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Brown v. United States

July 7, 2008


The opinion of the court was delivered by: Mannion, M.J.


This matter is before the court following a non-jury trial to determine whether the plaintiff, Barry Brown, ("plaintiff"), has established by a preponderance of the evidence his claim against the defendant, United States of America, ("defendant"), pursuant to the Federal Tort Claims Act, ("FTCA"), 28 U.S.C. §§1346, 2671, et seq. After considering the testimony and evidence presented at the trial, the court finds that the plaintiff has established his claim against the defendant. Therefore, judgment will be entered in favor of the plaintiff.

Pursuant to Federal Rule of Civil Procedure 52(a), this memorandum sets forth the court's findings of fact and conclusions of law regarding the plaintiff's claim.


By way of relevant background, on April 2, 2007, the plaintiff initiated the instant action pursuant to the FTCA claiming negligence on behalf of the defendant in relation to an automobile accident which occurred on March 22, 2004*fn1 . (Doc. No. 1). The defendant filed an answer to the complaint on June 4, 2007. (Doc. No. 7).

On October 1, 2007, the parties consented to have a United States Magistrate Judge conduct any and all proceedings in the instant action pursuant to 28 U.S.C. §636(c) and Federal Rule of Civil Procedure 73. (Doc. No. 12). As a result, the matter was referred to the undersigned.

The final pre-trial conference was held on June 12, 2008. On June 18, 2008, the parties filed their proposed findings of fact and conclusions of law. (Doc. Nos. 23, 24). A non-jury trial was held on June 23, 2008.


Upon careful review of the testimony and evidence presented at trial, as well as the submissions of counsel, the court makes the following findings of fact:

The plaintiff is a fifty-one year old individual, who currently resides in West Pittston, Pennsylvania, with his wife of fourteen years. The couple has no children. Since 1988, the plaintiff has worked as an account executive in the radio advertising industry.

In 2002, while landscaping at his home, the plaintiff lifted a tree and injured his back. The plaintiff initially treated with his family physician, James S. Butcofski, M.D., who ordered an MRI and x-rays of the plaintiff's lumbar spine. The plaintiff was treated conservatively with medication and restrictions. Ultimately, when the plaintiff's condition did not improve, he was referred to David J. Sedor, M.D., a neurosurgeon.

On June 24, 2002, Dr. Sedor noted that the plaintiff presented with left leg pain, back pain, and L4-5 level radiculopathy. Imaging exhibited a disc herniation "at the second to the bottom" or 5th level for which the plaintiff opted to undergo formal physical therapy. (P-3, Office Notes of Dr. Sedor dated June 24, 2002).

On July 17, 2002, the plaintiff returned to Dr. Sedor indicating that, despite physical therapy and nerve blocks, he continued to experience back and leg pain. At that time, the plaintiff expressed his desire to proceed with surgical intervention. (P-3, Office Notes of Dr. Sedor dated July 17, 2002). On July 26, 2002, the plaintiff underwent a lumbar laminectomy and diskectomy.

Office notes from Dr. Sedor dated August 5, 2002, indicate that the plaintiff returned for a post-operative visit. (P-3, Office Notes of Dr. Sedor dated August 5, 2002). At that visit, the plaintiff indicated that he had "no pain at all," and was not taking any pain medications. (Id.). Although the plaintiff complained of some paresthesias of the right foot, Dr. Sedor indicated that the plaintiff was progressing well and released the plaintiff to work part-time for one week, after which he would be released for a trial course of full-time work. (Id.). The plaintiff was also to undergo hydro- and advance physical therapy at Pro Rehabilitation Service, ("Pro Rehab"), for his lumbar spine. (Id.). The plaintiff recovered so well that he required no further treatment from Dr. Sedor with respect to this injury.

Subsequent to his surgery, the plaintiff testified that he was able to return to a normal state of health with no limitations or restrictions. Dr. Sedor confirmed this, indicating that the surgery was remarkably successful. Further, between the plaintiff's surgery in 2002 and the accident in question here, Dr. Butcofski indicated that the plaintiff was "doing fine" and functioning normally.

On March 22, 2004, the plaintiff was operating a 2004 Mercedes Benz automobile. On that date, at approximately 10:00 a.m., the plaintiff was stopped at the intersection of Spruce Street and Wyoming Avenue in Scranton, Pennsylvania. At that time, United States Marine Sgt. Thomas Fuller, acting within the course and scope of his employment, was operating a 2000 Chevrolet Cavalier. Sgt. Fuller was in the vehicle behind the plaintiff's vehicle. Sgt. Fuller saw the plaintiff's vehicle stopped in front of him at the red light and brought his vehicle to a stop approximately four to six feet behind the plaintiff's vehicle. Sgt. Fuller testified he noticed the plaintiff's vehicle coasting forward and instinctually released his foot from the brake resulting in his car moving forward as well. At the same time, Sgt. Fuller noticed that the cuff of his uniform pant leg had fallen to the car floor and bent forward to fix his pant leg. It was at this time that Sgt. Fuller's vehicle made contact with the rear of the plaintiff's vehicle. Sgt. Fuller indicated that he was not looking forward at the plaintiff's vehicle at the time of the impact. He forthrightly admitted that the accident was his fault and that the plaintiff did nothing to cause the accident.*fn2

Subsequent to the accident, Sgt. Fuller exited his vehicle to check on the plaintiff. The plaintiff exited his vehicle unassisted and immediately experienced pain in his head, neck, shoulder region and lower back. The plaintiff dialed 911 on his cell phone and the police and Emergency Medical Technicians were summoned to the scene. The plaintiff was asked if he wished to go to the hospital, but he refused stating that he would see his treating physician.

Upon being cleared to do so, the plaintiff left the scene of the accident and proceeded directly to Dr. Butcofski's office in Wilkes-Barre, Pennsylvania. The plaintiff reported to Dr. Butcofski having been struck by a military vehicle and having a severe headache, as well as pain in his neck, shoulders, and the middle of his lower back to his coccyx. (P-2, Office Notes of Dr. Butcofski dated March 22, 2004). In addition, he complained of tingling and numbness in his legs and numbness in his right foot. (Id.). The plaintiff was diagnosed with a concussion; lumbar spine pain; and neck pain. (Id.). Dr. Butcofski ordered testing of the plaintiff's head, neck, and lumbar spine and prescribed Percocet for pain. The plaintiff's prognosis was noted to be guarded. An appointment was made for the plaintiff to follow-up with Dr. Sedor.

On April 7, 2004, the plaintiff returned to see Dr. Sedor for the first time since his surgery in 2002. (P-3, Office Notes of Dr. Sedor dated April 7, 2004). While the plaintiff noted improvement in his neck symptoms, he indicated that he continued to have right leg numbness and paresthesias. (Id.). Upon examination, Dr. Sedor noted that the plaintiff had pain and restrictions with his neck, and continued to have significant complaints about his back. At this visit, it was recommended that the ...

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