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Conn v. United States

April 23, 2009


The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing


This action was tried to the court during the week of July 21, 2008. The evidentiary record was submitted with very few objections. The central issues for resolution pertain to factual matters bearing on the damages to be awarded for horrific traumatic injuries suffered by Donna S. Conn ("Donna") as a result of an automobile accident. It is undisputed that Donna suffered a complete loss of physical and mental capacity within five days of the accident and after five years of rehabilitative effort has enjoyed what in context can only be described as a remarkable recovery. The parties presented divergent testimony on the prior, present and future levels of Donna's cognitive and physical abilities and personality traits, and how her physical and mental functional capacity has been and will likely be affected in numerous aspects of her life. They also dispute the degree of pain and suffering she has endured over the course of her recovery and the prospects of her experiencing future pain and debilitating conditions as a result of her injuries. Their arguments concerning these matters and the determination of an appropriate award of damages is best understood within the context of the evidence presented. Accordingly, the court will provide an overview of the record before summarizing the parties' arguments and presenting its findings and conclusions in support of an award.

On September 6, 2002, at approximately 3:35 p.m., the vehicle Donna was driving was struck by an automobile driven by Dr. Mary Ann Ziegler ("Dr. Ziegler"). The collision was severe. Donna had just left work and approached the intersection of State Route 119 and McClure Road in Upper Tyrone Township, Fayette County, Pennsylvania. State Route 119 is a four lane highway; McClure Road has two lanes. They intersect perpendicularly and the intersection is controlled by a traffic light. Donna was traveling East on McClure Road and had stopped at the intersection. She proceeded into the intersection when the traffic signal turned green, giving her the right of way. Dr. Ziegler was traveling south on State Route 119. She was traveling in the center lane and failed to stop for the red traffic signal. The front of Dr. Ziegler's automobile struck the driver's side door of Donna's vehicle. The impact pushed the Conn vehicle approximately 90 feet from the point of impact, driving it across the center lane, the berm of the road and into the median. A six inch by three foot gouge, most likely caused by a tire rim, was left in the roadway. The driver's side was pushed in over 31 inches toward the center of the vehicle. See Plaintiffs' Exhibit No.s 4U & 4A-T. Three other motorists witnessed the accident. Each gave a statement indicating Dr. Ziegler was in a red car in the left lane; she ran the red light and hit the white car driven by Donna as it was proceeding into the intersection after the traffic signal turned green. Donna was transported from the scene by STAT medivac. Dr. Ziegler was transported by ambulance to Frick Hospital.*fn1 See generally Video-taped Deposition of Pennsylvania State Police Trooper Christopher Ray Rosano; see also stipulation of counsel in transcript of non-jury trial proceeding on July 14, 2006 (Doc. No. 57), at 75-77.

Donna was admitted to Presbyterian University Hospital, UPMC Healthcare System, in Pittsburgh as a level one trauma patient status post blunt multi-system trauma. University of Pittsburgh Electronic Medical Records (Plaintiffs' Exhibit No. 5), Transfer Summary of September 27, 2002. She had lost consciousness at the scene but had a Glasgow Coma score of 15, which signified she had normal findings with regard to eye opening, motor skills, verbal responses and other relevant and neurological interaction. Video-taped Deposition of John B. Moossy, M.D., at 16-17.*fn2

Donna was in severe respiratory distress and discomfort and complaining of back pain upon admission. University of Pittsburgh Electronic Medical Records - Attending Physician Addendum of September 6, 2002. She was assessed as critically ill and admitted. Id. She was immediately intubated due to her respiratory status. Multiple CT scans were performed and she subsequently underwent an exploratory laparotomy and a splenectomy, which revealed a left hemidiaphragm rupture. Transfer Summary of September 27, 2002. The testing also revealed multiple fractures of the pelvic bone, a scapula fracture, multiple rib fractures, and a cerebral contusion in the right frontal lobe region. Video-taped Testimony of Dr. Moossy at 9; University of Pittsburgh Electronic Medical Records - generally. The left rib fractures extended from the first through the tenth ribs. The cerebral contusion measured approximately one centimeter. The following day the CT Scan of the brain revealed sheer injury involving the right frontal lob and splenium of the corpus callosum. University of Pittsburgh Electronic Medical Records -September 7, 2002, MRI of the Brain by Dr. Townsend. Testing on September 8, 2002, further revealed bilateral pleural effusions with bibasilar atelectasis, a small left pneumothorax, and multiple left-sided pelvic fractures with adjacent hematomas. University of Pittsburgh Electronic Medical Records - September 8, 2002, CT Scan of the Abdomen and Pelvis by Dr. Townsend. After three days plaintiff was discharged from intensive care because she seemed to be doing reasonably well. Video-taped Testimony of Dr. Moossy at 10.

