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March 6, 2000


The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.


Presently before the Court is the motion of the defendant, the United States of America, for partial summary judgment (Document No. 10), as well as the response, reply and sur-reply thereto. The plaintiff, Barbara Sanderson-Cruz, commenced this suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2674-2680, alleging that she suffered injuries when her car was struck by a postal truck. The United States now moves to strike plaintiff's claim for non-economic losses (pain and suffering), arguing that the Pennsylvania Motor Vehicle Financial Responsibility Law ("PMVFRL"), 75 Pa.C.S.A. § 1701 et seq., precludes Sanderson-Cruz from recovering non-economic loss because she elected the limited tort option and did not suffer a "serious injury." For the reasons set forth below, the motion will be denied.

I. Background

On November 26, 1997, Sanderson-Cruz was in the parking lot of the Logan Station Post Office picking up her husband who is a postal employee. Sanderson-Cruz alleges that she pulled into the parking lot and stopped some distance behind a postal truck operated by a postal employee named John McGettigan. Sanderson-Cruz claims that McGettigan backed up his truck and collided with her car, driving it several feet backwards. She claims that she was thrown backward and then forwards by the force of the impact. McGettigan has admitted that he did not look behind him or check his rear view mirror before backing up and that even if he had, the mirrors were out of alignment at the time of the accident.

Sanderson-Cruz claims that she hurt her back, right shoulder and neck in the accident. Although she asserts that she suffered excruciating pain the day after the accident, Sanderson-Cruz did not see her doctor, Anthony R. Rodriguez, M.D., until two days after the accident because it was Thanksgiving. On November 28, 1997, Sanderson-Cruz was treated by Dr. Rodriguez. In his contemporaneous notes, Dr. Rodriguez wrote that as a result of the accident Sanderson-Cruz had increased mid-back and shoulder pain. (Reply Brief in Support of Defendant's Motion for Summary Judgment ("Def. Reply"), Tab 6). He further noted that she was "[p]oint tender mostly over the right thoracic region . . . . [and h]as decreased range of motion of her right shoulder." (Id.). His overall impression was that the accident exacerbated her chronic back injury. (Id.). Initially he prescribed an anti-inflammatory/pain reliever and a muscle relaxant to easy the pain and "quiet some of the spasm down." (Id.). Shortly thereafter, Dr. Rodriguez prescribed a narcotic painkiller. (Id.).

Just prior to the accident, on November 11, 1997, Sanderson-Cruz visited Dr. Rodriguez "for right shoulder pain." (Def. Reply, Tab 6). The notes from the office visit indicate, however, that Sanderson-Cruz had a full range of motion in her right shoulder. (Id.). At that time, Dr. Rodriguez prescribed an anti-depressant.

In addition to experiencing shoulder pain prior to the accident, Sanderson-Cruz also had a prior history of lower back pain and numbness in her foot. A January 6, 1998, report by Dr. Rodriguez describes the her relevant prior medical history. (Plaintiff's Answer to Defendant, United States of America's, Motion For Partial Summary Judgment, ("Plt. Mem."), Exh. B). He states that in January of 1997, Sanderson-Cruz came to him complaining of pain in her leg. A February 19, 1997, MRI showed that she suffered from a herniated disc in her lower back.*fn1 (Def. Reply, Tab 3). As a result, Sanderson-Cruz treated with an orthopedic surgeon. She underwent physical therapy and received epidural steroid injections which provided relief in both her legs and low back. (Plt. Mem, Exh. B).

Notes from a January 7, 1997, visit to Dr. Rodriguez also indicate that Sanderson-Cruz complained to him of "numbness intermittently in both of her feet over the last few mos." (Def. Reply, Tab 1). Presumably as a follow-up, Sanderson-Cruz also had a neurological exam conducted by Carolyn L. Taylor, M.D., a neurologist. Dr. Taylor's report states that Sanderson-Cruz came to her complaining of "intermittent numbness in her feet which is getting progressively worse." (Def. Reply, Tab 2). Dr. Taylor ordered the aforementioned MRI suspecting that Sanderson-Cruz suffered from severe lumbar-stenosis in her lower back. (Id.). As previously noted, the MRI showed a herniated disc.

