Ferrero v. U.S., 76-4430
| Decision Date | 28 September 1979 |
| Docket Number | No. 76-4430,76-4430 |
| Citation | 603 F.2d 510 |
| Parties | Nancy N. FERRERO, Plaintiff-Appellee, United States Fidelity and Guaranty Co., Intervenor-Appellee, v. UNITED STATES of America, Defendant-Appellant. Jean Rountree KAVIANI, Plaintiff-Appellee, Texas Employers Insurance Co., Intervenor-Appellee, v. UNITED STATES of America, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leonard Schaitman, Eloise E. Davies, Attys., Barbara Allen Babcock, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., for defendant-appellant.
Joseph D. Jamail, S. Gus Kolius, John Gano, Houston, Tex., for plaintiffs-appellees.
Appeals from the United States District Court for the Southern District of Texas.
Before AINSWORTH and VANCE, Circuit Judges, and BOOTLE, District Judge. *
This is an appeal from judgments for the plaintiffs in two consolidated cases brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. Both plaintiffs were injured on September 2, 1974, in separate incidents, when they were struck by a car. The automobile's driver was a psychotic former inmate who had walked away from the Veterans Administration Hospital in Waco, Texas, on August 19, 1974.
The trial court found that the Veterans Administration was negligent in relying on the psychotic patient to medicate himself, in placing him in an open ward from which he could walk away, in failing to attempt to retrieve him when his departure was discovered, and in failing to confine him when he presented himself for treatment at an outpatient clinic on August 30, 1974. The court awarded each plaintiff $650,000 in damages. The sole issue before us is whether these damages are excessive.
In FTCA cases the clearly erroneous standard governs our review of factual determinations, including damages. Williams v. United States, 405 F.2d 234, 239 (5th Cir. 1968); Fed.R.Civ.P. 52(a). Although that standard contemplates deference to the trial judge's opportunity to see and hear the witnesses, our review is not restrained by the statutory and constitutional limitations applicable to our review of a jury's verdict. We judge a trial court's finding to be clearly erroneous when, after reviewing the entire evidence, we are "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 29 L.Ed. 746 (1948).
The components and measure of damages in FTCA claims are taken from the law of the state where the tort occurred, which in this case is Texas law. Simpson v. United States, 322 F.2d 688, 690 (5th Cir. 1963); 28 U.S.C. § 1346(b). This rule is limited, however, in that the United States shall not be liable for punitive damages. 28 U.S.C. § 2674.
Within this framework, we turn to our review of the injuries suffered and damages sustained by the two plaintiffs.
When the accident occurred, Mrs. Ferrero was fifty-three years old, married, the mother of six children, and a supervisor in the physical therapy department at Valley Baptist Hospital in Harlingen, Texas. An avid sports participant, she especially enjoyed golf, tennis, swimming and bowling.
Mrs. Ferrero was hospitalized for two months beginning on the day of the accident. Her discharge summary showed that she had suffered a mild cerebral concussion, scalp lacerations, multiple contusions and abrasions, a severely comminuted compression fracture of her third lumbar vertebra, and a compression fracture of her fifth lumbar vertebra. In prior accidents she had sustained a compression fracture of L-1 and a fracture of L-2 for which she had worn a back brace. With her brace reapplied she was able to walk without pain when discharged.
The orthopedic surgeon who treated both plaintiffs described Mrs. Ferrero's injury as quite serious. He said that her type of injury causes pain and soft tissue problems. When he last examined Mrs. Ferrero on August 19, 1976, she could bend and touch the floor, but her motion was predominantly at the hip joint rather than in the spine. He found that bending to the right or left within eighty percent of normal range caused Mrs. Ferrero pain. The cross leg test and straight leg raising, however, were neither restricted nor painful. Hyperextension of the hips also was painless within the full range of motion. No neurological deficits were detected.
Mrs. Ferrero's injury is permanent and will slowly worsen with the passage of time. Though this type of injury is often accompanied by premature arthritic changes, her doctor doesn't recall noting any. In his judgment, Mrs. Ferrero's present ailments were caused by the accident.
