover for any damages arising

12

out of the surgery.

13

226.

As for the neck pain, the Court notes that Mr. Lo complained of pain in his neck

14

following the 2006 MVA, but Dr. Wright did not know any details about the MVA and did not

15

review Mr. Lo’s 2006 cervical spine X-ray. This further erodes the credibility of Dr. Wright’s

16

opinion regarding Mr. Lo’s neck pain and its relationship to the 2012 MVA.

17

227.

Accordingly, Mr. Lo has failed to show, by a preponderance of the evidence, that

18

he is entitled to recover damages for his neck pain, lower back pain, and right leg pain (beyond

19

whiplash-related injuries), as well as his August 2016 lumbar laminectomy.

20
21
22
23

While the Government focuses on the left-sided disk bulge in Mr. Lo’s lumbar spine at L3-4 and its inconsistency
with Mr. Lo’s right leg pain, Dr. Chen, Mr. Lo’s lumbar surgeon, found (as Dr. Bays acknowledged) that Mr. Lo’s
lumbar stenosis was compressing the L4 nerve root on the right side, which was consistent with the right leg pain.

24

Dr. Wright suggested that the November 2014 “spike” would not have been so unusual or unexpected had it been
preceded by other similar flare-ups. Mr. Lo did not show, however, that any such flare-ups occurred.

16

17

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1

c.
228.

2

Hip Pain

Mr. Lo failed to show that he suffered any significant hip pain as a result of the

3

2012 MVA. While Mr. Lo testified that he suffered hip pain following the 2012 MVA, he failed

4

to introduce any significant amount of evidence regarding the cause and general nature of such

5

hip pain. 18 For example, the evidence was unclear as to the timing, duration, frequency, and

6

intensity of the pain. Dr. Dagher did testify, however, that Mr. Lo’s hip pain was largely resolved

7

by a July 2020 surgery that treated a congenital deformity, indicating that Mr. Lo’s hip pain was

8

not caused by an injury such as the 2012 MVA. Mr. Lo also introduced no evidence explaining

9

how the 2012 MVA could have “lit up” a congenital condition and caused the hip pain.
229.

10
11

he is entitled to recover damages for his hip pain.
d.

12
230.

13
14

Accordingly, Mr. Lo has failed to show, by a preponderance of the evidence, that

Right Upper Extremities Pain

The Court finds that Mr. Lo suffered pain, numbness, and tingling in his right

upper extremities that were proximately caused by the 2012 MVA.
231.

15

As Drs. Dagher and Bays acknowledged at trial, Mr. Lo complained of right-sided

16

pain on the day of the 2012 MVA and reported pain, numbness, and tingling in his right arm just

17

three days after the accident.
232.

18

The Parties’ expert opinions differ on the precise nature of the right-sided upper

19

body pain, with Dr. Wright opining that the 2012 MVA caused a stretching of the brachial plexus

20

and Dr. Bays opining that Mr. Lo suffered a contusion or strain to the right shoulder. Dr. Wright

21

also separately connected Mr. Lo’s right upper extremities pain with an injury to his cervical

22

spine by opining that Mr. Lo suffered from cervical radiculopathy (discussed below).

23
24

18

Dr. Wright’s opinions regarding the hip injury were excluded in a prior order of the Court. Dkt. No. 91 at 9.

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1
2

233.

No medical expert offered an actual credible diagnosis for Mr. Lo’s right upper

extremities pain.

3

234.

Dr. Wright opined that the 2012 MVA caused brachial plexopathy and cervical

4

radiculopathy on the right side in relation to Mr. Lo’s right upper extremities pain. Dr. Dagher

5

disputed this diagnosis, credibly testifying that Mr. Lo’s physical exams and imaging did not

6

show any objective findings to support either condition. And, as Dr. Wright admitted at trial,

7

none of Mr. Lo’s treating providers diagnosed Mr. Lo with either condition. While Dr. Fosmire

8

preliminary diagnosed Mr. Lo with brachial plexopathy, this diagnosis occurred before

9

Dr. Fosmire performed a nerve conduction study, MRI, and EMG on Mr. Lo. The test results

10

were mixed, and the Parties’ experts dispute the meaning of these test results. Ultimately,

11

Dr. Fosmire did not diagnose Mr. Lo with brachial plexopathy (or cervical radiculopathy) and

12

eventually discharged Mr. Lo from his care. 19 The Government’s experts offered no serious

13

alternative explanation for Mr. Lo’s right upper extremities pain.

