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Brooks v. United States

United States District Court, E.D. Louisiana

December 19, 2019

PAMELA BROOKS, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

         SECTION: “E” (2)

          SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

          SUSIE MORGAN UNITED STATES DISTRICT JUDGE

         On November 14, 2019, the Court issued its Findings of Fact and Conclusions of Law.[1] The Court ordered the parties to file supplemental expert reports to assist the Court in determining the amount of past medical expenses, future medical expenses, and future lost wages due the Plaintiff.[2] On December 9, 2019, Plaintiff and Defendant filed their supplemental expert reports.[3], [4]

         ANALYSIS

         I. Past Medical Expenses

         The parties stipulated to past medical expenses in the amount of $49, 176.72, as reflected in Trial Exhibit 27, but the Defendant did not stipulate all those amounts were caused by the accident.[5] In its Findings of Fact and Conclusions of Law, the Court determined the percentages of Plaintiff's past medical expenses caused by the accident.[6]The Court ordered the parties to file supplemental expert reports from their respective life care planners and economists, based on the Court's rulings, specifying:

All damages must be attributed to specific bodily injuries and may not be grouped together. Further, the supplemental lifecare plans should include a discussion of past medical expenses and should specify which portions of the past medical expenses are attributable to each injury.[7]

         The Government's expert lifecare planner, Hegwood & Company, LLC, Professional Rehabilitation Counselors (“Hegwood”), determined Plaintiff's past medical expenses caused by the accident totaled $25, 196.29.[8] Hegwood explained its methodology for determining this amount as follows:

Based on the Court's causation findings, Ms. Brooks is entitled to 20% of her past medical expenses related to her left and right knees; is entitled to the full amount of past medical expenses related to her right shoulder and lumbar spine; and is not entitled to any past medical expenses related to her cervical spine. In analyzing Trial Exhibit 27 and applying the finding, it was determined that Ms. Brooks is owed $25, 196.29 in past medical expenses (Attachment A).[9]

         Attachment A attributed past medical expenses to the various injuries caused by the accident, as directed by the Court.

         The past costs listed in the report provided by Plaintiff's lifecare planner, Elizabeth B. Martin & Associates (“Martina”), fail to comply with the Court's order in two important regards. First, the Court ordered “[a]ll damages must be attributed to specific bodily injuries and may not be grouped together.”[10] However, in multiple instances, Martina grouped bodily injuries together and provided no way for the Court to determine the amount of past medical expenses for each injury caused by the accident.[11] For instance, Martina attributed Plaintiff's $8, 281.00 past medical expenses from November 3, 2016 to June 21, 2017 to her Southshore Physician visits relating to “Cervical/Lumbar/Bilateral Knees/Right Shoulder.”[12] Second, it appears Martina did not reduce the past medical amounts related to Plaintiff's bilateral knee injuries by eighty percent, [13] despite the Court's holding that Plaintiff is entitled to only twenty percent of her past medical expenses related to her bilateral knee injuries.[14]

         Hegwood correctly attributed specific past medical expenses to specific bodily injuries and reduced the past medical expenses related to Plaintiff's knee injuries by eighty percent.[15] Accordingly, the Court accepts the amounts in the Hegwood expert report. Plaintiff is awarded $25, 196.29 in past medical expenses.

         II. Future Medical Expenses

         Plaintiff's expert economist, Dr. Kenneth Boudreaux, [16] and Defendant's experts, Harold Asher and Jeffrey Meyers, [17] calculated Plaintiff's future medical expenses with respect to her bilateral knee injuries, right shoulder injury, and lumbar spine injury. All experts used a life expectancy of 24.14 years.[18] Boudreaux used a real discount rate of 0.00% to 0.47%.[19] Asher and Meyers used a real discount rate of 0.00%[20] The Court finds the discount rate used by Boudreaux is appropriate.

         Boudreaux based his calculations of Plaintiff's future medical costs on the future medical costs included in the supplemental report filed by Martina (the “Martina Report”)[21] whereas Asher and Meyers based their calculations of Plaintiff's future medical costs on the future medical costs included in the supplemental report filed by Hegwood (the “Hegwood Report”).[22] Several of the future medical costs in the Martina Report differ from those in the Hegwood Report. Some of these differences are due to the fact that, although Hegwood derived many of the future medical costs from those included in the original Martina report and the amended Martina report admitted at trial, [23] Hegwood derived other future medical costs from “goodrx.com.”[24] Martina derived the future medical costs included in her original and amended reports from invoices and quotations supplied by Plaintiff's treating physicians, Dr. Fred DeFrancesch, Dr. Marco Rodriguez, and Dr. Robert Bostick, as well as other sources.[25] Additional significant differences between the Martina Report and the Hegwood Report are discussed below.

         A. Left and Right Knees

         The Court determined “Plaintiff is entitled to twenty percent of her future medical expenses related to her left and right knee injuries.”[26]

         In the original Martina report and the amended Martina report admitted at trial, Martina set forth the treatments related to Plaintiff's future medical expenses for her bilateral knee injuries.[27] In their supplemental reports, Martina and Hegwood each calculated the costs of these treatments, reducing the overall costs by 80%.[28] Martina determined Plaintiff's future one-time costs, including her knee replacement surgeries, will total $11, 754.11 to $14, 147.47 and her future annual costs will total $49.30 to $153.29.[29] Applying Plaintiff's 24.14 year-life expectancy to her annual costs, Plaintiff's total future medical expenses related to her bilateral knee injuries as calculated by Martina total roughly $12, 944.23 to $17, 847.89, the midpoint of which is $15, 396.06.[30]Hegwood determined Plaintiff's future medical expenses related to her bilateral knee injuries will total $12, 360.45 to $16, 262.26, [31] the midpoint of which is $14, 311.35. The Court accepts the future medical costs as established by Martina.