The doctor also testified to his conversation with Mrs. Ferrero during the August 19 examination. She said that she felt pain after four or five hours sleep. Getting up and moving around tended to relieve the pain enough to allow her to go back to sleep. Her back stiffness lessens with activity during the day, but if she stays in one position or rides in a car for two hours or more she again becomes stiff and achey. If she lies on her back with her legs stretched out they become numb. She walks fairly well, but feels pain if she takes a long stride. She has no pain if she bends forward, but hurts if she twists forward. She swims, but now avoids diving. At work she now concentrates on supervision, record keeping and neck and upper extremity therapy. She no longer performs the more rigorous therapy procedures that she handled before the accident.
Testimony of Mrs. Ferrero and her husband established that before the accident she was happy, outgoing, unworried, and athletic. She could keep up with people twenty years younger than she. Since the accident her personality has changed. She is apprehensive about little things and is very nervous. She has given up golf, tennis and walking for exercise, and has virtually given up gardening. She has not been free of pains and aches since her injury. Believing that she is unable to perform the full duties of her present position as Chief Physical Therapist, Mrs. Ferrero feels inadequate in her job. For this reason she plans to retire when a replacement is found. The only medications she takes are Benadril, extra strength aspirin, and an aspirin substitute. Her doctors have not prescribed a muscle relaxant, Valium, or pain pills for her back problem.
Ten thousand dollars of Mrs. Ferrero's recovery were set aside for the subrogation claim of United States Fidelity and Guaranty Company.
When injured, Jean Rountree was twenty-four years old and a college graduate about to undertake additional work to obtain a teacher's certificate. Since the accident she has begun her teaching career and married.
Her hospital discharge summary reflects that she sustained a compression fracture of the first lumbar vertebra, an abrasion and severe sprain of the left ankle and a hematoma of the scalp. She was hospitalized for twelve days, was treated with bed rest, was fitted with a back brace and was walking on crutches when discharged. Her hospital bill was twelve or fifteen hundred dollars. After she left the hospital she was treated by the orthopedic surgeon who treated Mrs. Ferrero.
On October 5, 1974, she complained to the doctor of some back pain, tightness of the left calf and ankle and an inability to dorsal flex or elevate the foot. X-rays showed early healing of the vertebra with no increase in wedging or compression. By October 21, 1974, her walking had improved. The doctor believes that this was her first day back at work. She had gotten tired, but had not complained of back pain. Her ankle was causing some discomfort. She was instructed to continue her ankle and back exercises.
When examined on November 19 she complained of occasional pinching pain in her back. Otherwise she had no complaints, but still lacked some range of motion. On December 14 she stated that she had occasional pulling sensations, like tightness, in her back, but did not complain of pain. On that date, over three months after her injury, the doctor first reported her mentioning a problem with her knee, which had locked occasionally over the last month. Examination revealed that the knee was tender, but had no excess fluid, that the ligaments were intact, and that there was no grating or popping within the joint. X-rays showed no damage to the bone or joint surfaces.
By January 25, 1975, Miss Rountree had found that she was unable to hyperextend her knee, even though there was less catching within that joint. The doctor questioned whether she might have sustained some type of injury to the kneecap or to the attached tendons.
In March 1975 she told the doctor that her knee was much better. She had not experienced any more locking episodes but had noticed mild discomfort when carrying objects upstairs. The left knee did not allow full flexion when she was squatting down and it ached if she sat for a long period. She had been swimming regularly. The doctor testified that ordinary walking didn't bother her. She stated her back felt fine at that time and she had done a lot of somersaults without problems.
Miss Rountree's next and last visit with the witness was on January 31, 1976. She reported at that time that her knee had begun bothering her during the Christmas holidays. It started clicking and she had some sharp pains under the kneecap. Her examination was negative except for mild pain from pressure over the upper portion of the kneecap. X-rays of her first lumbar vertebra showed that although the bone had solidly healed, there was some narrowing of the...
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