14

235.

Nonetheless, Mr. Lo continues to suffer from pain in his right upper extremities,

15

though he has experienced significant relief from cervical radiofrequency ablations, which target

16

specific branches of nerves that extend out to his right arm.

17

236.

Accordingly, the Court finds that Mr. Lo has suffered pain (including numbness

18

and tingling) in his right upper extremities as a proximate cause of the 2012 MVA. The lack of a

19

medically identified diagnosis for Mr. Lo’s right upper extremities pain does not bar this finding.

20

See, e.g., Carson v. United States, No. C18-5858, 2021 WL 3124516, at *5 (W.D. Wash. July

21

23, 2021) (noting lack of diagnosis in findings of plaintiff’s personality issues that were

22
23
24

The records also show that Drs. Fosmire and Baker considered a diagnosis of CRPS for Mr. Lo during treatment.
However, the Parties introduced no medical expert testimony on CRPS at trial. See generally Dkt. No. 91 at 9 (order
striking Dr. Wright’s opinions regarding CRPS). In any case, Drs. Fosmire and Baker also ruled out a diagnosis of
CRPS after the lack of success from stellate ganglion blocks.

19

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1

exacerbated by USPS truck collision); Fahndrich v. Williams, 194 P.3d 1005, 1009 (Wash. Ct.

2

App. 2008) (holding that plaintiff was entitled to noneconomic damages where medical experts

3

disagreed about the diagnosis but agreed she suffered from neck pain and headaches); see also

4

McLaughlin, 774 P.2d at 1175 (“It is not always necessary to prove every element of causation

5

by medical testimony. If, from the facts and circumstances and the medical testimony given, a

6

reasonable person can infer that the causal connection exists, the evidence is sufficient.”).

7

2.

Mental and Emotional Injuries

8

237.

Mr. Lo also suffered serious negative effects on his mental health and general

9

emotional anguish as a proximate result of the 2012 MVA, including the development of PTSD

10

and MDD as well as related symptoms such as anxiety, depression, suicidal ideation, acts of self-

11

harm, paranoia, insomnia, panic attacks, and sexual dysfunction.

12

238.

The Parties’ psychological experts agree that Mr. Lo suffers from both PTSD and

13

MDD. 20 Dr. Brown opined that the disorders were caused by the 2012 MVA, while Dr. Bates

14

opined that the disorders were caused by the pain that Mr. Lo felt and not necessarily the 2012

15

MVA.

16

239.

The Court finds Dr. Brown’s opinions, including that Mr. Lo’s disorders were

17

caused by the 2012 MVA, more compelling and finds that Dr. Bates’s opinions suffer from

18

certain credibility concerns.

19

240.

For example, Dr. Bates’s administration of the MMPI was flawed, as he failed to

20

properly control for the known unreliability of the MMPI for Asian Americans. Dr. Bates largely

21

relied on a study concluding that Asian Americans without linguistic difficulty in taking the

22

MMPI did not show significant accuracy issues. But this study was not applicable to Mr. Lo,

23
24

Dr. Bates also opined that Mr. Lo suffers from SSD, which Dr. Brown disagreed with. The Court will not make a
finding as to whether Mr. Lo suffers from SSD. In any event, SSD was not a theory put forth by Plaintiff.
20

FINDINGS OF FACT &
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1

who demonstrated barriers to his English language comprehension throughout the trial and

2

during the MMPI, with Dr. Bates himself finding it necessary to deviate from the standard

3

administration of the MMPI to assist Mr. Lo with the test. Dr. Bates’s findings of Mr. Lo’s

4

purported over- and under-reporting of his symptoms were based in part on the flawed

5

administration of the MMPI.

6

241.

