STRINGFELLOW v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBIN STRINGFELLOW, )

)

Plaintiff, )

)

v. ) Civil Action No. 18-733

)

UNITED STATES OF AMERICA, )

)

Defendant. )

MEMORANDUM OPINION

Robin Stringfellow (“Plaintiff”) was injured when a car in which she was a passenger

collided with a vehicle driven by a United States Army officer. In this negligence action filed under

the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) et seg. (“FTCA”), she seeks compensatory

damages from the United States of America (“Defendant”). Pending before the Court are parties’

motions for partial summary judgment. For the reasons that follow, Defendant’s motion (ECF No.

33) will be denied, and Plaintiff's motion (ECF No. 37) will be granted in part and denied in part.!

I. PROCEDURAL HISTORY

In March 2017, Plaintiff submitted an administrative claim related to this accident to the

United States Army as required by 28 U.S.C. § 2675, and subsequently filed the instant

! Under the Federal Magistrate Judges Act, “[u]pon consent of the parties, a full-time United States

magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil matter and order

the entry of judgment in the case, when specially designated to exercise such jurisdiction by the

district court.” 28 U.S.C. § 636(c)(1). Consent of all parties to a case gives the magistrate judge

full “authority over dispositive motions, conduct of trial, and entry of final judgment, all without

district court review.” Roell v. Withrow, 538 U.S. 580, 585 (2003). Both parties consented to the

magistrate judge’s jurisdiction. (ECF Nos. 9, 13.)

Complaint.” (ECF No. 1.) After the close of discovery, the parties both moved for partial summary

judgment, and their motions have been fully briefed. ECF Nos. 34, 38, 42, 45, 48, 49.)

II. | FACTUAL BACKGROUND?

A. The Accident

This litigation arises out of an accident that occurred on October 16, 2015. (Defendant’s

Statement of Facts (“Def.’s SOF”), ECF No. 35 § 2; Plaintiff's Response to Def.’s SOF (“PI.’s

Response”), ECF No. 46 § 2; Plaintiff's Statement of Facts (“PI.’s SOF”), ECF No. 39 § 2;

Defendant’s Response to Pl.’s SOF (“Def.’s Response”) ECF No. 43 § 2).)* On the day of the

accident, Plaintiff was a passenger in the back seat of her daughter’s car when it collided with the

vehicle driven by a United States Army officer, Earnest Nicholson. (Def.’s SOF § 2.) Nicholson

had proceeded from a stop sign and was attempting to cross two lanes of traffic. (Pl.’s SOF {if 7,

9.) Nicholson admitted that his vision was obstructed by traffic as he pulled into the intersection

and entered the lane of the car driven by Plaintiffs daughter. (P1.’s SOF {ff 8, 9.) He further asserts,

however, that the conduct of Plaintiff's daughter was the cause of the accident, in part because he

? Section 2675 provides that “[a]n action shall not be instituted upon a claim against the United

States” for damages 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, unless the claimant shall

have first presented the claim to the appropriate Federal agency... .” 28 U.S.C. § 2675(a). If the

agency denies the claim or fails to resolve it within six months, as is the case here, the claimant

then may file an action with respect to her claim in a district court. Jd.

3 The facts set forth herein are from evidence that is either undisputed as indicated by the parties

or otherwise supported by the record. In addition, where relevant and appropriate, disputed facts

are also identified. Disputed facts are viewed in the light most favorable to the nonmoving party

in accordance with Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

4 For the remainder of this section, the Court omits separate citations to Plaintiff's Response where

Plaintiff unequivocally admits to a fact contained in Defendant’s Statement of Facts. Similarly,

the Court omits separate citations to Defendant’s Response to Plaintiffs Statement of Facts where

Defendant unequivocally admits to a fact contained in Plaintiff's Statement of Facts. The Court

further omits duplicative citations to both parties’ statements of facts where the parties allege

identical facts.

alleges that she was speeding. (Def.’s Response § 9.) It is disputed whether Plaintiff's daughter

was traveling over the speed limit at the time of the accident. (Def.’s SOF { 3; Pl.’s Response □□ 3.)

At the time of the accident, Plaintiff lived with her son and was covered by his limited tort

insurance policy. (Def.’s SOF □□□ 64, 65.)

B. Investigation of Accident

Pursuant to U.S. Army regulations, the Pennsylvania National Guard conducted a

“Financial Liability Investigation of Property Loss” and recommended to the General Services

Administration (“GSA”) that Nicholson “re-take accident avoidance course for further training”

and be held financially liable for damage to the Army vehicle involved in the accident. (Pl.’s SOF

11, 12; Def.’s Response 11, 12.) This recommendation was based on the investigator’s

findings, which were principally grounded on his review of the police report, that Nicholson was

at fault for pulling out in front of the other driver and that there was no evidence that the other

driver, i.e., Plaintiff's daughter, was at fault. (Pl.’s SOF § 11.)

