Moulding v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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KATIE MOULDING, *

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Plaintiff, *

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v. * Civil Action No. 20-cv-11248-ADB

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UNITED STATES OF AMERICA, *

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Defendant. *

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FINDINGS OF FACT AND CONCLUSIONS OF LAW

BURROUGHS, D.J.

In this personal injury suit, brought against the United States of America (the

“Government”) pursuant to the Federal Tort Claims Act (the “FTCA”), Plaintiff Katie Moulding

alleges that, on November 17, 2018, a Government employee, Kyler Brown, negligently struck

her while operating a small postal truck (the “LLV”). [ECF No. 1 (“Compl.”)]. For the reasons

set forth below, the Court finds that the Government is liable under the FTCA and will enter a

$46,410 judgment in Ms. Moulding’s favor.

I. PROCEDURAL HISTORY

On June 30, 2020, Ms. Moulding filed suit against the Government under the FTCA.

[Compl.]. The Government answered on September 25, 2020. [ECF No. 6]. Neither party filed

dispositive motions and, after discovery concluded, trial was scheduled. On June 22, 2021, the

parties filed proposed findings of fact and conclusions of law. [ECF Nos. 26–28]. During the

three-day bench trial that began on June 29, 2021,1 the Court heard testimony from three fact

1 There is no right to a jury trial in this type of FTCA case. See 28 U.S.C. § 2402; 32 C.F.R.

§ 750.32.

witnesses (Ms. Moulding, Ms. Moulding’s husband, and Mr. Brown) and two expert witnesses

(Dr. N. George Kasparyan and Dr. Errol Mortimer), and roughly fifty exhibits were admitted into

evidence. [ECF Nos. 29–31].

Having considered the evidence presented at trial and the parties’ arguments, the Court

makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil

Procedure 52(a).

II. FINDINGS OF FACT

A. Ms. Moulding, Mr. Brown, and the LLV

Ms. Moulding lives with her husband, Christopher Moulding, and their three children in

Wareham, Massachusetts. She enjoys a variety of outdoor recreational activities, including

jogging, hiking, cycling, and kayaking. Before November 17, 2018, Ms. Moulding was in good

health and never had any medical issues with her left hand, elbow, or shoulder or her neck.

On November 17, 2018, Mr. Brown was a City Carrier Assistant (“CCA”) with the

United States Postal Service (“USPS”), who had been working for the USPS since the late

summer of 2018. He was familiar with the LLV and had been adequately trained in how to

safely operate the vehicle.

The LLV is different from an ordinary American vehicle in two main ways.2 First, the

driver sits on the right side. Second, it has seven mirrors, located at various places on the

vehicle. As is relevant here, Mirror #3 (the “Mirror”)—which is called a “pot lid mirror”

presumably because it is shaped like the lid of a kitchen pot—is located on the front left section

of the hood and protrudes slightly past the front bumper.

2 During trial, the Court viewed the actual LLV involved in the incident.

B. The Incident

On Saturday November 17, 2018, Mr. Brown began the day delivering mail on foot.

After finishing his route, Mr. Brown was assigned to meet another CCA so that he could

complete a portion of that CCA’s route. Accordingly, sometime during the afternoon,

Mr. Brown got into the LLV and drove to meet the other CCA. The portion of the other CCA’s

route that Mr. Brown was assigned to complete included Hathaway Street in Wareham,

Massachusetts. Hathaway Street is a two-lane, paved road. It is relatively heavily-trafficked, the

speed limit is approximately 35 miles per hour, and there is no sidewalk.

