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Calva-Cerqueira v. United States

September 10, 2003


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 125, 126, 134



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.


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 Accident

2. The plaintiff was born on November 16, 1979, the second son of Maria Teresa Cerqueira and Roberto Calva. Pl.'s Ex. 146. His older brother Daniel was born in 1977. Id.

3. The plaintiff spent his early years in Mexico City. Id.; Pl.'s Ex. 121. His parents separated in 1984 and divorced two years later. Pl.'s Ex. 146. After completing first and second grade in Mexico City, the plaintiff moved with his mother and brother to Ithaca, New York. Pl.'s Exs. 121, 146. The plaintiff's elementary school grades ranged from average to above average. Pl.'s Ex. 121. The plaintiff and his brother spent the summer of 1991 with their father in Mexico, and then elected to remain in Mexico with their father. Pl.'s Ex. 146. The plaintiff's school grades from 1991 through 1994 ranged from average to good. Pl.'s Ex. 121.

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. 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 speculate. Id.

6. While living with his father in Mexico, the plaintiff suffered an emotional breakdown and was hospitalized for six weeks for detoxification from cocaine, inhalants, alcohol and other illegal drugs. Tr. 3/112-13, 3/117, 3/122-23; Pl.'s Ex. 35. Upon discharge from the detoxification program, the plaintiff was diagnosed as having a depressive disorder. Pl.'s Ex. 32.

7. In January 1997, the plaintiff moved to the United States to live with his mother in Fairfax, Virginia. Pl.'s Ex. 146. He participated in a second substance abuse treatment program and saw a psychiatrist, Dr. Eliot Sorel, from January through November 1997, 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, 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 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. 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 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 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 Treatment

20. The plaintiff arrived by ambulance at the George Washington University Hospital Emergency Department at 9:25 a.m. on June 14, 1998. Pl.'s Ex. 1 at 5, 9-10; Tr. 1/6-7. He had sustained multiple traumas including injuries to the brain, skull and chest and was in a deep coma. Id.

21. After three weeks of treatment at George Washington University Hospital, the plaintiff was transferred in a comatose state to the National Rehabilitation Hospital ("NRH"). Pl.'s Exs. 2, 4; Tr. 4/110-18. He remained at NRH until December 24, 1998, and began to communicate verbally in August 1998. Id. His mother sat with him everyday. Tr. 5/68.

22. On January 4, 1998, the plaintiff moved to the Learning Services Corporation where he received 24-hour supervision from skilled trainers specializing in the care of brain injured adults. Pl.'s Ex. 5 at 16-19. Following the plaintiff's departure in March 1999 from the Learning Services Corporation, he began outpatient rehabilitation training in an adult day program at NRH. Pl.'s Ex. 7; Tr. 1/79-80. He is currently receiving physical therapy three times per week at Fairfax Rehabilitation, Incorporated. Id.

23. The plaintiff continues to reside with his mother in Fairfax, Virginia. He has someone with him at all times. Tr. 5/77-82.

24. The plaintiff has incurred medical bills totaling $899,325.46 as a result of the accident. Pl.'s Ex. 158. According to his mother, her insurance company has a medical lien in the amount of $400,000-$500,000. Tr. 5/92-93. The court finds that the record includes no proof that the plaintiff's health care providers did not require full ...

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