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Durosky v. United States

December 1, 2008

MICHAEL DUROSKY, PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT



The opinion of the court was delivered by: Magistrate Judge Blewitt

MEMORANDUM AND ORDER

I. Background

On October 9, 2007, Plaintiff, Michael Durosky, filed this Federal Tort Claims Act ("FTCA") action, through counsel, pursuant to 28 U.S.C. § 2671, et seq., (Doc. 1). Plaintiff is proceeding as against Defendant the United States.*fn1 Plaintiff paid the filing fee. The parties have consented to proceed before the undersigned for all matters, including trial, pursuant to 28 U.S.C. § 636(c). (Doc. 17).

The Plaintiff alleges that on March 30, 2006, the vehicle he was a passenger in was negligently struck by a National Park Service ("NPS") truck driven by an employee of the United States acting within the scope of his employment as a Ranger. Plaintiff alleges that he suffered severe and permanent injuries as a result of the collision. (Doc. 1). Plaintiff elected limited tort coverage. (Doc. 19, p. 3, ¶ 6.). However, Plaintiff sought to invoke the exception to the limited tort election he made pursuant to 75 Pa. C.S.A. § 1705(d), and claimed that he suffered "permanent serious disfigurement" in the motor vehicle accident ("MVA"). Defendant United States contended that Plaintiff did not sustain "permanent serious disfigurement" in the MVA.

On February 27, 2008, the Court found that Plaintiff could invoke the exception to the limited tort election he made, and found that he suffered "permanent serious disfigurement," pursuant to 75 Pa. C.S.A. §1705(d). Thus, the Court held that Plaintiff was entitled to seek non-economic damages, as well as economic damages, in this case. (Doc. 25). See Durosky v. U.S., 2008 WL 521204, M.D. Pa.

Subsequently, the Court set a non-jury trial date for November 3, 2008. (Doc. 30). Plaintiff filed a Trial Memorandum with Exhibits on October 21, 20008. (Doc. 33). The United States did not file a trial brief.

A bench trial of less than thirty (30) minutes duration was held on November 3, 2008. The trial was limited solely to the question of damages since the United States conceded liability. Two witnesses testified at trial, namely, Plaintiff and his father. Plaintiff also resubmitted the April 22, 2007 expert report of his plastic surgeon, Dr. Francis Collini. (Doc. 36).*fn2 The United States did not cross examine Plaintiff's witnesses and stipulated to the Plaintiff's expert report. Further, the United States did not present any witnesses or any evidence in its defense. Accordingly, the Court accepted Dr. Collini's report as well as the Exhibits attached to Plaintiff's Trial Memorandum as undisputed evidence.

The following are the Court's findings of fact, discussion and conclusions of law.

II. Findings of Fact

1. Plaintiff Michael Durosky is a white male, is 5 feet and 11 inches, and weighs 160 pounds.

2. Plaintiff resides at R.R. #5, Box 5135, Bushkill, Pike County, Pennsylvania.

3. Plaintiff was 18 years old on March 30, 2006, and he is presently 20 years old. He has a life expectancy of 57 years, i.e. age 78.

4. The sole Defendant is the United States.

5. Plaintiff graduated East Stroudsburg High School in 2006.

6. Plaintiff is currently employed as a heavy road construction worker in New Jersey.

7. On March 30, 2006, at approximately 7:45 a.m., Plaintiff was an unbuckled, backseat passenger in the 1995 Dodge Neon car of his friend traveling north on Route 209 in Bushkill, Pennsylvania.

8. The car in which Plaintiff was a passenger stopped to make a left turn and was hit in the rear by a Dodge Ram truck owned by the United States Park Service and driven by Park Ranger Althouse during the course of his employment.

9. The impact of the Park Service truck with the Neon Plaintiff was in caused the Neon to be pushed into the path of another vehicle which was traveling south on Route 209 and to be hit a second time, i.e. in the rear corner panel.

10. Park Service Ranger Althouse operated the government truck in a negligent manner, and he directly caused the March 30, 2006 motor vehicle accident and the injuries sustained by Plaintiff.

11. Plaintiff was knocked unconscious from the collision.

12. Plaintiff woke up in an ambulance and saw blood everywhere.

13. Plaintiff was taken to Pocono Medical Center.

14. Plaintiff complained of neck pain, headache, facial lacerations, contusions, and abrasions to his scalp.

15. Examination of Plaintiff by Dr. Herman, a plastic surgeon, at the emergency room revealed that Plaintiff had a large, irregular, complex, avulsion-type laceration to the right cheek associated with controlled bleeding.

16. Plaintiff sustained an 8 cm., complex, deep right facial laceration that extended through his facial muscles into the parotid gland.

17. Plaintiff's facial lacerations were cleaned out, the glass was removed, and his lacerations were sutured by Dr. Herman.

18. Dr. Herman also treated a 2 cm. right temple laceration Plaintiff sustained that extended deep into the orbicularis oculi musculature and through the vermillion border.

19. A CT scan revealed that Plaintiff did not have any facial fractures and he did not have any nerve damage.

20. Plaintiff testified that after the stitches, he experienced "excruciating pain" in his face.

21. Plaintiff was given antibiotics to prevent infection of his wounds and Tylenol No. 3 for his pain.

22. Plaintiff was treated and released from the hospital on March 30, 2006.

23. Thereafter, Plaintiff was treated conservatively by Dr. Herman on June 1, 2006, June 7, 2006 and June 21, 2006, without any surgical intervention.

24. Plaintiff consulted with Dr. Francis Collini, a Board Certified plastic surgeon, on March 6, 2007, for evaluation of his facial lacerations and scar deformities he suffered in the MVA.

25. On April 22, 2007, Dr. Collini issued a seven-page Report following his March 6, 2007 examination of Plaintiff.

26. The United States has stipulated as to Dr. Collini's April 22, 2007 Report, which was admitted into evidence by the Court as Plaintiff's expert report. (Doc. 36).

27. The Court incorporates by reference the complete seven-page April 22, 2007 Report of Dr. Collini as if fully set forth herein. (Doc. 36).

28. Dr. Collini's Impression of Plaintiff's injures from the MVA was:

IMPRESSION:

1. Severe, disfiguring, contacted, widened, irregular, hyperpigmented, unstable, post-MVA scar deformities of the right cheek/malar complex/lower eyelid. (Doc. 36, p. 3).

29. To a reasonable degree of medical certainty, Dr. Collini opines that Plaintiff's injuries he sustained in the MVA are consistent with those that would be sustained after a MVA such as the one Plaintiff described ...


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