Once he collected the mail from the other CCA, Mr. Brown proceeded to drive down the

odd-numbered side of Hathaway Street to make his deliveries. When he reached 219 Hathaway

Street, he made a right turn into the driveway and drove towards the house.3 Once he got near

the house, he executed a three-point turn so that the LLV was facing Hathaway Street, parked the

vehicle, turned it off, and made his delivery. After making the delivery, he got back into the

LLV and drove down the driveway towards Hathaway Street. Because his next delivery stop

was in the same direction that he had been traveling before stopping at 219 Hathaway, he needed

to make a right turn out of the driveway to get back onto Hathaway Street going in the correct

direction. He stopped the LLV near the end of the driveway, intending to turn right onto

Hathaway Street when there was an opening in the oncoming vehicular traffic coming from his

left. From where he stopped in the driveway, his view of the oncoming traffic was at least

partially obstructed by brush, foliage, and a telephone pole to the left of the LLV. To get a better

view, he moved the LLV forward a few feet towards Hathaway Street and stopped again.

3 Mr. Brown testified that although driving onto private property, like a driveway, is against

USPS policy, he did so that day at 219 Hathaway Street because he viewed it as the safest course

of action and the parcel he was delivering was too large to fit into the road-side mailbox.

Meanwhile, that same day, in the early afternoon, Ms. Moulding, an experienced

recreational runner, went jogging on one of her favorite routes: Dinah’s Way. Dinah’s Way is a

roughly 2-mile route that required Ms. Moulding to (1) run down Lincoln Hill Terrace, (2) make

a left on Main Street, (3) make a left on Hathaway Street, (4) loop around Dinah’s way, (5) turn

right on Hathaway Street, (6) turn right on Main Street, and (7) run back up Lincoln Hill Terrace

to her home. As she typically did, she was listening to music on her iPod and running against

traffic.

About four minutes into her run, Ms. Moulding turned left onto Hathaway Street. When

she made the turn, she began running on the paved surface of the road, about six inches from the

edge and against traffic, which she understood to be safer because it allowed her to see oncoming

cars. She scanned Hathaway Street and noticed the LLV, ahead of her and to her left. The LLV

was in the driveway at 219 Hathaway Street, on the same side of the road that she was running

on, facing the street. The vehicle was stationary, and by her estimation, about one tenth of a mile

away. As she approached the LLV, she slowed down to assess the situation and determine

whether it was safe to run past the vehicle. She attempted to make eye contact with Mr. Brown,

but was unable to do so as she was on his right, and he was looking left to gauge the traffic

coming from that direction. Even though she did not make eye contact with Mr. Brown (or

otherwise get his attention), she determined that it was safe to proceed, and began to jog in front

of the LLV.

What happened next and how it happened are the key disputed facts in this case. It is

undisputed that Ms. Moulding and the vehicle collided, but whether or not the vehicle was

moving at the time of impact is disputed. Ms. Moulding testified that when she was roughly

halfway across the front of the LLV, it began to move forward and turn right, and the Mirror

caught the inside of her left arm. Mr. Brown maintains that the vehicle was stationary and that

Ms. Moulding banged the outside of her left arm on the protruding Mirror of the motionless LLV

as she ran by it. At trial, both Ms. Moulding and Mr. Brown were credible witnesses, and the

Court firmly believes that neither purposefully provided untruthful testimony. Their differing

accounts merely reflect the fact that the incident, which was over in a matter of seconds, was

undoubtedly startling and stressful for both (and occurred nearly three years ago). Still, it is the

Court’s job to make findings of fact, and, here, the Court finds that the LLV was inching forward

when the Mirror struck the inside of Ms. Moulding’s left arm.4 More specifically, the Court

finds that Mr. Brown was looking to his left to view oncoming traffic, did not look to his right to

determine whether there were any pedestrians, and began to inch forward and initiate his right

turn onto Hathaway Street. When the LLV started to move, Ms. Moulding, who was by then in

front of it, was startled by the movement, accelerated to attempt to avoid the vehicle, and raised

her left arm in a defensive movement. Despite her efforts, the Mirror caught the inside of her left

arm. She did not fall to the ground or get dragged, and no other part of her body came into

contact with the vehicle.5

4 The Court’s conclusion is supported by other record evidence. Immediately after the collision,

Ms. Moulding approached Mr. Brown and told him to be more careful, to which he said either

nothing or that he was sorry. If Ms. Moulding had hit her arm on a non-moving vehicle, she

would not have told Mr. Brown to be more careful and Mr. Brown would have pointed out to her

that his vehicle was stationary. Additionally, Mr. Brown essentially conceded at trial that he

should have been more careful, which would make sense only if the LLV was moving. Finally,

