IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

JOHN ERIC SMITH, 

Plaintiff. 

v. 

UNITED STATES OF AMERICA, 

Defendant. 

CLARKE, Magistrate Judge. 

Civ. No. 1: 16-cv-00690-CL 

FINDINGS OF FACT & 

CONCLUSIONS OF LAW 

Plaintiff John Eric Smith ("Plaintiff' or '·Mr. Smith") brings this Federal Tort Claims Act 

("'FTCA'') action. pursuant to 28 U.S.C. §§ 1346(b) and 2674, against Defendant United States 

of America ("Defendant") to recover damages for medical negligence resulting from alleged 

negligent treatment, wrongful acts, and omissions by employees of La Clinica del Valley Family 

Health. a federally funded health care facility in Central Point, Oregon. The Court held a bench 

trial from May 1 through May 4, 2018, and took this case under advisement. Mr. Smith was 

represented by Kelly Andersen and Faith Morse. Defendant was represented by Susanne Luse. 

The court having heard the testimony of all witnesses, reviewed exhibits and heard arguments of 

Page I - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
counsel, makes the following findings of fact and conclusions of law, pursuant to Fed. R. Civ. P. 

52(a)(l). 1 

FINDINGS OF FACT 

Mr. Smith was born on February 11, 1972. He was forty-one years old at the time of the 

alleged medical negligence, which occurred in November and December, 2013. He was fortysix at the time of trial. He graduated from Scappoose High School in 1991 and attended, but did 

finish, a plumbing program at Portland Community College. Mr. Smith had generally stead: 

employment in south.:rn Oregon from 1992 to 2005, mostly in the construction field. He did 

have some periods of layoff and or lack of work, particularly when he worked in the Plumbers 

Apprentice union from 1995 to 1999. His job history is detailed in his resume, which was 

received as Plaintiff's Exhibit 30. 

In January, 2006. he went to work for Cook Crane as an Oiler. He acquired his CVL as 

he was required to drive the cranes to job sites. Mr. Smith was laid off for lack of work in May 

2008, at which time the country, and particularly the construction trade, was hit by what has been 

called the "greatest recession since the depression." He collected unemployment to some extent 

for about two years. The state of Oregon had extended the period allowed for unemployment. 

Mr. Smith was required by the state to submit three job applications each week to continue 

receiving unemployment compensation. There was testimony that technically the recession 

ended sometime in 2009, but continued to affect southern Oregon. Mr. Smith, other than some 

minimal informal work for friends, did not work again for wages for five and a half years leading 

up to the alleged medical negligence that occurred in this case in late 2013. The reasons for this 

are not entirely clear but involve the significant recession, some lack of motivation to seek jobs 

1 The parties have consentt:d to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C. § 636( c)( I). 

Page 2 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
that paid less than his prev10us construction jobs, discouragement/depression, and monthly 

support from his mother and obligations at home. 

Mr. Smith was described by family and friends as outgoing, fun loving, helpful to others. 

and social. He was active including fishing, hunting, camping and golfing. He frequently had 

neighbors over for backyard barbeques. He was helpful around the house and handy, having 

done such home projects as replacing the lawn and sprinkler system, building a fire pit, painting. 

tile work and repairing a sink. 

Mr. Smith did have some relevant medical history that includes obesity, diabetes 

mellitus, hypertension and depression. Mr. Smith was 5 foot 6 inches tall and weighed 283 

pounds just prior tu the events at issue in this case. Mr. Smith's medical history is summarized 

in the Medford clinic notes starting on May 6, 2013. Defs Ex. 102. He was a non-smoker but 

did chew tobacco. Mr. Smith was diagnosed with diabetes sometime in late 2012 or early 2013. 

He was placed on the medication Metformin. He had some diabetes related health issues 

including some mention of neuropathy in his feet and skin infection and abscesses, which in part 

were treated with Bactrim, which is an antibiotic used to treat to Methicillin-Resistant 

Staphylococcus Aureus ("MRSA"). MRSA is not, however, specifically mentioned in the 

Medford Clinic records. Mr. Smith testified that he occasionally exercised, was losing weight 

and generally controlling his diabetes with medication and diet before starting treatment at La 

Clinica. 

Mr. Smith was married to Tiffany Smith in November 2013. She has two daughters, agesnineteen and nine at the time of the marriage. 

Mr. Smith transferred his medical care to La Clinica starting on November 12, 2013. with 

follow up visits on November 22. and December 3, 16. 19, 23 and 26. 

Page 3 - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
On November 12, 2013, Mr. Smith established care with a Family Nurse Practitioner 

(FNP) for his diabetes. He had been out of Metformin for two weeks and his "sugars ha[ d] been 

running 200," but had been "120 when taking his medication." He said he was regularly 

checking his sugar levels. He reported that he exercised some, and watched his diet. 

Significantly, Mr. Smith reported a "[history] of multiple MRSA rash outbreaks on torso and 

[left] upper thigh. None currently." MRSA is an infection caused by a type of staph bacteria that 

has become resistant to many of the antibiotics used to treat ordinary staph infections. It often 

begins as a painful skin boil and can resemble pimples or spider bites. See Def.' s Trial Br. 2 n.1: 

Mayo Clinic Staff, MRSA infection, Mayo Clinic (Sept. 9, 2015), https://www.mayoclinic.org/ 

diseases-conditions/mrsa/symptoms-causes/syc-20375336. 