On the night after her discharge from the ICU, Donna had a decline in her neurologic status and she could not be aroused to be examined. Id. at 18. At that point she had lapsed into a coma and was returned to the ICU with a Glasgow Coma Scale of "3T" (the T referring to intubation or tracheotomy). Id. at 18. An emergency CT Scan revealed infarcts in the occipital lobes and swelling of the brain. Id. at 18. An initial CT Scan of the head uncovered an infarction of the left occipital, temporal and posterior parietal region. University of Pittsburgh Electronic Medical Records - CT Scan of September 10, 2002, by Dr. Townsend. Immediately thereafter plaintiff was returned to the ICU, re-intubated and an external ventricular drain was placed into her brain in order to monitor pressure and drain excess spinal fluid. Video-tape Testimony of Dr. Moosey at 11. An incision was made in the scalp, a hole was drilled in the skull and the lining of the brain was punctured in order to place a rigidly held plastic tube providing access to the ventricular cavities. Id. at 12. The plastic tube was then attached to an external tube system that monitored pressure and permitted drainage. Id.; See also University of Pittsburgh Electronic Medical Records - Transfer Summary of September 27, 2002, at Addendum ("she was taken for an emergent CT Scan of the head which showed evidence of left parietoccitital CVA as well as evidence of a right temporal contusion with some swelling in the region of the mid-brain. She was transferred emergently to the neuro trauma ICU, and was seen by Neurosurgery by consultation. They placed an extra ventricular drain, or EVD, for monitoring and control of her intercranial pressure.").

Radiological testing on September 11, 2002, uncovered a new infarction in the right occipital lobe and an evolving infarction of the left occipital lobe. University of Pittsburgh Electronic Medical Records - September 11, 2002, CT Scan by Dr. Townsend. The right frontal hemorrhage remained unchanged. Id. The infarction in the left occipital lobe was "evolving with persistent mass effect on the left lateral ventricle." Id. Testing on September 12, 2002, confirmed defuse swelling in both occipital areas producing mass effect on the brain stem. University of Pittsburgh Electronic Medical Records - September 12, 2002, MRI by Dr. Townsend. Dr. Townsend's impression was bilateral occipital strokes in a PCA distribution, left greater than right with gyriform enhancement, and compression noted on the brain stem. Id. Testing on September 15, 2002, produced no substantial change in the bilateral posterior infarctions. University of Pittsburgh Electronic Medical Records - CT Scan of September 15, 2002, by Dr. Townsend.

By September 14, 2002, Donna Conn also was experiencing an elevated white blood cell count and fever. A CT Scan of the chest, abdomen and pelvis suggested bilateral pan-lobar pulmonary consolidation suggestive of widespread pneumonia, bibasilar atelectasis and a small persistent left pneumothorax. University of Pittsburgh Electronic Medical Records - CT Scan of September 14, 2002, by Dr. Townsend. A CT Scan of the pelvis reflected a left superior and inferior pubic rami, left longitudinal sacral, and left anterior column acetabular fractures and the presence of a small extraperitoneal hematoma. Id.

Radiological testing conducted on September 17, 2002, produced the first hint of improvement in Donna's brain trauma. A CT Scan revealed no evidence of hydrocephalus and an enterval decrease in cerebral edema. There was also less compression of the basal cisterns. In addition, the frontal hematoma appeared to be resolving. University of Pittsburgh Electronic Medical Records - CT Scan of September 17, 2002. There was calcification within the right inferior cerebellar lobe and evolution of the infarcts with occipital lobe and right brachium pontis. No new lesions were identified. Id. The right sided shunt tube was removed on September 17, 2002.

Radiological testing on September 25, 2002, produced further evidence of improvement. There was considerable increase in the size of the occipital horn and atria of the left lateral ventricle as compared to the prior September 17, 2002, study. There was no new significant subarachnoid hemorrhage accumulation and it appeared that the infarct in the left occipital lobe was perhaps slightly less extensive. University of Pittsburgh Electronic Medical Records - CT Scan of September 25, 2002.

Donna was transferred to Health South Harmarville Rehabilitation Hospital ("Harmarville") on September 27, 2002. At that time her transfer diagnosis were:

1. Status post blunt multi-system trauma following motor vehicle accident at a high rate of speed.

2. Exploratory laparotomy status post repair of left hemidiaphragm rupture as well as splenectomy.

3. Pelvic fracture.

4. Left scapular fracture.

5. Bilateral pneumothoraces status post bilateral chest tube placement.

6. Status post postoperative cerebrovascular accident, with evidence of left parietal occipital infarct as well as right temporal contusion.