It is also clear that the 2012 MVA is a significant trigger for and the primary

7

cause of Mr. Lo’s mental health symptoms and general emotional anguish. He experiences panic

8

attacks and distress at the sight of flashing lights from an ambulance, for example, and he

9

struggled to return to driving, a former favorite past-time, for several years following the 2012

10

MVA. He also interpreted his therapists as wanting him to accept that the 2012 MVA had

11

permanently changed his life, which caused him much distress. This conclusion is further

12

supported by Dr. Brown’s administration of the CAPS-5, which required Mr. Lo to focus on the

13

2012 MVA and informed Dr. Brown’s PTSD diagnosis, a diagnosis that Dr. Bates and Mr. Lo’s

14

treatment providers agreed with.

15

D.

16

Damages
242.

Mr. Lo seeks to recover noneconomic damages, economic damages for lost

17

wages, lost earning capacity, and/or cost of retraining, and economic damages for future medical

18

care. The Court awards the following damages.

19

1.

Noneconomic Damages

20

243.

Noneconomic damages mean a plaintiff’s “subjective, nonmonetary losses,

21

including, but not limited to pain, suffering, inconvenience, mental anguish, disability or

22

disfigurement incurred by the injured party, emotional distress, loss of society and

23

companionship, loss of consortium, injury to reputation and humiliation, and destruction of the

24

parent-child relationship.” RCW 4.56.250(1)(b).
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1

244.

In awarding noneconomic damages, the Court may not be swayed by passion or

2

prejudice and must “maintain some degree of uniformity in cases involving similar losses,” while

3

also minding that “[e]ach case stands on its own facts.” Shaw v. United States, 741 F.2d 1202,

4

1209 (9th Cir. 1984). The Court has reviewed the noneconomic damages awarded in other

5

similar matters in Washington and in this District, including those cited by the Parties.

6

245.

Noneconomic damages do not need to be proven with mathematical certainty and

7

need only be supported by competent evidence. See, e.g., Pendergrast v. Matichuk, 355 P.3d

8

1210, 1217 (Wash. Ct. App. 2015) (affirming noneconomic damages award despite lack of

9

supporting testimony from healthcare professionals or lay witnesses other than plaintiff of her

10

anxiety and distress), aff’d, 379 P.3d 96 (Wash. 2016) (en banc). Noneconomic damages need

11

not be reduced to present cash value. WPI 34.02.

12

246.

Having considered the evidence, the Parties’ arguments, and awards in other

13

cases, the Court concludes that Mr. Lo is entitled to an award of noneconomic damages in the

14

amount of $200,000 for the pain and suffering caused by the Government’s negligence in the

15

2012 MVA as detailed above. This amount is sufficient to compensate Mr. Lo for the pain and

16

suffering connected to the day of the collision, his recovery period, and the remainder of his life.

17

This includes the physical pain Mr. Lo has suffered, the burdens and limitations placed on

18

Mr. Lo’s personal life and relationships, and the mental health issues and emotional anguish

19

Mr. Lo has suffered as a proximate result of the 2012 MVA.

20

247.

The Court awards Mr. Lo $200,000 for noneconomic damages.

21

2.

Economic Damages

22

248.

Economic damages are “objectively verifiable monetary losses, including medical

23

expenses, loss of earnings, . . . cost of obtaining substitute domestic services, loss of

24

employment, and loss of business or employment opportunities.” RCW 4.56.250(1)(a).
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1

249.

Pursuant to a prior order of the Court, Mr. Lo is precluded from recovering past

2

medical expenses. Dkt. No. 92.

3

a.
250.

4

Lost Wages, Lost Earning Capacity & Cost of Retraining

A plaintiff may recover lost wages or lost earning capacity for the period of time

5

he was disabled due to the injury, whether temporary or permanent. See Kubista v. Romaine, 538

6

P.2d 812, 815 (Wash. Ct. App. 1975) (explaining that lost wages is for temporary disability and

7

lost earning capacity is for permanent disability), aff’d, 549 P.2d 491 (Wash. 1976) (en banc);

8

see also Mendelsohn v. Anderson, 614 P.2d 693, 698 (Wash Ct. App. 1980) (Dore, J., concurring

9

in part, dissenting in part) (explaining that, generally, lost wages is for the past and lost earning

10

capacity is for after the trial). A plaintiff may also instead recover the cost of retraining required

11

to recover any lost earning capacity. See Kubista, 538 P.2d at 815.
251.