On November 22, Mr. Smith returned to La Clinica and saw another FNP. He presented 

\Vi th "complaint of infection on head." There is also a history of his wife having MRSA. This 

FNP reported that Mr. Smith had a "2.5 cm round slightly indurated erythematous area on mid 

forehead with similar smaller appearing lesion on [left] temporal skin. No fluctuance." The 

nurse practitioner treated Mr. Smith with Bactrim two times a day, for seven days. Bactrim is 

used to treat MRSA. Mr. Smith had not been checking his blood sugar three times per day as 

instructed. He was given a new Glucometer because his was broken. He was reminded about 

the connection between recurring skin infections and blood sugars. 

On December 3. Mr. Smith returned to the clinic and saw a FNP. The chart said. 

··continued staph/MRSA infections was treated with Bactrim by ES." He complained of a lesion 

on the back of his neck that started as an ingrown hair. He reported that "he has never had a 

culture, but wife had a MRSA diagnosis." He was treating with hot compresses. He reported a 

Page 4 - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
.. long h[istory] of abscesses & skin lesions." His blood sugar was high. His Medford Clinic 

records were reviewed. He was given Metformin and Insulin. 

On December 16, Mr. Smith returned to La Clinica and the nursing intake note says 

"'P[atient] here C/P MRSA on the back of her [sic] neck and painful x3 days." Mr. Smith 

reported he was treating his neck lesion with "very hot compresses.'' He was "in enough pain 

that had difficulty sleeping last night." On exam, his "entire posterior neck swollen with very 

large induration. Overlying skin is very excoriated & weeping moderate serosanguinous fluid.'' 

The FNP treating him had a doctor look at Mr. Smith's neck, and he agreed with a diagnosis of 

.. cellulitis." It is not clear whether the doctor was given the complete history of MRSA set forth 

above. The FNP prescribed an injection of an antibiotic, Ceftriaxone. No oral antibiotics were 

prescribed. Mr. Smith was told to return in three days. 

On December 19. Mr. Smith returned to La Clinica. at which time his neck wound was 

fifteen centimeters by ten centimeters (six inches by four inches). Plaintiff's Exhibit 25 is a 

picture of the wound taken sometime in December, 2013. He was having night sweats. The 

wound was draining. A culture was taken. A Q-tip was used to open the wound. He was given a 

four day follow up. 

On December 23, Mr. Smith returned. The wound was described as "[a]bscess on 

posterior neck - small white opening (2mm) with surrounding erythematous mildly tender & 

mildly fluctuant area." The FNP used a "blunt instrument" to release fluid from the large neck 

wound. Mr. Smith was told to continue with warm compresses. 

On December 26, Mr. Smith returned in the morning, at which time he reported three 

days of ''severe back pain upper back worse in mornings. Onset after no injury, musculo-skeletal 

in nature." Mr. Smith had to be assisted into the clinic by a friend. The wound was drained. 

Page 5 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
There is a notation "[i]s getting better." The assessment was "[a]bscess and cellulitis." He was 

given trigger point injections of lidocaine in his periscapular region. An intake nurse note 

indicated he was there for "fl ollow up] for MRSA." His skin was described as "fluctuant warm 

erythematous area entire posterior neck. Small opening draining serous fluid." The abscess was 

drained and the wound packed. This was a Thursday. Mr. Smith was to follow up in the next 

two days. Mr. Smith indicated he would return on Monday, which would have been December 

30. The culture came back in the afternoon confirming MRSA. 

Mr. Smith developed significant lower progressive extremity weakness. He was taken b: 

ambulance to Providence Hospital emergency department on Saturday, December 28. The 

history given was that Mr. Smith over the last three days had not really gotten out of bed, except 

to urinate. He had fallen four times in the last twenty-four hours. He was found to have 

weakness in his arms and lower extremities. An MRI was performed that, according to the 

radiologist, showed an epidural abscess from C2-Tl 0. Mr. Smith was immediately transferred 

for a neurosurgery consult with Dr. David Walker at Rogue Valley Medical Center. 

Dr. Walker evaluated Mr. Smith in the evening of December 28. The evaluation was for 

"[e]pidural abscess with quadriplegia." The history included that in the last few days, Mr. Smith 

had developed "severe neck and thoracic pain and leg weakness." He awoke that morning and 

could not support himself He was also having numbness in his arms and hands. Dr. Walker 

performed an examination and reviewed MRI films of the spine. He confirmed an epidural 

abscess from C2 down to Tl 0, with the worst cord compression at C4-5. He told Mr. Smith that 

an emergency laminectomy from C2 to Tl 0 was needed to evacuate the abscess and save his life. 

Surgical pathology confirmed MR.SA. 

Page 6 - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
Mr. Smith spent the next two months in the hospital with numerous senous 

complications. He underwent physical, occupational and speech therapy. The discharge 

summary of February 28, 2014. provided the following: 

Discharge Diagnoses: 

MRN an epidural abscess with results being essential quadriplegia 

Aspiration pneumonia with Escherichia coli 

Escherichia coli lung abscess 

Escherichia coli bacteremia 

C. difficile colitis hospital acquired 

Diabetes mellitus type 2 well controlled 

Topical candidiasis 

Status post tracheostomy 

Acute respiratory failure status post intubation 

Status post PEG 

Status post C2-T 10 laminectomy and evacuation of epidural abscess and 

decompression of epidural phlegmon December 28, 2013 

Status post bronchoscopy-her extensive mucus plugging 

Resolved Problems: 

Collapse of left lung 

Collapse of right lung 

Low blood pressure 

lleus 

Septic shock 

Disorder of brain caused by toxin or poison 

Pl. ·s Ex. 9 (formatting in original). 

