United States District Court, District of Columbia
January 1, 2003
ENRIQUE CALVA-CERQUEIRA, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT
The opinion of the court was delivered by: Ricardo Urbina, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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.
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
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.
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
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,
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
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
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
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
abusers generally cannot maintain employment.
Tr. 7/197'. Ultimately, Mr. Shedlin opined
that the plaintiff would not complete college.
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.
D. The Plaintiff's Post-Accident Medical
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.
E. The Plaintiff's Injuries Caused By the
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.
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
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
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."
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.
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
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
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.
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.
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
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
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
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
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.
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
provide a reasonably certain estimate of the
plaintiff's future lost wages and medical and related
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 and decreased sensation in the left side of his body. He is wheelchair bound and has to wear painful braces at all times. His stretching and other exercises are very painful. Prior to the accident, the plaintiff was healthy, intelligent, looking forward to attending college and a skilled soccer player.
In Athridge v. Iglesias, the court considered brain injuries similar to those of the instant plaintiff. Athridge v. Iglesias, 950 F. Supp. 1187, 1192 (D.D.C. 1996). Like the plaintiff in this case, the plaintiff in Athridge suffered brain damage resulting in loss of memory; damage to the frontal lobe resulting in lost ability to socialize, concentrate and modify behavior; physical impairment; loss of ability to integrate information and execute plans; and emotional trauma. Id. While the plaintiff in Athridge functioned well enough to hold part-time minimum wage employment, the plaintiff in this case will most likely not be able to secure paid employment, though he might be able obtain volunteer employment. Id. at 1193. In Athridge, the court awarded the plaintiff $4,000,000 for the pain and suffering he had endured and would continue to endure, noting that the defendant must compensate the plaintiff for his severe mental and physical injuries. Id. at 1194.
Considering the pain and suffering that the plaintiff has already suffered and will continue to suffer throughout his life because of his injuries, and considering the $4,000,000 damage award in Athridge for a plaintiff with similar but slightly less severe injuries, the court awards the plaintiff $5,000,000 in pain and suffering damages. Wood, 859 F.2d at 1493; Athridge, 950 F. Supp. at 1192. Especially when compared to the plaintiff in Athridge, the plaintiff's injuries provide a reasonable basis for this award. Id.
C. Past Medical Care Expenses Page 24
The plaintiff requests an award of $899,325 for the medical care expenses that he incurred because of the accident. Pl's 2d Am. Prop. FFCL at 73-75. The defendant does not contest this amount, but asks the court to subtract from this award the amounts that his health care providers forgave or "wrote-off." Def.'s Reasonable Value Br. at 2. The defendant explains that the amount that the plaintiff actually paid — as opposed to the amount paid plus the written-off amounts — represents the reasonable value of the care. Id. The plaintiff objects to this request, arguing that pursuant to the collateral source rule, any written-off amounts are irrelevant and the award for past medical expenses should be $899,325, the amount billed. PL's Reply at 9.
Plaintiffs are entitled to recover for past medical care expenses as well as the cost of reasonable diagnostic examinations. Friends For All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 824-26 (D.C. Cir. 1984). In the District of Columbia, compensatory damages are subject to the collateral source rule, which states that "payments to the injured party from a collateral source are not allowed to diminish damages recoverable from the tortfeasor." Hardi v. Mezzanotte, 818 A.2d 974, 984 (D.C. 2003). This collateral source rule applies when either (1) the source of the benefit is independent of the tortfeasor or (2) the plaintiff contracted for the possibility of a double recovery. Hardi, 818 A.2d at 984.
The collateral source rule explicitly permits compensatory damages to include written-off amounts. Hardi, 818 A.2d at 984. In Hardi, the health care provider reduced the required payment pursuant to a contractual agreement with the injured plaintiff's insurance company. Id. Just as the defendant argues here, Dr. Hardi argued that the plaintiff should not be able to recover written-off amounts. Id. at 984-85. The court ruled that the collateral source rule applied and the injured plaintiff should receive the benefit of the agreement "including any Page 25 reduction in payments that the insurance carrier was able to negotiate [for the plaintiff]." Id. The court relied in part on a case where the hospital did not charge for medical services, explaining that "the interests of society are likely to be better served if the injured person is benefitted than if the wrongdoer is benefitted." Id. at 984 (citing Hudson v. Lazarus, 217 F.2d 344, 346 (D.C. Cir. 1954)).
