Holohan, 131 F.Supp. 777 (D.C.Md.1955) The new, flexible conflict of laws concept, recently adopted by Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 15, 203 A.2d 796 (1964) is to apply the law of the state having the most significant relationship with the occurrence and the parties. This principle was recognized by the United States Supreme Court in Richards v. United States supra pp. 12, 13, 82 S. Ct. 585, 7 L. Ed. 2d 492.
Under Griffith, the contacts test considers as vital, the place of the injury, place of conduct, domicil of the parties and the place where the relationship between the parties is centered. Also, under § 379(a) of the new Restatement,
'the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.'
Applying this test to the instant case, we find that the place of the conduct and injury as well as the relationship between the parties are all centered in Maryland. The plaintiff's domicil is in doubt. When suit was filed in May, 1961, he was living with a quadraplegic in a home in Fort Lauderdale, Florida to avoid the cold weather. The complaint only speaks of the plaintiff's residence as being in Pennsylvania and not his citizenship. When the plaintiff returned to this area in July, 1961, he has since resided continuously in New Jersey. Initially, he lived with his sister and brother-in-law from July, 1961, until November, 1964, when shortly before trial he purchased his own home in Somerdale, New Jersey.
We conclude that Maryland has the most significant relationship between the parties and its law controls the amount of damages to be awarded the plaintiff.
In determining the plaintiff's future medical expenses, it is impossible to award a figure with any absolute certainty.
'Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relieve the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approximate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise. (cases cited) As the Supreme Court of Michigan has forcefully declared, the risk of the uncertainty should be thrown upon the wrongdoer instead of upon the injured party. (case cited)' Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563, 51 S. Ct. 248, 250, 75 L. Ed. 544 (1931) (emphasis supplied)
The plaintiff has proved his present and future need for constant, unremitting and highly intensive care from almost every medical specialty known to man. There is sufficient evidence in the record to warrant an annual expense of $ 5,000.00 for his projected life expectancy of 40 years.
In reaching this figure we have considered the fact that he will receive, for the rest of his life, $ 200.00 monthly from the VA for aid and attendance at home. It matters not that the plaintiff has looked to the VA hospitals for all of his medical needs in the past. He has a right to select a private hospital or physician of his own choosing should he so desire in the future. Feeley v. United States, 337 F.2d 924 (3 Cir. 1964)
The last and most distressing element of damages concerns the plaintiff's pain and suffering. We have no desire to engage in the macabre by detailing every gruesome aspect of the plaintiff's considerable suffering. However, we find it difficult, if not impossible, to assess the loss of such fundamental ordinary human functions as the ability to stand, walk, run and eliminate. He has lost the ability to procreate and he will never know the pleasures and satisfactions of marriage and parenthood. He has a life that offers little in the way of optimism for the future. The disfigurement, humiliation and anxiety he has undergone is considerable. He is paralyzed from his chest down to his legs which are subject to uncontrollable spasms. This man's condition will only become increasingly more distressing with advancing years. We believe that $ 350,000.00 is just and reasonable compensation under the circumstances of this case.
The plaintiff objects to our deduction of past disability payments because the plaintiff already had a 100 percent disability rating before the injury of May 4, 1959. He further objects to our considering future VA disability payments in making our award. It was stipulated that the plaintiff was cured of his tuberculosis following the operation of May 4, 1959. Therefore, his only 100 percent disability rating can be attributed to the injuries sustained by the operation of May 4, 1959. All amounts paid since that date are the only sums sought by the United States and we find that such deductions are proper. Brooks v. United States, supra.
His contention as to our considering future VA payments is based on the Veterans' Benefits Act 38 U.S.C.A. § 351 which provides for the suspension of future benefits by the VA for any month following a judgment under the Tort Claims Act 'until the aggregate amount of benefits which would be paid but for this sentence equals the total amount included in such judgment * * *.' We find nothing in this Act or its legislative history
which indicates that Congress intended that the District Court was preempted from making a judicial determination of just compensation in rendering a judgment under the Tort Claims Act. The Act merely gives the VA the right to make a policy determination in each individual case to grant or withhold benefits when similar amounts are 'included' in a judgment under the Tort Claims Act. We emphasize the fact that in making our award proper weight was given to the possible future VA benefits accruing to the plaintiff and our judgment was reduced accordingly. Certainly pain and suffering has no bearing on what disability rating a Veteran will receive and could not be construed to be a duplication of benefits.
Finally, four weeks after trial on January 22, 1965, the Government has filed a motion for leave to amend its Answer. The Amended Answer seeks to deny jurisdiction in this Court under 28 U.S.C.A. §§ 1346(b) and 1402(b).
Also, the United States now claims 28 U.S.C.A. § 2680 precludes liability because the Government cannot be responsible for lack of due care in the exercise of a discretionary function. We find no merit in any of these allegations and the motion is denied. The Government claims that it first learned of the plaintiff's Florida residence at the time of trial. This is contrary to the record. In Answers To Defendant's Interrogatories (Document No. 8) filed August 27, 1962, the plaintiff specifically informed the Government that he was living in Florida from December, 1960 until July, 1961. Also, by prior stipulation of counsel the United States agreed not to object on grounds of jurisdiction or venue and the plaintiff withdrew his action previously instituted in the District Court for Maryland.
Jurisdiction is unquestionably in this Court under § 1346(b). Venue under § 1402(b) may have been defective, but the United States has waived any defects in such venue by failing to make timely objection. Hoiness v. United States, 335 U.S. 297, 69 S. Ct. 70, 93 L. Ed. 16 (1948) 28 U.S.C.A. § 1406(b).
On the theory of liability that the United States failed to warn the plaintiff of the danger of paraplegia, our Finding No. 40 makes it unnecessary for the United States to amend its Answer to meet this amended claim of the plaintiff.
CONCLUSIONS OF LAW
1. Jurisdiction and Venue are properly in this Court.
2. The operation of May 4, 1959, was performed in a negligent manner by a physician who was an agent or employee of the United States acting within the scope of his employment.
3. Such negligence was the proximate cause of the plaintiff's permanent injuries.
4. The plaintiff is entitled to damages in the following amounts:
5. The United States is entitled to a deduction of past disability payments totaling: $ 52,455.00.
6. The plaintiff is entitled to a verdict in the sum of $ 650,211.00.
7. The plaintiff failed to prove that the Government's failure to warn was negligence.
8. Judgment will be entered on the verdict.