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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ERIC SEDIE,

Plaintiff,

 v.

UNITED STATES OF AMERICA,

Defendant. /

No. C-08-04417 EDL

FINDINGS OF FACT AND

CONCLUSIONS OF LAW FOLLOWING

COURT TRIAL

Trial: February 1, 2010

Plaintiff Eric Sedie brought this action for personal injury against Defendant United States of

America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, et seq. Plaintiff,

who was riding his bicycle on Paradise Drive in Corte Madera, California, was injured on September

23, 2006 in a collision with a United States Postal Truck driven by United States Postal Service

employee Glen Rafael. This matter was tried to the Court from February 1, 2010 through February

5, 2010. Sanford Cipinko and Jeremy Cloyd represented Plaintiff. Jonathan Lee and Melissa Brown

of the United States Attorney’s Office represented Defendant. Both parties consented to a court trial

before a magistrate judge pursuant to 28 U.S.C. § 636(c).

At trial, Plaintiff contended that as a result of the accident, he sustained painful neck and

back injuries that require disc replacement surgery. Plaintiff also claimed that he had not been able

to work since the date of the accident, and that he will not be able to fully pursue his chosen

profession of computer-based animator in the future. At the close of trial, Plaintiff requested

damages for past and future medical expenses, past lost income, loss of earning capacity, past and

future loss of household services, and past and future pain and suffering, totaling in excess of $2.5

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million. Defendant argued that Mr. Rafael was not negligent in his operation of the postal truck and

that therefore, Plaintiff is not entitled to damages, or that even if Mr. Rafael was negligent, Plaintiff

was contributorily negligent and is only entitled to a total of $59,818.06 in damages.

On balance, the Court finds that Plaintiff was injured and suffered pain and continues to do

so intermittently, but that his testimony revealed a pattern of exaggerations and inconsistencies (as

set forth in more detail below) regarding not only his physical injuries and abilities, but also, among

other things, the success of his past medical treatment, his employment history, his living situation

and his ability to enjoy life. Accordingly, Plaintiff’s testimony is not credible on many points. On

the other hand, the Court did not find Mr. Rafael’s testimony as to how the accident occurred to be

entirely credible. Thus, the opinions of Defendant’s accident reconstruction expert, Dr. Rajeev

Kelkar, are undermined because they are based in large part on Mr. Rafael’s explanation of the

orientation of the postal truck at the time of the accident. At the same time, the Court was not

persuaded by Plaintiff’s accident reconstruction expert, Mr. Paul Herman, either. 

Also, the Court did not find the opinion of Dr. Kenneth Light to be as credible regarding

Plaintiff’s need for future medical treatment as that of Dr. Dean Chou and Defendant’s medical

expert, Dr. Kevin Harrington, primarily because of Dr. Light’s very limited contact with Plaintiff,

his quick judgment that Plaintiff needed disc replacement surgery for both his neck and back, and

his exaggerated and inconsistent testimony regarding the cost of that surgery. Rather, the Court

found most persuasive the testimony of Dr. Chou, because Dr. Chou had the longest and most

genuine treatment relationship with Plaintiff, including conducting Plaintiff’s only -- and successful

-- surgery to date. 

In addition, the Court does not credit the opinion of Plaintiff’s vocational rehabilitation

expert, Mr. Thomas Yankowski, which was based in large part on exaggerated statements by

Plaintiff and unreliable assumptions regarding future treatment by Dr. Light. Instead, the Court

found Defendant’s vocational rehabilitation expert, Mr. Andrew O’Brien, more credible. Similarly,

the opinions of Plaintiff’s economist, Mr. Phillip Allman, are based in large part on assumptions

about the severity of Plaintiff’s limitations and need for future surgery that were not proven by a

preponderance of the evidence. Thus, the Court is more persuaded by Defendant’s economist, Ms.

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1 On March 19, 2010, the parties filed joint findings of fact, and each party filed separate

findings of fact. To the extent that the joint findings are not explicitly set forth in the findings below,

they are incorporated by reference as if set out in full. The Court further notes that its conclusions of

law may also contain findings of fact. 

3

Margo Ogus, whose opinions were based on Mr. O’Brien’s credible opinions. The Court found the

remaining witnesses for each side generally sincere and credible (although not necessarily accurate

as to every single aspect of their testimony). With this backdrop, the Court makes the following

findings of fact and conclusions of law. 

Findings of Fact1

1. The accident

On September 23, 2006, there was a collision in front of 5124 Paradise Drive in Corte

Madera between a United States postal truck driven by Glen Rafael and Plaintiff, who was riding his

bicycle. Joint Findings of Fact at 2. At the accident site, Paradise Drive, which runs essentially east

to west, is a winding, downward sloping road, with one lane of traffic in each direction. Trial

Transcript (“Tr”) at 449, 451, 538; Deposition of Matthew Mitchell at 12. 

Just before the accident, Plaintiff was riding his bicycle in the westbound lane near the fog

line on the right side of the road. Tr. at 579; Joint Findings of Fact at 7, 9. Plaintiff had an

unobstructed view of the fog line and there were no vehicles traveling westbound in front of him. 

Joint Findings of Fact at 7. He passed two other bicyclists, John and Manda Masterson, on their left

and then returned to the right side of the road next to the fog line. Joint Findings of Fact at 2. John

and Manda Masterson were traveling approximately twenty miles per hour. Joint Findings of Fact at

2, 9. Plaintiff was traveling approximately twenty-one to twenty-three miles per hour. Tr. at 40, 54,

64, 142. After passing the Mastersons, Plaintiff saw the postal truck emerging onto the road and

applied his brakes, shouting “Hey, Hey, Hey!” Joint Findings of Fact at 9; Tr. at 453-54. Plaintiff

estimated that he did not see the postal truck until it was approximately five to eight feet in front of

him, and that he braked for two to eight seconds before colliding with the postal vehicle. Joint

Findings of Fact at 9; Tr. at 453-54. 

Just before the accident, Mr. Rafael, who had been employed by the United States Postal

Service since 1997, had delivered mail to a home at 5124 Paradise Drive. Joint Findings of Fact at

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8. At all relevant times, Mr. Rafael acted within the scope of his employment with the Postal

Service. Joint Findings of Fact at 2. As of the date of the accident, Mr. Rafael had been driving the

same or similar Long-Life Universal Vehicle mail truck for twelve years, and had been driving the

same delivery route on Paradise Drive for about four and one-half years, having driven his postal

vehicle in and out of the driveway at 5124 Paradise Drive hundreds of times. Joint Findings of Fact

at 2. As a safety precaution, while driving along Paradise Drive, Mr. Rafael routinely uses his

hazard lights to help others see his vehicle. Joint Findings of Fact at 8. One of Mr. Rafael’s

responsibilities as an on the job instructor was to train other letter carriers regarding the safe

operation of the Long-Life Universal Vehicle. Joint Findings of Fact at 8. 

As Mr. Rafael prepared to leave 5124 Paradise Drive after delivering mail there, he walked

around his postal vehicle to check for any obstructions and, determining that the area was clear,

entered the vehicle and fastened his seatbelt. Joint Findings of Fact at 8. Mr. Rafael signaled left to

turn into the road. Tr. at 546-47; Ex. 38. The collision with Plaintiff occurred almost immediately

after Mr. Rafael pulled into the road. Joint Findings of Fact at 2, 8. 

Plaintiff was thrown from his bicycle and landed in the oncoming traffic lane. Tr. at 42. 

After the accident, Plaintiff rose to his feet, began yelling and walked to the sidewalk to sit down. 

Tr. at 42, 47, 57. 

Twin Cities Police Department Officer Matthew Mitchell responded to the accident site,

which was described by police dispatch as a minor injury. Joint Findings of Fact at 3, 9. He

determined that the cause of the accident was the failure to yield to through traffic, and attributed the

fault to Mr. Rafael. Joint Findings of Fact at 9; Mitchell Depo. at 17. Officer Mitchell did not

indicate on the police report for the accident that either Plaintiff’s or Mr. Rafael’s vision was

obscured. Mitchell Depo at 18. Officer Mitchell acknowledged the obvious at trial: that he is not an

expert in accident reconstruction, nor does he hold himself out to be an accident reconstruction

expert. Joint Findings of Fact at 9. Officer Mitchell did not take any measurements to determine the

postal driver’s line of sight and did not perform any calculations regarding the rate of speed or the

distance traveled prior to impact. Joint Findings of Fact at 9; Mitchell Depo. at 17. 

Josefina Regis, a supervisor for clerks and letter carriers for the United States Postal Service

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28 2 Dr. Cohn did not testify at trial, but the parties designated his deposition in lieu of live

testimony. 

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who is trained in accident investigation, testified at trial that she arrived after the accident and

conducted an investigation of it at the accident site on September 23, 2006. Joint Findings of Fact at

3, 9-10. She responded to the accident scene because she was the supervisor on duty on September

23, 2006. Tr. at 116-17. Although she has other job responsibilities and accident investigation is

not her primary one, she had investigated other accidents. Joint Findings of Fact at 10; Tr. at 117. 

She too, admitted the obvious: she is not an expert in accident reconstruction and does not have a

degree in physics or mechanical engineering. Joint Findings of Fact at 10. Her investigation

included speaking with Officer Mitchell and Mr. Rafael, and taking photographs. Joint Findings of

Fact at 3. She did not speak with any witnesses to the accident. Joint Findings of Fact at 3. Ms.

Regis reached the conclusion that Mr. Rafael was at fault, and she recommended allowing a claim

against the postal service. Tr. at 111, 113. She checked the box on the postal service form stating

that there was no conflicting information on the issue of fault, but stated at trial that the only

conflicting information was that Mr. Rafael had taken all precautions prior to the accident. Tr. at

111-13. 

