Gillis v. United States
Opinion
USCA1 Opinion
December 23, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1496
BEVERLY GILLIS,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, Magistrate Judge]
________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Frank J. Ciano for appellant.
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George B. Henderson, II, Assistant United States Attorney,
________________________
with whom A. John Pappalardo, United States Attorney, was on
____________________
brief for appellee.
____________________
____________________
BOWNES, Senior Circuit Judge. Plaintiff-appellant,
BOWNES, Senior Circuit Judge.
____________________
Beverly Gillis, sued the United States under the Federal Tort
Claims Act, 28 U.S.C. 2671-2680. Summary judgment on
liability was granted to plaintiff without opposition by the
defendant-appellee, United States. After trial, a magistrate
judge found that plaintiff's damages amounted to $12,000.
Dissatisfied with that sum, plaintiff appealed. There are
two issues before us: whether the trial court's finding of
damages was erroneous; and whether the trial court erred in
allowing defendant's expert witness to testify.
I.
I.
It is beyond cavil that findings of fact by the
trial court are subject to the "clearly erroneous" standard
of review. Fed. R. Civ. P. 52(a); Anderson v. Bessemer City,
________ _____________
470 U.S. 564, 573 (1985); American Title Ins. Co. v. East
________________________ ____
West Fin. Corp., 959 F.2d 345, 345-46 (1st Cir. 1992);
_________________
LoVuolo v. Gunning, 925 F.2d 22, 24-25 (1st Cir. 1991);
_______ _______
Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 152
________ ____________________________
(1st Cir. 1990).
We recapitulate the pertinent findings of the trial
court. Plaintiff was injured on May 10, 1988, when the rear
bumper of a mail truck "hooked" the front bumper of the
parked car in which she was sitting. Plaintiff testified
that she felt neck pain at the time. After driving her
brother home and picking up her daughter at school, plaintiff
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2
went to the hospital, was treated and discharged. Her pain
increased two or three weeks after the accident, and she was
referred to an orthopedic specialist.
In 1978 plaintiff injured her back at work. In
1984 or 1985 she fell down some stairs, injuring her back
again. In 1985 she experienced "severe" neck pain, without
any trauma, and was treated by a chiropractor.
Plaintiff offered the expert testimony of her
neurologist, Dr. Fullerton, via a videotape deposition. Dr.
Fullerton was her last treating physician. He ordered an
electromyogram (EMG) and magnetic resonance imaging (MRI).
Based on these procedures, Dr. Fullerton found that there was
no significant nerve defect, but that there was a slight
herniation of the C-4/C-5 disc. It was Dr. Fullerton's
opinion that the herniation and consequent pain was caused by
the accident involving the mail truck. Dr. Fullerton had not
been informed by plaintiff of the two prior accidents
involving her back or the trauma-absent neck pain she
experienced in 1986.
Defendant's expert witness was Dr. Logigian. He
had examined plaintiff, the EMG, and MRI reports, and was
advised of plaintiff's three prior injuries. It was Dr.
Logigian's opinion that plaintiff's pain was caused by the
herniated disc and the herniation was not caused by the mail
truck accident.
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3
The magistrate judge credited the testimony of
defendant's expert over that of plaintiff's. That, of
course, was a decision entirely within the court's
discretion.
The trial court stated:
In the circumstances, this court
cannot fairly conclude that all of
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plaintiff's medical bills, lost income,
or pain and suffering, [were] caused by
______
the negligence of the government. To be
sure, as argued by counsel for plaintiff,
a "wrongdoer [is] responsible for the
harmful results of the combined effects
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