United States District Court, E.D. Louisiana
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
matter was referred to a United States Magistrate Judge for
all proceedings and entry of judgment in accordance with 28
U.S.C. § 636(c) upon the written consent of all parties.
Record Doc. No. 8. Plaintiffs Edmond Stokes and Jeremy
Stokes, substituted as the proper parties for deceased
plaintiff McKinley Polk (“Polk” or
“plaintiff”), seek damages pursuant to the
Federal Tort Claims Act, 2 U.S.C. § 2671, et seq., and
Louisiana tort law for the injuries Polk allegedly suffered
as a result of a van accident caused by the allegedly
negligent conduct of the defendant United States'
employee, Orlander S. Cassimere, Jr.
(“Cassimere”) on September 11, 2014. A non-jury
trial was conducted on January 25, 2018.
considered the evidence at trial, the record, the testimony
of the witnesses, the arguments and written submissions of
the parties and the applicable law, the court makes the
following findings of fact and conclusions of law pursuant to
Plaintiff was 58 years old at the time of the September 11,
2014 accident. Joint Exhibit 1 at p. 34. On that day, at
about 3:45 p.m., Department of Veterans Affairs (the
“VA”) employee Cassimere drove a Veterans
Administration transportation van over a bump on Canal Street
in New Orleans, Louisiana, which caused his three passengers
to be jostled. Cassimere deposition at p. 40, lines 23-24;
Joint Exhibit 10 (photographs of the VA van).
that date, Polk, Jason Ridgel III (“Ridgel”), and
a wheel-chair bound veteran identified as “Mr.
Cooper” were passengers in the van driven by Cassimere.
Record Doc. No. 11 at p. 4, ¶¶ 7(1)(2); Cassimere
deposition at pp. 35, lines 24-25 and 36, lines 1-5.
Cassimere is employed by the VA as a passenger van and bus
driver. Id. at pp. 12, lines 10-12 and 13, lines
4-6. Cassimere was the driver of the VA van involved in the
accident, and he was, at all pertinent times, acting in the
course and scope of his employment with the VA. Record Doc.
No. 11 at p. 4, ¶ 7(3).
Cassimere testified that on September 11, 2014, his assignment
route started at Perdido Circle.
I would come out of the Perdido Circle, turn right, and then
turn right again on Claiborne [Avenue], make my way over to
the far left lane, when it's safe, and I would then take
a left turn onto Canal Street. . . . The route is from the
Perdido Circle to 3500 Canal Street, Mental Health.
deposition at pp. 30, lines 22-25 and 31, lines 24-25. When
asked if he was familiar with the route he took that day,
Cassimere responded affirmatively. Id. at p. 31,
the three passengers boarded the van at Perdido Circle, Polk
was seated on the passenger side, toward the front; Cooper
was in his wheelchair in the rear on the passenger side; and
Ridgel was on the driver's side in the middle of the van.
Record Doc. No. 22 at p. 51, lines 2-12.
Cassimere spoke to his wife on his cell phone while Polk,
Ridgel and Cooper were on board. Record Doc. No. 11 at p. 4,
testimony of Cassimere conflicts with the testimony of Ridgel
as to when Cassimere began his phone conversation with his
wife and the speed at which Cassimere was traveling at the
time of the accident. This conflict is largely insignificant.
Cassimere testified that he spoke on his phone with his wife
before the accident, while parked in Perdido Circle.
Cassimere deposition at pp. 34, lines 20-25 and 35, line 1.
Ridgel testified that Cassimere spoke to his wife
while he was driving. More significantly, Cassimere
and Ridgel agreed that Cassimere was not talking on
his cell phone when he hit the bump on Canal Street. Record
Doc. No. 22 at p. 55, lines 2-4; Cassimere's deposition
at p.44, lines 2-7.
Cassimere testified that he hit a bump near Warren Easton
Charter High School (3019 Canal Street, between Broad Street
and Jefferson Davis Parkway).
I hit the bump there, which I knew was
there, but I didn't think I'd hit it that hard,
you know, because I'm used to going down that street. And
like I told the Veterans attorney, I just about know
every crack, hump, bump in the streets, because I've gone
through there so much.
