Knickerbocker v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

MICHAEL KNICKERBOCKER )

and ALEXANDRIA HILL, )

)

Plaintiffs, )

) Case. No.: 3:19-cv-910-RAH-SMD

v. ) [WO]

)

THE UNITED STATES )

OF AMERICA, )

)

Defendant. )

FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND FINAL ORDER

This cause is before the Court for the entry of findings of fact and conclusions

of law, which this Court makes in accordance with Federal Rule of Civil Procedure

52(a) based on the pleadings, the evidence including the witness testimony and

exhibits that were admitted, the arguments and stipulations of counsel, as well as the

remainder of the record.

This action arises out of a motor vehicle accident that occurred in Lee County,

Alabama on December 3, 2017. Plaintiff Michael Knickerbocker was driving his

motorcycle on Lee Road 166 when he was struck by a postal truck driven by

Gabrielle Nelson, an employee of the United States Postal Service (USPS). On

account of the collision, Knickerbocker filed the instant negligence action against

the United States seeking compensation under the Federal Tort Claims Act (FTCA),

28 U.S.C. § 2671 et seq.1

The parties have stipulated that on December 3, 2017, Nelson was an

employee of the United States, specifically the USPS, and was acting within the line

and scope of her employment at the time of the accident. Therefore, the Court

accepts that Nelson was a federal employee for purposes of the FTCA.

Pursuant to the FTCA, the United States can be held liable in tort in the same

manner and only to the same extent as a private individual under like circumstances.

28 U.S.C. § 2674. In considering claims brought under the FTCA, the Court applies

the substantive law of the place where the claim arose. See id; see also Schippers v.

United States, 715 F.3d 879, 887 n.8 (11th Cir. 2013) (“Under the FTCA, the

applicable law is the ‘whole law of the State where the act or omission occurred[.]’”

(citation omitted)). Thus, the substantive law of the State of Alabama applies in this

case.

In Alabama, “[t]o establish negligence, the plaintiff must prove: (1) a duty to

a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)

damage or injury.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994). Due to the

stipulation of liability by the United States on the claim for negligence, the only

1 Plaintiff Alexandria Hill also filed suit against the United States for damages suffered from this accident. She settled

prior to trial.

remaining issue for trial was Knickerbocker’s damages stemming from the accident.

Some of Knickerbocker’s damages claims are contested, while others are not.

In negligence actions under Alabama law, a plaintiff bears the burden of proof

to show that the defendant’s conduct naturally and probably brought about the

plaintiff’s harm and that the harm would not have happened without the conduct.

Bobo v. Tennessee Valley Auth., No. CV 12-S-1930-NE, 2014 WL 12902423, at *9

(N.D. Ala. Aug. 25, 2014) (citing 2 Alabama Pattern Jury Instructions — Civil §

33.00 (3d ed. 2013); Lingefelt v. Int'l Paper Co., 57 So. 3d 118, 122–23 (Ala. Civ.

App. 2010); Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala. 1976);

City of Mobile v. Havard, 268 So. 2d 805, 810 (Ala. 1972)). As the factfinder, the

Court is free to determine the reliability and credibility of the witness testimony and

expert opinions and to weigh them as it sees fit. See Fed. R. Civ. P. 52(a)(6); United

States v. Brown, 415 F.3d 1257, 1270 (11th Cir. 2005).

The Court conducted a one-day bench trial on November 7, 2022. During the

trial, Knickerbocker testified on his own behalf and called his stepfather, Steven

Counts, as a witness to corroborate his injuries and damages. Knickerbocker also

presented, and the Court received, deposition testimony from Dr. Keith Anderson, a

physiatrist, who performed an independent medical examination of Knickerbocker.

Additionally, the Court reviewed evidence introduced by the parties, including

Knickerbocker's extensive medical records and bills and photographs of the vehicles

at the scene of the accident, as well as Knickerbocker’s injuries. After the close of

the evidence, the parties filed post-trial briefs.

I. FINDINGS OF FACT

At the time of the accident, Knickerbocker was 24 years old and employed in

the wood flooring business with his stepfather. He is a father of three, with one child

having been born after the accident.

Knickerbocker’s job was physically demanding. It included lifting, squatting,

carrying and using heavy equipment, and carrying heavy bundles of wood flooring,

oftentimes up several flights of stairs. He worked 40 to 50 hours per week for $13

per hour. Outside of work, he exercised and enjoyed time with his family, including

running and using the trampoline with his daughters. He had no existing physical

issues or limitations.

The motor vehicle accident on December 3, 2017 changed that.

