United States District Court, D. of Columbia
September 10, 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 eightday 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
[281 F. Supp.2d 283]
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 CalvaCerqueira 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. 21A, 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.'s Exs. 6, 27,
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
[281 F. Supp.2d 284]
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 plaintiff's 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, 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.
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
[281 F. Supp.2d 285]
attend the northern Virginia cornmunity 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,
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
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
[281 F. Supp.2d 286]
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
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 braininjured 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 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
[281 F. Supp.2d 287]
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 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 wheel-chair
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
[281 F. Supp.2d 288]
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 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 plaintiff's brain. Id.
30. Wechsler Adult Intelligence Scale testing showed
that the plaintiff's 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
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.
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
[281 F. Supp.2d 289]
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.
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, 6/147-418. 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
[281 F. Supp.2d 290]
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 skilledcare 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
[281 F. Supp.2d 291]
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
[281 F. Supp.2d 292]
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 plaintiff's 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
[281 F. Supp.2d 293]
growth in medical and related expenses is reasonably
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 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, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). "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)).
[281 F. Supp.2d 294]
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.2d 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. Obwoya, 369 A.2d 173, 180 (D.C.
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). 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
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.2d 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, 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
In Athridge v. Iglessias, the court considered brain injuries similar
to those of the
[281 F. Supp.2d 295]
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
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
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 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
[281 F. Supp.2d 296]
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 Damages
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, 103 S.Ct.
2541, 76 L.Ed.2d 768 (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
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, 103 S.Ct. 2541. In discounting a lump-sum award for
future damages to present value, the discounting methodology must take
into account two factors. Id. at 537, 103 S.Ct. 2541. 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, 103 S.Ct. 2541. The discount rate should be based on the interest
that can be earned with the safest available investments. Pfeifer, 462
U.S. at 537, 103 S.Ct. 2541.
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 I, 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 plaintiff's 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
[281 F. Supp.2d 297]
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'l R.R. Passenger Corp. v.
McDavitt, 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 plaintiff's] 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, 103 S.Ct. 2541; 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, 103 S.Ct. 2541).
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 plaintiff's future damages.
Pfeifer, 462 U.S. at 542-44, 548, 103 S.Ct. 2541. The market 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 aftertax 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, 103 S.Ct. 2541.
In this case, Dr. Lurito used a 4.5 percent after-tax discount rate to
reduce to present value the plaintiff's 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, 103 S.Ct.
2541. 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
[281 F. Supp.2d 298]
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. Pender,
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 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 plaintiff's 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, annuitycost 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 Plaintiff's 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 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 plaintiff's 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.
[281 F. Supp.2d 299]
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 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, 103 S.Ct. 2541 (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
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.
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.
[281 F. Supp.2d 300]
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 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, 103 S.Ct. 2541. 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 I, 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
[281 F. Supp.2d 301]
where the injured party, through 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 I, 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 I, 971 F.2d at 1510 ("Hull I"); 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 I, 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 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
plaintiff's attorney. Hull v. United States, 53 F.3d 1125, 1128 (10th
Cir. 1995) ("Hull II").
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
[281 F. Supp.2d 302]
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.
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 WL
350003, at *2, 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 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