Cedant v. United States

United Staftoers t Dheis trict Court

Southern District of Florida

Cajule Cedant, Plaintiff, )

)

v. )

) Civil Action No. 19-24877-Civ-Scola

United States of America, )

Defendant. )

Verdict and Order Following Non-Jury Trial

In this Federal Torts Claims Act (“FTCA”) case, the Plaintiff Cajule Cedant

brings one count of negligence against the Defendant, United States of

America, alleging that the negligence of United States Postal Service (“USPS”)

driver Elijah Miller caused Cedant significant injuries. (ECF No. 1 ¶¶ 9-13.)

Cedant seeks monetary damages for past and future medical expenses, as well

as for past and future pain and suffering and loss of enjoyment of life. (ECF No.

97 at 10.) Cedant is not seeking damages for lost wages. Recently, the Court

denied the United States’ Daubert motion seeking to exclude Cedant’s experts

and its motion for summary judgment. (Omnibus Order, ECF No. 100).

The Court held a two-day, non-jury trial, beginning on August 26, 2024,

and ending on August 28, 2024.1 Prior to the trial, the parties submitted a joint

pretrial stipulation (ECF No. 95), as well as their proposed findings of fact and

conclusions of law. (ECF Nos. 93, 97.) The Court has carefully reviewed these

submissions.

After considering the credible testimony and evidence, and the applicable

law, the Court finds that the negligence of the United States caused permanent

injuries to Cedant and that Cedant is entitled to damages for those injuries.

The Court’s findings of fact and conclusions of law are set forth below.

1. Findings of Fact

On December 11, 2017, a USPS vehicle ran a stop sign and crashed into

the side of another vehicle in which Cedant was a front seat passenger. The

undisputed evidence established that the United States was negligent, and the

negligence was the sole cause of the automobile accident. The Court granted a

partial judgment as a matter of law finding that the United States had a duty of

care and breached that duty. The remaining factual disputes are (1) whether

Cedant’s claimed injuries were caused by the accident, (2) whether any injuries

1 Trial was not held on Tuesday, August 27, 2024.

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Cajule Cedant is 55 years old, was born in Haiti, and has lived in the

United States for 25 years. He has two children, four years old and seven years

old, who live with him. He has always worked as a mechanic and sometimes as

a security guard.

On December 11, 2017, Cedant was a passenger in a Toyota Forerunner

which was involved in an accident at the intersection of NE 11th Avenue and

138th Street. A USPS vehicle failed to stop at a stop sign and hit the passenger

side of the car in which Cedant was a passenger. Cedant was wearing his seat

belt at the time of the accident. The car flipped over. Cedant’s body hit the body

of the driver, Gelain Domingue; his back and neck hit the back of the seat; his

knee hit the dashboard; and he felt his spine shake.

Cedant was able to get out of the car and then assisted Domingue in

getting out of the car.

Cedant refused to go to the hospital on that day. Cedant testified that his

symptoms started immediately after the accident and worsened over time. His

right shoulder started to hurt right away. Cedant testified that he did not seek

immediate medical treatment after the accident because he had just had a

child three months earlier and did not want to alarm his family by being

transported to the hospital. After he arrived at home, he started feeling pain in

other areas of his body.

Three days later, the pain in his neck, lower back, shoulder and knee not

only did not abate, but also had gotten worse. So, he went to a chiropractor. He

chose a chiropractor because if there were bones that had moved, he felt that

was the best course of action to take. He was given heat treatment, a massage,

chiropractic adjustments, and exercises. The treatment by the chiropractor

helped him a little bit but the pain continued.

In January and March 2018, he was referred for MRIs of his lower back,

neck, shoulder and knee. After the MRIs, he saw Drs. Gomez and Katz.

Dr. Heldo Gomez is a board-certified neurosurgeon who saw Cedant in April

2018 concerning his lower back and neck. Dr. Gomez limits his practice to

spinal disorders. Cedant brought his MRI images to his appointment with Dr.