After Nicholson sought reconsideration, the Pennsylvania National Guard’s Office of the

Staff Judge Advocate found the Financial Liability Investigation involving the

“loss/damage/destruction” of Nicholson’s GSA vehicle “legally sufficient” and determined that:

“(t]he proceedings comply with the legal requirements of AR 735-5”; [a] preponderance of the

5 Defendant objects to the use of the Pennsylvania National Guard’s reports to prove that Nicholson

was solely at fault for the accident, “because said reports contain inadmissible hearsay, to which

no exception applies.” (Def.’s Response fff 11, 12, 14, 16.) “[H]earsay statements can be

considered on a motion for summary judgment if they are capable of admission at trial.” FOP v.

City of Camden, 842 F.3d 231, 238 n.14 (3d Cir. 2016) (quoting Shelton v. Univ. of Med. &

Dentistry of N.J., 223 F.3d 220, 223 n.2 (3d Cir. 2000)), Plaintiff asserts that the challenged reports

are admissible under either Federal Rule of Evidence 801(d)(2), i.e., admission by a party-

opponent, or Federal Rule of Evidence 804(b)(3), the statement against interest exception.

Defendant notes that the investigation and report were prepared by the Pennsylvania National

Guard, not the United States, and were based upon an inadmissible police report. This issue will

be addressed at a later point in this opinion.

evidence supports the findings”; and “[t]he apppointing [sic] authority’s recommendations are

consistent with the findings.” ((Pl.’s SOF § 13; Def.’s Response § 16.) The GSA charged

Nicholson $4,174.63 for the loss of government property. (Def.’s Response {| 12.)

C. Plaintiff's Injuries and Treatment

As a result of the accident, Plaintiff injured her left (non-dominant) arm and was

transported to the Uniontown Hospital, where x-rays revealed a spiral fracture of the shaft of her

left humerus. (Def.’s SOF [§ 5, 7, 8.) At Plaintiff's request, she was transferred that evening from

Uniontown Hospital to West Virginia University’s Ruby Memorial Hospital (“Ruby”). (/d. 10.)

At Ruby Hospital, hospital personnel confirmed a mid-distal comminuted spiral fracture of

Plaintiff's left humerus. (Jd. § 12.) The next day, Plaintiff elected to have the fracture repaired

surgically and Dr. John France performed an open reduction internal fixation (“ORIF”) procedure,

which involved the insertion of several screws and a plate along the shaft of Plaintiffs humerus.

(Id. □□ 13-14.) Plaintiff's radial nerve was identified and protected throughout the procedure. Ud.

16.)

Plaintiff was discharged from the hospital the following day with a six-week prescription

for pain medication and instructions for changing the dressing on her surgical wound. (Ud. § 17.)

At that time, Plaintiff informed hospital personnel that she was leaving town soon and was

instructed to make a follow-up appointment upon her return. (/d. {| 18.) Several days after her

discharge, Plaintiff flew to Alabama for a pre-scheduled vacation to her parents’ house. Ud. Jf 19,

20.) While there, Plaintiffs surgical wound became infected prompting her to twice visit an urgent

care facility. (Id. § 22.) The infection was treated with antibiotics and the staff at the urgent care

had to express purulence and remove stiches from the wound. (P1.’s Response § 22.) By the time

Plaintiff returned home from her vacation, the infection and the associated stitch abscess had

resolved. (Def.’s SOF Jf 22, 26.)

Upon her return, Plaintiff had four follow-up appointments for the ORIF procedure. Ud. {|

25.) Plaintiff's progress notes from those visits indicate that she initially complained about some

radial nerve palsy, weakness, achiness, and hypersensitivity. Ud. § 27.) Records from Plaintiffs

first visit on November 12, 2015 reflect that she had minimal pain complaints and had been

working on range of motion; the incision was well-healed; she was lacking about 5 degrees of full

extension and had flexion to 110 degrees; and maintained a 5-pound lifting restriction with the left

arm. (Id. § 26.) Plaintiff was encouraged to work on range of motion of both her left shoulder and

left elbow and to work on her forward flexion, but no additional treatment or medication was

prescribed. (/d.)

At the second follow-up visit on December 3, 2015, it was noted that Plaintiff was about 5

degrees short of full extension and lacked 5 degrees of full flexion but was able to flex from about

5 to 95 degrees. (Jd. at 27.) Plaintiff was advised to massage and work on desensitizing the left

upper extremity at the incision and in the hand. (/d.) The notes from this visit reflect that Plaintiff

was healing well; she could be weaned up to activity as tolerated with no limitations on weight

bearing; there was no reason to prescribe further pain medication for her arm; and her radial nerve

palsy was improving. (/d.; ECF No. 36-8 at 6.)

At her third visit on January 14, 2016, Plaintiff's radial nerve palsy was almost fully

resolved and while she still had a little bit of hand weakness and hypersensitivity, she was pleased

with her progress. (Def.’s SOF § 28.) She had full range of motion of her elbow and her motor

exam was normal with the exception of finger extensions, which were 4+/5 in comparison to the

5S

right. (Id.) The x-rays of Plaintiff's left arm reflected that the fracture was consolidating nicely.

(Id.) She was advised that she was doing well and could engage in more activity as tolerated. (/d.)

