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Acosta v. United States

United States District Court, D. New Mexico

June 19, 2017

JOSE ACOSTA, Jr., Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          STEPHAN M. VIDMAR United States Magistrate Judge

         This lawsuit arose out of a collision between a Union Pacific train and a United States Army convoy truck. Plaintiff was the engineer on the train. There is little dispute over how the accident occurred or that Plaintiff was injured in the accident. The real dispute is over the nature, extent, and duration of his injuries. Plaintiff claims to have suffered significant injuries in the accident, including multiple herniated discs in his neck and back; impingement syndrome in both shoulders; meniscal tears in both knees; anxiety and depression; and chronic pain. He has undergone conservative treatment (e.g., chiropractic, physical therapy, epidural steroid injections) and has had surgeries to his lower back, shoulders, and knees. He has not worked since the accident. He claims $354, 998.76 in past medical expenses; $925, 333 in future medical expenses; past wage loss of $186, 424; $1, 832, 519 in lost future earning capacity; and pain and suffering.

         The case came to trial on April 18-20, 2017. Fourteen witnesses testified. The parties submitted more than 1, 500 pages of exhibits. After listening to the testimony of the witnesses and reviewing the exhibits, I find that the accident was caused solely by Defendant's negligence. I further find that some, but not all, of Plaintiff's injuries were caused by the accident. I believe the accident aggravated a pre-existing condition in Plaintiff's lower back. I find that all of Plaintiff's past medical care for the injury to his lower back is related to the accident. I will award damages for future medical care for the lower back injury, excluding the claimed need for a two-level discectomy and fusion. I believe Plaintiff suffered a temporary cervical strain in the accident, and I will award a portion his past medical expenses for that injury. I will also award damages for past and future psychological counseling.

         I find that Plaintiff has not met his burden of proof with respect to the other claimed injuries. I will not award any future medical expenses for the cervical injury, nor will I award damages (past or future) for the injuries to Plaintiff's shoulders and knees. I find that Plaintiff has been disabled since the accident as a result of his lower back injury. I also find that the lower back injury, and the medications he takes for it, preclude him from returning to his prior occupation. I will award damages for lost wages and loss of future earning capacity, offset by the amount he could earn at a light duty job beginning July 1, 2017. I will also award damages for pain and suffering.

         The Testimony on Liability

         On June 25, 2014, an Army truck convoy was passing through Alamogordo, New Mexico. Sgt. Jamie Klinger was driving one of the trucks. She entered a railroad crossing. The vehicles in front of her stopped for a traffic light, causing her to stop on the track. She heard the horn from an oncoming train. She pulled forward to clear the track. She and her passenger, Staff Sergeant Robinson, looked in their rearview mirrors to see whether the rear of the truck had cleared the track. They thought it had, but Sgt. Klinger wasn't sure. She felt she was as close to the vehicle in front of her as she could get, although she conceded it was hard to tell from inside the cab of the truck. She felt she was too close to the truck in front of her to pull around it. In order to do that she would have had to back up onto the track, which she could not do without a ground guide. Neither she nor Ssgt. Robinson got out of the truck to see if it had completely cleared the track.

         Amanda and Douglas Snapp were in an automobile just behind Sgt. Klinger's truck. Ms. Snapp was driving. When the truck stopped on the track, Ms. Snapp moved into the right lane and pulled forward, leaving at least a couple of car lengths for Sgt. Klinger to pull up behind her. She waved to Sgt. Klinger, trying to let her know that there was room to pull forward. Sgt. Klinger testified that she never saw Ms. Snapp waving to her.

         The right front corner of the lead locomotive[1] caught the right rear corner of the truck, throwing the truck into the air. Mr. and Ms. Snapp both described the collision as “loud” and “definitely hard.” Both saw the rear of the truck lifted off the ground by the collision. However, the damage to both vehicles was relatively minor.[2]

         Plaintiff was the engineer operating the train. He saw the convoy crossing the tracks when the train was still a quarter of a mile away. The train was traveling at 20-30 miles per hour. Plaintiff pulled back on the throttle. When he saw Sgt. Klinger's truck stopped on the track he started blowing the train's horn “excessively.” He could see the truck pulling forward, but at some point he realized it wasn't going to clear the track completely. He applied the emergency brake, but the train was not able to stop in time. Plaintiff was sitting in the engineer's seat on the right side of the lead locomotive, next to a window. Believing the collision might shatter the window, he stood up and braced himself against the throttle console. He recalled that the force of the collision threw him forward, causing him to strike his left thigh on the console. He then bounced back, striking his back against the wall.

         Fermin Acosta (no relation to Plaintiff) was the conductor on the train. He was sitting in a seat just a few feet away from Plaintiff. He testified that he saw Plaintiff move away from the window just before the collision. However, he did not see Plaintiff's body strike anything in the cab. He testified that he (Fermin) had lowered his head behind a console just as the accident occurred. Fermin Acosta was not injured in the accident. He felt no sudden deceleration when the train hit the truck. In fact, he did not remember any forces acting on his body whatsoever as a result of the collision. He merely remembered hearing a very loud bang, like an improvised explosive device going off.

         The Testimony on Causation

         Plaintiff claims to have suffered multiple, significant injuries as a result of the collision. MRIs taken shortly after the accident revealed herniated discs in his neck and lower back, impingement syndrome in his shoulders, and meniscal tears in his knees. He has undergone multiple surgeries to his lower back, shoulders, and knees. He has not worked since the accident and claims to have significant physical limitations because of his injuries. Those limitations preclude him from returning to his job as an engineer.

         Although Defendant originally seemed to be claiming that Plaintiff suffered no injuries from the collision, [3] Defendant's medical expert, Dr. Wellborn, conceded at trial that the collision probably caused Plaintiff to suffer cervical and lumbar strains. Thus, the issue is not whether Plaintiff was injured in the accident, but how badly. Much of the testimony at trial focused on this issue: Was the collision severe enough to cause the injuries Plaintiff claims?

         Plaintiff's Experts on Causation

         Dr. Freeman

         Dr. Michael D. Freeman is an accident reconstructionist with ACTAR[4] certification. He has participated in the reconstruction of more than 3, 000 crashes. He has studied injury biomechanics since the 1990s and has served as a consultant on injury biomechanics to NASA and the United States Congress. He is also a medical doctor. He holds a doctor of medicine degree[5] from Umea University in Sweden, a doctor of chiropractic degree from the University of Western States, and a master of public health degree from Oregon State University. He is an Affiliate Professor of Epidemiology and Psychiatry at Oregon Health and Science University and School of Medicine. He has authored 200 scholarly publications, including 60 in the field of injury biomechanics. He teaches forensic epidemiology to graduate medical students and Ph.D. candidates. He has testified as an expert in court approximately 350 times. He testified, without objection, on both general and specific causation.[6] He testified that the collision most likely caused all of Plaintiff's injuries.

         Dr. Freeman based his opinions on a review of the accident reports; photographs of the accident vehicles; Plaintiff's medical records; and depositions/statements of Plaintiff and the other eyewitnesses to the accident. He also relied on epidemiologic literature which establishes that there is no “threshold” force necessary to cause injury to an individual. That is, even the routine activities of daily living can cause significant injuries similar to those suffered by Plaintiff. Dr. Freeman employed the three-step “differential diagnosis”[7] methodology cited with approval in Etherton v. Owners Ins. Co., 829 F.3d 1209, 1219-1222 (10th Cir. 2016):

1. Could the event plausibly cause the injury?
2. Is there a temporal relation between the event and the injury?
3. Are there other explanations for the injury that are more probable at the same point in time?

         Dr. Freeman testified that the collision was a plausible cause of Plaintiff's injuries. He did not think it was possible to reconstruct this accident using standard reconstruction methods. One of the goals of accident reconstruction and biomechanical engineering is to determine the forces applied to an occupant of a vehicle involved in the crash. To calculate those forces, an accident reconstructionist must determine the change in velocity, or “delta-v, ” of the plaintiff's vehicle. The standard method used to calculate delta-v is based on the law of conservation of momentum. But Dr. Freeman testified that it was not possible to employ that method in this case, given (1) the difference in mass between the two vehicles, and (2) uncertainties about how the train was braking and possible slack between the cars.[8] Dr. Freeman was confronted with the fact that the train's event recorder, which records the distance the train travels in one-second intervals, shows no deceleration at the time of the accident. His response was that it is possible the train decelerated very slightly (perhaps 1-2 miles per hour) for a very short period of time (e.g., one-third to one-fifth of a second), which would not have been caught by the event recorder.

