Ream v. United States

• Court: District Court, W.D. Washington
• Decided: March 19, 2020
• Docket: 2:17-cv-01141
• Status: Unknown

Opinion

HONORABLE RICHARD A. JONES 1

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 ANNA REAM, 9

Plaintiff, 10 Case No. 17-1141-RAJ v. 11 FINDINGS OF FACT AND CONCLUSIONS OF LAW UNITED STATES OF AMERICA, 12 FOLLOWING BENCH TRIAL Defendant. 13 14 15 I. INTRODUCTION 16 Plaintiff Anna Ream filed a complaint against Defendant United States of America 17 (“the government”) pursuant to the Federal Tort Claims Act (“FTCA”). Dkt. # 1. The 18 Court heard this matter in a bench trial that began on July 1, 2019 and concluded on July 19 8, 2019. Following cross-motions for summary judgment, the only issues remaining for 20 trial were causation and damages. See Dkt. # 37. The trial included the testimony of 21 several lay and expert witnesses and the admission of various exhibits into evidence. The 22 parties also submitted proposed findings of fact and conclusions of law. Dkt. ## 65, 66. 23 This matter now comes before the Court following the presentation of evidence. 24 The Court has considered the evidence, particularly including careful attention to the 25 testimony of witnesses. The Court, in weighing the testimony of the witnesses, has 26 considered: (1) the witnesses’ intelligence; (2) the witnesses’ memory; (3) the witnesses’ 27 abilities and opportunities to see, hear, or know the things that they testified about; (4) the 1 witnesses’ manner while testifying; (5) any interest, bias, or prejudice the witnesses may 2 have; and (6) the reasonableness of the witnesses’ testimony when considered in light of 3 all the evidence in the case. See Fed. Civ. Jury Instr. 9th Cir. § 1.14 (2017). The Court has 4 further considered the written arguments submitted by counsel for the parties and the 5 authority cited therein. 6 Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following 7 findings of fact and conclusions of law, which are based upon consideration of all the 8 admissible evidence and this Court’s own assessment of the credibility of the trial 9 witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered 10 Conclusions of Law, they shall be deemed Conclusions of Law. Similarly, to the extent, 11 if any, that Conclusions of Law, as stated may be considered Findings of Fact, they shall 12 be deemed Findings of Fact. 13 II. FINDINGS OF FACT 14 A. Accident on August 10, 2013 15 1. At approximately 7:55 a.m. on August 10, 2013, a three-vehicle military 16 convoy left Joint Base Lewis-McChord (JBLM) for the Yakima Training 17 Center. Dkt. # 34. The convoy consisted of two Heavy Expanded Mobility 18 Tactical Trucks (HEMTTs) and one M1083 LMTV towing a generator. Id. 19 Sergeant (SGT) Sean Reeves was the convoy’s Master Driver and the truck 20 commander for the lead HEMTT. Id. Specialist (SPC) Sean Reeves drove 21 the LMTV and Private Second Class (PV2) Ishayaa Muhammad served as 22 the LMTV’s truck commander. Id. The convoy’s military orders placed 23 SPC Reeves’ LMTV between the two HEMTTs. Id. 24 2. The convoy route traveled north on Interstate 5 to State Route (SR) 18 and 25 then east on SR 18 to Interstate 90. Id. Traffic along the route was 26 moderate which allowed the convoy to maintain a speed of approximately 27 55 mph. Id. The weather was clear and the road surface was dry. Id. The 1 convoy traveled north on Interstate 5 and merged onto SR 18. This section 2 of SR 18 consists of two lanes in each direction separated by a median. Id. 3 3. As the convoy crested a rise in the roadway, the passengers in the convoy’s 4 lead vehicle saw a pickup truck towing a horse trailer stopped in the right 5 travel lane approximately 100 meters ahead with a female standing in the 6 roadway waving her arms at the oncoming vehicles. Dkt. # 64 at 62:22- 7 63:1. 