Jones v. U.S.
| Decision Date | 09 January 2006 |
| Docket Number | No. CV-04-1276(JMA).,CV-04-1276(JMA). |
| Citation | 408 F.Supp.2d 107 |
| Parties | Keith JONES and Sharon Jones, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
G. Michael Simmon, Weingrad & Weingrad, LLP, New York, NY, for Plaintiffs.
Roslynn R. Mauskopf, United States Attorney, by: Keisha-Ann Gray, Assistant United States Attorney, Brooklyn, NY.
DECISION AND ORDER
In this negligence action, brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 ("FTCA"), plaintiff Keith Jones seeks to recover damages for physical injuries he allegedly sustained on January 26, 2000 during a motor vehicle accident that involved a car driven by an agent of the Federal Bureau of Investigations. Plaintiff alleges that, as a result of the car accident, he sustained "serious and severe personal injuries" as defined by the New York State No-Fault Law, N.Y. Ins. Law § 5102(d) (McKinney 2000) (Compl.¶¶ 11-13). Plaintiff Sharon Jones seeks to recover damages for loss of consortium and for the loss of her husband Keith Jones' services, society, comfort, and companionship (Compl.¶ 17).1
Pursuant to 28 U.S.C. § 636(c), the parties consented to me presiding over a non-jury trial of this action. On August 31, 2005, defendant informed the Court that it would not contest that the government vehicle caused the January 26, 2000 accident. The parties went to trial on all remaining allegations of liability and damages. Trial commenced on November 16, 2005, and was completed on November 18, 2005. Having reviewed the parties' submissions, the evidence presented at trial, and assessed the credibility of the witnesses, I now set forth my findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52. For the reasons stated below, judgment is granted to the United States.
The issue in this case is whether the January 26, 2000 car accident, caused by an FBI agent, resulted in a serious injury to plaintiff Keith Jones as defined by New York State's No-Fault Law. The accident occurred on Wednesday, January 26, 2000 at approximately 12:45 p.m. in the westbound lane of the Long Island Expressway (Stipulated Facts, Proposed Joint Pre-Trial Order ¶ 1 ("Stipulated Facts")). The three vehicles involved are as follows: (1) a 1997 Oldsmobile Achieva, driven by FBI Agent Jan Trigg; (2) a 1998 Chevy Blazer, driven by Steven Wallace, and (3) a 1999 Ford Expedition, driven by plaintiff Keith Jones (Stipulated Facts ¶¶ 2-3). Agent Trigg's inability to stop the Achieva caused it to collide with the Blazer, which in turn made contact with the Expedition.
Steven Wallace ("Wallace"), the driver of the Chevy Blazer, testified as a nonparty witness, and I find his testimony credible in its entirety. Wallace's Blazer was at a full stop prior to the impact from the Achieva, which was unable to break in the stop-and-go-traffic before hitting the Blazer from the rear (Trial Tr. 17:2-5, 18:10-13). Wallace testified that "[t]he front of [the Achieva] went underneath the tail of [his] car and that [the Blazer] took most of the impact" (Trial Tr. 17:5-7). The Blazer "skidded forward" and "kissed" the Expedition in front of it, which plaintiff Keith Jones was driving (Trial Tr. 17:7-8). Wallace described the impact between his Blazer and the Expedition as "soft" and likened it to a "kiss" (Trial Tr. 17:7-8). Because Wallace had his foot on the break, the Blazer "pushed" into the Expedition, and the impact was "not as strong as [Wallace] thought it might be" (Trial Tr. 18:18-20, 18:24-19:1). There was "very little" damage to the front of the Blazer, and Wallace observed "no visual damage" to the Expedition (Tr. 19:6-12). When plaintiff exited his vehicle, he did not appear injured to Wallace (Trial Tr. 21:17-21). Both Wallace and plaintiff drove away from the accident without any reported injuries (Trial Tr. 20:5-7, 22:3-8).
In addition, plaintiff Keith Jones testified that the only damage to the Expedition was a dent on the bumper and "a little in the door" (Trial Tr. 44:7-12, 44:16-17). While I find little of plaintiff's testimony credible, I do credit his testimony regarding the damage to the bumper because it is supported by other evidence. Plaintiff also testified that he felt "okay" after the accident and to "feeling pretty good at that time" (Trial Tr. 45:15-16). Additionally, he felt no pain in his neck or back after the accident (Trial Tr. 45:19-23), which is consistent with the fact that he left the scene of the accident without seeking medical treatment from the emergency personnel present. The Expedition sustained a nominal amount of damage, which also supports my finding that the impact between the Expedition and the Blazer was slight — a mere "kiss." On February 1, 2000, Allstate Insurance Company estimated the total cost to repair the damaged Expedition to be $380.25, an amount which included both labor and taxes (Gov't Ex. R at 2083).