The collateral source rule applies in this case because the source of the benefit, the plaintiff's medical care providers' alleged writing-off of costs, is independent of the tortfeasor. Hardi, 818 A.2d at 984. The collateral source rule permits the plaintiff to recover all of his medical costs, regardless of any written-off amounts. Id. Accordingly, the court awards the plaintiff $899,325 as damages for his past medical expenses. Friends For All Children, 746 F.2d at 824-26.
D. Discounting to Present Value Awards for Future
Before addressing the substance of the damages awards for future lost wages and medical and related expenses, the court discusses the methodology of calculating the present value of an award for future losses. For this purpose, the plaintiff advocates using the market interest rate method, while the defendant favors the real interest rate methodology and offers testimony of the use of an annuity as relevant to the present value calculation. Pl's 2d Am. Prop. FFCL at 78; Def.'s Prop. FFCL at 24, 29.
Courts must discount to present value lump-sum damages awards intended to compensate for future medical costs or future lost wages. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 533, 536-37 (1983); Hull v. United States, 971 F.2d 1499, 1510 (10th Cir. 1992); see also Martinez v. United States, 780 F.2d 525, 528 (5th Cir. 1986) (explaining that for FTCA cases, state law determines how to account for inflation). The leading case regarding calculating the Page 26 present value of future damages is Pfeifer, which involves calculating future lost wages in an action brought pursuant to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 904-05. Pfeifer, 462 U.S. at 523-53. In discounting a lump-sum award for future damages to present value, the discounting methodology must take into account two factors. Id. at 537. First, the methodology must take into account the time-value of money, that is, the fact that money awarded today can be invested to earn a return. Id. Second, the methodology must consider the effects of inflation. Id. at 540-41. The discount rate should be based on the interest that can be earned with the safest available investments. Pfeifer, 462 U.S. at 537.
Regardless of the method of calculation, the court must rely on competent evidence in determining the discount rate. Colleen v. United States, 843 F.2d 329, 331 (9th Cir. 1988); Hull, 971 F.2d at 1511. In calculating the discount rate, courts should not select a time period "over which to compare inflation and interest rates that provides a decidedly aberrational result." Trevino v. United States, 804 F.2d 1512, 1519 (9th Cir. 1986); see also Scott v. United States, 884 F.2d 1280, 1286-87 (9th Cir. 1989).
The first case in this jurisdiction that dealt with the effects of inflation in arriving at an award for loss of future income was Barriteau, 399 A.2d 563. Dr. Lurito, the plaintiff's economics expert in this case, was also the plaintiffs expert in Barriteau, a personal injury case. In that case, Dr. Lurito used the market interest rate method, applied an escalation factor based on the 20-year history of wages for nurses and nurses' assistants, and reduced future losses to present value by applying an after-tax discount rate. Id. at 568-69. Barriteau is the primary authority in this jurisdiction for the proposition that "the loss of future earnings — or, more precisely, the loss of future earning capacity — is a distinct item of damages which, if properly proved at trial, may result in recovery for the plaintiff." Nat'I R.R. Passenger Corp. v. McDavitt, Page 27 804 A.2d 275, 290 (D.C. 2002) (engineer's wages assumed to grow at an annual rate of three percent) (citing Barriteau, 399 A.2d at 567).
In an FTCA case, the Ninth Circuit held a military hospital liable for causing severe disability to a newborn child. Trevino, 804 F.2d at 1514. In evaluating the district court's award of damages for future lost wages and damages for future medical expenses, the Ninth Circuit explained that the rate of increase in wages may differ from the rate of increase in medical costs over the same period. Id. at 1519. "For this reason, the measure of inflation for the purpose of calculating the discount rate to be applied to the medical expense portion of [the plaintiffs] award may be different than that employed in fixing the discount rate applicable to the lost wage portion of her award." Id. Like in Trevino, to calculate the present value of the damages in a manner that accounts for medical costs that [may] rise faster than the rate of inflation, the court uses one net discount rate to calculate the present value of the future medical costs and a second net discount rate to calculate the present value of the future lost wages. Id.; see also Pfeifer, 462 U.S. at 537, 541-44, 548; Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1238 n. 13 (D.C. Cir. 1997) (citing Pfeifer, 462 U.S. at 536-42).