         Ultimately, however, whether the collision caused the train to decelerate was not significant to his testimony because it is undisputed that Plaintiff's body was moving just prior to the collision. In Dr. Freeman's opinion, that movement-whether caused by a sudden deceleration of the train or Plaintiff's reaction to the collision-could have caused his body to strike the interior of the cab with sufficient force to cause all of his injuries.

         Turning to the second question, Dr. Freeman testified that there was a temporal relationship between the collision and Plaintiff's injuries. He noted that, except for a prior injury to his right knee, Plaintiff had no pain or physical limitations prior to the accident. Plaintiff complained of thigh and low back pain immediately after the accident and began to experience pain in his neck, shoulders and knees within a few days.

         Finally, Dr. Freeman testified that the collision was “by far . . . the most probable cause of [the] injuries.” He testified that there was no “even remotely likely explanation that accounts for his injuries, other than some impact inside the train.” In his opinion, the suggestion that Plaintiff's injuries all cropped up spontaneously, or that they occurred because of a degenerative process that coincidentally became symptomatic right after the collision, was so unlikely as to not be worth consideration.

         Dr. Romagosa

         Dr. Angelo Romagosa is a board-certified physiatrist. He has extensive experience in preparing life care plans for individuals. He reviewed all of Plaintiff's medical records and bills. He reviewed the expert reports. He also examined Plaintiff and took a detailed medical history from him. Dr. Romagosa testified, to a reasonable degree of medical probability, that Plaintiff suffered the following injuries as a result of the collision:

1. Headaches;
2. Contusion to cervical spine;
3. Contusion to lumbar spine;
4. Contusion to bilateral shoulders;
5. Contusion to bilateral knees;
6. Herniated disc at ¶ 3-C4 with radicular symptoms;
7. Herniated disc at ¶ 5-S1 with radicular symptoms;
8. Internal derangement syndrome of bilateral shoulders;
9. Internal derangement syndrome with meniscal tears of bilateral knees;
10. Related anxiety disorder/depression; and
11. Related erectile dysfunction.

         Dr. Romagosa based his causation opinion on a number of factors, including: his examination of Plaintiff; his review of Plaintiff's medical records, including the MRIs; the absence of any prior medical history or history of physical complaints (except for the right knee); the temporal relationship between the collision and the beginning of Plaintiff's symptomatology; the “consensus of opinion of the treating physicians and specialists” as reflected in the medical records; Plaintiff's reported ability to perform all the duties of his job before the collision; and his inability to work afterwards. After considering other plausible causes for the injuries (e.g., the natural aging process), Dr. Romagosa concluded that the collision was the most probable cause of Plaintiff's injuries, excluding the injury to the right knee.

         Defendant's Experts on Causation

         Dr. Wiechel

         Dr. John Wiechel has a bachelor's degree in mechanical engineering from Purdue, a master's degree in in mechanical engineering from Purdue, and a Ph.D. in mechanical engineering from the Ohio State University. While he does not appear to have any certifications in accident reconstruction or biomechanics, he has published a number of papers in both areas. He has been qualified as “an expert” in 300 to 400 cases.[9] Plaintiff did not object to his qualifications as an expert in the areas of accident reconstruction and biomechanical engineering.

         Contrary to Dr. Freeman, Dr. Wiechel testified that it is possible to reconstruct the accident using the law of conservation of momentum. Using that methodology, he calculated the delta-v of the lead locomotive and determined that the collision caused no measurable deceleration of the train. Dr. Wiechel directly refuted Dr. Freeman's testimony that the collision might have caused the train to decelerate a couple of miles per hour for a very short period of time. Making all assumptions in Plaintiff's favor (e.g., calculating the train's delta-v using only the mass of the lead locomotive rather than the mass of the entire train), Dr. Wiechel calculated that the forces acting on Plaintiff's body in the cab (beyond those caused by the braking of the train) would have been no more than .02g-.025g. He explained that this amount of deceleration is one third to one fourth of what a driver would experience if he were driving down the road at 30 miles per hour and took his foot off the accelerator. Dr. Wiechel concluded that “there is no physical explanation for this impact causing the motions that [Plaintiff] describes. Any kind of motion that he would have in the range of what he's describing has to come from something other than the impact . . . of the train into the truck.”