At her final follow up visit on April 14, 2016, it was noted that Plaintiffs fracture had

healed nicely, and that her radial nerve, as well as her wrist, finger, and thumb extensors, were all

recovered. (/d. at 29.) Dr. France’s notes from this visit state:

I suspected that the left arm is not quite as robust looking as the right. She just needs

to keep working on her strengthening. It sounds like her son has gotten her some

dumbbells and she should continue to work on that to get her strength back. This

should come over time. No restrictions on activity and she has full normal use. We

see her back as needed. She can feel the hardware over the end of the plate over the

posterior aspect of the capitellum and we talked about removing this if this ever

became a problem. Unfortunately, we would have to take the whole plate out to get

that out including mobilize the radial nerve, which we know is not a healthy nerve

from the injury. At this point she does not want to consider that and would have to

be very cautious about that if she need [sic]. She will call us back as needed.

(ECF No. 36-8 at 10.)

Plaintiff has not seen a doctor for treatment related to her arm since the April 14, 2016

visit.® (Id. § 35.) However, according to the expert report of Plaintiff's medical expert, Victor R.

Prisk, M.D., Plaintiff was seen by a plastic surgeon, Dr. Linda Camp, on April 24, 2019, for

documentation of a scar and disfigurement of her left upper arm. (ECF No. 46-15 at 6.) She has

not been prescribed or taken any pain medication for her arm since her original post-operative

prescription. (Def.’s SOF § 36.) Plaintiff has no current plans to see a doctor or any scheduled

treatments for her arm. Ud. {{§ 75-76.)

Both parties have submitted expert reports regarding Plaintiff's medical condition. In a

July 2, 2019 report authored by Plaintiff's expert, Dr. Prisk, he provides a recitation of Plaintiffs

6 Plaintiffs assertion that her left arm was “examined” by her primary care physician on multiple

occasions after April 2016 (Pl.’s Response §§ 30-33, 35) is not supported by the record. The

notations Plaintiff cites are mere copies of earlier entries from a February 2016 medical history.

They do not reflect a string of separate “examinations.”

complaints, which include that her left arm is “very weak and deformed,” that her arm “gives out,”

and she experiences pain at a level of 5 out of 10 at its worst. (ECF No. 46-15 at 2.) He notes that

Plaintiff was seen by Dr. Camp in April 2019, who measured her scar to be 30 cm in length, 2 mm

in width and includes a 2 cm depression deformity with discoloration. (/d. at 6.)

Dr. Prisk opines, among other things, that:

[Plaintiff's] injury, and the surgery that followed, resulted in a radial nerve palsy and

residual stiffness, weakness, atrophy, scarring and posttraumatic arthritis symptoms in the

left upper extremity. She continues to have pain, loss of motion, and strength, and radial

nerve symptoms and signs in the left arm, elbow, and hand. These symptoms, particularly

the weakness and pain, result in disruption of activities of daily living that contributes to

her stress and anxiety. She has complaints of depression and anxiety over the deformity of

the left upper extremity with the long scar and disfigurement from the muscle atrophy. This

deformity is a direct result of the need for open reduction and internal fixation of her

humeral shaft fracture, the subsequent scarring, and radial nerve injury. This disfigurement

is permanent and irreparable. The nerve palsy is also permanent and results in disability

affecting the hand for dexterity, manipulating objects, grasping, and lifting.

(Ud. at 8.)

Patrick J. McMahon, M.D., Defendant’s medical expert, comes to a different conclusion.

He finds that the radial nerve was not damaged as a result of the accident and was intact at the time

of surgery. (ECF No. 36-10 at 3.) He opines that Plaintiff has fully recovered from the fracture of

her left arm as well as any associated radial nerve neuropraxia as a result of the motor vehicle

accident, and that she requires no further medical care for these conditions. (/d. at 4.) He also

opines that any weakness in her left arm and atrophy are not uncommon but “need not be

permanent.” (/d.at 3.) Dr. McMahon further states that there is nothing that medically precludes

Plaintiff from strengthening her arm and regaining muscle mass and she can reduce the difference

in the circumference of her arms by performing strengthening exercises. (/d. at 4.)

D. Plaintiff's Current Limitations and Appearance

Plaintiff claims that as a result of the accident she continues to have problems with her arm,

including not being able to cook as much as she used to, bath her youngest grandchild or buy

groceries alone. (Def.’s SOF § 51.) She also has difficulty lifting things and folding clothes. □□□□

51; Pl.’s Response §§ 51, 52.) She is unable to lift anything that weighs more than a half-gallon of

milk. (Def.’s SOF § 51; Pl.’s Response § 51.) On the other hand, she is able to drive, type for short

periods of time, and grasp and lift objects with her left hand that weigh less than a half-gallon of

milk and regularly care for her three grandchildren. (Def.’s SOF {J 52-56; Pl.’s Response {f 54,

55, 56.)