8 4. The lead HEMTT came to a sudden stop about ten feet from the female and 9 the horse trailer. Id. at 63:2-4. Plaintiff, who was directly behind the lead 10 HEMTT, slammed her vehicle’s brakes and came to a stop less than two 11 feet from the back of the lead HEMTT. Id. at 63:4-6. SPC Reeves applied 12 the brakes on the LMTV directly behind Plaintiff but he struck the right 13 rear corner of her trailer. 14 B. Post-Accident Treatment 15 5. Plaintiff departed the scene in the tractor and drove to Multicare Auburn 16 Medical Center in Auburn, Washington, where she complained of neck and 17 low back pain. Trial Exhibit 56. She was asymptomatic with regard to her 18 lumbar spine prior to the trauma before the collision. Dkt. # 62 at 87:15- 19 18. X-rays of her lumbar spine showed no acute abnormality. Trial Exhibit 20 56. She was given prescriptions for Flexeril and Tramadol and discharged. 21 Id. 22 6. She drove herself back to her home in Las Vegas and sought treatment 23 August 15, 2013. She was assessed with lumbar strain, cervical strain, 24 chest wall contusion, knee contusion and lumbar radiculopathy. Id. at p. 3. 25 7. She was referred to physiatry and physical therapy given her lack of 26 progress with pain management over nine days since the accident. Trial 27 Exhibit 56 at pp. 5-6. X-rays of her cervical spine, left ribs, chest, and left 1 knee showed no abnormalities. Id. at pp. 12-15. Plaintiff was then referred 2 for an MRI of her lumbar spine. Id. at p. 11. 3 8. Plaintiff had two MRIs of her lumbar spine, on September 1, 2013 and 4 September 3, 2013. Trial Exhibits 218-219; 238-239. Findings on the MRI 5 of September 3, 2013 provided: “Degenerative disk change at L5-S1. 6 Central disk protrusion without any significant mass effect at that level. 7 Borderline bilateral foraminal encroachment at L4-5 and L5-S1.” Trial 8 Exhibit 239. 9 9. Plaintiff was referred to Dr. Jason Garber in late September 2013. Trial 10 Exhibit 73; Dkt. # 45 at 16:13-16. Dr. Garber ordered an electromyogram 11 (EMG) study; plain film x-rays, and physical therapy. Id. at 29:19-21. 12 10. Plaintiff began physical therapy at Matt Smith Physical Therapy on October 13 3, 2013. Trial Exhibit 224. Physical therapists noted their opinion of 14 inconsistencies in Plaintiff’s complaints of pain. Trial Ex. 232. 15 11. Plaintiff underwent the EMG study on October 17, 2013, which showed no 16 evidence of lumbar radiculopathy or peripheral neuropathy. Dkt. # 61 at 17 118:24-119:1. Plaintiff then underwent an x-ray of the lumbar spine on 18 November 13, 2013, which showed no evidence of an osseous abnormality, 19 but moderate to severe degeneration at L5-S1. Trial Exhibits 240; 246. 20 12. On December 16, 2013, Plaintiff had an epidural steroid injection by Dr. 21 Alain Coppel but reported no significant relief. Trial Exhibit 69. 22 13. Plaintiff had a provocative lumbar discogram on May 12, 2014. Trial 23 Exhibit 70. Dr. Coppel indicated his interpretation that the discogram 24 showed concordant pain at L4-L5 and L5-S1, but no evidence of pain at 25 L3-4. Trial Exhibit 59 at p. 25; Dkt. # 45 at 39:13-25. 26 14. Plaintiff also underwent a post-discography CAT scan on May 12, 2014, 27 which showed evidence of fissures on at L3-4, 4-5, and 5-1. Id. In Dr. 1 Garber’s opinion, there was evidence of internally disruptive discs at L4-5 2 and L5-SI, disc herniation, and pathology at those discs. Id. at 42:1-7. 3 15. Following Plaintiff’s discogram, Dr. Garber recommended a two-level 4 transforaminal lumbar interbody fusion surgery at L4-L5 and L5-S1. Dkt. # 5 61 at 51:4-9; Dkt. # 45 at 42:12-13. Plaintiff also saw Dr. Flangas who 6 agreed with Garber’s recommendation. Trial Exhibit 48. 