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CALVA-CERQUEIRA v. U.S.

January 1, 2003

ENRIQUE CALVA-CERQUEIRA, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT



The opinion of the court was delivered by: Ricardo Urbina, District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

This case involves a 1998 collision ("the accident") between a bus owned and operated by defendant United States and an automobile operated by plaintiff Enrique Calva-Cerqueira. As a result of the accident, the plaintiff suffers from paralysis, decreased sensation in the left side of his body and is wheelchair bound. The plaintiff, who was 18-years-old at the time of the accident, brings this case pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. On May 3, 2001, the court determined that the defendant was liable for the accident. Having presided over an eight-day trial on the plaintiff's actual damages and likely future damages, the court now determines that substantial evidence supports an award of the following compensatory damages: $5,000,000 for pain and suffering, $899,325 for past medical expenses, $2,562,906 for future lost wages, and $15,435,836 for future medical and related expenses. The court reduces the award to a total of $20,000,000 because the plaintiff's original claim for damages requests that amount. Finally, resolving two miscellaneous issues, the court declines to adopt the defendant's request for a reversionary medical trust and determines that the defendant shall pay the fees of the guardian ad litem. Page 2 II. FINDINGS OF FACT
A. Procedural History
1. On August 3, 2000 the court granted the defendant's motion to bifurcate the liability and damages portions of this action. On May 3, 2001, after a three-day bench trial on the issue of liability, the court determined that the defendant was liable for the accident and resultant injuries to the plaintiff. Findings of Fact and Conclusions of Law dated May 3, 2001 ("FFCL") at 16. Beginning on December 9, 2002, the court presided over an eight-day bench trial on the issue of the plaintiff's damages. On February 25, 2003, the parties filed proposed findings of fact and conclusions of law.
B. Summary of the Plaintiff's Life Before the Accident
2. The plaintiff was born on November 16, 1979, the second son of Maria Teresa Cerqueira and Roberto Calva. PL's Ex. 146. His older brother Daniel was born in 1977. Id.
3. The plaintiff spent his early years in Mexico City. Id.; PL's Ex. 121. His parents separated in 1984 and divorced two years later. Pl's Ex. 146. After completing first and second grade in Mexico City, the plaintiff moved with his mother and brother to Ithaca, New York. PL's Exs. 121, 146. The plaintiff's elementary school grades ranged from average to above average. Pl's Ex. 121. The plaintiff and his brother spent the summer of 1991 with their father in Mexico, and then elected to remain in Mexico with their father. PL's Ex. 146. The plaintiff's school grades from 1991 through 1994 ranged from average to good. PL's Ex. 121. Page 3
4. On December 25, 1994, the Calva-Cerqueira family was on a vacation in Italy when they were involved in a motor vehicle accident ("1994 accident"). Tr. 2/81-83, 2/104.*fn1 Roberto Calva, the plaintiff's father and a pediatrician, testified that he attended immediately to his son and observed no loss of consciousness. Id. Although the other occupants of the vehicle were not injured, the plaintiff suffered a fracture of the maxillary sinus, the thin bone which serves as the orbital floor and the upper boundary of the maxillary sinus. Tr. 2/36, 2/82-83.
5. The defendant presented evidence attempting to prove that this 1994 accident caused the plaintiff a mild brain injury, and the plaintiff presented evidence to the contrary. E.g., Tr. at 1/38, 2/36, 3/46-48, 3/75, 5/62-64, 6/127-28, 8/106-07, 8/127-28; Def.'s Exs. 21 A, 23A, 53; PL's Exs. 23, 111A-B. No such brain injury is documented in the plaintiff's medical records. Id. In addition, the defendant's evidence of the plaintiff's alleged mild brain injury is not compelling and would require this court to speculate. Id.
6. While living with his father in Mexico, the plaintiff suffered an emotional breakdown and was hospitalized for six weeks for detoxification from cocaine, inhalants, alcohol and other illegal drugs. Tr. 3/112-13, 3/117, 3/122-23; PL's Ex. 35. Upon discharge from the detoxification program, the plaintiff was diagnosed as having a depressive disorder. PL's Ex. 32.
7. In January 1997, the plaintiff moved to the United States to live with his mother in Fairfax, Virginia. Pl.'s Ex. 146. He participated in a second substance abuse treatment program and saw a psychiatrist, Dr. Eliot Sorel, from January through November 1997, Page 4 but continued to abuse drugs during that period. Tr. 1/90-91, 5/64-65, 5/109-11, 7/5-22; PL'sExs. 6,27,49.
