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May 31, 1979

Emery R. LETOSKI and Mary Letoski, his wife

The opinion of the court was delivered by: NEALON


In this action brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., plaintiff, Emery R. Letoski, seeks to recover damages for injuries sustained by him on March 22, 1974, when his vehicle was struck in the rear by an automobile being operated by an employee of the United States Food and Drug Administration (FDA). While plaintiff's original injuries were orthopedic in nature, he developed a far more serious traumatic neurosis and this forms the primary basis for this damage claim. Evidence, including substantial psychiatric testimony, was received at trial on November 14-17, 1977; December 16, 1977; and April 28, 1978. In addition, Paul Chodoff, M.D., a psychiatrist, was appointed by the court as an impartial medical witness pursuant to Rule 706 of the Federal Rules of Evidence and his report was filed January 2, 1979. Dr. Chodoff's deposition was taken by the parties and the transcript filed with the court on March 13, 1979. Oral presentations by counsel were made April 27, 1979. The record has now been closed and the case is ripe for decision.


 On March 22, 1974, plaintiff Emery Letoski, was 29 years of age, married for the second time to Mary Letoski and the father of an eleven-year old son who resided with plaintiff's first wife. Mr. Letoski was employed by Carter Rubber Co. (Carter) as a machinist earning approximately $ 4.30 per hour for a forty-hour workweek period. He had previously been elected Union Shop Committeeman and Shop Steward at Carter which had a work force varying between 150 and 250 employees. Mr. Letoski was happily married, had an extremely healthy sexual relationship with his wife, was athletically inclined, played the accordion, performed his union functions regularly and adequately, was considered "outgoing," was well liked by his peers, and, all in all, enjoyed an active social life. At that time he was in his third year in the evening school at Wilkes College, where he was an average student, and had a career objective as a federal mediator or labor negotiator. There were no objective signs or indications of a personality defect or mental deficiency and plaintiff had not suffered from any orthopedic disturbance prior to his stopping his 1973 Volkswagen in observance of the red light on Kidder Street, Wilkes-Barre, Pa., at 7:43 A.M., March 22, 1974. At that time plaintiff's vehicle was struck from the rear by a government vehicle being driven by Bruce Dandridge, an FDA employee (defendant has conceded that the accident was the result of Dandridge's negligence), and the force of the impact pushed plaintiff's vehicle one to one and one-half car lengths, causing him to strike his head, chest and stomach on the steering mechanism. Plaintiff's immediate thought was that he was going to be killed and he experienced dizziness and nausea as well as pains in his head and shoulders. That evening he called his family physician, Dr. Edmund W. McGrath, who took X-rays, which were negative, diagnosed cervical strains and sprains, and prescribed muscle relaxants and a cervical collar. Plaintiff continued to experience pain, stiffness and restriction of motion in his neck and back, had headaches, became fatigued, felt weak and had difficulty sleeping and concentrating. Dr. McGrath advised plaintiff not to return to work and continued to treat him with muscle relaxants and tranquilizers. On April 24, 1974, plaintiff went to Dr. Lewis L. Rogers, an orthopedic surgeon, who diagnosed an extension-flexion type injury to soft tissue of the neck, back and shoulders, commonly called a whiplash injury, which was causing pain and restricted motion in those areas, and recommended that he refrain from working, continue to wear the cervical collar, and engage in muscle-rebuilding exercises. Plaintiff returned to work on April 29th, not because he felt that he had recovered, but because he couldn't afford to remain idle. He also remained in night school although the pain and weak feeling remained, he couldn't concentrate properly, was becoming forgetful, had to purchase a tape recorder in order to recall the lectures, and had his wife help him prepare his notes. Plaintiff remained under Dr. McGrath's immediate care but in addition to his orthopedic complaints, the symptoms of dizziness, insomnia, and extreme fatigue persisted.

 Dr. McGrath discharged plaintiff from his care on July 8, 1974, believing that he had done all he could for plaintiff's orthopedic injuries. Plaintiff's symptoms did not abate and beginning in July, he had episodes of anxiety concerning his ability to get his breath and fears of dying which were manifested by trembling and, in some instances, crying. His sexual desires diminished and he demonstrated no interest in his prior diversions of accordion playing and athletic activity. Plaintiff believed that these troubles were related to his physical injuries and that he could eventually "fight them off." In September or October, 1974, becoming alarmed about his condition, Mrs. Letoski suggested that he consider seeing a psychiatrist but he didn't react favorably to this suggestion, declaring that he wasn't "crazy" and that he would work everything out. Plaintiff was able to pursue his employment and school work *fn1" although he was not functioning normally. In that regard, one of his college professors, Dr. Robert Warner, testified that plaintiff for some reason attended two sections of the same course which he was teaching, sat staring vacantly in class, acted as if there was something wrong with him and the professor wondered "what the devil he was doing in college." A coworker, Robert Leonardi, stated that in the fall and winter of 1974 he noticed significant changes in plaintiff that he was missing union meetings, developed a faraway look in his eyes, handled grievances carelessly, and became difficult to understand, e.g., he kept repeating the phrase "in a sense." Throughout this period up to May 1975, he continued to withdraw from any social life, began grinding his teeth while sleeping, became more difficult to live with and constantly derided himself for his inability to perform sexually. Nevertheless, he still was satisfied that he could overcome these disorders and regain his health.

