Guerra v. United States

690 F.Supp.3d 1357

Francisco GUERRA, Plaintiff, v. UNITED STATES of America, Defendant.

Case No. 8:20-cv-653-MRM

United States District Court, M.D. Florida, Tampa Division

Signed June 26, 2023

Jason Robert Derry, Paul B. Fulmer, III, Morgan & Morgan, PA, Tampa, FL, Jeanette O. Cardenas, Morgan & Morgan, P.A., Saint Petersburg, FL, Jason Gerard Gordillo, Pinellas County Sheriff's Office, Largo, FL, for Plaintiff.

Callan Albritton, Joseph Michael Tompkins, U.S. Attorney's Office, Tampa, FL, Matthew Hart Perry, Boohoff Law, Tampa, FL, for Defendant.

ORDER

Mac R. McCoy, United States Magistrate Judge

On March 20, 2020, Plaintiff filed his Complaint in this Court, bringing claims for negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., against the United States of America and Christy Green related to a motor vehicle accident. (Doc. 1). The Court later dismissed Ms. Green as a defendant, (Doc. 20), leaving only the negligence claim against the Government. The Court held a four-day bench trial from April 11, 2023 to April 14, 2023. (Docs. 78, 79, 82, 85). At the conclusion of Plaintiff's case-in-chief, the Government moved under Federal Rule of Civil Procedure 52(c) for judgment on partial findings on causation. (See Doc. 79). Having heard the testimony at trial and considered all the evidence and the parties' submissions, the Court enters the following findings of fact and conclusions of law in accordance with Rule 52. In short, the Court rules that Plaintiff has not met his burden of proving causation, the Government's Rule 52(c) motion is granted, and judgment is entered in favor of the Government.

BACKGROUND

The Court has jurisdiction over this case under the FTCA. 28 U.S.C. § 1346(b); see Porras v. United States, No. 8:21-cv-423-JSS, 2023 WL 2583303, at *1 (M.D. Fla. Mar. 21, 2023). Through the FTCA, the United States has waived its sovereign immunity "with respect to claims for money damages, injury or loss of property, or personal injury caused by the negligent or wrongful act or omission of any Government employee if the injury or loss was caused while the employee was acting within the scope of their employment." Id. (citing 28 U.S.C. § 1346(b)(1)). The governing law of claims under the FTCA is the "law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because the motor vehicle accident at issue occurred in Saint Petersburg, Florida, the Court applies Florida substantive law. See Porras, 2023 WL 2583303, at *1.

In the parties' Joint Pretrial Statement, they stipulated to the admission of four facts:

1. Time, date, and place of the accident.

2. At the time of the accident, Ms. Green was an employee of the Department of Veterans Affairs ("VA"), engaged in the course and scope of her employment, and operating a VA owned vehicle with permission.

3. Plaintiff timely filed his initial administrative claim (SF 95) with the VA.

4. Plaintiff owned the vehicle that he was operating at the time of the incident.

(Doc. 66 at 13). The Court adopts these as part of its findings of fact based on the parties' stipulation. The parties also identified three disputed issues of fact to be decided at trial:

1. Whether the Defendant caused any injury to the Plaintiff.

2. If the Defendant caused an injury to the Plaintiff, whether the injury is permanent.

3. Plaintiff's damages.

(Id. at 14).¹ Because the Court finds Plaintiff did not prove causation, the Court does not reach the two, latter issues.

FINDINGS OF FACT

The following are the findings of fact necessary for the Court to enter judgment. The Court has adopted and adapted many of these findings from the parties' proposed findings of fact and conclusions of law. (Docs. 91, 92).²

I. The Accident

This case arises from a motor vehicle collision that took place on January 12, 2018, sometime between 11:00 AM and 1:00 PM. (Doc 87 at 29:9, 20; 82:19-21). It was a rainy and cloudy day, with a lot of traffic on the road. (Id. at 29:22-23; 82:22-23). Plaintiff was traveling east along 38th Avenue North in the left turn lane. (Id. at 30:13, 18; 82:24-25; 85:1-4). In addition to the turn lane, there are three lanes proceeding straight. (Id. at 30:15). Traffic was very busy with all four lanes backed up. (Id. at 30:21; 31:9-10). Plaintiff was stopped in the left turn lane; when he saw the light turn to a green arrow, he proceeded forward. (Id. at 31:20-23).

Ms. Green had previously pulled off the road into a gas station parking lot to check her GPS for directions. (Doc. 88 at 155:11-18). After she figured out where she was, she decided she needed to pull out onto the road, entering the right lane perpendicular and then crossing multiple lanes of traffic to get into the left turn lane. (Id. at 156:4-9). She described her pace crossing the lanes as "creeping" and "crawling." (Id. at 163:12-20).