As in Barriteau, Dr. Lurito utilized the market interest rate method in the instant case. Dr. Lurito calculated the likely escalation of future wages and future care costs and then discounted those future damages figures to present value using an after-tax discount rate. Barriteau, 399 A.2d at 569. As discussed by the Supreme Court in Pfeifer, this "market interest rate" method entails (a) estimating future rates of inflation for various items of future damages; (b) calculating the effects of future inflation on such items; (c) determining an appropriate after-tax market interest rate; and (d) applying the after-tax market interest rate to determine the present value of the plaintiffs future damages. Pfeifer, 462 U.S. at 542-44, 548. The market Page 28 interest rate approach is different from the "total offset approach," which assumes that the rate of increase in wages and prices is always exactly offset by the after-tax market interest rate. Id. It is also different from the "real interest rate" approach, which excludes evidence of future price inflation and discounts by the observed or nominal market interest rate less inflation. Id. at 546-48.
In this case, Dr. Lurito used a 4.5 percent after-tax discount rate to reduce to present value the plaintiffs future lost earnings and medical and related expenses. His choice of this rate is in line with the basic economic principles discussed in Pfeifer. 462 U.S. at 537. In that case, the Court explained that the discount rate should be based on the rate of interest that the plaintiff would earn on "the best and safest investments." Id. Pfeifer also requires that the discount rate should represent the after-tax rate of return. Id. Use of an after-tax discount rate is based on the taxability of earnings on investments, and the effects of taxation are mitigated to the extent that medical expenses are deductible against income. Dr. Lurito explained that even if medical and related expenses are deducted, the first 7.5 percent of such expenses, and any income over and above 92.5 percent of such expenses, would be taxable.
The appropriate net discount rate depends on the economic facts that the parties have proven. Culver v. Slater Boat Co., 722 F.2d 114, 120-21 (5th Cir. 1983) (stating that "while the studies find that the real rate varies, estimates uniformly fix its amount over any fairly lengthy period as falling into a range that runs from 3.0 percent to a negative rate of 1.5 percent"). Significantly, the leading case in the District of Columbia on this subject involved application of a net discount rate of negative 0.75 percent. Barriteau, 399 A.2d at 566; cf. Hughes v. Fender, 391 A.2d 259, 262 (D.C. 1978) (applying a 1.0 percent discount rate). Thus, in light of District of Columbia law and the facts of this case, the court accepts Dr. Lurito's use of a 0.0 percent net Page 29 discount rate for the loss of future wages award and a negative 0.5 percent net discount rate for the future medical and related expenses. The court has a reasonable basis for using these net discount rates: they are based on reliable expert testimony and they comport with the facts of this case. Barriteau, 399 A.2d at 566, Trevino, 804 F.2d at 1519.
Considering the defendant's annuity evidence, the court notes that evidence regarding the cost of an annuity is not a fair measure of the present value of the plaintiffs future damages. Wood, 859 F.2d at 1492-93. First, while the court must consider annuity evidence to the extent it relates to the present value calculation, there is no requirement that plaintiff accept an annuity, nor is there any evidence in this case that the plaintiff will in fact invest the proceeds of his judgment into an annuity. Muenstermann, 787 F. Supp. at 526-27 (absent agreement of parties, the court has no alternative but to order the payment of a lump sum). Second, annuity-cost testimony is predicated on the invalid assumption that the plaintiff would "put all his eggs in one basket." Id. For these reasons, and based on the testimony of the economics experts, the court considers and rejects the defendant's annuity evidence. Wood, 859 F.2d at 1492-93.
E. The Plaintiffs Award for Future Lost Wages
The court now turns to the plaintiff's claims for future lost wages. The plaintiff seeks an award of $2,562,906, and the defendant asserts that the award should be $546,663. PL's 2d Am. Prop. FFCL at 93; Def.'s Prop. FFCL at 12.
Considering the plaintiff's request for future lost wages, the court must evaluate whether he has proven the future consequences of the accident by a reasonable certainty. Wood, 859 F.2d at 1492. In order for the estimate of future lost wages to be reliable, the court must base it on facts specific to the plaintiff. Wash. Metro. Area Trans. Auth. v. Davis, 606 A.2d 165, 178 (D.C. 1992). Because the plaintiff has not yet chosen a livelihood, the court must determine future Page 30 lost earnings on the basis of potential rather than demonstrated earning capacity. Hughes, 391 A.2d at 263. The court must extrapolate that potential from the plaintiff's individual characteristics such as age, sex, socio-economic status, family characteristics, criminal behavior, academic record, intelligence and dexterity. Id. Further, "the plaintiffs occupational abilities, industriousness, work habits and experience are relevant" in estimating the future earnings he would accrue over the course of his lifetime. McDavitt, 804 A.2d at 290.