2. Plaintiff’s medical treatment

Shortly after the accident, emergency vehicles arrived on the scene, and emergency

personnel placed Plaintiff on a backboard with his neck immobilized to transport him to Marin

General Hospital. Joint Findings of Fact at 3, 10. Plaintiff was treated by Dr. Arthur Cohn in the

emergency room at Marin General Hospital on September 23, 2006.2

 Joint Findings of Fact at 3, 10;

Cohn Depo. at 9-10. Dr. Cohn diagnosed Plaintiff with multiple contusions and abrasions, and

cervical strain. Cohn Depo. at 11. Dr. Cohn discharged Plaintiff a few hours after the accident with

a soft cervical collar and a prescription for Vicodin, and referred Plaintiff to Dr. Ferretti, who was

the on-call orthopedic surgeon. Joint Findings of Fact at 3; Cohn Depo. at 12, 29, Ex. 2. Dr. Cohn

did not restrict Plaintiff’s ability to work. Cohn Depo. at 12. There is no record of any treatment by

Dr. Ferretti, although Plaintiff testified that he had an informal visit with Dr. Ferretti who told

Plaintiff to obtain MRI scans if the pain persisted. Joint Findings of Fact at 3, 10; Tr. at 146. 

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3 Dr. Wallace did not testify at trial, but the parties designated his deposition in lieu of live

testimony. 

4 Dr. Robinson did not testify at trial, but the parties designated his deposition in lieu of

live testimony. 

6

After returning home from the hospital, Plaintiff wrote in his journal that: “Everything hurts,

from feet to hands to head, can’t sleep and feeling more natious [sic] because of the pain pills I’ve

taken? . . . I have a feeling that tomorrow is going to be bad.” Ex. 30 at 356. The day after the

accident, Plaintiff wrote in his journal that he was experiencing the “worst pain of my life so far. . .

.” Ex. 30 at 357. Over the next month, Plaintiff wrote in his journal that he was having pain in his

back, neck, shoulder, arms and legs, but that his pain level was decreasing. Ex. 30. 

On October 6, 2006, Dr. John Wallace saw Plaintiff, who complained of neck and low back

pain.3

 Joint Findings of Fact 91. Dr. Wallace prescribed pain medications for Plaintiff and referred

him to physical therapy. Joint Findings of Fact at 3, 10. The pain medication made Plaintiff

nauseous. Tr. at 148. 

On October 19, 2006, Plaintiff was seen by Dr. Curtis Robinson for a follow up visit after

seeing Dr. Wallace.4 Joint Findings of Fact at 4, 10. Dr. Robinson specializes in family medicine. 

Deposition of Curtis Robinson at 12. Dr. Robinson consulted with Plaintiff regarding the diagnosis

of neck strain and back pain. Joint Findings of Fact at 10. Dr. Robinson observed Plaintiff in

moderate distress secondary to pain, and found decreased range of motion in Plaintiff’s neck. Joint

Findings of Fact at 4. Dr. Robinson recommended pain medications and physical therapy. Joint

Findings of Fact at 4. Between October 13, 2006 and October 30, 2006, Plaintiff had seven physical

therapy sessions with Mill Valley Physical Therapy for neck and back pain. Pl.’s Ex. 10. Dr.

Robinson believed on October 19, 2006 that it would not be appropriate for Plaintiff to carry any

weight or lift anything much heavier than a pound or two. Joint Findings of Fact at 4. Dr. Robinson

filled out temporary disability forms that Plaintiff had brought to his office, releasing Plaintiff to

work on November 14, 2006. Robinson Depo. at 15-16. He advised Plaintiff to return if his

symptoms worsened or persisted, but Plaintiff has never returned to Dr. Robinson for treatment. 

Joint Findings of Fact at 10. 

On November 1, 2006 and November 8, 2006, Plaintiff was treated by Dr. Walter Newman,

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28 5 Dr. Newman did not testify at trial, but the parties designated his deposition in lieu of

live testimony. 

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a family friend in San Jose, California, for his neck and back pain.5

 Joint Findings of Fact at 4; Tr.

at 149, 440-41. Dr. Newman specializes in family general practice and occupational and industrial

environmental medicine. Joint Findings of Fact at 10. On November 1, 2006, Dr. Newman found

that Plaintiff had subjective complaints of neck and back pain with objective findings of injury in the

neck and lower back. Joint Findings of Fact at 4. Dr. Newman ordered MRI scans of Plaintiff’s

brain, neck, shoulder and back, which took place on November 7 and 8, 2006. Joint Findings of

Fact at 4, 10-11. After reviewing the MRI reports, Dr. Newman concluded that Plaintiff had no

intracranial pathology, a normal shoulder except for tendinitis, and disc protrusions in the cervical

and lumbar spines. Joint Findings of Fact at 4, 11. Dr. Newman testified that he believed that there

was an “overwhelming probability” that, given Plaintiff’s neck and back pain, the disc disease was

caused by the accident. Deposition of Walter Newman at 28-30. Dr. Newman recalled Plaintiff

mentioning some medical/legal remedies, which is reflected on a typewritten document created by

Dr. Newman that stated, in part, “Medico-Legal - 1) Value of a case = function of medical. . . .”. 

Joint Findings of Fact at 11; Newman Depo. at Ex. 5. Dr. Newman testified that he and Plaintiff

discussed that often the value of a case is a function of the medical cost, so that if a person has a

greater level of medical care, their case is “bigger.” Newman Depo. at 31. Dr. Newman does not

have an opinion regarding the propriety of disk replacement surgery for Plaintiff, but based on what

he knows about that surgery, in his professional opinion, there may be reasons not to have it. Joint

Findings of Fact at 11. When he evaluated Plaintiff’s injuries, Dr. Newman opined that Plaintiff

should eventually do well. Joint Findings of Fact at 11. Dr. Newman referred Plaintiff to a

neurologist or physiatrist in the Marin area because he felt that Plaintiff had significant subjective

and objective findings that required a specialist closer to home. Joint Findings of Fact at 4. 

Plaintiff then began treatment by Dr. Irina Melnick, who specializes in nonsurgical treatment

of musculoskeletal conditions and is board certified in physical medicine and rehabilitation. Joint

Findings of Fact at 4-5. Dr. Melnick testified at trial that she treated Plaintiff a total of nine times. 

Joint Findings of Fact at 5. In an example of Plaintiff’s tendency to exaggerate, he told Dr. Melnick

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that he lost consciousness after the accident. Tr. at 211. However, there is no objective evidence

showing a loss of consciousness, and the records from the Marin General Hospital Emergency Room

reflect that Plaintiff denied losing consciousness, and the postal service investigator’s notes reflect

no loss of consciousness. Joint Findings of Fact at 10; Def.’s Ex. II; Deposition of Arthur Cohn at

16-17; Def. Ex. BB1 at 8. Further, none of the eyewitnesses, including the two bicyclists who saw

the accident and talked to Plaintiff right afterwards, testified to any loss of consciousness. 

Dr. Melnick prescribed physical therapy for Plaintiff, and in March and April 2007, she

recommended discography. Joint Findings of Fact at 5, 11. Plaintiff did not undergo discography

with Dr. Melnick. Joint Findings of Fact at 11. Dr. Melnick opined that Plaintiff’s MRI scans that

were ordered by Dr. Newman showed a herniated disc at C6-7 and a disc protrusion at C5-6. Tr. at

213. Dr. Melnick ordered an objective electromyography nerve conduction study that confirmed

that a herniated disc on Plaintiff’s neck was impinging on a nerve. Tr. at 213. Dr. Melnick

performed an injection on Plaintiff’s SI joint, the results of which suggested that Plaintiff’s L4-5

disc was likely the cause of his pain. Tr. at 216-17. Dr. Melnick prescribed traction for Plaintiff’s

neck pain that, combined with other conservative treatment, provided some relief. Tr. at 219-20. 

Dr. Melnick found no evidence that Plaintiff had preexisting neck or back pain. Tr. at 214. The last

time Dr. Melnick treated Plaintiff was April 16, 2007, when she was considering more invasive

procedures because she felt that Plaintiff had exhausted conservative treatment options. Joint

Findings of Fact at 11; Tr. at 222-23. She referred Plaintiff to Dr. Dean Chou. Joint Findings of

Fact at 11. 

Plaintiff received physical therapy at Mt. Tam Orthopedics based on Dr. Melnick’s referral. 

He received thirteen physical therapy treatments between December 4, 2006 and January 23, 2007. 

Joint Findings of Fact at 5. Plaintiff reported to physical therapist Jason Mattox on his first visit that

his primary complaint was left lower back pain and that he also had shooting pain down his left leg

and a deep ache in his neck. Joint Findings of Fact at 5. Mr. Mattox testified at trial that he

personally treated Plaintiff only five times. Joint Findings of Fact at 11. The physical therapy at Mt.

Tam Orthopedics Physical Therapy included techniques to mitigate pain and to improve mobility,

therapeutic exercises and education regarding the proper way to lift, carry, sit and stand and traction. 

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28 6 Dr. Chou did not testify at trial, but the parties designated his deposition in lieu of live

testimony. 

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Tr. at 201-02. On at least one occasion during physical therapy, Plaintiff could not ride the

stationary bicycle due to pain in his back. Tr. at 203. Over the course of his treatment with Mr.

Mattox, however, Plaintiff reported improvement in his back pain. Joint Findings of Fact at 11. Mr.

Mattox did not restrict Plaintiff from working during his treatment. Joint Findings of Fact at 11. 

Mr. Mattox did not know why Plaintiff stopped physical therapy. Joint Findings of Fact at 12. 

Subsequently, Dr. Newman ordered a lumbar spine examination, which was done in April

2007 with a dye injection that showed vascularization in the area of the L4-5 disc herniation that can

correlate with pain and inflammation. Joint Findings of Fact at 5. Dr. Newman gave Plaintiff

information about two or three doctors, including Dean Chou at University of California, San

Francisco for treatment of his ongoing back pain. Joint Findings of Fact at 5. 

Plaintiff first saw Dr. Chou on May 31, 2007 for pain radiating down his left leg.6

 Joint

Findings of Fact at 5, 12. During that visit, Dr. Chou determined that Plaintiff had significant pain

radiating down his left leg and a disc herniation in his lower back. Joint Findings of Fact at 5, 12. 

Dr. Chou also found that Plaintiff had limited range of motion and tenderness in the neck, decreased

sensation in his left arm and trace weakness in the hands. Joint Findings of Fact at 6. Dr. Chou felt

that Plaintiff had exhausted conservative treatment measures, so he did not implement new

conservative measures. Joint Findings of Fact at 5. 