7. Cerebral edema status post placement of extraventricular drain.

8. Respiratory failure status post tracheotomy.

9. Status post percutaneous gastrostomy tube placement.

10. Hemophilus and serratia pneumonia.

University of Pittsburgh Electronic Medical Records - September 27, 2002, Transfer Summary. It was noted that when it became evident that Donna was going to be placed on ventilatory support for a prolonged period of time, a percutaneous tracheotomy was performed on September 16, 2002, followed by the placement of a percutaneous gastrostomy tube on September 25, 2002. Id. at addendum. Her EVD was removed on September 19, 2002. Id.

A complete review of Donna's neurologic, respiratory, cardiovascular, GI, nutritional, GU, hematologic and prophylactic status indicated Donna had reached a point of stability permitting transfer to Harmarville. Id. Activity was limited to 60 degrees of flexion at the hips, with use of a abductor pillow for three months and to continue using a left upper extremity sling. She had a Foley catheter in place, a tracheotomy and a gastrostomy tube, all of which required ongoing nursing care. Id. Medications included 50 mcg of Fentanyl, IV, one hour p.r.n for pain; morphine sulphate 1 to 2 mg, IV, for one hour as needed for pain, Tylenol at 650 mg p.r. or per G-tube every four to six hours as needed; Mycostatin to the groin twice a day; Zosyn 4.5 grams, IV, every 8 hours, Reglan 10 mg, IV, ever 6 hours; Pepcid 20 mg, IV, b.i.d.; Aspirin 325 mg, p.o. q. day; Colace 100 mg p.o. b.i.d.; and Lovenox 30 mg subcu q. 12 hours. Follow up treatment was to include consultation with Dr. Marion of Neurosurgery and Dr. Gruen of Orthopedics at approximately two weeks. Id. at Addendum, p.3.

The same transfer diagnosis was incorporated into Donna's admission assessment at Harmarville. Medical Records from Harmarville (Plaintiffs' Exhibit No. 6) at 1-4. Examination revealed that she was "non verbal." Id. at 5. She had missing teeth in the front. Id. She had a very limited ability to respond to muscle testing commands. Id. at 6. She had a closed right eye that could only be opened manually and her right pupal was non-reactive and pinpoint. Id. at 5.

Her left eye opened to command. Id. at 6. Initial impressions included impaired cognitive defects, impaired gait and impaired functional ability. Id. at 6. Goals included improving her cognitive defects and functional ability to the best level possible. Id. at 6. Consultations for pain management, physical therapy, occupational therapy, nutrition, recreational therapy and neurobehavioral improvement were planned. Id at 6-7. Case management consultation was scheduled to assist in discharge planning and educating and teaching family and support systems as needed. Id. at 7.

Donna was discharged from Harmarville on November 15, 2002. She was released with the following diagnoses:


1. Status post MVA on 9/6/02.

2. Traumatic brain injury.

3. Acute left parietal occipital infarction in the post-trauma period.

4. Diffuse axaral injury with a right temporal contusion related to the trauma.

5. Evidence of damage to the mid-brain.

6. Impaired cognition, blunt multi-system trauma.

7. Status post exploratory laparotomy.

8. Status post repair of left hemi-diaphragm rupture as well as splenectomy.

9. Pelvic fracture.

10. Left scapular fracture.

11. Bilateral pneumothoraces.

12. Status post bilateral chest tube placement with subsequent removal.

13. Cerebral edema.

14. Status post placement and removal of EVD.

15. Respiratory failure status post tracheotomy and subsequent removal.

16. Status post percutaneous gastroscopy tube placement with subsequent removal.

17. Hemophiles and serratia pneumonia - treated.

18. Neurogenic bladder.

19. Third cranial nerve palsy.

20. Anemia, improved.

21. Elevated liver function, improved.

Harmarville Rehabilitation Hospital Records (Plaintiffs' Exhibit No. 6) - Rehabilitation Discharge Summary. Improvement was noted from a neuropsychiatric standpoint. Donna's mood disorder had responded positively with the use of Paxil. Restlessness was improved with Inderal. Multiple cognitive functioning tests in the month of November indicated an improvement to a "moderate degree of cognitive impairment." Id. at 2. At that juncture Donna "was able to complete simple math and word problems with assistance to reach problems with occasional errors secondary to reduced fund of knowledge and inattention to detail." Id. An ophthamologic assessment carried with it the diagnosis of a third nerve palsy incomplete with pupil involvement and bilateral superior quadrantopsia secondary to her occipital lobe injury. Id. Her elevated liver function had been largely resolved. Id. She suffered and continued to suffer from incontinent of urine at bedtime. Id. She was permitted to continue engaging in weight bearing as tolerated. At that juncture she was able to walk independently on level surfaces, navigate stairs with the use of a railing and transfer independently. Id at 3. She was not to be left alone in the house or permitted to drive. Id. She required the use of a "chin tuck" when eating. Medications included Ecotrin, Peri-Colace, Prevacid, Ditropan, Paxil and Inderal. Id. Follow-up service included a month of physical therapy at two or three sessions per week for balance, coordination and steps, outpatient therapy two to three times per week for a month for activities of daily living, safety, functional transfers, ambulation, cognition, perception and home management; speech therapy three times a week for four weeks for improved auditory comprehension, word retrieval, word comprehension, functional math skills, cognitive skills, functional writing skills and to promote verbal expression; and follow-up with her orthopaedic surgeon, Dr. Gruen and a neurosurgeon, Dr. Moossy. Id. at 3.