         Based on the Martina Report, Boudreaux calculated Plaintiff's future medical expenses related to her bilateral knee injuries will total $15, 394.20.[32] The Court accepts Boudreaux's opinion on this matter.

         Plaintiff is awarded future medical expenses related to her bilateral knee injuries in the amount of $15, 394.20.

         B. Right Shoulder

         The Court determined “Plaintiff is entitled to future medical expenses related to her right shoulder for ongoing conservative treatment. Plaintiff is not entitled to any amount of future medical expenses for shoulder surgery.”[33]

         In the original Martina report and the amended Martina report admitted at trial, Martina set forth the treatments related to Plaintiff's future medical expenses for her right shoulder injury.[34] In their supplemental reports, Martina and Hegwood each calculated the costs of these treatments, excluding the costs of any treatments related to right shoulder surgery.[35] Martina determined Plaintiff will have no future one-time costs related to her right shoulder injury and her future annual costs will total $196.48 to $549.05.[36] Applying Plaintiff's 24.14 year-life expectancy to her annual costs, Plaintiff's total future medical expenses related to her right shoulder injury as calculated by Martina total roughly $4, 743.03 to $13, 254.07, the midpoint of which is $8, 998.54.[37]

         Hegwood determined Plaintiff's future medical expenses related to her right shoulder injury will total $2, 957.76 to $8, 357.76, [38] the midpoint of which is $5, 657.76. Hegwood reduced Plaintiff's costs for “Orthopedic Surgeon routine” by fifty percent because:

According to the USDC Findings of Fact and Conclusions of Law dated 11/14/19, plaintiff is entitled to future medical expenses related to her right shoulder for ongoing conservative treatment, but not entitled to any future amount for shoulder surgery. For purposes of itemizing costs by anatomical pathology, 50% of each annual visit is attributed to her shoulder.[39]

         While the Court did rule Plaintiff is entitled only to future medical expenses related to her right shoulder for conservative treatment, [40] there is no indication the “Orthopedic Surgeon Routine” cost is for shoulder surgery or for post-operative shoulder treatment. As a result, the fifty percent reduction was not justified. The Court accepts the future medical costs as established by Martina.

         Based on the Martina Report, Boudreaux calculated the value of Plaintiff's future medical expenses related to her right shoulder injury will total $9, 117.53.[41] The Court accepts Dr. Boudreaux's opinion on this matter.

         Plaintiff is awarded future medical expenses related to her right shoulder injury in the amount of $9, 117.53.

         C. Lumbar Spine

         The Court determined “Plaintiff is entitled to future medical expenses relating to her lumbar spine, including the cost of one RFA per year for four years.”[42]

         In the original Martina report and the amended Martina report admitted at trial, Martina set forth the treatments related to Plaintiff's future medical expenses for her lumbar spine injury.[43] In their supplemental reports, Martina and Hegwood each calculated the costs of these treatments, including the cost of one radiofrequency ablations (“RFA”) procedure per year for the next four years.[44] Martina determined Plaintiff's future one-time costs related to her lumbar spine injury, including the cost of her RFA procedures, will total $49, 922.00 to $65, 158.60 and her future annual costs will total $545.60 to $647.90.[45] Applying Plaintiff's 24.14 year-life expectancy to her annual costs, Plaintiff's total future medical expenses related to her lumbar spine injury as calculated by Martina total roughly $63, 092.00 to $80, 798.91, the midpoint of which is $71, 945.45.

         It appears Martina made an error in calculating the one-time cost of “Interventional Pain Management Follow Up.” In the original Martina report and the amended Martina report admitted at trial, Martina provided the cost of “Interventional Pain Management” will total $1, 464.80 to $8, 032.60 over ten years.[46] In her supplemental report, Martina repeated the one-time cost for follow as $1, 464.80 to $8, 032.60, [47] but the Court limited Plaintiff to four RFA procedures.[48] Because the Court has held Plaintiff is entitled only to the cost of one RFA procedure per year for the next four years, Plaintiff is accordingly entitled to only the cost of four follow up visits.

         Hegwood determined Plaintiff's future medical expenses related to her lumbar spine injuries will total $29, 203.53 to $59, 912.04, [49] the midpoint of which is $44, 557.78. Hegwood reduced Plaintiff's costs for “Physical Therapy - Routine” by 50% because:

According to Ms. Martina's report of 10/8/19, Trial Exhibit 25, Dr. Rodriguez recommended this service for 8 sessions every 2 years for strengthening and maintenance for flare ups (lumbar & cervical spine), in their conference of 5/21/19. Based on review of records, Ms. Brooks has never undergone physical therapy since the [accident] ΒΆ 10/31/16. She has undergone modality treatments of moist heat, TENS, ultrasound and deep tissue massage from 11/3/16 - 6/21/17, but not for strengthening. According to the USDC Findings of Fact and Conclusions ...

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