Calva-Cerqueira v. U.S.
| Decision Date | 10 September 2003 |
| Docket Number | Document No. 125.,Document No. 126.,Document No. 134.,Civil Action No. 99-1198 (RMU). |
| Citation | 281 F.Supp.2d 279 |
| Parties | Enrique CALVA-CERQUEIRA, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Gerard E. Mitchell, Laurie A. Amell, Stein, Mitchell & Mezines, Washington, DC, for the Plaintiff.
Edith M. Shine, Robert E. Leidenheimer, Jr., Assistant United States Attorney, Washington, DC, for the Defendant.
Danny C. Onorato, Barry Coburn, Coburn & Schertler, Washington, DC, Guardian ad litem.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case involves a 1998 collision ("the accident") between a bus owned and operated by defendant United States and an automobile operated by plaintiff Enrique Calva-Cerqueira. As a result of the accident, the plaintiff suffers from paralysis, decreased sensation in the left side of his body and is wheelchair bound. The plaintiff, who was 18-years-old at the time of the accident, brings this case pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. On May 3, 2001, the court determined that the defendant was liable for the accident. Having presided over an eight-day trial on the plaintiff's actual damages and likely future damages, the court now determines that substantial evidence supports an award of the following compensatory damages: $5,000,000 for pain and suffering, $899,325 for past medical expenses, $2,562,906 for future lost wages, and $15,435,836 for future medical and related expenses. The court reduces the award to a total of $20,000,000 because the plaintiff's original claim for damages requests that amount. Finally, resolving two miscellaneous issues, the court declines to adopt the defendant's request for a reversionary medical trust and determines that the defendant shall pay the fees of the guardian ad litem.
1. On August 3, 2000 the court granted the defendant's motion to bifurcate the liability and damages portions of this action. On May 3, 2001, after a three-day bench trial on the issue of liability, the court determined that the defendant was liable for the accident and resultant injuries to the plaintiff. Findings of Fact and Conclusions of Law dated May 3, 2001 ("FFCL") at 16. Beginning on December 9, 2002, the court presided over an eight-day bench trial on the issue of the plaintiff's damages. On February 25, 2003, the parties filed proposed findings of fact and conclusions of law.
2. The plaintiff was born on November 16, 1979, the second son of Maria Teresa Cerqueira and Roberto Calva. Pl.'s Ex. 146. His older brother Daniel was born in 1977. Id.
3. The plaintiff spent his early years in Mexico City. Id.; Pl.'s Ex. 121. His parents separated in 1984 and divorced two years later. Pl.'s Ex. 146. After completing first and second grade in Mexico City, the plaintiff moved with his mother and brother to Ithaca, New York. Pl.'s Exs. 121, 146. The plaintiff's elementary school grades ranged from average to above average. Pl.'s Ex. 121. The plaintiff and his brother spent the summer of 1991 with their father in Mexico, and then elected to remain in Mexico with their father. Pl.'s Ex. 146. The plaintiff's school grades from 1991 through 1994 ranged from average to good. Pl.'s Ex. 121.
4. On December 25, 1994, the Calva-Cerqueira family was on a vacation in Italy when they were involved in a motor vehicle accident ("1994 accident"). Tr. 2/81-83, 2/104.1 Roberto Calva, the plaintiff's father and a pediatrician, testified that he attended immediately to his son and observed no loss of consciousness. Id. Although the other occupants of the vehicle were not injured, the plaintiff suffered a fracture of the maxillary sinus, the thin bone which serves as the orbital floor and the upper boundary of the maxillary sinus. Tr. 2/36, 2/82-83.
5. The defendant presented evidence attempting to prove that this 1994 accident caused the plaintiff a mild brain injury, and the plaintiff presented evidence to the contrary. E.g., Tr. at 1/38, 2/36, 3/46-48, 3/75, 5/62-64, 6/127-28, 8/106-07, 8/127-28; Def.'s Exs. 21A, 23A, 53; Pl.'s Exs. 23, 111A-B. No such brain injury is documented in the plaintiff's medical records. Id. In addition, the defendant's evidence of the plaintiff's alleged mild brain injury is not compelling and would require this court to speculate. Id.
6. While living with his father in Mexico, the plaintiff suffered an emotional breakdown and was hospitalized for six weeks for detoxification from cocaine, inhalants, alcohol and other illegal drugs. Tr. 3/112-13, 3/117, 3/122-23; Pl.'s Ex. 35. Upon discharge from the detoxification program, the plaintiff was diagnosed as having a depressive disorder. Pl.'s Ex. 32.