Accordingly, the court considers that before the accident the plaintiff had several problems, including (1) the past abuse of alcohol, marijuana, cocaine, inhalants, and intravenous drugs, (2) the present abuse of marijuana and (3) a diagnosis of depression. The plaintiff's prospects improved, however, in January 1997 when he returned to the United States to live with his mother, largely due to her close supervision of him. At the time of the accident, the plaintiff was in school, was excelling in his position at Kentucky Fried Chicken, was a devoted and reliable member of a soccer team, and was planning to attend NOVA. McDavitt, 804 A.2d at 290. The plaintiff's brother's path had provided him with a road map to graduate school. Indeed, his entire family is very well-educated: his mother has a doctorate degree, his father is a pediatrician, his brother is in medical school, and an uncle and a cousin are veterinarians. Athridge, 950 F. Supp. at 1193 (finding it reasonably likely that an injured adolescent would have earned a professional degree given his family's academic history and his own academic record). Significantly, the plaintiff was a bright young man with good cognitive functions, fluency in English and Spanish, and a decent academic record. Id. The court also found credible the testimony of the plaintiff's vocational rehabilitation expert, Dr. Davis, that but for the accident the plaintiff would have completed college and two years of graduate study. Hughes, 391 A.2d at 263. In sum, the evidence demonstrates to a reasonable certainty that but for the Page 31 accident the plaintiff would have completed college and two years of graduate study. Athridge, 950 F. Supp. at 1193; Wood, 859 F.2d at 1492-93; Hughes, 391 A.2d at 263; McDavitt, 804 A.2d at 290.
After determining the amount of future earnings that the plaintiff would have earned but for the tort, the court must discount the amount to its present value. Barriteau, 399 A.2d at 568. Dr. Lurito, the plaintiff's expert economist, relied on Dr. Davis' conclusion that, absent the 1998 injury, the plaintiff would probably have graduated from college and completed two years of graduate study. Groobert v. Pres. & Directors of Georgetown College, 219 F. Supp.2d 1, 6 (D.D.C. 2002) (demonstrating that an expert economist is permitted to rely on other expert opinions). Dr. Lurito testified that the plaintiff's estimated after-tax future lost wages, reduced to present value with a zero percent net discount rate (obtained by subtracting a 4.5 percent growth rate from a 4.5 percent after-tax discount rate), amount to $2,562,906. Pfeifer, 462 U.S. at 537 (explaining that "the lost stream of income should be estimated in after-tax terms, the discount rate should also represent the after-tax rate of return to the injured worker"). Because the court concludes that Dr. Lurito's calculations are reasonable and based on substantial evidence, the court awards the plaintiff $2,562,906 for future lost wages. Wood, 859 F.2d at 1492-93.
F. The Plaintiff's Award for Future Medical and Related Expenses
Considering the issue of future medical and related expenses, the court notes that the plaintiff asks for $15,435,836 for these future costs. PL's 2d Am. Prop. FFCL at 93. The defendant argues that this award should be $3,805,000. Def.'s Prop. FFCL at 20. In estimating the cost of the plaintiff's future medical and related expenses, the court recognizes the significant discrepancy between the parties' estimates. Page 32
The plaintiff is entitled to an award for future medical and related expenses that are reasonable and necessary. Muenstermann, 787 F. Supp. at 522; see also Friends For All Children, 746 F.2d at 824-26. Yearly evaluations and diagnostic examinations are proper items of damages when recommended to ensure that the plaintiff's treatment is proceeding properly and that any physical, emotional or developmental difficulties are diagnosed early. Muenstermann, 787 F. Supp. at 523; see also Friends For All Children, 746 F.2d at 824-26. Equipment purchases are also a proper item of damages where the evidence shows that the plaintiff's development will improve with the assistance of such equipment. Muenstermann, 787 F. Supp. at 523. When the plaintiff's future need for full-time attendant care is more likely than not, an award including such care is proper. Muenstermann, 787 F. Supp. at 523; Ramrattan v. Burger King Corp., 656 F. Supp. 522, 524-25 (D. Md. 1987). The argument that the plaintiff does not need attendant care because a family member is providing it is unpersuasive. Lester v. Dunn, 475 F.2d 983, 985-86 (D.C. Cir. 1973). In addition, a plaintiff has no duty to mitigate her damages award by accepting a less costly form of medical care. Muenstermann, 787 F. Supp. at 523; Ramrattan, 656 F. Supp. at 525. Rather, the plaintiff "may select from among a number of reasonable alternatives." Id.
