Shaver v. U.S.

319 F.Supp.2d 649

Lois Paxton SHAVER, Plaintiff, v. UNITED STATES of America, Defendant.

No. CIV. 1:02CV00671.

United States District Court, M.D. North Carolina.

May 19, 2004.

COPYRIGHT MATERIAL OMITTED

David D. Daggett, John K. Koontz, Lewis & Daggett, Winston-Salem, NC, for Plaintiff.

Gill P. Beck, Joan Brodish Binkley, Office of U.S. Attorney, Greensboro, NC, William Alford, Captain, Arlington, VA, for Defendant.

MEMORANDUM OPINION

BULLOCK, District Judge.

On August 15, 2002, Lois Paxton Shaver ("Plaintiff") filed this civil action against the United States of America ("Defendant") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("the FTCA"), for personal injuries arising out of an automobile accident between Plaintiff and James Stephen Tinker, a recruiter for the Department of the Army. This matter is before the court following a bench trial on the issues of causation and damages, which concluded on February 5, 2004. At trial, both parties presented witnesses and exhibits, as well as deposition transcripts, for the court's consideration. After careful review of the parties' exhibits and deposition transcripts, and after careful evaluation of the testimony of each witness and consideration of the witness's interest, if any, in the outcome of the case, each witness's demeanor and manner of testifying, and each witness's opportunity to acquire knowledge of the facts about which he or she testified, as well as the extent to which other credible evidence either supported or contradicted each witness's testimony, the court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). Based on these findings of fact and conclusions of law, the court will enter judgment for Plaintiff.

FINDINGS OF FACT

A. Parties and Procedural Background

1. Plaintiff is a citizen and resident of Cabarrus County, North Carolina.

2. Defendant is the government of the United States of America.

3. On October 23, 2001, Plaintiff presented a complete and proper administrative claim in writing to the appropriate federal agency for determination, as required by 28 U.S.C. § 2675(a). Specifically, Plaintiff submitted to the Department of the Army, Staff Judge Advocates Office XVIII Airborne at Fort Bragg, North Carolina, an executed Standard Form 95 and a claim for money damages in the amount of $206,200.00 for personal injury, as required by 28 C.F.R. § 14.2(a). The Department of the Army effectively denied Plaintiff's claim by failing to make a final disposition of Plaintiff's claim within six months after Plaintiff filed her claim. See 28 U.S.C. § 2675(a) ("The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.").

4. On August 15, 2002, Plaintiff filed a complaint against Defendant in this court pursuant to the FTCA. Plaintiff's complaint stated a single claim for relief against Defendant on the basis of negligence and alleged that "Plaintiff has been damaged on account of the negligence of the Defendant by reason of her personal injuries, including her permanent injuries, pain and suffering, [and] medical expenses in a sum in excess of $75,000 in compensatory damages." (Compl., ¶ XVI.)

5. On October 17, 2002, Defendant filed an answer to Plaintiff's complaint in which Defendant denied the material allegations contained in Plaintiff's complaint and asserted eight affirmative defenses to the allegations contained in Plaintiff's complaint, including the affirmative defense of contributory negligence.

6. On August 26, 2003, Plaintiff filed a motion for summary judgment on the issues of liability and contributory negligence. The court subsequently denied Plaintiff's motion for summary judgment in a written order entered November 21, 2003.

B. Factual Background

7. Plaintiff is a fifty-four-year-old female who has a history of health problems, which include fibromyalgia, hypertension, anxiety, and depression.

8. On May 5, 1987, Dr. Robert H. Beaver of Northeast Orthopedics began treating Plaintiff for a work-related back injury.

9. On September 4, 1991, the Social Security Administration determined that Plaintiff qualified as totally disabled and that Plaintiff was eligible to receive social security disability benefits because of her work-related back injury. Plaintiff has received social security disability benefits continuously since September 4, 1991.

10. On January 11, 1994, Plaintiff presented to Northeast Orthopedics with complaints of back pain and leg pain. According to Plaintiff's medical records from Northeast Orthopedics dated January 11, 1994, which Defendant submitted as an exhibit at trial, Dr. Beaver examined Plaintiff and injected DepoMedrol and Xylocaine into Plaintiff's left SI joint posteriorly. (Def.'s Exs. B and Q.) DepoMedrol is an intramuscular steroid used to treat inflammation and to relieve pain. Xylocaine is a local anesthetic.

