The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
STACEY OKEY ET AL CASE NO. 2:20-CV-00119
VERSUS JUDGE JAMES D. CAIN, JR.
UNITED STATES OF AMERICA MAGISTRATE JUDGE KAY
MEMORANDUM RULING
Beginning on February 22, 2022, the court held a three-day bench trial on plaintiffs’
claims of personal injury against the United States of America under the Federal Tort
Claims Act (“FTCA”). Having considered the evidence and applicable law, as well as the
post-trial memoranda submitted by the parties, the court now issues its ruling.
I.
BACKGROUND
This litigation arises from a car accident that occurred on the afternoon of December
15, 2017. The accident was a collision between a postal vehicle driven by United States
Postal Service employee Roy Blanchette and a car driven by plaintiff Stacey O’Key, with
plaintiffs Don Lewis and Lawryn Sweet as passengers. The accident occurred when
Blanchette was parked in his vehicle on the side of the road and then drove forward as
plaintiffs were turning around him to reach O’Key’s driveway.
All three plaintiffs claimed injuries as a result of the accident and filed
administrative claims with the United States Postal Service. See doc. 1, atts. 2, 3, 4. The
agency failed to make a final disposition of the claim within six months and plaintiffs
timely filed suit in this court against the United States under the FTCA, 28 U.S.C. §
2675(a), on January 24, 2020. Doc. 1. The matter proceeded to trial, where the government
did not contest jurisdiction or that Blanchette was acting in the course and scope of his
employment with USPS, but contested both liability and quantum. After considering the
testimony of witnesses and exhibits entered into evidence, as well as the post-trial briefs
filed by both parties, the court now makes its findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52. To the extent that a conclusion of law
constitutes a finding of fact, the Court also adopts it as such.
II.
FINDINGS OF FACT & CONCLUSIONS OF LAW
A. The Accident
1. Evidence adduced at trial
On the day of the accident Roy Blanchette, a mail carrier with the United States
Postal Service, was operating a USPS vehicle while completing his route in a residential
neighborhood. Blanchette had stopped his vehicle on the righthand side of Fontenot Road,
in a residential neighborhood in Lake Charles, Louisiana, with his hazard lights on. Tr.,
Day 1, pp. 31, 51, 125, 203. At that time a vehicle containing plaintiffs—namely, driver
Stacey O’Key and passengers Don Lewis (her significant other) and Lawryn Sweet (her
daughter)—turned onto Fontenot Road, a two-lane street, headed to O’Key’s home. See
doc. 53, att. 2 (accident scene photos). O’Key testified that she had stopped behind
Blanchette and then, upon realizing that he was not driving forward any time soon, passed
to his left and made a right turn in front of him in order to reach her driveway. Tr., Day 1,
p. 28. O’Key testified that she was about halfway around Blanchette, with her front wheels
in her driveway, when Blanchette drove forward and she felt his truck hit her car. Id. at 28.
Both Lewis and O’Key testified that they did not see Blanchette’s truck or realize that it
was about to hit them until it made impact. Id. at 28, 126–27. Meanwhile Sweet, who was
in the back seat, testified that she saw Blanchette begin to drive forward as they passed him
and attempted to warn her mother. Id. at 203. Photographs from the scene show that the
entrance to O’Key’s driveway, which was partially blocked by a pile of debris on the side
closest to Blanchette’s truck, was at least a few meters ahead of the front of Blanchette’s
vehicle at the time it was parked. See doc. 53, att. 2, pp. 4–10. The collision resulted in
damage to O’Key’s front right tire. Id.; Tr., Day 1, pp. 34–5.
Plaintiffs testified that, as they drove around Blanchette, they saw him with his head
down and that he appeared to be sorting through his mail. Tr., Day 1, pp. 28, 141, 203.
Blanchette stated that he customarily stopped his vehicle at a mailbox for delivery and then
sorted the mail for the mailbox ahead, because it would be dangerous to sort the mail while
his vehicle was in motion. Tr., Day 3, pp. 378–80, 386. He could not recall whether he had
checked his mirrors or blind spots before pulling forward on the day of the collision but
asserted that it usually did not be done if he was staying in the same lane and simply moving
forward to another curbside mailbox. Id. at 381, 386–87. The USPS 30(b)(6)
representative, however, agreed that a delivery driver must ensure his path is clear before
driving forward and yield the right of way, checking mirrors and blind spots before merging
back into traffic. Doc. 52, att. 39, pp. 19–20. USPS’s driving manual likewise advises
drivers to signal, check mirrors and blind spots, “[w]ait for passing traffic, and always wait
until the lane is clear” when pulling away from the curb on a delivery route. Doc. 52, att.
38, p. 78. As a result of its investigation, however, USPS determined that Blanchette was
not at fault for the accident and did not require him to undergo any additional training or
disciplinary action. Doc. 52, att. 39, pp. 84–86.
Deputy Brent Smith was the investigating officer for the Calcasieu Parish Sheriff’s
Office. Based on interviews with the parties, he determined that Blanchette was distracted
at the time of the accident and that his careless operation was a contributing cause. Doc.
52, att. 40, pp. 17–18, 67–71. Meanwhile, he ascribed no fault to O’Key. Id. at 67–71. He
testified that she was allowed to drive around Blanchette’s vehicle as there was no marking
on the roadway preventing passing. Id. at 20. He stated, however, that his determination as
to fault was based primarily on his weighing of the parties’ statements and that he
ultimately decided not to issue a citation to Blanchette. Id. at 36–37.
2. Liability
The FTCA, 28 U.S.C. § 2675(a), is a limited waiver of the government’s sovereign
immunity for certain tort claims brought against employees of the United States under the
doctrine of respondeat superior. It provides district courts with jurisdiction over claims
based on the negligent or wrongful acts of government employees “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. § 2675(b). Accordingly, the court
applies the tort law of the state where the alleged injury occurred—in this case, Louisiana—
to determine the government’s liability. Villafranca v. United States, 587 F.3d 257, 260
(5th Cir. 2009).
Louisiana courts determine liability for negligence based on a duty-risk analysis.
Long v. State ex rel. Dept. of Transp. and Dev., 916 So.2d 87, 101 (La. 2005). Through this
test the plaintiff must show all of the following:
(1) the defendant had a duty to conform his conduct to a specific standard
(the duty element); (2) the defendant's conduct failed to conform to the
appropriate standard (the breach element); (3) the defendant's substandard
conduct was a cause in fact of the plaintiff's injuries (the cause-in-fact
element); (4) the defendant's substandard conduct was a legal cause of the
plaintiff's injuries (the scope of liability or scope of protection element); and
(5) the actual damages (the damages element).
Audler v. CBC Innovis, Inc., 519 F.3d 239, 249 (5th Cir. 2008) (citing Lemann v. Essen
Lane Daiquiris, 923 So.2d 627, 633 (La. 2006)). The percentage of fault of all persons
causing or contributing to an injury must be determined by the factfinder. Hankton v. State,
315 So.3d 1278, 1282 (La. 2020). In making this determination courts look to the factors
set forth in Watson v. State Farm Fire & Casualty Insurance Company, 469 So.2d 967 (La.
1985), including:
(1) whether the conduct resulted from inadvertence or involved an awareness
of the danger, (2) how great a risk was created by the conduct, (3) the
significant of what was sought by the conduct, (4) the capacities of the actor,
whether superior or inferior, and (5) any extenuating circumstances which
might require the actor to proceed in haste, without proper thought. And, of
course, as evidenced by concepts such as last clear chance, the relationship
between the fault/negligent conduct and the harm to the plaintiff are
considerations in determining the relative fault of the parties.