As aresult of the ORIF procedure, Plaintiff has a scar on her upper left arm which she can

cover by wearing clothing with sleeves. (Def.’s SOF □□ 60-61.) She suffers from atrophy of her

left arm and the circumference of her left upper arm measures approximately 2 centimeters (over

three-quarters of an inch) less than the circumference of her right upper arm. (Plaintiffs Counter

Statement of Facts (ECF No. 46 at 12-13 (“Pl.’s CSOF”) § 1; Defendant’s Response to Pl. CSOF

(“Def.’s Res. to Pl.’s CSOF”), ECF No. 49 4 1.)’

E. Plaintiff's Medical History Prior to the Accident

Prior to the accident, Plaintiff was diagnosed with and/or receiving treatment for, inter alia,

chronic pain, degenerative disk disease, spinal disease/scoliosis, stenosis, bulging disk, bone spurs,

rheumatoid arthritis, diabetes, anxiety, depression, and Cushing’s Syndrome. (Def.’s SOF § 40.)

Plaintiff also has an extensive surgical history, having been operated on at least seven times before

2015. (id. § 42.) She last worked outside the home in 2009 or 2010 and went on disability as a

’ For the remainder of this section, the Court omits separate citations to Defendant’s Response,

where Defendant clearly admits to a fact contained in Plaintiff's Counter Statement of Facts.

result of back pain in 2013. (Id. §§ 49, 50.) Plaintiffs chronic pain and/or back issues have limited

many of her activities, forcing her to stop doing heavy housework (like mopping, sweeping,

vacuuming, and pulling on wet clothes); riding horses, motorcycles, and ATVs; reducing her

ability to garden and walk; and causing her to take multiple prescription pain medications. (Id. □□□

40, 41, 45-47.)

F. Plaintiff's Administrative Claim

On March 10, 2017 Plaintiff submitted a Form SF-95 Claim for Damage, Injury, or Death

(“SF-95 Form”) to the United States Army. (Jd. § 63.) On the SF-95 Form, Plaintiff stated that as

a result of the October 16, 2015 accident, she “sustained a broken left arm that required ORIF of

her left humerus.” (/d.) She did not reference any radial nerve issue on the form. Plaintiff also

submitted supporting documentation in digital form, including her medical records, liens (with

itemized bills), the first-party benefits log, the police report from the accident, photographs of her

injuries, and radiology reports. (Pl.’s CSOF § 8.) In a response to Plaintiff's counsel, the

Department of the Army specifically references her “radial nerve palsy.” (ECF No. 46-21.)

TI. STANDARD OF REVIEW

Summary judgment is appropriate when the moving party establishes “that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A genuine issue of material fact is one that could affect the outcome of

litigation. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 643 (3d Cir. 2015) (citing

Anderson y. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). However, “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party, there is no

genuine issue for trial.” N.A.A.C.P. v. North Hudson Reg’l Fire & Rescue, 665 F.3d 464, 475 Gd

Cir. 2011) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986)).

The initial burden is on the moving party to adduce evidence illustrating a lack of genuine

triable issues. Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex

Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Once the moving party satisfies its burden, the

non-moving party must present sufficient evidence of a genuine issue of material fact that

precludes summary judgment. Santini v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (citing

Matsushita Elec. Indus. Co., 475 U.S. at 587). When considering the parties’ arguments, the court

is required to view all facts and draw all inferences in the light most favorable to the non-moving

party. Jd. (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The benefit of the doubt

will be given to allegations of the non-moving party when in conflict with the moving party’s

claims. Bialko v. Quaker Oats Co., 434 F. App’x 139, 141 n.4 (3d Cir. 2011) (citing Valhal Corp.

vy. Sullivan Assocs., 44 F.3d 195, 200 (3d Cir. 1995)).

Nonetheless, a well-supported motion for summary judgment will not be defeated where

the non-moving party merely reasserts factual allegations contained in the pleadings. Berts v. New

Castle Youth Dey. Ctr., 621 F.3d 249, 252 (3d Cir. 2010) (citing Williams v. Borough of West

Chester, 891 F.2d 458, 460 (3d Cir. 1989)). The non-moving party must resort to affidavits,

depositions, admissions, and/or interrogatories to demonstrate the existence of a genuine issue.

Guidotti v. Legal Helpers Debt Resolution, L.L.C.,716 F.3d 764, 773 (3d Cir. 2013) (citing Celotex

Corp., 477 U.S. at 324).

This standard does not change when the parties cross-move for summary judgment. Auto-

Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 402 (3d Cir. 2016). When both parties move

for summary judgment, “<[t]he court must rule on each party’s motion on an individual and

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separate basis, determining, for each side, whether a judgment may be entered in accordance with

the Rule 56 standard.’” Jd. (quoting 10A Charles Alan Wright et al., Federal Practice & Procedure

§ 2720 (3d ed. 2016)).

IV. DISCUSSION

A. Defendant’s Motion for Partial Summary Judgment

Defendant seeks partial summary judgment on two grounds. First, it asserts that Plaintiff's

injuries do not qualify as a “serious injury” under Pennsylvania’s Motor Vehicle Financial

Responsibility Law (“MVFRL”), and thus, as an individual covered by a limited-tort insurance

policy, she can only recover her medical and out-of-pocket expenses that resulted from the

accident.

