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Dugar v. Washington Metropolitan Area Transit Authority

July 16, 2008

DEBBIE DUGAR AND DELOIS GILLESPIE, PLAINTIFFS,
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiffs, Debbie Dugar and Delois Gillespie, bring this action against the United States and Washington Metropolitan Area Transit Authority ("WMATA") asserting various causes of action arising out of a motor vehicle accident in which both plaintiffs were injured. Both plaintiffs were passengers on a WMATA bus that was struck by a United States Secret Service employee. The United States has admitted negligence, and WMATA has been dismissed as a defendant. The court conducted a bench trial on damages on December 10-13, 2007, to determine the amount of damages. Based upon the evidence presented at that trial, the court makes the following:

I. FINDINGS OF FACT

A. Delois Gillespie

1. On August 2, 2002, when the accident occurred, Gillespie was employed full-time by the porter and maintenance staff of Realty Management, L.L.C. She was responsible for cleaning and preparing apartments that were to be rented out in the near future, with job duties that consisted of stripping, waxing, and buffing floors, helping lay carpet, hanging dry wall, laying tile, and helping install toilets, sinks, and cabinets. Gillespie earned $11.40 /hour plus time and a half for overtime.

2. As a result of the accident, Gillespie was thrown into a pole adjacent to where she was seated, striking her right clavicle*fn1 against the pole. Gillespie was taken by ambulance to Washington Hospital Center, where she was diagnosed with a fractured clavicle. To allow the fracture to heal, Gillespie was placed in a sling to immobilize her right shoulder. Due to the fracture, Gillespie was unable to work.*fn2

3. After the accident, Gillespie became a patient of Phillips, Green, Salter, and Meyer, which is a private orthopedic practice. From August 2002 to March 2003, Gillespie regularly saw one of two doctors at this practice -- Dr. Frederic Salter or Dr. Richard Meyer -- for treatment of her fractured clavicle.

4. When a fracture of the type experienced by Gillespie heals uneventfully, it will heal sometime between 6 and 12 weeks. Gillespie's fracture, however, did not heal immediately. She experienced a delayed fracture, which led to ongoing pain. A CAT scan that was taken in March 2003 -- approximately seven months after the accident -- showed that Gillespie's fracture had not yet healed and that she suffered from a "non-united non-comminuted fracture." Pls.' Ex. 7. Due to the results of the CAT scan, Gillespie was referred to Dr. Robert Brumback, a fracture specialist.

5. By March 2004, the fracture had healed. The fracture, however, resulted in a "shortening" of the clavicle, as well as related shoulder muscles. Dr. Salter testified that this shortening is "like . . . a bow string, and the bow has to be under tension for it to work correctly. And if you shorten the bow or break the bow, when you try to pull the arrow with a laxed string, it's not going to work. And this is the same thing here. It's not going to work as well." Hr'g Tr. 152:22-25; 153:1, Dec. 10, 2007.*fn3

6. Compounding Gillespie's difficulties due to the shortening, Gillespie suffers from degenerative arthritis of her shoulder joint. Dr. Salter testified that "the worse [sic] thing that one can do for an arthritic joint is not move it," Id. at 137:5-6, yet Gillespie had to immobilize her shoulder for a long period of time to allow the fracture to heal. Aside from the arthritis, when the shoulder is immobilized for an extended period of time, the shoulder stiffens. Furthermore, Gillespie suffers from diabetes. Diabetes predisposes a person for a condition called adhesive capsulitis, which is a stiffening of the shoulder. Dr. Salter testified that Gillespie has developed adhesive capsulitis in her shoulder.

7. Accordingly, the fracture caused long-term disability and permanent injury to her shoulder. She has "permanent limitation of motion of the right shoulder." Pls.' Ex. 7.

8. Because the fracture healed by March 2004, Dr. Brumback and Dr. Meyer cleared Gillespie to return to work. Gillespie was limited, however, in the kinds of jobs she was able to perform, even though the doctors did not specifically restrict the types of jobs Gillespie was cleared to perform. The shortening of the clavicle limited Gillespie's ability to raise her right arm and lift heavy objects. Accordingly, she was incapable of performing the demanding physical tasks associated with her previous job as a porter. Furthermore, as a result of the fracture, Gillespie experienced chronic pain.

9. Gillespie had few employment prospects upon her return to work.*fn4 Not only was Gillespie significantly restricted in the degree to which she could exert herself physically, she also has a limited educational background, having only attended high school.*fn5 She has had no formal job training since high school, other than that gained through practical experience and on the job training.

10. Accordingly, Gillespie became a stock clerk at a Family Dollar Store. She began working there in November 2004. This job requires less physical exertion than her prior job as a porter. She stands throughout the work day and mostly lifts ten pounds or less at a time. Gillespie's supervisor allows her to take breaks as needed in order to accommodate pain she experiences. Gillespie regularly takes pain relievers at work.

11. Gillespie's initial wages at Family Dollar were $6.50/hour. Sometime in 2007, Gillespie's wages at Family Dollar increased to $7.21/hour.*fn6 Her wages are expected to increase in the future at an annual rate of 3.49%, which represents the actual wage growth for retail workers between 1980 and 2007.*fn7 While this is a historic rate of increase, the court sees no reason why this rate should not be applied to determine future increases in income.

12. These wages are significantly less than what Gillespie earned as a porter. As a porter, she earned $11.40/hour. Had she not been injured, Gillespie's wages as a porter, $11.40/hour, would have been expected to increase annually by 3.53%, which is the actual wage growth for blue collar workers between 1980 and 2006.*fn8 While this is a historic rate of increase, the ...


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