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Polk v. United States

United States District Court, E.D. Louisiana

April 2, 2018

McKINLEY POLK
v.
UNITED STATES OF AMERICA

          FINDINGS OF FACTS AND CONCLUSIONS OF LAW

          JOSEPH C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.

         This 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.

         Having 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 Fed.R.Civ.P. 52(a).

         FINDINGS OF FACT

         1. 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).

         2. On 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.

         3. 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).

         4. Cassimere testified[1] 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.

         Cassimere 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, lines 11-13.

         5. When 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.

         6. Cassimere spoke to his wife on his cell phone while Polk, Ridgel and Cooper were on board. Record Doc. No. 11 at p. 4, ¶¶ 7(4)(5).

         7. The 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.

         8. 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.

         Cassimere 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.

         9. 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, lines 4-5.

         10. 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 lane.

Id. at pp. 60, lines 21-23, 25 and 61, lines 1-2, 6-9, 12-14 (emphasis added).

         11. 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.

         12. 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. Id.

         13. Polk and Cooper went to Urgent Care at approximately 4:45 p.m. and wrote statements concerning the accident. Record Doc. No. 13-1.[2]

         14. I 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.

         15. 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.

         Fifth 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.

         16. 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 van.

         17. 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).

         18. 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.

         19. 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.

         20. 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 conditions.

         21. The 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.

         22. 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.

         23. 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 minor ...


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