In addition, Defendant asserts that this Court does not have subject matter jurisdiction over

Plaintiff's radial nerve injury claim because she failed to properly present this claim at the

administrative level.

1. Serious Injury

The MVFRL allows Pennsylvania drivers to elect either a “limited tort” or a “full tort”

option when purchasing their car insurance. 75 Pa. C.S. § 1705. It further provides that individuals

who elect limited tort coverage may “recover all medical and out-of-pocket expenses” arising out

of an accident. Jd. However, in exchange for lower rates, those individuals “cannot recover for

pain and suffering or other non-economic damages unless the [their] injuries fall within the

definition of ‘serious injury.’” Vetter v. Miller, 157 A.3d 943, 948 (Pa. Super. 2017) (quoting

Varner-Mort v. Kapfhammer, 109 A.3d 244, 248 (Pa. Super. 2015)); see Washington v. Baxter,

719 A.2d 733, 739 (1998) (“While fashioning the limited tort option, the legislature spent a great

1]

deal of time balancing the rights of the limited tort elector to recover for noneconomic losses

against the goal of lowering insurance costs.”).

Plaintiff was covered by her son’s limit tort policy at the time of the accident. Therefore,

in order recover non-economic damages she must demonstrate that she suffered a “serious injury”

due to the accident. The MVFRL defines “serious injury” as “a personal injury resulting in death,

serious impairment of body function or permanent serious disfigurement.” 75 Pa. C.S. § 1702. The

determination of whether Plaintiff has suffered a serious injury must “be left to a jury unless

reasonable minds could not differ on the issue of whether a serious injury had been sustained.”

Washington, 719 A.2d at 741. As the Defendant points out, an action against the United States

under the FTCA is tried by the court without a jury. 28 U.S.C, § 2402.

Serious Impairment of Body Function

In Washington, the Pennsylvania Supreme Court adopted the following definition of

“serious impairment of body function”:

The “serious impairment of body function” threshold contains two inquiries: a) What

body function, if any, was impaired because of injuries sustained in a motor vehicle

accident? b) Was the impairment of the body function serious? The focus of these

inquiries is not on the injuries themselves, but on how the injuries affected a particular

body function. Generally, medical testimony will be needed to establish the existence,

extent, and permanency of the impairment...In determining whether the impairment was

serious, several factors should be considered: the extent of the impairment, the length of

time the impairment lasted, the treatment required to correct the impairment, and any

other relevant factors. An impairment need not be permanent to be serious.

719 A.2d at 740 (quoting DiFranco v. Pickard, 398 N.W.2d 896, 901 (MI. 1986)).

In undertaking these inquiries, “[t]he question to be answered is not whether [Plaintiff] has

adduced sufficient evidence to show that [she] suffered any injury; rather, the question is whether

[she] has shown that [s]he suffered a serious injury such that a body function has been seriously

impaired.” Jd. at 741. To survive summary judgment, Plaintiff must show that her injury “resulted

12

in such substantial interference with any bodily function as to permit a conclusion that the injur[y]

resulted in a serious impact on [her] life for an extended period of time.” McGee v.

Muldowney, 750 A.2d 912, 915 (Pa. Super. 2000).

Here, it is undisputed that Plaintiff fractured her left arm as a result of the accident.

Therefore, Plaintiffs use of her arm represents the body function that was impaired.

The Court must next determine whether there are no genuine issues of material fact

regarding whether Plaintiff sustained a serious impairment. In making this determination, the

Court considers “the extent of the impairment, the length of time the impairment lasted, the

treatment required to correct the impairment, and any other relevant factors.” Jd, at 740. Based

upon the record in this case, the Court finds that there are genuine material issues of fact regarding

whether Plaintiffs impairment is serious.

As noted in Washington, medical testimony generally will be needed to establish the

existence, extent, and permanency of the impairment. Both parties have submitted expert reports

that diverge widely regarding the extent of the impairment, the length of time it lasted, the

treatment required to correct it and other relevant factors. As discussed previously, Dr. Prisk,

Plaintiffs expert, states to a reasonable degree of medical certainty that Plaintiff's injury, and the

surgery that followed, resulted in a radial nerve palsy and residual stiffness, weakness, atrophy,

scarring and posttraumatic arthritis symptoms in the left upper extremity. Dr. Prisk concludes that

Plaintiff's symptoms, including pain, weakness, loss of motion and strength and radial nerve

symptoms, disrupt her daily activities. Further, he opines, her nerve palsy is permanent and results

in disability affecting the hand for dexterity, manipulating objects, grasping and lifting.

13

There is also record evidence that Plaintiff underwent surgery, received treatment for

approximately six months and is no longer receiving treatment, but continues to have problems

with her arm.

By contrast, Defendant’s expert, Dr. McMahon, concludes to a reasonable degree of

medical certainty that Plaintiff has fully recovered from the fracture of her left arm as well as any

associated radial nerve neuropraxia as a result of the motor vehicle accident, and that she requires

no further medical care for these conditions. He notes that any weakness in her left arm and

atrophy are not uncommon but need not be permanent.