Gomez. The MRI showed abnormalities in the disks of the lower back and neck.

Cedant had muscle spasms and tenderness in the neck and lower back as well

as restrictions in his range of motion in those areas.

Dr. Gomez conducted an examination and asked several questions of

Cedant to obtain his history. Cedant told him he was in a prior accident sixteen

or seventeen years earlier but that he had no residual pain from the accident.

Cedant told him he had neck and lower back pain from the December 2017

accident.

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her spine and have no pain or symptoms until a traumatic event occurs. There

are times when symptoms can develop over time and the patient may feel the

effects of the accident many days after the accident.

Dr. Gomez gave Cedant an epidural steroid injection in his back. He later

gave Cedant a medial branch block on July 8, 2018. Cedant had only short-

term positive results from that treatment. Dr. Gomez then recommended and

performed a lumbar radiofrequency ablation. Dr. Gomez then recommended an

updated MRI in late July 2018. There had been remodeling of the disk, but the

disk was still up against the nerve root. Dr. Gomez opines that Cedant’s

degenerative findings remained stable, and that his degeneration had made

Cedant more vulnerable and more susceptible to injury as a result of trauma.

Dr. Gomez recommended that Cedant have a microdiscectomy of the

lower back. Cedant resisted the idea of having surgery and opted to treat the

symptoms conservatively.

Dr. Gomez last saw Cedant in March 2024. Cedant complained about

bilateral radiating into the lower extremities. Based upon his lower back

symptoms, Dr. Gomez recommended a lumbar fusion surgery.

In total, Dr. Gomez has seen Cedant thirteen times since April 2018.

Dr. Gomez opines that Cedant had asymptomatic conditions prior to the

accident in question and following the December 2017 accident they became

symptomatic. Dr. Gomez believes the accident was an activation of Cedant’s

prior conditions. Dr. Gomez also believes his treatment was medically

necessary. Finally, Dr. Gomez believes Cedant suffered a permanent injury to

his lower back as a result of this accident.

In April 2018, Cedant also saw Dr. Shani Katz for his shoulder and knee

pain based upon a recommendation from Dr. Gomez. Dr. Katz is a board-

certified orthopedic surgeon. Cedant’s shoulder pain was affecting his

movement and daily activities and was causing a limited range of motion and

loss of strength. Cedant told Dr. Katz about the December 2017 accident. Dr.

Katz conducted a physical exam and reviewed Cedant’s March 27, 2018, MRI of

his right shoulder. Dr. Katz found that Cedant had a torn labrum, torn rotator

cuff, and bursitis. Dr. Katz testified that she would not expect to see such

injuries as a result of Cedant’s responsibilities as a mechanic. Dr. Katz gave

Cedant pills for the pain in his shoulder, but he continued to have pain. On

July 31, 2018, Dr. Katz performed an arthroscopic shoulder surgery on

Cedant, which also included a rotator cuff repair. The surgery confirmed the

labrum tear, cartilage damage, sprained A/C joint, impingement syndrome

(bursitis) and a rotator cuff tear. Following surgery, Cedant underwent physical

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As to Cedant’s left knee, Dr. Katz noted that the July 14, 2020, MRI of

the knee revealed edema in the popliteus muscle, a strain/partial tear, a 1 cm

cartilage defect with small adjacent cartilage flaps in the medial third of the

medial femoral condyle, joint effusion and synovitis and a small popliteal cyst.

Dr. Katz also testified that she recommended a left knee arthroscopy, and the

possibility of a total knee arthroplasty. Cedant’s left knee had become swollen,

and Dr. Katz gave him platelet rich plasma injections and recommended

surgery, but Cedant did not want to have surgery since the knee swelling had

gone down after the injection. The last time Cedant saw Dr. Katz was in May

2024, at which point Cedant was still complaining of right shoulder and left

knee pain aggravated by his daily activities.

Dr. Katz opines that Cedant’s right shoulder and left knee injuries were

caused by the accident. Dr. Katz is aware of the prior accident in 2003 which

caused a shoulder sprain. Dr. Katz does not believe that that injury affects her

opinion because Cedant had no shoulder problems for years after that

accident. Dr. Katz believes Cedant’s shoulder injury is a permanent injury.

Cedant continues to have pain today. The areas that are most painful are

his shoulder and lower back. When he sits, he has radiating pain down his

right leg and must constantly shift his position to mitigate the pain. He also

feels unsteady on his feet at times. His shoulder pain is constant, and it feels

like something is rubbing in the shoulder and making noise.

Cedant continues to have knee and neck pain, but the pain is not as

severe. If he squats, he cannot get up without first going onto his buttocks.

Prior to this accident, Cedant never had a problem with his knee.

Cedant takes painkillers to mitigate the pain on a regular basis.

Before the accident, he was able to do engine, transmission, differential

and shaft work (heavy duty mechanic work), but since the accident, he can

only do oil changes and brake work. He does not earn as much money now as

he did before the accident.

Cedant is unable to play with his children by picking them up and

putting them in swings and throwing them in the air. He also cannot do normal

household chores like using a mop. Prior to the accident, he could do all of

those activities.

Cedant had been involved in several previous accidents in which he

claimed he was injured, in pain, and needed medical treatment in the same

areas of his body he claims were injured in this accident.

In 2000, he was in a car accident but claims he was not injured, and he

does not remember going to therapy. But, in 2003, he gave a statement

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In 2001, he was in a second car accident and claimed he suffered

injuries to his back, neck and legs.

In 2003, Cedant was involved in a third car accident in which he suffered

sprains in his lower back, both knees, neck, and both shoulders. He went to a

chiropractor and the pain and symptoms soon went away and he had no

symptoms from that accident for more than ten years prior to this accident.

Cedant incurred $192,908 in medical expenses as a result of the

December 2017 accident.

Dr. Marc Kaye, a board-certified medical expert in radiology, retained as

an expert by the United States. Dr. Kaye has testified in court over 100 times.

After reviewing the MRI images of Cedant, Dr. Kaye opines that there is no

radiological data in the images to establish there was any permanent injury as

a result of the accident in question. There were tears to the rotator cuff and

labrum, but Dr. Kaye believes those were degenerative and not the result of

recent trauma.

Dr. John Nordt III is a board-certified orthopedic surgeon also retained

as an expert by the United States. He practiced sports medicine for many years

beginning in the 1980s and has focused on the spine for the past 25 years. Dr.

Nordt does not believe Cedant suffered any permanent injuries as a result of

this accident.

Although both Cedant’s and the United States’s experts were qualified to

give opinions, the Court finds Cedant’s experts more persuasive and finds that

Cedant suffered permanent injuries to his right shoulder and lower back as a

result of December 2017 accident.

2. Conclusions of Law

The Court has jurisdiction over this action under the FTCA. See 28

U.S.C. § 1346(b)(1). “The [FTCA] was ‘designed to provide redress for ordinary

torts [committed by the federal government] recognized by state law.’” Stone v.

United States, 373 F.3d 1129, 1130 (11th Cir. 2004) (citation omitted).

Because “the alleged tort here occurred in Florida, Florida tort law applies.”

Id.

Under Florida law, a plaintiff must show that “the defendant owed the

plaintiff a duty of care, that the defendant breached that duty, and that

breach caused the plaintiff to suffer damages.” Id. (quotations and citation

omitted).

The United States does not dispute that the driver of the USPS truck,

acting within the scope of his employment, breached his duty to Cedant to

drive reasonably when he failed to stop at a stop sign. The issues that remain

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Cedant has proven the elements of causation, permanency, and damages.

a. Admissibility of Cedant’s Experts

At both trial and in its pretrial filings, the United States argues that the

testimony of Cedant’s experts, Drs. Gomez and Katz, are both unreliable (and

therefore inadmissible) and not credible. The United States previously moved

to exclude Cedant’s expert opinion testimony as to causation pursuant to the

requirements set forth by the Supreme Court in Daubert. (ECF No. 83.) The

United States argues that neither of Cedant’s experts have “an adequate basis

or a reliable methodology to support their proposed causation opinions.” (Id.

at 7.) This Court previously denied the United States’s Daubert motion

because the case was to “be tried as a bench trial without a jury” and “[t]he

Court is equipped to appropriately weigh or discount the experts’ testimony.”

(ECF No. 100 at 4.) At the same time, the Court noted that it would “not

hesitate to exclude the experts’ testimony ‘if it turns out not to meet the

standard of reliability established by Rule 702.’” (Id.) (citation omitted).

Federal Rule of Evidence 702 provides a three-part inquiry for trial

courts to consider prior to admitting expert testimony, that is whether: “(1)

the expert is qualified to testify competently regarding the matters he intends

to address; (2) the methodology by which the expert reaches his conclusions

is sufficiently reliable as determined by the sort of inquiry mandated in

[Daubert, 509 U.S. 579]; and (3) the testimony assists the trier of fact,

through the application of scientific, technical, or specialized expertise, to

understand the evidence or to determine a fact in issue.” Rosenfeld v. Oceania

Cruises, Inc., 654 F.3d 1190, 1193 (11th Cir. 2011). The proponent of the

expert opinion bears the burden of establishing qualification, reliability, and

helpfulness by a preponderance of the evidence. Daubert, 509 U.S. at 592

n.10. “[T]he Committee Note to the 2000 Amendments of Rule 702 expressly

says that ‘[i]f the witness is relying solely or primarily on experience, then the

witness must explain how that experience leads to the conclusion reached,

why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts.’” United States v. Frazier, 387 F.3d

1244, 1261 (11th Cir. 2004).

First, the Court finds that the methodologies used by Drs. Gomez and

Katz are sufficiently reliable for admission under Rule 702. The United States

relies primarily on an Eleventh Circuit case, Cooper v. Marten Transport, Ltd.,

539 F. App’x 963 (11th Cir. 2013), to argue that Cedant’s experts’

methodologies are unreliable. But the doctors’ methodologies are unlike those

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App’x at 967. There, two experts “simply conducted physical examinations

and reviewed the [Plaintiffs’] medical histories” and did not rule out other

possible causes when arriving at their causation opinions—including an

accident that occurred just one year prior to the accident at issue in that

case. Id. The Eleventh Circuit emphasized that the experts improperly relied

on a temporal relationship between the accident and the injuries in reaching

their conclusions—that because the injuries manifested after the accident at

issue, the accident must have caused those injuries. Id.

Drs. Gomez and Katz, however, do not rely on the kind of temporal

relationship seen in Cooper. Here, Cedant’s prior accidents were fourteen,

sixteen, and seventeen years earlier, and Cedant credibly testified that his

injuries and pain did not manifest until after the December 2017 accident.

Moreover, Drs. Gomez and Katz ruled out other possible explanations for

Cedant’s injuries. Dr. Katz credibly testified that Cedant’s injuries are not the

type expected by simply working as a mechanic, testimony which was

partially based on her observations during a surgery she performed on

Cedant’s right shoulder. Dr. Gomez testified that accidents over ten years

prior do not explain the type of injuries Cedant began to suffer after the

December 2017 accident. Rather, Cedant’s injuries and symptoms were

consistent with those that would be activated by a recent severe accident.

Cedant’s experts, then, do not merely rely on the “temporal relationship”

between the accident and Cedant’s injuries that was rejected in Cooper. See

id. And because Drs. Gomez and Katz used a proper methodology, the Court

is not concerned that they are Cedant’s treating physicians. See Williams v.

Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011) (explaining

that though treating physicians may “purport to provide explanations of

scientific and technical information not grounded in their own observations

and technical experience . . . the trial court must determine whether [such

testimony] meets the standard for admissions as expert testimony”).

Second, Cedant’s experts were credible. They met with Cedant multiple

times, took his history, reviewed imaging, and conducted physical

examinations. As stated above, Dr. Katz also performed surgery on Cedant’s

right shoulder and saw the extent and type of injuries Cedant suffered. To the

extent Cedant did not mention various other possible causes of his injuries

during his examinations with Drs. Gomez and Katz, Drs. Gomez and Katz

testified that, based on their experience, these other explanations posited by

the United States would not have caused Cedant’s present injuries.

In contrast, the United States’s experts, Dr. Marc Kaye, a board-certified

radiologist, and Dr. John Nordt, a board-certified orthopedic surgeon,

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balance, the Court finds Cedant’s expert testimony more persuasive than that

of the United States. The Court concludes that Cedant proved, by a

preponderance of the evidence, that his injuries were caused by the accident.

b. Causation

Cedant must prove causation by a preponderance of the evidence—that

more likely than not, the accident caused his injuries. Tharpe v. United States,

No. 15-CV-21340-UU, 2016 WL 4217863, at *6 (S.D. Fla. Apr. 27, 2016)

(Ungaro, J.). When the medical conditions alleged to have been caused by a

defendant’s negligence are “not readily observable,” “lay testimony is legally

insufficient to support a finding of causation,” Crest Products v. Louise, 593

So. 2d 1075, 1077 (Fla. 1st DCA 1992), and expert testimony is required.

Mustafa v. United States, No. 21029533-CIV-Lenard, 2022 WL 18023353, at

*11 (S.D. Fla. Sept. 15, 2022) (Lenard, J.) (citations omitted). Because “[s]oft-

tissue injuries, such as back, head, neck, hip, and shoulder injuries are not

‘readily observable’ medical conditions,” Cedant must provide expert

testimony on the issue of causation. See id. (citations omitted).

Moreover, “Florida law requires a fact finder to award damages if a

preexisting physical condition is aggravated by an injury, or the injury

activates a latent condition.” Tharpe, 2016 WL 4217863, at *6 (citing C.F.

Hamblen v. Owens, 172 So. 694 (Fla. 1937)). Though this rule is often

discussed in the context of damages, it is relevant to the issue of causation

because when there is an aggravation of an a preexisting condition by an

injury, “[i]n such cases the injury is the prime cause which opens the way to

and sets in motion the other cause . . . .” C.F. Hamblen, 172 So. at 696

(finding the defendant liable for the plaintiff’s injury where the defendant’s

negligence reactivated a condition in the plaintiff’s leg, requiring amputation);

see also Univ. Comm. Hosp. v. Martin, 328 So. 3d 858, 861 (Fla. 2d DCA 1976)

(concluding that “the defendant’s negligence has proximately resulted in an

aggravation of a pre-existing injury and the entire consequence cannot

reasonably be divided as between several independent causes”); Horn v.

Tandem Health Care of Fla., Inc., 983 So. 2d 1166 (Fla. 2d DCA 2008) (“[T]he

defendant’s negligence is the legal cause of the injury or damage if it directly

and in natural and continuous consequence produces or contributes

substantially to producing the injury or damage.”) (cleaned up).

As discussed above, the testimony of Cedant’s experts was admissible,

as well as more persuasive than the testimony of the United States’s experts.

Cedant had preexisting degenerative conditions and has satisfied his burden

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caused by the accident.

c. Damages

“Damages are an essential element of a cause of action for negligence.”

Lyle, 558 So. 2d 1047, 1048 (Fla.1st DCA 1990). Damages include all those

that “are a natural proximate, probable or direct consequence of an act, but

do not include remote consequences.” See Tharpe, 2016 WL 4217863, at *6

(S.D. Fla. Apr. 27, 2016) (citation omitted) (Ungaro, J.). Past medical expenses

are limited to actual damages, while “with respect to future medical expenses,

only medical expenses that are reasonably certain to occur are recoverable.”

Id. (citation omitted). “In determining the reasonableness or necessity of

medical treatment, facts can be established by lay testimony in negligence

actions and” therefore, medical necessity is “from ‘[the] perspective of [the]

injured party rather than from [the] perspective of [a] medical expert.” Id.

(citation omitted). Tharpe v. United States, 2016 WL 4217863, at *6.

As relevant here, to recover for non-economic damages, a plaintiff must

show that the negligent act caused “[p]ermanent injury within a reasonable

degree of medical probability, other than scarring or disfigurement.” Fla. Stat.

§ 627.737(2)(b).

“Florida law permits the fact finder to apportion past medical expenses

attributed solely to an aggravation of a preexisting injury.” Id. at *7 (citation

omitted). Therefore, “a tortfeasor’s exposure should be limited to those

damages she caused unless no apportionment can be made.” Fravel v. United

States, No. 8:07-CV-979-T-MAP, 2009 WL 10671272, at *3 (M.D. Fla. Feb. 13,

2009).

In Florida, the court must reduce the amount of damages a plaintiff can

recover by the amount of benefits received from collateral sources, including

personal injury protection (“PIP”) insurance. Fla. Stat. § 768.76(1); Norman v.

Farrow, 880 So.2d 557, 560 (Fla. 2004). Additionally, under the FTCA, a

plaintiff’s recovery is limited to the sum presented during the administrative

proceedings that must be brought before filing a claim in court. 28 U.S.C.

§ 2675(b).

As discussed above, Cedant has shown that his injuries were caused by

the accident, and therefore the United States’s negligence. The United States

has not brought forth any affirmative defenses such as comparative

negligence. Therefore, Cedant is entitled to any damages he can prove up to

$2,000,000, minus the $10,000 he recovered in PIP insurance.

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because of the accident. These expenses include those conditions activated by

the injuries caused by the accident. The Court accepts the total medical bills

of $192,908 which must be reduced by $10,000 based upon the payment of

$10,000 by the PIP policy. Even though the Court found that Cedant failed to

establish that his neck and knee injuries were permanent injuries, the Court

does find that those injuries were caused by the accident and that the medical

bills related to treatment of those injuries were reasonable, necessary and

related to the accident.

Cedant’s injuries are chronic, have caused him pain, and have

restricted his daily activities. He has had to undergo many treatments and a

surgery. The Court also finds that Cedant has established that his lower back

and shoulder injuries are permanent injuries, thus entitling him to recover

damages for pain and suffering and loss of enjoyment of life.

The Court finds that Cedant has failed to establish by a preponderance

of the evidence the reasonable certainty of any future medical expenses.

Although the Court allowed submission of letters from a surgical coordinator

concerning the cost of future surgeries, there was insufficient evidence to

establish that Cedant will undergo those surgeries. Cedant testified he had

refused the recommended surgeries and, significantly, did not testify that he

would reconsider that decision.

Taking into consideration the apportionment principles set forth in

Florida law, as well as the evidence presented, the Court finds that it cannot

apportion between Cedant’s preexisting conditions and his current injuries.

See Hamblen, 172 So. at 696; Fravel, 2009 WL 10671272, at *3. Therefore, the

Court finds that Cedant is entitled to the following damages:

Medical expenses incurred in the past: $182,908

Medical expenses to be incurred in the future: $0

Pain and suffering and loss of enjoyment of life

in the past: $35,000

Pain and suffering and loss of enjoyment of life

in the future: $150,000

Total damages: $ 367,908

3. Conclusion

Accordingly, for the reasons set forth above, the Court enters a verdict

in favor of Cedant in the amount of $367,908.

The Clerk is directed to close this case and any pending motions are

denied as moot.

Done and ordered in Miami, Florida on August 30, 2024.

open N. Scola, Jr.

United States District Judge