7 16. In September 2014, Plaintiff underwent the fusion surgery. Dkt. # 61 at 8 51:3-4. After additional physical therapy and time spent on pain 9 management, Plaintiff reported no relief. Dkt. # 62 at 95:5-9. 10 17. Dr. Garber released Plaintiff to return to light-to-sedentary capacity work 11 on February 24, 2015 with certain conditions: “No bending at the waist, no 12 lifting greater than 10 to 15 pounds, and alternate sitting, standing and 13 walking.” Dkt. # 45 at 49:15-18. However, Plaintiff has not returned to 14 worked since being cleared and continued to report consistent pain. Dkt. # 15 62 at 98:24-25. 16 18. In early 2016, Plaintiff underwent a spinal cord stimulator trial to address 17 her continued pain complaints. Id. at 96:10-11. She eventually came under 18 the care of Dr. Jorg Rosler. Plaintiff experienced some pain relief using the 19 spinal cord stimulator. Dkt. # 61 at 53:5-10. Rosler believed that Plaintiff 20 might be a candidate for an implantable spinal cord stimulator. [Id.] 21 19. In connection with Dr. Rosler’s recommendation for an implantable spinal 22 cord stimulator, Plaintiff underwent a pre-surgical psychological 23 assessment. Dkt. # 42 at 11:8-23-25. She was diagnosed with Somatoform 24 Symptom Disorder, a clinical diagnosis from the Diagnostic and Statistical 25 Manual, Fifth Edition, indicating her pain complaints were likely 26 exaggerated and out of proportion to her symptoms. Id. at 20:8-21:3; Trial 27 1 Exhibit 221. Plaintiff ultimately elected not to pursue that treatment, 2 claiming that the stimulator was shocking her. Dkt. # 62 at 97:9-16. 3 20. In 2018, Plaintiff visited Dr. Paul Schwaegler. Dkt. # 61 at 53:21-24; Trial 4 Exhibit 63. Dr. Schwaegler was concerned that Plaintiff’s fusion surgery 5 might not have consolidated. See Dkt. # 61 at 83:20-23. He also 6 recommended possible revision surgery consisting of an anterior/posterior 7 approach if it was determined that Plaintiff had pseudoarthrosis. See Dkt. # 8 61 at 96:21-97-10. 9 21. Dr. Virtaj Singh conducted a medical examination of Plaintiff on May 18, 10 2018. Trial Exhibit 205; Dkt. # 63 at 48:4-8. While he agreed that the 11 failed fusion required revision, he did not believe that the failed fusion was 12 the source of her ongoing and unchanged pain complaints. Id. at 76:13-16. 13 He further opined that Plaintiff’s subjective pain complaints were likely the 14 result of central sensitization, and psychosocial factors including 15 somatization disorder, a high disability conviction, deconditioning and 16 opioid-induced hyperalgesia. Id. at 59:8-59:19; 67:12-15. 17 22. He also concluded that Plaintiff was capable of work in the light-to- 18 sedentary range would benefit from a pain management program to address 19 her pain complaints. Id. at 110:9-16, 112:4-5. 20 23. In 2019, Dr. William Smith reviewed Plaintiff’s CT scans and determined 21 that she had pseudoarthrosis at both L4-5 and L5-S1, with broken hardware 22 screws at L4 and L5, and adjacent segment disease with significant facet 23 arthropathy secondary to screw impingement at the L3-4 region. Trial 24 Exhibit 71. Dr. Smith thought Plaintiff was a surgical candidate. Id. 25 24. Plaintiff’s revision surgery is approximately $500,000 for the anterior 26 procedure. Dkt. # 61 at 89:8-9. Dr. Schwagler, who will be performing the 27 1 surgery believes Plaintiff could potentially be cleared for work one year 2 from the revision surgery. Id. at 133:21-24. 3 III. CONCLUSIONS OF LAW 4 5 A. Liability 6 1. Plaintiff brought this case pursuant to the Federal Tort Claims Act 7 (“FTCA”). This court has jurisdiction pursuant to 28 U.S.C. § 1346(b)(1). 