Knickerbocker estimated that he was traveling at approximately 25 to 30 mph when

he was hit by the front of a USPS mail truck driven by Nelson. At the scene, he was

immediately hurting, afraid, and scared. Due to his injuries, he could not stand up

and walk. Medical personnel arrived and he was transported by helicopter to

Midtown Medical Clinic in Columbus, Georgia on account of his condition as

assessed on the scene.

At the hospital, he was diagnosed with a dislocated hip and broken radius in

his right arm, for which he received closed reduction procedures. He was released

from the hospital the next day with orders to use aspirin, naproxen, and hydrocodone

for his pain.

Over the next 6 weeks, Knickerbocker made several follow up visits to The

Hughston Clinic, a local medical care provider. He last visited The Hughston Clinic

on February 27, 2018, nearly five years ago, where it was noted that he was doing

well, had no significant pain in his hip, and did not require any medication, but that

he still complained of stiffness in his right wrist and some numbness over his knee.

He was released to return to work on February 28, 2018, full duty and with no

restrictions. The Hughston Clinic asked him to return for a follow up visit in six

months for assessment for possible osteonecrosis. Knickerbocker did not return as

directed.

Due to his injuries and pain, Knickerbocker remained out of work for

approximately eight weeks. Because he had a family to support and bills to pay,

Knickerbocker returned to work. However, he could not function in the job as he

could pre-accident. He testified that he could not get up and down as he formerly

could, could not squat, and still suffered from pain and numbness. On numerous

occasions, his leg would lock up and he would stumble.

After a visit to a physician in October 2019, nearly two years after the

accident, Knickerbocker participated in several physical therapy sessions, primarily

for hip pain. At the time, the therapist noted his hip pain as ranging from four to

seven on a scale of ten. The therapist noted problems with decreased range of

motion, decreased flexibility, decreased joint mobility, decreased muscle strength,

increased pain, and hypertonicity. Knickerbocker nevertheless quit attending

physical therapy because, as he testified, his condition was not improving.

Knickerbocker testified that due to physical difficulties with performing the

flooring job, he changed jobs and began working for a landscape company where he

primarily operated equipment. He was later let go because his employer thought he

was a liability due to his physical condition. Knickerbocker then returned to the

flooring business.

In October 2021, Knickerbocker was examined by Dr. Keith Anderson, a

physiatrist, for an independent medical examination. During the visit,

Knickerbocker reported that he had not seen a doctor for several years, was still

suffering from dull, aching hip pain, that he was never pain free and rated to a four

to five on the zero-to-ten pain scale, that he suffered from numbness and tingling on

his right side, and that he had some right wrist pain with intermittent numbness and

tingling, but that he did not have problems sleeping at night.

On January 5, 2022, Knickerbocker visited an orthopedic physician group in

North Alabama. At the time, he complained of increased pain from the lower back

radiating down to his foot and ankle, with tingling and burning. During the visit,

Knickerbocker confirmed that he had been working in the flooring business full duty

and that he had not been taking anything for the pain. The examining doctor

diagnosed low back pain and sciatica, but he did not think Knickerbocker needed

any treatment for his hip dislocation.

Knickerbocker testified that he has recently taken a job with a construction

company in Opelika, Alabama as an equipment operator, where his income is higher.

This job is much less physically demanding than the flooring job.

His injuries have also impacted his family life. He cannot play with his

children as he formerly could, such as running, jumping, swinging, and hiking. He

described recent difficulty with pain that required him to stop on several occasions

during Halloween trick-or-treating with his family. He also described his inability

to assist his mother with activities around her house, activities which his brother and

cousin now had to perform.

He describes his current pain as chronic, now having suffered from it for

nearly five years. It has impacted his emotional well-being, including frustration,

crying, and depression. He also describes difficulty with sleeping and with his sex-

life, although he acknowledged having fathered a child since the accident. He cannot

sit still for long periods of time and must look for particular types of chairs with

backs and armrests in order to maximize his comfortability.

This Court also observed Knickerbocker during the trial. Knickerbocker

walked with a noticeable limp and grimace, and he also remained very squirmy in

the witness box and at counsel table.

Knickerbocker acknowledges that he has had minimal medical treatment since

his initial hospitalization in December 2017, and his current course of treatment

involves conservative treatment such as massages, Icy Hot cream, salt baths, and the

occasional use of over-the-counter medication. He attributes his minimal medical

treatment to his lack of health insurance and insufficient funds to pay for doctor

visits due to his family financial responsibilities. He acknowledges that he initially

participated in physical therapy, but he quit going because he had family duties to

attend to and because the physical therapy was no longer helping. He also

acknowledges that he has attempted to play with his kids, including a few moments

on the trampoline, and that he has helped fix-up go-carts, including racing one on

one occasion.

