Early v. United States

• Decision Date: 22 February 1973
• Docket Number: No. 71-2521.,71-2521.
• Parties: Nancy K. EARLY et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

474 F.2d 756 (1973)

Nancy K. EARLY et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 71-2521.

United States Court of Appeals, Ninth Circuit.

February 22, 1973.

Stephen S. DeLisio (argued), Edward A. Merdes, of Merdes, Schaible, Staley & DeLisio, Fairbanks, Alaska, Robert A. Parrish, Fairbanks, Alaska, for plaintiffs-appellants.

Walter H. Fleischer, Atty. (argued), Alan S. Rosenthal, Ronald R. Glanz, Robert Greenspan, Morton Hollander, Attys., Dept. of Justice, Washington, D. C., G. Kent Edwards, U. S. Atty., Stephen Cooper, Asst. U. S. Atty., Fairbanks, Alaska, for defendant-appellee.

Before MERRILL, DUNIWAY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

Only questions of damages are at issue in this Federal Tort Claims Act proceeding, 28 U.S.C. § 1346(b) et seq. The plaintiffs who are husband and wife recovered an aggregate of $380,000 for personal injuries and related claims. They appeal from the court's award because they believe it was not enough; the government cross appeals for the opposite reason.

The injury occurred when Mrs. Early fell down a flight of stairs at Eielson Air Force Base, striking her head upon the concrete floor below. She was immediately hospitalized and discharged two days later. Because of persistent headaches she was admitted to another hospital a day and a half after her first release where she remained for nine days undergoing tests. Approximately two months after her second trip to the hospital she returned for a reevaluation where results of tests were normal.

On the issue of damages the trial court heard approximately one thousand pages of testimony. The family history of Mrs. Early was developed from an early age and her life habits and personality traits before and after the injury were related in detail. On the date of the injury, September 29, 1967, she was 24 years old and three children had been born of her marriage to Sergeant Garnett C. Early.

The court found that Mrs. Early suffered damage to the central nervous system and particularly to the brain as a proximate result of the fall occasioned by the negligence of the United States. These injuries altered her personality and have caused much pain and suffering. Finding 36c of the trial court is as follows:

"c. That Nancy Early is entitled to recover past damages as well as future damages in a reasonable amount for the foregoing, computed on the basis of her life expectancy, which is 49 years, as follows:

                  1. Pain and suffering, all causes
                       past and future                     $225,000.00
                  2. Loss of sense of smell and
                       taste, past and future                20,000.00
                  3. Loss of enjoyment of sex, past
                       and future                            30,000.00
                  4. Psychotic conditions, including
                       personality change and schizophrenic
                       reaction, past and future             20,000.00
                  5. Future medical care (including
                       psychiatric)                          15,000.00
                  6. Future medications                      25,000.00
                  7. Future household assistance             15,000.00
                                                           ___________
                       Total damages to Nancy Early        $350,000.00"
                

An award of $30,000 was made to her husband, Garnett C. Early, for loss of consortium, past and future.

Appellants insist that damages are inadequate. Their expert witness, a neurologist, testified that the salary for a nurse to assist the injured plaintiff in her household duties and to provide nursing care would be "roughly $500 per month." Because there was testimony that during some headache attacks Mrs. Early would be totally disabled, he further stated that nursing would require three eight-hour shifts costing $1,500 per month. Based on this figure over Mrs. Early's life expectancy, appellants calculated that an award for household assistance and nursing care should be $894,240. This same method of calculation was used to assert a claim of $127,750 for future psychiatric care, $44,712 for future medications, $61,300 for past loss of earning capacity and $766,600 for future loss of earning capacity. There was no expert testimony to dispute these estimates. The testimony did not bear out such a mathematical computation, however, as it showed that Mrs. Early did not employ a housekeeper or nurse full time, let alone on 24-hour duty; that she did not regularly consult psychiatrists; and that she was not completely disabled from working should she desire to do so. On the basis of conflicting evidence, the court made its own determinations and we cannot say they were clearly erroneous.

As stated in County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 444 F.2d 372, 378 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L. Ed.2d 252 (1971):

"When it comes to finding facts from the evidence, juries enjoy a near-total independence. Neither a court, The Conqueror, 166 U.S. 110, 131-133, 17 S.Ct. 510, 41 L.Ed. 937 (1897), nor a jury, Head v. Hargrave, 105 U.S. 45, 49, 26 L.Ed. 1028 (1881), is bound to accept an expert

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