United States District Court, D. Maryland
MARK A. BARNETT, District Judge.
Plaintiff, Keon Coleman, was injured in a car accident involving a government-owned vehicle driven by Yvette Tuzon, an employee of the United States Office of Personnel Management ("OPM") acting within the scope of her employment. He filed the present action against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, claiming damages stemming from Ms. Tuzon's negligence. The United States has conceded liability for the accident, but challenges the damages Plaintiff seeks. After a bench trial on March 4, 2014, the court makes the following findings of fact and conclusions of law.
I. Summary of the Evidence
a. Plaintiff's Pre-Existing Injury
Plaintiff first injured his right forearm in March 2009. (Trial Tr. 14:3-:24, Mar. 4, 2014.) Dr. Richard Barth, an orthopedic surgeon specializing in hand surgery, diagnosed a fracture of the radius combined with dislocation of the articulation of the radius and ulna at the wrist. ( See Def.'s Ex. 2 (Dr. Richard Barth Dep., Jan. 29, 2014) 5:20-6:6, 6:24-7:12.) On March 16, 2009, he performed a surgery on Plaintiff's forearm to insert a stainless steel plate to stabilize the fracture and facilitate proper healing. (Barth Dep. 6:24-9:4.)
In July 2009, Dr. Barth performed corrective surgery on Plaintiff's arm, replacing the steel plate, because the original plate had bent, preventing the injury from healing correctly. (Barth Dep. 9:6-10:13.) Dr. Barth saw Plaintiff in August 2009 for a follow-up appointment. (Def.'s Ex. 4; Barth Dep. 10:21-11:15.) Plaintiff's forearm revealed "evidence of early healing, " and he had resumed most normal activities, except for contact sports. (Def.'s Ex. 4; Barth Dep. 11:5-12:13.) Plaintiff did not return for a subsequent follow-up with Dr. Barth because he was not experiencing any discomfort. ( See Def.'s Ex. 4.)
b. The Automobile Accident
On December 7, 2009, Plaintiff was driving a friend to work and then to an appointment. (Trial Tr. 16:9-:24.) Ms. Tuzon was driving behind him, carrying out government duties, when both cars came to a stop at a traffic light in Crystal City, Virginia. (Trial Tr. 17:3-:7, 181:23-182:12; Joint Pretrial Order, ECF No. 35.) While stopped at the light, the GPS device attached to Ms. Tuzon's windshield detached and fell to the floor on the driver's side of the vehicle. ( See Trial Tr. 182:3-:15.) As she attempted to move the GPS with her foot, Ms. Tuzon accidentally hit the accelerator, and her vehicle collided with the back of Plaintiff's stopped car. (Trial Tr. 182:3-:12.) Plaintiff slammed his right arm on the steering wheel and dashboard when she rearended his car. (Trial Tr. 17:14-:19.)
While the parties dispute the speed at which Ms. Tuzon's vehicle hit Plaintiff's car, ( compare Trial Tr. 17:10-:13, with Trial Tr. 183:5-:9), the force of the collision was sufficient to bend the metal plate in Plaintiff's arm. ( See Def.'s Ex. 4.) The OPM vehicle sustained no damage, and Plaintiff's car suffered limited damage on its rear bumper, which cost $608.94 to repair. (Def.'s Ex. 1; see also Trial Tr. 183:17-:18.)
c. Plaintiff's Post-Accident Medical Care
After the accident, paramedics examined Plaintiff at the scene. ( See Trial Tr. 19:9-:10.) Plaintiff then drove himself to Sidley Memorial Hospital, where he complained of pain in his right wrist, neck, and back. ( See Trial Tr. 19:9-:14; Def.'s Ex. 3.) The emergency room clinicians took X-rays of Plaintiff's neck, back, and forearm and placed a temporary orthopedic splint on his arm. (Def.'s Exs. 3, 4; Pl.'s Ex. 1 at 4.) They treated him for back strain, whiplash, and wrist pain and referred him to Dr. Barth for follow-up. (Def.'s Exs. 3, 4.)
Plaintiff saw Dr. Barth on December 9, 2009, still complaining of neck and wrist pain. (Def.'s Ex. 4.) Dr. Barth examined Plaintiff and reviewed his X-rays from the day of the accident. (Def.'s Ex. 4.) While the X-rays of Plaintiff's back and neck were normal,  the X-ray of Plaintiff's forearm revealed that the plate had bent. ( See Def.'s Ex. 4.) Dr. Barth noted that Plaintiff's re-injury presented "a very difficult problem." (Def.'s Ex. 4.) Dr. Barth reviewed with Plaintiff the potential benefits and risks of leaving the forearm as it was versus having further surgery. (Def.'s Exs. 4, 5.) In particular, Dr. Barth testified that he would have warned a patient that occasionally a plate needs to be taken out and that it can bend and break, requiring further surgery. (Barth Dep. 20:2-:11.) Plaintiff opted to have corrective surgery because he wanted to play football and did not believe that he could with his arm as it was. ( See Def.'s Exs. 4, 5.) Plaintiff underwent surgery at Sidley Memorial Hospital on December 22, 2009. (Def.'s Ex. 6.) He wore a long-arm cast on his forearm for approximately two months following the surgery. ( See Pl.'s Ex. 2 at 3-5.)
Initially, Plaintiff recovered well from this surgery. At a March 2010 appointment, Dr. Barth released him to full activities, with the exception of contact sports. (Barth Dep. 25:4-:11; Def.'s Ex. 8.) Plaintiff told Dr. Barth that he would like to resume playing football over the summer, and Dr. Barth indicated that Plaintiff could do so if he wished, but that there was the possibility of re-fracturing the arm around the plate. (Barth Dep. 25:4-:11; Def.'s Ex. 8.)
Plaintiff did not return to Dr. Barth again until October 2013. At that time, Plaintiff complained of soreness in his forearm and asked to have the plate removed. (Def.'s Ex. 10.) Dr. Barth examined Plaintiff's forearm and found a "very thickened scar" over the wrist. (Def.'s Ex. 10.) X-rays revealed no abnormalities except some bony overgrowth, which Dr. Barth testified was not indicative of a problem. (Barth Dep. 33:4-:16; Def.'s Ex. 10.) Dr. Barth recommended against removing the plate as long as Plaintiff planned to play football, and Dr. Barth believed that Plaintiff was "comfortable with this approach." (Def.'s Ex. 10.)
Plaintiff returned to see Dr. Barth in January 2014, adamant that he wanted the plate removed because of ongoing discomfort. (Def.'s Ex. 11.) Dr. Barth testified that some patients do not tolerate plates well and that he would remove plates for those who complain of discomfort if that person wishes to have the plate removed and does not plan to engage in contact sports. ( See Barth Dep. 37:6-38:24.) In such cases, he will educate the patient about the risks of removing the plate and leave the decision to the patient. (Barth Dep. 37:6-38:24.) With Plaintiff, Dr. Barth followed this course. (Def.'s Ex. 11.) He reviewed with Plaintiff the benefits and risks of removing the plate and left the decision "completely up to him." (Barth Dep. 44:21-47:20; Def.'s Ex. 11.) Plaintiff indicated that he would like to have surgery in June 2014, after he finishes his graduate program examinations. (Def.'s Ex. 11; see also Trial ...