Dr. Gruen treated Donna for her pelvic and scapula fractures initially and through the extensive rehabilitation that followed.*fn3 Dr. Gruen initially saw her on the day of the accident at UPMC. He was involved in the diagnosis and treatment of her complex fracture involving the front and back portions of the pelvis, a left scapular fracture and approximately ten rib fractures. Id. at 8.*fn4

Following her transfer to Harmarville, Donna was transported by ambulance on October 10, 2002, for follow-up with Dr. Gruen. Id. at 12. At that point she was able to follow commands and sit without pain. Id. Radiographic and clinical testing revealed good callus formation and as a consequence she was released to weight bearing activity as tolerated. Treatment Notes of Dr. Gruen (Plaintiffs' Exhibit No. 8) at October 10, 2002, p.2. He recommended weight bearing with a walker and noted she may need modalities of physical therapy and range of motion exercises. Id. Weight bearing activity was to be conducted under the supervision provided at Harmarville. Video-taped Testimony of Dr. Gruen at 12. At a follow-up consultation on November 7, 2002, Dr. Gruen noted plaintiff was doing relatively well and ambulating without pain. Id. at 13. At that point he explained that a high energy injury such as the one sustained by Donna also damages the skin, muscles and nerves around the pelvis. He counseled that while she was progressing and doing well, in the big picture she would experience limitations as to endurance, strength, walking and so forth as a result of the damage to the soft tissue envelope around the pelvis. Id. at 13; Treatment Notes of Dr. Gruen - November 7, 2002 at 2.*fn5 By April 17, 2003, plaintiff had progressed to the point that she had symmetrical and pain free motion of the lower extremity and was able to ambulate in Dr. Gruens' office without pain. Treatment Notes of Dr. Gruen - April 17, 2003, at 1.

On May 15, 2003, Donna reported experiencing significant lower back pain, which had been going on for 2 to 3 months. Treatment Notes of Dr. Gruen - May 15, 2003, at 1. The pain began insidiously and she had not requested any specific intervention or treatment for it. Id. Physical examination and testing indicated the pain was likely muscular and Dr. Gruen recommended physical therapy. That treatment was not available, however, due to the lack of insurance and consequently Dr. Gruen recommended exercise and stretch routines to be performed at home. Id. at 2.

Donna returned to Dr. Gruen on May 6, 2004, reporting that while she had been doing very well, she had been plagued with some left low back pain in the recent past and wanted to make sure she was doing okay. Treatment Notes of Dr. Gruen - May 6, 2004, at 1. The pain generally surfaced in the left SI joint area. Id. Dr. Gruen's examination indicated she had no neurological deficits, spinal canal complications, herniated disc or other similar conditions that might account for the pain. Video-taped Testimony of Dr. Gruen at 37-39. She did present with tight hamstrings, which is an objective criteria that commonly produces pain in the aftermath of a pelvic fracture resulting from a high energy injury. Id. at 16. Dr. Gruen provided her with a prescription pain reliever and anti-inflamatory and recommended physical therapy that emphasized hamstring and low back stretching along with aerobic training. Video-taped Testimony of Dr. Gruen at 40; Treatment Notes of Dr. Gruen - May 6, 2004, at 1. Dr. Gruen concluded that the muscular pain was related to the pelvic injury and was part and parcel of its long term effects. Video-taped Testimony of Dr. Gruen at 36, 39-40.

Donna appeared for follow-up and assessment with Dr. Gruen on September 13, 2007. She reported experiencing pain and limitations in walking distances more than 10 blocks, climbing stairs and standing more than two hours. Examination revealed an antalgic gait, which meant she had a painful gait and walked with a limp. Video-taped Testimony of Dr. Gruen at 17; Treatment Notes of Dr. Gruen - September 13, 2007. Dr. Gruen's clinical examination eliminated independent causes for her discomfort and limitations. Id. at 17. He determined "she had clearly a disfunction of the muscles that surround and support the pelvis." Id. at 18. And that her reported limitations were in fact real and legitimate. Id. at 19. From his perspective, Donna had reached "maximum medical improvement" and would continue to experience good days and bad days. He explained once again that she was at risk of chronic pain, stiffness, leg length discrepancy, continued imbalance and the need for operative intervention in the future if anything became displaced. Treatment Notes of Dr. Gruen - September 13, 2007, at 1. Notwithstanding these risks and limitations, Dr. Gruen's concluded Donna's prognosis was good and that she may be able to perform some type of light duty or sedentary job in the future. Id. at 19. In other words, she would continue to be functional, but her functional abilities would be limited. Id. at 20. This was in part because she had demonstrated a fair level of tolerance for pain, did not require narcotics and was able to manage her episodic bouts of pain with Tylenol. Video-taped Testimony of Dr. Gruen at 20, 44-46. In short, Dr. Gruen perceived Donna's reported limitations as entirely consistent with her pelvic fracture and she would continue to be functional and engage in the activities of daily living and child care on any given day; she also would experience pain and be unable to engage in physical activities on an extensive or frequent basis.*fn6 Id. at 48.