Mr. Brown’s testimony that Ms. Moulding hit the outside of her arm on the Mirror is inconsistent

with the Mouldings’ testimony, and Ms. Moulding’s medical records, concerning the location of

the bruise on her arm.

5 With respect to the precise sequence of events, it is difficult to stitch together exactly what

happened when. While Ms. Moulding testified that the LLV was motionless from the time she

first saw it from the top of the hill on Hathaway Street until it struck her, Mr. Brown testified that

Ms. Moulding hit the Mirror within a few seconds of his moving the LLV forward after his

initial stop in order to obtain a better sightline. As best as the Court can tell, the events unfolded

After untangling her arm from the Mirror, Ms. Moulding approached Mr. Brown, and the

two had a brief discussion. Although Ms. Moulding and Mr. Brown offered significantly

differing accounts of their conversation,6 they agree that Ms. Moulding told Mr. Brown that he

needed to be more careful and that he either said nothing or that he was sorry. Ms. Moulding

then left the scene, resumed her running route, and returned home. Before continuing his mail

route, Mr. Brown stayed in the driveway for a while to confirm that Ms. Moulding was okay and

to compose himself.

C. Post-Incident Events

Upon returning home, Ms. Moulding told Mr. Moulding about the incident. Both

Mouldings observed a bruise on the inside of her left arm.7 Over the next few days,

Ms. Moulding’s left arm was sore and painful.

On November 28, 2018, Ms. Moulding saw her primary care physician, Dr. Ken

Gendreau, about her left arm.8 Then, between December 2018 and March 2020, seeking relief

as follows: (1) Mr. Brown made his initial stop about five or six feet from Hathaway Street;

(2) Mr. Brown moved the LLV forward to get an unobstructed view and stopped again, a foot or

two away from Hathaway Street; (3) Ms. Moulding began to cross in front of the LLV, on the

edge of Hathaway Street; (4) without looking to his right, Mr. Brown began to inch forward to

make a right turn; and (5) the Mirror hit Ms. Moulding. In any event, regardless of whether the

LLV struck Ms. Moulding after its first stop or after its second stop, the Court finds that the LLV

was moving when the Mirror struck Ms. Moulding’s left arm.

6 Although not material, the Court credits Mr. Brown’s testimony that he responded to

Ms. Moulding’s questions.

7 Her arm was still bruised when she visited her doctor on November 28, 2018.

8 Ms. Moulding first reported the incident to the USPS on November 26, 2018. At trial, the

Government attempted to discredit Ms. Moulding’s testimony by pointing out that she did not

(1) call the police following the incident, (2) insist that Mr. Brown call his supervisor following

the incident, (3) report the incident to USPS until November 26, 2018, or (4) see a doctor until

November 28, 2018. The Court credits Ms. Moulding’s testimony that, initially, she did not

think that her pain and other symptoms would last as long as they did. Additionally, the incident

from her pain and other symptoms, Ms. Moulding saw a host of physicians, with varying areas of

expertise: (1) Dr. Christian Dee (an orthopedic surgeon); (2) Dr. Andrew Mazur (a physiatrist);