8 2. Venue is proper in the Western District of Washington pursuant to 28 9 U.S.C. § 1402 because the acts and omissions complained of occurred in 10 this district. 11 3. Pursuant to the FTCA, the United States shall be liable for tort claims “for 12 injury . . . caused by the negligent or wrongful act or omission of any 13 employee of the Government while acting within the scope of his office or 14 employment, under circumstances where the United States, if a private 15 person, would be liable to the claimant in accordance with the law of the 16 place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). 17 4. Because Plaintiff’s injuries occurred in Washington State, the law to be 18 applied in this case is the substantive law of Washington State. Liebsack v. 19 United States, 731 F.3d 850, 855 (9th Cir. 2013). 20 5. Under Washington law, a party asserting a claim of negligence has the 21 burden to prove, by a preponderance of the evidence, duty, breach, 22 causation and damage. Tolliver v. United States, 957 F. Supp. 2d 1236, 23 1244 (W.D. Wash. 2012) (citing Keller v. City of Spokane, 44 P.3d 845 24 (Wash. 2002)). 25 6. By Order dated May 21, 2019, the Court granted Plaintiff’s cross-motion 26 for summary judgment and determined that the United States was negligent 27 as a matter of law. Dkt. ## 20, 24. 1 B. Causation 2 7. Washington law requires Plaintiff to prove by a preponderance of the 3 evidence that the United States’ negligence was the cause in fact and the 4 legal cause of her claimed damages. Harris v. Groth, 99 Wash.2d 438, 451 5 (1983). 6 8. “Cause in fact” is “but for” causation, or the physical connection between 7 an act and the resulting injury. Christen v. Lee, 113 Wash.2d 479, 507 8 (1989). Legal causation rests on policy considerations as to how far the 9 consequences of defendant’s acts should extend and involves a 10 determination of “whether liability should attach as a matter of law given 11 the existence of cause in fact.” Id. at 508. 12 9. The Court finds that it was more likely than not that Plaintiff developed 13 symptomatic annular tears and herniated discs from the accident requiring 14 medical care.1 Dkt. # 61 at 119:14-120:1. The Court credits lay testimony 15 that Plaintiff was asymptomatic before the accident and experienced neck 16 and back pain immediately following the accident and has continued to 17 experience persistent back pain since that time. The September 2013 MRI 18 identified an annular tear at L5-S1 and the May 2014 discography showed 19 that there were annular tears that were symptomatic at both L4-5 and L5- 20 S1. Id. at 119:13-120:1. Accordingly, the government’s negligence was 21 the cause in fact and the legal cause of Plaintiff’s damages. 22 C. Injuries and Damages 23 10. Plaintiff is presently 50 years old and has limited educational capacity. She 24 did not complete high school or obtain a GED. Plaintiff worked off-and-on 25 in several low-skilled jobs before becoming a truck driver. Prior to this

26 1 The Court discredits the government’s expert testimony that the forces sustained by Plaintiff’s low back after being hit by a military vehicle were within the range or even below 27 the force generated during every day, normal activities. Dkt. # 64 at 105:22-25. 1 accident, Plaintiff was physically able to do her work without any 2 disability. 3 1. Past Medical Expenses 4 11. Under Washington law, Plaintiff may recover only the reasonable value of 5 medical services received, not the total of all bills paid, and must prove that 6 the medical costs were reasonable. Patterson v. Horton, 84 Wash. App. 7 531, 543 (Div. 2, 1997). “[M]edical records and bills are relevant to prove 8 past medical expenses only if supported by additional evidence that the 9 treatment and the bills were both reasonable and necessary. Id. (citing 10 Nelson v. Fairfield, 40 Wash.2d 496, 501 (1952); Carr v. Martin, 35 11 Wash.2d 753, 761 (1950); Trudeau v. Snohomish Auto Freight Co., 1 12 Wash.2d 574, 585-86 (1939)). 