II. DAMAGES

Knickerbocker seeks several categories of damages in this action,

acknowledging that he can obtain no more than $650,000 total, since this was the

amount in his prior administrative demand. In his post-trial brief, he seeks $650,000

in compensatory damages. Some of the individual damages are contested by the

United States, some are not. The United States in its post-trial brief argues that

Knickerbocker is entitled to no more than $118,719.11, most of which is attributable

to out-of-pocket, accrued and incurred medical expenses. The Court begins with

those damages that are not contested, and then discusses those that are contested.

A. Past Medical Expenses

Knickerbocker seeks $73,444.09 for accrued medical expenses. (Pl. Exs. 37–

43; Def. Exs. 16–25) [Doc. 82 at 3; Doc. 64 at 4.] This amount is not contested by

the United States other than a comment that it is inflated because, had Knickerbocker

had health insurance as required by law, the medical bill amount would be

substantially less due to contractual write-downs. Whether he did or did not have

health insurance, the medical expenses were in fact incurred, and Knickerbocker is

responsible for them. The Court concludes that since the full sum is due, owing, and

recoverable and since the parties stipulate to this amount, $73,444.09 will be

awarded.

B. Lost Wages

Knickerbocker seeks lost wages for his eight weeks away from work at $13

per hour. (Pl. Ex. 68; Def. Ex. 2.) Knickerbocker estimates this figure to be in the

range of $4,680–5,200. The United States does not contest this figure, and in fact

stipulates to the $5,200 figure. [Doc. 82 at 3; Doc. 64 at 4.] Accordingly, lost wages

in the amount of $5,200 will be awarded.

C. Damage to the Motorcycle

Knickerbocker’s motorcycle was severely damaged to the tune of, at a

minimum, $4,583 in estimated repair costs. (Pl. Ex. 67; Def. Ex. 4) [Doc. 82 at 3;

Doc. 64 at 4.] Knickerbocker testified that he purchased the motorcycle

approximately two years prior for $7,616.89 and that, in his opinion, the motorcycle

had the same value at the time of the accident and was a total loss because of the

accident. (Pl. Ex. 67; Def. Ex. 3.) A review of the purchase invoice for the

motorcycle shows that Knickerbocker actually paid $6,995 for the motorcycle itself,

when taxes and freight are excluded. (Pl. Ex. 67; Def. Ex. 3.) Since the time of the

accident, the motorcycle has apparently been repossessed, but then returned to him.

No competent evidence was provided as to the current ownership of the motorcycle.

Knickerbocker seeks the entire original purchase price for the motorcycle, while the

United States claims the cost to repair is the appropriate measure of damages.

The Court awards Knickerbocker $5,982 on this item of damages. This sum

includes the cost to repair the motorcycle, as well as the Court’s estimate that the

value of the repaired motorcycle will have diminished 20% from the base purchase

price of $6,995 due to its involvement in the accident.

D. Pain & Suffering, Mental Anguish, Physical Disability, and

Disfigurement

Knickerbocker seeks an extensive amount of money ($204,780 to $273,040)

in damages for past and future physical pain and suffering, a sum stemming from a

daily value of $300 to $400 per month over Knickerbocker’s life expectancy of

682.60 months. [Doc. 55 at 18.] He also seeks $68,260 to $102,390 for mental

anguish, valued at $100 to $150 per month over his life expectancy, $102,390 to

$136,520 for physical disability, and $136,520 to $170,650 for physical

disfigurement. [Id.] Finally, he seeks $68,260 to $102,390 for loss of enjoyment of

life. [Id.]

The United States does not dispute that damages for pain and suffering and

mental anguish are due to be awarded; it only disputes the amount, arguing that no

more than $30,000 should be awarded. [Doc. 93 at 5.]

Both parties reference verdicts in other motor vehicle accident cases, ranging

from lower verdicts cited by the United States to larger verdicts cited by

Knickerbocker. [See generally Docs. 82, 84.] The Court finds these verdicts without

any relevance to this case, as each action for tort damages must proceed on its own

distinctive facts and evidence.