         He was asked on cross-examination about other plausible explanations for Plaintiff's movement within the cab. He felt there was no other plausible explanation. He testified that there were only two possible explanations for Plaintiff's movement inside the cabin: Either Plaintiff intentionally threw his body against the interior of the cabin, or someone else grabbed him and threw him. Dr. Wiechel did not examine these possibilities because he considered them to be implausible.

         Dr. Wellborn

         Dr. William Wellborn is a physician. He is board-certified in physical medicine and rehabilitation. He has extensive experience evaluating patients who have been involved in work-related accidents. He is a Clinical Assistant Professor at the University of Texas Health Science Center in San Antonio, Texas. Although I believe he was called primarily as an expert witness on damages, I will briefly address his testimony here because it did touch on causation.

         Dr. Wellborn conceded that Plaintiff was, in fact, injured in the accident. He believes Plaintiff suffered neck and lower back strains-and nothing more-as a result of the collision. He expressly agreed that the emergency room (“ER”) visit at Gerald Champion Memorial Hospital and six subsequent chiropractic visits were necessary and reasonable treatment for the injuries Plaintiff incurred in the accident.

         Dr. Wellborn conceded that the radiologic studies showed injuries to Plaintiff's neck, lower back, shoulders, and knees. But he disputed that those findings were caused by the collision. He suggested that virtually all of the medical treatment was the result of overtreatment on the part of Plaintiff's doctors. He believes that Plaintiff could have (and should have) returned to work without restrictions after a few chiropractic visits. He based this opinion on his own experience treating patients with back pain, as well as conversations he's had with chiropractors.

         The Testimony on Damages

         Plaintiff's Medical Records

         There is no dispute that Plaintiff has undergone extensive medical treatment since the accident. I will summarize the course of his treatment here.

         Plaintiff was transported by ambulance to the emergency room of Gerald Champion Medical Center in Alamogordo shortly after the accident. His main complaints were left thigh pain and bilateral lumbar pain. He described moderate, stabbing pain radiating down into his legs.[10] X-rays revealed no fracture or other bony abnormality.[11] The ER physician's diagnoses were lumbar strain, left thigh contusion, and contusion of the back. He prescribed pain relievers (Children's Tylenol, Motrin, and Tylenol #3) and discharged Plaintiff to home.

         Plaintiff's symptoms did not abate. He saw Dr. Stephen Untersee, a chiropractor, on June 27, 2014, complaining of pain in his left leg, right knee, shoulders, back, and neck. He described the pain as burning, aching, and radiating.[12] He rated the severity of the pain as eight out of ten. He reported no prior history of any problems with his neck or back.[13]

         Dr. Untersee ordered cervical and lumbar MRIs. The MRIs were taken on July 1, 2014. The cervical spine MRI[14] revealed that vertebral body height and alignment of C1 through C7 were maintained, and the paravertebral soft tissues were unremarkable. Small disc herniations at ¶ 2-C3 and C3-C4 were noted, with no significant neural foraminal narrowing.[15] The lumbar MRI[16] revealed normal vertebral body height and alignment of L1 through L5, and unremarkable paravertebral soft tissues. While there was no significant spinal canal stenosis[17] or neural foraminal narrowing at ¶ 1 through L5, the report noted a small disc herniation at ¶ 5-S1 which “flattened the right thecal margin and contributed to moderate right and mild left neural foraminal narrowing.”[18]

         On July 7, 2014, Dr. Untersee issued a progress report to Union Pacific. He expected to release Plaintiff to full duty by July 28, 2014. In the meantime, he placed a number of restrictions on him, including only occasional lifting and carrying up to five pounds; no overhead lifting or climbing; and limited bending/twisting, kneeling/squatting, walking/standing, and sitting. Plaintiff continued to attend chiropractic therapy treatments with Dr. Untersee from June 27, 2014 through February 9, 2015.