Donna also had a number of follow-up consultations with Dr. Moossy after her rehabilitation at Harmarville. She was referred to Dr. Moossy by his colleague who had left the practice and referred his patients for follow-up care. Video-taped Testimony of Dr. Moossy at 31. Dr. Moossy first met with Donna in February of 2003, shortly after she had been at Harmarville and spent significant time in rehabilitation. By his assessment, she had made significant progress in the recent months. She appeared well dressed, well kept and had a relatively non-focal neurological examination. She did have some persistent left facial weakness. Dr. Moossy ordered additional CT scans, requested recent neuropsychological tests be forwarded from Harmarville and scheduled a follow-up consultation in 3 months. Id. at 22-23. The scans were performed and Donna returned as scheduled. Id. at 23.

The May 2003 scans revealed "an extensive stroke" on the left side of the brain, transgressing through the occipital lobe into the temporal lobe anteriorly on the left.*fn7 Id. at 23. Dr. Moossy noted that given the severity of Donna's injuries she had what he considered to be an excellent recovery, which he placed in context as follows:

For a patient - for people who do what I do and see patients, as sick as this young woman was, a patient that walks into the office, dresses themselves and is able to converse is an excellent outcome.

Id. at 25. In other words, many patients with the degree of injury suffered by Donna from the combination of her visceral and cranial injuries are debilitated to the point of requiring continuous care. Id. at 25-26. He explained to Donna and her family that typically a patient will achieve 90 percent of the recovery they are capable of in the first year. Thereafter, additional improvements may be acquired, but they are incrementally smaller and are gained incrementally slower. And after suffering such an injury the patient will never get back to 100 percent or return to a level that is substantially the same as he or she was prior to the injury. Id. at 26-27.

Donna returned to Dr. Moossy on September 10, 2003. Id. at 27. She still had neurological deficits as of that date, including a right exotropia. She was taking two medications for depression, medication to control bladder incontinence and aspirin. Id. at 27; Medical Records of Dr. Moossy (Plaintiffs' Exhibit No. 9) - September 10, 2003, letter. She was pleasant, laughed appropriately "at witticisms" and appeared to be doing quite well. Given the severity of her injury and the amount of brain damage, Dr. Moossy assessed her recovery as "excellent". Video-taped Testimony of Dr. Moossy at 38.

During the September 10, 2003, consultation, Donna and her mother asked Dr. Moossy about her ability to resume driving and return to an independent life, which he understood to mean that she was still being supervised by her family. Id. at 27; Medical Records of Dr. Moossy - Letter of September 10, 2003. Dr. Moossy did not believe Donna would be capable of driving at that point in time. Id. at 36. He expected her to fail the test given the complex interpretive and interactive functions necessary for driving and the degree of recovery she had experienced. Id. at 35-36. In other words, while he was "pleased that she was conversant, interactive and able to fend for herself in the sense of being able to dress herself and so forth," she was still living under the supervision of relatives, was not independent and was not functioning as a normal woman of 30 years of age. Id. at 37. Thus, the "excellent" recovery as of that date was compared to the average recovery for the kind and severity of injury and amount of resulting brain damage sustained. Id. at 38.

Donna also was evaluated and treated by Graham Gordon Ratcliff, D. Phil. ("Dr. Ratcliff"), a neuropsychologist, during the course of her out-patient rehabilitation at Harmarville.*fn8

Dr. Ratcliff first examined her as an inpatient after staff within the neurobehavorial program began to notice that she had difficulty recognizing things. Id. at 30. He conducted three additional neuropsychological evaluations in 2003 and 2004 during the course of her outpatient rehabilitation. Id. At 31. There was no pending litigation during this time and on each occasion Dr. Ratcliff evaluated Donna pursuant to a referral by her treating physiatrist, Dr. Franz. Id. at 31.