12
13

Any award for future economic damages, such as lost earning capacity, must be

reduced to present cash value. WPI 34.02.
252.

14

The Court finds that Mr. Lo suffered a temporary disability for approximately

15

three months as a result of the 2012 MVA due to his whiplash-related injuries and is entitled to

16

lost wages for that period of time.
253.

17

Mr. Lo failed to show, by a preponderance of the evidence, that he suffered any

18

other period of disability and related lost wages or lost earning capacity as a result of the 2012

19

MVA. 21 Notably, Mr. Lo’s earnings following the 2012 MVA did not differ significantly from

20

the years immediately prior to the accident; he even earned more in 2015, 2017, 2018, and 2019

21
22
23
24

While the Court finds that Mr. Lo continues to suffer from right upper extremities pain as a result of the 2012
MVA, Mr. Lo failed to show how much, if any, this specific pain (separate from the other injuries he complains of)
imposes a functional limitation such that his earning capacity has been impaired by it. As for Mr. Lo’s continued
psychological symptoms, Dr. Brown did not opine on any psychological limitations to Mr. Lo’s employability for
any period of time.
21

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1

than he had in 2011 or 2012. Mr. Lo also attested to his ability to work when he filed for

2

unemployment benefits starting in 2020.

3

254.

Further, Mr. Lo cannot recover for the cost of retraining, because he has already

4

demonstrated his ability to work in a semi-clerical position (particularly given his prior real

5

estate and insurance licenses and his ability to work for Ms. Tso as an office manager) without

6

retraining. He also has not demonstrated any loss in his earning capacity from the 2012 MVA.

7

255.

The determination of how much lost wages Mr. Lo is entitled to recover for the

8

three months of disability is not straightforward. Ms. Johnson opined that, prior to the 2012

9

MVA, Mr. Lo had the lost earning capacity of a general construction worker, at approximately

10

$50,838 a year. Mr. Berg disputed this opinion, opining that Mr. Lo’s earning capacity has been

11

consistently that of a minimum-wage worker, at approximately $28,000 a year. Both experts also

12

acknowledged that Mr. Lo’s pre-2012 employment history show that he was entrepreneurial and

13

did not reflect a steady income. At the time of the 2012 MVA, Mr. Lo had also taken time off to

14

stay home and take care of his children. Mr. Lo earned approximately $2,000 in 2011, 2012, and

15

2013 each.

16

256.

Based on these factors and other evidence presented by the Parties, the Court

17

finds that Mr. Lo suffered $600 of lost wages as a proximate result of the 2012 MVA. While

18

Mr. Lo may have had the capacity to work full-time prior to the 2012 MVA, Mr. Lo did not in

19

fact do so in the years leading up to the accident. And there is scant evidence to show that he

20

would have returned to full-time work but for the 2012 MVA. The “couple hundred” dollars

21

Mr. Lo earned from various side projects leading up to the 2012 MVA, however, show that he

22

would have continued to earn a similar income for approximately three months while he suffered

23

from whiplash-related symptoms following the 2012 MVA.

24
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1

257.

As the Government notes in its trial brief (Dkt. No. 136 at 11 n.3), federal law

2

requires that federal and state taxes be deducted from an award for lost compensation under the

3

FTCA. Shaw v. United States, 741 F.2d 1202, 1206 (9th Cir. 1984) (“A failure to do so will

4

result in the imposition of punitive damages against the government . . . .”).

5

258.

Neither Party presented any argument at trial regarding the income tax rate that

6

must be deducted for any damages award of lost earnings. Nonetheless, upon the Court’s own

7

review of the record, the Court deducts 13.3% from the award. See id. at 1207 (noting that trial

8

courts may not “simply ignore these calculations as speculative”).

9

259.

As an initial matter, Washington state does not have a personal income tax. Dep’t

10

of Revenue Wash. State, Income tax (last visited Feb. 8, 2023), https://dor.wa.gov/taxes-

11

rates/income-tax.

