1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 OSCAR SANDOVAL, ) Case No. CV 17-3092 DMG (SKx) ) 12 Plaintiff, ) ) FINDINGS OF FACT AND 13 v. ) ) CONCLUSIONS OF LAW 14 UNITED STATES OF AMERICA, ) ) 15 Defendant. ) ) 16 ) 17 18 This matter is before the Court following a two-day bench trial that took place on 19 January 14 and 15, 2020. Peter Bertling appeared on behalf of Plaintiff Oscar Sandoval. 20 Timothy Biché and Damon Thayer appeared on behalf of Defendant the United States. 21 Having carefully reviewed and considered the evidence and the arguments of counsel as 22 presented at trial, the Court issues the following findings of fact and conclusions of law 23 pursuant to Federal Rule of Civil Procedure 52. 24 In addition, on February 14, 2020, Defendant filed a Motion to Dismiss (“MTD”) 25 portions of Plaintiff’s Complaint as barred by the Inmate Accident Compensation Act 26 (“IACA”), 18 U.S.C. section 4126. [Doc. # 151.] The Court GRANTS in part and 27 DENIES in part Defendant’s MTD. 28 1 I. 2 MOTION TO DISMISS 3 Defendant argues that the IACA provides the exclusive remedy for Plaintiff’s claims 4 proximately caused by his work as an orderly while incarcerated at Federal Correctional 5 Institute (“FCI”) Safford, and that the Court therefore lacks subject matter jurisdiction over 6 those claims. MTD at 7 [Doc. # 151]. Inmates whose claims are subject to the 7 administrative remedies prescribed by the IACA are barred from recovery under the 8 Federal Tort Claims Act (“FTCA”). 29 C.F.R. § 301.319; see also United States v. Demko, 9 385 U.S. 149, 153 (1966) (barring a prisoner from seeking recovery for work-related 10 injuries under the FTCA because the IACA compensation scheme serves as “an adequate 11 substitute for a system of recovery by common-law torts”). The Ninth Circuit has 12 highlighted that the IACA remedy “is the sole source of compensation for the injury; its 13 remedy is exclusive.” Vander v. U.S. Dep’t of Justice, 268 F.3d 661, 663 (9th Cir. 2001). 14 In Vander, where a prisoner asserted that officials provided negligent medical care after he 15 aggravated a preexisting injury in his prison job, the Ninth Circuit held that “[w]hen a 16 prisoner is injured on the job, he cannot bring an action against the United States under the 17 FTCA for that injury or for negligence by United States agents regarding the treatment of 18 that injury.” Id. at 664. Though the Ninth Circuit has not explicitly stated that federal 19 courts have no subject matter jurisdiction over FTCA claims brought by prisoners for work- 20 related injuries, other circuits have. See Mays v. United States, 567 F. App’x 81, 82 (3d 21 Cir. 2014); Cabello v. United States, 427 F. App’x 398, 399 (5th Cir. 2011); Baynes v. 22 United States, 302 F. App’x 334, 336 (6th Cir. 2008). 23 In opposition, Plaintiff cites only an unpublished District of Minnesota case to argue 24 that the availability of IACA remedies for work-related injuries does not deprive federal 25 courts of jurisdiction over the FTCA claim, but rather “defines the remedies available to 26 Plaintiff.” Spivey v. United States, No. CIV. 11-1907 RHK (JJG), 2012 WL 3429397, at 27 *3 (D. Minn. July 23, 2012), report and recommendation adopted, No. CIV. 11-1907 RHK 28 (JJG), 2012 WL 3430270 (D. Minn. Aug. 15, 2012). Plaintiff argues that Defendant has 1 waived its arguments that Plaintiff cannot seek remedy in this Court and that his FTCA 2 claims related to contracting Valley Fever while working as an orderly should be 3 dismissed. Plaintiff does not contest that one of his negligence claims is specifically related 4 to his prison job but points to evidence that he could have contracted his disease when not 5 working. 6 This post-trial MTD comes far later than is generally acceptable. But the language 7 of 29 C.F.R. section 301.319, Demko, and Vander support Defendant’s argument that this 8 Court lacks subject matter jurisdiction over claims arising from injuries for which IACA 9 serves as the sole system of recovery, and subject matter jurisdiction cannot be forfeited or 10 waived. See United States v. Cotton, 535 U.S. 625, 630 (2002). It appears undisputed that 11 IACA provides the sole remedy for Plaintiff’s negligence claim based on the Bureau of 12 Prison’s failure to provide him a protective mask while he worked as an orderly. But 13 Plaintiff’s failure to warn claim is not predicated on a workplace injury and thus survives. 14 Accordingly, the Court GRANTS in part Defendant’s MTD and DISMISSES for lack of 15 subject matter jurisdiction Plaintiff’s negligence claim based on the failure to provide a 16 protective mask, and DENIES in part the MTD regarding the failure to warn claim. 17 II. 18 FINDINGS OF FACT1 19 A. Background 20 1. On February 1, 2006, Plaintiff was convicted on one count of Importation of 21 Methamphetamine, in violation of 21 U.S.C. sections 952, 960, and one count of 22 Possession of Methamphetamine with Intent to Distribute, in violation of 28 U.S.C. section 23 841(a)(1). As a result of these convictions, Plaintiff was committed to the custody of the 24 Bureau of Prisons (“BOP”) for a term of 240 months. Final Pretrial Conference Order 25 (“FPTCO”) at ¶ 5(a) [Doc. # 143]. 26
