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Kennedy v. United States

October 13, 2009

AMANDA KENNEDY; AND PETER KENNEDY, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorable Gary A. Feess

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

Plaintiffs Amanda and Peter Kennedy were injured in an automobile accident in which the car in which they were riding was struck by an on-duty United States Marine Sergeant. The United States conceded liability, and on July 27, 2009, the case proceeded to trial on damages only. The Court received post-trial briefing and heard closing argument on September 15, 2009. Thereafter, the parties submitted amended proposed findings of fact and conclusions of law for the Court's review and the matter stood submitted. Having further reviewed the post-trial briefs, the proposed findings and conclusions, and considered the arguments of counsel, the following sets forth the Court's findings of fact and conclusions of law in this case.

II. FINDINGS OF FACT*fn1

A. Background

1. The Lawsuit

This was a non-jury action for personal injury brought by Plaintiffs Amanda and Peter Kennedy against Defendant the United States of America under the Federal Tort Claims Act, 28 U.S.C. §§1346 and 2671 et seq., and against Defendant Avis Rent a Car Systems, LLC, following a March 24, 2006 traffic collision involving Plaintiffs and an employee acting in the course and scope of his employment with the United States Marine Corps ("USMC"). Prior to trial, Plaintiffs entered into a stipulation to dismiss Avis from the lawsuit. The Order dismissing Avis was entered July 31, 2009. See Docket No. 49. In this lawsuit, Plaintiffs seek compensation for both economic and non-economic damages.

2. The Accident

At the time of the accident, Kennedy was twenty years old and a USMC Lance Corporal stationed at Marine Corps Base ("MCB") Twenty-nine Palms where she worked as a personnel clerk. Plaintiff Peter Kennedy is Ms. Kennedy's brother who, at the time of the accident, was nineteen years old. He was a passenger in Ms. Kennedy's vehicle when it was struck just outside the gate at the MCB. The United States concedes that it breached a duty owed to Plaintiffs with regard to this accident. Amanda Kennedy suffered injuries to her left wrist and to both ankles which required extensive surgery to repair the damage.

B. Post Accident

1. Surgeries

After the accident, Plaintiffs were taken to Desert Regional Medical Center in Palm Springs, California, where on March 25, 2006, Ms. Kennedy underwent surgery to repair fractures of her left wrist and forearm, her left ankle, which was so seriously injured that it required internal and external fixation, and surgery to repair injuries suffered in her right ankle. She had additional surgery on her left ankle on April 1, 2006. Ms. Kennedy was hospitalized for eleven days at Desert Regional Medical Center. As a result of her injuries she has had approximately nine additional surgeries to repair the injuries to her wrist and ankles. (RT at 59.) These surgeries include the following:

(1) Ms. Kennedy underwent surgery on June 28, 2006 at Barnes-Jewish West County Hospital in St. Louis, Missouri to remove hardware from her left wrist.

(2) Ms. Kennedy underwent outpatient surgery on August 15, 2006 at Barnes-Jewish West County Hospital to remove internal hardware in her right ankle.

(3) Ms. Kennedy underwent surgery on her left ankle at Washington University Medical Center in St. Louis, Missouri on May 19, 2008.

2. Return to Active Duty and Discharge

Ms. Kennedy returned to MCB Twenty-nine Palms for active duty with the USMC in October 2006. Due to her injuries, Ms. Kennedy was found unfit for service by the USMC Physical Evaluation Board, transferred to the USMC Temporary Disability Retirement List in January 2008, and discharged from the USMC in February 2008. Ms. Kennedy currently remains on the Temporary Disability Retirement List with a disability rating of 30% due to injuries; she will be re-evaluated every eighteen months to determine if there has been a change in her disability and whether she is eligible for a full medical retirement. Since the accident, Ms. Kennedy has received medical insurance coverage, retirement pay and benefits from the United States.

3. Post-Discharge Activities

Ms. Kennedy currently lives with her parents in Missouri. Since being discharged from the USMC in February 2008, Ms. Kennedy has held two jobs as a waitress and cocktail server. After the accident, Ms. Kennedy worked for a short period as a cocktail server four to six hours per day three to four days a week. Ms. Kennedy continues to experience pain at a level of 7 to 8 on a 10 scale with 10 being the worst. (RT at 277.) Ms. Kennedy would experience swelling, joint pain and stiffness after working a shift as a cocktail waitress. (RT at 61; 70.) After the accident she was unable to run, dance, or wear high heels without pain, and experienced difficulty in going up and down stairs. (RT at 64-65.)

C. Plaintiff Amanda Kennedy's Damages

1. Past Medical Expenses

TRICARE*fn2 is a health care program of the United States Department of Defense and provides civilian health benefits for military retirees such as Ms. Kennedy. See 10 U.S.C. §§ 1072 & 1097, et seq.; 32 C.F.R. §§ 199.1 & 199.17, et seq. Ms. Kennedy's past medical expenses were $273,824. Ms. Kennedy's past medical bills were paid by the United States via TRICARE medical coverage.

2. Future Medical Expenses

Under the terms of Ms. Kennedy's current USMC Disability Retirement status, she will continue to receive medical benefits through TRICARE coverage in the future. See RT at 243-44:24-2. All of Ms. Kennedy's surgical procedures to date have been provided by non-VA doctors at private non-VA facilities.

