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Terri Davis, et al. v. United States of America

August 29, 2012


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge


On March 28 and 29, 2012, the Court presided over a non-jury damages trial to determine the appropriate sum to compensate Plaintiff Troy Dease ("Dease" or "Plaintiff") for the injuries he suffered as a result of an automobile accident that occurred on October 22, 2007. The vehicle Mr. Dease was riding in collided with a truck owned by the Department of Veterans Affairs (the "VA"), serviced by M-D Truck Sales and Services, Inc. (collectively "Defendants"), and operated by Robert Hummel, an employee of the VA. Following the trial the parties requested the opportunity to file proposed findings of fact and conclusions of law upon the completion of the transcripts from the hearing. We granted their request. (See Doc. No. 74.) The record having been prepared, the parties submissions having been filed and duly considered, the matter is now ripe for a ruling. Based upon our review of the testimony offered at trial, these submissions, and for the reasons articulated below, the Court awards Plaintiff Troy Dease $42,035.00 in damages.

I. Findings of Fact

On October 22, 2007 at approximately noon, Dease was in the front passenger seat of a minivan operated by his then girlfriend Terri Davis. He and Ms. Davis were traveling east on Route 322 near Lebanon, Pennsylvania, on their way to Hershey Medical Center*fn1 when a dump truck owned or leased by the VA came into their lane and struck the minivan.*fn2 (See, e.g., see Doc. No. 8 at ¶ 10.) The dump truck had a snowplow attached to its front end. The minivan was severely damaged, particularly on the driver's side where Ms. Davis was sitting. (N.T. 03/28/2012 at 200:2-3. See also Pl.'s Ex. P-1A, P-1B.) At the trial, Plaintiff testified that he was knocked momentarily unconscious by the deployment of the minivan's airbags, but after regaining consciousness, he functioned well enough to be able to assist Mr. Hummel in the effort to extract Ms. Davis from the wreckage. (N.T. 03/28/2012 at 29:20-30:18. See also 201:10-14, for Mr. Hummel's corroborating testimony.) The collision destroyed the front end and shattered the windows of the minivan. Ultimately the first responders had to cut the roof of the van off in order to free Ms. Davis. (N.T. 03/28/2012 at 31:22-34:5.)

Plaintiff, who was forty-five years old at the time of the accident, was taken by ambulance to the Hershey Medical Center emergency room ("ER"). (Id. at 35:1-4. Agreed Facts at ¶ 18.) He was held for approximately two hours and released with a neck brace. (Agreed Facts at ¶¶ 18-20, N.T. 03/28/2012 at 37:8-10.) While at the ER, he underwent multiple tests to assess his injuries, including his back. (N.T. 03/28/2012 at 36:23-25.) In response to questioning about the level of pain he felt, Plaintiff reported pain in various parts of his body but not in his back. (Defs.' Ex. 28 at 1.) Other parts of the ER record, however, reflected that he had "[c]ervical and lumbar spine tenderness" (Defs.' Ex. 28 at 1), and complained of"mild midcervical and mid lumbar spinal pain", but of "[n]o apparent thoracic pain." (Id. at 17.) Plaintiff underwent a series of CT scans while at the ER, including one of his thoracic area, and none of which revealed any objective evidence of injury.*fn3 (Agreed Facts at ¶ 21, Defs.' Ex. 28 at 41.) In summary, the ER discharge form that provides instructions to patients for self-care recorded that Plaintiff had symptoms of back sprain but had suffered "no serious injury" from the accident. (Defs.' Ex. 28 at 6.)

Eight days later, on October 30, 2007, Plaintiff saw Dr. Menges, his orthopedist. (Defs.' Ex. 82.) Dr. Menges noted that while Plaintiff complained of being "stiff and sore", he made no reference to any new injury. (Id.) The doctor prescribed Percocet for "aches and pains", which "result[ed]" from "the knees and lower back and neck problems". (Id.) Significantly, Dr. Menges then reported that "this is an ongoing thing, nothing that we diagnosed new at this visit." (Id.)

The next day, October 31, Plaintiff saw Dr. Eric Ratner, his pain management physician, for a cervical epidural steroid injection that had been scheduled prior to the accident. (N.T. 02/21/2012 at 101:8-19.) Dease made no complaint of thoracic or middle back pain at that time. (Id. at 178:17-22.) Similarly, he made no complaint of thoracic or middle back pain at the time of his November 26, 2007 visit to Dr. Ratner, and reported the same subjective 8 out of 10 pain level in his neck and lower back as he had reported in June 2007, four months prior to the accident. (N.T. 02/21/2012 at 111:9-17, 178:23-179:22.)

