Coleman v. United States
| Decision Date | 23 April 2014 |
| Docket Number | Civil No. 12-cv-03801-MAB |
| Parties | KEON COLEMAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiff, Keon Coleman, was injured in a car accident involving a government-owned vehicle driven by Yvette Tuzon, an employee of the United States Office of Personnel Management ("OPM") acting within the scope of her employment. He filed the present action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, claiming damages stemming from Ms. Tuzon's negligence. The United States has conceded liability for the accident, but challenges the damages Plaintiff seeks. After a bench trial on March 4, 2014, the court makes the following findings of fact and conclusions of law.
Plaintiff first injured his right forearm in March 2009. (Trial Tr. 14:3-:24, Mar. 4, 2014.) Dr. Richard Barth, an orthopedic surgeon specializing in hand surgery, diagnosed a fracture of the radius combined with dislocation of the articulation of the radius and ulna at the wrist. (See Def.'s Ex. 2 (Dr. Richard Barth Dep., Jan. 29, 2014) 5:20-6:6, 6:24-7:12.) On March 16, 2009, he performed a surgery on Plaintiff's forearm to insert a stainless steel plate to stabilize the fracture and facilitate proper healing. (Barth Dep. 6:24-9:4.)
In July 2009, Dr. Barth performed corrective surgery on Plaintiff's arm, replacing the steel plate, because the original plate had bent, preventing the injury from healing correctly. (Barth Dep. 9:6-10:13.) Dr. Barth saw Plaintiff in August 2009 for a follow-up appointment. (Def.'s Ex. 4; Barth Dep. 10:21-11:15.) Plaintiff's forearm revealed "evidence of early healing," and he had resumed most normal activities, except for contact sports. (Def.'s Ex. 4; Barth Dep. 11:5-12:13.) Plaintiff did not return for a subsequent follow-up with Dr. Barth because he was not experiencing any discomfort. (See Def.'s Ex. 4.)
On December 7, 2009, Plaintiff was driving a friend to work and then to an appointment. (Trial Tr. 16:9-:24.) Ms. Tuzon was driving behind him, carrying out government duties, when both cars came to a stop at a traffic light in Crystal City, Virginia. (Trial Tr. 17:3-:7, 181:23-182:12; Joint Pretrial Order, ECF No. 35.) While stopped at the light, the GPS device attached to Ms. Tuzon's windshield detached and fell to the floor on the driver's side of the vehicle. (See Trial Tr. 182:3-:15.) As she attempted to move the GPS with her foot, Ms. Tuzon accidentally hit the accelerator, and her vehicle collided with the back of Plaintiff's stopped car. (Trial Tr. 182:3-:12.) Plaintiff slammed his right arm on the steering wheel and dashboard when she rear-ended his car. (Trial Tr. 17:14-:19.)
While the parties dispute the speed at which Ms. Tuzon's vehicle hit Plaintiff's car, (compare Trial Tr. 17:10-:13, with Trial Tr. 183:5-:9), the force of the collision was sufficient to bend the metal plate in Plaintiff's arm. (See Def.'s Ex. 4.) The OPM vehicle sustained no damage, and Plaintiff's car suffered limited damage on its rear bumper, which cost $608.94 to repair. (Def.'s Ex. 1; see also Trial Tr. 183:17-:18.)
After the accident, paramedics examined Plaintiff at the scene. (See Trial Tr. 19:9-:10.) Plaintiff then drove himself to Sidley Memorial Hospital, where he complained of pain in his right wrist, neck, and back. (See Trial Tr. 19:9-:14; Def.'s Ex. 3.) The emergency room clinicians took X-rays of Plaintiff's neck, back, and forearm and placed a temporary orthopedic splint on his arm. (Def.'s Exs. 3, 4; Pl.'s Ex. 1 at 4.) They treated him for back strain, whiplash, and wrist pain and referred him to Dr. Barth for follow-up. (Def.'s Exs. 3, 4.)
Plaintiff saw Dr. Barth on December 9, 2009, still complaining of neck and wrist pain. (Def.'s Ex. 4.) Dr. Barth examined Plaintiff and reviewed his X-rays from the day of the accident. (Def.'s Ex. 4.) While the X-rays of Plaintiff's back and neck were normal,1 the X-ray of Plaintiff's forearm revealed that the plate had bent. (See Def.'s Ex. 4.) Dr. Barth noted that Plaintiff's re-injury presented "a very difficult problem." (Def.'s Ex. 4.) Dr. Barth reviewed with Plaintiff the potential benefits and risks of leaving the forearm as it was versus having further surgery. (Def.'s Exs. 4, 5.) In particular, Dr. Barth testified that he would have warned a patient that occasionally a plate needs to be taken out and that it can bend and break, requiring further surgery. (Barth Dep. 20:2-:11.) Plaintiff opted to have corrective surgery because he wanted to play football and did not believe that he could with his arm as it was. (See Def.'s Exs. 4, 5.) Plaintiff underwent surgery at Sidley Memorial Hospital on December 22, 2009. (Def.'s Ex. 6.) He wore a long-arm cast on his forearm for approximately two months following the surgery. (See Pl.'s Ex. 2 at 3-5.)
Initially, Plaintiff recovered well from this surgery. At a March 2010 appointment, Dr. Barth released him to full activities, with the exception of contact sports. (Barth Dep. 25:4-:11; Def.'s Ex. 8.) Plaintiff told Dr. Barth that he would like to resume playing football over the summer, and Dr. Barth indicated that Plaintiff could do so if he wished, but that there was the possibility of re-fracturing the arm around the plate. (Barth Dep. 25:4-:11; Def.'s Ex. 8.)
Plaintiff did not return to Dr. Barth again until October 2013. At that time, Plaintiff complained of soreness in his forearm and asked to have the plate removed. (Def.'s Ex. 10.) Dr. Barth examined Plaintiff's forearm and found a "very thickened scar" over the wrist. (Def.'s Ex. 10.) X-rays revealed no abnormalities except some bony overgrowth, which Dr. Barth testified was not indicative of a problem. (Barth Dep. 33:4-:16; Def.'s Ex. 10.) Dr. Barth recommended against removing the plate as long as Plaintiff planned to play football, and Dr. Barth believed that Plaintiff was "comfortable with this approach." (Def.'s Ex. 10.)
Plaintiff returned to see Dr. Barth in January 2014, adamant that he wanted the plate removed because of ongoing discomfort. (Def.'s Ex. 11.) Dr. Barth testified that some patients do not tolerate plates well and that he would remove plates for those who complain of discomfort if that person wishes to have the plate removed and does not plan to engage in contact sports. (See Barth Dep. 37:6-38:24.) In such cases, he will educate the patient about the risks of removing the plate and leave the decision to the patient. (Barth Dep. 37:6-38:24.) With Plaintiff, Dr. Barth followed this course. (Def.'s Ex. 11.) He reviewed with Plaintiff the benefits and risks of removing the plate and left the decision "completely up to him." (Barth Dep. 44:21-47:20; Def.'s Ex. 11.) Plaintiff indicated that he would like to have surgery in June 2014, after he finishes his graduate program examinations. (Def.'s Ex. 11; see also Trial Tr. 86:14-87:4.) Dr. Barth anticipates charging Plaintiff approximately $10,000 to have the plate removed fromhis forearm, and Sidley Memorial Hospital estimates that it will charge an additional $6,700 for the surgery. (Pl.'s Ex. 7.)
At the end of November 2009, prior to the car accident, Plaintiff received an offer from an acquaintance, Rahman Hilton, to work for him managing certain FedEx Ground delivery routes. (Trial Tr. 116:22-117:16, 121:13-122:20, 123:6-:11.) Mr. Hilton's manager was leaving, and Mr. Hilton needed to replace him before the peak season delivery rush. (See Trial Tr. 121:17-:23, 124:14-125:6, 135:22-:25.) Mr. Hilton testified that he was aware that Plaintiff could not perform heavy lifting because of an injury to his right forearm. (Trial Tr. 130:3-:6, 161:3-162:23, 173:18-174:16.) Because the manager job required driving, but no lifting, Mr. Hilton did not feel that the injury would prevent Plaintiff from fulfilling all job requirements. (Trial Tr. 130:3-:6, 161:3-162:23, 173:18-174:16.) Mr. Hilton offered Plaintiff the job with a yearly salary of $67,600 and agreed that Plaintiff could begin work on December 8, 2009. (Trial Tr. 121:24-122:2, 129:25-130:2; see also Pl.'s Ex. 6.)
Plaintiff re-injured his arm in the traffic accident the day before he was to begin work for Mr. Hilton. (Def.'s Ex. 3; Trial Tr. 16:9-:24, 17:14-:19.) The injury required him to wear an orthopedic splint following the accident. (Pl.'s Ex. 1 at 4.) As a result, Plaintiff could not drive, as the job required, preventing him from starting work as planned. (Trial Tr. 110:19-:25, 129:18-:24, 170:20-:24; Def.'s Ex. 14.) Mr. Hilton testified that he was unable to hold the position open for Plaintiff while the injury healed. (Trial Tr. 108:9-:23, 125:4-126:6.)
On November 3, 2010, Plaintiff filed an administrative claim for $64,984.43 in damages stemming from the accident. Specifically, he sought $21,204.43 for past medical expenses, $13,780 for lost wages, and $30,000 for pain and suffering. (Def.'s Ex. 9.)
On December 6, 2011, Plaintiff filed the Complaint in the present action,2 (see ECF No. 1), seeking over $200,000 in damages, plus costs and interest, well in excess of the amount he requested in his administrative claim. (See Compl.; see also Def.'s Ex. 9.) Plaintiff seeks $22,003.93 in past medical expenses, $17,000 for future medical expenses, and $67,000 in lost wages. (Joint Pretrial Order 3.) Though the record is unclear, Plaintiff presumably has increased the amount he seeks for pain and suffering from the $30,000 sought in the administrative claim to $93,996.07, bringing the total to the $200,000 sought in this action. (See Compl.; see also Joint Pretrail Order 3.) The increased amount he seeks in pain and suffering ostensibly covers the renewed discomfort he is suffering from the plate,...
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