Hunter v. US

• Decision Date: 15 March 1990
• Docket Number: No. 88-1031-CIV-ORL-18.,88-1031-CIV-ORL-18.
• Citation: 739 F. Supp. 569
• Parties: Kenneth M. HUNTER & Terri L. Hunter, his wife, Plaintiffs, v. UNITED STATES of America & Eugene L. Lasek, Defendants.
• Court: U.S. District Court — Middle District of Florida

739 F. Supp. 569

Kenneth M. HUNTER & Terri L. Hunter, his wife, Plaintiffs, v. UNITED STATES of America & Eugene L. Lasek, Defendants.

No. 88-1031-CIV-ORL-18.

United States District Court, M.D. Florida, Orlando Division.

March 15, 1990.

Robert J. Telfer, Jr., Cianfrogna, Telfer & Reda, Pros. Atty., Titusville, Fla., for plaintiffs.

Kendell W. Wherry, Asst. U.S. Atty., Orlando, Fla., Major Michael Frederick, HO USAF/JACC, Washington, D.C., for defendants.

ORDER

G. KENDALL SHARP, District Judge.

This action was brought under the Federal Tort Claims Act and was tried without a jury. The court enters its Order pursuant to Federal Rule of Civil Procedure 52(a).

I. FINDINGS OF FACT

A. Claims and Defenses

Kenneth M. Hunter brought this lawsuit to recover damages for injuries he claims were proximately caused by an automobile collision. Mr. Hunter seeks past and future medical, hospital, and nursing expenses, lost wages, and lost future earnings. Mr. Hunter also wants noneconomic damages for the pain and suffering he has experienced especially with respect to his divorce from Terri L. Hunter, which he blames on the accident. Mr. Hunter requests $250,000.00.¹ Terri L. Hunter also alleges that the accident and injuries led to the dissolution of their marriage, and she seeks damages in the amount of $50,000.00 for loss of companionship and consortium.

The United States of America (government) contends that Mr. Hunter has not been permanently injured. The government argues that Mr. Hunter complains of the same injuries that he complained of before the accident. The government further states that the accident caused no real change in the condition of the Hunters' marriage. The government asserts, therefore, that neither Mr. Hunter nor Mrs. Hunter deserves the amount of damages each seeks.

B. The Accident

On November 14, 1986, Mr. Hunter was involved in an automobile collision with a government-owned pickup truck. The accident occurred on the Cape Canaveral Air Force Base, Florida, at approximately 8:27 a.m. Eugene L. Lasek, a government employee, was driving the truck within the scope of his employment.² He had two passengers with him. Mr. Hunter was driving alone. Both vehicles were travelling within the posted speed limit and in opposite directions on Hanger Road, which is two-laned and level. The day was clear and the road was dry. The drivers and passengers were wearing seat belts. Impact resulted when Mr. Lasek turned left directly into Mr. Hunter's path. Mr. Lasek claimed that he did not see Mr. Hunter, but one of his passengers warned Mr. Lasek about Mr. Hunter moments before the crash. Because Mr. Lasek neither braked nor signaled before turning, Mr. Hunter could not avoid the collision. Plaintiff's Ex. 4A(f); Defendant's Ex. 21 at 8.

The police arrived at the accident scene and took statements. Mr. Lasek and his passengers were brought to the base infirmary and were released shortly thereafter in good condition. Mr. Hunter was taken to a nearby hospital, where he was physically examined, X-rayed, and prescribed medication. Since the collision, Mr. Hunter has complained of headaches, neck pain, shoulder pain, and lower back pain.

C. Mr. Hunter's Pre-Accident Medical Complaints

Although Mr. Hunter complained of injuries after the accident, he complained of similar injuries before the accident. On May 4, 1982, Mr. Hunter went to Dr. Joseph E. Rojas, an orthopaedic surgeon, for headache treatment; Mr. Hunter had been having headache problems since 1980. The doctor examined Mr. Hunter and found him to have full range of motion in his neck. The doctor could not determine the cause of Mr. Hunter's headaches. On February 18, 1983, Mr. Hunter again visited Dr. Rojas's office for upper and lower back treatment, which was caused by a soft tissue strain. Mr. Hunter was still having headaches. Defendant's Ex. 23 at 5-9, 29, 45, 54.

Besides Dr. Rojas, Dr. David N. Greenblum, a psychiatrist, cared for Mr. Hunter. Mr. Hunter visited Dr. Greenblum six times during the months of October, November, and December 1985. Over the course of those three months, Mr. Hunter complained about headaches, shoulder pain, neck pain, leg pain, depression, insomnia, restlessness, lack of appetite, lack of sex drive, suicidal thoughts, difficulties with his family, and trouble socializing. Dr. Greenblum concluded that Mr. Hunter's psychological profile led him to be more vulnerable to physical and emotional stresses and less capable to endure pain than the average person. The doctor thought Mr. Hunter's headaches and leg pain were subjective problems that were related to tension rather than to an organic injury. Dr. Greenblum further concluded that Mr. Hunter's disturbed emotional state accentuated his pain. Defendant's Ex. 17 at 3-5, 7, 10-18, 25-26, 31, 35-37.