8. In November of 1997, Dr. Sorel recommended that the plaintiff consent to urine screening. PL's Ex. 49. Despite his family's encouragement, plaintiff chose to discontinue seeing his psychiatrist and continued to abuse illegal drugs and alcohol. Id.; Tr. 5/114-15, 7/49. Dr. Sorel's records indicate that the plaintiff was using marijuana three times a week in late 1997. FFCL at 7. The plaintiff continued this frequency of usage up to the time of the accident. Id.
9. At the plaintiffs post-accident urine drug screening, which was administered at 11:15 on the morning of the accident at George Washington University Hospital, he tested positive for cannabis. Id. The laboratory report indicated that the test was a "presumptive screen only," and could be positive up to two weeks after marijuana use. Id.
10. Due to academic difficulties at W.T. Woodson High School caused by his mid-semester enrollment, the plaintiff failed three classes, received a "B" in a math class, and then withdrew from the school. Tr. 4/82-83, 5/66; PL's Ex. 121. He subsequently enrolled at the Fairfax County Adult Education program, which afforded him an opportunity to earn the equivalent of a high school diploma. Id. His English teacher stated that he loved learning, was very bright and motivated, and had clear goals. Tr. 4/74-75. She added that he had an excellent attendance record and "was definitely college material." Tr. 4/82.
11. The plaintiff held several part-time jobs during the 1997-98 school year. PL's Ex. 146. He worked at Kentucky Fried Chicken ("KFC") from April 29, 1998 until the date of his injury, June 14, 1998. Id. The plaintiff's supervisor at KFC at the time of the accident, Page 5 Maria Rivera, testified that he was enthusiastic, smart, intelligent, very motivated, and had perfect attendance. She said that she promoted him twice and that she would hire him back. Tr. 4/6-9. The plaintiff also played soccer with the Fairfax Police Youth Club League during the 1997-98 school year. Tr. 5/67. Jason Velasco, the plaintiff's soccer coach, testified to the plaintiff's perfect attendance over three seasons, interest in college, excellent physical condition, aptitude, and the absence of any hint of neurological problems. Tr. 3/130-33.
12. The plaintiff's rehabilitation psychiatrist, Dr. Sorel, testified that the plaintiff had demonstrated improvement. Tr. 7/55. Although the plaintiff did not enroll in urinalysis drug testing as Dr. Sorel had hoped, ambivalence is usual and customary for late adolescent patients. Tr. 7/61-62. Thus, the plaintiff was, more likely than not, on the road to full recovery immediately prior to the fateful accident.
13. Considering the plaintiff's pre-accident circumstances, the court finds that the plaintiff's prospects improved when he returned to the United States to live with his mother, largely due to her close supervision of him. Tr. 5/70-75, 5/105-20. The plaintiff's academic and social performance showed improvement: by spring 1998 the plaintiff was better adapted socially, holding down a job, and looking forward to college following graduation from high school. Tr. 5/118-20. He had exhibited interest in taking the SAT, secured checking and savings accounts in his own name, and paid many of his own expenses. Tr. 1/67-70, 2/85-100, 5/105-18. The plaintiff's mother testified that he had taken steps toward college and, like her other son Daniel, he would attend the northern Virginia community college ("NOVA") and then continue on to a four-year college. Tr. 5/118-20. Similar to the plaintiff's work at a fast food restaurant while attending school, Daniel Page 6 worked at a bagel store while he attended NOVA. Tr. 5/120. The plaintiff had discussed attending NOVA with his brother, psychiatrist, soccer coach, and a family friend. Tr. 1/70, 1/75, 3/132, 4/96; PL's Ex. 23A. The plaintiff's brother's path — working at a restaurant during school, attending NOVA while living at home, then enrolling at Georgetown and medical school — served as a road map for the plaintiff. Tr. 1/62-63, 5/120. 14. The plaintiff was a bright young man with good cognitive functions. His standardized testing scores showed above average intelligence, and he frequently scored his best grades in subjects such as mathematics, science, and English that indicate his potential for higher cognitive functioning. Tr. 4/75, 4/96. Further, the plaintiff has a highly educated family: his mother has a doctorate degree in nutrition, his father is a medical doctor and practicing pediatrician and gastroenterologist, his brother is attending medical school, and an uncle and a cousin are practicing veterinarians. Tr. 2/81-85, 5/61-62.