On July 30, 2007, Dr. Chou performed a minimally invasive microdiscectomy to address

Plaintiff’s leg pain, which involved removing disc material impinging on the L5 nerve root. Joint

Findings of Fact at 5, 6, 12. Dr. Chou did not treat Plaintiff’s back pain because Dr. Chou wanted to

see if Plaintiff could bear the back pain once the leg pain was gone. Joint Findings of Fact at 5-6. 

Dr. Chou testified that the result of the microdiscectomy was “good.” Joint Findings of Fact at 12. 

According to an August 10, 2007 letter from Dr. Chou to Dr. Newman, Plaintiff stated on that date,

less than two weeks after his surgery, that his left side leg pain was completely gone, that he was

quite happy with the alleviation of his leg pain, and that his back pain was diminished. Tr at 671-72;

Ex. Z3. Plaintiff saw Dr. Chou again for a post-operative follow up appointment on August 30,

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2007, and stated that he was doing “quite well.” Tr. at 672-73; Deposition of Dean Chou at 38, Ex.

3. Dr. Chou believes that, given the totality of the medical information, it is more likely than not

that the L4-5 disc herniation was caused by the September 23, 2006 accident. Chou Depo. at 90. 

Plaintiff saw Dr. Chou for one follow up appointment on August 30, 2007. Chou Depo. at

38. Much later, Dr. Chou ordered an MRI of Plaintiff’s neck, which was taken on December 27,

2008. Tr. at 514; Ex. 22 at 161; FF1 at 328. Plaintiff did not see Dr. Chou again until January 8,

2009, approximately sixteen months later. Joint Findings of Fact at 13. Plaintiff cancelled an

appointment with Dr. Chou in February 2008 because he went to Los Angeles with friends who

decided to stay longer, and Plaintiff did not reschedule that appointment. Joint Findings of Fact at

13. 

At the January 8, 2009 appointment with Dr. Chou, Plaintiff complained of neck and arm

pain, and no other type of pain (i.e., he did not complain of back pain). Chou Depo. 44-45. Dr.

Chou described the neck pain as “new.” Def.’s Ex. BB10 at 159. The only treatment Dr. Chou

advised as of January 8, 2009 was conservative treatment including traction; Dr. Chou did not plan

surgical intervention. Chou Depo. at 46, 52. Dr. Chou told Plaintiff to return if his pain did not get

any better following conservative treatment. Chou Depo. at 52. Plaintiff did not return to see Dr.

Chou after January 8, 2009. Chou Depo. at 48. 

On July 2, 2009, Plaintiff’s counsel sent Dr. Kenneth Light two disks containing MRI images

of Plaintiff taken at South Valley Imaging Center. Joint Findings of Fact at 13. Plaintiff saw Dr.

Kenneth Light for the first time on July 9, 2009. Joint Findings of Fact at 6. Although Plaintiff

testified that he self-referred to Dr. Light based on internet research Plaintiff had conducted

regarding disc replacement surgery (Tr. at 158-59), the Court finds that the evidence, including a

letter from counsel pre-dating Plaintiff’s first visit to Dr. Light, shows that Plaintiff’s counsel

referred Plaintiff to Dr. Light, and counsel had a preexisting professional relationship with Dr. Light. 

Tr. at 159, 404. Dr. Light testified at trial that he is a board-certified orthopedic surgeon with a

subspecialty in spinal surgery. Joint Findings of Fact at 6. He founded and directed the San

Francisco General Hospital Spine Clinic for five years beginning in 1986. Joint Findings of Fact at

6. He founded the Spine Center at St. Francis Hospital in 1992 and worked there until 2007 when he

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started a private practice. Joint Findings of Fact at 6. Dr. Light ordered a discography for Plaintiff,

whereby fluid was injected into multiple levels of Plaintiff’s cervical spine after which Plaintiff

underwent a CT scan to show any defect in the disc. Joint Findings of Fact at 6. The injection also

recreates a patient’s symptoms to confirm that a specific disc is responsible for the specific clinical

symptoms. Joint Findings of Fact at 6. 

Plaintiff made several exaggerated statements to Dr. Light that undermine Plaintiff’s

credibility and, therefore, also the persuasiveness of Dr. Light’s opinions, which are based in part on

Plaintiff’s subjective reports regarding his condition. First, at his July 9, 2009 appointment, Plaintiff

told Dr. Light that from the day of his lumbar surgery in July 2007, he had ongoing severe back

pain, and that his condition had worsened after the July 2007 surgery. Tr. at 416. However,

Plaintiff told Dr. Chou that he was doing “quite well” in August 2007 and confirmed to Dr. Newman

in December 2007 that he had a good surgical result. Tr. at 464-65, Ex. FF1 at 745. Although the

lumbar surgery focused on alleviating Plaintiff’s leg pain, the record demonstrates that Plaintiff did

not seek any medical treatment for any neck or back pain from August 2007 through January 8,

2009. Tr. at 418, 465. If his pain was truly getting worse, a reasonable response would have been to

seek out medical attention, yet Plaintiff did not do so. Second, Plaintiff told Dr. Light that after the

accident, he had to move back in with his parents, and that he desired to resume his internship in

computer animation in the future. Tr. at 414-16; Ex. 25. However, the evidence shows that Plaintiff

has always lived with his parents, and that he had never secured an internship in animation. Tr. at

102-03, 742-43, 842-43. 

In letters dated July 9, 2009, the same day as Plaintiff’s initial office visit, and August 20,

2009, Dr. Light recommended disc replacement surgery in the neck and back. Ex. 25; Tr. at 388;

Joint Findings of Fact 13. At trial, Dr. Light testified that although he had recommended that

Plaintiff have two replacement surgeries and Plaintiff had consented, Plaintiff had not had the

surgeries because he lacked insurance. Tr. at 399. Plaintiff testified that he did not have insurance,

and told his expert Mr. Yankowski that he did not have insurance. Tr. at 142, 313. Plaintiff,

however, had to acknowledge that he had the county-based medical insurance benefit called County

Services Medical Program (CSMP) throughout 2007, 2008 and 2009 that had covered his surgery by

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Dr. Chou, contrary to what he told Dr. Light and Mr. Yankowski. Tr. 524. Plaintiff also testified

that his interrogatory responses from August 2009 confirmed that he had CSMP benefits in place

before the July 2007 surgery (Tr. 882-84), even though he had earlier testified that he did not know

if the CSMP benefits paid for the July 2007 surgery (Tr. 475), and that he did not know if the CSMP

authorized the surgery (Tr. at 524). 

Defendant’s expert, Dr. Kevin Harrington, examined Plaintiff on July 17, 2009. Joint

Findings of Fact at 8; Tr. at 656. Plaintiff complained to Dr. Harrington of pain in his neck, lower

back and right shoulder. Tr. at 666. During the examination, Dr. Harrington observed a marked

difference between Plaintiff’s subjective complaints and the essentially normal objective medical

examination. Tr. at 657. At trial, Dr. Harrington testified about Plaintiff’s physical condition based

on his review of the surveillance video of Plaintiff taken by Ron Alvestal in September 2009. The

video, which the Court also viewed and which is described in more detail below, shows, among

other things, Plaintiff carrying his dog during walks and lifting him into a car, bending over at the

waist and squatting. Joint Findings of Fact at 16. Dr. Harrington opined that the video shows that

Plaintiff has a normal range of motion in the neck, particularly because Plaintiff looked back over

his shoulder when reversing his vehicle. Tr. at 679. Dr. Harrington also testified that the video

showed that Plaintiff could bend over normally, and that he “can pick up the dog fairly good,

probably a 25-pound dog, put the dog on his shoulder, twist his neck in the process of doing that,

walk down the street, all without any obvious discomfort of any sort or any limitation.” Tr. at 679. 

Dr. Harrington stated that Plaintiff showed normal extension of his back. Tr. at 680-81 (testifying

that: “his back mobility strength and symptoms were essentially normal”). From the Court’s own

viewing of the video, the Court found Dr. Harrington’s testimony more persuasive than Plaintiff’s

complaints of constant severe disabling pain in his back and neck, although the Court does not

believe that Plaintiff is always as pain free as he appears in the video. Dr. Harrington opined that he

does not believe that disc replacement surgery is indicated for Plaintiff. Joint Findings of Fact at 14. 

Dr. Harrington opined that Plaintiff was able to return to work, “barring lifting in excess of 50

pounds, unrepeated bending and stooping,” including desk work, within two weeks of the surgery. 

Tr. at 683. 

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Plaintiff testified that to manage his pain, he used two or three of the permitted refills of the

pain medications he had been prescribed. Joint Findings of Fact at 17. He testified that he refilled

his Vicodin and other pain medication prescriptions to address his pain in 2008. Tr. at 889. 

However, the prescriptions reflected in Plaintiff’s medical records provided Plaintiff either no refill

or only one refill. Joint Findings of Fact at 17. The last prescription written for Plaintiff was in

January 2008 (Joint Findings of Fact at 17), and no refills were allowed for that medication. Ex. 29

at 000536. The evidence on refills of Plaintiff’s prescriptions is inconsistent with his testimony. 

3. Plaintiff’s education and employment history

From January to July 2005, Plaintiff was employed part time by Bollar Stoneworks at a rate

of $12 per hour. Joint Findings of Fact at 15. In 2004, Plaintiff earned $2,128 in his employment

with Bollar Stoneworks. Joint Findings of Fact at 15. There is no other documentation of wages

earned by Plaintiff in 2004. Joint Findings of Fact at 15. In 2005, Plaintiff earned $4,368 working

for Bollar Stoneworks. Joint Findings of Fact at 15. Between September 2005 and the date of the

collision on September 23, 2006, Plaintiff worked as a tile helper for Scarborough Tile with a

starting wage of $15 per hour. Joint Findings of Fact at 7. In 2005, Plaintiff earned $4,852.50

working for Scarborough Tile. Joint Findings of Fact at 15. In 2006, Plaintiff earned $13,213

working for Scarborough Tile. Joint Findings of Fact at 15. 