7. In January 1997, the plaintiff moved to the United States to live with his mother in Fairfax, Virginia. Pl.'s Ex. 146. He participated in a second substance abuse treatment program and saw a psychiatrist, Dr. Eliot Sorel, from January through November 1997, but continued to abuse drugs during that period. Tr. 1/90-91, 5/64-65, 5/109-11, 7/5-22; Pl.'s Exs. 6, 27, 49.
8. In November of 1997, Dr. Sorel recommended that the plaintiff consent to urine screening. Pl.'s Ex. 49. Despite his family's encouragement, plaintiff chose to discontinue seeing his psychiatrist and continued to abuse illegal drugs and alcohol. Id.; Tr. 5/114-15, 7/49. Dr. Sorel's records indicate that the plaintiff was using marijuana three times a week in late 1997. FFCL at 7. The plaintiff continued this frequency of usage up to the time of the accident. Id.
9. At the plaintiff's post-accident urine drug screening, which was administered at 11:15 on the morning of the accident at George Washington University Hospital, he tested positive for cannabis. Id. The laboratory report indicated that the test was a "presumptive screen only," and could be positive up to two weeks after marijuana use. Id.
10. Due to academic difficulties at W.T. Woodson High School caused by his mid-semester enrollment, the plaintiff failed three classes, received a "B" in a math class, and then withdrew from the school. Tr. 4/82-83, 5/66; Pl.'s Ex. 121. He subsequently enrolled at the Fairfax County Adult Education program, which afforded him an opportunity to earn the equivalent of a high school diploma. Id. His English teacher stated that he loved learning, was very bright and motivated, and had clear goals. Tr. 4/74-75. She added that he had an excellent attendance record and "was definitely college material." Tr. 4/82.
11. The plaintiff held several part-time jobs during the 1997-98 school year. Pl.'s Ex. 146. He worked at Kentucky Fried Chicken ("KFC") from April 29, 1998 until the date of his injury, June 14, 1998. Id. The plaintiff's supervisor at KFC at the time of the accident, Maria Rivera, testified that he was enthusiastic, smart, intelligent, very motivated, and had perfect attendance. She said that she promoted him twice and that she would hire him back. Tr. 4/6-9. The plaintiff also played soccer with the Fairfax Police Youth Club League during the 1997-98 school year. Tr. 5/67. Jason Velasco, the plaintiff's soccer coach, testified to the plaintiff's perfect attendance over three seasons, interest in college, excellent physical condition, aptitude, and the absence of any hint of neurological problems. Tr. 3/130-33.
12. The plaintiff's rehabilitation psychiatrist, Dr. Sorel, testified that the plaintiff had demonstrated improvement. Tr. 7/55. Although the plaintiff did not enroll in urinalysis drug testing as Dr. Sorel had hoped, ambivalence is usual and customary for late adolescent patients. Tr. 7/61-62. Thus, the plaintiff was, more likely than not, on the road to full recovery immediately prior to the fateful accident.
13. Considering the plaintiff's pre-accident circumstances, the court finds that the plaintiff's prospects improved when he returned to the United States to live with his mother, largely due to her close supervision of him. Tr. 5/70-75, 5/105-20. The plaintiff's academic and social performance showed improvement: by spring 1998 the plaintiff was better adapted socially, holding down a job, and looking forward to college following graduation from high school. Tr. 5/118-20. He had exhibited interest in taking the SAT, secured checking and savings accounts in his own name, and paid many of his own expenses. Tr. 1/67-70, 2/85-100, 5/105-18. The plaintiff's mother testified that he had taken steps toward college and, like her other son Daniel, he would attend the northern Virginia community college ("NOVA") and then continue on to a four-year college. Tr. 5/118-20. Similar to the plaintiff's work at a fast food restaurant while attending school, Daniel worked at a bagel store while he attended NOVA. Tr. 5/120. The plaintiff had discussed attending NOVA with his brother, psychiatrist, soccer coach, and a family friend. Tr. 1/70, 1/75, 3/132, 4/96; Pl.'s Ex. 23A. The plaintiff's brother's path—working at a restaurant during school, attending NOVA while living at home, then enrolling at Georgetown and medical school—served as a road map for the plaintiff. Tr. 1/62-63, 5/120.
14. The plaintiff was a bright young man with good cognitive functions. His standardized testing scores showed above average intelligence, and he frequently scored his best grades in subjects such as mathematics, science, and English that indicate his potential for higher cognitive functioning. Tr. 4/75, 4/96. Further, the plaintiff has a highly educated family: his mother has a doctorate degree in nutrition, his father is a medical doctor and practicing pediatrician and gastroenterologist, his brother is attending medical school, and an uncle and a cousin are practicing veterinarians. Tr. 2/81-85, 5/61-62.
15. The plaintiff's...
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