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Keltner v. United States

United States District Court, W.D. Tennessee, Western Division

June 12, 2015

KENNETH A. KELTNER, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

MEMORANDUM OPINION

S. THOMAS ANDERSON, District Judge.

This is a personal-injury action involving claims arising from an automobile accident that occurred in Memphis, Tennessee, on June 7, 2011. Plaintiff Kenneth Keltner filed suit against Defendant United States under the Federal Tort Claims Act for injuries allegedly caused by the negligence of the United States Postal Service through its employee Leandrew Presley. The Plaintiff submitted a timely FTCA Administrative Claim with the Postal Service, in which he sought $300, 000 in damages for his injuries. Exercising jurisdiction under 28 U.S.C. ยง 1346(b), the Court tried the case on March 16, 2013. Federal Rule of Civil Procedure 52 requires that "[i]n an action tried on the facts without a jury..., the court must find the facts specially and state its conclusions of law separately."[1]

FINDINGS OF FACT

The parties stipulated to all relevant facts establishing liability. ( See Pretrial Order 3-4, ECF No. 18). On June 7, 2011, Keltner was driving his 2010 pickup truck eastbound on Mt. Moriah Road in Memphis, Tennessee. After waiting at the signal controlling his eastbound traffic lane at an intersection, Keltner received the green light. He drove his vehicle into the intersection preparing to turn north on his way home. As Keltner entered the intersection, a 2007 Mack CXN 613 tractor-trailer owned by USPS and operated by USPS employee Leandrew Presley drove southbound into the intersection and struck the driver's side of Keltner's vehicle. The Memphis Police Department issued Presley a citation for disregarding a red light. An ambulance took Keltner from the scene of the collision to Methodist Hospital's emergency room, where he received treatment. Keltner was released from the hospital the same day. The United States concedes that "the actions of the postal driver resulted in the collision with the Plaintiff" and that "[t]he postal driver was negligent in disregarding the red light at the intersection." (Def.'s Prop. Findings of Fact and Concl. of Law 3, ECF No. 23). The only issue before the Court is the amount of damages.

Keltner claims that as a result of the United States' negligence, he suffered damages including medical expenses, pain and suffering, and loss of capacity for the enjoyment of life. Keltner testified at trial that he was "knocked out, dazed or whatever" as a result of the collision, but Methodist's records indicate that he did not report a loss of consciousness upon admission to the hospital. (Trial Tr. 16:23-25; Trial Ex. 6). He was released the same day. Keltner testified that upon release, "my left knee was all black and blue, scratched up. My neck, I was very limited on how I could move my neck without severe pain. And lower back, you know, it wasn't real bad, but it still wasn't normal. I was still experiencing pain." (Trial Tr. 23:4-5). According to Methodist, Keltner had no fractures or traumatic injuries, but an x-ray of his cervical spine revealed a congenital fusion of the C4 and C5 vertebrae and mild arthritic changes through the C6 and C7 levels. ( Id. 47:10-15; Trial Ex. 6). He was not aware of the congenital fusion until that day and testified that he had never had any complications or pain from it. Dr. Samuel Schroerlucke opined at his deposition, to a reasonable degree of medical certainty, that "the wreck aggravated his previously-asymptomatic degenerative condition."[2] (Dep. of Dr. Samuel Schroerlucke 20:6-17; Trial Ex. 18).