In May 2005, Plaintiff received a Bachelor of Arts degree from the Academy of Arts

University. Joint Findings of Fact at 7, 14. At the Academy of Arts, Plaintiff studied to be a

Computer Generated Image Modeler or Animator. Joint Findings of Fact at 14. After graduation, a

person who trains in the field of computer animation usually undertakes an internship for

approximately three to six months before seeking a paid position. Joint Findings of Fact at 14. 

Plaintiff has not worked in the field of computer animation in any capacity since his graduation in

May 2005. Joint Findings of Fact at 14. Plaintiff has not applied for an internship in computer

animation since his graduation. Joint Findings of Fact at 14. Plaintiff has no past work history as a

computer animator. Joint Findings of Fact at 15. However, because Plaintiff was only performing

tile work part time following his graduation from the Academy of Arts, it was possible for him to

pursue additional employment or an internship in the field of computer animation, but he did not do

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so. Tr. at 742, 746-47. Because Plaintiff had been out of school for approximately sixteen months

prior to the accident and had no work experience in the field of computer animation, he would have

needed retraining to enter the workforce notwithstanding the accident. Joint Findings of Fact at 7,

14-15. The Academy of Arts offers retraining courses to its alumni. Joint Findings of Fact at 15. 

As recently as September 2009, there were positions available to Plaintiff in the computer animation

and video game industry. Joint Findings of Fact at 15. According to Plaintiff, the “single most

important way to find a job in the art world” is through personal contacts, and he testified that he has

several contacts in the field of computer animation to assist him with his search for employment

both locally and in Los Angeles (Joint Findings of Fact at 15), yet he did not use those contacts to

secure a position after graduation. Plaintiff should be able to find a job in computer animation with

the assistance of his personal contacts. Joint Findings of Fact at 15-16. 

4. Plaintiff’s daily life

Plaintiff testified that because of the accident, every possible aspect of his life has been and

will be affected until the day he dies. Tr. at 476-77; see Joint Findings of Fact at 16. Since the

accident, Plaintiff spends much of his time lying down. Tr. at 96. He has not ridden his bicycle,

gone running or done any vigorous physical activity since the accident. Tr. at 516. Plaintiff stated

that doing laundry, going grocery shopping, cooking and walking the dog were some of the activities

that have been adversely affected by the accident. Tr. at 476-77; Docket 116, Att. K, Int. #11

Response at 2-5. 

Plaintiff, however, can do his own laundry, grocery shopping and cooking. Joint Findings of

Fact at 16. Specifically, Plaintiff testified that he is able to do laundry four days per week at least

some of the time, that he can grocery shop on a limited basis, and that he can walk his dog two to

three times per week. Tr. at 476. Further, the surveillance video shows Plaintiff moving in ways

that demonstrate that he has a range of motion far greater than he acknowledged, so that he could do

laundry and carry groceries. Ex. LL, YY. In addition, the surveillance video shows Plaintiff

walking his dog several times per day. Ex. LL. Plaintiff also told Mr. Yankowski that Plaintiff’s

typical day is cooking and caring for his father and brother, who was injured in a car accident in

2008. Ex. NN at 59. 

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Conclusions of Law

1. Negligence

The Federal Tort Claims Act (“FTCA”) renders the United States liable for “injury . . . 

caused by the negligent or wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment, under circumstances where the United States, if

a private person, would be liable to the claimant in accordance with the law of the place where the

act or omission occurred.” 28 U.S.C. §§ 1346(b)(1); Yanez v. United States, 63 F.3d 870, 872 (9th

Cir. 1995). Under the FTCA, the substantive law of the forum state, in this case California, applies. 

28 U.S.C. § 2674; Yanez, 63 F.3d at 872; Richards v. United States, 369 U.S. 1, 9 (1962). 

To prove a negligence claim under California law, the plaintiff must show: “(a) a legal duty

to use due care, (b) a breach of that duty, and (c) that the breach was the proximate or legal cause of

the injury.” Ting v. United States, 927 F.2d 1504, 1513 (9th Cir. 1991) (citing United States Liab.

Ins. Co. v. Haidiner-Hayes, Inc., 1 Cal. 3d 586, 594 (1970)). The existence of a duty is a question of

law for the Court. Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 674 (1993). 

a. Duty

A driver must exercise the degree of care and caution that an ordinarily careful and prudent

person, acting in same or similar circumstances, would exercise. Sills v. Forbes, 33 Cal.App.2d 219,

227 (1939). “[A driver is] under a duty, both by statute and common law, to operate his vehicle

without negligence so as to abstain from injuring any other person or his property.” Bewley v.

Riggs, 262 Cal.App.2d 188, 194 (1968). As the driver of the postal truck, Mr. Rafael was under a

duty to operate his vehicle without negligence. 

b. Breach of duty

The level of care required by a driver of a motor vehicle entering a public roadway includes

“yield[ing] the right-of-way to all traffic . . . approaching on the highway close enough to constitute

an immediate hazard . . . .” Cal. Veh. Code § 21704(a). In general, a driver of a motor vehicle

should: (1) make a turning movement only when it can be made with reasonable safety (Cal. Veh.

Code § 22107); (2) look both ways before entering an intersection (Holibaugh v. Kishero Ito, 21

Cal.App.2d 480, 486 (1937)); (3) keep a vigilant lookout and see that which may be seen with

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ordinary care (Boots v. Potter, 122 Cal.App.2d 927, 935-36 (1954)); and (4) anticipate “the presence

on the highway of others who have equal right to be there” (Zarzana v. Neve Drug Co., 180 Cal. 32,

37 (1919)). In some cases, the special character of a vehicle may call for the exercise of greater

care. See, e.g., Shuff v. Irwindale Trucking Co., 62 Cal.App.3d 180 (1976) (“The driver of a large

truck . . . should exercise a greater not lesser amount of caution than the ordinary driver and take

fewer not more risks than an ordinary driver.”).

Here, Mr. Rafael testified that his postal truck was parked at the top of the driveway near the

mailbox at 5124 Paradise Drive. Tr. at 541. He knew the location well, having driven the same

postal route for many years. After delivering the mail, Mr. Rafael walked around the postal vehicle

to check for any obstructions. Tr. at 539. When checking his mirrors for oncoming traffic, Mr.

Rafael saw two bicyclists traveling towards him. Tr. at 545-46. He felt that the bicyclists would

either yield to him or go around him. Tr. at 573. After checking for traffic in his mirrors, and

leaning forward to check the roadway, he began to enter the roadway. Tr. at 539, 544. Mr. Rafael

was inching forward to get a better view of the roadway which was obstructed with foliage. Tr. at

572. Shortly after easing his foot from the brake pedal, Mr. Rafael heard Plaintiff yell, “Hey! Hey!

Hey!” Tr. at 548. Mr. Rafael stopped abruptly, and then felt the collision. Tr. at 548. 

Mr. Rafael’s version of events is not fully credible. Most significantly, Mr. Rafael has

provided inconsistent statements about the position and orientation of the postal vehicle immediately

before the accident. According to Officer Mitchell, Mr. Rafael described his vehicle’s position as in

the driveway at 5124 Paradise Drive facing out toward Paradise Drive, with his vehicle’s mirrors

facing down the driveway, i.e., essentially perpendicular to the roadway. Mitchell Depo. at 12-13,

24. At trial, Mr. Rafael first testified that a photograph (Ex. 55) shown to him during trial showed

the orientation of his vehicle when he was creeping forward (Tr. at 567-68), then he testified that it

did not reflect the orientation of the vehicle before the accident (Tr. at 568), and in response to the

Court’s questions, testified that the photograph did reflect the orientation of the vehicle before the

accident (Tr. at 569-70). 

Mr. Rafael’s testimony about the position of his postal truck is also inconsistent with the

existence of an obstruction to his view of the road. Tr. at 613. Defendant’s accident reconstruction

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expert, Rajeev Kelkar, testified that Mr. Rafael provided Mr. Kelkar with different information

about the orientation of the postal vehicle than Mr. Rafael provided at trial. Tr. at 613. Specifically,

Mr. Kelkar testified that Mr. Rafael told him that the left front corner of the postal vehicle was near

the fog line. Tr. at 612. Yet, at trial, Mr. Rafael testified that he signaled left as he inched out of the

driveway because he was “more parallel” to the roadway. Tr. at 546-47. Further, Mr. Kelkar stated

that Mr. Rafael’s description at trial of the vehicle’s position is inconsistent with there being an

obstruction to his view of the road, inconsistent with the testimony of the Mastersons, who described

the postal truck as being in the driveway, and inconsistent with the approximately 45-degree angle

that Plaintiff described. Tr. at 613. In fact, there is no indication in either Officer Mitchell’s police

report or Ms. Regis’s accident report that Mr. Rafael complained that his vision was obstructed at

the time of the accident. Ex. A4 (police report); A5 (accident report). Although Mr. Kelkar stated

that a change in the truck’s position would not significantly change his analysis, he conceded that

his focus was only to provide a plausible explanation based on reconciling Mr. Rafael’s testimony

that he stopped and looked, and Plaintiff’s testimony that he was traveling at a certain speed on a

certain part of the roadway. Tr. at 614. 

In fact, Mr. Rafael’s differing explanations of the orientation of his vehicle make a

significant difference in the accuracy of the accident reconstruction analysis. The defense expert,

Mr. Kelkar, testified that under his assumption of the vehicle’s position, Mr. Rafael would be seated

approximately eight feet north of the fog line. Tr. at 625. But if Mr. Rafael were parked parallel to

the roadway, as Mr. Rafael testified at trial, Mr. Kelkar testified that Mr. Rafael would have been

seated three feet closer to the fog line. Tr. at 625. Therefore, Mr. Rafael would have had a much

better line of sight for the roadway than described in Mr. Kelkar’s report. Ex. JJ5 at 000425. 

Indeed, Mr. Kelker testified that Mr. Rafael would have had complete vision of Paradise Drive

eastbound if he was in a position parallel to the roadway. Tr. at 601. Therefore, not only does Mr.