Dr. Ratcliff conducted the first neuropyschological consultation in January of 2003. Id. at 32.*fn9 As of the initial consultation Dr. Ratcliff had received the background information from Donna's motor vehicle accident and resulting hospitalization, including information concerning the large infarct in the left parietal occipital area, the right temporal contussion and possible damage to the brain stem. Id. at 37. In addition, at the first outpatient consultation he obtained information from family members regarding her living arrangements, general educational background, recent work history and current medication regime. Id. at 37-39.

Initially, at the January, 2003, consultation Donna said she was pretty much back to her old self, which was significant in that she clearly was not and it signified that she lacked insight into her impairment. Id. at 40. She reported having some trouble with her vision and difficulty reading. Id. Her mother and husband confirmed her difficulty in recognizing things, such as being unable to recognize different kinds of food in a buffet line and coming up with the concept of the name of a Christmas gift. She was experiencing a lack of word recognition, having difficulty matching clothes and deciding between colors, was more passive as opposed to her prior "go-getter" personality. Id. at 41. Although pleasant and cooperative, Donna was passive during the consultation in that she sat there and did not volunteer much information. Her answers were very brief. Id. at 41-42. In addition, her right eye deviated outward and she would close one eye when attempting to do any visual task. Id. at 42. Her answers to questions were reasonably coherent and she did not present with any obvious language disfunction in conversation beyond providing brief and limited answers. Id. at 42-43. She appeared to be putting forth her best effort and did not engage in any behavior that suggested the test results should not be taken as a valid indication of her cognitive functioning. Id. at 43.

Core neuropsychological testing conducted in January of 2003 included testing of memory, visual perception, object processing (the ability to identify an object or concept with the word), speed of processing (how quickly, simply things can be done), manual dexterity, attention, measures of reading ability and brief measures of being able to write statements or sentences. Abnormal results were produced in several areas. Id. at 45. "The most obvious thing was she had a complex disorder affecting her ability to tell you what things were." Id.*fn10

This disorder stemmed from several areas of dysfunction. First, Donna's brain had difficulty putting lines and information from her visual perception together to make an object. Second, she had lost part of her fund of knowledge about the identification of things. Id. at 47-48. In addition, she had difficulty coming up with a name for items or concepts that she clearly knew or understood. Id. at 49. Morever, she could not name colors and her reading was very slow and characterized by letter-by-letter reading. Id.; Neuropsychological Consult of January 20, 2003, at 2. Her ability to recognize words spelled out-loud was not significantly impaired. Id. at 49-50; Neuropsychological Consult of January 20, 2003 at 2.

Dr. Ratcliff recorded his impressions concerning this aspect of Donna's dysfunction as follows:

These results suggest a disorder which does not fall neatly into any of the standard categories but has some characteristics of visual agnosia, some features typical of disconnection syndromes and some that are more typical of more specifically language-based disorders. The so-called "optic aphasia" probably captures the essence of the object processing problem most adequately. Testing using some materials from Psycholinguistic Assessment of Language Processing in Aphasia battery suggested the presence of both visually and semantically based confusion in object recognition and, for practical purposes, I think that Ms. Conn would be best regarded as an individual who has moderate difficulty recognizing objects by sight, greater difficulty naming them and moderately impaired reading ability.

Neuropsychological Consult of January 20, 2003, at 2-3. In addition, he noted some memory impairment, although the test results were confounded by her difficulty in word-finding. Id. at 3. She had difficulty in recall after delay -- her performance on a word list learning task was moderately to severely impaired and she was unable to recall any words after a brief distraction. Id. Testing reflecting her formal measures of verbal fluency suggested severe and mild-to-moderate impairment. Dr. Ratcliff concluded that in addition to some memory impairment Donna probably also had milder, more diffuse cognitive dysfunction. Id.

The information relayed by family members suggested her difficulty with object recognition was effecting her functioning in activities of daily living and it appeared that her reading disorder would render her non-functional in reading extended passages of text. In contrast, it was likely she could recognize or at least learn to recognize important survival words. Id. In light of these and as well as other areas of dysfunction, Dr. Ratcliff recommend further outpatient services aimed at helping Donna develop compensatory strategies, assisting her in developing an increased role in household chores within a structured environment and exploring her ability to learn and recognize important survival words quickly and efficiently. Id.; Trial Testimony of Dr. Ratcliff (Doc. No. 61) at 57-59. Dr. Ratcliff further explained that her dysfunction clearly would impact her ability to engage in the activities of daily living, such as being able to recognize different types of food, having difficulty coordinating the color of clothes, being forgetful to a degree that affected the ability to follow a known and routine schedule, and needing to be prodded to do things. Trial Testimony of Dr. Ratcliff (Doc. No. 61) at 59-60.*fn11