Thus, both the extent and length of the impairment are disputed. The record includes other

contradictory evidence regarding whether Plaintiffs impairment is serious. For example, while it

is undisputed that as of her last examination by Dr. France in April 2016, he stated that her radial

nerve and nerve palsy had recovered, and that she had “full normal use” of her arm, Plaintiff

represents that she continues to experience symptoms that limit her ability to perform certain daily

activities.

Simply put, these disputed facts, including but not limited to contradictory medical

testimony, preclude summary judgment as a matter of law as to whether Plaintiff sustained a

serious impairment. This issue must be resolved at trial.

Permanent Serious Disfigurement

The MVERL does not define “serious permanent disfigurement,” and “there is an absence

of Pennsylvania appellate authority on whether a single scar can constitute permanent serious

disfigurement.” Holland v. Marcy, 817 A.2d 1082, 1096 (Pa. Super. 2002) (J. Bowes, concurring

and dissenting). “The best evidence with respect to permanent serious disfigurement is the

appearance of the plaintiff.” Walsh v. Phillips, 38 Pa. D. & C.4th 178, 182-83 (Com. Pl. 1997).

14

Here, as a result of the ORIF procedure, Plaintiff has a scar on her upper left arm, which

she can cover by wearing sleeves. She also has atrophy of her left arm. With respect to the atrophy

and scar, the parties’ respective experts disagree regarding its permanence. Plaintiff's medical

expert, Dr. Prisk, noted in his report that:

[Plaintiff] was seen by Dr. Linda Camp on April 24, 2019, for documentation of a

scar and disfigurement of her left upper arm. Upon examination, her left upper arm

appeared to be much smaller in diameter, due to atrophy, than her right upper arm.

The incision extended from the upper posterior humerus near the posterior axillary

line and extended distally along the entire upper arm, extending onto the lateral

aspect of the elbow. It measured approximately 30 cm. in length and 2 mm. in width

and had a 2 cm. depression deformity with discoloration throughout its length. The

soft tissues around it were hard to examine secondary to hypersensitivity, but there

appeared to be no fluid collections or irregularities or evidence of suture

abnormalities. In Dr. Camp’s medical judgment as a skin expert and being a board-

certified plastic surgeon, she believed that this scar was a permanent deformity that

would not be improved by any further surgical treatment for the appearance of the

scar. (Dr. Linda Camp’s Report — Pages 1-4).

(ECF No. 46-15 at 6.)

Alternatively, defense expert Dr. McMahon, while noting this atrophy, concludes that it

need not be permanent because almost every patient can regain strength if they participate in

physical therapy and/or strengthening exercises. He goes on to state that there is nothing that

would preclude Plaintiff from strengthening her arm and regaining muscle mass, which can result

in reducing the difference in the circumference of her arms. While Plaintiff testified that she

performed some home exercises recommended by Dr. France, the record does not reflect the time

period within which she performed these exercises.

The record reflects that Plaintiff’s left arm is smaller in circumference than her right arm.

It is disputed whether the size differential of her arms can be minimized or eliminated with

strengthening exercises or physical therapy. Moreover, the Court’s review of the present

appearance of Plaintiff's left arm is limited to the photographs submitted by Defendant and

Plaintiff, which were taken approximately 3 years after the accident. (ECF No. 46-17 & 18). This

15

evidence is insufficient for the Court to determine as a matter of law whether the combination of

the scar with atrophy represent a serious permanent disfigurement. Because this threshold issue

cannot be determined on the current state of the record, it must be determined at trial.

2. Presentment

Defendant also argues that this Court does not have subject matter jurisdiction over

Plaintiff's radial nerve injury claim because she failed to properly present any such claim at the

administrative level.

“District courts have exclusive jurisdiction over suits against the United States brought

under the FTCA.” Santos ex rel. Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (citing

28 U.S.C. § 1346(b)). However, “[t]o make a claim under the FTCA, a claimant first must file her

claim with the administrative agency allegedly responsible for her injuries.” /d. (citing 28 U.S.C.

§ 2675(a); Reo v. United States Postal Sery., 98 F.3d 73, 75 (3d Cir. 1996)). It is Plaintiff's burden

to establish that a proper administrative claim had been filed. Livera v. First Nat'l State Bank, 879

F.2d 1186, 1195 (3d Cir. 1989) (“Although we have on occasion afforded a liberal interpretation

to the contents of the pleadings, we have remained steadfast to a strict application of the filing

requirements themselves.”).

The Third Circuit Court of Appeals has explained that “notice in the form of an

administrative claim ‘satisfies section 2675’s [presentment] requirement . . . if the claimant (1)

gives the agency written notice of his or her claim sufficient to enable the agency to investigate

and (2) places a value on his or her claim.” Roma v. United States, 344 F.3d 352, 362-63 (3d Cir.