Mr. Smith was in a rehabilitation unit from February 28 to March 19, 2014. 

Mr. Smith's medical problems and treatments over the last four years are extensive. Mr. 

Smith has incurred medical bills of $1,847,009.06. Pl.'s Ex. 24. He continues to be on 

numerous medications. He has had two additional hospitalizations. The first was in October 

2014, for "osteomyelitis left lateral malleolus" (ulceration to the left lateral ankle), and the 

second was in August 201 7, for a UTI, sepsis and gross hematuria. 

Mr. Smith went home to his house, which required some modifications. Staying in his 

own home is extremely important to Mr. Smith. He is an incomplete quadriplegic. He has no 

Page 7 ~FINDINGS OF FACT & CONCLUSIONS OF LAW 
use or feeling in his legs. It is not expected that he will have any further neurologic recovery in 

his lower extremities. He has reasonable strength and use of his dominant right arm and hand. 

and some use of his left arm, but impaired strength and gripping ability of the left hand. He has 

good cognition. 

Although he has a bowel program, he at times has bowel and bladder accidents and 

requires catheterization. There was testimony that this should be able to be improved. Mr. 

Smith has suffered from significant and ongoing pressure sores/ulcers on his back, feet and 

ankles that require constant monitoring and podiatric treatment. Pl.'s Ex. 27, 1-23. He is at risk 

for lower extremity amputations in the future if an infection cannot be controlled. There was 

testimony that a new power wheel chair he had ordered in late 2017 may help with the pressure 

sores. Mr. Smith however, still had treatment from Dr. Jeffrey Zimmer, his podiatrist, in April 

and March 2018, for an "ulceration medial aspect of left heel and medial aspect of right heel'' 

that healed with treatment. He wears neoprene boots, which he described in his testimony as 

··moon boots," day and night to help prevent skin problems on his feet. He has spasticity, which 

is muscle contraction and twitching, and neuropathic pain. He is at increased risk for urinary 

tract infections, depression, and cardiovascular. pulmonary and musculoskeletal problems. 

including fractures. 

Mr. Smith has had in-home care from family and care providers for about six to eigln 

hours a day. This includes his ex-wife, step daughter and aunt and home caregivers from 

Allcare. A Hoyer lift is used to get him in and out of bed, which he cannot do by himself. His 

privacy is significantly impaired because he needs assistance in the shower and with bowel and 

bladder issues. Videos of his daily routine were played at trial. Pl. 's Ex. 29. He has lost sexual 

Page 8 - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
function. His family testified he has feelings of diminished self-worth, loneliness, isolation and 

being a burden on others. At times, he has been angry, frustrated and will cry. 

Mr. Smith has had periodic urology visits, the last time being on July 25, 2016. He has been 

seen by Physiatrist Dr. kffrey Solomon, the last time being on January 12, 2016. He continues 

to see his primary care physician occasionally. 

Mr. Smith was divorced in March 2017 and moved to an apartment that had some 

disability modifications. 

He was examined by Dr. Robert Arnsdorf on November 16, 2017. Dr. Arnsdorf is a 

Physiatrist. He provided the following summary of Mr. Smith's medical problems and treatment 

in his report: 

Regarding mobility, he is nonambulatory. He transfers using a mechanical 

lift. He does have a standing frame that he uses when he does not have sores on 

his feet which would preclude its use. He has a power wheelchair. He has not 

tried propelling a manual wheelchair. He is not driving a car or van at this point, 

but is interested in doing so. 

He requires significant assistance with activities of daily living. He gets 

179 hours of caregiver support to assist him per month. He notes that 7 nights a 

week, he is left alone overnight and he is unable to get out of his bed to a 

wheelchair on his own. 

His bladder is managed with Foley catheter. He has frequent urinary tract 

infections and is followed by urology. He had done an intern1ittent 

catheterization program, but had to do this very frequently and this was disrupting 

his life and his sleep. Renal ultrasound from January 2015 showed no evidence of 

stones or obstruction. 

His spasticity is a significant issue that he describes as "bad." His hips 

and knees pull into flexion which is painful for him. He is on Baclofen 80 mg a 

day, but has not tried other medications for his spasticity, nor a higher dose of 

Baclofen. He gets some benefit from Cannabis derivatives .... 

He has had chronic skin breakdown, especially on his feet. He did have a 

pressure sore on his buttocks as well, though this has healed. He blames his 

current wheelchair for the skin breakdown on his feet, and a new wheelchair, 

apparently, has been orJered. Custom fit diabetic shoes were tried and these were 

ineffective. 

He is not sexually active. He is unable to have an erection and has not had sexual 

relations since the onset of his cervical myelopathy. 

Page 9 - FINDINGS OFF ACT & CONCLUSIONS OF LAW 
Pl.'s Ex. 40. 