Dr. Ratcliff performed a second neuropsychological consultation on September 15, 2003. Id. at 64. It essentially consisted of the same format and tests. Id. at 65. The examination revealed improvement in a number of Donna's functional abilities. Donna had been able to move back home with her husband and young son with additional family support. On some days she was able to be solely responsible for her son. She needed cuing reminders to complete household tasks, but once she was told to do a task she was able to complete it. She had insight into her impairment, expressing an understanding that she would not be able to return to work in her current condition and that she was not her former self. Her ability to recognize objects was improving and she no longer complained of recognition errors in the activities of day-to-day living, although she acknowledged that she still failed to recognize things occasionally. She was able to match clothes. She acknowledged that she was still occasionally forgetful and needed cuing to initiate tasks, but relayed that improvement had been gained in these areas, which her mother confirmed. Her major complaint was a higher vision problem. And her right eye continued to be abducted. Her reading was still quite slow and she had to sound out larger words. She occasionally had difficulty with her sense of direction. But overall, everything had improved. Trial Transcript of Dr. Ratcliff at 64-69; Neuropsychological Consultation of September 15, 2003 (Plaintiffs' Exhibit No. 12) at p.1-2.

The battery of tests likewise indicated that while she still had abnormal difficulty in the same areas, there had been improvement. Trial Testimony of Dr. Ratcliff at 69-70. Her ability to name objects on the Boston Naming Test had improved from 26 to 38 with a lessor degree of hesitation in her successful responses. Successful responses after phonemic cues were offered likewise improved, as did the quickness of her response to the cues. Her ability to read single words was significantly quicker and her difficulties primarily involved the presentation of longer and irregular words. Color naming remained hesitant but was improved. She no longer exhibited significant difficulties with object recognition and did not appear to be agnosic.

Memory testing performance had also improved, although it had remained impaired and was confounded by word-finding difficulty. She continued to perform poorly on word-list learning tasks, but her ability to remember word lists when tested in a recognition format was much better. Performance on measures of verbal fluency remained impaired and essentially unchanged. She had greater difficulty listing items in a given semantic category than in listing words in a given letter. Neuropsychological Consultation of September 15, 2003 (Plaintiff's Exhibit No. 12) at p. 2-3.

Dr. Ratcliff noted that although Donna remained severely impaired in confrontation naming and continued to have difficulty with color naming and reading, the improvements likely reflected the natural course of recovery from a mixed disorder of recognition, naming, and semantic knowledge, through "optic aphasia" to a more purely language-based disorder. Id. at 2. Her performance on word-list learning tasks and formal measures of verbal fluency likewise were consistent with a combination of mild residual memory impairment and a disruption of the semantic aspects of language. Id. at 3. He summarized the import of his consultation as follows:

In summary, Ms. Conn's object naming has improved since the previous evaluation, but remains quite severely impaired. She no longer exhibits overt difficulty with object recognition but does perform poorly on more complex cognitive tasks that involve the recognition and analysis of drawing of objects. Reading is faster but still at least mildly impaired. Memory test performance has improved but her recall of verbal information is still compromised by word retrieval and difficulty with access to semantic knowledge. She continues to close one eye during visual tasks, presumably to overcome the affects of her abducted right eye, but near visual acuity assessed by reading numbers is still approximately equivalent to 20/20 in corrected, binocular vision.

Neuropsychological Consultation of September 15, 2003, at p. 3. This reflected a significant improvement in Donna's functional abilities, but it was "only a small part of the way back to normal." Trial Testimony of Dr. Ratcliff at 71-72.

Dr. Franz referred Donna to Dr. Ratcliff for reassessment in April of 2004. Id. at 73. Further improvement was again noted on a number of levels. Donna reported taking on increased responsibility for the care of her son, although there typically was someone else around when she did so. She assisted her mother-in-law in looking after children on two days a week, looked after her own son on one day and traveled to her husband's business on one or two days.

Although she had difficulty in explaining spontaneously how she thought she had improved since the last consultation, upon questioning she reported that her reading, while still slow, had improved, she no longer outright failed to recognized objects but still had difficulty coming up with an appropriate name, and had been able to learn the names for certain things. She still needed task prompting, although she had gained further improvement. For example, she now needed fewer reminders and could initiate activities such as taking a shower without prompting. Donna's mother also reported that Donna was doing well with her increased responsibility in caring for her son. Id. at 75-79; Neuropsychological Consultation of April 30, 2004 (Plaintiffs' Exhibit No. 12) at p. 1. She still needed prompting with tasks, remained visibly abducted and was closing one eye when attempting to perform visual tasks. Trial Testimony of Dr. Ratcliff at 78-79; Neuropsychological Consultation of April 30, 2004, at p. 2. Testing likewise revealed modest improvement in most test scores, but the overall assessment remained similar. Trial Testimony of Dr. Ratcliff at 79; Neuropsychological Consultation of April 30, 2004, at p. 2. Her Boston Naming Test score had improved to 38-40, which reflected minimal improvement but also verified that Donna remained severely impaired. Qualitatively, it appeared that the deficit was limited to a word-finding difficulty as opposed to object recognition. Neuropsychological Consultation of April 30, 2004, at p. 2. Her word listing scores and recall of short passages also had improved. Neuropsychological Consultation of April 30, 2004, at p. 2. Her processing speed had improved by ten percent but remained mildly-to-moderately impaired in manual dexterity tasks as well as in processing involving a visual search. Her reading remained slow. Neuropsychological Consultation of April 30, 2004, at p.3. Dr. Ratcliff summarized his assessment as follows:

In summary, both Mrs. Conn's behavioral presentation and formal testing suggests some improvement since the previous evaluation. She still experiences quite significant cognitive impairment, predominantly affecting the processing of verbal material, including word-finding difficulty and difficulty retrieving information from memory. There are still very subtle signs of an additional difficulty with visual recognition, but one would probably not attribute much significance to these if one were not aware of her prior history of agnosic-like problems. Performance on visuomotor tasks is probably compromised by her visual deficits, although she seems to manage them quite well. Reading is slow, probably chiefly because of difficulty with the linguistic aspect of the task more than the visual element.

Id. And while the results of the consultation again reflected improvement over the previous evaluation, Donna "still had quite significant cognitive impairment predominantly affecting the processing of verbal material, [that is,] the ability to come up with words and the ability to retrieve information from her memory." Trial Testimony of Dr. Ratcliff at 81. She also remained quite slow in processing tasks, although part of her deficiency could have been attributed to the visual component of her dysfunction. Id. at 81-82.

Dr. Ratcliff did a final neuropsychological evaluation of Donna on June 6, 2007, at plaintiff's counsel's request. He employed the same format and battery of testing, but a considerable amount of additional testing also was done. Trial Testimony of Dr. Ratcliff at 83. By that juncture her abducted eye had been corrected through treatment with an ophthalmologist, Dr. Charlie. Id. at 83. Donna reported she no longer had difficulty recognizing objects, but her reading was still slow, she had to sound out longer words and she still required some cuing from family members to get things done around the house. It was reported that she was still occasionally forgetful and at times oblivious to the fact that there was a need to do a particular chore or activity. These deficits were consistent with the behavioral observations of an individual who is not very spontaneous or proactive and consistent with the presence of a brain injury, particularly one involving the frontal lobes. Id. at 85-86.

The battery of neuropsychological tests produced results substantially similar to those obtained in April of 2004. Id. at 88-89. She again was able to name 40 of 60 items on the Boston Naming Test, but now she was just failing to come up with the names of things as opposed to being unable to recognize objects. Id. at 89. Advanced testing revealed subtle impairment in the recognition of objects but that deficit was no longer apparent on conventional testing. Id. She had moderate difficulty in accessing her fund of knowledge and difficulty with word list learning tasks, with slight improvement in the latter area. Id. at 89-91. Her delayed recall was improved. Id. at 91. She had significant difficulty copying a complicated geometric figure and did very poor in measurements of visuo-spatial ability. Id. at 91. This testing suggested she would have difficulty in areas involving the perception of spatial relationships, such as reading or activities that would involve diagrams like sewing, knitting or dressmaking. It could also translate into difficulty with directions and finding your way around. Id. at 93.

When asked about IQ testing in further detail, Dr. Ratcliff explained that subparts of the standard adult IQ tests had been employed in all of the evaluations. The subparts are used to measure different aspects of mental ability in order to identify the brain functions that have been significantly impacted by an injury. Typically, focal brain injuries produce selective deficits. Thus, individuals often display deficit functioning in the part of the brain that has been damaged and not much impairment in other functions. Thus, the subtesting from IQ tests that is employed is designed to identify those areas of functioning that have been severely affected. In contrast, intelligence testing identifies an average measure that is comprised of many different aspects of mental ability and does not focus on particular brain functions that have been adversely affected. Id. at 93-98.*fn12 Dr. Ratcliff summarized the results of his evaluation as follows:

In summary, there has been no improvement in Ms. Conn's cognitive test performance since the last evaluation in 2004. She still exhibits impaired ability to retrieve verbal information from memory, most obviously on object naming and list-learning task. Object recognition has improved and may be adequate for most everyday purposes but impairments in visuo-spatial and perceptual ability are still apparent on specific testing. These are still likely to affect Ms. Conn's performance in visually demanding tasks or in a visually confusing environment. She was particularly warned to take care when driving at night in wet conditions when reflections can be confusing and she will have difficulty in more complex visuo-spatial tasks or those involving mechanical or constructional ability. It is not surprising that the higher-level deficits involving reading, visual spatial ability and perceptual organization have persisted even though her dysconjugate gaze has improved and visual acuity is normal as they are the results of ...

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