13 12. The Court concludes from the preponderance of the evidence that the 14 medical care provided to Plaintiff to date was reasonably necessary and 15 causally related to the accident. 16 13. The government disputes whether the fusion surgery performed by Dr. 17 Garber was reasonable and necessary. Based on the expert testimony of Dr. 18 Schwagler, the Court finds that the evidence sufficiently demonstrates that 19 the fusion surgery was reasonable and necessary to address low back pain 20 causally linked to the accident. See also Dkt. # 63 at 86: 9-11, 88:16-19. 21 Dr. Schwagler testified that, after conservative measures failed and the 22 discography confirmed Plaintiff’s symptomatic discs, surgery to 23 decompress the nerves and get Plaintiff out of pain was reasonable and 24 necessary. Dkt. # 61:7-8, 147:8-9. 25 14. The government also contends that discograms are controversial tests 26 subject to high false positive results and thus did not provide a reasonable 27 foundation for Dr. Garber to proceed with fusion surgery. The Court 1 acknowledges that lumbar discograms are somewhat controversial. Some 2 orthopedists do not do discograms and do not find them to be sufficiently 3 reliable. Others do discograms, but with varying criteria for when and 4 under what circumstances the procedure should be done. Ultimately, the 5 Court finds that the evidence sufficiently supported the use of discograms 6 in 2014 as part of the overall clinical and diagnostic work-up prior to 7 surgery. 8 15. Expert testimony from Jamie Gamez demonstrated that Plaintiff’s 9 reasonable medical costs totaled $375,729.95. Dkt. # 49 at 68:1-4. 10 16. However, some of Plaintiff’s medical bills and costs were excluded or not 11 offered into evidence, including bills and records relating to Plaintiff’s 12 bariatric surgery in March 2019. Trial Exhibits 12, 25, 36, 46, 47, and 64. 13 17. Thus, the Court finds a total of $362,983.29 in past reasonable medical 14 costs. 15 2. Future Medical Services 16 18. Future consequences, diseases, or conditions, possibly resulting from 17 existing injuries, are a compensable item of damages under Washington 18 law. See RCW § 4.56.260. Mathematical exactness is not required because 19 the need for future medical treatment raises a presumption that the plaintiff 20 will incur related costs. 21 19. The preponderance of the evidence further supports a finding that the 22 reasonable value of future medical care will be $521,000. Expert 23 testimony sufficiently demonstrates that Plaintiff will require revision 24 surgery to correct the fusion surgery ($500,000) and future pain 25 management services ($21,000). 26 27 1 3. Lost Wages 2 20. Economic damages also include “loss of earnings” and “loss of business or 3 employment opportunities.” RCW § 4.56.250(1)(a). 4 21. The Court heard diverging testimony on Plaintiff’s economic damages 5 based primarily on different assumptions regarding Plaintiff’s employment 6 potential, both before and after the accident. 7 22. The Court credits the evidence demonstrating that Plaintiff’s pre-injury 8 earning capacity was consistent with the average earnings of a Nevada 9 truck driver with a commercial driver’s license, or approximately $43,000 10 per year. Dkt. # 62 at 26:15-23. 11 23. The Court finds that Plaintiff was unable to work from the time of the 12 accident through June 2015 following Dr. Garber’s release to return to 13 work. Dkt. # 63 at 16: 9-17. Accordingly, the Court awards Plaintiff 14 $86,965, in past wages. 