The week of the collision, Keltner traveled to Gulf Shores, Alabama, for a previously scheduled family vacation. (Trial Tr. 24-25). He testified that he was severely limited on the vacation, and he saw Dr. Lyle Cooper, a chiropractor, three times while in Gulf Shores. From June 27, 2011, through February 27, 2014, Keltner received occasional physical therapy and treatment from Tabor Orthopedics and its back and neck specialist, Dr. Samuel Schroerlucke. Dr. Schroerlucke testified that this treatment was largely unsuccessful in remedying Keltner's pain. Keltner then received a nerve block from Dr. David Dowling in May 2012, which Keltner described as providing some short-term relief. ( Id. 28:25-29:9). Finally, between July 30, 2012, and April 21, 2014, Keltner underwent approximately six more epidural nerve blocks in an attempt to provide relief for his recurring pain. Nevertheless, from November 2012 to February 2014, Keltner sought no treatment because his nerve block was in place and apparently relieving his pain. ( Id. 57:19-58:12). In February 2014, he reported to his doctor that he continued suffer from lower-back and left-lower-extremity pain. ( Id. 58:16-59:4). He received his last nerve block in April 2014, and the block has given him substantial relief such that he does not intend to seek additional treatment. ( Id. 59:25-60:7)

Keltner testified that during the year after the collision, he could not turn his neck without turning his shoulders. He experienced recurring pain. ( Id. 29:19-25). He also reports that the collision affected his sleep pattern and forced him to sleep on the couch away from his wife. ( Id. 30:1-5). The testimony at trial showed that even after the accident, Keltner never lost the ability to perform activities of daily living. Today, his pain is controlled because the nerve blocks, which "last about a year, " have been effective. ( Id. 41:22-25).

Keltner testified at length about two hobbies impacted by the collision. Once an avid golfer, Keltner testified that he cannot "play golf as much as [he] would like to." ( Id. 35:8-9). He has not lost the ability altogether, and the United States pointed out that he even asked his doctor at Tabor Orthopedics if he could resume playing golf just two months after the collision and actually began playing just three months after the collision. ( Id. 52:15-53:25). He also testified that he still plays "once or twice a week at the most" but "cannot play in tournaments." ( Id. 61:4-8). Moreover, Keltner's testimony that "20 years ago" he "might have played seven days a week" is not persuasive to infer that before the collision he was playing so often. ( Id. 61:4-11). Keltner also mentioned a potential job-cleaning carts at a local golf course one day per week-that he was allegedly forced to turn down as a result of his neck pain. ( Id. 62:22-64:11). Furthermore, he had to relinquish his 10-gague shotgun and deer rifle because of their substantial kicks. Thus, he can no longer hunt turkey or deer. While he still hunts ducks because he does not experience pain shooting a 12-gague shotgun, he did lose some ability to perform maintenance and upkeep at his duck club. ( Id. 60:16-24).

He does not take any pain medication other than over-the-counter ibuprofen. ( Id. 61:12-15). When asked if he has plans to go back to physical therapy, Keltner responded: "Hey, as long as I can get around like I'm doing right now without really extreme pain, you know, I don't have any plans to do anything as long as I'm in good health." ( Id. 62:3-8). Dr. Schroerlucke testified that based on Keltner's treatment history, continued pain was probable, but periodic epidural injections and a home-exercise program would be sufficient treatment. (Dep. of Dr. Samuel Schroerlucke 38:14-22; Trial Ex. 18)

DISCUSSION

The FTCA provides that "[t]he United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."[3] FTCA claims "entail a two-step analysis. First, the district court applies local law to determine liability and to assess damages. Second, federal law is invoked to bar proscribed recoveries, such as punitive damages."[4] Here, the United States concedes liability. Thus, the Court must only assess damages.

In Tennessee, damages in personal-injury actions "primarily compensate the wronged party for his or her injuries and are intended to make the wronged party whole."[5] Here, Keltner has the burden of proving damages, and his proof "must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the damages."[6] The existence of damages may not be based on conjecture or speculation, but mathematical certainty is not required in proving the amount of damages, which the plaintiff need only prove with reasonable certainty.[7] Here, Keltner has proven the existence of damages and given the Court a sufficient basis to make a reasonable estimate of such damages.

Keltner should recover damages in two broad categories. First, he should recover his economic damages. This includes medical expenses already incurred as a result of the collision and future expenses for reasonably necessary medical care. Second, he should recover his noneconomic damages. This includes the physical and emotional pain and suffering he experienced ...


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