2003) 362-63 (3d Cir. 2003) (quoting Tucker v. United States Postal Serv., 676 F.2d 954, 959 (3d

Cir.1982)),

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Defendant contends that by only citing a broken arm that required an ORIF procedure on

the SF-95 Form, Plaintiff failed to “present” her radial nerve injury to the U.S. Army. However,

“an administrative claim need not propound every possible theory of liability in order to satisfy

section 2675(a),” so long as a plaintiff does not “present one claim to the agency and then maintain

suit on the basis of a different set of facts.” Roma at 362 (quoting Deloria v. Veterans Admin. □ 927

F.2d 1009, 1011-12 (7th Cir. 1991)). Here, Plaintiff submitted a fully completed SF-95 Form to

the United States Army with each of the questions answered, including a description of the

accident, the parties involved, and the nature of her injury. The information furnished by Plaintiff

reflects that the basis for her administrative claim is that she was injured in a motor vehicle accident

as a result of Nicholson’s alleged negligence. This was sufficient for the U.S. Army to conduct its

investigation. Plaintiff also placed a value of $400,000 on her personal injury claim. That is all

that was required to satisfy the presentment requirement of Section 2675.

It is also uncontroverted that Plaintiff provided the U.S. Army with her medical records to

support her administrative claim. Those records highlighted issues with her radial nerve in

conjunction with her broken arm and the ORIF procedure. Plaintiffs radial nerve injury arises out

of the same set of facts as her broken arm, i.e., the motor vehicle accident and its aftermath.

Moreover, the April 25, 2018 correspondence from the Department of the Army not only reflects

the substance of its investigation, including its knowledge of the underlying accident and

Plaintiffs medical treatment, but specifically references her “radial nerve palsy.”

In short, Plaintiffs written notice supplied sufficient information for the U.S. Army to

investigate her claim. Therefore, Plaintiff satisfied the presentment requirement of section 2675

and this Court has subject matter jurisdiction over her radial nerve injury claim.

For all of these reasons, Defendant’s motion for partial summary judgment will be denied.

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B. Plaintiff's Motion for Partial Summary Judgment

Plaintiff's motion for partial summary judgment seeks dismissal of Defendant’s following

affirmative defenses:

e Fourth Affirmative Defense: Plaintiff's own negligence is the sole and/or contributory

cause of the occurrence set forth in the Complaint. Plaintiff is therefore barred from

recovery and/or limited with respect to recovery.

e Tenth Affirmative Defense: The concurrent acts of others, and not of the Defendant, the

United States, were the proximate cause of the occurrence set forth in Plaintiffs Complaint.

Plaintiff is therefore barred from recovery and/or limited with respect to recovery.

e Eleventh Affirmative Defense: The acts of others, and not the Defendant, the United States,

were the sole and proximate intervening and/or superseding cause of the occurrence set

forth in Plaintiff's Complaint. Plaintiff is therefore barred from recovery and/or limited

with respect to recovery.

e Thirteenth Affirmative Defense: Any injuries, loss, or damage sustained by Plaintiff were

caused in whole or in part by the Plaintiff's culpable conduct, and any recovery by Plaintiff

must be reduced proportionately by the percentage of such culpable conduct. 42 Pa. Cons.

Stat. § 7102(a) (Westlaw 2007).

e Fourteenth Affirmative Defense: Plaintiffs injuries or damages, if any, were caused by the

negligent or wrongful acts of third parties that were not under the control of the Defendant,

the United States.

e Eighteenth Affirmative Defense: If Defendant, the United States, was negligent, which is

expressly denied, others were also negligent. Defendant may thus only be held liable for

its proportionate share of fault, if any.

As an initial matter, Defendant does not object to Plaintiff's motion as it pertains to the

Fourth Affirmative Defense. (ECF No. 42 at 5 n.4.) Moreover, with respect to the Thirteenth

Affirmative Defense, the undisputed facts of record do not support a defense that Plaintiff's

conduct caused her injuries, loss or damages, and therefore, Plaintiffs summary judgment will be

granted with respect to this defense as well.’ Likewise, with respect to the Eighteenth Affirmative

8 While Defendant did not explicitly concede that Plaintiff's motion has merit as it pertains to the

Thirteenth Affirmative Defense, it notes in its brief that it does not “claim that Plaintiff... was

personally at fault in causing the accident.” (ECF No. 42 at 1.) Defendant is not precluded from

presenting evidence at trial that Plaintiff failed to mitigate her damages as pleaded in its Ninth

Affirmative Defense.

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Defense, the Court agrees with Plaintiff that it is entitled to judgment in its favor because as a

matter of law, there cannot be an apportionment of liability at trial between Defendant and a non-

party. See Harris v. Kellogg Brown & Root Services, 724 F.3d 458 (3d Cir. 2013).

In support of its motion with respect to the remaining defenses at issue, that is, the Tenth,

Eleventh and Fourteenth Defenses, Plaintiff points to the record evidence, including the Army’s

internal investigation, which concluded that Nicholson was at fault in the accident. Defendant

does not dispute that Nicholson should have continued to wait at the stop sign and not inch out

into traffic. Rather, it contends that the conduct of Plaintiff's daughter in speeding, driving without

insurance, and driving without a valid state inspection, in violation of three separate Pennsylvania

statutes, was a superseding cause of the accident which relieves it from liability.