12

260.

Mr. Lo does not appear to have paid any federal income taxes in 2011 and 2012.

13

Mr. Lo’s tax records appear to show that he had a taxable income of $0 for both years (see D-167

14

at 11, 13), suggesting he paid no federal income tax. 22 The Government has not presented any

15

evidence to the contrary, nor that an award of $600 spread out over the two years would have

16

resulted in federal income tax deductions for Mr. Lo.

17

261.

However, a deduction for Mr. Lo’s self-employment tax liability is appropriate.

18

Mr. Lo was consistently self-employed in the years leading up to the 2012 MVA, and the Court

19

has found that his lost wages from the 2012 MVA are from “side projects” in construction that

20

he likely would otherwise have completed, similar to his earnings from 2011 and the remainder

21

of 2012. The Court takes judicial notice of the 13.3% federal self-employment tax rate (for self-

22
23
24

Mr. Lo’s tax returns for 2011 and 2012, which might have shown the income tax paid in these years, were not
submitted as part of the trial exhibits; instead, Exhibit D-167 contains Mr. Lo’s “Account Transcripts” from the IRS
showing certain high-level information, including the taxable income, about each tax year.

22

FINDINGS OF FACT &
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1

employment earnings at or below $106,800 in 2011 and $110,100 in 2012) in 2011 and 2012,

2

which is also consistent with the rate that Mr. Lo paid in 2011 and 2012 according to his tax

3

records. See IRS, Schedule SE (Form 1040) 2012, https://www.irs.gov/pub/irs-prior/f1040sse--

4

2012.pdf; IRS, Schedule SE (Form 1040) 2011, https://www.irs.gov/pub/irs-prior/f1040sse--

5

2011.pdf. Therefore, the Court deducts 13.3% from the $600 award. 23

6

262.

7

b.
263.

8
9
10

Accordingly, the Court awards Mr. Lo $520.20 for lost wages.
Future Medical Care (Life Care Plan)

To recover for future medical expenses, a plaintiff must establish the reasonable

value of necessary medical care, treatment, and services required in the future with reasonable
probability. WPI 30.07.02.
264.

11

An award for future medical expenses must be reduced to present cash value. See

12

WPI 34.02. The Parties have stipulated to the present cash value of each item in Ms. Johnson’s

13

life care plan. See D-175.
265.

14

The Court finds that Mr. Lo has shown, by a preponderance of the evidence, that

15

he is entitled to recover the cost of cervical radiofrequency ablations at a frequency of

16

approximately every six months for the next two years. The only physical pain caused by the

17

2012 MVA that he continues to suffer from is his right upper extremities pain, which the

18

Government concedes has been effectively treated by cervical radiofrequency ablations in the

19

past. See Dkt. No. 158 at 42 (“You know, we can see maybe continuing his ablations, as that’s

20

provided some relief to him. . . . [W]e’d present . . . seeing him every six months, getting his

21

ablations for the next two years or so . . . .”).

22
23
24

To the extent that the Court’s calculations are not correct, any miscalculations are de minimis given the size of the
award involved. See Johnson v. United States, No. C20-5581, 2022 WL 602172, at *4 (W.D. Wash. Mar. 1, 2022)
(holding that no tax liability deduction was necessary for $9,605 lost wages award in the absence of evidence, given
Shaw’s concerns about large awards in particular).
23

FINDINGS OF FACT &
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1

266.

Mr. Lo has not shown that he is entitled to any other future medical care.

2

267.

The Court places little to no weight on the remainder of the life care plan.

3

268.

First, Ms. Johnson heavily relied on Dr. Wright to develop her life care plan.

4

Dr. Wright’s testimony, however, was inconsistent with the life care plan. For example, he

5

testified that Mr. Lo will require: pain management and evaluation “every few months” for

6

“eight to nine years, maybe double that” (as opposed to every one to two months for the

7

remainder of Mr. Lo’s life, as reflected in the life care plan); six epidural steroid injections in the

8

next eight or nine years (as opposed to every four months for a minimum of one to two years);

9

and a stellate ganglion block once a year for eight or nine years (as opposed to every four months

10
11

for the remainder of Mr. Lo’s life).
269.