(3) Dr. Andrew Rogers (an orthopedic surgeon); (4) Dr. Anthony Wong (a pain management

specialist); (5) Dr. Simon Cornelissen (an orthopedic surgeon); (6) Dr. Ryan Murphy (an

orthopedic surgeon); and (7) Dr. Walter Sussman (a physiatrist).9 Ms. Moulding consistently

reported the same symptoms related to her left shoulder, elbow, hand, and fingers, including

pain, numbness, coldness, and tingling, but none of the physicians were able to definitively

diagnose the problem. Most of the objective tests that Ms. Moulding’s doctors administered—

including two electromyograph tests (“EMGs”), the gold standard for objectively measuring

nerve damage—came back negative (i.e., normal).10 Still, none of her physicians expressed any

suspicions that Ms. Moulding was malingering. In March 2020, Dr. Sussman performed a

hydrodissection injection procedure on Ms. Moulding. The procedure gave her complete relief

occurred five days before Thanksgiving, which is a busy time of year for Ms. Moulding

personally and professionally. In sum, it was reasonable for Ms. Moulding to take a

wait-and-see approach with respect to her injury, and the Court does not view Ms. Moulding’s

lack of urgency as evidence that she was not actually injured.

9 She also saw physical therapists and physical therapy assistants. Ms. Moulding testified that

these physical therapy sessions alleviated some of her symptoms in the short-term, but that she

did not obtain permanent relief. During trial, the Government highlighted the fact that the

records from her physical therapy sessions show that Ms. Moulding reported progressively lower

levels of pain, her ability to complete day-to-day tasks was largely unimpeded, and further, that

she did not get massage therapy or see a chiropractor as recommended by Dr. Dee, suggesting

that she would have done so if she were still experiencing discomfort.

10 Although the parties did not move the results from the second EMG into evidence, they agree

that it was taken and came back normal.

for approximately five months, but then her symptoms returned. She visited Dr. Sussman again

in August 2020 to discuss the possibility of another hydrodissection injection.11

Ms. Moulding still experiences the same symptoms. She plans to get another

hydrodissection injection, but has not yet done so because of the COVID-19 pandemic.

Although the Government theorizes that the impact with the LLV caused a bruise which healed

quickly and that Ms. Moulding was thereafter either malingering or suffering renewed pain

because of a subsequent injury, perhaps related to her home office set up, the Court finds her

testimony about the pain and its cause to be credible. The Court further finds that her efforts to

get relief were consistent and appropriate, albeit a bit circumscribed by the pandemic.

III. CONCLUSIONS OF LAW

For the reasons set forth below, the Court finds that (1) Mr. Brown was negligent,

(2) Ms. Moulding’s own negligence contributed to her injury, and (3) Ms. Moulding is entitled to

compensatory damages.

A. Liability

Under the FTCA,

the district courts, together with the United States District Court for the District of

the Canal Zone and the District Court of the Virgin Islands, shall have exclusive

jurisdiction of civil actions on claims against the United States, for money damages,

accruing on and after January 1, 1945, for injury or loss of property, or personal

injury or death caused by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office or 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.

11 At trial, the Government highlighted the fact that Dr. Sussman’s notes from the August 2020

appointment state that Ms. Moulding attributed her recurrent symptoms to “her new work set up

at home due to the coronavirus pandemic.” Ms. Moulding denied reporting that her symptoms

were caused by her home office. Regardless of what she told Dr. Sussman, the Court finds that

the home office set up may have exacerbated her symptoms, but it was not the cause of the

injury.

28 U.S.C. § 1346(b)(1). Here, the parties agree that Mr. Brown was a government employee

acting within the scope of his employment at the time of the incident. Accordingly, the key

question is whether Ms. Moulding’s personal injury was caused by Mr. Brown’s “negligent or

wrongful act or omission.” Because the incident occurred in Massachusetts, Massachusetts tort

law applies. See id.

1. Mr. Brown’s Negligence

In a negligence action, the plaintiff “has the burden of proving each and every element of

that claim: duty, breach of duty (or, the element of negligence), causation (actual and proximate)

and damages.” Ulwick v. DeChristopher, 582 N.E.2d 954, 958 (Mass. 1991). “Under

Massachusetts law, an operator of an automobile is under a duty to exercise reasonable care in

the operation of his or her vehicle.” Deguio v. United States, 732 F. Supp. 1240, 1245 (D. Mass.