 On May 6, 1975, while lifting a basket of shoes at work, he suffered pains in his left arm and left chest. He was again treated by Dr. McGrath who prescribed pain relievers and muscle relaxants. Dr. McGrath referred plaintiff to an orthopedic surgeon, Dr. Joseph Sgarlet, on May 21, 1975, and on July 24, 1975, plaintiff reported to the Geisinger Medical Clinic for outpatient diagnosis and treatment. In the meantime, on June 5, 1975, he returned to his employment but his previous symptomatology intensified and he left on June 19, 1975, and, except for a half day in September, he has been unable to work to this day. Starting in August 1975, Dr. McGrath noticed what he described as plaintiff's "changing condition" but did not immediately suspect a psychological basis for it. Plaintiff's spells of headaches, trembling, anxiety, despondency, fainting spells, and fear of impending death increased. Although plaintiff lost 10 pounds immediately following the accident, his weight stabilized until June 1975, after which he lost more than 25 pounds. On November 26, 1975, Dr. McGrath referred him to Dr. DeBonis, a cardiologist, because of chest pain complaints, who concluded that the pains were not caused by heart disease. On January 26, 1976, plaintiff submitted to a neurological examination and brain scan at Geisinger Clinic after Dr. Jeffreys, a Geisinger neurologist, opined that his symptoms were secondary to anxiety and hyperventilation. Subsequently, Dr. Jeffreys recommended that plaintiff see a psychiatrist.

 On March 4, 1976, plaintiff was examined for the first time by a psychiatrist, Dr. William K. Grossman. Dr. Grossman noted plaintiff's complaints of dizziness, light-headedness, tinnitus, head pains and sensations of choking. While finding him alert and adequately oriented, because of his decreased ability to concentrate and recall, Dr. Grossman determined him to be almost nonfunctional, commenting that it was hard to imagine his being able to perform on a job. *fn2" Dr. Grossman referred plaintiff to Dr. Isadore Krasno, a clinical psychologist, who subjected him to various psychological testing and concluded that plaintiff was suffering from a severe anxiety neurosis and possibly some organic factors were involved. He believed that plaintiff was depressed, with reduced intellectual efficiency and was preoccupied with his physical symptomatology. Dr. Krasno felt that plaintiff needed protracted, intensive psychotherapy and, because of the possible organic etiology, he arranged for plaintiff to be tested further by Dr. Francis R. J. Fields, Chief Psychologist at the Lebanon, Pennsylvania, Veterans Hospital. Dr. Fields tested plaintiff on April 10, 1976, and found him unable to perform complex tasks or decision making, or to function at the level of his academic qualifications. He believed plaintiff's prognosis to be poor but thought that he could receive some significant psychotherapeutic benefit. Plaintiff returned to Dr. Grossman for four visits in August 1976, and was treated with various chemotherapy, such as lithium, mellaril, thorazine, and valium, but appeared unable to tolerate these drugs. Dr. Grossman's final diagnosis was that of nonpsychotic brain syndrome secondary to trauma accompanied by somatic anxiety. According to Dr. Grossman, the prognosis was exceedingly poor and the chances minimal that he could improve with treatment. In addition, it was his judgment that any employment would have to be noncomplex, nonrepetitive, and with no stress factors. Plaintiff was next examined psychiatrically by Dr. Anthony Turchetti on September 14, 1976, who noted symptoms of fatigue, loss of appetite, diminished drive, irritability, sexual diminution, lack of concentration, and described plaintiff's appearance as that of a frightened, helpless, clinging child. His diagnosis was that of moderately severe hysterical neurosis, conversion type, with anxiety, depression and phobic tendencies. He found a direct causal relationship between the accident of March 22, 1974, and the symptoms manifested by plaintiff and stated that the prognosis was guarded with insight therapy as the recommended treatment. When Dr. Turchetti examined plaintiff again on March 29, 1977, he found his condition to have deteriorated from moderately severe to severe. In the meantime, on March 25, 1977, plaintiff was seen by another psychiatrist, Dr. Joseph Kowalski, who concluded that plaintiff suffered from traumatic and anxiety neurosis with slight depression which was attributable to the automobile accident. He found plaintiff to have very little understanding of his psychological problems and determined him to be nonfunctional on a day-to-day basis. He believed the prognosis to be poor because plaintiff didn't appear to improve under prior treatment and, after three years, the problem was now chronic. Dr. Kowalski saw plaintiff again on October 11, 1977, and, once again, plaintiff made complaints of difficulty with breathing, trembling, palpitations, sexual inadequacy, grinding of his teeth, and a morbid fear of death. After his visit, Dr. Kowalski realized that plaintiff had not received optimal treatment up to this time (plaintiff's ongoing therapy was confined to taking 5 mgs. of valium four times a day) and discussed a structured inpatient setting for three months. Plaintiff was not receptive to this suggestion because of the expense involved and also because he felt he could remedy his condition without such a psychiatric regimen. Dr. Kowalski regarded plaintiff as unemployable at that time and considered his prognosis to be poor.