Second, even accepting that Ms. Johnson’s life care plan reflects Dr. Wright’s

12

ultimate opinions, Ms. Johnson’s life care plan is inconsistent with Mr. Lo’s prior treatment and

13

needs. For example, the life care plan calls for stellate ganglion blocks and cervical epidural

14

steroid injections for every four months (on average) for at least one to two years. D-175. But

15

Mr. Lo’s last stellate ganglion block occurred in March 2016, almost seven years ago, after

16

which Drs. Fosmire and Baker determined that there was no need for further stellate ganglion

17

blocks. Similarly, the last cervical epidural steroid injection that Mr. Lo received appears to have

18

been at least four years ago, with no serious indication that further injections are called for.

19

270.

Finally, Ms. Johnson failed to cite to or rely on sufficient evidence for her

20

estimation of costs for outsourcing Mr. Lo’s household services and yardwork, much less that

21

such costs are the result of injuries proximately caused by the 2012 MVA.

22
23
24

271.

Mr. Lo has failed to show that any future care is required to treat his mental

health. See Dkt. No. 129 at 25 (excluding mental health portions of life care plan).
272.

Accordingly, the Court awards Mr. Lo $3,776.00 for future medical expenses.

FINDINGS OF FACT &
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1

273.

To be clear, the Court does not find that Mr. Lo is fully functional at this time and

2

that he has no physical or mental limitations that require future treatment. The Court merely

3

finds that, based on the injuries that Mr. Lo has proven were more likely than not caused by the

4

2012 MVA (and not an alternate or unknown cause), Mr. Lo is entitled to these specific

5

damages. 24

6

3.

Mitigation of Damages

7

274.

The Government argues that Mr. Lo failed to mitigate his damages because he did

8

not regularly attend psychological counseling.

9

275.

The Court must reduce Mr. Lo’s damages to the extent that he failed to mitigate

10

his damages. Jaeger v. Cleaver Const., Inc., 201 P.3d 1028, 1037 (Wash. Ct. App. 2009); Cox v.

11

Keg Rests. U.S., Inc., 935 P.2d 1377, 1380 (Wash. Ct. App. 1997); see also RCW 4.22.005,

12

4.22.015 (proportional decrease for failure to mitigate). A plaintiff fails to mitigate his damages

13

if “there were alternative treatment options available to the plaintiff,” and “the plaintiff acted

14

unreasonably in deciding on treatment.” Fox v. Evans, 111 P.3d 267, 269 (Wash. Ct. App. 2005).

15

It is not unreasonable for a plaintiff to refuse treatment that offers only a possibility of relief. See,

16

e.g., Leeper v. City of Tacoma, No. C20-5467, 2021 WL 5182157, at *9 (W.D. Wash. June 10,

17

2021) (rejecting argument that plaintiff failed to mitigate her PTSD where she did not attend half

18

of her therapy sessions or seek reduced-cost therapy), report and recommendation adopted, 2021

19

WL 4452845 (Sept. 28, 2021), on appeal.

20

276.

The Government bears the burden of proof on this issue. See, e.g., Cox, 935 P.2d

21

at 1380; Bernsen v. Big Bend Elec. Co-op., Inc., 842 P.2d 1047, 1052 (Wash. Ct. App. 1993).

22

The Government has not met that burden.

23
24

24

The Court is also limited by prior orders excluding evidence. See, e.g., Dkt. Nos. 91, 92, 129.

FINDINGS OF FACT &
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1

277.

First, the Government failed to show that the mental health counseling Mr. Lo

2

refused would have been effective but for his failure to attend regularly. See, e.g., Palla v. L M

3

Sports, Inc., No. C16-2865, 2019 WL 6464621, at *9–10 (E.D. Cal. Dec. 2, 2019) (“Although

4

. . . the Court might like to see [Plaintiff] spend more time trying different modalities for physical

5

and emotional relief, . . . Defendant must also show that by engaging in these specific efforts,

6

[Plaintiff] would have, more likely than not, alleviated her injuries in some respect. This,

7

[Defendant] did not do.” (citation omitted)). While the Government has shown that, as a

8

statistical matter, therapy is often effective in treating PTSD and other psychological conditions

9

that Mr. Lo suffered from, the Government has not met its burden of showing that such services

10

would have been effective for Mr. Lo. Rather than showing improvement from the therapy,

11

Mr. Lo suffered an exacerbation of his mental health symptoms from the therapy he attended.