The Social Security Administration and the Workers' Compensation Board deemed plaintiff Keith Jones totally disabled as the result of a knee injury on May 1, 1997, almost three years prior to the January 26, 2000 collision (Gov't Ex. Q at 1894; Trial Tr. 84:20-85:3). Plaintiff has collected Social Security benefits from November 1997 to the present (Gov't Ex. Q at 1894; Trial Tr. 91:19-92:15).2
Since his knee injury in 1997, plaintiff has been physically disabled. On February 4, 1999, plaintiff reported his daily activities as limited to self care, staying home to watch television and read, going to physical therapy, and some "limited" driving (Gov't Ex. G at 615; Trial Tr. 107:24-108:4, 109:9-21). His wife, plaintiff Sharon Jones, did the cooking, cleaning, and shopping (Gov't Ex. G at 615). Additionally, Mohammad Khattak, MD, who conducted the February 1999 examination for Diagnostic Health Services, Inc., found that plaintiff's ability to walk might be "limited due to the pain" (Gov't Ex. G at 616). By plaintiff's own admission, in May 1999, he could, at best, occasionally lift and/or carry "less than 10 pounds" and stand and/or walk for a total of "less than 2 hours in an 8-hour workday," and sit for a total of "less than about 6 hours in an 8-hour workday" (Gov't Ex. Q at 2053; Trial Tr. 96:16-97:13).
Plaintiff had existing back and neck injuries prior to the January 2000 accident. In 1999, he sought medical care for problems he was experiencing with his cervical spine (Gov't Ex. O at 1772; Trial Tr. 224:25-227:10). On May 13, 1999, Mitchell Adler, MD diagnosed plaintiff with "mild degenerative disc disease at [the] C5 and C6" cervical vertebrae,3 which is commonly known as arthritis (Gov't Ex. O at 1772; Trial Tr. 225:14-16). This part of the neck, which plaintiff claimed was injured in the January 2000 accident, was documented as causing plaintiff pain and discomfort almost a full year earlier (Trial Tr. 225:22-24). These degenerative changes in the cervical vertebrae were in the exact same location as plaintiff's subsequent disc herniation4 (Trial Tr. 226:15-18).
During 1999, plaintiff's neck pain worsened, and he developed pain in his right arm, which included reported numbness and weakness (Trial Tr. 279:22-24). Dr. Adler referred plaintiff to a neurologist, Jeffrey L. Nelson, MD, who subsequently referred plaintiff for electrodiagnostic testing (Trial Tr. 279:20-280:1). On September 17, 1999, plaintiff was diagnosed with a herniated disc at C5-C6 of his cervical spine (Gov't Ex. O at 1771; Trial Tr. 224:4-20). The impression of plaintiff's cervical spine from the September 17, 1999 Magnetic Resonance Imaging ("MRI") revealed a "diffuse disc/ridge complex at C5-6 associated with a right lateral disc herniation, and deformity of the spinal cord" (Gov't Ex. O at 1771; Tr. 224:4-20).5
Only three months before the January 2000 car accident, Dr. Nelson recommended that plaintiff undergo neck surgery because a large C5, C6 disc ridge complex in his neck continued to cause him right arm pain (Gov't Ex. E at 342; Tr. 228:12-230:5). Dr. Nelson wrote to Dr. Adler on October 19, 1999 that plaintiff did "not want surgery" (Gov't Ex. E at 342).
Plaintiff has a history of back6 and neck problems that predates the January 2000 accident (Trial Tr. 279:14-15). Notably, plaintiff received physical therapy for neck pain well before the accident (Trial Tr. 231:8-10) (emphasis added). The physical therapy records contain no report that plaintiff's neck pains were resolved (Trial Tr. 232:12-17). In fact, plaintiff's medical expert, Osric S. King, MD, confirmed that "there was no medical record that [Dr. King] reviewed that stated that [plaintiff's] symptoms [were] completely resolved with physical therapy" (Trial Tr. 233:3-5).
On January 13, 2000, only thirteen days before the January 2000 car accident, plaintiff continued to receive physical therapy for his neck7 (Trial Tr. 233:15-19). Plaintiff was discharged from physical therapy because he "chose to stop treatment" and not because he had "reached maximum benefit from supervised P[hysical] T[herapy]" (Gov't Ex. AA at GMS-2223). Additionally, plaintiff's stated goal for attending physical therapy, namely to achieve "full pain free use of C spine in four to six weeks" was not met (Trial Tr. 234:4-13). There is absolutely no evidence that plaintiff's neck pain was resolved before the January 26, 2000 car accident.
In May 1999, Dr. Russell Warren diagnosed plaintiff as disabled (Gov't Ex. Q at 1991, Trial Tr. 93:18-20). On December 21, 1999, plaintiff's physician, Steven Erlinger, recorded that "[plaintiff] remains totally disabled" (Gov't Ex. Q at 1982; Trial Tr. 93:13-17) (emphasis added). Thus, I find that plaintiff was completely and totally disabled before the January 2000 accident. Furthermore, it is my finding that plaintiff's back and...
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