After listening to and reviewing the extensive testimony regarding the plaintiff's life care plan, the court concludes that the plaintiff's experts recommend all of the items in the plaintiff's life care plan as reasonable and necessary for the future treatment of his injuries as caused by the accident. Muenstermann, 787 F. Supp. at 523. Furthermore, while the provisions for the plaintiff's attendant care is highly contested and costly — especially because the plaintiff's plan does not include group care — the court concludes that the plaintiff has no duty to accept a less costly form of care. Id. Thus, the award of damages to pay for eight hours per day of skilled Page 33 attendant care and 16 hours per day of non-skilled attendant care is proper. Id. The court concludes that the plaintiff has proven to a reasonable certainty that the items listed in his proposed life care plan are reasonable and medically necessary. Muenstermann, 787 F. Supp. at 523; Ramrattan, 656 F. Supp. at 525.
Dr. Lurito, the plaintiff's expert economist, relied on Nurse Barker's life care plan to calculate the plaintiff's future medical and related expenses as necessitated by the accident. As stated previously, an expert economist may rely on the opinions of other experts. Groobert, 219 F. Supp.2d at 6. Dr. Lurito testified that the plaintiff's estimated future medical and related expenses, reduced to present value with a negative 0.5 percent net discount rate (obtained by subtracting a 5.0 percent growth rate from a 4.5 percent after-tax discount rate), amount to $15,435,836. Pfeifer, 462 U.S. at 537. Because the court concludes that Dr. Lurito's calculations are reasonable and based on substantial evidence, the court awards the plaintiff $15,435,836 for future medical and related expenses. Id.; Wood, 859 F.2d at 1492-93.
G. Reversionary Medical Trust
The defendant argues that the court should permit the defendant to provide the plaintiff's damages award for future medical costs in a reversionary trust. Def.'s Prop. FFCL at 20-23. The plaintiff and the court-appointed guardian ad litem object to this proposal. PL's Reversionary Trust Br. at 4; GAL Reversionary Trust Br. at 2.
In determining whether a reversionary trust is appropriate, the court gives significant weight to whether the plaintiff or his guardian ad litem consent to the use of a reversionary trust. Hull, 971 F.2d at 1504. The burden is on the requesting party to show that a reversionary trust is in the best interest of the injured party. Hill v. United States, 81 F.3d 118, 121 (10th Cir. 1996). Courts have routinely rejected requests for reversionary trusts where the injured party, through Page 34 his guardian ad litem, objects to the trust and the defendant offers no evidence of the benefit to the injured party. Id.; Wyatt v. United States, 944 F. Supp. 803, 804 (E.D. Mo. 1996) (rejecting motion for reversionary trust when the competent adult plaintiff objected and the defendant offered no reason why a trust would benefit him). Because the plaintiff and his guardian ad litem both oppose the imposition of a reversionary trust, the defendant has presented no evidence in support of its request and the defendant has not demonstrated that a trust is in the best interest of the plaintiff, the court denies the request for a reversionary trust. Hill, 81 F.3d at 121; Hull, 971 F.2d at 1504-05.
H. Guardian ad Litem Costs
The plaintiff asks the court to tax the guardian ad litem fees against the United States as costs. PL's 2d Am. Prop. FFCL at 91. The defendant objects to this request. Def.'s GAL Fees Br. at 1. The plaintiff, however, has not submitted any evidence detailing the relevant guardian ad litem costs.