27 1 To the extent that any of the Court’s findings of fact may be considered conclusions of law or 28 vice versa, they are so deemed. 1 2. From July 23, 2014 until October 29, 2015, Plaintiff was incarcerated at the 2 FCI in Safford, Arizona (“FCI Safford”). Id. at ¶ 5(c). 3 3. Since November 30, 2015, Plaintiff has been incarcerated at the FCI in 4 Lompoc, California (“FCI Lompoc”). Id. at ¶ 5(c). 5 4. FCI Safford is a low security federal prison with a population of 6 approximately 950 male inmates. 7 5. At all times relevant to this case, it was designated a “Care Level 1” facility, 8 which means that mostly healthy inmates with limited medical needs are incarcerated there. 9 Id. at ¶ 5(g). 10 6. Susan McClintock was the Warden at FCI Safford between 2012 and 11 December 2014. Id. at ¶ 5(n). 12 7. FCI Safford is located in Graham County, Arizona, which is endemic for the 13 naturally occurring soil fungus Coccidioides immitis and Coccidioides posadasii, 14 hereinafter referred to as Cocci. Id. at ¶ 5(d), (f). 15 8. Cocci causes an illness known as Coccidioidomycosis, or “Valley Fever.” Id. 16 at ¶ 5(d). 17 9. Cocci spores typically enter the body through the respiratory system. Id. at 18 ¶ 5(e). 19 10. In an endemic area where there have been reported cases of Valley Fever, all 20 dust is suspect because there are no definitive ways to identify or measure airborne Cocci 21 spores. Trial Day 1 Tr. at 60:1-3; 66:8-14 [Doc. # 152]. 22 11. Most people who are exposed to Cocci spores do not become notably ill. 23 FPTCO at ¶ 5(h). 24 12. More than 60 percent of persons infected by Cocci experience no illness or 25 symptoms at all. Id. at ¶ 5(i). 26 13. Of the approximately 40 percent of infected persons who do exhibit 27 symptoms, the vast majority experience a brief illness that may include manifestations such 28 as fever, rash, and headache. Id. at ¶ 5(j). 1 14. In approximately one percent of people who become infected, Cocci can 2 “disseminate” out of their lung and spread to other parts of their bodies, such as their skin, 3 and cause serious lifelong health problems and even be fatal. Id. at ¶ 5(k); Trial Day 1 Tr. 4 at 93:16-20; Lynn Fitzgibbons Decl. at ¶ 9 [Doc. # 121-1]. 5 15. There are eight factors that increase the chance of a person getting Valley 6 Fever: (1) residence within endemic areas (longer times increases risk); (2) travel within 7 endemic areas (longer time increases risk); (3) no previous history of infection (successful 8 recovery from Valley Fever, even mild cases, imparts some immunity to further infection); 9 (4) exposure to dust containing Cocci spores, as a result of incidental circumstances, 10 occupation, recreation, or lifestyle; (5) duration of time spent outdoors; (6) duration of time 11 spent in dusty conditions (inhalation of larger numbers of Cocci spores has been associated 12 with more severe cases of Valley Fever); (7) activities (and duration of time) that involve 13 intensive contact with soil in endemic areas; (8) exposure to fomites derived from endemic 14 areas. Peter Jaramillo Decl. at ¶ 14 [Doc. # 121-2]. 15 16. The more Cocci spores a person inhales, the greater the risk that person has 16 of developing a more severe form of Valley Fever, including the disseminated form of the 17 disease. Trial Day 1 Tr. at 68:13-16, 94:2-17; 100:9-16; Fitzgibbons Decl. at ¶ 9. 18 17. But if a person has only a mild form of Valley Fever, that person is at a lower 19 risk of getting Valley Fever again. Trial Day 2 Tr. at 176:12-16 [Doc. # 153]. The 20 reactivation rates when medications are stopped are about 30 percent. Antonino Catanzaro 21 Decl. at ¶ 28 [Doc. # 127-1]. 22 18. There is no known cure for Cocci, which is primarily treated by oral azoles, a 23 category of anti-fungal agents. Id. at ¶ 27. 24 19. Experts recommend wearing a properly fitted N95 mask to minimize exposure 25 to Cocci spores. Trial Day 1 Tr. at 99:3-16. A properly fitted N95 mask can reduce chances 26 of inhaling spores between 90 to 95 percent. Jaramillo Decl. at ¶ 22. 27 28 1 20. Experts also recommend avoiding windy conditions and staying indoors to 2 avoid dust exposure, though spores can also be present in the air under any conditions. 3 Trial Day 1 Tr. at 101:16-102:23; 104:13-24. 4 21. The Centers for Disease Control and Prevention, the Hazard Evaluation 5 System & Information Center, and the Arizona-based Valley Fever Center for Excellence 6 provide information and educational materials regarding Coccidioidomycosis. This 7 information includes simple, common sense measures that an individual can take to avoid 8 inhalation of cocci spores, including (1) avoiding windy conditions and staying inside with 9 the windows and doors closed, (2) avoiding areas where they will be exposed to dust or 10 dirt, (3) wearing an N95 respirator mask to help filter fungal spores out of the air that they 11 breathe, and (4) avoiding recreational or work-related activities that expose them to cocci 12 spores. Jaramillo Decl. at ¶ 18. 13 22. On October 1, 2013, Dr. Newton Kendig, then the BOP’s Assistant Director 14 of Health Services Division, sent a memo to all BOP Wardens entitled: “Staff and inmate 15 awareness of the infectious disease known as ‘Valley Fever.’” FPTCO at ¶ 5(l). 16 23. The memo specifically listed FCI Safford as a facility where “[a]ll inmates 17 must also be made aware of, and periodically reminded of, the signs and symptoms of 18 Valley Fever as well as accessing health services for evaluation and treatment.” Pl.’s Trial 19 Ex. 2. 20 24. The memo states that Valley Fever is a fungal infection caused by breathing 21 in fungus from soil and that the fungus may be inhaled due to “heavy winds, excavation, 22 or any activity that leads to dust formation,” and it lists the symptoms. In addition, it notes 23 that the disease may go away without treatment, but that people with disseminated disease 24 have a high death rate. Id. 25 25. Dr. Kendig testified that the BOP expected that staff at FCI Safford would 26 have been aware of Cocci epidemiology and prevention. Newton Kendig Dep. at 30:03- 27 22 [Doc. # 123-1]. 28 1 26. The memo included a “Lesson Plan” which sets forth the information 2 regarding Valley Fever that he wanted all inmates at FCI Safford to know. FPTCO at 3 ¶ 5(m). 4 27. Prior to his diagnosis, Plaintiff was not warned of the risk of contracting Cocci 5 while at FCI Safford. Id. at ¶ 5(q); see Oscar Sandoval Decl. at ¶¶ 7-15. 