1990). An individual breaches that duty “if he, either by act or omission, failed to exercise the

degree of care that a reasonably prudent driver would have exercised under the same driving

conditions and circumstances that [he] faced on the [day of the accident].” Id. Still, “[t]he mere

happening of an accident between a motor vehicle and a pedestrian, where the circumstances

immediately preceding it are left to conjecture, is not sufficient to prove negligence on the part of

the operator of the vehicle.” Spano v. Wilson Tisdale Co., 279 N.E.2d 725, 727 (Mass. 1972).

“Causation has traditionally involved two separate components: the defendant had to be both a

factual cause (or ‘cause in fact’) and a legal cause of the harm.” Doull v. Foster, 163 N.E.3d

976, 982–83 (Mass. 2021). “Generally, a defendant is a factual cause of a harm if the harm

would not have occurred ‘but for’ the defendant’s negligent conduct.” Id. at 983. “Additionally,

for the defendant to be liable, the defendant must also have been a legal cause of the harm. This

means that the harm must have been ‘within the scope of the foreseeable risk arising from the

negligent conduct.’” Id. (quoting Leavitt v. Brockton Hosp., Inc., 907 N.E.3d 213, 220 (Mass.

2009)).

Here, Ms. Moulding has carried her burden. First, as a driver, Mr. Brown owed

Ms. Moulding a duty to drive the LLV with reasonable care. See Deguio, 732 F. Supp. at 1245.

Second, the Court finds that by failing to look to his right before moving the vehicle, Mr. Brown

“failed to exercise the degree of care that a reasonably prudent driver would have exercised

under the same driving conditions and circumstances that [he] faced on [November 17, 2018].”

Id. In other words, he should have looked both ways for potential dangers, including both

vehicles and pedestrians, before pulling onto a busy road from an intersecting driveway. The

Court acknowledges that Hathaway Street (1) did not have a sidewalk, which may have led

Mr. Brown to discount the possibility of a pedestrian approaching his vehicle, and (2) was

well-trafficked, which meant that he needed to pay significant attention to the cars coming from

his left as he prepared to make a right turn. Nonetheless, Mr. Brown should have confirmed that

there were no pedestrians in the LLV’s path before inching forward. Accordingly, his failure to

do so was a breach of his duty to exercise reasonable care.12 Third, the Court finds that

Mr. Brown’s negligence was both a but-for cause and a proximate cause of Ms. Moulding’s

injury. As to but-for causation, if Mr. Brown had not inched forward without looking both ways,

the Mirror would not have hit Ms. Moulding’s arm. As to proximate causation, hitting a

12 At trial, Ms. Moulding elicited testimony from Mr. Brown that, following the accident, his

driving privileges were revoked, and he was required to re-complete a defensive driving course.

The Government objected, citing Federal Rule of Evidence 407, which provides that “[w]hen

measures are taken that would have made an earlier injury or harm less likely to occur, evidence

of the subsequent measures is not admissible to prove . . . negligence . . .” Fed. R. Evid. 407.

The Court overruled the Government’s objection, finding that the USPS’s post-incident action

was not a subsequent remedial measure, but rather arguably evidence of acknowledged fault. In

any event, the Court did not rely on those facts in making its liability determination and

commends the USPS on its prudent and timely response.

pedestrian is unquestionably within the scope of the foreseeable risk of failing to look both ways

before pulling out of a driveway. Finally, as discussed infra, the Court finds that Ms. Moulding

has met her burden of demonstrating damages. Because Ms. Moulding has established all four

elements of a negligence claim under Massachusetts law, the Government is liable under the

FTCA.