Mr. Smith, to his credit, has some improved function in his upper extremities with the 

help of weekly home physical and occupational therapy visits. Mr. Smith testified that he works 

hard to get better. He can feed himself, grip certain cups and brush his teeth once someone else 

has put toothpaste on his toothbrush. He can use his cell phone. He is able to get prepared meals 

out of the refrigerator. He should in the future be able to exercise with an upper extremity 

ergometer. He has a standing frame that he can use if he has no foot sores. He has a power 

wheel chair and is left alone in the afternoons and at night after he gets assistance getting into 

bed. Mr. Smith is fearful being home alone at night. The closest fire station is about one and a 

half miles away. He does have an application on his phone that reaches emergency services 

quickly. He is able, with the assistance of medical transport vans, to get out of the house. Mr. 

Smith, with training, should be able to drive a specially equipped van, and possibly with proper 

equipment modification, be able to again hunt and fish. 

The parties stipulated that based on his pre-injury health problems and post-injury 

medical status, Mr. Smith has a life expectancy of twenty-one years. The normal life expectancy 

for a forty-six-year-old male is thirty-three years. 

CONCLUSIONS OF LAW 

I. Liability 

A. Allegations in Complaint: 

Mr. Smith brings a single, but substantial, claim of medical negligence against the United 

States for negligent treatment received at La Clinica del Valley Family Health, a federally 

funded health care facility in Central Point, Oregon. 

Page I 0 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
In his Amended Complaint, Mr. Smith alleges that La Clinica's care providers were 

negligent in the following \\ay:-;: 

a) In failing to heed the history plaintiff gave at this first visit, and repeated on 

later visits, that in the past he had Methicillin-resistant Staphylococcus aureus 

(MRSA), and that he had been recently exposed to MRSA: 

b) In ignoring the growing constellation of symptoms pointing to MRSA, 

including growth of the infected area, and its non-response to the treatment La 

Clinica was providing; 

c) In giving plaintiff and intermuscular injection of the antibiotic ceftriaxone on 

December 16. even though this drug is known to be ineffective against 

MRSA; 

d) In failing at each visit, until December 19 or 23, to culture plaintiffs 

infection, and then failing to act immediately and properly when the culture 

revealed MRSA; 

e) In failing to drain the infection until December 23, and then using only a 

"blunt instrument" rather than a surgical tool, with the result that the 

attempted drainage was ineffective; 

f) In doing trigger point injections to treat plaintiff's back pain on December 26, 

failing to comprehend that his back pain was the result of the infection now 

having spread to his spinal column, and that trigger point injections would 

have no effect in treating the infection; 

g) In continuing to treat a patient whose condition and needs had exceed their 

abilities, skills, and/or training; 

h) In failing to consult adequately (if at all) with medical doctors (inside or 

outside La Clinica) to obtain their advice, counsel, and judgment on how to 

treat plaintiff's infection; 

i) In failing to refer plaintiff to a medical doctor (inside or outside La Clinica) 

having expertise in the treatment of infectious diseases; 

j) In failing to admit plaintiff to a hospital, where he could have received proper 

medical care, to include (but not limited to) an infusion of antibiotics that 

would have been effective against MRSA; and/or 

k) In failing, increasingly over time, to heed plaintiff's growing symptoms of 

pain, excessive sweating, decreasing functional abilities, falls, and immobility, 

all of which indicated that the infection that had begun in the back of 

plaintiffs neck had spread and was becoming a systemic infection that was 

growing worse hour by hour and day by day. 

Am. Comp!. at 2-3. 

B. Legal Standard: 

Under the FTCA, the United States is liable to the same extent as a private citizen under 

the law of the state where the tort occurred. See 28 U.S.C. § 1346(b); Carlson v. Green, 446 

Page 11 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
U.S. 14, 23 (1980)). Therefore, Oregon substantive law applies. See Am. Compl. Neither 

punitive damages nor attorneys' fees are authorized under the FTCA. 

Under Oregon law, to prevail on a medical malpractice cause of action a plaintiff must 

prove by a preponderance of the evidence: 

( 1) the degree of care, skill and diligence used by ordinarily careful [medical providers] 

in the same or similar circumstances and in the same or a similar community; (2) that 

defendant failed to use reasonable care and diligence in the application of that skill; and 

(3) that, as a result of the failure to exercise reasonable care, plaintiff sustained injuries 

that would not otherwise have been sustained. 

Gross v. Hacker, 168 Or. App. 529, 534 (2000) (citing Ste1•ens v. Bfapham, 316 Or. 221, 227 

(1993)). 

C. Testimony of Expert Witnesses: 

Mr. Smith called two highly qualified medical experts to testify that La Clinica failed to 

meet the standard of care owed to Mr. Smith in a number of ways set forth below. 

Roseann Velez is a Doctor of Nursing Practice (DNP), Certified Registered Nurse 

Practitioner (CRNP), Family Nurse Practitioner (FNBC) certified by the American Nurses 

Credentialing Center, and an American Association of Nurse Practitioners Fellow (F AANP). 

Ms. Velez earned her Bachelors of Science in nursing from Wagner College in 1983, Masters in 

nursing from New York University School of Nursing in 1988, post-Master's degree from 

University of Maryland School of Nursing in 1999 and her Doctor of Nursing Practice degree 

from Chatham University in 2013. Ms. Velez has performed clinical work in various nursing 

positions at various institutions since 1983, and has also taught nursing students in various 

professor positions since 2002. She has also written se\ eral articles, many peer-reviewed, some 

of which specifically address MRSA. 