6 28. FCI Safford had protective masks available that could be used as respiratory 7 protection for inmates who were required to work in a job that exposed them to significant 8 quantities of dust. FPTCO at ¶(o). 9 29. Plaintiff never requested a protective mask while he worked as an orderly at 10 FCI Safford, and he was not provided one. Id. at ¶ 5(r). 11 30. Although Plaintiff’s expert Jaramillo was not aware of studies showing that 12 training or education has an effect on the Valley Fever infection rate specifically, he 13 testified that as an industrial hygienist who had trained people to use personal protective 14 equipment and avoid exposing themselves to danger, he had obtained very good results. 15 Id. at 63:7-11. 16 31. Jaramillo also testified that training and education are important so that if 17 patients start experiencing symptoms of Valley Fever, they can understand the symptoms 18 and report them early, and medical staff can address the disease and symptoms. Id. at 19 64:11-24. Such early treatment and monitoring would help a patient get treatment before 20 they begin to have more severe symptoms of disseminated Cocci. Id.; see also id. at 98:2- 21 19. 22 32. Due to the absence of adequate education and warnings regarding 23 Coccidioidomycosis and Defendant’s failure to comply with the directives in Dr. Kendig’s 24 memo, Plaintiff lost several opportunities to protect himself from massive inhalation of 25 dust, some of which must have contained the Cocci spores which caused his Valley Fever. 26 Jaramillo Decl. at ¶¶ 10-14. 27 28 1 B. Plaintiff’s Diagnosis and Illness 2 33. When Plaintiff was admitted to FCI Safford, he was found free of respiratory 3 disease and was in overall good health, with no chronic diseases or prior mental health 4 conditions. Sandoval Decl. at ¶¶ 5-6; Catanzaro Decl. at ¶ 33. 5 34. Plaintiff’s initial work assignment at FCI Safford was as an orderly, which 6 required him to clean and dust parts of the prison for 8.5 hours every Monday through 7 Friday. Sandoval Decl. at ¶ 17. 8 35. According to Plaintiff, dust and dirt accumulated in FCI Safford’s inner 9 compound, inmate dorm rooms, walkways, and bathrooms, due to construction, open air 10 facilities, gaps underneath his dorm door, and windy conditions. Id. at ¶¶ 17-26.2 11 36. In November 2014, Plaintiff presented himself to the FCI Safford medical 12 department with a cough, shortness of breath, chest pain, and rashes on his face, hands, and 13 feet. Id. at ¶ 27. 14 37. By December 2014, Plaintiff’s symptoms had worsened, and he was 15 diagnosed with pneumonia. Id. at ¶ 28. His symptoms improved by the next week. 16 Catanzaro Decl. at ¶ 36. 17 38. Over the next several months, Plaintiff’s symptoms recurred. He was very 18 concerned about his health and continued to seek medical attention at FCI Safford for his 19 cough, shortness of breath, wheezing, rashes, chest pains, and fatigue. Sandoval Decl. at 20 ¶¶ 29-31. 21 39. In March 2015, Plaintiff was diagnosed with Cocci through an 22 immunodiffusion test and began taking Fluconazole. FPTCO at ¶ 5(p); Catanzaro Decl. at 23 ¶ 42. 24 25
26 2 At trial, the Court sustained Defendant’s objections to Plaintiff’s statements about the 27 construction or design of FCI Safford, claims about which the Court found barred by the FTCA’s discretionary function exemption, and Plaintiff’s statements about geographical conditions, on which 28 Plaintiff is not an expert. The Court does not rely on those statements in its factual finding. 1 40. Plaintiff was the only inmate at FCI Safford diagnosed with Valley Fever in 2 2015. FPTCO at ¶ 6(a). 3 41. At times, FCI Safford’s pharmacy did not have Fluconazole available, and 4 Plaintiff was not given the medication prescribed. Sandoval Decl. at ¶ 33. 5 42. He continued to see various medical staff regarding his persistent symptoms, 6 including headaches. Id. at ¶¶ 34-35, 39, 41, 44. 48. 7 43. In November 2015, Plaintiff was transferred to FCI Lompoc, where he is 8 currently incarcerated. 9 44. He took Fluconazole through 2016 whenever it was available. Id. 50. 10 45. Due to anxiety and trouble managing emotions, he saw a psychologist for the 11 first time in July 2017. Id. at ¶ 51. 12 46. On August 22, 2017, Dr. James Pelton referred Plaintiff for an infectious 13 disease consultation with a provisional diagnosis of disseminated cocci while taking 400 14 milligrams of Fluconazole. Fitzgibbons Decl. at ¶¶ 5, 10. 15 47. On September 13, 2017, Dr. Lynn Fitzgibbons, an infectious disease 16 specialist, saw Plaintiff, who complained of fever, chills, shortness of breath, cough, chest 17 pain, abdominal pain, and bloody stools. Id. at ¶ 12. 18 48. Plaintiff was terrified about his medical condition and needed a significant 19 amount of counseling and reassurance. Dr. Fitzgibbons provided him with information 20 regarding Cocci infections. Id. 21 49. Dr. Fitzgibbons was not yet sure of a diagnosis of disseminated Cocci and 22 increased Plaintiff’s dose of Fluconazole from 400 to 800 milligrams. She also ordered 23 several laboratory tests and a chest CT scan to stage his infection, though those tests were 24 delayed. Id. at ¶¶ 14-15, 19. 25 50. On December 27, 2017, Dr. Fitzgibbons received chest CT scan results 26 showing Plaintiff had two 3mm nodules in his lower lung. Id. at ¶¶ 21-22; see Catanzaro 27 Decl. at ¶ 65 (showing the results of an October 2016 chest x-ray indicating possible 3 mm 28 lung nodule and a November 2017 CT scan showing 2-3 mm lung nodules). 1 51. Dr. Fitzgibbons also ordered tests for rheumatologic diseases and decreased 2 Plaintiff’s Fluconazole dose back to 400 milligrams. Fitzgibbons Decl. at ¶¶ 21-22. 3 52. In January 2018, Plaintiff was taken off Fluconazole and appeared to develop 4 a recurrence of his Cocci infection. Id. at ¶¶ 23-24. 5 53. Several months later, he resumed taking Fluconazole, but at 600 milligrams. 6 Id. at ¶ 24; Trial Day 1 Tr. at 36:3-7. 