2. Ms. Moulding’s Contributory Negligence

Under Massachusetts law, a tort plaintiff cannot recover if he or she was negligent and

more than fifty percent at fault for the accident. See Brillante v. United States, 449 F. Supp. 597,

600 (D. Mass. 1978) (“[A] plaintiff is precluded from recovering whenever his negligence is a

proximate cause of the accident and exceeds 50%.”); Shantigar Found. v. Bear Mountain

Builders, 804 N.E.2d 324, 328 n.4 (Mass. 2004) (“[T]he plaintiff in a single-defendant case may

not recover if found to be more than fifty per cent at fault.”). If a plaintiff is negligent, but is less

than fifty percent responsible, his or her damages shall be reduced in proportion to his or her

comparative fault. Mass. Gen. Laws ch. 231, § 85 (“Contributory negligence shall not bar

recovery in any action by any person or legal representative to recover damages for negligence

resulting in death or in injury to person or property, if such negligence was not greater than the

total amount of negligence attributable to the person or persons against whom recovery is sought,

but any damages allowed shall be diminished in proportion to the amount of negligence

attributable to the person for whose injury, damage or death recovery is made.”).

Here, although Mr. Brown should have looked both ways before moving the LLV,

Ms. Moulding similarly should not have run across the front of a vehicle that was positioned to

pull out of a driveway and onto a road that had significant oncoming traffic without ensuring that

Mr. Brown was aware of her, either by making eye contact with him or verbally alerting him to

her presence. As Ms. Moulding acknowledged, she knew that best practices required her to

make eye contact and she attempted to do so, albeit unsuccessfully. Accordingly, the Court finds

that Ms. Moulding was contributorily negligent.

With respect to precisely what percentage of the blame Ms. Moulding bears, the Court

notes that apportioning blame is, by nature, an inexact science. Based on its assessment of the

evidence, the Court finds that Ms. Moulding was thirty percent responsible for the incident.

B. Damages

Having decided liability, the Court must determine damages. “The rule of damages is a

practical instrumentality for the administration of justice. The principle on which it is founded is

compensation. Its object is to afford the equivalent in money for the actual loss caused by the

wrong of another.” Daniels v. Celeste, 21 N.E.2d 1, 2 (Mass. 1939).

Generally, the measure of damages in negligence for personal injury is fair

compensation for the resulting injuries, which includes pain and suffering;

reasonable expenses incurred for medical care and nursing in the treatment and cure

of the injury; diminution in earning capacity; and pain and suffering and such

medical expenses and diminution in earning capacity as are shown to be reasonably

probable to continue in the future.

Donovan v. Philip Morris USA, Inc., 914 N.E.2d 891, 899 (Mass. 2009). Here, Ms. Moulding

seeks two forms of damages: medical expenses and pain and suffering.

As to medical expenses, Ms. Moulding asserts that her medical expenses totaled roughly

$11,300. Neither party spent any time discussing medical expenses at trial, and the Government

does not seem to dispute the accuracy of this figure.

With respect to pain and suffering, Ms. Moulding testified that since the incident, she has

felt pain, numbness, tingling, and coldness in her left shoulder, elbow, hand, and fingers.

Because of these symptoms, she (1) has difficulty sleeping comfortably, (2) feels like she cannot

“be present” at home or at work, (3) derives less joy from recreational activities, including

jogging and cycling, than she used to, and (4) is generally less happy than she used to be.

Mr. Moulding corroborated his wife’s testimony regarding the effect of the incident on her

lifestyle and mood, noting that, since November 2018, she has had less energy, is less optimistic,

and has had trouble sleeping.