Here, the testimony and evidence confirm a semi-serious motor vehicle

accident in which Knickerbocker was injured and transported from the scene by

helicopter and hospitalized for one day, with limited follow up medical visits and

limited physical therapy. Fortunately for Knickerbocker, the accident was not as

severe as it could have been; after all, he was driving a motorcycle that collided with

another vehicle. Knickerbocker provided testimony concerning his nearly five-year

battle with the pain associated with the accident. His testimony also confirms that

the pain has not been so debilitating that it required extensive follow up treatment,

pain management, or care, or that it substantially altered his life activities. His

testimony does confirm though that he has suffered pain, that it has impacted his

personal life, his work life, and his general ability to go about his daily activities,

and that he will have some degree of permanent impairment with it. The Court finds

his testimony on these subjects credible.

Based on the evidence and after careful consideration of these factors, the

Court awards a general sum of $175,000 for past, present, and future pain and

suffering, mental anguish, physical disability, and disfigurement. See Handley v.

United States, No. 5:17-CV-01278-HNJ, 2021 WL 2023057, at *42 (N.D. Ala. Mar.

18, 2021), appeal dismissed, No. 21-12899-CC, 2022 WL 3588965 (11th Cir. July

15, 2022) (under Alabama law, “[t]he trier of fact determines the amount

of damages to be awarded for pain, suffering and mental anguish in light of all the

relevant circumstances” (quotation and citation omitted)).

E. Future Surgery and Medical Care

Knickerbocker seeks the cost of future medical care, primarily focusing on

future hip replacement surgery to resolve avascular necrosis—the same injury that

tanked Bo Jackson’s illustrious football career. In his testimony, Dr. Anderson

testified that Knickerbocker has a good chance of developing post-traumatic arthritis

and that it is more likely than not that he will suffer from avascular necrosis in the

future. The parties disagree as to the cost of future hip surgery, with Knickerbocker

estimating $17,781 and the United States estimating $11,674.39. (Pl. Ex. 69; Def.

Ex. 40.) Aside from the surgery, Knickerbocker also points to the related costs that

would come with such a surgery and cites to those costs as incurred during his post-

accident hospitalization as evidence of what those costs would be. The parties have

provided little-to-no evidence as to what the total actual cost of that surgery would

be if performed today, including surgery fees, anesthesia, hospital costs, and the like,

nor any firm evidence of post-surgery physical therapy.

Given Dr. Anderson’s testimony and the type of injury involved, the Court

concludes that an award of $25,000 is appropriate for the future hip surgery. This

includes the current estimated cost of the procedure and an additional amount

necessary for other costs such as hospital fees and anesthesia. The Court also notes

that the surgery would occur many years in the future and therefore the likely cost

of the surgery would be significantly more than $25,000. However, no evidence was

provided as to what the future cost would be at the stage in life where Knickerbocker

would likely have the operation, and therefore the Court awards a sum based on

today’s cost from the information contained in the record.

Knickerbocker also seeks the costs of physical therapy for the rest of his life

expectancy. The Court declines to award damages on such an open-ended and

unsubstantiated basis, especially since Knickerbocker testified that he quit attending

physical therapy because it did not help him. However, as with any surgery, there

will be a need for physical therapy, and as such, the Court finds that an award for 24

weeks of post-surgery physical therapy (48 sessions total) at $76 per session is

appropriate. Accordingly, the Court awards $3,648 for physical therapy.

The Court awards no other damages for pre- or post-surgery physical therapy.

The Court also awards no further damages for future prescriptions or follow up

medical care, as Knickerbocker has presented no credible evidence supporting such

an award.

F. Costs of Insurance

Knickerbocker also seeks as damages the cost of enrolling in health insurance.

The Court declines to award the cost of health insurance. Insurance costs alone are

not foreseeable or expected expenses stemming from a motor vehicle accident. And

further, the Court finds that it is far too speculative and conjectural to award

Knickerbocker the cost of insurance premiums for life, since he could at any moment

procure a job that offers health insurance as a benefit.

G. Total Damages Awarded

In sum, the Court finds that Knickerbocker is entitled to a total damages

award as follows:

Past Medical Expenses: $73,444

Lost Wages: $5,200

Damage to Motorcycle: $5,982

Future Medical Care: $28,648

Pain & Suffering, Mental Anguish,

Loss of Enjoyment, Disability &

Disfigurement: $175,000

Total: $288,274

III. CONCLUSION

Accordingly, it is ORDERED as follows:

The Clerk of the Court is directed to enter JUDGMENT in favor of Plaintiff

Michael Ryan Knickerbocker and against the Defendant in the total amount

of $288,274.00. Costs are taxed against the Defendant. The Clerk is further directed

to terminate all pending motions and deadlines as moot and close the file.

DONE AND ORDERED this the 6th day of January, 2023.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE