Adams v. U.S.
| Decision Date | 07 March 1996 |
| Docket Number | Civil Action No. 91-11143-RCL. |
| Parties | Diane ADAMS, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
John A. Finbury, Finbury, Sullivan & Lindauer, P.C., Haverhill, MA, for Plaintiff.
Susan M. Poswistilo, Assistant United States Attorney, Paul G. Levenson, Assistant United States Attorney, U.S. Attorney's Office, Boston, MA, for Defendant.
Plaintiff Diane Adams ("plaintiff"), a Massachusetts resident, filed this negligence action against defendant United States of America ("defendant") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b) & 2671-2680. Plaintiff seeks recompense for personal injuries and property damage resulting from an October 8, 1988 accident involving her motor vehicle and a United States Post Office vehicle. The accident occurred in Haverhill, Massachusetts.
Plaintiff initially filed an administrative claim on the appropriate Standard Form 95 ("SF 95") at the Boston office of the United States Postal Service. (Ex. A). Therein, she claimed personal injuries in the amount of $50,000 and property damage in the amount of $2,000. Plaintiff subsequently filed an amendment claiming an additional $30,000 in allegedly unforseen injuries due to a six week treatment for chronic pain in April and May of 1991 at the New England Rehabilitation Hospital in Woburn, Massachusetts.1 (Ex. A, 7, 14, 14a, 15 & 15a).
Plaintiff filed suit in April 1991. Thereafter, defendant stipulated that it was negligent. (Docket Entry # 15). The parties consented to a bench trial before this court in accordance with 28 U.S.C. § 636(c). (Docket Entry # 29).
During the course of a two day trial, this court heard the testimony of: (1) plaintiff; (2) defendant's expert, Gerald F. Winkler, M.D. ("Dr.Winkler"), a board certified neurologist practicing at Massachusetts General Hospital; (3) John E. Houle ("John Houle"); a letter carrier in the neighborhood where plaintiff resided at and around the time of the accident; and (4) Joanne McEnaney, Althea Sheehan and Denise Sheehan, all neighbors of plaintiff's at the time of the accident. The record also contains the deposition of plaintiff's expert, William A. Mitchell, Jr., M.D. ("Dr.Mitchell"), a board certified orthopedic surgeon. (Ex. 20).
Plaintiff's two count complaint requests damages for personal injuries in Count I and property damage in Count II resulting from defendant's negligence. Mindful that the primary issue in this case is the existence and the extent of plaintiff's damages causally related to the accident, this court finds the following facts.
Plaintiff, a 40 year old married woman with four children, presently resides in Bradford, Massachusetts. On the day of the accident, October 8, 1988, plaintiff was 34 years old and lived on Brookdale Lane in Haverhill, Massachusetts. She maintains that she continues to suffer back, neck and hip pain due to the October 8, 1988 accident.
Plaintiff's more recent back problems began in 1986 when she pulled a muscle on the right side of her back while lifting an object at work at the Borden Chemical Company. After notifying her employer, she went to a hospital and received treatment for the injury as an outpatient. Thereafter, she returned to work after a previously scheduled absence of a few days. She testified that the injury left her with no residual pain or loss of motion. As explained in greater detail infra, plaintiff also visited another hospital in July 1988 due to back pain.
Prior to the October 8, 1988 accident, plaintiff also experienced pain in her arms and wrists. In 1983 she had pain in her left elbow with minor aches thereafter. She also testified to receiving a diagnosis of rheumatoid arthritis in her right arm and wrist in June or July of 1988. Plaintiff testified that the arthritis was localized to these areas and did not travel to her neck, back and/or hip.2 Although she experienced pain associated with the arthritis during the month prior to the accident, she has had no problems with arthritis since the accident.3
Plaintiff additionally testified to having pneumonia on an annual basis. Before the October 8, 1988 accident, she also suffered from respiratory problems. She began taking Xanax4 on an irregular, as needed basis several years prior to the accident. According to plaintiff, her anxiety significantly increased after the accident.
Plaintiff additionally stated that she experienced migraines prior to the accident. Shortly after the accident, she testified to suffering severe headaches emanating from the left side of her neck and shoulders into the area of her eyes.