7 54. On July 18, 2018, the next time Dr. Fitzgibbons saw Plaintiff, Plaintiff had 8 fatigue, cough, joint pain, muscle pain, shortness of breath, chest pain, and three 2- 9 millimeter papules on his left hand typical of disseminated Cocci. Fitzgibbons Decl. at 10 ¶ 24-25. 11 55. She felt that his symptoms had already been alleviated by restarting 12 Fluconazole several months before. Trial Day 1 Tr. at 25:22-26:6; 36:3-23. 13 56. Based on this recurrence of disease, skin lesions, and Plaintiff’s several years 14 of other symptoms, Dr. Fitzgibbons confirmed Plaintiff’s diagnosis of disseminated Cocci. 15 Id. at 36:13-23; 37:2-3. 16 57. Dr. Fitzgibbons also testified that Plaintiff’s complement fixation (CF) titer, 17 a test for the activity of an infection caused by Cocci, supported her clinical diagnosis of 18 disseminated Cocci. Id. at 44:1-17. Plaintiff’s CF titer results were at times as high as 19 1:16, which is the level Dr. Fitzgibbons said she would start to worry about disseminated 20 disease. Id. at 44:4-7; see also Catanzaro Decl. at ¶ 64 (showing Plaintiff’s CF titer 21 measurements at 1:16 on in February and August 2017 and May 2018). But see Catanzaro 22 Decl. at ¶ 24 (stating that generally, higher CF titer results of 1:32 and greater indicate 23 dissemination). 24 58. On October 17, 2018 and March 27, 2019, Dr. Fitzgibbons again saw Plaintiff, 25 who reported no recurrence of fever, chest pains, cough, or skin lesions, though he 26 complained of mild intermittent joint pain which Dr. Fitzgibbons believes was related to 27 his disseminated Cocci. Trial Day 1 Tr. at 26:19-24, 27:16-17; Fitzgibbons Decl. at ¶¶ 26, 28 28. 1 59. Dr. Fitzgibbons saw Plaintiff’s minimal symptoms as evidence that his 2 treatment with Fluconazole was adequately treating his infection and that his disease was 3 under control. Trial Day 1 Tr. at 27:3-10, 27:18-28:1. 4 60. Plaintiff last saw Dr. Fitzgibbons on October 9, 2019, and he reported no new 5 cough, skin lesions, headaches, or other symptoms. Id. at 28:5-18. 6 61. Though Plaintiff has experienced some headaches, Dr. Fitzgibbons has not 7 found any indications that Plaintiff’s Cocci has disseminated to his central nervous system, 8 in which case his life expectancy could be as short as less than one year after diagnosis. 9 Id. at 29:14-18; 33:24-34:4. 10 62. Dr. Fitzgibbons believes that Plaintiff will indefinitely require the following 11 medically necessary treatment for his Cocci infection: (1) Plaintiff should remain on 400 12 to 600 milligrams of daily Fluconazole; (2) Plaintiff should see an infectious disease 13 specialist at least every 3-6 months or sooner if there is any worsening of his Cocci 14 symptoms; (3) Plaintiff should have a slate of Cocci-related tests performed every three 15 months; (4) Plaintiff should follow up with his primary care physician or infectious disease 16 specialist every three months to review the results of his lab studies and be examined; 17 (5) Plaintiff may need radiographic studies, including chest x-rays or CT scans if his 18 symptoms worsen; and (6) Plaintiff may need a lumbar puncture if he develops any 19 significant symptoms of neck pain or headaches. Fitzgibbons Decl. at ¶ 34. 20 63. Patients taking Fluconazole daily, without interruption, are unlikely to suffer 21 future complications from Cocci, such as central nervous system vasculitis or other 22 infections. Trial Day 1 Tr. at 32:3-9. 23 64. If patients with disseminated Cocci are taken off medication, they are at risk 24 of reactivation of their disease and future complications. Id. at 30:23-31:6. 25 65. Dr. Fitzgibbons believes that Plaintiff is unlikely to develop further 26 complications if he continues to follow her recommended treatment plan, including daily 27 Fluconazole. Id. at 32:3-16. 28 1 66. It is still possible, however, for a patient to develop symptoms despite taking 2 Fluconazole daily, particularly if he has disseminated Cocci. Id. at 45:14-16, 46:8-47:1. 3 67. Each of the eight factors contributing to increased risk of contracting Cocci, 4 except the one that applies to activities involving digging, such as archaeological digs, 5 applied to Plaintiff. Id. at 57:10-18. 6 68. If Plaintiff had been made aware of the existence of Cocci, how to prevent 7 inhaling it, and how to diagnose and treat Valley Fever, he would have taken preventative 8 or precautionary measures. Sandoval Decl. at ¶¶ 10-12, 14-15. 9 C. Plaintiff’s Damages 10 69. Plaintiff experienced severe and distressing symptoms including abdominal 11 pain, bloody stools, fever, chills, shortness of breath, chest pain, coughing, coughing 12 bloody sputum, wheezing, extreme fatigue, rash, some headaches, joint pain, and muscle 13 pain between November 2014, when he initially presented to FCI Safford’s medical staff 14 with symptoms, and September 13, 2017, when he first saw Dr. Fitzgibbons upon Dr. 15 Pelton’s recommendation. Id. at ¶¶ 29-53; Fitzgibbons Decl. at ¶ 12.3 16 70. Plaintiff was concerned and even terrified about his health in that period. Id. 17 at ¶¶ 52-53. 18 71. Plaintiff began to have trouble managing his emotions and became short 19 tempered, and he saw a psychologist for the first time in July 2017. Id. at ¶ 51. 20 72. On and off from November 2017 to October 2019, Plaintiff experienced 21 cough, chest pain, fatigue, rash, and headaches. Id. at ¶ 55-67. 22 73. Plaintiff was particularly concerned that his disseminated Cocci could spread 23 to his brain and be fatal. Id. at ¶ 61. 24 25 26