A. Plaintiff's Condition Before the Accident

It is undisputed that Plaintiff had an extensive medical history prior to the accident, including for coronary artery disease, pulmonary malfunction, liver disease and cirrhosis, chronic obesity, severe anemia, acute renal failure, degenerative arthritis, osteoarthritis, joint pain, kidney disease, depression and, as is particularly relevant to our analysis, "chronic body pain". (See, e.g., Gov't Exhibits 52-63, 80.) He had begun pain management treatment with Dr. Ratner in December of 2006, some ten months before the accident. (Agreed Facts at ¶¶ 4, 6.) At his initial appointment with Dr. Ratner, Plaintiff complained of"total body pain" and identified seventeen distinct areas in his body where he said he experienced chronic pain. (Agreed Facts at ¶¶ 9-10.) Using a subjective pain scale of 0 to 10, Dr. Ratner noted that at the time of the June 2007 visit, Plaintiff self-reported his lower back pain as 8 out of 10. (Defs.' Ex. 8.)

In the course of his treatment prior to the accident, Plaintiff received three epidural steroid injections to his lumbar spine, the last of which occurred on September 27, 2007, one month before the accident. (Agreed Facts at ¶¶ 13. See also N.T. 03/28/2012 at 28:5-13.) At trial, Plaintiff testified that this last injection in September had reduced his pain level to a 4 out of 10. (N.T. 03/28/2012 at 28:12-21.) Plaintiff had another epidural steroid injection for his neck scheduled for October 24, 2007, but it was postponed to October 31 due to the intervening accident. (Defs.' Ex. 22.)

It is Plaintiff's position that he had been functioning well before the accident. While he had not had regular employment since "either 2001 or 2002" (N.T. 03/28/2012 at 140:18-21), he testified that he regularly participated in doing household chores and enjoyed playing baseball, football and riding bicycles with his children and grandchildren. (See, e.g., id. at 57:5-18.) Ms. Davis, his partner of eighteen years at the time of the accident, was somewhat more reserved but acknowledged that before the accident, Plaintiff was afflicted with various ailments including issues with the joints in his knees and ankles, hepatitis C, and cardiac problems. (N.T. 03/28/2012 at 155:14-157:10.) She also freely testified that Plaintiff had a history of abusing prescription drugs and cocaine, while at the same time characterizing him as drug-free at the time of the accident.*fn4 (See N.T. 03/28/2012 at 156:7-14, in which Ms. Davis described that Dease "also went into a treatment program and was going to NA meetings and was actually clean for a really long time after that, like almost up until the accident, I believe.")

Ms. Davis reported that despite his ailments, Dease had been an able contributor to their household prior to the accident. She stated that he regularly did housework activities such as washing the dishes, doing the laundry, cooking, and yard work. (N.T. 03/28/2012 at 157:18-23.) She referred to him as a "stay-at-home dad" whose health problems had little effect on his ability to tend to family matters. (N.T. 03/28/2012 at 157:24-25, 160:7-14.)

On cross-examination, however, defense counsel pointed out that Ms. Davis had testified at her deposition that she was the one primarily responsible for household tasks in their home. (N.T. 03/28/2012 at 170:14-23.) Ms. Davis later clarified at trial that she meant that she was the head of the household "emotionally", which meant that she "took care of the bills", was the "sole breadwinner" and "took care of the household, keeping it together." (N.T. 03/28/2012 at 172:3-6.) Ms. Davis explained that she did not do all the chores in the home but was more responsible for "making sure the kids, everybody was where they needed to be." (N.T. 03/28/2012 at 172:6-8.) She again clarified further that Plaintiff "was home during the day, so he was basically responsible for the day-to-day chores prior to the accident, and he, you know, basically would do them as he could. And then I basically was the person who ran the household" meaning that she "took care of all the appointments, paid all the bills, made sure repairs were made, cars were taken for inspection, that type of thing." (N.T. 03/28/2012 at 186:21-187:3.)

We further note that on cross-examination of Plaintiff, defense counsel pointed out that he had testified at a deposition in another case that as late as January 2009 he had been able to do various activities with his children including playing baseball, football and riding bicycles. (N.T. 03/28/2012 at 97:14-19.) Plaintiff had also testified at that deposition to being able to do various household chores such as ...

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