Id. at 974.
The government attempts to assign fault to O’Key by reference to two Louisiana
statutes. The first, Louisiana Revised Statute 32:76, provides in relevant part that “[n]o
vehicle shall at any time be driven to the left side of the highway . . . when approaching
within one hundred feet of or traversing any intersection[.]” As plaintiff notes, however,
the definition of “intersection” specifically excludes “[t]he junction of a . . . driveway with
a street or highway” unless the junction is controlled by a traffic signal. La. Rev. Stat. §
32:1(33)(c). Accordingly, it does not apply to O’Key’s approach to her own driveway and
the government fails to show that any intersection qualifying under the statute was within
100 feet of the area where O’Key attempted to pass Blanchette.
The second, Louisiana Revised Statute 32:73, is titled “Passing a vehicle on the left”
and provides:
The following rules shall govern the overtaking and passing of vehicles
proceeding in the same direction, subject to those limitations, exceptions, and
special rules hereinafter stated:
(1) Except when overtaking and passing on the right is permitted, the driver
of a vehicle overtaking another vehicle proceeding in the same direction shall
pass to the left thereof at a safe distance, and shall not again drive to the right
side of the roadway until safely clear of the overtaken vehicle.
(2) Except when overtaking and passing on the right is permitted, the driver
of an overtaken vehicle shall give way to the right in favor of the overtaking
vehicle on audible signal, and shall not increase the speed of his vehicle until
completely passed by the overtaking vehicle.
La. Rev. Stat. § 32:73. Louisiana Revised Statute 32:75 further provides:
No vehicle shall be driven to the left side of the center of the highway in
overtaking and passing another vehicle proceeding in the same direction
unless such left side is clearly visible and is free of oncoming traffic for a
sufficient distance ahead to permit such overtaking and passing to be
completely made without interfering with the safe operation of any vehicle
approaching from the opposite direction or any vehicle overtaken. . . .
La. Rev. Stat. § 32:75.
Plaintiffs argue that these statutes are inapplicable because it is undisputed that
Blanchette’s vehicle was parked rather than “proceeding in the same direction” at the time
plaintiffs began to move ahead of it. From the circumstances of this case, however—an
occupied mail truck parked in front of mailboxes with its hazard lights on—plaintiffs
should have assumed that the truck would be proceeding forward at some point in the near
future and treated it with at least some of the caution due to a vehicle proceeding ahead in
the same lane. At the same time, by virtue of his position on the two-lane road, Mr.
Blanchette was not merely parked and proceeding forward but instead merging into traffic
when he put his truck back into drive. Accordingly, the USPS standards described above
were also applicable to his conduct.
Louisiana law is clear that the driver of an overtaking vehicle “must be alert to the
actions of the motorists preceding him on the highway” and that passing drivers have “a
duty to ascertain from all circumstances of traffic, the lay of the land, and conditions of the
highway that passing can be completed with safety.” Gohres v. Dryer, 29 So.3d 640, 645
(La. Ct. App. 1st Cir. 2009) (internal quotations omitted). Because he is engaged in a
dangerous maneuver, the passing motorist must exercise “a high degree of care.”
Thibodeaux v. Ace Am. Ins. Co., 127 So.3d 132, 138 (La. Ct. App. 3d Cir. 2013). However,
courts generally decline to apply a presumption of negligence. E.g., Duncan v. Safeway
Ins. Co. of La., 799 So.2d 1161, 1163 (La. Ct. App. 2d Cir. 2001). Additionally, all drivers
“owe a general duty to observe what should be observed.” Harbin v. Ward, 147 So.3d 213,
217 (La. Ct. App. 1st Cir. 2014) (citing Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987)).
Here there is no evidence that O’Key violated the applicable standard of care. She
stopped behind Blanchette’s vehicle. Upon observing that he was parked there and did not
appear to be preparing to move forward, she passed him on the left and began to turn right
into her own driveway. Contrary to the government’s assertions, photographs from the
accident scene indicate that she turned a safe distance ahead of where Blanchette’s vehicle
was stopped. There was no prohibition against her maneuver and she had no other means
of accessing her driveway other than waiting an indeterminate amount of time for
Blanchette to proceed. Meanwhile, Blanchette testified that he did not realize she was
turning in front him until the impact, indicating that he was not looking forward or
otherwise checking around him for hazards when he put his vehicle into drive.
Accordingly, the court finds that the government, through Blanchette, is 100% at fault for
the accident and all resulting injuries.
B. Stacey O’Key
1. Treatment history
O’Key was thirty-nine years old at the time of the accident and working as a card
dealer at a local casino. Tr., Day 1, pp. 24–25; see, e.g., doc. 52, att. 2, p. 6. She testified
that she noticed neck, back, and shoulder pain immediately after the collision, and that she
had not had any issues with these areas of her body beforehand. Tr., Day 1, p. 35. She
attempted to treat the pain with Tylenol and Advil for a few days before seeking
chiropractic care at Wellness Management Chiropractic and Medical Group on December
21, 2017. Id. At the chiropractor she reported constant neck and upper lumbar pain, rated
at a 9/10, and frequent pain in her right wrist, rated at a 7/10. Doc. 52, att. 2, pp. 4, 7. She
treated at this clinic for one visit, using electric stimulation, hot and cold packs, biofreeze,
and chiropractic manipulation. See doc. 52, att. 2. She reported continuing pain, however,
and sought care at Lake Charles Chiropractic and Functional Medicine beginning on
February 7, 2018. Doc. 52, att. 3. She treated at this clinic, using many of the same
modalities in addition to hydrotherapy, massage, and mechanical traction, several times
through February and March 2018. Id. She also underwent MRIs of her neck and lumbar
spine on February 12, 2018. Id. at 10–13. The report from the lumbar spine indicated no
abnormal findings. Id. at 10. The report from the cervical spine showed “disc bulge and a
left paracentral disc herniation and osteophyte ridge formation, [along with] osteophyte
narrowing of the left foramen” at C3-C4 and “midline and left central disc herniation and
osteophyte ridge formation” at C6-C7. Id. at 12.
O’Key’s symptoms did not resolve during the chiropractic care, and she made an
appointment with orthopedic surgeon Paul Fenn. Doc. 52, att. 4. At her first appointment,
on March 1, 2018, she described constant pain in her neck, radiating into her left shoulder
and arm, and in her right wrist and lower back. Id. at 139, 149–53. She rated her neck pain
as a 9/10 and her lower back pain at 5/10. Id. at 147. Dr. Fenn prescribed diclofenac (an
NSAID), Flexeril (a muscle relaxant), and Medrol (a steroid) for pain control along with
Ultram (a narcotic) for breakthrough pain only. Id. at 152. He also recommended that
O’Key begin physical therapy based on the MRI findings, along with use of a cervical
traction kit and a splint for her wrist. Id. at 153.
O’Key began physical therapy at Southwest Louisiana Sports and Rehabilitation
Center on April 1, 2018. Doc. 52, att. 10, p. 57. She was treated twenty-four times at this
clinic from April through June, with complaints of left upper extremity radiculopathy, pain,
and impaired shoulder range of motion, as well as pain and a popping sensation in her right
wrist that interfered with her work as a card dealer. Id. at 1–12, 57–61, 144.
At her last visit for her neck and back, on June 11, 2018, O’Key showed
improvement from moderate/severe pain and moderate impairment to mild impairment and
pain. Id. at 122–24. However, she still reported that the pain disrupted her sleep one to two
times a night, that she noticed pain ten to twenty-five percent of the time, and that she had
not achieved any progress from her moderate impairment in the following areas: ability to
stand without symptoms, lifting medium weight objects, and walking medium distances.
Id. At her last visit for her wrist, on the same date, O’Key reported that she was still having
issues with pain and range of motion. Id. at 166. The clinic documented that she had not
made a full recovery with her wrist, since the pain would always return, and that her
progress with physical therapy might have reached its peak. Id. at 166–68.
O’Key returned to Dr. Fenn on April 20, 2018, while she was still receiving
physical therapy. Doc. 52, att. 4, p. 127. She reported that her pain was interfering with her
sleep and her work. Id. Dr. Fenn recommended that she continue with the prescribed
medications and traction kit, and referred her to Dr. John Crosby for evaluation for a
cervical epidural steroid injection (“CESI”). Id. at 130. She saw Dr. Fenn again on June
29, 2018, and he administered an injection for her shoulder and referred her to
neurosurgeon Dr. William Brennan for evaluation. Id. at 104. O’Key saw neurosurgeon
Dr. William Brennan for the first time on August 15, 2018. Doc. 52, att. 5. At this visit he
diagnosed her with left C6-C7 disk herniation and resultant C7 radiculopathy induced by a
motor vehicle accident. Id. at 11–12. He also summarized her treatment history to that
point, stated that he believed she would not improve any further without surgical
intervention, and recorded that he had discussed an anterior cervical diskectomy and fusion
with her. Id. at 12.
On May 22, 2018, O’Key began treating for pain management at Allied Health with
Dr. John Crosby and Dr. Michael Lane. Doc. 52, att. 7. A CESI was discussed at her first
appointment but for whatever reason she did not proceed. See id. at 4–7. She returned
several times over the next three and a half years, where her neck pain was primarily
addressed through medication (including Tylenol 3). Id. at 4–113. In December she also
received a cervical dorsal medial branch block and radiofrequency thermocoagulation from
Dr. Crosby. Id. at 30–36. She reported decreased pain after the procedures but complained
that her symptoms were worsening again in January 2021. Id. at 40–43, 63. She reported
some improvement after physical therapy, but also that the pain returned and worsened
with her job, which required her to look down for extended periods of time. Id. at 63.
O’Key then underwent a CESI in May 2021 and another in September 2021. Id. at
89, 161. In July 2021 she underwent an EMG nerve conduction study, which found
evidence of denervation in the upper extremities suggesting the presence of C6-C7
radiculopathy. Id. at 144–146. After the second CESI O’Key reported some relief but also
that she was still experiencing pain radiating into her left arm. Id. at 92. She then underwent
another cervical medial branch block in October 2021, and reported at her follow-up visit
that she was able to work without pain. Id. at 100–03.
O’Key also tried physical therapy again for her lower back, right wrist, and left
shoulder at Maxx Physical Therapy, undergoing nine sessions from December 2020 to
January 2021 and an additional sixteen sessions from July to November 2021. Doc. 52, att.
8. After treating for some time at Allied Health, as described above, O’Key returned to Dr.
Fenn in June 2021, reporting constant pain in her left shoulder and neck and occasional
pain in her right wrist. Doc. 52, att. 4, p. 85. In August 2021 Dr. Fenn performed another
shoulder injection to treat the pain in that area and discussed the possibility of a shoulder
arthroscopy pending her response to therapy and injection. Id. at 67. She returned in
October and December 2021, however, reporting that her symptoms were unchanged and
complaining of lower back pain as well. Id. at 8, 49. Dr. Fenn recommended possible
arthroscopy for her right wrist as well, pending her response to therapy. Id. at 10.
O’Key also returned to Dr. Brennan in February 2022. Doc. 52, att. 6. At this visit
she stated that her neck/left upper extremity pain had returned, identical to its severity in
2018, though she had received temporary relief from the injections. Id. at 10. Dr. Brennan
recommended surgery again and she indicated she would like to discuss it with her family
and then proceed. Id.
2. O’Key testimony
O’Key testified that her injuries had limited her daily activities in several respects.
She stated she was no longer able to take an active role with her son’s sports, carry her
grandchild, exercise, or to style hair from her home, as she had done before the accident.1
Tr., Day 1, pp. 44–46. She also described how the repetitive motions of her job exacerbated
her injuries. Id. She further testified that she intended to proceed with the surgery
recommended by Dr. Brennan, but that she first had to accrue enough paid time off and
1 Numerous friends corroborated her account, though as defense raised in cross-examination, many of these had also
been plaintiffs in their own personal injury suits.
save up money for the time she would be off work following the procedure. Id. at 42–43.
Finally, she stated that her symptoms began after the crash and that she had never had any
issues with these areas of her body beforehand. Id. at 46–47. She testified, however, that
she was not claiming lower back pain as one of her post-accident injuries. Id. at 59–60.
3. Life care plan
A life care plan was prepared by Dr. Aaron Wolfson, in consultation with Dr.
Brennan and Dr. Lane, and entered into evidence at trial. See doc. 52, att. 46. In this
document Wolfson forecasted O’Key’s need for future medical care, namely those
associated with the pain management recommended by Dr. Lane and the surgeries
recommended by Dr. Brennan. Id. He predicted total costs at a low end of $822,701.57 and
a high end of $1,013,361.50. Id. Plaintiffs’ economist, Dr. Shael Wolfson, estimated the
present value of these costs to range from $881,713.00 to a midpoint of $985,985.00 and
high point of $1,090,257.00. Doc. 52, att. 49.
4. Opinion testimony
At trial the court heard from biomechanics engineer Dr. Amy Courtney as well as
O’Key’s treating physicians Drs. John Crosby, Michael Lane, William Brennan, and Paul
Fenn, and defense IME physicians Drs. Robby Leblanc and Neil Romero.
a. Amy Courtney
Dr. Courtney was accepted by the court as an expert in the field of biomechanical
engineering. Tr., Day 3, p. 416. She opined, based on her review of accident data and
subsequent modeling, that there was no biomechanical mechanism to account for the
injuries identified by plaintiffs’ treating providers. Id. at 419–22. Specifically, she testified
that the subject collision was a minor event with a total Delta V of less than 1.5 miles per
hour. Id. at 425–28. She then went through a detailed analysis of all the plaintiffs’ injuries
and opined that this change in force could not have accounted for any of the results they
had claimed. Id. at 428–59.
Dr. Courtney admitted that the modeling for this accident was more unusual because
of the point of impact at O’Key’s front tire, but maintained that she was still able to obtain
sufficient stiffness values to analyze the severity of the collision. Id. at 421–22. She also
admitted that she had no information on the exact position of the vehicles during the
accident and that none of the studies on which she relied regarding resulting injuries
involved aggravation of preexisting conditions. Id. at 459–64. Finally, she acknowledged
that disc material degenerated with aging and that a single excessive strain or injury,
including from a sneeze, could lead to a herniation. Id. at 467–69. She maintained,
however, that such a herniation would usually result in immediate and severe pain and that
the degeneration for individuals in O’Key and Lewis’s age group would not be very
significant. Id.
b. John Crosby
Dr. John Crosby, a physician board certified in anesthesiology and pain
management, was accepted by the court as an expert in those fields. Tr., Day 1, p. 62. He
described his treatment of O’Key at Allied Health, as summarized in the records above, up
until the time he left that clinic in September 2020. Id. at 62–85. He opined that O’Key’s
symptoms were caused by injuries she suffered in the collision and that the treatment he
provided was necessitated by those injuries. Id. at 86–87. He also opined that she would
need future medical treatment for her neck, even if she underwent the surgery
recommended by Dr. Brennan at C6-C7, in order to address the other issues at C3-C4 and
because the surgical correction at one level would typically cause the levels above it to
“become more active” and “break down quicker than they would have otherwise.” Id. at
87–89. He admitted, however, that he had not seen O’Key in person since December 2019
and that some of his opinions arose from her subjective pain complaints. Id. at 103–04. He
also admitted that O’Key was only referred for her C6-C7 diagnosis and radiating pain, but
that he had found based on her abnormal imaging and self-report that she was also
experiencing symptoms from the C3-C4 injury. Id. at 108–12.
c. Michael Lane
Dr. Michael Lane, a physician specializing in physical medicine and rehabilitation,
musculoskeletal medicine, and pain management, was accepted by the court as an expert
in the field of pain management. Tr., Day 1, p. 154. He described his treatment of O’Key,
as summarized in the records above, beginning with their first encounter on May 7, 2021.
Id. at 154–57. He also testified that his exam and the EMG performed in July 2021
confirmed that her symptoms of radiating pain were caused by the herniation at C6-C7,
and that her reaction to the injections performed in October 2021 also indicated that the
herniation at C3-C4 had been causing additional symptoms. Id. at 157–65. He also agreed
that O’Key would continue to require future medical care, including physical therapy and
repeat RFAs, for her neck even if she had the surgery. Id. at 165–72. He admitted that he
was no longer treating O’Key, however, having left Allied Health to form his own clinic,
and had not seen her since the end of 2021. Id. at 181–83.
d. William Brennan
Dr. Brennan, a board-certified neurosurgeon, was accepted by the court as an expert
in that field and testified to his treatment of O’Key as described above. Id. at 240–41. He
emphasized that his recommendation for surgery at C6-C7 did not mean there was no
pathology at the upper level, but instead that the injury there was not surgical at this time.
Id. at 245–47. Finally, he testified based on his experience that a person could sustain neck
or back injuries even in a low-speed vehicle crash, that O’Key’s complaints were consistent
with the results of her exam and MRI, and that he believed the collision in December 2017
caused her disc injury. Id. at 249–50.
On cross-examination Dr. Brennan admitted that it was rare for patients
experiencing the pain described to wait as long as O’Key had before finally deciding to
pursue a surgical fix. Id. at 250–54. In O’Key’s case, however, he explained that her other
injuries and her pursuit of medical options to treat them would contribute to the delay as
opposed to a patient who was only dealing with the surgical injury. Id. at 254–55. He also
testified that O’Key had not had any updated imaging of her cervical spine done since
2018, but that she was tentatively scheduled for surgery on May 4, 2022, and would have
updated studies in advance of the procedure. Id. at 256–59. Finally, he emphasized that the
EMG performed in 2021 confirmed that her injury at C6-C7 was worsening and that he did
not expect the results of an updated MRI to change his recommendation. Id. at 259–61.
Finally, he reviewed the life care plan and agreed with the recommendation for 18 sessions
of physical therapy after each of her anticipated two surgeries and possibly more over the
course of her lifetime. Id.
e. Paul Fenn
Paul Fenn, a board-certified orthopedic surgeon, was accepted by the court as an
expert in that field and testified about his treatment of O’Key as summarized in the records
above. Tr., Day 2, pp. 298–300. He testified that his treatment had primarily focused on
O’Key’s shoulder and wrist, and that the conservative therapies he provided—namely,
injections and physical therapy—yielded improvement but no resolution of her symptoms.
Id. at 307–10. He recommended arthroscopy for the right wrist in the event the symptoms
there became unbearable, and further related her lower back pain to the accident. Id. at
311–15.
f. Robby LeBlanc
Dr. Robby LeBlanc, a board-certified orthopedic hand surgeon, was accepted by the
court as an expert in that field. Tr., Day 3, pp. 490–92. He testified as to the IME he
performed on O’Key in June 2021. Based on that examination, he did not believe that she
required a wrist arthroscopy and testified that his exam of her allegedly injured right wrist
yielded nearly identical findings as to her uninjured left wrist. Id. at 492–98. He further
testified that O’Key did not appear to be experiencing any wrist pain when he examined
her and that she was more concerned by an occasional popping sound from her wrist. Id.
at 498–99. However, the MRI showed no sign of injury and instead only showed incidental
subchondral cysts. Id. at 499–500. Accordingly, he did not link any symptoms of pain in
her wrist or need for future treatment to the December 2017 accident. Id. at 500–02.
g. Neil Romero
Dr. Neil Romero, a board-certified orthopedic spine surgeon, was accepted by the
court as an expert in that field and testified as to the IME he performed on O’Key in July
2021. Tr., Day 3, pp. 537–40. He agreed that O’Key’s symptoms were consistent with the
disc osteophyte at C6-C7 but recommended further conservative treatment instead of
surgery. Id. at 542. Specifically, he believed that O’Key’s response to the CESIs was
promising and that she should pursue further injections. Id. at 555–57.
Dr. Romero disputed that the pathology at that disk was caused by the accident,
noting that it was present on an MRI performed just months after the collision but that
“[w]e know that disc osteophyte complexes take a while to form.” Id. He further testified
that such complexes were more typically associated with a degenerative condition, but
admitted that there was no objective testing that could confirm the existence of a
degenerative condition beyond suppositions based on her imaging. Id. at 547–52. He also
conceded that he had known patients with undiagnosed degenerative conditions to become
symptomatic after a crash. Id. at 560–61. Finally he admitted that, in the event O’Key failed
further nonoperative treatment, he would agree that the surgery recommended by Dr.
Brennan would be the appropriate treatment. Id. at 553–54. He disputed the life care plan’s
conclusions, however, that she would require ongoing pain management care and noted
that the fusion surgery was 95% effective at relieving symptoms. Id. at 554–55.
C. Don Lewis
1. Treatment history
Lewis was 33 years old at the time of the accident and working as a pipefitter helper
at CB&I. Tr., Day 1, pp. 123, 137–38; doc. 52, att. 34, p. 6. After the accident he first
sought care at Wellness Management Chiropractic and Medical Group on December 21,
2017. Doc. 52, att. 34. There he reported that he had been in the front passenger seat when
the car was struck on the right side, and complained of frequent pain in his mid- and lower-
back and right shoulder since the accident, all of which he rated at an 8/10. Id. at 4–6. Lewis
was treated at Wellness on December 21 and 27, 2017, with ultrasound, hot/cold packs,
electrical stimulation, biofreeze, massage, and chiropractic manipulation. Id. at 3–8.
Lewis next sought care at Lake Charles Chiropractic and Functional Medicine
beginning on February 8, 2018. Doc. 52, att. 28. Here he reported low back, neck, and right
shoulder pain following the crash. Id. at 61. He also reported that he was experiencing pain
with his daily activities, making his job more difficult. Id. The doctor from this clinic
ordered MRIs of the lumbar and cervical spine, which were taken in February 2018. See
doc. 53, att. 24. Lewis underwent chiropractic treatment at this clinic several times over
the next two months, but reported at his final visit on April 5, 2018, that he was continuing
to experience pain. Id. at 2–8, 147.
Lewis also began treating with orthopedist Dr. Paul Fenn on March 1, 2018. Doc.
52, att. 29. At his first visit he complained of neck pain radiating into his right shoulder
and lower back pain radiating into his lower extremities. Id. at 65. He also reported that he
had been on light duty at work since the accident. Id. Dr. Fenn reviewed the cervical and
lumbar spine MRIs performed in February 2018, which showed disc bulging and neural
canal narrowing at various levels in the cervical spine along with right paracentral
herniation with mild cord impingement at C2-C3 and bulging at various levels with
herniation at L4-L5 in the lumbar spine. Id. at 85–88; see doc. 53, att. 24. Dr. Fenn
prescribed medication, a cervical pillow, and traction kit, and recommended continued
conservative treatment along with a right shoulder MRI. Id. at 69, 88.
Lewis returned to Dr. Fenn on May 10, 2018. Id. at 51. At that visit Dr. Fenn noted
that the right shoulder MRI, which had been taken earlier in the month, showed a SLAP
(Superior Labrum, Anterior to Posterior) tear in his right shoulder and that Lewis continued
to experience limitations at work along with pain in his neck and back and shoulder pain
with movement. Id.; see doc. 53, att. 32 (MRI report). Dr. Fenn recommended that Lewis
either continue with conservative treatment or consider surgery for his shoulder. Tr., Day
1, p. 51. Lewis opted for conservative treatment, through a prescription of Mobic, and
received an injection in his shoulder for pain on May 17, 2019. Id. at 24. At a follow-up in
July, he reported that his symptoms had improved. Id. at 16. He refilled his medication
with Dr. Fenn in October 2019. Id. at 14. At this visit he also reported that his shoulder
symptoms were improving along with his range of motion. Id. at 12.
Lewis also began seeing Dr. Crosby at Allied Health for pain management
beginning on April 24, 2018. Doc. 52, att. 30. At the first visit he reported low back pain
radiating into his lower extremities and neck pain radiating into his right shoulder. Id. at 5.
Based on his exam and review of records, including the spinal MRIs, Dr. Crosby diagnosed
Lewis with cervicalgia, right shoulder pain, low back pain, and lumbar radiculopathy
arising from the December 2017 car accident. Id. at 5–8. Dr. Crosby administered a Lumbar
Transforaminal Epidural Steroid Injection (“LESI”) at that visit to treat Lewis’s low back
pain. Id. at 8–9. At a follow-up visit on May 22, 2018, Lewis reported “excellent benefit
with complete resolution” of the lumbar radiculopathy, though the low back pain itself
persisted and worsened with bending, twisting, and prolonged sitting. Id. at 8–9. Dr. Crosby
also recorded that Lewis took very little medication and continued to work. Id. at 13.
Lewis next saw Dr. Crosby on November 20, 2018. Id. at 14. At this visit he
complained again of low back pain. Id. He was not seen again, however, until January 28,
2020, when he underwent a Diagnostic Medial Branch Block (“DMBB”) procedure. Id. at
21. Lewis reported improvement to his lower back symptoms at his follow-up in February
and then underwent a Radiofrequency Ablation (“RFA”) in July 2020. Id. at 24, 31. Lewis
also reported improvement after the RFA. Id. at 35. At a follow-up in January 2021 Lewis
reported that he was still receiving pain relief from the RFA, rating that relief at a 96 percent
reduction. Id. at 44.
After Dr. Crosby left Allied Health, Dr. Michael Lane took over Lewis’s care at that
clinic. He first saw Lewis at a follow-up visit on May 6, 2021. Id. at 46. There Lewis
reported that his low back pain had started returning approximately one month ago, but
without radiculopathy and that it remained manageable at home with over-the-counter
medication. Id. at 46, 49. He also reported that his shoulder pain was returning, though he
had not followed up with Dr. Fenn in some time. Id. at 46. Dr. Lane recommended that
Lewis return to Dr. Fenn for his shoulder and follow up at Allied in four to six weeks to
see whether a repeat DMBB was indicated for his back. Id. at 49.
At a follow-up visit with Dr. Lane on June 24, 2021, Lewis reported that his low
back pain had returned to his pre-RFA baseline. Id. at 51. Dr. Lane recommended a second
DMBB, with another RFA to follow if the DMBB provided good pain relief. Id. at 54. A
lumbar RFA was performed on September 10, 2021. Id. at 58. At a follow-up visit on
January 6, 2022, Lewis reported that his pain levels had decreased since the procedure and
that he had gradually been able to increase his exercise regimen. Id. at 72. Lewis also
testified that he saw Dr. Fenn for a final time two weeks before trial and indicated that he
was ready to proceed with surgery for his shoulder, though he had not yet scheduled the
procedure. Tr., Day 1, pp. 150–51.
2. Lewis testimony
At trial Lewis testified that his right shoulder and lower leg hit the door of the car
at the time of the crash. Tr., Day 1, p. 127. He reported that he still experienced some
shoulder pain since the accident, and planned to address the latter with another injection
and then surgery with Dr. Fenn in the summer of 2022. Id. at 132–33. He also reported that
he would get about two to three months relief from the RFAs performed at Allied, but that
the pain would return. Id. at 133–34. He denied experiencing any problems or needing any
treatment for his neck, back, or shoulders prior to the December 2017 accident. Id. at 135–
38. He testified that his injuries had limited his ability to play sports with his sons and
restricted him to light duty at his pipefitter assistant job and at a subsequent job building
scaffolding. Id. at 135–38. Lewis’s family members testified that they had observed him in
pain, particularly from his back, since the accident and that he was less active and less able
to participate in physical tasks. Id. at 194–95, 222–23, 228, 234.
Lewis admitted, however, that his current scaffolding job was a strenuous one and
that he had not identified any physical limitations when he completed regular fitness
evaluations for his work. Id. at 143–45; see doc. 53, atts. 27 & 31. Additionally, the defense
showed on cross-examination that Lewis had been in a motor vehicle accident in October
2018 and complained of right shoulder pain when he visited the emergency room soon
after. Tr., Day 1, pp. 147–48; doc. 53, att. 19. Finally, Lewis admitted that he had never
pursued physical therapy for his injuries and that he had not seen Dr. Fenn for his shoulder
in between his last visit, two weeks before trial, and the prior one in October 2019. Id. at
148–51.
3. Life care plan
Dr. Aaron Wolfson prepared a life care plan for Lewis, in consultation with Dr. Fenn
and Dr. Lane. He forecasted Lewis’s future surgical needs to include two further DMBBs
over his lifespan, one lumbar RFA every ten years, and one shoulder arthroscopy. Doc. 52,
att. 48, p. 7. He also forecasted future maintenance physical therapy at twelve sessions per
year and 48 to 72 sessions of post-operative physical therapy after Dr. Fenn’s procedure,
in addition to medications, wellness membership, and laboratory and diagnostics. Id. at 1–
8. Dr. Wolfson predicted costs between a low end of $350,541.36 and $561,124.36, and
plaintiff’s economist estimated the present value of these costs to range from a low end of
$360,328.00 to a midpoint of $475,180.00, to a high point of $590,032.00. Id. at 8; doc.
52, att. 51. Excluding the costs associated with the shoulder arthroscopy, however, the
present value of future costs reach a midpoint of only $415,294.00.
4. Opinion Testimony
At trial the court heard opinion testimony from defense biomechanics expert Dr.
Amy Courtney, as summarized above. Plaintiffs also introduced testimony from Lewis’s
treating physicians, Drs. Crosby, Lane, and Fenn, and the defense introduced testimony
from IME physicians Drs. Neil Romero and Justin Penton.
a. John Crosby
Dr. Crosby was accepted by the court as an expert in the fields of general surgery
and pain management. Tr., Day 1, p. 62. He testified about his treatment of Lewis, as
summarized above. He stated that Lewis’s complaints were consistent with what Dr.
Crosby observed from the imaging and the exam, and that Lewis received the expected
amount of pain relief from the DMBB and RFAs. Id. at 92–96. Finally, he testified that it
was more probable than not that Lewis’s lumbar spine injury was caused by the December
2017 crash and that the treatment he had received at Allied was reasonable and medically
necessary. Id. at 96–98.
b. Michael Lane
Dr. Lane was accepted by the court as an expert in the field of pain management.
Tr., Day 1, p. 157. He summarized his treatment of Lewis, as described above, including
the RFA performed in September 2021. Id. at 173–76. He also testified about his
participation in the life care plan and stated that he had recommended the repeat procedures
outlined therein. Id. at 178–80. Finally, he testified that he viewed Lewis’s lumbar spine
injury as a result of the 2017 crash and that the treatment he had received at Allied was
reasonable and medically necessary. Id. at 180–81.
c. Paul Fenn
Dr. Fenn, an orthopedic surgeon, was accepted by the court as an expert in that field.
Tr., Day 2, pp. 298–300. He summarized his treatment of Lewis, as described above. He
also testified that a SLAP tear was commonly a surgical injury and could be sustained in a
low-speed car accident, particularly if the patient’s shoulder slammed against the car on
impact. Id. at 318–19. He further testified that Lewis’s imaging and symptoms were both
consistent with such a tear, and that he believed surgery was indicated based on his
exhaustion of more conservative treatments. Id. at 325–26. Dr. Fenn mistakenly testified
that Lewis had tried physical therapy for the injury but maintained that surgery was the
only way to repair the damage caused by the tear. Id. at 325–28. Additionally, Dr. Fenn
admitted that he had not seen Lewis between October 2019 and February 15, 2022, with
the last visit falling less than two weeks before trial and nearly two and a half years after
the previous one, and that Lewis currently did not have the shoulder surgery scheduled. Id.
at 363–64.
d. Neil Romero
Dr. Neil Romero, an orthopedic spine surgeon, was accepted as an expert in that
field and testified that he performed an IME on Lewis. Tr., Day 3, pp. 538–40. However,
his testimony at trial was confined to his opinions regarding O’Key. In his report Dr.
Romero acknowledged that Lewis appeared to have suffered a cervical strain, now
resolved, as a result of the collision and that his lumbar symptoms also appeared related to
the accident. Doc. 53, att. 62.
e. Justin Penton
Dr. Justin Penton, an orthopedic surgeon, was accepted by the court as an expert in
that field. Tr., Day 3, pp. 578–81. He testified that he performed an IME on Lewis in June
2021 and as a result of that examination, concluded that the tear Lewis had sustained was
not caused by the December 2017 car accident. Id. at 581–82. Specifically, he pointed out
that Lewis had described the impact as a side-to-side motion while labral injuries were
usually sustained through either a traction injury, where the arm was yanked out of the
socket, or an acute subluxation or dislocation, “where the glenohumeral joint, the actual
humeral head or the ball, is translated in an anterior-to-posterior or front-to-back
mechanism, not in a compression mechanism.” Tr., Day 3, p. 584. A side-to-side impact,
he noted, would instead produce a compression injury. Id. Additionally, Dr. Penton
observed that Lewis’s exam findings were “fairly normal” with no pain reproduced on
anterior loading shift, a test designed to reproduce the subluxation event and put pressure
on the labral tear. Id. at 585. Lewis did have a positive result on an O’Brien’s test, but Dr.
Penton testified that this result was more indicative of a bicep tear. Id. at 586.
Dr. Penton acknowledged that the MRI showed evidence of a labral tear, but
testified based on his examination and the analysis conducted by another defense expert
that the tear was more likely a chronic event rather than acute traumatic injury. Id. at 586–
88. Specifically, he noted findings on the MRI such as the appearance of the tear, the
presence of a paralabral cyst and other signs of chronic damage to the tissue, a lack of bone
bruising, and a lack of fluid/acute hemorrhage. Id. at 588–90. He also described Lewis’s
long history as an “overhead athlete” (playing baseball), from the age of five or six until
age sixteen, as a common cause of chronic tears to the superior labrum. Id. at 590. He
opined that this tear had not reached the level of requiring surgical intervention, because
Lewis had not undergone any physical therapy, was only taking over-the-counter anti-
inflammatories to manage the pain, had not sought treatment for the shoulder in over two
years, and had continued working in manual labor jobs. Id. at 591. Finally, he asserted that
the injection Lewis had received in 2019 for his shoulder was not even the type best suited
to alleviate pain for a SLAP tear. Id.
D. Lawryn Sweet
1. Treatment history
Lawryn Sweet was seventeen years old at the time of the accident and was a rear
passenger, seated behind Lewis and not wearing a seat belt. See, e.g., doc. 52, att. 25, p.
14; doc. 52, att. 18, p. 88. Records from her pediatrician show that she had reported knee
pain at an office visit in 2012, worsening with activity and persisting for the last several
years. Doc. 53, att. 45, p. 9. She was treated for this condition in 2012 by an orthopedic
surgeon, who diagnosed her with chondromalacia of the patella and referred her to physical
therapy. Doc. 53, att. 50. After the accident she first sought care at Wellness Chiropractic
on December 21, 2017, where she reported lumbar pain at a severity of 7/10 and pain in
her right knee and wrist at the same severity. Doc. 52, att. 25, p. 14. She was treated with
traction, massage, trigger point therapy, electrical stimulation, ultrasound, moist heat, and
biofreeze. Id. at 3–4.
Sweet reported that her symptoms had not resolved and next sought treatment at
Lake Charles Chiropractic and Functional Medicine on February 7, 2018. At this visit she
also reported right wrist, right knee, and back pain resulting from the December 2017 crash.
Doc. 52, att. 17, p. 35. She returned to this clinic several times over the next month and
was treated with a tens unit, biofreeze, hydrotherapy, cold/hot packs, therapeutic exercises,
manipulation, muscle stimulation, traction, and a patella stabilizer. Id. at 35–87.
Nonetheless, she reported after her last session on March 7, 2018, that she was still
experiencing pain and difficulty performing daily activities such as writing for extended
periods of time while doing homework. Id. at 87. A knee MRI was also ordered while
Sweet was under the care of Lake Charles Chiropractic. The history segment of the report
noted that Sweet had had knee pain for several years, worsening after the accident. Doc.
52, att. 24, p. 6. The MRI found a slightly discoid lateral meniscus, but with no tear, and a
small effusion with minimal Baker’s cyst. Id.
Sweet also sought care with orthopedist Dr. Paul Fenn for her knee and wrist pain
on March 1, 2018. Doc. 52, att. 18, pp. 88–89. Dr. Fenn diagnosed Sweet with a nonossified
fibroma of her posterior distal femur, which was not painful at this point, as well as discoid
meniscus and contusion of her right knee and an unspecified sprain of her right wrist. Id.
at 90–91. He prescribed medications and recommended an MRI and physical therapy for
the wrist, which should have improved significantly by this point, as well as a repeat MRI
in three months for the knee. Id.
Sweet followed up at Dr. Fenn’s office on May 10, 2018, reporting continuing pain
in her right knee and wrist as well as pain in her left knee from compensating on that leg.
Id. at 73. Her wrist MRI showed a possible tear of the triangular fibrocartilage complex
based on increased signal in that area, though the MRI report noted that the image was
suboptimal due to movement. Id.; doc. 52, att. 20, p. 7. Sweet reported that she was in
physical therapy for her wrist and that this had helped some, but that she had not yet started
physical therapy for her knee. Doc. 52, att. 18, p. 73. Dr. Fenn diagnosed her with iliotibial
band fiction syndrome of the right knee and recommended considering needle arthroscopy
if Sweet’s symptoms did not improve after a course of physical therapy. Id. at 76. He also
found that a TFCC tear diagnosis correlated well with her symptoms, recommended
continuing with physical therapy as well as a splint, and raised the possibility of magnetic
resonance arthrography (“MRA”) for the wrist if Sweet’s symptoms did not resolve. Id.
Sweet completed 17 sessions of physical therapy for her wrist at Southwest
Rehabilitation Center between April 19 and July 12, 2018. Doc. 52, att. 21, pp. 46–81. At
her final session she reported good range of motion but continued pain. Id. at 81. She began
physical therapy for her knee on May 22, 2018, completing seven sessions between that
date and July 12, 2018. Id. at 98–116. At her final visit she reported that she was still
experiencing knee pain, but that it went away after taking Tylenol. Id. at 115. She also
showed improvement in many of the range of motion goals set for her therapy, though her
strength deficits remained unchanged with reports of mild to moderate deficits in several
domains. Id. at 115–16.
Sweet saw Dr. Fenn again on June 29, 2018. Doc. 52, att. 18, pp. 61–64. At this visit
he urged her to continue with physical therapy for her knee. Id. at 64. He also recommended
an MRA of her wrist and possible referral to a hand surgeon pending review. Id. The MRA
took place on September 25, 2018, and showed a “partial tear of the dorsal and
membranous and the scapholunate ligament,” though the “scapholunate interval is normal
and intact with no widening or diastases.” Id. at 55–56. Sweet saw Dr. Fenn again on
October 23, 2018, and complained of continued knee pain with weight bearing along with
numbness in her right hand. Id. at 51. She stated that she was treating the pain with
naproxen, an over-the-counter anti-inflammatory, PRN. Id. Dr. Fenn recommended
resuming physical therapy for the knee. Id. at 53. He found that her wrist symptoms and
MRA results were consistent with mild carpal tunnel syndrome. Id. at 54. Accordingly, he
ordered a brace and referred her to a hand surgeon. Id.
Sweet next saw Dr. Fenn on December 6, 2018, reporting intermittent knee pain and
wrist pain, both of which she was treating with ibuprofen PRN. Id. at 39. At this time she
reported that she had resumed physical therapy for her knee and physical therapy and
occupational therapy for her wrist, though plaintiffs have produced no records of these
visits. Id.
Dr. Fenn saw Sweet again on February 14, 2019, at which time she reported she was
nine weeks pregnant. Id. at 31. She stated that she had stopped taking all pain medication
and that her knee pain was intermittent while her wrist pain worsened with activity. Id. Dr.
Fenn recommended icing and bracing for the wrist, with surgical interventions placed on
hold due to the pregnancy. Id. at 33. For the knee he recommended icing and activity
modifications. Id. at 34. Sweet attended a follow-up appointment on May 31, 2019, at 25
weeks, and reported that her wrist pain had increased recently. Id. at 25. Dr. Fenn
recommended continued bracing and range of motion exercises, with reassessment to
follow after delivery. Id. at 27–28. She saw him again on January 24, 2020, following
delivery, and reported continued wrist symptoms along with swelling in her knee. Id. at
17–20. Dr. Fenn recommended home exercise for the wrist and repeat X-rays, with an
evaluation for wrist arthroscopy surgery pending results of the X-ray. Id.
No X-ray was performed, however, and Sweet did not return to the clinic until June
2, 2021, at which time she was five months pregnant. Id. at 8–11. At this appointment she
reported that her pain had increased after the activity restrictions and cessation of her non-
steroidal anti-inflammatory medications caused by the pregnancy. Id. Dr. Fenn noted that
she remained a surgical candidate for her wrist and knee, but that these options could not
be considered until after she had delivered and was no longer breastfeeding. Id. This was
Sweet’s last appointment with Dr. Fenn until just before trial, when she testified that she
wished to proceed with operations on both her knee and wrist. Tr., Day 1, pp. 210–11.
2. Sweet’s testimony
Sweet testified that, at the time of the accident, she was holding onto the seat in front
of her and was pushed forward by the impact. Tr., Day 1, p. 204. Afterwards, she felt a
“weird feeling” in her wrist and a popping in her knee, which began to swell that night. Id.
at 205. She recalled feeling little improvement from the chiropractic care or physical
therapy. Id. at 206–10. Accordingly, she had visited Dr. Fenn two weeks ago and planned
to proceed with the arthroscopic surgeries he had recommended at some point in April. Id.
at 210–11.
Sweet also testified that she had experienced problems with the same knee prior to
the accident, but stated that these issues were limited to when she was playing softball in
her early teens. Id. at 212. She further stated that she only iced the knee when it hurt, and
had not needed to do so within a year before the accident. Id. at 212–13. After the accident,
she stated, her injuries limited her ability to take care of her aging grandfather. Id. at 213.
3. Life care plan
Dr. Aaron Wolfson prepared a life care plan for Sweet, in consultation with Dr.
Fenn. He estimated future medical costs based on Dr. Fenn’s recommendation of a right
wrist arthroscopy with debridement, right wrist carpal tunnel release, and right knee
arthroscopy with debridement, with many of the costs (such as physical therapy, post-
operative visits, and medication) in triplicate based on the three procedures. Doc. 52, att.
47. From these he estimated low end future costs of $133,758.99 to high end of
$153,189.99. Id. at 6. Plaintiffs’ economist then translated these costs to a present value
ranging from a low point of $133,759 to a midpoint of $143,474 and a high point of
$153,190. Doc. 52, att. 50.
4. Opinion testimony
Relevant to Sweet’s case, the court heard opinion testimony from defense
biomechanics expert Dr. Amy Courtney (summarized above) as well as Sweet’s treating
physician Dr. Paul Fenn and defense IME physicians Drs. Robby LeBlanc and Justin
Penton.
a. Paul Fenn
Dr. Fenn, an orthopedic surgeon, was accepted by the court as an expert in that field.
Tr., Day 2, pp. 298–300. At trial he summarized his treatment of Lawryn Sweet, as
described above. He testified that he commonly saw wrist injuries like Sweet’s after motor
vehicle accidents, particularly with loading on the wrist and jamming it as might happen if
a person were gripping the seat at impact. Id. at 340–41. He also testified that the discoid
meniscus on her knee was a congenital condition, but that it appeared to become
symptomatic after the accident based on the swelling and Baker’s cyst also seen on the
MRI. Id. at 342. He recommended surgery based on the fact that her symptoms had not
resolved with physical therapy. Id. at 343–44. He agreed with the costs outlined in the life
care plan and stated that he would perform the two wrist procedures simultaneously and
then proceed with the knee after the wrist had healed. Id. at 345–50. He admitted, however,
that Sweet had not yet scheduled any procedures with him. Id. at 366.
b. Robby LeBlanc
Robby LeBlanc, an orthopedic hand surgeon, was accepted by the court as an expert
in that field. Tr., Day 3, pp. 490–92. He testified that he performed an IME on Lawryn
Sweet in June 2021 and opined based on that exam and records review that her wrist injury
did not arise from the December 2017 accident. Id. at 503–04. He noted that Sweet reported
pain at palpation and stress during the exam, but not at the points of the wrist correlated
with the areas of injury concern based on her imaging. Id. at 506–07. He also noted that
Sweet’s difference in grip strength between her left and right side appeared to be
exaggerated, and that the only abnormal findings he could discern were some laxity in her
ligaments in both wrists. Id. at 508–10. Based on this fact, and the fact that Sweet’s mother
displayed the same laxity during her IME, Dr. LeBlanc opined that any popping she was
experiencing was caused by this laxity as a congenital condition rather than as a result of
the accident. Id. at 511. He further stated that neither of the wrist procedures recommended
by Dr. Fenn would address the laxity issue. Id. at 512–13.
c. Justin Penton
Dr. Penton, an orthopedic surgeon, was accepted by the court as an expert in that
field. Tr., Day 3, pp. 578–81. He testified that he performed an IME on Lawryn Sweet in
July 2021 and, based on that examination, concluded that her knee symptoms were a result
of her preexisting condition rather than the December 2017 accident. Id. at 581, 594–96.
He stated that Sweet’s only abnormal findings on exam were consistent with the
chondromalacia diagnosed in 2012 rather than a meniscus tear or other result of trauma.
Id. at 596–97. He further testified that, given the lack of meniscus injury, the operation
recommended by Dr. Fenn was inappropriate and that Sweet still had additional
conservative treatment options (namely, rest, ice, and over-the-counter anti-
inflammatories) to exhaust before he would recommend any surgical solution to her knee
pain. Id. at 599–601.
E. Damages
“The FTCA authorizes civil actions for damages against the United States . . . under
circumstances in which a private person would be liable under the law of the state in which
the negligent act or omission occurred.” Quijano v. United States, 325 F.3d 564, 567 (5th
Cir. 2003). Accordingly, Louisiana substantive law applies here. The court uses this law to
analyze each plaintiff’s claim for past and future medical expenses as well as general
damages to compensate for pain and suffering and loss of enjoyment of life. See doc. 1, p.
5; doc. 51.
In a tort case, the plaintiff generally has the burden of proving each element of her
claim—including causation of damages—by a preponderance of the evidence. Lasha v.
Olin Corp., 625 So.2d 1002, 1005 (La. 1993). A plaintiff may recover for past and future
medical expenses caused by the defendant’s tortious conduct. Menard v. Lafayette Ins. Co.,
31 So.3d 996, 1006 (La. 2010). The plaintiff must establish, however, that she “incurred
past medical expenses in good faith as a result of [her] injury and future medical expenses
will more probably than not be incurred.” Id. The factfinder is given great deference in its
assessment of quantum for both general and special damages. Guillory v. Lee, 116 So.3d
1104, 1116 (La. 2009). Where the finding is based on determinations relating to the
credibility of witnesses, the award can only be overturned on a showing of manifest error.
Jones v. Bravata, 980 So.3d 226, 233 (La. Ct. App. 1st Cir. 2019) (citing Adams v. Rhodia,
Inc., 983 So.2d 798, 806 (La. 2008)).
1. Stacey O’Key
Plaintiffs have submitted medical bills totaling $89,830.25 for O’Key. Doc. 52, att.
58. They also claim future medicals of $1,090,257.00 and general damages of $500,000,
though they admit that damages as to this plaintiff are capped at $800,000 due to her
designation of that amount on her administrative claim. The government maintains that
O’Key is not entitled to future medicals, due to her failure to prove that she will have the
surgery recommended by Dr. Brennan or that it is medically necessary or that the injury in
question was caused by the accident. It suggests an award of general damages in the range
of $25,000 to $30,000. As the government notes, O’Key is not claiming any future care
relating to her wrist or lumbar spine.
Regarding all of O’Key’s past care, the court finds it reasonably related to symptoms
caused or exacerbated by the accident and incurred in good faith. Accordingly, an award
of her full past medical expenses is justified. Regarding O’Key’s neck injury, the court
finds her pain complaints and the testimony of her treating physician on the advisability of
surgery credible. The court also credits the testimony of her treating physician, and the
admission of the IME doctor and Dr. Courtney that a single strain could act on existing
degeneration to cause a herniation. Finally, the court accepts that O’Key will have surgery
in the future and require the other treatments recommended, and that it was reasonable for
her to delay surgery up until this point given the significance of the procedure and the
disruption it will cause in her work and life. O’Key has complained consistently of pain,
diligently sought relief through more conservative measures, and worked for years in an
occupation that exacerbates her injuries. Accordingly, the court finds an award of
$985,985.00 (the midpoint of future medical costs at present value) in future medical
expenses and an award of $200,000.00 for past and future pain, suffering, and loss of
enjoyment of life justified.
2. Don Lewis
As for Don Lewis, the medical bills submitted by plaintiffs up to the date of trial
total $68,194.99. Doc. 52, att. 60. Plaintiffs also claim future medicals in the amount of
$590,032 and general damages in the amount of $350,000. The government suggests that
a general damages award of $13,000 to $15,000 is more appropriate, asserting that Lewis
has failed to appropriately connect his injuries to the accident or prove the necessity of
future treatment and the likelihood that he will pursue it.
The court is persuaded that Lewis’s lumbar injury was caused by the accident and
that it will require future care, based on his continued complaints of pain and the credible
testimony of his family members regarding his back issues since the accident. As with
O’Key, the court also finds reason to doubt Dr. Courtney’s testimony on the impossibility
of the accident causing such an injury. Given his success with the RFAs, the court further
finds that future care costs related to the lower back are justified. The court credits,
however, the testimony of the IME physicians on the likelihood that any shoulder injury
was not caused by the accident and is not surgical. In this regard the court notes the gaps
in Lewis’s treatment for his shoulder, his history of playing sports that might have also
caused the injury as well as his intervening accident with complaint of shoulder pain, and
his continued work in manual labor that surely would have exacerbated an untreated injury.
Accordingly, the court finds the limited past medical costs related to the shoulder were
incurred in good faith and might have been related to exacerbation of symptoms caused by
the accident but that no future medical costs are justified. Lewis will be awarded
$68,194.99 in past medical costs, $415,294.00 in future medical costs, and past and future
pain in suffering in the amount of $125,000.00.
3. Lawryn Sweet
As for Sweet, the medical bills submitted up to the time of trial total $21,258.33.
Doc. 52, att. 59. Plaintiffs also claim future medicals in the amount of $153,190.00 and
general damages in the amount of $250,000.00. The government maintains that neither of
Sweet’s injuries can be linked to the accident, and that she should be limited to a general
damages award of $10,000.00 to $13,000.00.
Based on the testimony regarding the accident, Sweet’s lack of prior complaints
regarding her wrist, and her consistent complaints and exhaustion of physical therapy after
the accident, the court finds it sufficiently likely that she sustained wrist trauma that caused
lingering symptoms for some time after the accident. The court also finds it sufficiently
likely that she sustained knee trauma, including a possible exacerbation of her preexisting
cartilage condition, and that her past medical bills were incurred in good faith.
Accordingly, an award of $21,258.33 in past medical costs is justified as well as an award
of $50,000.00 in past pain, suffering, and loss of enjoyment of life. As for Sweet’s current
complaints, however, the court is concerned by the results of her IMEs and notes that she
has primarily treated – even when not pregnant or breastfeeding – with over-the-counter
medication. Furthermore, the court found no credible link between her carpal tunnel-like
complaints and the 2017 trauma she sustained to her wrist. Accordingly, the court does not
find it sufficiently likely that she will pursue surgery for either her wrist or knee or that
such care would be linked to injuries sustained in the accident. Because the future medical
costs all relate to future surgeries, no award for future care will be made.
III.
CONCLUSION
For the reasons stated above, judgment will be entered for the plaintiffs in the
following amounts:
• Stacey O’Key:
o $89,830.25 in past medical costs
o $985,985.00 in future medical costs
o $200,000 in past and future pain, suffering, and loss of enjoyment of life
o But with all damages reduced to $800,000 by plaintiff's declaration on
her administrative claim.
e Don Lewis:
oO $68,194.99 in past medical costs
o $415,294.00
o $125,000 in past and future pain, suffering, and loss of enjoyment of life
e Lawryn Sweet:
© $21,258.33 in past medical costs
o $0 in future medical costs
o $50,000 in past pain, suffering, and loss of enjoyment of life
THUS DONE AND SIGNED in Chambers this 2nd day of June, 2022.
UNITED STATES DISTRICT JUDGE
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