27 3 The Court does not rely on paragraphs 37-38, 40, 42-43, 46, and 47 of Plaintiff’s declaration, 28 which are excluded by the Court’s ruling on Defendant’s Motion in Limine No. 1. [See Doc. # 106.] 1 74. Plaintiff’s symptoms have subsided since July 2019, but his cough flares up 2 in cold weather. He occasionally experiences uncontrollable coughs and chest and lung 3 pain. Id. at ¶ 67. 4 75. In addition, Plaintiff currently experiences chronic fatigue. Protracted fatigue 5 is a frequent symptom of Cocci and often persists for many patients as their major 6 complaint long after all evidence of the infection is gone. He asserts that the constant 7 fatigue makes it difficult for him to focus and stand up in his barber job. Id. at ¶ 69. 8 76. At one point, Plaintiff was restricted from playing all sports. Trial Day 2 Tr. 9 at 172:7-8. 10 77. He has also experienced emotional distress, anxiety, and bouts of depression. 11 Sandoval Decl. at ¶ 71. 12 78. Plaintiff’s criminal history is as follows. He was first arrested in January 13 1989 for receiving stolen property and served a few months in juvenile hall. Trial Day 1 14 Tr. at 71:24-13. He was arrested in January 1992 for assault, convicted, and served 18 15 months in a state prison. Id. at 73:14-23. He was arrested in August 1993 for burglary, 16 convicted, and sentenced to six years in prison. Id. at 73:24-76:2. He was arrested in May 17 2005 for importing a controlled substance, convicted, and sentenced to 240 months in 18 federal prison—the sentence he is currently serving and which is scheduled to be completed 19 on October 15, 2022. Id. at 76:3-13; see Jerald Udinsky Decl. at ¶ 10 [Doc. # 124-6]. In 20 2008, he pleaded guilty to possession for sale of a controlled substance, for which he will 21 serve an additional 16 months in California state prison after he completes his current 22 federal sentence. Trial Day 1 Tr. at 76:17-77:5. 23 79. Accordingly, Plaintiff likely will not be released from prison until March 24 2024. Roger Thrush Decl. at ¶ 21 [Doc. # 124-3]. 25 80. Plaintiff has limited work history. He did not attend school after the age of 26 15, and December 2003 was the last time he held a job. Trial Day 1 Tr. at 77:6-20. During 27 his incarceration, he trained himself to work as a barber and did work as an unlicensed 28 barber for 12 years. Id. at 77:21-78:4; 113:9-12. 1 81. To become a licensed barber after he completes his federal and state 2 sentences, Plaintiff would need to spend two years acquiring a California barber’s license, 3 which involves getting a pre-clearance approval from the California Board of Barbering 4 and Cosmetology due to Plaintiff’s prior incarceration and passing an exam. Id. 114:7- 5 115:4; Thrush Decl. at ¶ 27. 6 82. There is no medical evidence that Plaintiff will have a permanent reduction in 7 earning capacity. Udinsky Decl. at ¶ 14. Dr. Fitzgibbons did not form an opinion about 8 whether Plaintiff should be working limited hours. Trial Day 1 Tr. at 29:19-22 [Doc. # 9 152]. 10 83. Plaintiff’s expert Jennie McNulty’s calculation of his future earnings did not 11 take into account the potential of recidivism, the negative impact of his criminal history on 12 future employment, the fact that he will not be released from prison until 2024, the time he 13 would need in training before becoming a barber or welder; and his lack of comparable 14 employment history to average high school diploma holders in his demographic. Trial Day 15 2 Tr. at 145:12-149:24 [Doc. # 153]; Udinsky Decl. at ¶¶ 10-18, 27-28, 30-31; Thrush Decl. 16 at ¶¶ 32-40, 44-48. 17 84. Given Plaintiff’s lack of employment history and the many uncertainties 18 about his job prospects after his release from prison, the Court finds that Plaintiff’s future 19 earnings are too speculative and does not adopt any expert’s calculation of future economic 20 loss. 21 85. Plaintiff’s expert McNulty calculated his future medical costs as the costs of 22 premiums and out-of-pocket expenses Plaintiff would occur if he had a Gold or Platinum 23 HMO or PPO that covered primary care and specialist physician visits, diagnostic and 24 imaging testing, Tier 1 through Tier 4 prescription drugs, outpatient facility and surgeon 25 fees, emergency room care, hospitalization facility and surgeon fees, and recovery care 26 needs, such as home health care and rehabilitation services. McNulty assumed that 27 Plaintiff’s future care needs related to his Valley Fever would be covered under these 28 insurance policies. Jennie McNulty Decl. at ¶ 9 [Doc. # 125-1]. 1 86. Given Plaintiff’s need for daily medication, frequent check-ups and exams, 2 and potential for more intensive treatment if his disseminated Cocci flares up or spreads, 3 the premiums and out-of-pocket payments of a comprehensive health insurance plan that 4 covers all of Dr. Fitzgibbons’ recommendations approximates Plaintiff’s future medical 5 expenses. 6 87. McNulty used the monthly premiums from four insurance plans on the 7 Covered California website to calculate the annual premium for each plan and added the 8 average out-of-pocket expenses for each plan. She calculated his expenses for paying those 9 insurance premiums and out-of-pocket costs for the rest of his statistical life, which is until 10 April 2054. She assumed the amount per year for the rest of his life would be that same 11 annual expense and applied a discount rate of 2.5 percent. McNulty Decl. at ¶ 9; Trial Day 12 2 Tr. at 154:3-5. 13 88. She did not consider his eligibility for Medicare at the age of 65 or Medi-Cal 14 in her calculation of future medical expenses. Trial Day 2 Tr. at 151:14-152:1. 15 89. Plaintiff was born on January 23, 1975 and will be 49 years old by the time 16 he is released from prison in March 2024. Sandoval Decl. at ¶ 1. 17 90. Because he will be eligible for Medicare at age 65, Plaintiff will need to pay 18 annual insurance premiums and out-of-pocket costs for 16 more years in order to cover his 19 future medical expenses associated with Valley Fever. 20 91. Using Plaintiff’s expert’s methodology, purchasing LA Care Health Plan’s 21 Gold HMO, until Plaintiff turns 65, at the rates for a 49-year-old male in Los Angeles, with 22 a discount rate of 2.5 percent, in present value costs $78,624.01. 