In FTCA actions, courts have interpreted Federal Rule of Civil Procedure 54(d) to allow taxation of guardian ad litem expenses as costs against the United States. Hull, 971 F.2d at 1510 ("Hull 1); Lebron v. United States, 279 F.3d 321, 332 (5th Cir. 2002). Rule 54(d) states, "costs other than attorneys' fees shall be allowed . . . to the prevailing party unless the court otherwise directs; but costs against the United States . . . shall be imposed only to the extent permitted by law." Fed.R.Civ.P. 54(d). Where the same person performs services as a guardian ad litem and as an attorney, only fees for services rendered in the role of guardian ad litem are taxable as costs. Hull, 971 F.2d at 1510. The Tenth Circuit defined this guardian ad litem role as acting as an officer of the court and looking after the interests of the plaintiff. Id. (remanding to "determine what portion of the guardian ad litem's fees was properly taxed as costs and what Page 35 portion should have been deducted from the damages award as attorney's fees"). Even if the guardian ad litem performed legal tasks for the plaintiff, such as legal research, the court can tax these expenses as costs so long as the guardian ad litem did not perform the legal tasks in the role of the plaintiffs attorney. Hull v. United States, 53 F.3d 1125, 1128 (10th Cir. 1995) ("Hull IF).
To the extent the guardian ad litem was performing his guardian role — acting as an officer of the court and looking after the interests of the plaintiff — the defendant should pay his costs. Thus, the court grants the plaintiff's request for taxation of the guardian ad litem expenses as costs against the defendant. Hull I, 971 F.2d at 1510; Hull II, 53 F.3d at 1128. Because the plaintiff has not submitted detailed and sworn records from the guardian ad litem, however, the court cannot determine what amount of his fees are for services rendered in the guardian ad litem role, and what amount are for services rendered as an attorney. Therefore, the court orders the plaintiff to submit an affidavit from the guardian ad litem detailing any services rendered in the guardian ad litem role, and any services rendered in an attorney role, and itemizing all fees and costs. Id.
I. FTCA Cap on the Damages Award
On September 8, 1998, pursuant to the FTCA, the plaintiff's counsel filed with the defendant an administrative tort claim seeking $20,000,000 for "personal injury." Compl. Ex. C (Form 95 dated Sept. 8, 1998). The plaintiff now asks the court for a damages award of $26,898,067. PL's Prop. FFCL at 93. The defendant argues that the FTCA limits the plaintiff's recovery to the amount in the administrative claim, $20,000,000. Def.'s Resp. at 16. The plaintiff has presented no evidence on this issue and has not addressed this issue. Page 36
Considering the relevant law, the court notes that the FTCA explicitly states that a plaintiff's damages under the FTCA are limited to the amount requested in the administrative claim unless the plaintiff can satisfy a stringent "newly discovered evidence" or "intervening facts" standard. 28 U.S.C. § 2675(b); Pullen v. United States, 1997 U.S. Dist. LEXIS 8910, at *18-20 (D.D.C. June 11, 1997). If a plaintiff could have reasonably obtained the information on the specific injuries needed to make out the worst-case scenario when he filed the original claim, then new information about the injuries will not qualify as "newly discovered evidence" or "intervening facts." Dickerson v. United States, 280 F.3d 470, 476 (5th Cir. 2002). Newly discovered evidence is evidence that materially differs from the worst-case prognosis of which the claimant knew or could reasonably have known when he filed the claim, not evidence that merely bears on the precision of the prognosis. Zurba v. United States, 318 F.3d 736, 741 (7th Cir. 2002); Low v. United States, 795 F.2d 466, 471 (5th Cir. 1986).
In this action, the plaintiff has not argued that any evidence could qualify as "newly discovered evidence" or "intervening facts." Indeed, as the defendant points out, the plaintiff's condition has improved since he filed his administrative claim. Def.'s Resp. at 16. Having reviewed the evidence of the plaintiff's condition, the court concludes that no "newly discovered evidence" or "intervening facts" exist that could justify an increased amount for the plaintiff's personal injury claim. Dickerson, 280 F.3d at 476. Accordingly, the court limits the plaintiff's damages award to $20,000,000.
For all these reasons, the court grants the plaintiff the following compensatory damages: $5,000,000 for pain and suffering, $899,325 for past medical expenses, $2,562,906 for future Page 37 lost wages and $15,435,836 for his future medical and related expenses. The court reduces the total award to $20,000,000 to account for the fact that the plaintiff's administrative claim for damages requests that amount. The court also declines to adopt the defendant's request for a reversionary medical trust and determines that the defendant shall pay any fees of the guardian ad litem for services rendered in the guardian ad litem role. An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously issued this day of September, 2003.