 On October 13, 1977, at the request of the Government in preparation for trial, Dr. Robert L. Sadoff, a psychiatrist, examined plaintiff and noted symptoms of anxiety, depression, and trembling, as well as difficulty in expressing himself. Dr. Sadoff offered a diagnosis of anxiety neurosis and depression. From his review of plaintiff's pre-accident history, he believed him to have been an overachiever, very active and under great pressure, who would be inclined to become depressed and feel deprived if there was a break in his busy routine. He stated that at that time plaintiff was very seriously ill from a psychiatric standpoint and acknowledged that there was a direct link between his illness and the accident of March 22, 1974. It was his opinion that his present condition was triggered by the accident, although he felt there were other contributory factors, such as plaintiff's pre-accident personality, which elicited an excessive response to the accident, and additional physical insults, e.g., the lifting incident in May 1975.

 Commencing on January 10, 1978, plaintiff began a course of psychiatric treatment by Dr. Kowalski who could see no significant change in his anxiety symptoms but found that his worst symptom had become his fear of death. In addition, it was proving difficult to reassure him that no one was trying to hurt him. Dr. Kowalski initially attempted to control plaintiff's symptoms with medication, principally antidepressants and tranquilizers, but plaintiff developed adverse side effects and was very reluctant to continue with this approach. At the end of February the drug treatment was discontinued as Dr. Kowalski decided that medication could not remove the symptomatology. Thereafter, and to the present time, plaintiff's treatment consisted of analyses and free association tests in which plaintiff was given simple tasks to perform but, according to Dr. Kowalski, plaintiff was impatient, wanting to get things done in a rush, and little progress was made. After the litigation has ended, Dr. Kowalski plans to recommend a partial hospitalization program where plaintiff can be encouraged to do things in a structured environment but the doctor believes that there is not much hope for a great deal of change and that he will never return to a state of functioning that will enable him to obtain any type of gainful employment.

 On April 17, 1978, the Government arranged for another psychiatric evaluation of plaintiff, this time by Dr. Joseph Wolpe, a pioneer in the field of behavioral therapy. After exposing plaintiff to a series of tests, Dr. Wolpe diagnosed a severe anxiety neurosis which, if left untreated, would get progressively worse but, if treated with behavioral therapy methods, could present a 90% chance of full recovery. He described plaintiff as sincere, genuine and not a malingerer who could be taught to unlearn his fears. Nevertheless, at the time of his examination, he acknowledged that plaintiff was under great emotional stress, exhibited tremors, belched incessantly, and projected psychosomatic complications. Dr. Wolpe was satisfied that plaintiff was then unable to work.

 Dr. Paul Chodoff was appointed by the court to evaluate plaintiff's condition and examined him on December 13, 1978. He noted plaintiff's expression of profound bewilderment and confusion concerning his illness and his continued belief that there was something physically wrong with him that had not yet been detected. It was his diagnosis that plaintiff suffers from a severe and chronic traumatic neurosis with hypochondriacal and phobic features and he regarded his illness as entirely psychogenic. He was emphatic in finding a causal relationship between the accident and plaintiff's present condition. Dr. Chodoff postulated that plaintiff was predisposed to react with greater intensity to an external trauma and that the minor trauma of the automobile accident caused disproportionate effects. It was his opinion that plaintiff could be successfully treated but considered the litigation as a secondary gain factor which was unconsciously restraining his motivation to recover. Successful treatment, according to Dr. Chodoff, could be either psychotherapeutically or behaviorally oriented or may combine both approaches.

 In summary, the medical testimony demonstrated that plaintiff incurred orthopedic injuries at the time of the accident but that gradually an adverse psychological overlay developed, i. e., an anxiety neurosis, which totally disabled him. The main points of challenge by the Government are (1) that plaintiff had a pre-existing orthopedic problem; (2) that plaintiff had substantially recovered from the initial injury when he was injured again in the lifting incident on May 6, 1975, which constituted an intervening and superseding cause; (3) that plaintiff's neurotic problems relate to a pre-existing personality defect which would have occurred without the automobile accident or, at least, were independently caused by the May 6th incident; and (4) that plaintiff's emotional difficulties can be treated and corrected by behavioral therapy.

 All of the competent medical evidence in the record confirms that plaintiff is suffering from a severe anxiety neurosis with manifestations of fear, depression and hysteria. The evidence is so overwhelming on this point that there is no need to review and analyze the evidence bearing on this issue. In-court observations of plaintiff confirm beyond doubt that he is a troubled, dejected, confused, spiritless, and emotionally spent human being. Therefore, the court accepts this as ...

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