Page 12 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
Dr. David Talan received his medical degree from the University of Illinois Medical 

College in Chicago in 1981. He is board-certified in Emergency Medicine, Internal Medicine 

and Infectious Diseases. In addition to his duties as a physician, Dr. Talan has also taught 

medical students at the UCLA School of Medicine in various professor positions since 1986. He 

is cum~ntly a Professor Emeritus and has held that role since 2014. His qualifications includl· 

many committee memberships, awards, and other honors, as well as dozens of published articles. 

many of which pertain directly to the study and treatment of MRSA. 

Both Ms. Velez and Dr. Talan agree that the standard of care was violated by La Clinica 

in the following ways: 

a) La Clinica staff failed to appreciate, explore or follow-up on Mr. Smith's stated history of 

MRSA. which he informed them of at his very first visit. This was a serious omission 

given Mr. Smith's co-morbidities of hypertension, morbid obesity, and especially 

diabetes, which made him more susceptible to infections. 

b) La Clinica staff also failed to appreciate. explore or follow-up on Mr. Smith's statement 

that his wife had been diagnosed with MRSA. Ms. Velez testified to the fact that MRSA 

can live in a home for up to ninety days and that Mr. Smith was likely a colonizer. This 

meant that the MRSA bacteria were likely living inside Mr. Smith's nose, and that a 

reasonable provider would have performed a swab to confirm. 

c) As symptoms continued to point to MRSA, La Clinica staff gave Mr. Smith an injection 

of ceftriaxone - an antibiotic ineffective against MRSA - in a dosage that would have 

been ineffective, even if it were an appropriate drug to prescribe. 

Page 13- FINDINGS OF FACT & CONCLUSIONS OF LAW 
d) La Clinica medical providers failed to recognize Mr. Smith's drenching night sweats as ~1 

sign that the infection had moved into his bloodstream and begun affecting other bodily 

systems. 

e) La Clinica performed erroneous treatments such as attempting to drain an abscess with a 

"blunt instrument," and performing trigger point injections to treat back pain that should 

have been recognized as the MRSA infection spreading to the spinal column. 

f) As the infection continued to grow and spread in spite of La Clinica's treatment effo11s. 

La Clinica failed to correctly diagnose MRSA and failed to refer Mr. Smith to a higher 

level of care. 

Ms. Velez and Dr. Talan agree that these critical errors and failures to provide Mr. Smith 

with the proper standard of care led to his spinal injury. If Mr. Smith had received proper care 

and been properly diagnosed as having a MRSA infection, that infection could have been treated. 

and Mr. Smith would not be in the position he is today. 

Defendant did not call any liability experts or witnesses from La Clinica. 

The court finds for Mr. Smith on liability. The court finds no comparative negligence on 

Mr. Smith. 

II. DAMAGES 

Under Oregon law, a plaintiff who suffers personal injury may recover for "objectively 

verifiable monetary losses/' such as reasonably necessary medical costs, loss of income, and 

future impairment of earning capacity. Or. Rev. Stat. § 31.710(2)(a). A plaintiff may also 

recover noneconomic damages, meaning subjective nonmonetary losses such as pain and 

suffering. emotiorn1l distress. and interference with normal and usual activities. Or. Rev. Stat. § 

31.710(2l(b). 

Page 14 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
Under Oregon law, with regard to future medical harm, "[t]he general rule against 

possible but not probable future damages was modified in the case of Feist v. Sears, Roebuck 

&Co., 267 Or. 402, 517 P.2d 675 (1973)." Pe/cha v. Uniled Amusement Co., 606 P.2d 1168. 

1168 (Or. Ct. App. 1980). In Feist, the Court held that an injury that creates a "predisposition to 

the contracting of some disease, i.e., a possibility" is evidence a jury may consider because, as <1 

matter of "common sense," a jury can award larger damages for an injury that creates the 

susceptibility of future medical harm than an injury that does not have that risk. 517 P.2d at 680. 

A.s a n:sult, under Or~gon lav., future medical harm that is ··more than merely conceivable" is 

admissible for a jury to consider. Pe/cha, 606 P.2d at 1169. It is up to the jury, or in this case 

the Court, however, to consider what weight will be given to these possibilities in determining a 

reasonable award for future medical costs. 

A. Past Medical Expenses 

The evidence at trial indicated Mr. Smith incurred $1,847,009.06 in reasonable and 

necessary past medical bills as a direct result of the negligence of La Clinica. Pl. 's Ex. 24. Tht' 

court is aware that there are issues about potential offsets and liens that may affect the final past 

medical hill figure that will become part of the judgment. 

B. Future Medical Expenses 

Both Mr. Smith and Defendant presented expert testimony of a physiatrist and a lifo care 

planner on the issue of future medical expenses. Dr. Robert Arnsdorf and RN Michele Cook 

testified for Mr. Smith, and Dr. Morgan LaHolt and Anthony Choppa testified for Defendant. 

The Court found all four witnesses to be highly qualified and found their testimony to be 

generally credible. 

Page 15 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
The Court has reviewed the Life Care Plans ("LCP") submitted by RN Cook and Mr. 