II. Standard

Defendants have moved pursuant to Federal Rule of Civil Procedure 56 for summary judgment. Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when, "after considering the record evidence in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). For a dispute to be "genuine," the evidence must be such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party may not rely merely upon bare assertions, conclusory allegations, or suspicions. Fireman's Ins. v. Du Fresne, 676 F.2d 965, 969 (3d Cir. 1982).

III. Discussion

Sanderson-Cruz argues that the government's attempt to reduce its liability by asserting that the PMVFRL bars her from making a claim for non-economic damages constitutes an affirmative defense. See Fed.R.Civ.Pro. 8(c). Sanderson-Cruz further argues that by failing to set forth the affirmative defense in its pleading or by failing to amend its pleadings to asset the limited tort option defense once it became apparent that Sanderson-Cruz had elected the limited tort option, the government waived its right to raise the issue at summary judgment or, presumably, at trial.

Rule 8(c) states that nineteen listed defenses as well as "any other matter constituting an avoidance or affirmative defense" shall be "set forth affirmatively."*fn2 Determining whether a given defense is an "affirmative" defense within the meaning of Rule 8(c) is not without its difficulties. According to Black's Law Dictionary, 6th ed. 1990, an affirmative defense is "[a] response to a plaintiff's claim which attacks the plaintiff's legal right to bring an action, as opposed to attacking the truth of the claim." (emphasis in original). An avoidance in the pleadings is defined as "the allegation or statement of new matter, in opposition to a former pleading, which, admitting the facts alleged in such former pleading, show cause why they should not have their ordinary legal effect." BLACK'S LAW DICTIONARY, 6th ed., 1990. In determining whether a particular argument is an affirmative defense, court consider "the logical relationship between the defense and the cause of action." Hassan v. United States Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988) (quoting Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987)). Central to the inquiry is the likelihood that the plaintiff will be unfairly surprised if the defense does not appear in the pleadings. Ingraham, 808 F.2d at 1078. Sanderson-Cruz submits that by raising this issue for the first time at summary judgment after her doctor has been deposed by the government is precisely the type of unfair surprise which Rule 8(c) is intended to preclude.

As an initial matter I hold that the limitation on damages in the PMVFRL is an "avoidance" which falls within the scope of the residuary clause of Rule 8(c).*fn3 See Ingraham, 808 F.2d at 1079 (statutory limit on liability is affirmative defense); Jakobsen v. Massachusetts Port Authority, 520 F.2d 810, 813 (1st Cir. 1975) (same); see also Maramont Corp. v. B. Barks & Sons, 1999 WL 55175, 1999 U.S. Dist. LEXIS 278, at *11-*12 (E.D.Pa. Jan. 13, 1999) (discussing circuit split on issue). But see, Taylor v. United States, 821 F.2d 1428, 1433 (9th Cir. 1987) (statute at issue merely limited liability and was not avoidance or affirmative defense). The limited tort defense shares the common characteristic of a bar to the right to recovery — albeit a partial bar — even if the general allegations in the complaint are more or less admitted to. Jakobsen, 520 F.2d at 813. Here, Sanderson-Cruz seeks damages under the traditional tort theory of negligence and seeks full damages. The United States now argues that the pursuant to a statutory limitation, assuming that a recovery is proper under ordinary tort principals, the traditional precedent "should not have their ordinary legal effect." See Ingraham, 808 F.2d at 1079 (statutory limit on damages available in medical malpractice cases is affirmative defense which the United States waived by failing to timely plead the defense); see also Bok Ran Cho v. Packard, 1998 WL 720040, 1998 U.S. ...

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