Rawers v. U.S. & Clarissa Skinner-Ramp

545 F.Supp.3d 1087

Karen RAWERS, Plaintiff,

v.UNITED STATES of America and Clarissa Skinner-Ramp, Defendants.

No. CIV 19-0034 JB/CG

United States District Court, D. New Mexico.

Filed June 25, 2021

Jess R. Lilley, Jerome O'Connell, Lilley & O'Connell, P.A., Las Cruces, New Mexico, Attorneys for the Plaintiff.

Fred Federici, Acting United States Attorney, Roberto D. Ortega, Sean M. Cunniff, Christopher F. Jeu, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on a two-day bench trial on damages held on September 10, 2020, and September 11, 2020. See Transcript of Bench Trial (held September 10, 2020), filed September 28, 2020 (Doc. 98)("Sept. 10 Tr."); Transcript of Bench Trial (held Sept. 11, 2020) filed September 28, 2020 (Doc. 99)("Sept. 11 Tr."). The primary issues are the amount of damages Plaintiff Karen Rawers should receive for: (i) medical expenses incurred as a result of a vehicle accident between Rawers’ vehicle and a United States Postal Services ("USPS") truck, in which the USPS driver, Clarissa Skinner-Ramp, was negligent; and (ii) damages for pain and suffering and loss of enjoyment of life, fully reflecting the nature extent, and duration of her injuries. The Court concludes that Rawers is entitled to (i) $382,379.62 in medical expenses, because Rawers has incurred or will incur $382,379.62 in medical costs as a result of the April 5, 2016, motor vehicle accident; and (ii) $764,759.24 for pain and suffering, because (a) Rawers experienced significant pain as a result of the motor vehicle accident and the surgeries required by the accident, loss of enjoyment of life; and (b) Rawers’ ability to enjoy the same activities that she did before the motor vehicle accident, including cooking, exercising, bead work, and chores, has been curtailed seriously as a result of the accident, and this amount of damages is necessary to reflect fully the nature, extent, and duration of her injuries, because Rawers is likely to experience neck limitations related to the accident for the rest of her life. Personal injury cases often settle for approximately three times the amount of medical expenses, which the Court considered a good guide in its calculations. Consequently, the Court awards judgment in Rawers’ favor against the Defendant United States of America in the amount of $1,147,138.86.

FINDINGS OF FACT

Rawers and the United States have submitted proposed findings of fact. See Plaintiff's Proposed Findings of Fact and Conclusions of Law at 1, filed October 30, 2020 (Doc. 105)("Rawers FOFs"); Defendant United States of America's Proposed Findings of Fact and Conclusions of Law at 1, filed October 30, 2020 (Doc. 106)("United States FOFs"). The Court has considered carefully Rawers’ and the United States’ sets of facts, and accepts some of those facts, rejects some, and finds some facts that no party brought to its attention. See Rawers FOFs at 1; United States FOFs at 1.¹ The Court sets forth its findings below.²

1. Rawers’ Pre-Accident Medical History.

1. Rawers first injured her back when she sneezed while bending over to kiss her dog in 2005 and thereby ruptured discs in the lumbar region of her back. See Sept. 10 Tr. at 14:8-23 (Lilley; Rawers); Rawers FOFs ¶ 1, at 1; United States FOFs ¶¶ 6-7, at 2; United States’ Closing Argument at 1, filed September 25, 2020 (Doc. 96)("United States Closing")(stating that "[i]t is also undisputed that the origins of Plaintiff's pain, particularly her chronic back ailments, predate the April 5, 2016 motor vehicle accident (the ‘accident’) at issue in this case")(no citation for quotation).

2. Rawers describes this experience as "the most pain I ever felt ... in my life." Sept. 10 Tr. at 14:14 (Rawers). See United States FOFs ¶ 6, at 2.

3. Following her initial injury, "after less invasive measures failed to alleviate her pain," Rawers received a surgical fusion at the bottom two levels of her lumbar spine, L4-5 and L5-S1, in 2007. United States FOFs ¶ 8, at 2. See Sept. 10 Tr. at 207:8-12 (Ravessoud); id. at 15:21-24 (Rawers); Radiographs (x-rays)(Saiz) at 1 (dated December 4, 2019)(admitted at Trial on September 10, 2020, as Rawers’ Ex. 97)("Radiographs"); Rawers FOFs ¶ 294, at 45 (noting that the lumbar fusion "was not related to the MVA").

4. Rawers also had a titanium cage implanted in her lower lumbar region. See Sept. 10 Tr. at 15:4-7 (Rawers); Radiographs; United States FOFs ¶ 8, at 2; United States Closing at 1.

5. After these surgeries, Rawers was able to return to work. See Sept. 10 Tr. at 18:4-8 (Rawers)(stating that, "after the cage was put in, I went back to twelve-hour workdays"); United States FOFs ¶ 9, at 2-3.

6. Until 2009, Rawers worked at Le Cordon Bleu in Pasadena, California, as a culinary instructor. See Sept. 10 Tr. at 21:1-17 (Rawers); Rawers FOFs ¶ 2, at 1; United States FOFs ¶ 9, at 2.

7. In 2009, Rawers fell from a stool while at work at Le Cordon Bleu and has not worked since her fall from the stool. See Sept. 10 Tr. at 129:3-6 (Rawers); id. at 123:11-12 (Rawers); Rawers FOFs ¶ 3, at 1; United States FOFs ¶ 11, at 3; United States’ Closing at 1.

8. The fall from the stool exacerbated Rawers’ existing back pain and created constant pain in her left hip which radiated down her left leg. See Sept. 10 Tr. at 22:15-23:4 (Rawers); Rawers FOFs ¶ 3, at 1; United States FOFs ¶ 11, at 3.

9. Rawers "has been unable to work since she feel off the stool in 2009" because the "accident imposed physical limitations that made it difficult to perform her work as a chef and culinary school instructor," including "an inability to lift more than 15 pounds, stand for long periods of time, or bend over to place food in the oven." United States Closing at 2. See Sept. 10 Tr. at 124:7-16 (Cunniff, Rawers).

10. In 2011, Rawers moved to New Mexico from California. See Sept. 10 Tr. at 25:7 (Rawers); Rawers FOFs ¶ 2, at 1.

11. On July 4, 2013, Rawers had a neurostimulator device implanted in her back. See Timothy Davis, MD, SCS Implantation at 1-2 (dated July 4, 2013)(admitted at Trial on September 10, 2020, as Rawers’ Ex. 93)("SCS Implantation"); Radiographs at 1; Rawers FOFs ¶ 4, at 1; United States FOFs ¶¶ 12-13, at 3; United States’ Closing at 1.

12. A neurostimulator is implanted only in "a patient who has had prior surgery" -- in Rawers’ case "laminectomies," and "pains that are above 6, 7, especially pains that are between 7 and 8." Sept. 10 Tr. at 211:5-13 (Ravessoud). Rawers FOFs ¶ 123, at 5.

13. The device had three components: (i) a St. Jude eon mini internal pulse generator; (ii) a St. Jude tripole lamitrode -- a paddle implanted along her thoracic spine; and (iii) a St. Jude Swiftlock anchor. See SCS Implantation at 2; Radiographs at 1; United States FOFs ¶ 14, at 3.

14. The neurostimulator delivered electric impulses to the nerves in Rawers’ spine, helping to alleviate the pain in her leg and back. See Sept. 11 Tr. at 310:3-25-311:3 (Shelley)(stating that neurostimulators "tend to be used for ... intractable or hard-to-treat leg pain that comes out of the spine"); id. at 490:12-491:10 (Saiz); United States FOFs ¶¶ 15-16, at 3-4; Rawers FOFs ¶ 4, at 1.

15. The neurostimulator diminished, but did not eliminate, Rawers’ pain. See Sept. 10 Tr. at 34:13-16 (Rawers)(testifying that her pain was between two and four out of ten which "was uncomfortable but livable"); id. at 133:13-134:25; Sept. 10 Tr at 253:14-23 (Rauck)(explaining that, before the 2016 accident, Rawers’ "spinal cord stimulator seemed to be working reasonably well," although "there were several [problems] she had had within ... the twelve months prior to April 5, 2016" which is "typical"); Sept. 11 Tr. at 310:23-311:15 (Shelley)(noting that Rawers had a "manageable" pain level after implantation, "on average, three to four out of ten," and that, "after having much, much worse pain," Rawers "was happy that she had that device"); Rawers FOFs ¶ 30, at 7; Rawers FOFs ¶ 149, at 29 (explaining that "Rawers suffered from chronic back pain prior to the accident but her stimulator seemed to be working reasonably well to control pain"); United States FOFs ¶ 16, 18, at 4 (stating that "Rawers continued to suffer pain after the implantation of the device, however, and she experienced limitations in the activities she could undertake"); United States Closing at 2.

16. Rawers would "set and forget" her spinal cord stimulator, because it decreased her pain level. Panel Independent Medical Examination Report at 12, filed May 18, 2020 (Doc. 57-6)("IME Report"). See Rawers FOFs ¶ 5, at 2.

17. With the assistance of the spinal cord stimulator, Rawers was able to walk two miles at a time and to sleep five hours at a time uninterrupted. See IME Report at 12; Rawers Closing at 2; Rawers FOFs ¶ 5, at 2.

18. Rawers did not experience any difficulties with the spina-cord stimulator before the motor vehicle accident on April 5, 2016. See Sept. 10 Tr. at 38:18-39:13 (Rawers); Rawers FOFs ¶ 31, at 7.

19. Rawers had an ischemic stroke³ on the left side of her brain in December, 2014. See Sept. 10 Tr. at 136:19-137:2 (Cunniff, Rawers); Neurology Associates of Mesilla re Dr. Iqbal at 1 (dated May 18, 2016)(admitted at Trial on September 10, 2020, as Rawers’ Ex. 15)(stating that Rawers "reports having a stroke in 2014"); Rawers FOFs ¶ 291, at 54; United States FOFs ¶ 17, at 4; United States Closing at 2.

20. As a result of the stroke, Rawers’ left leg became weaker, and she took Xarelto⁴ for less than one year. See Neurology Associates of Mesilla re Dr. Iqbal at 1 (stating that, "since" the ischemic stroke, "her left leg is weaker, sensitive and having more difficulties"); Sept. 10 Tr. at 138:8-10 (Rawers)(testifying that "after I had the stroke ... I had significant blood clots in my left leg, and I had them removed"); United...