15 24. Expert testimony further supports the conclusion that Plaintiff has 16 “considerable dynamic loss” to her lumbar spine and functional limitations 17 that will prevent her from doing long-haul trucking again. Even with a 18 successful spinal surgery, her anterior lumbar would still result in limited 19 dynamic functionality that will deteriorate over time. Dkt. # 61 at 159:14- 20 23, 161:1-164:20, 177:5-11. 21 25. Dr. Christina Tapia, a member of both the American Economic Association 22 and the American Academy of Economic and Financial Experts, testified 23 that the present value of Plaintiff’s future earnings as a truck driver amount 24 to $568,362 to $792,881. Dkt. # 62 at 175:20-176:3. The totals are based 25 on both the average work-life expectancy and the 75th percentile work-life 26 expectancy for a woman with between zero and 12 years of education but 27 less than a GED and high school diploma. Id. at 163:15-164:6. 1 26. However, the Court credits testimony from both Dr. Schwagler and Dr. 2 Singh that Plaintiff should be able to return to work following the revision 3 surgery as well as expert testimony demonstrating that Plaintiff should be 4 able to obtain low-skilled, sedentary to light work within three months 5 thereafter, earning approximately $17,160 annually. Dkt. # 64 at 12:1-15:8; 6 Trial Exhibit 290. 7 27. Considering the reports of the economists, the Court determines that the 8 sum of $333,800 will fairly compensate Plaintiff for loss of future earning 9 capacity. See also Dkt. # 62 at 163:15-164:6, 175:20-176:3. 10 4. Noneconomic Damages 11 28. There are no “fixed standards by which to measure noneconomic damages.” 12 WPI 30.01.01. Noneconomic damages means subjective, nonmonetary 13 losses, including, but not limited to pain, suffering, inconvenience, mental 14 anguish, disability or disfigurement incurred by the injured party, emotional 15 distress, loss of society and companionship, loss of consortium, injury to 16 reputation and humiliation. RCW § 4.56.250(1)(b). 17 29. The Court finds that Plaintiff has experienced nonmonetary losses including, 18 but not limited to, pain and suffering. Although there was some evidence of 19 symptom magnification and exaggeration, the Court heard compelling 20 testimony that following the accident Plaintiff needed assistance tying her 21 shoes, putting on her clothes, bathing and going to the bathroom. Dkt. # 61 22 at 35:16-25. She also reported episodes where she lost control of her bowels. 23 Id at 65:24-25. The Court awards damages for past pain, suffering and 24 disability in the amount of $100,000. 25 30. The Court also heard testimony that Plaintiff will still experience pain 26 following the revision surgery and will be unable to return to her previous 27 occupation and way of life. She will continue to have functional limitations 1 that prevent her returning to her former employment as a truck driver or any 2 type of manual labor. These limitations, which include no bending at the 3 waist or lifting greater than 10 to 15 pounds, will impact her daily life. In 4 addition, she has an increased risk of back injury following the revision 5 surgery. The Court awards damages for future pain, suffering and disability 6 in the amount of $50,000. 7 IV. CONCLUSION 8 31. As a direct and proximate result of her injury, Plaintiff has incurred damages 9 as follows: 10 Past Loss of Wages: $ 86,965 11 Future Loss of Wages: $ 333,800 12 Past and Future Medical Expenses: $ 883,983.29 13 Past Pain, Suffering, Disability: $ 100,000. 14 Future Pain, Suffering, Disability: $ 50,000 15 16 Total Damages: 1,454,748.29 17 18 The clerk shall enter judgment for Plaintiff. 19 20 DATED this 19th day of March, 2020. 21 A 22 23 The Honorable Richard A. Jones 24 United States District Judge 25 26 27