As Plaintiff was proceeding forward, going with the flow of traffic after the light had turned green, Ms. Green's car suddenly entered the lane, and the two cars collided. (Doc 87 at 31:17-32:12). Plaintiff's vehicle sustained damage to the front passenger side, and the frame of the vehicle became crooked, rendering it undriveable. (Id. at 32:24-25). No airbags deployed in either car. (Doc. 89 at 118:20-24). After the collision, both vehicles moved to the Burger King parking lot, on the left side across the road. (Doc. 87 at 35:5-7). Plaintiff called the police. (Id. at 35:22). Both Plaintiff and Ms. Green spoke with the officer, and a report was made. (Id. at 36:3-4).

II. Post-Accident

In the immediate aftermath of the collision, Plaintiff was in shock. (Id. at 35:2). While Plaintiff was not immediately in pain, he started noticing a sore feeling in his back the next day. (Id. at 36:8, 12-14). Plaintiff described the pain as occurring on the right side of his back, under his right shoulder blade, stemming up to his neck and down to his mid back. (Id. at 36:23-37:3). Plaintiff did not go to the doctor the next day in hopes that he could "tough it out." (Id. at 37:8-20). Before the accident, Plaintiff had never seen a chiropractor or had medical treatment related to neck or back problems. (Id. at 40:11-20). Plaintiff has not been involved in any vehicle crashes before or after January 12, 2018, either as a driver or passenger. (Id. at 57:20-58:4).

Over the next ten to twelve days, Plaintiff's pain gradually started getting worse, and the more he did physical activities or tried to move about, he noticed that the pain worsened. (Id. at 38:16-20). Around this time, along with his wife telling him to finally go to the doctor, his back locked up as he was making dog food. (Id. at 38:21-39:1). He was in bed for almost two days as a result of this and decided it was time to go see someone. (Id. at 38:22-39:3).

Plaintiff's sister-in-law referred him to Dr. Sean Woodward. (Id. at 39:5-8). Plaintiff sought medical treatment with Dr. Woodward for complaints of severe back pain. (Id. at 39:19-24). Following Plaintiff's first visit with Dr. Woodward, at which there was not much treatment, Dr. Woodward decided to order some imaging. (Id. at 40:25-41:2). At the direction of Dr. Woodward, Plaintiff had x-rays and MRIs of his neck and mid back area. (Id. at 41:11-15). Plaintiff began to regularly see Dr. Woodward, and in early 2018, he received (i) ice treatments with a TENS machine that would loosen up the muscles around his back area; (ii) manual therapy from one of the therapists, similar to a back massage; and (iii) some kind of strengthening exercise and an adjustment. (Id. at 42:17-43:3). The treatment and visits in these early stages with Dr. Woodward were temporarily helpful, providing two to three days of relief. (Id. at 43:14-21; see also Doc. 86-9, Joint Trial Ex. 9).

During Plaintiff's treatments with Dr. Woodward, he was referred to Dr. Christopher Koebbe, a surgeon from whom Dr. Woodward wanted to get an opinion. (Id. at 47:5-12). On March 30, 2018, Plaintiff presented to Dr. Koebbe one time, (id. at 48:6-9), at which Plaintiff indicated the areas of his body that were in pain, including from the top of his shoulder down to the right shoulder blade, in between the shoulder blade, and the spine on the right side. (Id. at 47:18-22). The purpose of seeing Dr. Koebbe was to get other opinions for additional treatments that might benefit Plaintiff. (Id. at 47:23-48:2).

After being evaluated by Dr. Koebbe, Plaintiff continued to treat with Dr. Woodward. In July 2018, Dr. Woodward recommended manipulation under anesthesia, which Plaintiff decided to try. (Id. at 48:20-49:4). This was a two-day procedure performed on consecutive days. (Id. at 49:5-8). The procedure was performed at Dunedin Surgical Center, with Dr. Woodward and Dr. David Wolstein. (Id. at 50:1-15). The manipulation under anesthesia provided Plaintiff relief, making him feel a lot more at ease and allowing him to stand up straighter. (Id. at 51:19-24). Plaintiff still had some pain with physical activity but not as bad as before he had the procedure done. (Id. at 51:24-52:2). The manipulation under anesthesia provided Plaintiff relief for two to three months. (Id. at 52:7-9).

During Plaintiff's treatments with Dr. Woodward, he was also referred to Dr. Stephen Watson for an evaluation in May 2018. (Id. at 52:18-20). Plaintiff was seen by Dr. Watson a couple of times. (Id. at 52:22-25). Dr. Watson referred Plaintiff for further imaging, and he then discussed the results during his last visit with Plaintiff. (Id. at 54:9-55:4). Ultimately, Dr. Watson opined that Plaintiff sustained permanent injuries to his thoracic spine at disc levels C2-3, C4-5, T2-3, T3-4, T4-5, T5-6, T7-8, T8-9, and T10-11. (Doc 88 at 117:3-118:11). Dr. Watson also opined that Plaintiff is a candidate for an annuloplasty/discectomy and neural decompression at T2-3, T3-4, T4-5, T7-8, T8-9, and T10-11. (Id. at 123:10-14). Dr. Watson had reservations, however, about performing the procedure unless Plaintiff lost weight: "I would request...