23 III. 24 CONCLUSIONS OF LAW 25 A. Federal Tort Claims Act 26 1. Plaintiff asserts a single cause of action under the FTCA not barred by the 27 IACA: that Defendant was negligent because it failed to warn Plaintiff regarding the 28 dangers of Cocci at FCI Stafford. 1 2. No FTCA exception bars Plaintiff’s failure to warn claim. See Order re Mot. 2 for Summ. J. at 14 [Doc. # 98]. 3 3. In an action brought pursuant to the FTCA, 28 U.S.C. § 2671 et seq., the law 4 of the place where the allegedly negligent act occurred governs the substantive law applied. 5 See 28 U.S.C. § 1346(b). 6 4. In this case, Arizona law applies because all of the acts or omissions alleged 7 in Plaintiff’s Complaint took place in Arizona. 8 5. To have a cognizable claim under the FTCA, the claim must arise from the 9 negligent or wrongful act of a government employee acting within the scope of his or her 10 employment “under circumstances where the United States, if a private person, would be 11 liable to the claimant in accordance with the law of the place where the act or omission 12 occurred.” 28 U.S.C. § 1346(b); Dalehite v. United States, 346 U.S. 15, 18 (1953). 13 6. Under the FTCA, the United States is liable in the same manner and to the 14 same extent as a private individual under like circumstances, but shall not be liable for 15 interest prior to judgment or for punitive damages. 28 U.S.C. § 2674. 16 7. To establish a claim for negligence under Arizona law, a plaintiff must prove 17 by a preponderance of the evidence “(1) a duty requiring the defendant to conform to a 18 certain standard of care; (2) a breach by the defendant of that standard; (3) a causal 19 connection between the defendant’s conduct and the resulting injury; and (4) actual 20 damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007) (en banc); see Pfeil v. Smith, 21 183 Ariz. 63, 65 (Ct. App. 1995) (“In a civil action, the burden of proof is by the 22 preponderance of the evidence[.]”). 23 B. Duty of Care 24 8. Under Arizona law, “[t]he general rule of liability for an owner or occupier to 25 business invitees requires one ‘to discover and correct or warn of hazards which the 26 possessor should reasonably foresee as endangering an invitee.’” Robertson v. Sixpence 27 Inns of Am., Inc., 163 Ariz. 539, 544 (1990) (en banc) (quoting Markowitz v. Az. Parks 28 1 Bd., 146 Ariz. 352, 355 (1990)); see also Revised Arizona Jury Instruction (Civil), 6th: 2 Premises Liability 1: Notice of Unreasonable Dangerous Condition. 3 9. The relationship between jailer and prisoner is also recognized as a special 4 relationship giving rise to a duty. See Bloxham v. Glock Inc., 203 Ariz. 271, 274 (Ct. App. 5 2002). 6 10. The duty to protect between a jailer and prisoner is informed by a state or 7 federal statute “reflecting public policy,” which “may create a duty when a plaintiff ‘is 8 within the class of persons to be protected by the statute and the harm that occurred . . . is 9 the risk that the statute sought to protect against.’” Quiroz v. ALCOA Inc., 243 Ariz. 560, 10 565 (2018) (quoting Gipson, 214 Ariz. at 146). 11 11. The federal statute, 18 U.S.C. section 4042(a), states that the BOP shall 12 “provide suitable quarters and provide for the safekeeping, care, and subsistence of all 13 persons charged with or convicted of offenses against the United States, or held as 14 witnesses or otherwise” and “provide for the protection . . . of all persons charged with or 15 convicted of offenses against the United States.” 18 U.S.C. §§ 4042(a)(2)-(3). 16 12. This broad duty prescribed by sections 4042(a)(2) and (a)(3) “encompasses a 17 duty to warn of the reasonably foreseeable risk of Cocci exposure.” Order re Mot. for 18 Summ. J. at 16 [Doc. # 98]. 19 13. Defendant thus owed a duty to warn Plaintiff based on the BOP and Plaintiff’s 20 special relationship as jailer-prisoner and the BOP’s statutory duty of care. 21 C. Breach of Duty 22 14. “The general test for whether a defendant’s conduct breached the standard of 23 care is whether a foreseeable risk of injury existed as a result of defendant’s conduct.” 24 Robertson, 163 Ariz. at 544. 25 15. That Plaintiff or another inmate could contract Valley Fever in an facility 26 located in an area endemic for Cocci is foreseeable. In fact, the contents of Dr. Kendig’s 27 October 2013 Memo evince Defendant’s actual knowledge that prisoners at FCI Safford 28 and other prisons in endemic areas are at higher risk for Cocci infection. 1 16. It was therefore unreasonable for FCI Safford staff to fail to execute the BOP’s 2 own directive in the October 2013 Memo to educate staff and inmates about the origins, 3 symptoms, and dangers of Cocci. 4 17. Defendant breached its duty to warn Plaintiff of the foreseeable risk of Cocci 5 exposure at FCI Safford. 6 D. Causation 7 18. The parties disagree on the appropriate standard of causation to apply. See 8 Pl.’s Supp. Br. [Doc. # 113]; Def.’s Response [Doc. # 117]. 9 19. Plaintiff requests that the Court apply the “loss of chance” doctrine, which 10 provides that: 11 One who undertakes . . . to render services to another which he should 12 recognize as necessary for the protection of the other’s person or things, is 13 subject to liability to the other for physical harm resulting from his failure to 14 exercise reasonable care to perform his undertaking, if (a) his failure to 15 exercise such care increases the risk of such harm . . . . 16 Thompson v. Sun City Cmty. Hosp., Inc., 141 Ariz. 597, 608 (1984) (quoting Restatement 17 (Second) of Torts § 323). 18 20. In Thompson, the Arizona Supreme Court held that “even if the evidence 19 permits only a finding that the defendant’s negligence increased the risk of harm,” the jury 20 could still decide whether there is a probability that the defendant’s negligence was a cause 21 in fact of the plaintiff’s injury. 