15. The plaintiff's vocational rehabilitation expert, Dr. Estelle Davis, testified that the plaintiff would likely have finished college and at least two years in a graduate program. Tr. 4/34-37. She based her opinion on her interviews of the plaintiff's mother, teacher and tutor; her review of the plaintiff's academic, intelligence testing, medical and drug treatment records; and the educational level of the plaintiff's family. Id.
16. The defendant's vocational rehabilitation expert, Mr. Steven Shedlin, considered similar information, but while he did not focus on the educational achievements of the plaintiff's family, he did focus on the plaintiff's alleged pre-accident brain injury. Tr. 7/197-98. Mr. Shedlin stated that the plaintiff's drug abuse was a serious concern, because drug Page 7 abusers generally cannot maintain employment. Tr. 7/197'. Ultimately, Mr. Shedlin opined that the plaintiff would not complete college. Tr. 7/197-98.
17. The testimony of the plaintiff's expert, Dr. Davis, is more credible than that of Mr. Shedlin because it addressed the facts of this case more thoroughly and more realistically. For example, the plaintiff's two promotions at Kentucky Fried Chicken belie Mr. Shedlin's suggestion that the plaintiff could not work because he was abusing drugs — demonstrating that his drug problem was not as severe as Mr. Shedlin believed. Tr. 4/6-9, 7/197.
18. Based on the plaintiff's family history and substantial progress toward full recovery by early June 1998, the court finds, by a reasonable certainty, that the plaintiff likely would have finished college and two years in a graduate program. Tr. 2/154-55, 3/94, 4/46-47; 7/62-63.
C. The Accident
19. On Sunday, June 14, 1998, the plaintiff was involved in a tragic motor vehicle accident. FFCL at 2. On that morning, the plaintiff, then 18 years old, was driving his car eastbound on Eye Street, S.W. at its intersection with South Capitol Street in Washington, D.C. Id. The other vehicle involved in the accident was a Smithsonian Institution bus, which was proceeding southbound on South Capitol Street when it collided with the plaintiff's car. Id. The plaintiff's car weighed an estimated 3,380 pounds (including occupants), while the Smithsonian bus weighed an estimated 25,950 pounds (including occupants). Id. The bus driver was driving in excess of the applicable 25 mph speed limit when she drove through a red light and into the intersection where she hit the plaintiff's car. Id. at 13-14. Page 8
D. The Plaintiff's Post-Accident Medical Treatment
20. The plaintiff arrived by ambulance at the George Washington University Hospital Emergency Department at 9:25 a.m. on June 14, 1998. PL's Ex. 1 at 5, 9-10; Tr. 1/6-7. He had sustained multiple traumas including injuries to the brain, skull and chest and was in a deep coma. Id. 21. After three weeks of treatment at George Washington University Hospital, the plaintiff was transferred in a comatose state to the National Rehabilitation Hospital ("NRH"). PL's Exs. 2, 4; Tr. 4/110-18. He remained at NRH until December 24, 1998, and began to communicate verbally in August 1998. Id. His mother sat with him everyday. Tr. 5/68.
22. On January 4, 1998, the plaintiff moved to the Learning Services Corporation where he received 24-hour supervision from skilled trainers specializing in the care of brain-injured adults. PL's Ex. 5 at 16-19. Following the plaintiff's departure in March 1999 from the Learning Services Corporation, he began outpatient rehabilitation training in an adult day program at NRH. PL's Ex. 7; Tr. 1/79-80. He is currently receiving physical therapy three times per week at Fairfax Rehabilitation, Incorporated. Id.
23. The plaintiff continues to reside with his mother in Fairfax, Virginia. He has someone with him at all times. Tr. 5/77-82.
24. The plaintiff has incurred medical bills totaling $899,325.46 as a result of the accident. PL's Ex. 158. According to his mother, her insurance company has a medical lien in the amount of $400,000-$500,000. Tr. 5/92-93. The court finds that the record includes no proof that the plaintiff's health care providers did not require full payment from the plaintiff and no proof of the exact amount of the insurance company's lien. Page 9
E. The Plaintiff's Injuries Caused By the Accident
25. The plaintiff suffered severe and permanent injuries, physical and mental disabilities, pain, emotional distress, disfigurement, deformity, and inconvenience as a result of the defendant's negligence. Tr. 1/34-40, 2/47-50, 2/53-54.
