Bergman v. United States

• Citation: 579 F. Supp. 911
• Decision Date: 07 February 1984
• Docket Number: No. G 77-6.,G 77-6.
• Parties: Walter BERGMAN and James Drummond, Personal Representative of the Estate of Frances Bergman, Deceased, Plaintiffs, v. UNITED STATES of America; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, and Thomas J. Jenkins, individually and as a former employee of the Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — Western District of Michigan

579 F. Supp. 911

Walter BERGMAN and James Drummond, Personal Representative of the Estate of Frances Bergman, Deceased, Plaintiffs, v. UNITED STATES of America; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, and Thomas J. Jenkins, individually and as a former employee of the Federal Bureau of Investigation, Defendants.

No. G 77-6.

United States District Court, W.D. Michigan, S.D.

February 7, 1984.

William H. Goodman, Elizabeth Gleicher, Goodman, Eden, Millender & Bedrosian, Neal Bush, Bush, Bennett & Magid, Detroit, Mich., for plaintiffs.

R. Joseph Sher, Nicki L. Koutsis, Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., for defendants.

OPINION ON DAMAGES

ENSLEN, District Judge.

Plaintiffs in this action under the Federal Tort Claims Act (FTCA) are Dr. Walter Bergman and the personal representative of the estate of his late wife, Frances Bergman. Both Walter and Frances Bergman were among the "freedom riders" who traveled by bus into the South in May, 1961 to test a recent pronouncement by the United States Supreme Court that the Constitution required racial equality in interstate transportation facilities. Their encounter with a conspiracy of violent racism in Alabama was described in detail by this Court in an earlier opinion. Bergman v. United States, 565 F.Supp. 1353 (W.D.MI. 1983). That decision followed upon trial of the United States' liability for the injuries plaintiffs suffered during their journey into Alabama.¹ I held that the federal Government was negligent in failing to take steps available to it to avoid the violence, and concluded that,

... the United States' failure to carry out its duties was a primary moving cause without which the physical injuries to the Freedom Riders would not have occurred. Moreover, the Plaintiffs suffered not only physical injury but also injury in the sense that they were deprived of the equal protection of the laws and their right to travel freely interstate.

565 F.Supp. at 1414.

In addition to these rather obvious injuries, Plaintiffs contend that when Walter Bergman was beaten in Anniston, he suffered an injury to one of the arteries that supply blood to the brain. At trial in October, 1983 on the bifurcated issue of damages, Plaintiffs sought to prove that such an arterial injury, though essentially asymptomatic for several months, caused Dr. Bergman to sustain serious and permanent injury to a portion of his brain when he underwent an appendectomy some four months after the beating. The testimony presented to the Court during the five days of trial on damages focused almost exclusively on this causation question, and its resolution is the most difficult task before the Court at this final stage of the litigation against the United States.

Plaintiffs seek damages for Walter Bergman's permanently disabled condition since the operation, and for the toll that condition took on Frances Bergman during her lifetime. Plaintiffs also claim damages based on the events of the ride itself, including the beating, the fear and emotional injury they both suffered, and the Constitutional deprivations that they endured. Each plaintiff requests an award of one million dollars for these injuries, although they argue that in fact the value of their claims exceeds even that amount.²

In support of their damage claims, Plaintiffs presented the testimony of Walter Bergman³ and his present wife, Patricia Bergman. Dr. George Mogill, for many years the family doctor of both Walter and Frances Bergman, also testified on their behalf. In their efforts to prove a causal connection between the beating and Bergman's brain damage, Plaintiffs relied largely on the testimony of their expert witness, Dr. John Gilroy. A specialist in neurology since 1960, Dr. Gilroy is Chief of Neurology at Harper Grace Hospital and Detroit Receiving Hospital in Detroit, consults at several other hospitals there, and is Professor and Chair of the Department of Neurology at Wayne State University. Through a deposition taken in 1983, Plaintiffs also introduced the testimony of the anesthesiologist involved in Bergman's 1961 appendectomy, Dr. Raymond Sphire.

The Government called two expert witnesses to contest Plaintiffs' theory of causation. Dr. Oscar Reinmuth has been a neurologist for some 30 years, and is now Professor and Chair of the Department of Neurology at the University of Pittsburgh. Dr. Maurice Victor's background includes a decade of teaching at Harvard University, and he has been a Professor of Neurology at Case Western Reserve University and Chair of the Department of Neurology at Cleveland Metropolitan General Hospital since about 1962.