Mr. Hunter returned to Dr. Greenblum on January 7, 1986. Mr. Hunter had been severely depressed, had been occasionally crying, had suicidal thoughts, and had left his job because he could not concentrate. Owing to Mr. Hunter's worsened condition, Dr. Greenblum hospitalized him on January 8. While in the hospital, Mr. Hunter underwent a physical examination, which showed no organic problems. He was prescribed medication and was discharged three days later. During that same time period, Mr. Hunter and Mrs. Hunter were having marital problems. Id. at 17-21, 28.

Finally, on October 21, 1986, approximately one month before the car wreck, Mr. Hunter went to Dr. Gary R. Ostoski, a chiropractor. Mr. Hunter complained of headaches, neck stiffness, residual pain in his right hip and right leg, numbness in his right foot, and upper back pain. Plaintiff's Ex. 4A(g)(ix); Defendant's Ex. 15 at 14.

D. Mr. Hunter's Post-Accident Medical Complaints

Shortly after the car accident, Mr. Hunter went to Dr. Rojas with complaints about headaches, dizziness, neck pain, and shoulder pain. Dr. Rojas examined Mr. Hunter and found no obvious neurological problems. The doctor thought that the accident had aggravated Mr. Hunter's pre-existing problems. Defendant's Ex. 23 at 9, 48. The same day, Dr. Rojas sent Mr. Hunter to Dr. Miguel R. Rivera, a neurologist and psychiatrist. Mr. Hunter complained of back and neck discomfort, pins and needles sensation in his arms, and right elbow pain. Dr. Rivera examined Mr. Hunter and discovered no neurological or neuromuscular abnormalities. Dr. Rivera determined that Mr. Hunter had suffered a cerebral concussion and whiplash from the accident; the injuries were not permanent. Defendant's Ex. 18 at 4-7, 25.

On December 4, 1986, Dr. Rivera performed on Mr. Hunter an electroencephalogram (EEG), an electromyogram (EMG), and nerve conduction studies for nerve damage. The results were normal. The doctor found Mr. Hunter's visually-evoked response to be normal and his brain stem auditory response to be normal as well. From those examinations, the doctor concluded that the collision had not caused permanent damage to Mr. Hunter's brain stem. Id. at 9-10.

Mr. Hunter visited Dr. Rivera for the last time on December 11, 1986. The doctor re-examined Mr. Hunter. The results were normal. Because Mr. Hunter had recovered from the accident-related injuries for which Dr. Rivera had been treating him, Mr. Hunter was discharged from the doctor's care. In Dr. Rivera's opinion, Mr. Hunter was physically able to return to work. Id. at 10-11, 25-27.

On March 11, 1987, Mr. Hunter went back to Dr. Rojas with complaints of severe headaches and muscle tightness. Dr. Rojas examined Mr. Hunter and found objective signs of muscle spasms and limited body motion. As a result of the examination, Dr. Rojas wrote a letter to Mr. Hunter's insurance company on March 23 notifying it that Mr. Hunter would be unable to return to work. At the time, Dr. Rojas thought Mr. Hunter would be able to resume working in about six weeks. Defendant's Ex. 23 at 14-15, 17-19, 30-31, 45. From the time of the accident, Mr. Hunter worked sporadically and eventually secured a steady job doing the same type of work he had done before the collision and at the same hourly wage.

Throughout March and into April 1987, Mr. Hunter returned to Dr. Rojas or went to the hospital emergency room for medication to relieve his headache and neck pain. On two occasions, Mr. Hunter demanded more powerful drugs from Dr. Rojas, but was refused. The doctor thought Mr. Hunter was probably becoming dependent on the narcotics. After Mr. Hunter was denied the stronger medication, he stopped going to Dr. Rojas for about eight months. On December 22, 1987, he returned to the office with complaints of severe headaches and tenderness over his spine. An associate of Dr. Rojas treated Mr. Hunter. Id. at 17, 20-28, 30, 32-35, 40, 43.

Apart from seeing Drs. Rojas and Rivera, Mr. Hunter also visited Dr. Ostoski soon after the accident. From the time of the collision until the time of the trial, Mr. Hunter had gone to Dr. Ostoski over ninety times for back pain and headache treatment. As a result of examining and caring for Mr. Hunter, Dr. Ostoski concluded that the car accident proximately caused permanent injury to Mr. Hunter. Dr. Ostoski has given Mr. Hunter a permanent impairment rating of thirteen percent.³ In the doctor's opinion, Mr. Hunter will experience further discomfort from his back injury in approximately five years. Dr. Ostoski has recommended that Mr. Hunter limit his physical activity. Plaintiff's Ex. 4A(g)(ix) and testimony.

While caring for Mr. Hunter, Dr. Ostoski referred him to Dr. Mark S. Storey, a neurologist, for other treatment.⁴ From April 1987 to March 1988, Mr. Hunter visited Dr. Storey's office approximately forty times. During those visits, Mr. Hunter mentioned back pain twice.⁵ He mainly complained about migraines and sought medication, often twice a day, for his headache pain. In September 1987, Dr. Storey hospitalized Mr. Hunter to alleviate his migraine suffering. Hospitalization brought relief for a few...