12

278.

The mental health counseling that Mr. Lo refused was also not effective because it

13

was not culturally competent, as Dr. Brown compellingly testified. Contrary to Dr. Bates’s belief

14

that cultural competency was never raised during Mr. Lo’s mental health treatment, Mr. Lo’s

15

testimony highlighted the negative stigmas and lack of knowledge in his native Hong Kong

16

culture surrounding mental health issues, and the same was echoed in his records. Relatedly,

17

there were linguistic barriers to Mr. Lo’s therapy—which appears to have been only offered in

18

English—given that at least one counselor noted difficulty in understanding Mr. Lo’s accented

19

English and Dr. Bates himself felt compelled to modify the administration of the MMPI on

20

Mr. Lo due to linguistic difficulties. The Government failed to prove that Mr. Lo was offered

21

counseling services that would have addressed these significant barriers to Mr. Lo’s treatment.

22

279.

Second, the Court finds that Mr. Lo did not act unreasonably in failing to

23

regularly attend therapy sessions. Mr. Lo attended a number of therapy sessions following the

24

2012 MVA and made multiple efforts to try therapy despite his aversion to it, including by
FINDINGS OF FACT &
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1

actively seeking a mental health referral on at least one occasion and seeing several different

2

counselors. Notably, Mr. Lo attended a number of counseling sessions at two different

3

institutions and with at least three different counselors over the course of several years. Mr. Lo

4

therefore made a good faith effort, under the circumstances, to attend therapy sessions.

5

280.

The Government points to no authority suggesting that a plaintiff must force

6

himself to treatment he cannot tolerate, and the Court declines to conclude as much here. See,

7

e.g., Pollard v. E.I. DuPont de Nemours, Inc., 338 F. Supp. 2d 865, 879 (W.D. Tenn. 2003) (“It

8

would also be unreasonable to require Plaintiff to undergo painful therapy that causes her further

9

discomfort, stress, anxiety, and depression with little chance of recovery.”), aff’d, 412 F.3d 657

10

(6th Cir. 2005). And, as Dr. Brown opined, Mr. Lo did not cause injury to himself by failing to

11

attend consistent therapy sessions.

12
13

281.

The Government has not shown, by a preponderance of the evidence, that Mr. Lo

failed to mitigate his damages.

14

282.

Accordingly, Mr. Lo’s damages are proportionately reduced by $0.00.

15

4.

Total Award & Judgment

16

283.

For the reasons explained above, the Court finds that Mr. Lo has proven his claim

17

of negligence by a preponderance of the evidence and that the Government failed to prove, by a

18

preponderance of the evidence, Mr. Lo’s failure to mitigate damages.

19
20

284.

Accordingly, the Court AWARDS Mr. Lo total overall damages of $204,296.20,

reflecting the following:

21

•

Past and future noneconomic damages: $200,000.00

22

•

Lost wages/lost earning capacity/cost of retraining: $520.20 (lost wages only)

23

•

Future medical care: $3,776.00

24

•

Damages arising out of 2014 lumbar laminectomy: $0.00

FINDINGS OF FACT &
CONCLUSIONS OF LAW - 51

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1

285.

No reduction of the damages is required as a result of Mr. Lo’s failure to mitigate.

2

286.

No reduction of the damages is required to meet the $300,000 cap set by Mr. Lo’s

3

original FTCA claim or the additional $1.7 million cap set by Mr. Lo’s amended FTCA claim in

4

connection with his lumbar laminectomy.

5

287.

6

entered separately.

7

The Court AWARDS Mr. Lo judgment against the Government, which shall be

Dated this 15th day of February 2023.

8

A

9

Tana Lin
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
FINDINGS OF FACT &
CONCLUSIONS OF LAW - 52