141 Ariz. at 606. The Court held, therefore, 22 that because the protection of the chance interest was within the range of the 23 duty breached by defendant and the harm which followed was the type from 24 which the defendant was to have protected the plaintiff, the jury may be 25 allowed to consider the increase in the chance of harm on the issue of 26 causation. If the jury finds that defendant’s failure to exercise reasonable care 27 increased the risk of the harm he undertook to prevent, it may from this fact 28 find a “probability” that defendant’s negligence was the cause of the damage. 1 Id. 2 21. Thompson did not specifically limit the loss of chance doctrine to medical 3 malpractice cases. Lohse v. Faultner, 176 Ariz. 253, 261 (Ct. App. 1992). 4 22. The Thompson court made clear, however, that this lowered threshold to reach 5 a jury on causation applied only to “the limited class of cases in which defendant undertook 6 to protect plaintiff from a particular harm and negligently interrupted the chain of events, 7 thus increasing the risk of that harm.” 141 Ariz. at 608. 8 23. Here, by undertaking to protect prisoners and issuing guidance regarding 9 Valley Fever education and prevention to all BOP Wardens, Defendant is subject to 10 liability to Plaintiff for physical harm resulting from its failure to exercise reasonable care 11 to warn of Cocci if its failure to exercise such care “increase[d] the risk” of Plaintiff 12 contracting disseminated Cocci. 13 24. While the overall chance of contracting Cocci is low, Plaintiff was 14 consistently exposed to Cocci throughout his time at FCI Safford and was not made aware 15 of what Cocci was or how he could mitigate his risk. 16 25. Because Plaintiff was unaware that he could contract Cocci through inhalation 17 and did not take added precautions, he inhaled more Cocci spores. 18 26. Because he inhaled more Cocci spores, he was more susceptible to the 19 disseminated form of the disease. 20 27. Defendant attempted to warn Plaintiff of the dangers of Cocci via the October 21 2013 Memo’s directives to the Warden of FCI Safford, but FCI Safford’s failure to comply 22 with those directives and to warn Plaintiff “negligently interrupted th[at] chain of events.” 23 141 Ariz. at 608. 24 28. Defendant’s failure to warn Plaintiff therefore increased the risk that he would 25 contract disseminated Cocci. 26 29. The Court finds “from this fact a ‘probability’ that defendant’s negligence was 27 the cause of the damage.” Id. at 606. 28 1 30. Plaintiff would have taken added precautions had he received any warning. 2 The experts who testified at trial recommended wearing a properly fitted N95 mask and 3 reducing dust exposure to reduce the chance of contracting disseminated Cocci. 4 31. Defendant thus deprived Plaintiff of a “substantial chance” of a better 5 outcome. Lohse, 176 Ariz. at 261. 6 32. Plaintiff has met his burden by the preponderance of the evidence to show 7 causation under the loss of chance doctrine. 8 33. But even if the loss of chance doctrine does not apply here, Plaintiff has shown 9 causation under a typical but-for and proximate cause analysis. 10 34. Regarding but-for cause, “even if defendant’s conduct contributes ‘only a 11 little’ to plaintiff’s damages, liability exists if the damages would not have occurred but for 12 that conduct.” Robertson, 163 Ariz. at 546 (citation omitted). 13 35. The Court acknowledges that it is possible that Plaintiff could have contracted 14 Cocci even if he had been warned and took precautionary measures. But given the direct 15 relationship between the quantity of Cocci inhaled and dissemination of the infection, the 16 Court finds that his disseminated Cocci would not have occurred but for Defendant’s 17 failure to warn. 18 36. Defendant’s failure to warn is thus a but-for cause of Plaintiff contracting 19 disseminated Cocci. 20 37. As for proximate cause, Arizona requires that the tort be “‘a substantial factor 21 in bringing about the harm.’” Thompson v. Better-Bilt Aluminum Prod. Co., 171 Ariz. 550, 22 554 (1992) (quoting the Restatement (Second) of Torts § 431(a)). 23 38. Under that definition, “[a] negligent act or omission is a substantial factor in 24 bringing about harm if it produced the injury in a natural and continuous sequence, 25 unbroken by any efficient intervening cause, and without which the injury would not have 26 occurred.” Barrett v. Harris, 207 Ariz. 374, 382 (Ct. App. 2004) (citing 27 Robertson, 163 Ariz. at 546). 28 1 39. Plaintiff credibly testified that he would have taken precautionary measures 2 had he been warned of the dangers of Cocci at FCI Safford. 3 40. Plaintiff’s treating physician and experts credibly testified that disseminated 4 Cocci is extremely rare, affecting only 1 percent of patients who have Valley Fever, and 5 that increased exposure to dust containing Cocci spores increases the likelihood of 6 contracting disseminated Cocci. 7 41. The intervening causes Defendant has identified are the possibility that 8 Plaintiff would not have heeded any warning or instruction regarding Cocci, that he would 9 not have correctly worn an N95 mask even if he had known to wear one, and that Plaintiff 10 could have inhaled Cocci when he was not engaged in any precautionary measures. 11 42. But Arizona Supreme Court cases indicate that in a failure to warn case, 12 causation may be based on evidence that the plaintiff would have heeded a warning. In 13 Robertson, the Arizona Supreme Court held that a jury could have found causation based 14 on evidence that a plaintiff would have acted differently had he been forewarned of danger. 