Lesch v. U.S.A

• Decision Date: 15 July 2010
• Docket Number: No. 09-1968.,09-1968.
• Parties: Sherry LESCH, Appellant,v.UNITED STATES of America; Louis Gumpenburger, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

612 F.3d 975

Sherry LESCH, Appellant,v.UNITED STATES of America; Louis Gumpenburger, Appellees.

No. 09-1968.

United States Court of Appeals,

Eighth Circuit.

Submitted: Jan. 15, 2010.

Filed: July 15, 2010.

COPYRIGHT MATERIAL OMITTED

Brian S. McChesney, argued, of St. Louis, MO, for appellant.

Christina Bahr Moore, AUSA, argued, of St. Louis, MO, for appellee.

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

SMITH, Circuit Judge.

Sherri Lesch brought suit seeking damages resulting from a car accident. Lesch sued the driver of the car that struck her vehicle, Louis Gumpenberger,¹ as well as the United States as a result of the actions of its employee, FBI Special Agent Dennis Rice. After a bench trial, the district court ² concluded that Lesch proved damages of $695,878.53 against Gumpenberger, which included an award of $100,000 for future medical expenses. The court also concluded that Gumpenberger was solely responsible for Lesch's injuries. The court found that Rice was not negligent and dismissed the United States. Lesch appeals, contending that the district court clearly erred in concluding that Rice bore no responsibility for her damages. Lesch also argues that the district court miscalculated Lesch's award for future medical treatment expenses. We affirm.

I. Background

Lesch suffered serious physical injuries in a four-vehicle accident while traveling northbound on Highway K in O'Fallon, Missouri. The other drivers involved were Rice,³ driving northbound ahead of Lesch; Gumpenberger, driving southbound; and Timothy Frishholz ⁴, driving northbound behind both Rice and Lesch.

The relevant part of Highway K has two northbound lanes, two southbound lanes, and a center left turn lane used by both northbound and southbound traffic. Babble Creek Road enters Highway K from the west. Turn arrows are painted on the center lane of Highway K near the Babble Creek intersection: one arrow points west, indicating one can turn west onto Babble Creek, and the other arrow points east. A grassy field lies east of Highway K at that point. South of Babble Creek Road on Highway K are entrances to various businesses-on the west is a Dairy Queen and on the east is a daycare center.

Rice, going northbound on Highway K, intended to turn left (west) onto Babble Creek Road. He moved into the center left turn lane shortly after passing the entrance to the Dairy Queen on the west and the day care on the east. Rice testified that “I looked up and there was a vehicle coming toward me.” Rice saw Gumpenberger, traveling southbound, coming directly toward him in the same center turn lane. In an attempt to avoid a head-on collision, Rice turned sharply to the left, into the southbound lanes before reaching his Babble Creek Road turn. Simultaneously, Gumpenberger swerved partially to his right, back into the southbound lane, but then made a sharper left turn, overcorrecting trying to avoid hitting Rice's vehicle. Rice felt a slight bump, and the evidence shows that the rear right corners of the cars made contact. The impact was very slight; Rice's vehicle had a mark from the impact but no damage requiring repair. After swerving and hitting Rice, Gumpenberger's vehicle continued into the oncoming northbound Highway K lanes and collided violently with Lesch's vehicle traveling northbound. The impact forced Lesch's vehicle to the east, as if she had made a right turn. Lesch was thrown from her vehicle and landed on the roadway in the farthest east of the two northbound traffic lanes.

Frishholz was driving northbound behind Lesch, in the farthest east traffic lane. He saw the collision ahead of him and Lesch get ejected from her vehicle and land on the roadway in front of him. Frishholz tried to slow and stop, but may have hit some part of Lesch's leg. Frishholz then stopped, but then as he attempted to move his car off the roadway, he dragged Lesch's body some distance before stopping again.

Gumpenberger suffered a traumatic brain injury in the accident and has no memory of it. Rice testified that he saw traffic coming in the southbound lanes, but that he had looked before entering the center left turn lane and did not see any traffic approaching in the center lane. Rice estimated that he had slowed to 20 m.p.h. to make the turn. Rice estimated that Gumpenberger was 100 feet away and coming straight at him when he first saw his vehicle. Rice testified that he would not have entered the center lane had he seen another car already in it. Rice believed turning left was the only available evasive action, and he believed that the turn avoided a head-on collision with Gumpenberger. Lesch, conversely, recalled that she had no time to take evasive action when she saw Gumpenberger coming into her lane.