Additionally, each party offered expert testimony concerning damages. Ms. Moulding’s

expert, Dr. N. George Kasparyan, an orthopedic surgeon, reviewed Ms. Moulding’s medical

records and examined her on February 26, 2021. Based on his examination, Dr. Kasparyan

diagnosed Ms. Moulding with a variety of ailments, including cubital tunnel syndrome,

intermittent brachial neuritis, and tardy ulnar nerve palsy, which he attributed to the LLV

incident, and concluded that she suffered a twenty-five percent permanent impairment to the left

upper extremity.13 The Government’s expert, Dr. Errol Mortimer, also an orthopedic surgeon,

reviewed Ms. Moulding’s medical records and responded to Dr. Kasparyan’s report, but did not

examine Ms. Moulding. Dr. Mortimer opined that: (1) Ms. Moulding bruised her left shoulder

and ulnar nerve, (2) her symptoms should have resolved relatively quickly, (3) no objective

medical tests have demonstrated any specific pathology, (4) her ongoing complaints are

inconsistent with both her medical records and her injury (i.e., her ongoing symptoms defy

medical explanation),14 and (5) Dr. Kasparyan misapplied the American Medical Association

13 During trial, Dr. Kasparyan admitted that in his report, he had mistakenly written that

Ms. Moulding’s EMG tests were positive for ulnar nerve irritation when they were, in fact,

negative. He nevertheless testified that the negative EMG tests would not alter his opinion

because nerve problems do not always show up on EMG tests.

14 Dr. Mortimer did not, however, express a belief that Ms. Moulding is faking or exaggerating

her symptoms.

(“AMA”) guidelines when calculating Ms. Moulding’s twenty-five precent permanent

impairment rating.15

Ultimately, based on its consideration of all the evidence, including the testimony of the

two experts, the Court concludes that Ms. Moulding is entitled to $66,300 in damages, which

includes $11,300 in medical expenses and $55,000 for her past and future pain and suffering.16

Because of the incident, Ms. Moulding has fairly consistently dealt with pain, numbness,

tingling, and coldness, and has generally found less joy in life because of those symptoms.

Although she has continued to work, seems capable of handling day-to-day tasks, and still

engages in some of her favored recreational activities, doing so has been more difficult. The

Court views $55,000 as adequate compensation for Ms. Moulding’s past and (reasonably

probable) future pain and suffering.17 In light of the Court’s finding regarding contributory

negligence, Ms. Moulding’s total recovery will be reduced by thirty percent, and judgment will

15 When asked what impairment rating, if any, he would assign to Ms. Moulding, Dr. Mortimer

testified that, assuming Ms. Moulding’s complaints are valid and that Dr. Kasparyan’s diagnoses

were correct, her left upper extremity permanent impairment would be nine percent, as properly

calculated under the AMA guidelines. Dr. Mortimer qualified this testimony by noting that he

would not himself calculate an impairment rating without first examining Ms. Moulding.

16 With respect to the parties’ dueling experts, the Court is skeptical that Dr. Kasparyan correctly

applied the AMA guidelines when calculating Ms. Moulding’s permanent impairment rating.

Additionally, he failed to acknowledge the positive effects of Ms. Moulding’s physical therapy

and mischaracterized her EMG results. As to Dr. Mortimer, although he testified that

Ms. Moulding’s symptoms defy medical explanation, the fact remains that prior to the collision,

she was in good health and since the incident—apart from a five-month respite brought on by her

hydrodissection injection—she credibly reports chronic pain and other symptoms in her left arm.

Further, there is no evidence in the record pointing to another event, before or after the collision,

that would explain her ongoing symptoms.

17 The Court notes that the hydrodissection injection administered by Dr. Sussman completely

alleviated Ms. Moulding’s symptoms for five months. Neither party offered evidence regarding

how often hydrodissection injections can be administered, how costly they are, and whether they

diminish in effectiveness over time (i.e., whether the second injection provides less relief than

the first).

therefore enter in Ms. Moulding’s favor in the amount of $46,410 (i.e., seventy percent of

$66,300).

IV. CONCLUSION

Accordingly, for the reasons stated above, the Government is liable under the FTCA, and

a $46,410 judgment will enter in Ms. Moulding’s favor.

SO ORDERED

July 20, 2021 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE