The opinion
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
Present: The Honorable Philip S. Gutierrez, United States District Judge
Wendy Hernandez Not Reported
Deputy Clerk Court Reporter
Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s):
Not Present Not Present
Proceedings (In Chambers): Findings of Fact and Conclusions of Law Following Bench Trial
The Court held a bench trial in this matter on February 4, 5, and 13, 2020. After
considering the evidence offered at trial and the arguments of the parties, the Court issues the
following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure
52(a).
I. Factual Findings
Plaintiffs Romulo Ray Rufo and Trina Rufo (“Plaintiffs”) brought this action against the
United States (“the Government”) for injuries stemming from a car accident that Mr. Rufo had
with a Government vehicle.
At the time of the accident, Mr. Rufo was a 51-year old man living in Long Beach,
California with his wife, Mrs. Rufo. See Trial Transcript Day 1, Dkt. # 64 (“Trial Tr. I”)
215:12–13. Mr. Rufo worked at Southern California Edison in their Rosemead office. See id.
215:16–17. Prior to the accident, Mr. Rufo had a medical history that included obesity, type II
diabetes, sleep apnea, and hypertension. See id. 89–90.
On Wednesday, March 16, 2016 Mr. Rufo was driving to work along the I-710 freeway.
See Trial Transcript Day 2, (“Trial Tr. II”) 11. Mr. Rufo was hit from behind by Special Agent
Albert Smith of the Drug Enforcement Agency. Trial Tr. I 222–24. SA Smith was on-duty at
the time of the accident. See id. 14:21. Mr. Rufo testified that he stopped his vehicle, looked in
his rear-view mirror, and saw SA Smith driving toward him while looking distracted by
something in his center console. See id. 223:19–24.
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
When SA Smith hit Mr. Rufo, Mr. Rufo’s head and neck were propelled up and back,
such that he was looking at the ceiling. See Trial Transcript Day 3, (“Trial Tr. III”), 41:11–13.
Mr. Rufo was dazed, and only responded when SA Smith knocked on his window to ask if he
was ok. See Trial Tr. I 224:10–15. Mr. Rufo also dry heaved. See id. 225:10–12. Mr. Rufo
eventually emerged from his vehicle to take pictures and a video of the scene. See id. 224:6–8.
He was then transported to the hospital via ambulance, where imaging of his brain did not reveal
any abnormalities. See id. 85:23–86:1; 225:18–20. In the week after the collision, Mr. Rufo
began to experience dizziness, visual problems, cognitive deficits, and balance issues. See id.
225–27.
On April 21, 2016, Mr. Rufo was terminated from his job at Southern California Edison
as part of a downsizing. See Trial Tr. II 20:17–20. He has not worked since. See id. 21:22–24.
Mr. Rufo’s mother also passed away in August 2016. See id. 23:1–5.
In the months following the accident, Mr. Rufo’s symptoms worsened. See id. 6–8. In
September 2016, he saw Dr. Diemha Hoang, a board-certified brain injury specialist. See Trial
Tr. I 78:2–4. Dr. Hoang diagnosed Mr. Rufo with post-concussion syndrome, also known as a
mild traumatic brain injury, as a result of the car accident. See id. 79:19–80:2. Mr. Rufo’s
symptoms now include headaches, neck pain, dizziness, nausea, vertigo, vision problems,
memory defects, depression, and balance issues. See id. 173:23–174:2; Trial Tr. II 6–8. His
injury has rendered him permanently disabled and unable to drive. See Trial Tr. I 97:23–98:2,
201:24–202:1.
The Rufos filed this lawsuit on March 14, 2018. See generally Complaint, Dkt. # 1
(“Compl.”). They assert a single cause of action for negligence and seek damages for medical
expenses, loss of income, pain and suffering, and loss of consortium. See generally id.
II. Legal Standard
The Federal Tort Claims Act (“FTCA”) preconditions liability and jurisdiction upon proof
of an actionable duty, causation, and recoverable damages under the law of the state wherein the
conduct complained of occurred. See 28 U.S.C. §§ 1346(b)(1), 2674 et seq. To be cognizable
under the FTCA, the claim must arise from the negligent or wrongful act of a government
employee acting within the scope of his or her employment “under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1); Dalehite v. United
States, 346 U.S. 15 (1953).
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
Here, the accident occurred in California, and thus California law applies. In order to
prove that a defendant was negligent under California law, a plaintiff must establish four
required elements: (1) duty; (2) breach; (3) causation; and (4) damages. Ileto v. Glock Inc., 349
F.3d 1191, 1203 (9th Cir. 2003).
III. Legal Conclusions
A. Liability for Negligence and Loss of Consortium
The Government neither contested duty nor that SA Smith was working within the course
and scope of his employment with the DEA. The Court takes the questions of breach and
causation in turn.
i. Breach
In California, the duty of care is that of the “ordinary prudent or reasonable person” under
all the circumstances. Tucker v. Lombardo, 47 Cal. 2d 457, 464 (1956). Here, SA Smith
initially had enough time to stop his vehicle and avoid Mr. Rufo. See Trial Tr. I 223:12–25.
However, at the time of the accident, he was looking at something in the middle of his console
area rather than keeping his eyes on the road. Id. Therefore, because he was distracted
immediately before the collision, SA Smith breached his duty of care.
ii. Causation
“In California, the causation element of negligence is satisfied when the plaintiff
establishes (1) that the defendant’s breach of duty (his negligent act or omission) was a
substantial factor in bringing about the plaintiff’s harm and (2) that there is no rule of law
relieving the defendant of liability.” Leslie G. v. Perry & Assocs., 43 Cal. App. 4th 472, 481
(1996).
Here, the Government did not contest that there was a rule of law relieving it of liability.
As such, the Court only analyzes whether Agent Smith’s breach was a substantial factor in Mr.
Rufo’s harm, and finds that it was. After the accident, Mr. Rufo had many debilitating
symptoms that he had never before experienced. See Trial Tr. II 6–8. These symptoms included
headaches, neck pain, dizziness, nausea, vertigo, vision problems, cognitive defects, depression,
and balance issues. See Trial Tr. I 173:23–174:2; Trial Tr. II 6–8. Taking these symptoms
together, Mr. Rufo’s treating physician, Dr. Hoang, diagnosed him with a mild traumatic brain
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
injury. See Trial Tr. I 79:19–80:2. The Court finds that the accident, and the mild traumatic
brain injury resulting therefrom, was a substantial factor in the damages that Mr. Rufo has
sustained since.
The Government’s arguments to the contrary are unavailing. Its designated experts could
not definitively rule out that Mr. Rufo sustained a concussion based on the evidence before the
Court. Dr. Barry Ludwig testified that in order to have a concussion, one must be “dazed” after
the accident. See Trial Tr. II 41:11–13. However, Dr. Ludwig discounted Mr. Rufo’s testimony
that he was dazed and dry heaved in the accident’s immediate aftermath, and that he did not
know how long he sat in his car for before Special Agent Smith knocked on his window and
asked him if he was okay. See Trial Tr. I 224:10–15, 225:10–12. Further, Dr. Isaac Yang stated
that he could neither rule in, nor rule out, a concussion based on his review of Mr. Rufo’s
medical records. See Trial Tr. II 76:22–23.
The Court also rejects the argument that Mr. Rufo’s preexisting medical conditions or
depression stemming from the loss of his job or his mother’s death caused his symptoms. Mr.
Rufo did have a pre-accident history of hypertension, sleep apnea, diabetes, and obesity. See id.
86:9. But even though Mr. Rufo had these conditions before the accident, he never experienced
any of the symptoms that he now reports until soon afterward. See id. 6–8. Moreover, his
treating physicians ruled out these conditions, as well as the loss of his job and his mother, as
causes of his injuries. See Trial Tr. I 89:3–90:19.
As such, the Court concludes that the accident caused Mr. Rufo’s concussion and
resulting damages. The Court also concludes that the Government is liable for Mrs. Rufo’s loss
of consortium, which is derivative of Mr. Rufo’s negligence claim. See Martinez v. City of Los
Angeles, 141 F.3d 1371, 1381–82 (9th Cir. 1998).
B. Damages
Next, the Court assesses the following categories of damages: future medical expenses,
lost earnings (past and future), non-economic damages (past and future), and Mrs. Rufo’s loss of
consortium.1
1 The Court notes that Mr. Rufo did not present evidence about his past medical expenses, and
his attorney did not mention past medical expenses in his argument. Trial Tr. I 22:12–16 (“So
the Court, at the end of this case, Your Honor, will be making a determination . . . as to liability,
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
i. Future Medical Expenses
A party may recover future expenses that are reasonably certain to result from an injury or
disability. See Garcia v. Duro Dyne Corp., 156 Cal. App. 4th 92, 97–98 (2007). “The fact that
the amount of future damages may be difficult to measure or subject to various possible
contingencies does not bar recovery.” Id. An award of future damages must be discounted to its
net present value. See United States v. English, 521 F.2d 63, 71–72 (9th Cir. 1975).
In support of his future medical expenses, Mr. Rufo put forth the testimony and
accompanying report of Barbara Greenfield of BG Nurse Consultants, who developed a “life-
care plan” for him. See Ex. 42. Timothy Lanning, Plaintiff’s forensic economist, testified that
the total net present value of the life care plan amounted to $1,350,700. See Ex. 45. The
Government objected to several items in the plan, including the pre-treatment EEG, the
transcranial magnetic stimulation procedure, the appointments with a neuropsychiatrist,
orthopedic spine evaluations, the driving evaluations, massage therapy, acupuncture, the
BrainHQ working memory training, and the use of Excedrin, among others. See Trial Tr. III
19–31. It also objected to the use of a life coach, case manager, and a medical management
nurse. See id.