Choppa, and considered their testimony, as well as the testimony of Ors. Amsdorf and LaHolt. 

who consulted on the LCPs of RN Cook and Mr. Choppa, respectively. The Court finds that it 

agrees with the recommendations made in each of the LCPs in part, and disagrees in part. The 

goal of the LCP is to provide needed care while preserving as much independence as possible for 

Mr. Smith. It is very important for Mr. Smith to remain in his own home. These findings are set 

forth more specifically below. 

Mr. Smith's LCP: 

Based on all the testimony, exhibits and evidence submitted, the Court disagrees with Mr. 

Smith"s LCP in the following ways: 2 

Urologist: The Court disagrees with Mr. Smith that twelve visits per year is reasonable. 

This number was based on the assumption that Mr. Smith would visit the urologist monthly to 

change out the suprapubic catheter. Mr. Smith does not currently have a suprapubic catheter -

though there was testimony from both sides that this may be something for Mr. Smith to consider 

- and Dr. LaHolt testified that a nurse can come to Mr. Smith's home to change the catheter, a 

trip to the urologist's office is unnecessary. Mr. Smith has had seven urology visits since June 

2014. The Court finds that an average of two visits per year is reasonable. 

Orthopedist: The Court disagrees with Mr. Smith that twelve visits per year is reasonable. 

The Court finds that an average of one to two visits per year is reasonable. Mr. Smith has not yet 

had to see an Orthopedist. 

2 For ce11ain items in the LCPs. the LCP provides for a frequency of visits and also a total number of visits in Mr. 

Smith's lifetime. For example, Plaintiffs LCP estimates two-week hospitalizations occurring every four years for 

Mr. Smith ·s lifetime, and then estimates this will result in a total of eight visits. The parties, however, have 

stipulated to a life expectancy of twenty-one years for Mr. Smith. Therefore, hospitalizations occurring every four 

years would result in a total of five in Mr. Smith's lifetime, not eight. Where estimates like this occur in the parties· 

LCPs. the Court has calculated the proper total number according to the stipulated life expectancy. 

Page 16 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
Home Health RN: The Comi disagrees that nearly weekly visits (fifty times per year) 

from a registered nurse to perform wound checks is reasonable. The Court finds that an average 

of one \'isit every other week (approximately twenty-six times per year) is reasonable. 

Sleep Study: The Court disagrees with Mr. Smith that he will require four sleep studies in 

his lifetime. The Court finds that two sleep studies in his lifetime is reasonable. 

Psychologist: The Corni disagrees with Mr. Smith that fifteen psychology sessions per 

year is reasonable. The Court finds that an average of three sessions per year with a psychologist 

is reasonable. Mr. Smith has been treated by his primary care physician, but has not yet seen a 

psycho lo gist. 

Intensive Care Unit hospitalizations: The Court disagrees with Mr. Smith that three days, 

every four years, for life, is reasonable. The Court finds the entire provision for ICU stays too 

speculative and believes that any potential ICU stay will be provided for under the other 

provisions regarding hospital care. 

Rehabilitation in-patient care: The Court disagrees with Mr. Smith that in-patient 

rehabilitation stays of seven to fourteen days, every three years, is reasonable. The Comi finds 

that two or three such in-patient rehabilitation stays in Mr. Smith's lifetime is reasonable. 

Emergency room treatment: The Court disagrees with Mr. Smith that two emergenc; 

room \isits per year is reasonable. The Court finds that an average of one emergency room visit 

per year is reasonable. 

Bone scan: The Court disagrees with Mr. Smith that yearly bone scans are reasonable. 

The Court finds that one bone scan every five years is reasonable. 

Nerve conduction studies/electromyogram ("EMG"): The Court disagrees with Mr. Smith 

that he needs nerve conduction studies or EMGs to assess him for shoulder or carpal tunnel 

Page 17- FINDINGS OF FACT & CONCLUSIONS OF LAW 
problems. Dr. LaHolt testified that these tests are used to evaluate nerves, not shoulder 

pathology, and are therefore inappropriate recommendations. He also testified that carpal tunnel 

is more common in people with spinal injuries, but typically an overuse injury like that is found 

in people who use manual wheelchairs. As Mr. Smith uses a power wheelchair, the Court finds 

the need for these tests too speculative. 

All-terrain wheelchair: The Court disagrees with Mr. Smith that the all-terrain wheelchair 

will need to be replaced every five years. The Court heard testimony that the all-terrain 

\\heelchair will receive considerably less use than Mr. Smith's primary power wheelchair, which 

Mr. Smith also estimates will need to be replaced every five years. Given the difference in 

projected use, and the fact the all-terrain wheelchair will receive annual maintenance, the Coun 

finds that the need for replacement of the all-terrain whedchair is too speculative. 

Wheelchair-accessible van: The Court disagrees with Mr. Smith that he will require a 

third replacement (fourth total) wheelchair-accessible van. Given the stipulated life-expectancy. 

the Court finds that two replacement vans in Mr. Smith's lifetime is reasonable, but a third 

replacement is too speculative. 

In-home care provider: The Court disagrees with Mr. Smith that twenty-one hours per 

day of in-home care is reasonable. The Court is mindful of Mr. Smith's fears of emergency 

\\hen no caregiver is present; however, the Court believes that Mr. Smith's ability to summon 

emergency services quickly is adequate to respond in such situations. The Court finds that ten 

hours per day of in-home care is reasonable. 

Home maintenance: The Court disagrees with Mr. Smith that eighty hours per year of 

home maintenance is reasonable. The Court finds that forty hours per year is reasonable. 

Page 18 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
Case manager: The Court disagrees with Mr. Smith that eight hours per month of case 

manager services is reasonable. The Court finds that four hours per month is reasonable. 

Home modifications: The Court disagrees with Mr. Smith that two home modifications is 

reasonable. The Court finds that one home modification is reasonable. 

Vocational evaluation: Mr. Smith does not provide for any vocational evaluation. The 

Court finds that ten hours of vocational evaluation is reasonable. 

Vocational training: Mr. Smith does not provide for any vocational training. The Coun 

finds that nine months of a vocational training program is reasonable. 

Defendant's LCP: 

Based on all the testimony, exhibits and evidence submitted, the Court disagrees with 

Defendant's LCP in the following ways: 

Primary Care Phvsician: The Court disagrees with Defendant that an average of one to 

tv.o visits per year is reasonable. The Court finds that four visits per year, above the general 

population, is reasonable. 

Urologist: The Court disagrees with Defendant that an average of one to two visits, ever: 

other year, is reasonable. The Court finds that an average of two visits per year is reasonable. 

Orthopedist: Defendant does not provide for any orthopedic visits in its LCP. The Court 

finds that an average of one to two visits per year to an orthopedist is reasonable. 

Podiatrist: The Court disagrees with Defendant that two visits per year is reasonable. The 

Court finds that twelve visits per year is reasonable. 

Physical/occupational therapy: The Court disagrees with Defendant that one evaluation 

and one follow-up treatment sessions every five years is reasonable. Counsel for Defendant. 

Page 19 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
after hearing testimony about the occupational therapy Mr. Smith is currently receiving, agreed 

this care should continue at the same level. The Court agrees. 

Seating evaluation: Defendant does not provide for a seating evaluation for proper 

\\·heelchair fit. The Court finds that yearly seating evaluations are reasonable. 

Future hospitalization:;: The Court disagrees with Defendant that one to two 

hospitalizations in Mr. Smith's lifetime, for an average of three days each, is reasonable. The 

Court finds that five hospitalizations in Mr. Smith's lifetime, for an average of two weeks each. 

is reasonable. 

In-patient rehabilitation: Defendant does not provide for any in-patient rehabilitation. 

The Cowi finds that two or three in-patient rehabilitation stays in Mr. Smith's lifetime, for an 

average of one to two weeks each, is reasonable. 

In-patient intravenous therapy: Defendant does not provide for any in-patient intravenous 

therapy. The Court finds that five such stays in Mr. Smith's lifetime, for an average of five to 

seven days each, is reasonable. 

Emergency room treatment: Defendant provides for future emergency room visits only 

'·as needed" and does not assign any cost to this topic. The Court finds that an average of one 

emergency room visit per year is reasonable. 

Bone scan: The Court disagrees with Defendant that one bone scan every ten years is 

reasonable. The Court finds that one bone scan every five years is reasonable. 

Wheelchair-accessible van: The Court disagrees with Defendant that only modifications 

to an existing van are necessary and compensable. The Court finds that the full cost of a 

wheelchair-accessible van is reasonably necessary, as well as two replacement vans over Mr. 

Smith's lifetime. 

Page 20 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
In-home care provider: The Court disagrees with Defendant that eight hours per day of 

in-home care is reasonable. The Court finds that ten hours per day of in-home care is reasonable. 

Home health RN: The Court disagrees with Defendant that monthly visits from a 

registered nurse are reasonable. The Court finds that a visit every other week from a registered 

nurse is reasonable. 

Case manager: The Court disagrees with Defendant that eight hours per year of a case 

manager is reasonable. The Court finds that four hours per month (forty-eight hours per yeari 

from a case manager is reasonable. 

In total, the Court calculates Mr. Smith's reasonable future medical costs at roughly 

$3,800,000. Case law and common sense dictate that this total must be discounted to present 

value. otherwise Mr. Smith would receive a windfall. See Tucker v. Cascade Gen., Inc., No. 

3:09-CV-1491-AC 2014 U.S. Dist. WL 6085829 at *26 (D. Or. Nov. 13, 2014) (discounting 

future medical expenses to present value); UCJI 70.05. The Court will request additional 

briefing on the proper discount value for this award prior to entry of judgement. 

C. Loss of Earning Capacity 

Mr. Smith alleges that because of the negligence of La Clinica, he is no longer capable of 

gainful employment. He alleges loss of earning capacity. 

Mr. Smith testified that he was continuing to look for work just prior to his injury in late 

2013. There was however very little evidence to support that claim. Mr. Smith presented the 

testimony and report of Daniel Rubenson PhD, who is an economist. Dr. Rubenson calculated 

that at the time of his injury, Mr. Smith had a work-life expectancy of eighteen years, to about 

age sixty. His last employment was from 2005 through 2007 at Cook Crane, and his average 

annual salary was $34,493. Dr. Rubenson calculated any loss of earnings for Mr. Smith to start 

Page 21 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
in January 2014, with an annual inflation figure of 3% (average inflation since 1990) and a 

reduction to present value using 3.3% (average interest rate on 1 year Treasury securities owr 

the same period). In his report, Dr. Rubenson summarized his lost earning capacity analysis a'. 

follows: 

Because Mr. Smith's employment and earnings record is intermittent, it is 

not reasonable to assume that he would have worked full time and consistently in 

the years after his injury; it is similarly unreasonable to assume that he would 

have not worked at all in the future. Although it is possible that, absent his injury 

in 2013, Mr. Smith would have immediately returned to full-time work at his 

former wage leveL it is also possible that he would have worked on a less 

consistent basis. The analysis therefore presents a range of possibilities for 

earning capacity, ranging from full-time work at his former occupation to quartertirne work at minimum wage. These possibilities are presented in detail in Table 

I. and show lost earning capacity ranging from $94,342 (assuming he would have 

worked post-injury on average one-fourth of the time at minimum wage) to 

$629,739 (assuming full-time work at his former occupation). 