15 163 Ariz. at 546. In another failure to warn case, the state failed to put up a sign warning 16 of dangerous diving conditions or prohibiting diving at a cove, and the plaintiff—not 17 knowing the cove was shallow and rocky—sustained serious and permanent injuries when 18 he dove in. Markowitz v. Az. Parks Bd., 146 Ariz. 352, 354 (1985). The Arizona Supreme 19 Court held that “reasonable persons could find that if adequate warning had been given, 20 [plaintiff] would have seen the sign and would have avoided diving.” Id. 21 43. In addition, even if Plaintiff could have contracted Cocci when not taking 22 precautionary measures, Plaintiff testified that had he know what Cocci and Valley Fever 23 symptoms were, he could have promptly sought appropriate medical attention and been 24 treated before the Cocci could disseminate. 25 44. The Court therefore finds that Plaintiff has met his burden to show by a 26 preponderance of the evidence that if Defendant had given adequate warning of Cocci at 27 FCI Safford, Plaintiff would have altered his behavior, inhaled fewer Cocci spores, and not 28 developed disseminated Cocci. 1 45. Defendant’s failure to warn Plaintiff about Cocci was a substantial factor in 2 causing him to develop disseminated Cocci. 3 46. Defendant’s failure to warn is a proximate cause of Plaintiff contracting 4 disseminated Cocci. 5 D. Award of Damages 6 47. “Arizona allows unlimited recovery for actual damages, expenses for past and 7 prospective medical care, past and prospective pain and suffering, lost earnings, and 8 diminished earning capacity.” Wendelken v. Superior Court In & For Pima Cty., 137 Ariz. 9 455, 458 (1983). 10 48. “[D]amages for future pain and suffering must be reasonably certain and 11 cannot be predicated upon conjecture and speculation.” Allen v. Devereaux, 5 Ariz. App. 12 323, 326 (1967); see also Nunsuch ex rel. Nunsuch v. United States, 221 F. Supp. 2d 1027, 13 1035 (D. Ariz. 2001). 14 49. It is undisputed that Plaintiff has intermittently suffered intense physical 15 symptoms, including cough, difficulty breathing, chest pain, joint pain, muscle pain, 16 headaches, rashes, and fatigue, for over five years. He has also suffered emotional distress 17 and fear of what his condition was and why it was not improving. His condition has, 18 however, stabilized, and his prognosis is good so long as he remains on daily Fluconazole. 19 50. Plaintiff has sustained noneconomic damages of $50,000 for past and future 20 pain and suffering. 21 51. Arizona also recognizes separate general damages for hedonic damages, or 22 “loss of enjoyment of life, that is, the participation in life’s activities to the quality and 23 extent normally enjoyed before the injury.” Ogden v. J.M. Steel Erecting, Inc., 201 Ariz. 24 32, 38 (Ct. App. 2001). 25 52. Besides some evidence that Plaintiff is restricted from playing soccer and 26 other sports he enjoys, he has not presented any other evidence of hedonic damages. The 27 Court therefore declines to award hedonic damages. 28 1 53. As for pecuniary losses, under the FTCA, the Court must (1) compute the 2 value of Plaintiff’s pecuniary losses such as medical expenses under state law, (2) deduct 3 federal and state taxes from the portion for lost earnings; and (3) discount the total award 4 to present value. Shaw v. United States, 741 F.2d 1202, 1205 (9th Cir. 1984). 5 54. The Court need not engage in step 2, as Plaintiff has not proven loss of future 6 earning capacity. 7 55. In Arizona, to establish the amount of future medical expenses, a plaintiff 8 must set forth “evidence of the probable need for and nature of the future treatment, plus 9 evidence of the cost of that treatment.” Saide v. Stanton, 659 P.2d 35, 37 (Ariz. 1983). 10 56. Arizona has also adopted the collateral source rule, which provides that 11 “payments made to or benefits conferred on the injured party from other sources are not 12 credited against the tortfeasor’s liability, although they cover all or a part of the harm for 13 which the tortfeasor is liable.” Taylor v. S. Pac. Transp. Co., 130 Ariz. 516, 519 (1981) 14 (quoting Restatement (Second) of Torts § 920A(2)); see also Lopez v. Safeway Stores, Inc., 15 212 Ariz. 198, 202 (Ct. App. 2006). 16 57. Under the collateral source rule, even if Plaintiff becomes eligible for Medi- 17 Cal at any point after he is released from prison to when he turns 65, Medi-Cal’s 18 contribution to his future medical treatment and care does not reduce Defendant’s liability 19 for Plaintiff’s future medical treatment and care. Moreover, Defendant presented no 20 evidence that Medi-Cal would be sufficient to cover Plaintiff’s healthcare needs or that 21 Plaintiff would meet Medi-Cal’s eligibility requirements. The Court therefore finds it 22 speculative to apply any discount to future medical expenses based on Medi-Cal eligibility. 23 58. Defendant does not dispute that Plaintiff requires all of the prescriptions and 24 care listed in Dr. Fitzgibbons’ treatment plan. Plaintiff has thus set forth proof of medical 25 expenses beginning when he completes his prison sentences and ending when he becomes 26 eligible for Medicare. 27 59. The Court finds that the cost of private health insurance is a sufficiently 28 certain estimate of the medically necessary costs Plaintiff will incur to treat his condition. 1 60. Plaintiff will sustain future costs for medical treatment and care of 2 $78,624.01, calculated as the cost of a private health insurance Gold HMO from the time 3 || Plaintiff is released from prison to when he turns 65, with a discount rate of 2.5 percent 4 || applied. 5 IV. 6 CONCLUSION 7 In light of the foregoing, the Court finds in favor of Plaintiff on his sole remaining 8 ||count of negligence for failure to warn and awards $78,624.01 in future medical expenses 9 |} and $50,000 in noneconomic damages. The Court will enter Judgment accordingly. 10 11 ||DATED: July 23, 2021 Dn 12 Lhlly 21, las 13 UNITEDSTATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28