“A superseding cause is an act of a third person or other force which, by its intervention,

prevents the actor from being liable for harm to another which his antecedent negligence is a

substantial factor in bring about.” Von der Heide v. Dept. of Transp., 718 A.2d 286, 288 (Pa. 1998)

(internal quotations and citations omitted). To constitute a superseding cause, the act must be “so

extraordinary as to not have been reasonably foreseeable.” Jd. “When facts are in dispute or room

exists for a difference of opinion as to whether certain conduct is superseding or where facts are

such that reasonable minds could differ as to whether the intervening act or cause constituted a

superseding act or cause, the question is one for submission to the jury.” Powell v. Drumheller,

653 A.2d 619, 624 (Pa. 1995) (quoting 57 Am. Jur. 2d Negligence § 601).

Defendant asserts that the conduct of Plaintiff's daughter by driving without a state

inspection and without proof of insurance, along with her alleged speeding, is a superseding cause

of the accident. However, summary offenses such as driving without an inspection and driving

without proof of insurance are inadmissible in civil actions arising out of the same incident. See

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Stumpf v. Nye, 950 A.2d 1032, 1040 (Pa. Super. 2008). Moreover, there is no credible evidence

of record that these violations had any role in the accident.

With respect to the defense that Plaintiff's daughter was speeding at the time of the

accident, it is uncontroverted that the Pennsylvania National Guard conducted a “financial liability

investigation of property loss.” (see, e.g, ECF No. 40-4 at EN0004-05, EN0030, EN0068-69.)

The investigation resulted in a recommendation of financial liability based principally on the

conclusions in the police report that Nicholson was at fault for pulling out in front of the car driven

by Plaintiff's daughter and that there was no evidence that she was at fault.? Ud. at EN0004-05.)

As a result of this investigation, Nicholson was notified that “an approved charge of financial

liability ha[d] been assessed against [him] by the United States Government.” (/d. at EN0002.)

Defendant argues that it was the Pennsylvania National Guard, not the United States, that

performed the investigation. No direct evidence or legal argument was presented regarding

whether the National Guard was acting on behalf of the Army or the GSA in conducting the

investigation and therefore, whether its statements can be construed as those of Defendant.

However, based upon the documents in the record about the investigation and the fact that as a

result of the investigation, Defendant assessed Nicholson with financial liability for the damage to

its car, it appears that at a minimum, the National Guard was acting on behalf and/or as an agent

for the Army. If so, its recommendations are admissible as admissions of a party opponent and/or

a statement against interest. See Federal Rules of Evidence 801(d)(2) and 804(b)(3).'° At any

° Notably, the initial investigator stated that the evidence “suggests that soldier may be at fault.”

At the next level of review, liability was recommended based on the police report and the

recommendation/assessment of suspected negligence. (ECF No. 40-4 at EN0004-05.)

'0 At the same time, it is noted that the police report itself is inadmissible hearsay.

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rate, the GSA’s ultimate assessment of financial liability is admissible evidence, either because it

is not hearsay (F.R.E. 801(d)(2)) or is an exception to the hearsay rule (F.R.E. 804(b)(3)).

Plaintiff argues that Defendant cannot be permitted now to take the paradoxical position

that Nicholson was solely at fault for the purpose of the assessment of financial liability for damage

to the government vehicle, while simultaneously arguing that Plaintiff's daughter was the sole

cause of the accident. However, the investigation conducted was for the purpose of assessing

financial liability and may (or may not) be subject to an entirely different standard than the burden

of proof in a civil lawsuit. Moreover, the National Guard personnel had no personal knowledge

about the accident and placed heavy reliance on the police report, which is inadmissible hearsay."!

Plaintiff also contends that Nicholson is negligent as a matter of law based upon the finding

of financial liability. However, the Court cannot reach this conclusion based on the current record.

In addition to the issues discussed above, the record reflects that Nicholson never admitted

liability, and while it is uncontroverted that he stopped at the stop sign and then proceeded into the

other vehicle’s lane of travel, it is at least possible that if Plaintiff's daughter was speeding, her

actions could have independently caused the accident.

The Court is required to view all facts and draw all inferences in the light most favorable

to the non-moving party on this issue. Therefore, while it is an extremely close call, the Court

declines to grant Plaintiffs motion regarding these defenses at this time.

Accordingly, Defendant’s motion for partial summary judgment will be granted with

respect to Defendant’s Fourth, Thirteenth and Eighteenth Affirmative Defenses, as well as with

'l The subsequent deposition testimony of the police officer is not relevant to determine the basis

for the GSA’s decision to hold Nicholson financially liable.

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respect to the inadmissibility of the summary offenses with which Plaintiff's daughter was charged

regarding the Tenth, Eleventh and Fourteenth Affirmative Defenses, and otherwise denied.

V. CONCLUSION

Based upon the foregoing, the Court will deny Defendant’s motion for partial summary

judgment and grant Plaintiffs motion for partial summary judgment in part. Appropriate orders

follow.

BY THE COURT:

Date: June 10, 2020 PATRIC ~ DODGE

United States Magistrate Judge

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