11. On February 3, 1994, Plaintiff contacted Dr. Beaver because she had not experienced significant relief from her back pain and leg pain. According to Plaintiff's medical records from Northeast Orthopedics dated February 3, 1994, which Defendant submitted as an exhibit at trial, Dr. Beaver spoke with Plaintiff and prescribed a Medrol Dosepak to treat Plaintiff's back pain and leg pain. (Id.) A Medrol Dosepak is an oral steroid used to treat inflammation and to relieve pain.

12. On March 3, 1994, Plaintiff presented to Northeast Orthopedics with complaints of shoulder pain. According to Plaintiff's medical records from Northeast Orthopedics dated March 3, 1994, which Defendant submitted as an exhibit at trial Dr. Beaver examined Plaintiff and injected DepoMedrol into Plaintiff's right shoulder. (Id.)

13. From May 12, 1994, to December 5, 1996, Dr. R. Gordon Senter treated Plaintiff for shoulder pain, back pain, hip pain, and leg pain associated with fibromyalgia. According to Plaintiff's medical records from Dr. Senter's office from May 12, 1994, to December 5, 1996, which Defendant submitted as an exhibit at trial, Dr. Senter treated Plaintiff's back pain and leg pain with multiple intramuscular steroid injections. (Def.'s Exs. C and Q.)

14. On February 3, 1997, Plaintiff presented to Dr. Senter's office with complaints of back pain, leg pain, foot pain, depression, anxiety, and panic attacks. According to Plaintiff's medical records from Dr. Senter's office dated February 3, 1997, which Defendant submitted as an exhibit at trial, Dr. Senter conducted a physical examination of Plaintiff and observed that Plaintiff's "knees [were] a little tender." (Def.'s Ex. C.)

15. Plaintiff's medical records from Dr. Senter's office dated February 3, 1997, show that Dr. Senter prescribed a Medrol Dosepak to "knock out her pain." (Id.)

16. On February 14, 1997, Plaintiff presented to Dr. Senter's office with complaints of physical pain, including pain while walking, depression, anxiety, and panic attacks. According to Plaintiff's medical records from Dr. Senter's office dated February 14, 1997, which Defendant submitted as an exhibit at trial, Dr. Senter's assistant conducted a physical examination of Plaintiff and observed that Plaintiff's "knees [were] a little achy and sore." (Id.)

17. Plaintiff's medical records from Dr. Senter's office dated February 14, 1997, show that Dr. Senter injected Dalalone and Xylocaine into Plaintiff's left greater trochanteric bursa and into several trigger points in Plaintiff's neck and back. (Id.) Dalalone is an intramuscular steroid used to treat inflammation and to relieve pain.

18. On May 19, 1997, Plaintiff presented to Dr. Senter's office with complaints of physical pain, including pain in both knees, depression, anxiety, and panic attacks. According to Plaintiff's medical records from Dr. Senter's office dated May 19, 1997, which Defendant submitted as an exhibit at trial, Dr. Senter's assistant conducted a physical examination of Plaintiff and observed that "[Plaintiff] is very tender and sore over both anserine bursa[e] with some mild tenderness at the joint line but most of the tenderness is in the bursa[e] and she complains of more pain in the lower area of the knee [with] walking, than across the joint line." (Id.)

19. Plaintiff's medical records from Dr. Senter's office show that on May 19, 1997, Dr. Senter injected Dalalone and Xylocaine into Plaintiff's knees at the bursa and into several trigger points in Plaintiff's neck and back. (Id.)

20. On June 5, 1997, Plaintiff presented to Mount Pleasant Family Physicians ("Mount Pleasant") with complaints of knee pain. According to Plaintiff's medical records from Mount Pleasant dated June 5, 1997, which Defendant submitted as an exhibit at trial, Plaintiff told physicians at Mount Pleasant that her right knee had bothered her for the past two months and that "it ha[d] been really painful over the past [one and one-half] weeks." (Def.'s Ex. D.) Plaintiff's medical records from Mount Pleasant show that Plaintiff also told physicians at Mount Pleasant that she had fallen on her right knee one and one-half weeks earlier, and since that time "she ha[d] felt it popping and ha[d] been unable to put much weight on it." (Id.)

21. On June 5, 1997, physicians at Mount Pleasant took an x-ray of Plaintiff's right knee. According to an evaluation of the x-ray of Plaintiff's right knee contained in Plaintiff's medical records from Mount Pleasant, the x-ray showed the presence of degenerative disease, "a questionable bone spur on the tibia protruding into the joint space," and "[a] narrowing of the lateral joint space and degenerative disease." (Id.)

22. On June 17, 1997, Plaintiff presented to Dr. Senter's office with complaints of back pain and knee pain. According to Plaintiff's medical records from Dr. Senter's office dated June 17, 1997, which Defendant...