26. Dr. Thomas P. Naidich, a professor of neuroradiology at Mt. Sinai Medical Center and the author of innumerable articles and books on brain imaging, summarized the plaintiff's brain imaging studies. Tr. 2/46. Dr. Naidich explained that the plaintiff's imaging studies unequivocally demonstrate that the accident caused by the defendant inflicted extensive brain tissue damage that permanently altered the configuration of the plaintiff's brain, including the cortex, brain stem, and cerebellum. Tr. 2/47-50, 2/53-54. Specifically, the MRI and CT films show skull base fractures on the right and left sides, the absence of the right frontal lobe, and hemorrhagic damage and scarring in the basal ganglia affecting the putamen, globus pallidus, caudate and the internal and external capsules. Tr. 2/46-48. In addition, there has been partial loss and damage to the crossing fibers of the commissure or corpus collosum, the lenticular nucleus, the midbrain, the fibers connecting the brain and spinal cord, the cerebral peduncles, and the thalamus, as well as fractures of the bones in the left ear. Tr. 2/48-58. A comparison of the MRI films of February 28, 1997 with the MRI films of December 16, 1999 shows that the accident caused substantial scarring and atrophic volume loss of the right superior frontal gyrus, middle frontal gyrus, precentral gyrus and to some extent the right postcentral gyrus. Tr. 2/56. In the wake of the trauma to the brain, multiple hemorrhages resulted in diffuse bleeding in various areas of the brain and when those areas liquified as part of the necrotic process they left behind multiple cavities. Tr. 2/53-54. P.E.T. scanning Page 10 performed on February 16, 2000 confirmed the absence of functional brain activity in many of these areas. PL's Ex. 10.
27. Dr. Anthony, J. Caputy, a neurosurgeon, Dr. Naidich, Dr. Richard N. Edelson, a neurologist, and Dr. Paul Fedio, a neuropsychologist, explained the functional significance of the loss of these neuroanatomical regions of the plaintiff's brain. Tr. 1/34-36, 1/46, 1/51-52, 2/16, 2/21-23, 2/27-32, 2/53, 2/145, 3/45. The extensive damage to the plaintiff's brain has resulted in serious impairment of higher cortical functions, neurocognitive deficits, and multiple neuromuscular disabilities with paralysis, paresis, and contractures of the musculoskeletal system in the torso, head, and four extremities. Id. The brain injury has rendered the plaintiff quadriparetic and resulted in a complete loss of mobility such that he now requires wheelchair transportation plus assistance in making all transfers between wheelchair, bed, and bathing facilities. Tr. 2/23-29, 2/45, 3/45-46. The damage also has resulted in the inability of the plaintiff's brain to process and retain information, as well as a loss of ability to integrate information received from sensory and motor experience. Id. The absence of the plaintiff's right frontal cerebral area has caused him to encounter great difficulty in cognition, thinking and control of impulses. Id.; Tr. 2/147-49. According to Dr. Naidich, the body has much less ability to compensate when a person has suffered bilateral or multifocal injuries, making it more likely to have permanent, irreparable damage as the plaintiff exhibits. Tr. 2/76.
28. The damage to the plaintiff's cerebellum has hindered the plaintiff's spatial orientation and equilibrium. Tr. 1/24, 1/35, 5/74-75. Damage to the plaintiff's thalamus and hypothalamus has resulted in the loss or impairment of body sensation, long and short Page 11 term memory function, learning, information retrieval and use, visual spatial orientation, and appetite. PL's Ex. 156; Tr. 1/133, 2/45, 4/113.
29. Dr. Fedio evaluated the cognitive and personality functions of the plaintiff over five formal sessions and a home visit in May 2002 to assess the plaintiff's home environment. PL's Exs. 202B, 202C; Tr. 1/142-44. Based on his own extensive testing and review of the plaintiff's school and medical records, Dr. Fedio concluded that the 1998 accident caused a tremendous amount of brain injury that has left the plaintiff severely impaired. Tr. 1/145. He noted that the primary loss is the massive hole in the plaintiff's right frontal lobe but that there is extensive injury all over the plaintiffs brain. Id.
30. Wechsler Adult Intelligence Scale testing showed that the plaintiffs language skills (left brain) are still relatively good, but that his visuospatial skills (right brain) are severely impaired. PL's Exs. 161A-B, 202B at 6-7, 202C at 4-5. The accident also impaired the plaintiff's memory, perceptual organization, processing speed, and ability to understand information quickly. Tr. 2/163-65; Pl's Exs. 202B at 8-9, 202C at 5-6. Since the accident, the plaintiff has exhibited a very limited capacity for learning. Tr. 2/148. The plaintiff also has exhibited severe attention and concentration deficits since the accident, and has a severe memory and learning disability. PL's Exs. 202B at 8, 202C at 5-6.
31. Dr. Edelson explained that there are "islands" of preserved function, such as verbal skills, but the plaintiff has lost other cognitive processes that are essential to overall cognitive performance. Tr. 3/52.
32. The plaintiff also has an executive function disorder which manifests itself in a severe disability in practical reasoning and problem solving. He lacks the ability to plan and to foresee the consequences of his behavior. Tr. 2/146. The plaintiff has lost the area of the Page 12 frontal lobe that controls judgment, decision-making and social decorum. Tr. 1/115, 4/43.
33. The evidence demonstrates that the plaintiff is permanently disabled from gainful employment, even in a protected environment, and most likely will not finish college. PL's Ex. 202C at 8; Tr. 4/44.
34. Dr. Ross Silverstein, a board-certified psychiatrist and clinical professor at Georgetown University, has been treating the plaintiff since October 2000 and has been seeing the plaintiff about once a month since March 2001. Tr. 3/82. Dr. Silverstein testified to his psychiatric diagnosis of dementia secondary to head trauma, and explained that the plaintiff's emotional, mental, and cognitive functioning is principally determined by the massive brain injury suffered as a result of the 1998 accident. Tr. 3/82-83. Dr. Silverstein described the plaintiff as a vulnerable individual with multiple emotional, cognitive, and behavioral problems who requires ongoing psychiatric treatment. Id. The plaintiff is completely out of touch with the reality of his life and has an unrealistic sense of his abilities and goals. Id. at 83. Dr. Silverstein testified that the plaintiff could become depressed as the reality of his deficits becomes more apparent to him. Tr. 3/86-87. Dr. Silverstein explained that the plaintiff will require psychiatric assistance for the remainder of his life, on an average of one session per month. Tr. 3/92. Dr. Silverstein was particularly concerned that the plaintiff would suffer acute deterioration if he were taken away from his family and put back into a group home or institutional setting. Tr. 3/93. He was specifically concerned that the plaintiff would "see the world as having given up on him" and "might experience that as punishment." Id. Page 13 35. Experts for the plaintiff and the defendant agreed that the plaintiff is dependent upon some level of assistance 24 hours a day, seven days a week. Tr. 1/148, 3/49-50, 4/141-42, 4/149, 5/175, 6/91, 6/99, 6/147-48. Even at night the plaintiff frequently requires assistance. His mother testified that he wakes up at night to go to the bathroom or to seek comfort. Tr. 5/99. He has fallen out of bed at least six times within the last year. Tr. 5/100. Leaving the plaintiff alone would not be safe because he could fall, have a seizure, leave the stove on, or attempt a dangerous maneuver in his wheelchair. Tr. 3/50, 4/14-15, 4/178, 5/79-80, 6/91.
36. The court observed the plaintiff and watched a short videotape of his home functioning. Through these observations, the court finds that the plaintiff is a severely impaired individual who is wheel-chair bound, unable to ambulate, unable to transfer or move unassisted from chair to bed, and dependent on the assistance of others. Tr. 3/160, 5/64-75. In contrast, prior to June 14, 1998, the plaintiff had excellent motor functions and was able to walk, hike, jog, run, swim, play soccer, lift heavy objects, and otherwise function as a fully normal 18-year-old male. Tr. 3/130-33, 4/70-71. He was a gifted soccer player, described by his former coach as having "an incredible left foot" and by his mother as "dynamite on the soccer field." Tr. 3/131, 5/67.
37. The plaintiff appreciates many of his deficits. Tr. 6/31. He suffers mental anguish when he hears that he will never walk again and is self conscious about his surgical scars. Tr. 1/83, 4/17, 5/72. He is frustrated and anxious over questions of sexuality. Tr. 1/84. He feels hurt and frustrated when he upsets others by his inability to learn and understand. Tr. 3/140. He feels disheartened when reminded of the long list of courses he must complete to graduate from NOVA. Tr. 5/76. Page 14
38. In summary, as a result of the plaintiff's severe head and brain injuries, he suffers the loss of many bodily and mental functions and a great deal of pain, suffering, and mental anguish. The plaintiff has paralysis and decreased sensation in the left side of his body. Tr. 4/182. He has lost physical strength, is wheelchair bound, and has to wear braces. Tr. 3/165; 2/23-29, 2/45; 3/45, 5/80. His braces pinch and cause pain. Tr. 3/165, 5/84-85. His exercises also cause pain. Tr. 4/170, 5/78-79. He suffers incontinence. Tr. 5/126. Aging will afflict him more severely, so that at age 40 he will more closely resemble a 60 or 70 year-old person. Tr. 3/54. He gets depressed at times and will likely develop depression in the future. Tr. 3/89, 3/99.
F. Future Medical Care and Related Needs
39. The parties each presented life care plans demonstrating that the plaintiff requires chronic care for the remainder of his life expectancy including full-time attendant care either at home or in a group residential setting. PL's Ex. 151; Def.'s Ex. 19. The plaintiff's expert, Ellen Barker, R.N., and the defendant's expert, Linda Kopishke, R.N., both prepared life care plans for the plaintiff. Id. Both life care plans account for the fact that the plaintiff is wheelchair bound and contemplate extensive services based on a life expectancy of 70 years. Id. The first major difference between the plans is whether this care should be provided in the plaintiff's family setting or in a group setting. Id. The second is the hourly wage of attendants. Id. The third major area of dispute concerns the frequency of medical and related services. Tr. 1/125-34, 4/130-31, 5/176-77; PL's Ex. 151.
40. Addressing the first factual issue, the court considers that the plaintiff's mother, father and brother are committed to keeping the plaintiff in his home environment and outside Page 15 the confines of a group home or institutional setting. Tr. 1/78, 5/86, 5/123, 8/24. The plaintiff's physiatrist, Dr. Stephen Wills, testified that the plaintiff is not suited for an adult daycare program or group home due to the extent of his injuries. Tr. 4/130. For these reasons, the plaintiff's well-being would be better served by living with or close to his family and not receiving care at a group home.
41. Considering the second factual issue, the provisions for attendant care, the court recognizes that the Barker life care plan provides for a day-time skilled-care attendant charging $50 per hour and a different evening and night-time attendant charging $8-10 per hour. PL's Ex. 151 at 18. The defendant's experts, Ms. Kopishke and Dr. Alan Frankel (the defendant's economist), testified that no skilled-care attendants charging $50 per hour exist — rather, the hourly rate is lower. Tr. at 6/96, 8/82-83. In contrast, Ms. Barker testified that this is a reasonable fee for a nurse or medical student working through an employment agency, and she had confirmed this belief several years ago when she spoke to an employment agency in the Fairfax area. Tr. at 1/171-72. Judging the testimony and relevant facts, the court finds Ms. Barker's testimony more credible than that of Ms. Kopishke or Dr. Frankel on this wage issue.
42. Turning to the third major factual issue regarding the life care plans, the court finds that Dr. Richard Zorowitz, a professor of rehabilitation medicine who testified for the defendant, agreed with the plaintiff's experts that the Kopishke plan was deficient in not providing for care by specialists in neurology, orthopedics, urology, pulmonology, ear-nose-and-throat, plastic surgery, and nutrition. Tr. 5/176-77; PL's Ex. 153. The Barker plan expressly covers these services, and Dr. Wills testified that these services are necessary for the plaintiff's care. Tr. 4/130-35; Pl's Ex. 151. Page 16
43. After listening to the extensive testimony regarding the two life care plans, and reviewing the testimony and the plans themselves, the court finds that the plaintiff's life care plan addresses the plaintiff's future medical care and related needs far better than the defendant's plan. PL's Ex. 151; Def.'s Ex. 19. The court also finds that the plaintiff's experts — Nurse Barker, who created the plan, Dr. Wills, the plaintiff's physiatrist, and Dr. Edelson, the plaintiff's neurologist — have reasonably recommended the items in the plan as necessary for the plaintiff's future care. E.g., PL's Ex. 151; Tr. 1/120, 4/130-35. Page 17
G. Present Value Calculations
44. The plaintiff's expert economist, Dr. Richard Lurito, utilized a methodology which calculates the likely escalation of the plaintiff's future medical and related expenses and future lost wages, and then discounts those future damages figures to their present value using an after-tax discount rate. Tr. 4/203-06; see also PL's Exs. 203F, 203G (Dr. Lurito's reports). This approach recognizes that some categories of costs and wages generally increase faster than inflation. PL's Ex. 153.
45. On the other hand, the defendant presented two experts each with different approaches to estimating the current value of future economic costs. Tr. 8/30-131. First, Dr. Alan Frankel utilized a "real" or net interest rate approach. Tr. 8/35-36; see also Def.'s Exs. 27A-D (Dr. Frankel's reports). The "real" interest rate represents the difference between the overall rate of return on investments and the overall rate of inflation. Id. This method, which uses this "real" interest rate as the net discount rate, assumes that the growth in medical and related care costs and in the wages of college graduates will be same as the growth in the consumer price index generally. Tr. 8/63-64, 8/138-40. Second, Mr. Thomas Walsh proposed a "market present value" approach, which uses the cost of an annuity to determine the cost of a future stream of payments. Tr. 8/112; see also Def.'s Exs. 20A-E (Mr. Walsh's reports).
46. The field of economics is not an exact science and provides multiple methods for reaching the same goal: the estimate of future losses. One significant difference between Dr. Lurito's calculations and Dr. Frankel's calculations is that Dr. Frankel did not use an after-tax discount rate for most of his calculations, while Dr. Lurito did. Compare Tr. 8/49-50, 8/86 with Tr. 4/207-08 and PL's Ex. 163; Pl's Ex. 203G at 10. The choice of an Page 18 after-tax versus before-tax discount rate significantly affects the calculation of the net discount rate by which future sums are being reduced to present value. See Pl's Ex. 163. Overall, of the three experts, the court finds the plaintiff's expert, Dr. Lurito, most clear and compelling.
47. The court also finds that the bulk of the plaintiff's future economic damages consists of health care and attendant care costs. Pl's Ex. 153. If the rate of growth in these items is understated, or if future costs are discounted at an excessive rate, the consequences to the plaintiff could be devastating — he might not be able to pay for medical care needed because of the defendant's negligence. Compare Def.'s Ex. 27D at Ex. 20 (Dr. Frankel's chart, showing that the present value of the plaintiffs life care plan when calculated with a 3.0 percent discount rate is $7,001,712) with Tr. 4/213 and PL's Ex. 153 (Dr. Lurito's chart, showing that the present value of the plaintiff's life care plan when calculated with a-0.5 percent discount rate is $14,237,416 to $15,534,956).
48. Dr. Lurito projected that the cost of the items in Ms. Barker's life care plan will rise at a rate faster than the overall rate of inflation. Tr. 4/209-11, 5/17. He assumed that the overall rate of inflation will be 3.0 percent per year and that the cost of items in Ms. Barker's life care plan will rise at an average rate of 5.0 percent per year. Tr. 4/205-06, 4/209-12; Pl's Ex. 153. He based this assumption on (a) a current annual growth rate in medical care services costs of 5.35 percent; (b) a likely future growth as described in the Page 19 2002 Economic Report of the President;*fn2 and (c) a growth in the costs of medical care services over the 1986-2001 period of 5.67 percent per year. Tr. 4/210-12; PL's Exs. 164 at 149, 203G.
49. In an economy where the overall demand for personal and home care aides is projected to increase by 67 percent by the year 2010, it is likely that the prices charged by home care agencies will generally grow faster than consumer prices. Tr. 5/52-53; PL's Ex. 172 at 188. Thus, it is more probable than not that, as in the past 20 years, average earnings for health care providers and average prices for medical-related goods and services will continue to rise at approximately 1.5 times the overall inflation rate. Pl's Exs. 152A-B, 203G; Tr. 5/52-54, 8/139-40. Accordingly, Dr. Lurito's calculation of the likely future growth in medical and related expenses is reasonably certain.
50. Turning to the future lost wages estimate, Dr. Lurito calculated the likely escalation in the wages that the plaintiff would have enjoyed absent his injuries caused by the accident. Tr. 5/16-24. Dr. Lurito supports his use of a 4.5 percent escalation rate for the plaintiff's future earnings absent injury with the 2002 Economic Report of the President, which shows that the earnings of college and post-college educated males in the United Page 20 States have historically increased by a yearly amount well in excess of the inflation rate. Tr. 5/23-24; Pl's Ex. 171.
51. As with future medical and related expenses, the failure to take longstanding economic reality into account — that is, making the assumption that the earnings of college graduates will increase at the rate of overall inflation — would result in a significant understatement of the plaintiff's probable future earnings loss. Tr. 5/17-24. Thus, the court is persuaded that the plaintiff's future earnings, absent injury, would have been at the level of a person with two years of graduate study, and that such earnings would likely have grown at an average of 4.5 percent per year as calculated by Dr. Lurito. Tr. 5/23-24; PL's Exs. 171, 203G.
52. Reducing the plaintiff's future lost earnings and medical and related expenses to present value, Dr. Lurito applied a 4.5 percent after-tax discount rate. Tr. 4/205-08, 5/46; PL's Ex. 163. Dr. Lurito based his choice of discount rate on the rate of return on conservative bond and money market investments. PL's Ex. 152E. The actual before-tax yield on this portfolio is 5.2 percent and the after-tax yield is 3.9 percent. PL's Ex. 152E.
53. Dr. Lurito calculated the present value of plaintiff's future medical and related expenses based on an after-tax discount rate of 4.5 percent and an overall growth rate of 5.0 percent, producing a net discount rate of negative 0.5 percent. Tr. 4/213. Dr. Lurito calculated the present value of the plaintiff's future lost earnings based on an after-tax discount rate of 4.5 percent and growth rate of 4.5 percent, producing a net discount rate of zero percent. Tr. 5/21.
54. Having observed and reviewed the testimony of the expert economists, the court is satisfied that Dr. Lurito's methods and calculations are based on substantial evidence and Page 21 provide a reasonably certain estimate of the plaintiff's future lost wages and medical and related expenses.
III. CONCLUSIONS OF LAW

A. Legal Standard for Compensatory Damages

In cases arising under the FTCA, the law of the state where the misconduct occurred governs substantive tort liability, including the nature and measure of damages to be awarded. Richards v. United States, 369 U.S. 1, 11 (1963). "In the District of Columbia, the primary purpose of compensatory damages in personal injury cases'is to make the plaintiff whole.'" District of Columbia v. Barriteau, 399 A.2d 563, 566 (D.C. 1979) (quoting Kassman v. Am. Univ., 546 F.2d 1029, 1033 (D.C. Cir. 1976)).

Courts must base compensatory damages awards on substantial evidence and not on mere speculation. Wood v. Day, 859 F.2d 1490, 1493 (D.C. Cir. 1988); Romer v. District of Columbia, 449 A.2d 1097, 1100 (D.C. 1982). Substantial evidence is more than a scintilla, but the evidence "need not point entirely in one direction." Doe v. Binker, 492 A.3d 857, 860 (D.C. 1985). Described differently, substantial evidence is that which forms "an adequate basis for a reasoned judgment." Romer, 449 A.2d at 1100. While the plaintiff need not prove damages to a mathematical certainty, the court must have a reasonable basis upon which to estimate the damages. Wood, 859 F.2d at 1493; Spar v. Obyowa, 369 A.2d 173, 180 (D.C. 1977).

Regarding damages for the future consequences of a tort, an item is recoverable if the plaintiff proves by a reasonable certainty that the future consequence would have occurred or will occur. Wood, 859 F.2d at 1492-93; Sheehan v. United States, 822 F. Supp. 13, 17 (D.D.C. 1993); Curry v. Giant Food Co. of the Dist. of Columbia, 522 A.2d 1283, 1291 (D.C. 1987). Page 22

Courts have defined the "reasonable certainty" standard as identical to the preponderance of the evidence standard. Moattar v. Foxhall Surgical Assocs., 694 A.2d 435, 439 (D.C. 1997) (citing Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 119 (D.C. Cir. 1982)). In addition, courts should only award damages for future medical expenses when the expenses are reasonable and necessary. Muenstermann v. United States, 787 F. Supp. 499, 522 (D. Md. 1992).

Using this framework, the court considers the individual types of compensatory damages that the plaintiff requests: pain and suffering, past medical expenses, future lost wages, and future medical and related expenses.

B. Pain and Suffering

The plaintiff requests an award of $8,000,000 for his past and future pain and suffering as caused by the accident. Pl's 2d Am. Prop. FFCL at 93. The defendant argues that an award of $750,000 would be reasonable. Def.'s Prop. FFCL at 31.

The plaintiff in the instant action has presented substantial evidence to prove that he suffers from severe and permanent injuries, physical and mental disabilities, pain, emotional distress, disfigurement, deformity and inconvenience as a result of the defendant's negligence. Wood, 859 F.2d at 1492; see also Doe, 492 A.3d at 861 (explaining that pain and suffering damages are appropriate for "conscious" pain and suffering). The plaintiff has proven that he appreciates many of his deficits. Jones v. Miller, 290 A.2d 587, 590 n. 5 (D.C. 1972) (stating that in determining pain and suffering damages, the court may consider the nature and extent of the injured party's suffering and his "internal condition perceptible to his senses"). For example, he suffers mental anguish when he hears that he will never walk again, he is self conscious about his surgical scars, he is frustrated and anxious over questions of sexuality, and he feels hurt and frustrated when he upsets others by his inability to learn and understand. Beyond these items, Page 23 the record also attests to many other losses and a great deal of pain, suffering, and mental anguish. For example, the plaintiff has paralysis ...


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