All of the extremely well-qualified experts relied on Dr. Gilroy's report of an examination of Bergman early in 1983, and supplemented that information with medical records which were also received in evidence. Those records include extensive reports from Dr. Bergman's 1961 hospitalization, and a thorough reevaluation of Bergman's condition undertaken in 1975.⁴ A number of other exhibits were also received.

In preparing this opinion, and weighing the sharply contrasting expert testimony, I have reviewed the entire record and considered the briefs submitted by the parties. Having done so, and having observed the witnesses and heard the evidence presented at the time of trial, I make the following findings of fact and conclusions of law, as required by Rule 52(a), Federal Rules of Civil Procedure (FRCP). I turn first to the most difficult and most controverted question of whether Dr. Bergman's brain damage was proximately caused by injuries he received in Anniston, Alabama.

I. CAUSATION

The Beating in Anniston

On May 14, 1961 the Trailways Bus carrying Walter and Frances Bergman, and other freedom riders, stopped in Anniston, Alabama. There, Walter Bergman was beaten into unconsciousness by a group of attackers who entered the bus carrying brass knuckles and clubs. Dr. Bergman recalled being floored by blows to the head and face, but once on the floor of the bus he quickly blacked out. Other witnesses provided details of the severe beating Bergman sustained.

Schooled in nonviolence, Bergman had offered no resistance to the blows, but Isaac Reynolds testified that it "took something for them to beat him down to the floor where they began to kick and stomp him." (TR L 89).⁵ Herman K. Harris testified that there were "two main guys" kicking Dr. Bergman, and that they "just kicked him and kicked, just kicked him * * Up, up his head and shoulders in the back. I thought maybe they would break his, bust his head, ..." (TR L 168). Another freedom rider, Ivor Moore, ended up on top of Bergman, and he was also kicked and stomped. According to Reynolds, the beatings lasted a total of maybe seven or eight minutes, then Bergman was picked up and thrown over several seats to the rear of the bus. At the time of the incident, Bergman was 61 years old.

When Bergman regained consciousness, he was seated, and the bus was moving on its way to Birmingham. Both of his eyes were blackened from the blows he had received, and his jaw was so sore and swollen that he had to live on a liquid diet for several days. Bergman testified that he felt he had recovered his "normal sensibilities" when he came to. (TR L 525). He does not recall feeling dizzy, and he was aware of his surroundings. Over the next few days he had no visual problems, no headaches, suffered no further loss of consciousness, and did not feel faint. (TR D 296-297). He believed his wounds needed only time to heal, and he did not seek medical attention for his injuries. (TR D 296, TR L 535).

The freedom riders, unable to continue their bus trip from Birmingham, flew to New Orleans where they stayed for a few days, participating in civil rights activities. The Bergmans then returned to Detroit, Dr. Bergman resuming work he had begun before the trip, on the grounds of their new home. Bergman testified that in April he had cleared a path up a hill from a creek on the property, and that after returning to Detroit he was taking pebbles from the creek bed and using them to cover the path he had already cleared. He testified that the work was fairly strenuous; the hill was steep enough to require five switchbacks, and Bergman was pushing the rocks up the trail in a wheelbarrow. His time that summer was divided between the work on his property and a busy schedule of civil rights activities, including speaking engagements and training events in the midwest and east.

At trial, Dr. Bergman recalled that much later his wife told him that she had noted he had been dragging one of his feet slightly since the beating. The medical records contain reports of this "foot drop" and that Bergman had been acting somewhat "hazy" and had shown some personality change during the summer. It appears that this information came largely from Frances Bergman, although in one notation, a doctor states that "this peculiar demeanor was noticed by the physicians and later confirmed by the patient's wife." (Ex. 2, p. 201). A history taken by Dr. Mogill on September 16, 1961 noted that after the beating in Anniston, Bergman "was somewhat dizzy for sometime although there was no apparent sequelae of unusual moment." (Ex. 2, p. 197). However, Bergman's present recollection is that he did not suffer any dizziness during the summer of 1961, and he testified that he could not say whether he had in fact been somewhat "hazy" during the months following the beating. The secondhand reports in the medical record are the only evidence before the court of any possible sign during the summer of 1961 that the injury Bergman received in Anniston might be more serious than Bergman had at first believed.

The Operation

On September 15, 1961, Frances Bergman contacted Dr. Mogill and told him that Bergman had diarrhea and abdominal pain. The doctor prescribed some medication, but when Bergman's...