Pl.· s Ex. 41. Dr. Rubcnson assumes a return to work on January L 2014, for all scenarios and no 

post-injury earnings. 

Defendant submitted the testimony and report from forensic economist Erick West who 

evaluated Mr. Smith's loss of earning capacity claim. Mr. West calculated that Mr. Smith had an 

average annual earnings of $12,621 from 2005 to 2013. Mr. Smith had not worked for 5 .6 years 

at the time of his injury in late 2013. Mr. West looked at the average duration of unemployment 

for other people seeking work during this 5.6-year period. Mr. Smith's unemployment lasted 7.5 

times longer than the longest average duration of unemployment for others in the years 2008-

2013. In his report. Mr. West states "it is evident that Mr. Smith was not diligently seeking 

gainful employment during the [5.6-year] period immediately preceding the subject incident. 

Therefore, it is speculative to assume that Mr. Smith would have returned to the workforce 

anytime close to November 2013 regardless of the subject incident." Def.'s Ex. 179. 

Page 22 - FINDINGS OF FACT & COl\JCLUSIONS OF LAW 
In terms of post-injury earning capacity, Mr. West cited defendant's life care planner 

Anthony Choppa, who stated in his report "[i]t is clear Mr. Smith's injuries have affected his 

physical capacity to work. However, vocational rehabilitation services would assist in returning 

him to the labor market at least paying the minimum wage. Further, a short term retraining 

program. approximately nine months to one year, would additionally enhance his employability 

and wage earning capacity." Def.'s Ex. 170. 

Mr. West also cited Mr. Smith's own Physiatrist, Dr. Robert Arnsdorf~ who stated in his 

report. "Mr. Smith does have the capacity to perform some gainful employment given his 

relatively functional right arm and his intact cognition. l suggested he contact the Department of 

Vocational Rehabilitation through the State of Oregon if he is truly interested in pursuing returnto-work. Obviously, he is not going to go back to any kind of manual work as he was doing 

prior to his myelopathy." Pl.'s Ex. 40. 

In his conclusion. Mr. West stated: 

[t]he above opinions all support that Mr. Smith has the post-injury capacity to 

perform some type of gainful employment that pays at least the minimum wage. 

As of2018, the minimum wage in Oregon is $10.75 per hour. 

Any number of post-injury hours at minimum wage would exceed Mr. 

Smith's documented wages in the [5.6 years] immediately preceding the subject 

incident. In order to achieve his 9-year pre-injury average wage of $12,621, Mr. 

Smith would have to obtain part-time employment with a minimum of 22.5 hours 

per week. In either scenario, it can be reasonably concluded that Mr. Smith has 

sustained zero impairment to his pre-injury demonstrated earning capacity. 

Def. 's Ex. 170 (emphasis omitted). 

The Court is not convinced that only looking at Mr. Smith's employment history from 

2005 to 2013 is entirely fair. He had pretty steady employment prior to 2005. However, given 

the 5.6-y.:ar gap in employment right before he was injured, it is very difficult to determine with 

any degree of reasonable probability, any post-injury loss of earning capacity. However, this 

Page 23 - FINDINGS OF FACT & CONCLUSIONS OF LAW 
Court Jo~s not find it unreasouable to think that Mr. Smith, at age forty-one, may have returned 

to the work force at least on some intermittent basis. But, it is speculative. 

It will now certainly be a challenge for Mr. Smith to return to some type of gainful 

employment. However, this Court was impressed by the attitude and spirit of Mr. Smith to better 

his situation, including getting the needed technology and retraining to obtain employment 

consistent with his limitations. 

The Court finds that any post-injury earning loss, which is very hard to predict, can be 

compensated by actually earning post-injury wages. The Court therefore does not award any 

damages for loss of earning capacity. 

D. Loss of Household Services 

Mr. Smith, who is now single, makes a clam for loss of household services that he nr• 

longer can perform. The evidence at trial was that in-home care providers perform cleaning. 

cooking and other routine home tasks. The court also allows for home maintenance as part of the 

life care plan. Therefore, the Court declines to award any additional sums. 

E. Non-Economic 

The clear negligence of La Clinica has been emotionally and physically devastating to 

Mr. Smith. The pain and suffering he has endured has been extreme. Although he has an 

admirable attitude and is making progress, he faces many potential serious complications. 

Based on all the evidence submitted to this Court at trial, the Court awards $7,000,000 in NonEconomic damages. 

DATED this ;Jj day of May, 2018. 

MAGISTRATE JUDGE MARK D. CLARKE 

Page 24 - FINDINGS OF FACT & CONCLUSIONS OF LAW