But I hit the bump. I, you know, bounced up a
little bit. And as I passed it, Mr. Cooper yelled out,
“Hey, I've fallen over.” And I immediately
signaled and pulled to the side, in that intersection right
there on Jeff Davis.
And I turned around. I looked. Sure enough, he had done
tilted over. And I found that hard to believe, you know,
until I got back there and I looked at - - looked down,
looked at the chair. The restraints weren't on there.
deposition at pp. 38, lines 8-25 and 39, line 1 (emphasis
added). Cassimere testified that he bounced in his seat,
which was an air-ride seat that moved up with him, about two
to four inches. Id. at p. 42, lines 24-25.
Ridgel testified that Cassimere hung up his phone when he
turned onto Canal Street and then “punched it. Well, he
accelerated, you know, too much down Canal Street and hit a
pothole and that's when the front of the bus took a nose
dive and catapulted the rear in the air and all three of us
flew into the air.” Record Doc. No. 22 at p. 54, lines
4-8. Ridgel clarified that Cassimere accelerated from a stop.
Id. at p. 56, lines 6-8. Ridgel stated that the
force of impact with the bump threw him “a foot into
the air, ” id. at p. 56, line 19, and that he
landed with half of his body in the aisle and the other half
on the seat. Id. at p. 82, lines 15-16. When
Cassimere was asked how fast he was driving when he passed
over the bump, he answered that the “[s]chool zone was
still on. So once I passed Warren Easton, maybe 30, 35 [miles
per hour].” Cassimere deposition, p. 41, lines 7-8.
Ridgel estimated that Cassimere went from “zero to
thirty [miles per hour] in, you know, maybe five seconds or
something like that.” Record Doc. No. 22 at p. 56,
Ridgell further testified that the bump in the street was a
result of construction on Canal Street. He stated that [i]t
was a pothole that they just laid, but it was real shallow
like a dip. I went over it [as a passenger] . . .
hundreds of times. Usually they would stop for it.
You know, kind of slow down and, you know, go over it. . . .
It was a pothole at one time, then they kind of filled it in.
The way it settled, it left a hole like a dip. The bus hit it
too fast. . . . I want to say it almost went across - - not
exactly to the middle of the lane, but maybe a quarter of the
Id. at pp. 60, lines 21-23, 25 and 61, lines 1-2,
6-9, 12-14 (emphasis added).
Cassimere testified that when he pulled the van over after
hitting the bump, he asked everyone if they were “all
right, ” and all three passengers replied
“[w]e're fine. We're good.” Cassimere
deposition at p. 43, lines 20-23. He further testified that
the three passengers stated that they did not need to see a
doctor. Id. at p. 44, lines 18-20.
Cassimere and Ridgel testified that a VA police officer was
outside of the VA Mental Health Clinic at 3500 Canal Street
when the van arrived. Cassimere deposition at p. 45, lines
3-6; Record Doc. No. 22 at p. 59, lines 1-14. Cassimere,
Ridgel and Polk all gave oral statements to the VA officer.
Polk and Cooper went to Urgent Care at approximately 4:45
p.m. and wrote statements concerning the accident. Record
Doc. No. 13-1.
find Cassimere's testimony credible. It was internally
consistent, and he was candid in explaining that he had a
heated phone conversation with his wife while in the van and
that he ran over the bump on Canal Street, with which he was
fully familiar, at a speed of 30-35 miles per hour.
Ridgel's testimony that Cassimere accelerated at some
point along Canal Street and hit the bump with enough force
to jostle himself and the other two passengers is also
credible. Ridgel's demeanor and candor concerning his
personal medical history inspired confidence in his
testimony. Ridgel's occasional lapses of memory
concerning events that happened more than three years ago
amount to nothing more than insignificant trivialities that
in no way alter my finding that Ridgel is credible. As the
United States Fifth Circuit Court of Appeal's Pattern
Jury Instructions state,
a simple mistake by a witness does not necessarily mean that
the witness did not tell the truth as he or she remembers it.