Rafael’s revised statement of how the vehicle was positioned cast doubt on his testimony, but Mr.

Kelkar’s analysis of the accident site is undermined by Mr. Rafael’s inconsistent testimony about the

position of his truck. 

The Court was also not entirely persuaded, however, by Plaintiff’s accident reconstruction

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expert, Dr. Paul Herman. Dr. Herman opined that Mr. Rafael had clear visibility of the bicyclists on

Paradise Drive, yet pulled out in front of the bicyclists when Plaintiff was too close to avoid an

accident. Tr. at 244; Deposition of Paul Herman at Ex. 1 at 2. He opined that the mail truck was

driving about six to seven miles per hour at the time of the collision. Tr. at 245. As described

above, Dr. Herman concluded that Plaintiff was able to react to the perception of the postal truck in

0.7 seconds, and that 2.2 seconds elapsed from Plaintiff’s perception to the collision. Tr. at 286-87. 

Dr. Herman, however, also testified that he did not have adequate time to inspect the postal vehicle

(Tr. at 237), yet he did not follow up with counsel to obtain more time (Tr. at 264-65). Further, he

did not take several key measurements, including the distance from the driveway at 5124 Paradise

Drive to the point on the roadway where the foliage overhangs the fog line (Tr. 243-44), the distance

from the front bumper of the postal truck to the driver’s seat (Tr. at 261), and the distance from the

approximate seated position of the driver on a diagonal over to the mirrors that are on the front left

corner of the vehicle (Tr. at 262). The lack of these key measurements, especially the distance from

the driveway to the foliage overhanging the road, undermine Dr. Herman’s testimony that Mr.

Rafael had an unobstructed view of the roadway prior to the accident. 

In addition, in his testimony at trial, Mr. Rafael testified first that when he was leaving the

driveway at 5124 Paradise Drive, he was not depressing the gas pedal, and that he was “covering”

the brake pedal. Tr. at 549. He also testified, in response to the Court’s question, that he was

“pressing the brake and just covering it, just you know, basically tapping onto it as I'm going onto

the -- as I'm inching onto the roadway.” Tr. at 550. Mr. Rafael’s testimony on this point is

ambiguous. 

Further, for the first time at trial, Mr. Rafael mentioned the fact that there were trash cans at

the top of the driveway of 5124 Paradise Drive that he had to avoid as he pulled out of the driveway. 

Tr. at 540, 544. Mr. Rafael testified that when the impact occurred, he was looking in front of his

vehicle to avoid hitting the garbage cans. Tr. at 567. The presence of trash cans was not included in

the statement that Mr. Rafael gave to Officer Mitchell or to Ms. Regis. Ex. A4, A5. Mr. Rafael’s

belated memory of garbage cans obstructing his path of travel casts doubt on the credibility of his

testimony.

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In addition, there is no dispute, and Mr. Rafael testified, that Paradise Drive is a narrow,

winding and hilly road in the vicinity of the accident site. Tr. at 53, 449, 538, 539. Bicyclists

frequently use Paradise Drive, which is particularly popular on weekends, and drivers must be alert

for them. Tr. at 39, 559. There is no dedicated bike lane at the accident site, and bicyclists also must

watch for oncoming traffic. Eyewitness Manda Masterson testified that on another occasion, she

used the driveway at 5124 Paradise Drive to turn around when she was driving her car, and that it

was difficult to do. Tr. at 47. She testified that she had to stop at the top of the driveway and really

look out of the window for bicyclists before pulling out. Tr. at 47-48. Plaintiff testified that he

knows the Paradise Drive route well, and that bicyclists have to be careful when passing residences

on the right-hand side because of the nature of the road. Tr. at 141. Mr. Rafael testified that he

looked up and down the street before he “inched out” of the driveway at 5124 Paradise Drive. Tr. at

544. He saw two bicyclists, the Mastersons, yet instead of waiting in the driveway, he determined

that it was safe to enter the roadway, believing that the bicyclists would have time to move around

him or slow down. Tr. at 546, 572-73. If Mr. Rafael was truly carefully “inching” forward to

observe oncoming traffic, he should have seen Plaintiff and stopped before he drove well into the

roadway, near the center line, as he had when the accident occurred. Tr. at 59, 457. 

Finally, there was evidence that prior to the date of the accident, Mr. Rafael had

demonstrated reckless driving when running late for work and was cited for driving in excess of 100

miles per hour on Highway 37. Tr. at 557-558; Ex. BB9 at 16. Mr. Rafael did not receive this

traffic citation while on the job, but driving at such a high rate of speed, even on his personal time,

indicates that Mr. Rafael is not always as careful as conditions require. However, the Court does not

conclude that he acted recklessly with regard to Plaintiff, and is not necessarily persuaded by

Plaintiff’s argument that Mr. Rafael must have been careless on the day of the accident because he

was running late for lunch. Mr. Rafael testified that he usually has lunch when he reaches a certain

destination, but that he does not have a specific time at which he must take lunch. Tr. at 559-562. 

Under the totality of the circumstances, the Court finds that Mr. Rafael did not act

reasonably, breaching his duty of care in the operation of the postal truck. 

//

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c. Causation

To establish causation, a plaintiff must provide evidence that “it is more probable that the

event was caused by the defendant than it was not.” Raven H. v. Gamette, 157 Cal.App.4th 1017,

1029-30 (2007); Jones v. United States, 933 F. Supp. 894, 900 (N.D. Cal. 1996). Defendant is not

liable unless its conduct was a proximate cause of Plaintiff's injury. PPG Indus., Inc. v.

Transamerica Ins. Co., 20 Cal. 4th 310, 315 (1999). Here, if Mr. Rafael had not breached his duty of

care, it is probable that the accident would not have occurred. Thus, Plaintiff has proven that it is

more probable than not that Plaintiff's injury occurred as a result of Mr. Rafael’s failure to exercise

due care in the operation of postal vehicle. Accordingly, Mr. Rafael acted negligently. 

2. Contributory negligence

“Contributory negligence is a defense if it is causally connected with the injury,” but there is

no contributory negligence where a plaintiff’s conduct complied with the law and there is no

showing that the conduct was a cause of the injury. Simmons v. Wexler, 94 Cal.App.3d 1007, 1014

(1979). However, “Vehicle Code 21804 does not confer an absolute and uncontrolled right upon the

driver of a vehicle upon the highway over another vehicle about to enter thereon from a private road. 

Although such driver may have the right-of-way, he is not absolved of the duty to exercise ordinary

care; may not proceed blindly in disregard of an obvious danger; and must be watchful of the

direction in which danger is most likely to be apprehended.” Malone v. Perryman, 226 Cal.App.2d

227, 234 (1964). 

Defendant has not proven that Plaintiff was contributorily negligent. Defendant argues that

Plaintiff was traveling twenty-three miles per hour near the fog line at the time of the accident, and

argues that this speed was too fast under the circumstances. But there was no evidence to support a

finding that Plaintiff was exceeding any speed limit when he collided with the postal truck. Further,

Defendant argues that Plaintiff was not wearing a helmet, but Plaintiff did not incur and is not

seeking damages for a head injury, so the fact that he was not wearing a helmet does not

demonstrate contributory negligence. Further, a person over the age of eighteen is not required to

wear a bicycle helmet. Cal. Veh. Code § 21212. 

In addition, Defendant argues that Plaintiff was contributorily negligent because Plaintiff

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underestimated how close he was to the postal vehicle before he saw it. Plaintiff testified that he did

not see the postal truck until he was approximately five to eight feet from it. Tr. at 453-54. 

Assuming that Plaintiff was traveling at least twenty miles per hour, he would travel twenty-nine

feet per second. Joint Findings of Fact at 8. Plaintiff’s accident reconstruction expert, Dr. Paul

Herman, assumed that Plaintiff was able to react to his perception of the postal truck by applying his

brakes in 0.7 seconds. Tr. at 286. Therefore, in 0.7 seconds, Plaintiff traveled 20.3 feet. Dr.

Herman estimated that the total time interval from the time Plaintiff perceived the postal truck until

the collision was 2.1 to 2.2 seconds. Tr. at 287. He also assumed that Plaintiff’s average speed was

eighteen miles per hour, so Plaintiff traveled approximately 57.42 feet prior to the impact, which is

2.2 seconds times 29 feet per second times 0.9 (percentage of 20 miles per hour represented by the

average speed of 18 miles per hour). 

Although Plaintiff was farther from the postal truck when he first saw it than he testified at

trial, the precise distance is uncertain because it is only based on estimates of speed and distance by

Plaintiff and eyewitnesses who were experiencing a stressful event. Thus, Plaintiff and the

eyewitnesses understandably may not have noticed the truck at the exact second it began to move, or

may not have been able to accurately perceive or recall distance or speed. Further, Dr. Herman

based on his opinions on the assumption that Plaintiff’s speed before the accident was twenty-five

miles per hour, but Plaintiff testified that he was riding between eighteen and twenty-two to twentythree miles per hour (Tr. at 142), and the eyewitnesses testified that Plaintiff was traveling at twentyone miles per hour (Tr. at 40) or twenty-two or twenty-three miles per hour (Tr. at 64). The Court

finds that, at most, Plaintiff was mistaken regarding the distance on the day of the accident, but not

that he was contributorily negligent. 

3. Damages 

Because the Court concludes that Mr. Rafael was negligent, Plaintiff is entitled to damages. 

However, as described below, many aspects of Plaintiff’s request for damages are not supported by

the evidence. 

 a. Special Damages

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punitive damages. See 28 U.S.C. § 2674. Under California law, the amount of damages a plaintiff

may recover is “the amount which will compensate for all the detriment proximately caused thereby,

whether it could have been anticipated or not.” Cal. Civ. Code § 3333. Damages, however, must be

reasonable. Cal. Civ. Code § 3359. 

“Although damages need not be proved to a mathematical certainty, ‘sufficient facts must be

introduced so that a court can arrive at an intelligent estimate without speculation or conjecture.’”

Harmsen v. Smith, 693 F.2d 932, 945 (9th Cir. 1982), cert. denied, 464 U.S. 822 (1983) (citing

Rochez Brothers v. Rhoades, 527 F.2d 891, 895 (3d Cir. 1975)). However, future damages that are

speculative should not be awarded. Cal. Civ. Code § 3283 (“Damages may be awarded, in a judicial

proceeding, for detriment resulting after the commencement thereof, or certain to result in the

future.”). 

Furthermore, every injured person, regardless of the manner or extent of the injury, is

obligated to take reasonable steps to mitigate his or her injuries or loss. Guerrieri v. Severini, 51

Cal. 2d 12, 23 (1958). Finally, the FTCA prohibits the recovery of punitive damages against the

United States. 28 U.S.C. § 2674. 

1. Past medical expenses

“A person injured by another’s tortious conduct is entitled to recover the reasonable value of

medical care and services reasonably required and attributable to the tort.” Hanif v. Housing

Authority, 200 Cal.App.3d 635, 640 (1988). Here, Plaintiff seeks an award of $24,191.28 in past

medical expenses. Tr. at 923; Joint Findings of Fact at 8. 

Defendant does not dispute that Plaintiff’s past medical expenses were attributable to the

injury. The Court concludes that the expenses were reasonable and necessary as a result of the

accident. Therefore, Plaintiff is entitled to past medical expenses of $24,191.28.

2. Past wage loss

Damages for lost wages must not be speculative. Engle v. Oroville, 238 Cal. App. 2d 266,

273 (1965). Further, a plaintiff has a duty to mitigate damages and cannot recover losses she could

have avoided through reasonable efforts. Thrifty-Tel, Inc. v. Bezenek, 46 Cal.App.4th 1559, 1568

(1996). “If a plaintiff, by [her] own action, unnecessarily enhances [her] loss [she] may not recover

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for such enhanced loss.” Lewis v. Superior Court, 77 Cal.App.3d 844, 853 (1978) (quoting Green v.

Smith, 261 Cal.App.2d 392, 399 (1967)). Here, at trial, Plaintiff stated that he sought $142,689 in

past wage loss. Tr. at 924. 

Regarding Plaintiff’s wage loss, the Court heard from two vocational rehabilitation experts:

Mr. Yankowski on behalf of Plaintiff and Mr. O’Brien on behalf of Defendant. The Court also

received designated deposition excerpts and reports from Plaintiff’s economist Mr. Phillip Allman

and Defendant’s economist Ms. Ogus. 

Plaintiff’s statements to his own vocational rehabilitation expert, Thomas Yankowski, cast

doubt on the credibility of Plaintiff as well as of Mr. Yankowski on the issue of past wage loss. 

Plaintiff met with Mr. Yankowski on April 14, 2009. Tr. at 328. Plaintiff told Mr. Yankowski that

he had a history of working full time before the accident for Scarborough Tile and Bollar

Stoneworks, and slightly less than full time at United Parcel Service. Tr. at 328, 330-31, 334-37. 

Mr. Yankowski had access to Plaintiff’s wage and tax documents that demonstrated the inaccuracy

of Plaintiff’s statements, as described below, but Mr. Yankowski did not correct his report to adjust

for Plaintiff’s scantier actual work history. Tr. at 331-337. In addition, Plaintiff told Mr.

Yankowski that Dr. Chou was his treating doctor, and that he saw him four times per year. Tr. at

341-42. In fact, Plaintiff did not see Dr. Chou four times per year from the period of May 31, 2007

through January 8, 2009 as he told Mr. Yankowski. Instead, Plaintiff saw Dr. Chou a total of four

times during that approximately one and one-half year period. Tr. at 342; Ex. Z3. Plaintiff also told

Mr. Yankowski in April 2009 that he continued to receive treatment from Dr. Newman, when in

fact, Plaintiff had not received any treatment, including prescription of any medications, from Dr.

Newman since 2007. Tr. at 342, 881-882. Plaintiff also told Mr. Yankowski that he anticipated

having fusion or disc replacement surgery in the future, but as of that date, Plaintiff had not been

told by any physician that he would require future surgery. Tr. at 342. Mr. Yankowski later

testified that he had a subsequent telephone communication with Plaintiff in which he learned that

Plaintiff was consulting with Dr. Chou and Dr. Light, and was undecided about whether to have

future surgery. Tr. at 346-47. Despite knowing that Plaintiff was undecided on future surgeries, Mr.

Yankowski testified that Plaintiff had given consent to the surgeries. Tr. at 312-13. Mr. Yankowski

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never spoke to Dr. Chou about whether Plaintiff would require any future surgeries, even though

Plaintiff told Mr. Yankowski that Dr. Chou was his treating physician. Tr. at 343. 

Plaintiff also told Mr. Yankowski that Dr. Chou informed Plaintiff that he “must” not work

for one year after the microdisectomy. Tr. at 342. Plaintiff testified similarly at his deposition that

Dr. Chou told him not to work for at least one year, and in reference to whether he was referring to

tile setting or not, Plaintiff testified: “[Dr. Chou] said take a year off and don’t do any work for a

year.” Pl.’s Depo. at 154-55. In fact, Dr. Chou testified that he did not tell Plaintiff not to return to

any work for one year, although he did tell Plaintiff not to return to heavy work. Chou Depo. at 30. 

Mr. Yankowski did not talk to Dr. Chou about when Plaintiff could return to work, even though

Plaintiff told Mr. Yankowski that Dr. Chou restricted his ability to work. Tr. at 343. Plaintiff told

Mr. Yankoswki that he had been working full time and living at home to save money for his

“definite plan” to move to Los Angeles in early 2007. Tr. at 356-57. Plaintiff’s father, however,

testified that he did not know about a definite plan for his son to leave home. Tr. at 436. Mr.

Yankowski’s testimony is not credible because the information on which he based his opinions is

not credible. 

Based on reports from Mr. Yankowski and Dr. Light, among other things, Plaintiff’s

economist, Mr. Allman, determined Plaintiff’s loss of wages and benefits. Ex. 48. Mr. Allman

projected Plaintiff’s loss of wages and benefits from the date of Plaintiff’s injury to Plaintiff’s

statistical work life expectancy of 29.0 years, and his loss of household services from the date of the

injury to Plaintiff’s life expectancy of 77.2 years. Allman Depo. Ex. 1 at 2. Mr. Allman calculated

Plaintiff’s past loss from the date of the injury to the first day of trial on February 1, 2010, and future

loss from February 2, 2010 through the end of Plaintiff’s work life expectancy for wage losses and

end of Plaintiff’s life expectancy for household services losses. Allman Depo. Ex. 1 at 2. 

According to Mr. Allman, Plaintiff’s past loss of wages and benefits is $142,689 if he were

employed as a computer animator/modeler or $160,530 if he were employed as a tile setter. Allman

Depo. at Ex. 1 at 2. The present discounted value of Plaintiff’s future loss of wages and benefits is

$2,042,105 if he were employed as a computer animator/modeler, or $1,665,834 if he were

employed as a tile setter. Allman Depo. Ex. 1 at 2. The present discounted value of Plaintiff’s

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future mitigating wages and benefits is $1,179,518 if he were employed as a computer

animator/modeler, $1,236,238 if he were employed as an apartment property manager, and $825,291

if he were employed as a social services assistant/human services worker. Allman Depo. Ex. 1 at 2,

3. Based on Mr. Yankowski’s determination that Plaintiff had a loss of household services of six

hours per week, Mr. Allman also opined that Plaintiff’s past loss of household services is $23,397,

and that the present discounted value of the loss of future household services is $238,166, for a total

loss of household services of $261,563. Allman Depo. Ex. 1 at 3. 

The Court finds that Mr. Allman’s projections lack credibility because they are based on

reports by Mr. Yankowski and Dr. Light that the Court also finds lacking in credibility as described

above. Further, the Court is not persuaded that it is probable that, but for this accident, Plaintiff

would have worked as a computer animator. There is no evidence that he ever attempted to work in

that field in the fifteen months following his May 2005 graduation from the Academy of Arts until

the accident. Tr. at 786. Instead, Plaintiff graduated and continued to work on a limited part time

basis for Scarborough Tile. Plaintiff testified that he was saving money to move to Los Angeles to

obtain an internship, but the fact that he was working part time and had apparently made no attempts

to secure future employment in Los Angeles, cuts against a finding that Plaintiff would have entered

the computer animation field in early 2007, as described by Mr. Yankowski. 

On the other hand, Defendant’s vocational rehabilitation expert, Andrew O’Brien,

interviewed and examined Plaintiff on September 11, 2009, during the same week that the

surveillance video was taken of Plaintiff, including the day before the interview as well as three

additional days after it. Joint Findings of Fact at 16; Ex. LL. Mr. O’Brien opined that Plaintiff was

able to perform sedentary work with the ability to stand up and stretch at Plaintiff’s discretion as

early as September 1, 2007 and no later than December 1, 2007. Tr. at 750, 794-95. In fact,

although several doctors have found Plaintiff to be unable to return to work for short periods of time,

there is no indication that Plaintiff was disabled after October or November 2007. On October 6,

2006, Dr. Wallace stated that Plaintiff should stay off work until he was feeling better. Ex. 9 at 7. 

On October 19, 2006, Dr. Robinson determined that Plaintiff could not return to his regular work

until November 14, 2006. Ex. 9 at 21-23. Later, on December 6, 2006, Dr. Melnick determined that

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Plaintiff should not return to work for two months, and then on February 22, 2007, Dr. Melnick

found that Plaintiff unable to return to work until May 22, 2007. Ex. 16 at 49, 53. On June 7, 2007,

Dr. Newman determined that Plaintiff was temporarily disabled for three to four months. Ex. S2 at

42. Following Dr. Newman’s determination, Plaintiff had microdiscectomy with Dr. Chou on July

30, 2007, and then had a follow-up appointment with Dr. Chou on August 30, 2007 after which Dr.

Chou did not put a time frame on Plaintiff’s ability to return to sedentary work, but stated that there

would be at least some recovery time. Chou Depo. at 27-31, 37-41. Later, on April 22, 2008, the

Social Security Administration found that Plaintiff was not disabled. Ex. FF1at 000432-36. 

Mr. O’Brien testified that the median wage for sedentary full time employment at the

relevant time was from $14.50 for an information clerk or receptionist to just under $18 per hour for

a customer service representative. Tr. at 751. Mr. O’Brien opined that Plaintiff could start

employment at the median wage for an information clerk or receptionist, but would start at the 20th

or 25th percentile, or approximately $14.90 per hour, for a customer service representative because

that job normally requires some product knowledge. Tr. at 752-53. Mr. O’Brien concluded that

Plaintiff suffered wage loss following the accident for the closed period from September 23, 2006

through November 30, 2007. Tr. at 753-54. Mr. O’Brien testified that the usual method to calculate

wage loss is to look at past earning history, which was more difficult in this case because there was

no full time work history. Tr. at 754. Therefore, Mr. O’Brien used Plaintiff’s most recent part time

wage of $15 per hour. Tr. at 754. Because there was no history of full time employment and no

indication that Plaintiff would have worked full time, Mr. O’Brien could not assume full time

employment during the fifteen month closed period. Tr. at 754. The Court finds Mr. O’Brien

credible and his testimony persuasive. 

Moreover, Plaintiff made several statements to Mr. O’Brien at the September 11, 2009

interview that cast doubt on Plaintiff’s credibility and the credibility of Mr. Yankowski. At the

September 11, 2009 interview, Plaintiff told Mr. O’Brien that when he walks “every step hurts,” that

he is “never free from pain” in his back, and that he did not “want to bend down with his back at all

anymore.” Joint Findings of Fact at 16; NN at 43. However, the surveillance footage, which was

taken during the same week as the interview on September 10, 13, 14 and 16, 2009, shows Plaintiff

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chatting with his neighbor, walking, bending down to pick up his dog, carrying his dog over his

shoulder with one arm raised, being abruptly jerked by his dog as he walked the dog on his leash,

and driving, including twisting his body to look behind him while reversing the vehicle, without any

expressions of pain. Ex. LL. Plaintiff also told Mr. O’Brien that when he drives, he selects the

smaller of two vehicles because it is lower and he does not have to climb in and out of it “so it’s

easier for me to just kind of throw my legs out the side so I can stand up like that instead of dropping

from the SUV.” Joint Findings of Fact at 16-17. This statement is also inconsistent with the

surveillance footage, which shows Plaintiff driving an SUV without any expression of pain. Ex. LL. 

Plaintiff also told Mr. O’Brien that he worked full time at Scarborough Tile, yet when presented

with his wage and tax documents, Plaintiff stated that he had been working full time for “probably 9

months, 10 months” after working the first one or two months at three days per week. Ex. NN at 69-

70; CCC at 2:04:30-35. Even Plaintiff’s revised testimony regarding full time employment is not

consistent with his tax documents, which showed that Plaintiff did not earn full time wages during

that time. Although Mr. O’Brien testified that Plaintiff’s condition has not stabilized, he also

testified that Plaintiff did not appear to be in pain during the interview, and that Plaintiff requested

only a single break during the interview, which lasted several hours. Tr. at 788-790. 

The Court is also persuaded by the findings of Defendant’s economist expert, Margo Ogus,

who determined that Plaintiff’s total economic loss was $22,871 based on the closed period

calculated by Mr. O’Brien. Ex. JJ4. Ms. Ogus reasonably assumed that, but for the accident,

Plaintiff would have continued to earn at a rate similar to that earned for the first nine months of

2006. Ex. JJ4. During the first nine months of 2006, Plaintiff worked as a part-time helper for

Scarborough Tile, earning $13,213 up to the date of the injury. Ex. JJ4. Ms. Ogus determined that

this rate of earnings is equivalent to $18,130 per year. Ex. JJ4. Accordingly, the Court awards

Plaintiff lost wages of $22,871 for the closed period from September 23, 2006 through November

30, 2007. 

3. Future medical expenses and loss of earning capacity

Damages for the loss of future earnings in this context are recoverable “‘where the evidence

makes reasonably certain their occurrence and extent.’” Kids' Universe v. In2Labs, 95 Cal.App.4th

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870, 883 (2002). To recover damages for future medical expenses, the plaintiff must show: (1) the

reasonable value of each of the expected future medical charges; (2) that the future medical care,

services or suppliers are reasonably certain to be needed and given in treatment of the injury; and (3)

that the condition requiring the future medical care is casually connected to the injuries inflicted by

the defendant. See Cal. Civ. Code § 3283; Hoffman v. Southern Pac. Co., 101 Cal. App. 218,

229-30 (1929). Here, Plaintiff seeks future medical expenses of $396,000 for disc replacement

surgery (Tr. at 923), and $1,005,276 for lost earning capacity (Tr. at 924). The Court concludes that

these future damages are unsupported by the evidence. 

A. Loss of earning capacity

As described above, the Court finds that Ms. Ogus’s opinion regarding wage loss for a closed

period is credible. Further, Mr. Yankowski’s opinion regarding restrictions on Plaintiff’s future

work activity are not credible. Mr. Yankowski did not speak with Dr. Chou to determine if he

placed any work restrictions on Plaintiff. Tr. at 343, 369. The only doctor that Mr. Yankowski

spoke with about work restrictions was Dr. Light, who in turn had not spoken with Dr. Chou and did

not know that Dr. Chou was one of Plaintiff’s treating physicians. Tr. at 352, 364, 412. By failing

to speak with Dr. Chou, who treated Plaintiff most regularly over the longest period of time,

Plaintiff’s expert selectively analyzed the issue of whether Plaintiff could return to work in the

animation field. Even if Plaintiff were to need workplace accommodations in the form of taking

breaks for his back and neck, there is persuasive evidence that he could work as a computer

animator with those accommodations. Mr. Yankowski testified that two of his contacts in the

computer animation field stated that it was possible for a person working in that field to keyboard

for two hours and then take a half hour break (and the Court is not persuaded that he needs such

frequent lengthy breaks on a daily basis), depending on the employer and the project. Tr. at 361-62. 

Mr. O’Brien’s contacts also stated that the computer animation field is concerned with the

ergonomic health of its employees and that frequent breaks are encouraged. Tr. at 756-58. As

recently as September 2009, there were positions available to Plaintiff in the computer animation

and video game industry. Tr. at 762-63. 

According to Plaintiff, the “single most important way to find a job in the art world” is

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through personal contacts, and Plaintiff testified that he has several contacts in the computer

animation field to assist him with his search for employment in the Bay Area and in Los Angeles. 

Tr. at 838-39. Plaintiff already had connections with a well-known animator in Los Angeles whose

firm was always in need of interns. Joint Findings of Fact at 7. In fact, Plaintiff testified at his

deposition that his brother’s friend who worked at Pixar, told Plaintiff about one week after the

accident about an entry level job opportunity at Pixar. Sedie Depo. at 58. Plaintiff believed he was

qualified for the job, but incredibly, stated that did not apply because he did not have the telephone

number. Sedie Depo. at 59. Plaintiff demonstrated high quality animation work and had the proper

skill set to succeed in a career in animation (Joint Findings of Fact at 7), yet Plaintiff has made no

effort to secure a position in the field of computer animation. 

B. Future medical expenses

Of the four doctors who testified about whether disc replacement surgery for Plaintiff is

reasonably appropriate or likely to occur, Dr. Light is the only doctor to examine Plaintiff who has

recommended disc replacement for both the cervical and lumbar areas. Joint Findings of Fact at 14. 

As described above, the Court does not find Dr. Light’s testimony credible on this point. 

Dr. Newman testified that he believes that disc replacement surgery is in its “toddlership,” is

“highly variable” and “rapidly evolving.” Newman Depo. at 38. He testified that in his professional

opinion, there may be reasons for Plaintiff not have the surgery. Newman Depo. at 42. 

Dr. Chou testified that disc replacement surgery is controversial, and that he does not

recommend disc replacement in the lumbar spine, especially for someone of Plaintiff’s age. Joint

Findings of Fact at 12; Chou Depo. at 46, 110. In January 2009, Dr. Chou did not recommend

cervical disc replacement when he examined Plaintiff’s new neck pain. Chou Depo. at 46, 110. Dr.

Chou stated that before he could opine as to whether Plaintiff needed cervical disc replacement, he

would have to perform an examination of Plaintiff. Chou Depo. at 110. Plaintiff did not return to

Dr. Chou to allow him to do so. Dr. Chou has performed cervical disc replacement surgery, but

since July 2007, he has not recommended lumbar disc replacement surgery for anyone. Joint

Findings of Fact at 12. 

Dr. Harrington opined that he does not believe that any disc replacement surgery is indicated

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for Plaintiff. Joint Findings of Fact at 14; Tr. at 682 (“Somebody who can do the things that Mr.

Sedie obviously could do and can do from that video doesn’t need back surgery and obviously

doesn’t need to risk the inherent problems that go with that.. . . Same thing for the neck. He

demonstrated on that video a completely normal range of motion. . . . And there’s just no indication

for back surgery with all its inherent risks and costs, et cetera, in somebody who has essentially

normal neck function.”). Even Dr. Light testified that the prevailing opinion among surgeons was to

perform fusion surgery, and that the minority opinion was to perform disc replacement surgery. Tr.

at 403-05. 

Further, Plaintiff has not established that he will undergo the disc replacement surgeries. 

Plaintiff told Mr. Yankowski in late October or early November 2009 that he had not made a

decision regarding future surgeries. Tr. 344-47. On November 9, 2009, Plaintiff sent an email to

Dr. Chou’s office seeking a “trusted second opinion” about disc replacement surgery. Joint Findings

of Fact at 13; Ex. FF1 at 752. As of the date of trial on February 1, 2010, Plaintiff had not seen Dr.

Chou for a second opinion. Tr. 485. 

Even if disc replacement surgery were indicated for Plaintiff, the Court does not find Dr.

Light’s testimony persuasive on the issue of the cost of the surgery. Because Dr. Light’s testimony

is inconsistent at best, the Court finds that Dr. Light’s testimony in this case about the cost of the

surgery was not credible. Dr. Light testified on direct examination at trial that the cost of disc

replacement surgery for Plaintiff would be approximately $225,000 per surgery for a total of

approximately $450,000, if he were insured. Tr. at 399-400. But Dr. Light also testified on crossexamination that an estimate from Implantium, LLC for $396,000 in surgical costs was exaggerated. 

Tr. at 406-08. Dr. Light’s testimony about the origin of the estimate of $396,000 is inconsistent with

Plaintiff’s counsel’s letter to Plaintiff’s expert Mr. Yankowski describing the $396,000 estimate as

Dr. Light’s. Ex. L7. Dr. Light acknowledged on cross-examination that in a different lawsuit in

state court, he testified in deposition that the total cost of lumbar disc replacement was $60,000. Tr.

408-09. And he testified at the state court trial in that suit that the total cost of the disc replacement

surgery would be $75,000. Tr. 423-25; Ex. SS at 123. Then, Dr. Light testified on crossexamination at this trial that the cash price for the two surgeries for Plaintiff would be $165,000

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total, rather than $450,000. Tr. at 425-27. Dr. Harrington also testified about the reasonable cost for

the disc replacement surgeries, which he estimated at $50,000-60,000 for each surgery, for a total of

$100,000-120,000. Tr. at 686. 

Accordingly, the Court does not award any damages for future wage loss or future medical

expenses.

4. Loss of Household Services

Mr. Yankowski opined that Plaintiff has a loss of six hours of household services per week

due to the accident, which Mr. Yankowski values at $23 per hour, payable for the remaining forty

years of Plaintiff’s life expectancy. Tr. at 326-27; Joint Findings of Fact at 16. Given the evidence

that Plaintiff is able to engage in household activities such as doing laundry (Tr. at 104), grocery

shopping (Tr. at 105), and commendably helping to take care of his father and brother, including

“round-the-clock care” of his brother in the first months after his brother’s serious accident (Tr. at

835), there is no basis for an award of household services, particularly at a rate that is higher than

the hourly wage Plaintiff earned as a tile-setter. The Court does not award any damages for loss of

household services. 

5. Pharmacy and parking receipts

Plaintiff produced evidence to support an award of damages for parking and pharmacy

receipts. Ex. 28, 29. These costs are recoverable because they were proximately caused by the

accident. See Cal. Civil Code § 3333. Pursuant to the receipts produced by Plaintiff, he is entitled

to an award of $75.00 for parking expenses and $487.38 in pharmacy expenses. 

b. General Damages

California law entitles a negligently injured person to pain and suffering damages in order to

compensate for any pain, discomfort, feats, anxiety and other mental and emotional distress, as well

as the loss of the capacity to enjoy life. See Capelouto v. Kaiser Found. Hosp., 7 Cal. 3d 889,

892-93 (1972) (en banc). There is no fixed standard for determining pain and suffering damages

under California law; rather, the trier of fact is required to determine the amount of damages that are

just and reasonable in light of the evidence. The detriment resulting from pain and suffering is

difficult to translate into monetary loss, but it is a genuine one that must be compensated. See

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Capelouto, 7 Cal. 3d at 893. 

Here, Plaintiff seeks $250,000 in general damages for past pain and suffering damages and

$500,000 in general damages for pain and suffering. While the Court agrees that Plaintiff has

experienced pain and suffering and will continue to experience some from the accident, these

amounts are not supported by the evidence. 

Plaintiff has claimed in this case that his pain and suffering are constant and that his life has

been ruined by the accident. Joint Findings of Fact at 16. Plaintiff also describes his life as “hell on

earth” and states that “every possible aspect of his life has been affected and will be affected till the

day I die.” Docket 116, Att. K (Response to Int. #11); Att. L (Supp. Response to Int. #11). While

the Court agrees that Plaintiff has incurred some general damages attributable to the accident, the

evidence belies Plaintiff’s claim of constant pain, and renders not credible Plaintiff’s testimony

regarding the extent of the pain. For example, the surveillance video shows Plaintiff engaged in

activities on several different days in September 2009 that are inconsistent with his claims regarding

the severe curtailment of his daily activities (in both testimony to the Court and his statements to

doctors and experts in this case), as well as his claims of constant, debilitating pain. On September

10, 2009, Plaintiff is shown fueling a Nissan Sport Utility Vehicle and later walking his dog twice. 

The video also shows Plaintiff carrying his dog, which weighed twenty-three pounds as of

September 2009, on his shoulder. Later that day, on a different walk, the video shows Plaintiff

carrying the dog into his residence after returning from a walk. On September 13, 2009, the video

shows Plaintiff leaving a store, walking to the SUV, and driving away. Notably, when Plaintiff

drove away, he twisted his neck and body around to look behind him as he reversed the SUV. That

afternoon, Plaintiff walked his dog, leaving the house at 1:36 p.m., entering a neighbor’s residence,

and returning home at 2:36 p.m. On September 14, 2009, the video shows Plaintiff leaving his

house with the dog at 12:04 p.m. The dog jerked hard on the leash and Plaintiff showed no facial

expression of pain. Ex. AAA, BBB. That same day, the videotape shows Plaintiff visiting with a

neighbor, bending down and squatting to pet a small dog, and picking the dog up. Later that day, the

video shows Plaintiff carrying a bag of groceries, with no apparent discomfort, and walking his dog

two more times. The video also shows Plaintiff picking up his dog several times by bending over at

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the waist. Ex. YY, ZZ. On September 16, 2009, the video shows Plaintiff walking his dog on a

leash to the SUV and then picking the dog up and placing him inside by extending his body through

the driver’s side door. Ex. LL. Later than day, the video shows Plaintiff carrying his dog, walking

to the SUV, and getting in the vehicle while holding his dog. The Court notes, however, that the

surveillance video does not show that Plaintiff ever left his general neighborhood. 

Plaintiff testified that he could see himself wincing in pain several times as the surveillance

video was played in court. Tr. at 171-184. However, the Court’s examination of the videotape does

not reveal any wincing or pain expressions by Plaintiff. Plaintiff’s testimony on this point is not

credible, particularly because he was reluctant to even confirm at one point whether he was the

person in the video. Tr. at 181. Further, during that same week that the video was taken, Plaintiff

told Mr. O’Brien, Defendant’s vocational rehabilitation expert, that he was in constant pain (Tr. at

739), which is inconsistent with the video. In addition, Dr. Harrington testified that the range of

motion in Plaintiff’s low back and neck in performing the activities shown on the video is normal. 

Tr. at 678-83. 

Other evidence also undermines the extent of Plaintiff’s general damages. Plaintiff testified

that he spends much of his time lying down, and there are times that he does not leave his room

because he is depressed about his overall situation. Tr. at 96, 169. However, the Court finds this

testimony is only partially accurate, and is exaggerated given the other evidence of his actual

activities and his pattern of exaggeration. For example, Plaintiff’s online writings show that his life

was not constantly “hell on earth” as he claimed. Docket No. 116, Att. K (Pl.’s response to

Interrogatory 11) at docket page 42. Plaintiff maintained his pages on MySpace and Facebook since

the accident (Tr. at 486), and as of January 12, 2010, his MySpace page listed various activities and

hobbies, and friends of Plaintiff. Ex. UU. Plaintiff wrote entries on his MySpace page, including

one on June 3, 2007, in which he described painting as a frustrating activity when his arm hairs

would get caught in paint. Ex. TT. Yet painting was on the list of activities that Plaintiff claims

were adversely affected by the accident. Docket 116, Att. K at Response to Int. #11. Plaintiff also

testified that he had not done any painting since the accident, but the MySpace entry was written in

the present tense at a time just prior to his microdiscectomy. Ex. TT; Tr. at 167, 490. Plaintiff

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testified that the MySpace entry was a joke, but the Court did not find the testimony credible. 

Plaintiff also testified that 40-45% of his lumbar disc had been removed in Dr. Chou’s

microdiscectomy, and that he has bone-on-bone contact in his lower back. Joint Findings of Fact at

17; Tr. at 478. Medical doctors, however, testified to the contrary. Dr. Light testified that less than

10% of the lumbar disc had been removed. Tr. at 421. Dr. Chou testified that he did not believe

there was any bone on bone contact. Chou Depo. at 73. Plaintiff’s claims of the scope and extent of

his lumbar spine injury were exaggerated. 

Plaintiff testified that his low back pain remained and indeed increased following the

microdiscectomy, but this is not consistent with the evidence at trial. In particular, despite the

allegedly increasing pain, Plaintiff did not seek any medical attention from August 31, 2007 through

January 8, 2009. When he saw Dr. Chou on January 8, 2009, he did not complain of back pain. 

Chou Depo. at 44-45. Instead, the next time Plaintiff complained of back pain was when he saw Dr.

Light, the doctor recommended by Plaintiff’s attorney, on July 9, 2009. 

Plaintiff testified that he can no longer be physically active. While the Court does not credit

Plaintiff’s testimony about the extent of his limitations and pain, it is undisputed that Plaintiff no

longer bikes or engages in other sports or vigorous physical activity in contrast to before the

accident when he regularly engaged in and took pleasure in such activities. Further, he is not able to

do heavy labor such as tile setting, which he did before the accident. Tr. at 316, 748, 776, 792. 

Thus, Plaintiff has suffered a loss of enjoyment. 

The evidence reflects, however, that Plaintiff was in fairly severe pain that adversely affected

his enjoyment of life and ability to work from September 23, 2006, the date of the accident, through

July 30, 2007, the date of his microdiscectomy, and intermittent pain through the present, and that he

has suffered and continues to suffer some loss of enjoyment of life, particularly the curtailment of

strenuous exercise which he previously enjoyed. Accordingly, the Court awards Plaintiff $175,000

in general damages for past pain and suffering and loss of enjoyment, and $75,000 in damages for

future pain and suffering and loss of enjoyment. 

Conclusion

Plaintiff proved Defendant's liability under the Federal Tort Claims Act for injuries he

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suffered when he collided with the United States postal vehicle. The Court HEREBY AWARDS

judgment on the merits in favor of Plaintiff in the amount of $297,624.66.

IT IS SO ORDERED.

Dated: April 21, 2010 

ELIZABETH D. LAPORTE

United States Magistrate Judge

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