The Court generally adopts the life care plan as the measure of Mr. Rufo’s future medical
expenses, but deducts certain items that it deems unnecessary. Specifically, the Court deducts
the cost of the pre-treatment EEG, the transcranial magnetic stimulation procedure, massage
therapy, acupuncture, the BrainHQ working memory training, or Excedrin, which Dr. Ludwig
testified had been taken off the market, in the award. See Trial T. II 47:13–16. The Court will
also deduct the cost of rideshare services because the life care plan indicates that Mr. Rufo will
eventually drive again. See Ex 42-16. Finally, the Court deducts the cost of hiring a life coach
and a medication management nurse.
According to the Lanning report, the present value of these services is $757,180. See Ex.
45-9–45-11. Taking the difference between the original calculation in the life care plan of
$1,350,700 and these deductions, the Court awards Mr. Rufo $593,520 in future medical
expenses.
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
ii. Lost Earnings
a. Past Losses
To recover past lost earnings, Mr. Rufo must prove the amount of income that he has lost
to date. See California Civil Jury Instruction No. 3903C. Plaintiff presented testimony from Dr.
Edelman, who examined Plaintiff in May 2018 and found that he was permanently disabled. See
Trial Tr. I 201:24–202:1. The Court found this testimony credible. It similarly found the
Lanning report on loss of past wages and employer contributions to health insurance credible,
although it declines to award damages for lost 401K and pension benefits because it is uncertain
if the employment he would have found after he was laid off from Southern California Edison
would have offered those benefits. See Ex. 45-1.
As such, the Court awards Mr. Rufo $288,248 in past lost earnings.
b. Future Losses
California courts awarding lost future earnings “have held such damages are recoverable
where the evidence makes reasonably certain their occurrence and extent.” Atkins v. City of Los
Angeles, 8 Cal. App. 5th 696, 738 (2017) (internal quotation marks omitted). The Court again
finds Dr. Edelman’s testimony about Mr. Rufo’s total disability and the Lanning report credible
in assessing Mr. Rufo’s future earnings. See Trial Tr. I 201:24–202:1; Ex. 45-1. However, the
Court adds two caveats. First, it again deducts the 401K and pension benefit calculations in the
report because the benefits from any replacement employment for Mr. Rufo are uncertain.
Second, the Court calculates the future earnings through age 65, rather than through age 66.2 as
the Lanning report does.
Therefore, taking the Lanning report’s forecasted after-tax future earnings and health
benefits of Mr. Rufo at $814,483 for 118 months, the Court prorates that amount over 104
months (through Mr. Rufo’s 65th birthday) and awards him $717,813.20 in future lost earnings.
iii. Non-Economic Damages: Pain and Suffering, Emotional Distress, and Loss
of Enjoyment of Life
“For harm to body, feelings or reputation, compensatory damages reasonably
proportioned to the intensity and duration of the harm can be awarded without proof of amount
other than evidence of the nature of the harm. . . . The discretion of the judge or jury determines
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
the amount of recovery, the only standard being such an amount as a reasonable person would
estimate as fair compensation.” See Duarte v. Zachariah, 22 Cal. App. 4th 1652, 1664–65
(1994).
At closing argument, Plaintiff’s counsel asked for $1,267,176 in past non-economic
damages, and $4,818,000 in future non-economic damages. See Trial Tr. III 196:24–197:10.
Based on the evidence presented at trial, the Court finds that $500,000 in past non-economic
damages and $1,500,000 in future non-economic damages is appropriate. Thus, the Court
awards a total of $2,000,000 in non-economic damages to Mr. Rufo.
iv. Loss of Consortium
Damages for loss of consortium must be reasonable, as well as based on the evidence and
the factfinder’s common sense. See California Civil Jury Instruction No. 3920. At closing
argument, Plaintiff’s counsel asked for “a multiple six figure number at a minimum” for Mrs.
Rufo’s loss of consortium damages. See Trial Tr. III 198:21–24. Based on the evidence
presented at trial, the Court finds an award of $500,000 appropriate.
v. Summary
In sum, the Court finds the following damages reasonable and supported by the evidence:
• Future Medical Expenses: $593,520
• Past Lost Earnings: $288,248
• Future Lost Earnings: $717,813.80
• Past and Future Non-Economic Damages: $2,000,000
• Loss of Consortium: $500,000
• Total Damages: $4,099,581.80
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No. CV 18-2138 PSG (ASx) Date February 28, 2020
Title Romulo Ray Rufo et al v. United States of America, et al
IV. Conclusion
For the foregoing reasons, the Court finds that the Government is liable for Mr. and Mrs.
Rufo’s injuries, and that the March 16, 2016 accident caused those injuries. The Court awards
Plaintiffs $4,099,581.80 in damages.
Plaintiffs are ordered to prepare a judgment consistent with this Order to be filed with the
Court no later than March 13, 2020.
IT IS SO ORDERED.