People may forget some things or remember other things
inaccurately. If a witness made a misstatement, consider
whether that misstatement was an intentional falsehood or
simply an innocent mistake. The significance of that may
depend on whether it has to do with an important fact or with
only an unimportant detail.
Circuit Pattern Jury Instructions 2.11 (2014). In this case,
Ridgel's lapse of memory concerning whether Polk was
jostled out of his seat and the amount of time it took for
the van to get from the scene of the accident to the VA
Mental Health Clinic is entirely innocent.
Cassimere was going approximately 30 to 35 miles per hour on
Canal Street when he hit a bump, which he knew existed. The
impact was severe enough to cause Cassimere to bounce up and
Cooper's wheelchair to tilt over against the side of the
Based on Ridgel's credible testimony concerning the
extent of the bump, Cassimere's testimony admitting that
he drove at 30 to 35 miles per hour directly over a road
hazard on Canal Street with which he was familiar and the
other believable evidence, the court finds that Cassimere did
not drive as a reasonably prudent VA transport van driver
should have in a similar situation and was negligent in
failing to avoid or slow down for a known obstacle on a route
he drove frequently. See Thissel v. Commercial Union Ins.
Co., 476 So.2d 851, 855 (La.App. 2d Cir. 1985) (driver
who was familiar with area frequented by pedestrians should
have seen and attempted to avoid hitting the plaintiff
pedestrian, given that he had driven through the area several
times earlier in the evening).
Edmond Stokes, one of Polk's sons, testified at trial
that he observed a change in his father's back and neck
conditions after the accident on September 11, 2014. Record
Doc. No. 22 at p. 37, lines 9-13. In describing his
observations, Stokes stated that Polk “pretty much was
down all the time, you know. . . . I mean he would move
around. But after the accident, it was . . . a real change
after that.” Id. at pp. 37, lines 21-23 and
38, lines 8-10.
While the court finds that Stokes presented credible
testimony at trial, his testimony focused on his father's
complaints rather than on specific descriptions of his own
observations of his father's physical condition worsening
after the September 11, 2014 accident. His description of his
father's behavior after the accident was conclusory,
lacking in descriptive detail, and unconvincing as to any
substantial exacerbation of his father's condition
post-accident. I cannot conclude based on Stokes's
testimony, especially when compared with Polk's medical
records, that the jostling Polk experienced in the incident
caused anything more than slight exacerbation or aggravation
of Polk's previously existing neck and back ailments.
Polk's medical records provide a more comprehensive view
of Polk's pre- and post-accident neck and back
conditions, and the deposition testimony of Polk's
orthopedist, Dr. Michael Zeringue (“Dr.
Zeringue”), provides a clearer view of how the subject
accident affected Polk's preexisting degenerative
evidence, including the credible medical record summary
evidence presented at trial by Alice Adams, a registered
nurse and legal nurse consultant; Dr. Zeringue's
deposition testimony; and Polk's medical records, weighs
in favor of a finding that the subject accident was the
proximate or legal cause of a much less than severe
aggravation of Polk's pre-existing degenerative neck and
back conditions. Specifically, the accident in which Polk was
injured more probably than not caused him to suffer a slight
exacerbation of his serious pre-existing degenerative disc
disease and a continued-though not significantly increased-
restriction of his physical capabilities.
Although Polk was not wearing a seatbelt at the time of the
accident, applicable Louisiana statutory law cited below
prohibits that fact from being considered in any comparative
fault analysis. The court allocates 15 percent of the fault
in this case to the City of New Orleans for its failure to
take corrective measures to prevent harm from the
unreasonable risk presented by the bump on Canal Street.
Finally, the United States is apportioned 85 percent of the
fault in this case for the negligence of its employee,
Cassimere, who was acting in the course and scope of his
employment when he negligently drove over bump in the street,
that he knew was in the path of his van route that day,
without slowing to a speed that would not cause his
passengers to be dislodged from their seats.
Because the government focused much effort on its argument
that the medical records show little to no difference between
Polk's pre- and post-accident neck and back conditions,
and because I find that the records substantially support a
finding that defendant's negligence resulted only in a