Plaintiff's medical records show a series of various ailments existing prior to the accident and continuing thereafter. Since 1982 plaintiff has experienced abdominal pain particularly in the lower left quadrant and front side of her abdomen. Medical records show that she complained of such pain during visits to a physician in September 1988 and in March and May of 1989. She visited the emergency room of the Hale Hospital in Haverhill in December 1991 in a tearful condition stating that she knew she had ulcers again.
Plaintiff also has a history of menstrual difficulties and gynecological problems including the removal of lumps from her breast and a history of cryosurgery for condylomata. Medical records in April 1989, a few months after the accident, concerning treatment for menstrual problems significantly note plaintiff's acknowledgment that everything was going "much better for her except that her mother has had a brain tumor" and three operations resulting in a lot of stress.5 Plaintiff visited the emergency room at Hale Hospital in September 1991 complaining of pelvic pain. An ultrasound of her pelvis showed a slightly enlarged uterus but revealed no focal masses, fibroids or ovarian cysts.
Medical records reflect that plaintiff experienced difficulties in her left eye including blurred vision prior to the accident in the summer of 1988. She also complained of pain in her left foot resulting in a diagnosis of tendinitis in September 1988.
The medical records further demonstrate that plaintiff visited the Hale Hospital emergency room in July 1988 for pain in her hip and lower back. Medical records describe plaintiff's complaint as "severe pain left side of hip" but the nurse's notes describe pain in plaintiff's right hip. At trial, plaintiff insisted that she complained about pain in her right hip during the July 1988 visit. She testified that she recovered within a two to three day period.
On the day of the accident, plaintiff was driving in an automobile with her niece in the front passenger seat. Both plaintiff and her niece had their seatbelts fastened. A postal truck, operated by a United States Postal Service employee, struck and hit the left, driver's side of plaintiffs automobile.6 The impact of the postal truck pushed plaintiff's vehicle onto a guard rail. At the time of the collision, plaintiff's body was twisted to the right in order to restrain her niece.
After the accident, plaintiff began experiencing headaches and a stiff neck. She telephoned her physician at the time, Dr. Roger N. Gutner ("Dr.Gutner"), on the day of the accident. Dr. Gutner advised plaintiff to take Tylenol for the pain and, in the event it worsened, to go to the hospital.
On Monday October 10, 1988, plaintiff followed Dr. Gutner's advice and went to the emergency room at the Hale Hospital with her husband. A physician, identified in the records as Dr. Gilbert, examined plaintiff and ordered x-rays of her neck. Dr. Gilbert noted that plaintiff had numbness in both arms and complained of pain when turning her head from left to right. He also noted tenderness in the area of the mid to lower cervical spine and in the area of the left trapezius muscle. The radiology report described a loss of cervical curvature consistent with a muscle spasm and no fractures.
Dr. Gilbert diagnosed plaintiff as having a whiplash cervical strain. He prescribed a cervical collar and a Soma compound.7 Plaintiff wore the collar intermittently during the weeks immediately following the accident.
Medical bills for the services of Dr. Gilbert and the radiologist totaled $85 and $58 respectively. In addition to the costs of the x-rays and the services associated therewith of $81 and $36, plaintiff's total medical expenses for the October 10, 1988 hospital visit were $260. (Ex. 1a, 2 & 3).
A few days later, on October 13, 1988, plaintiff visited an orthopaedic physician, Dr. Leonard Popowitz, F.A.C.S. ("Dr.Popowitz") of Haverhill Orthopaedics, Inc. in Haverhill. Dr. Popowitz's notes reflect that plaintiff had a sudden whiplash injury but did not immediately experience pain. Shortly after the accident, plaintiff began to have headaches and pain in her neck area.8 Plaintiff generally complained to Dr. Popowitz of aching pain on the left side of her body in the areas of her back, shoulder, neck and hip.
Dr. Popowitz found that plaintiff had a full range of motion in her cervical spine. His office notes additionally describe the neurological examination as negative. Dr. Popowitz noted tenderness in the area of the left supraclavicular vertebra and "the medial aspect of the scapula." He diagnosed plaintiff as having mild cervical radiculitis and prescribed a course of physical therapy visits. Dr. Popowitz also noted that plaintiff had not yet filled her prescription for Soma as of that date, October 13, 1988. (Ex. 4).
On October 17, 1988, plaintiff had her first physical therapy visit with C. Anthony Bourn ("Anthony Bourn"), a registered physical therapist practicing in Haverhill. After taking a medical history, he proceeded to...
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