         On July 9, 2014, Plaintiff saw Dr. Dean Smith, an orthopedic surgeon, complaining of acute and chronic neck and back pain.[19] Dr. Smith reviewed the MRIs and examined Plaintiff. He did not feel he was a surgical candidate at that time. He prescribed Medrol (a steroid used to treat inflammation), Neurontin (an anti-epileptic medication that is used to treat nerve pain), and continued chiropractic therapy with Dr. Untersee. He also suggested a trial epidural injection if the symptoms did not improve with conservative treatment. He ordered Plaintiff to remain off work through September 1, 2014.

         On July 15, 2014, Plaintiff saw a counselor, Grecia Garcia, M.A., L.P.C., for anxiety, sense of numbing, detachment, recurrent images of the accident, flashbacks, poor concentration, hypervigilance, restlessness, and difficulty sleeping.[20] She performed a psychological evaluation and diagnosed acute stress disorder. Ms. Garcia recommended further counseling in individual psychotherapy sessions, which Plaintiff attended every 45 days.

         Plaintiff complained of bilateral knee pain to Dr. Untersee. Dr. Untersee ordered MRIs of both knees. They were taken on July 18, 2014.[21] Those MRIs showed tears of the medial meniscus in both knees. Plaintiff had experienced problems with his right knee prior to the accident. He had consulted Dr. Thomas Alost, an orthopedic surgeon, in July of 2013 for complaints of pain and instability in the knee. Dr. Alost ordered an MRI, which revealed a tear in the posterior horn of the medial meniscus. Dr. Alost recommended arthroscopic surgery to repair the tear. However, Plaintiff chose instead to manage the injury conservatively. Plaintiff testified that he had no problem with his left knee before the accident.

         Plaintiff returned to Dr. Alost on July 29, 2014. He examined both knees and reviewed the recent MRIs ordered by Dr. Untersee. After conservative treatment was unsuccessful, he performed arthroscopic surgery on both knees: the right knee on September 5, 2014, and the left knee on December 4, 2014.

         On August 4, 2014, Plaintiff saw Dr. Jose Luis Villareal, a pain specialist, for ongoing complaints of shoulder, neck, arm, and leg pain.[22] He reported burning, stabbing pain in his neck which radiated into both arms. The pain in the lower back radiated down both legs. Plaintiff rated his pain as 10/10 at worst; 3/10 at best; and 6/10 on average, despite the fact that he was already taking Tramadol (an opioid pain medication), Celebrex (an NSAID), and Tizanidine (a muscle relaxant). Dr. Villareal performed a thorough physical examination and reviewed the cervical and lumbar MRIs taken on July 1, 2014. He noted the multiple disc herniations and the “foraminal stenosis”[23] at ¶ 5-S1. His diagnoses included myalgia, lumbosacral neuritis, displacement of lumbar disc with myelopathy, [24] neck disorders, and cervical disc displacement without myelopathy. Dr. Villareal continued Plaintiff on the medications and encouraged him to lose weight and exercise. He scheduled a follow-up visit in one month, at which time he would consider epidural steroid injections if Plaintiff's symptoms did not improve.

         On August 11, 2014, Plaintiff saw Dr. Stephen Esses, an orthopedic surgeon.[25] He complained of neck and back pain with radiation, numbness, and tingling in all extremities. Dr. Esses examined Plaintiff[26] and reviewed the July 12, 2014 MRIs. He recommended proceeding with the cervical epidural steroid injection. Dr. Villareal administered the cervical injection on September 3, 2014, but Plaintiff only experienced transient relief from the treatment. In a follow-up visit with Dr. Esses on September 18, 2014, Dr. Esses ordered cervical EMG studies. The EMGs “showed no evidence of a cervical radiculopathy on either side.”[27] In other words, there was nothing in the EMGs to explain Plaintiff's cervical pain or the numbness and tingling in his arms. In view of the EMGs, Dr. Esses recommended against surgery to Plaintiff's neck.

         On October 27, 2014, Plaintiff saw Dr. Barry Cromer, complaining of pain in his neck, back, and bilateral shoulders. After a physical examination and review of the MRIs, Dr. Cromer diagnosed Plaintiff with disorder of bursa, cervicalgia, cervical sprain, lumbar sprain, lumbago, and pain in joint involving the shoulder region. Dr. Cromer ...


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