Before the accident, Gumpenberger had been at a friend's house and had been drinking. His blood alcohol level, tested later at the hospital, was .113. The evidence showed that he did not brake at all before the impact with either vehicle, and witnesses estimated his speed at 40 m.p.h. Gumpenberger stated that he was headed to Monticello Estates, which is off Highway K approximately three miles south of the accident site.

Lesch's injuries included complex fractures of the left hip, dislocation of the left femur, a deep wound to her left leg, abdominal trauma, low back injury, and multiple cuts, bruises and abrasions. She underwent several surgical procedures, including reduction of fractures and skin surgeries. She was eventually moved from a hospital to a rehabilitation facility for physical and occupational therapy. She returned home on May 19, 2005, and continued to have therapy and assistance at home. By October of 2005 she was able to walk on her own. In August 2006, she underwent total hip replacement to alleviate pain still present as a result of significant cartilage damage. Lesch has also developed urinary incontinence as a result of the accident, and her doctors have not been able to find a successful treatment. In total, she has incurred $218,878.53 in medical bills as a result of the accident.

Before the accident Lesch worked as a bookkeeper for a small business. She returned to work in November 2005, but she found that sitting for long periods caused pain. Lesch was terminated in June 2006 and has not worked since. Prior to the accident, Lesch worked steadily and was physically active.

At the bench trial on October 20, 2008, the United States produced a surveillance video that showed Lesch moving around with no difficulty, shopping, lifting heavy bags, and visiting with friends at a restaurant. The video also showed her using two shopping carts at once, pushing one and pulling the other, and then unloading the items-including many heavy items which totaled more than 100 pounds-into her car. Lesch testified that the activity shown in the video was very painful and that she had to lie down and wait for her husband to unload the car when she got back home.

A total of seven experts testified at trial, including accident reconstruction and investigation experts William Hampton and Kenneth Baker; Dr. Fallon Maylack, Lesch's orthopedic surgeon; Dr. Christopher Long, a toxicologist; Dr. Richard Katz, a medical doctor; Jan Klosterman, a registered nurse and life-care planner; and Dr. Thomas Ireland, an economist.

After trial, the district court concluded that Gumpenberger's negligence alone caused the accident. The court found that Rice kept a careful lookout, traveled at an appropriate rate of speed, signaled as required, and did all he could to avoid the accident. The court believed that Rice's sharp left turn evasive maneuver was the only reasonable action he could have taken. Based on reasonable inferences from the testimony and from the physical layout of the accident area, the district court found that Gumpenberger entered the center turn lane shortly before Rice saw him. The court found that Gumpenberger was traveling too fast for the conditions; illogically entered the left turn lane as there was no place for him to turn left at that point other than a grassy field; drove his car into the opposing lanes of traffic; failed to keep a lookout; and failed to take reasonable evasive maneuvers. The district court concluded that Gumpenberger simply drove into the oncoming traffic inattentively and impaired by alcohol.

The court concluded that Lesch proved damages of $695,878.53, including $218,878.53 for past medical and other expenses; future medical expenses of $100,000; $77,000 for past lost earnings and pension contributions; $200,000 for future lost earnings and benefits; and $100,000 for non-economic damages including pain, suffering, physical restrictions, emotional distress and loss of enjoyment of life.

II. Discussion

Lesch argues that the district court erred in assigning complete liability for the accident to Gumpenberger. Lesch requests that we reassess the facts and enter our own findings. Lesch specifically requests that we find Rice negligent and responsible for 50 percent of Lesch's damages. Lesch also contends that the district court erred in concluding that Lesch is entitled to only $100,000 in future medical treatment expenses and requests that we modify the district court's assessment of damages by awarding $235,000 instead.

A. Negligence

Lesch first argues that the district court was clearly erroneous in its finding that “Rice kept a careful lookout” and “was not negligent.” Lesch alleges that these findings were contrary to the expert testimony in the case. Lesch claims that the testimony from the accident reconstruction experts-Hampton and Baker-prove that Rice was negligent and at least partly responsible for Lesch's damages.

We review a district court's findings of fact under a clearly erroneous standard. Dixon v. Crete Medical Clinic, P. C., 498 F.3d 837, 846-47 (8th Cir.2007); see also Fed.R.Civ.P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and...