Future surgery on Ms. Kennedy's right ankle is not likely required. See RT at 17:11-21 (testimony of Dr. Phillip Kwong, Orthopedic Expert retained by Plaintiffs); RT at 264:4-25; 291:20-3 (testimony of Dr. Carol Frey, Orthopedic Expert retained by the United States). However, there is little question that Ms. Kennedy will need future surgery on her left ankle. She suffered a shattering fracture of the left tibia and fibula that required open reduction with both internal (rods, plates and surgical screws) and exeternal fixation (external frame and pins). (RT at 12-13.) Experts for both parties agree that Ms. Kennedy will likely require an ankle fusion at some time in the future. (RT at 26, 268.) However, an ankle replacement surgery is contraindicated in Ms. Kennedy's case because of the predicted high failure rate of such surgeries in younger patients.*fn3 (RT at 272.) Even Plaintiff's expert concedes that he has never performed such a surgery on anyone in Plaintiff's age group, RT at 37, and that even with such surgery an ankle fusion would likely be required at some future date. (RT at 26.) However, it is unlikely that Ms. Kennedy will require a sub-talar fusion in the future and that her related arthritis can be treated and controlled without the surgery. (RT at 276; 294.)

The cost to perform future surgery on Ms. Kennedy's left ankle and to care for both of her ankles is $69,400. See RT at 267:6-10; 272:6-7; Trial Exhibit 114.*fn4 United States); RT at 37-38:23-12 (testimony of Dr. Phillip Kwong, Orthopedic Expert retained by Plaintiffs).

3. Vocational Rehabilitation

While serving in the USMC, Ms. Kennedy received training in personnel administration, worked successfully as a personnel clerk, provided customer service to both Marines and civilians, and maintained military service records, financial, and personnel information for an entire Marine Corps Base. See RT at 49:13-22; 49-50:24-11. The job responsibilities and duties of a Marine Corps personnel clerk are transferable to a similar civilian job. See RT at 87-88:20-19. Ms. Kennedy took college equivalent courses while in the USMC including math, personal finance, record management, and underwent on the job typing, database, and computer training. This training and education was designed to increase her skills as a Marine Corps personnel clerk and was transferable to a civilian job. See RT at 138:18-24; 153-54:24:6; RT at 194-95:22-6.

Ms. Kennedy presented no persuasive evidence that she requires further vocational training to compete for work in the private sector. Her retained vocational expert spoke to her once over the phone, never met with her in person, did not do any vocational testing of her, does not know how fast she types before or after the accident, and does not know what computer programs she used while in the USMC. SeeRT at 153:7-16; 159:2-13 153-54:24:6. His opinion regarding the need for vocational training was not supported by evidence relevant to her circumstances. Furthermore, Ms. Kennedy requires vocational rehabilitation, a wide spectrum of free educational and vocational rehabilitation services and programs (including the Montgomery G.I. Bill and the Veterans Affairs Vocational Rehabilitation and Employment Program) are available free to Ms. Kennedy through the benefits and programs provided to her, and to which she is currently eligible for. See RT at 68:4-6; RT at 161-62: 23-13; 162-63:16-13; RT at 190:15-24; 191:3-21; 195:7-14; RT at 238-39:16-6.

4. Ms. Kennedy's Past Lost Earnings

Ms. Kennedy enlisted in the USMC for a term of four years that was to expire in September 2008. At the time of the March 2006 accident, Ms. Kennedy was receiving a total salary of $2,816 per month (which comprised her basic pay of $1,790 per month and subsistence pay of $703 per month). See RT at 304-05.

After the March 2006 accident, Ms. Kennedy returned to active duty with the USMC in October 2006 until her placement on the USMC Temporary Disability Retirement List in January 2008. She received her full military pay during this period. See RT at 67-68.

When Ms. Kennedy was placed on the Temporary Disability Retirement List, she began receiving a retirement annuity from the United States in the amount of $775 per month. See RT at 305. Ms. Kennedy currently receives a retirement annuity from the United States in the amount of $813 per month. See RT at 305.

5. Ms. Kennedy Has No Future Lost Earnings

Ms. Kennedy bases her claim to future lost earnings entirely on her contention that she intended to, and would have been accepted for re-enlistment, and anticipated remaining in the USMC until retirement after 20 years service. She presented no evidence on any alternative lost earnings because she claimed that her most likely outside employment, law enforcement, would have paid her more than the USMC. Ms. Kennedy's assumptions were incorrect as the facts set forth below indicate. She was a poor student in high school, RT at 162-63, failed to last a single semester in community college before dropping out, RT at 303, scored at the bottom of the second tier in her Armed Forces Qualifying Test (66th percentile),*fn5 RT at 141-42, and received performance and conduct marks that ranked her as an average Marine who received a recommendation from her supervisor that was highly likely to eliminate any chance she had for reenlistment. (See below.)

A. Ms. Kennedy Was an Unlikely Candidate for Reenlistment

Evidence was presented detailing the policies and procedures for Marines to request and submit for reenlistment. The evidence demonstrated that due to specific and stringent restrictions, only a small percentage of Marines are permitted to re-enlist. SeeRT at 207-08:23-18.

Reenlistment in the Marine Corps is the exception and not the norm. Over 70 percent of Marines leave after the end of their initial reenlistment. SeeRT at 214:14-17; 215:4-13. Only 35.5 percent of Marines were permitted to re-enlist in fiscal year 2008 (the year Ms. Kennedy would have been eligible to apply for reenlistment). SeeRT at 214:14-17; 215:4-13. More particularly, only 220 Marines, 2.6 percent of Marines in the Administration Personnel Clerk Military Occupation Specialty (Ms. Kennedy's Military Occupation Specialty) were permitted to re-enlist in fiscal year 2008. SeeRT at 214:14-17; 215:4-13.

The Marine Corps is extremely selective choosing only the best and most fully qualified Marines for promotion. SeeRT at 225-26:22-11.

When a Marine seeks promotion from the rank of Lance Corporal (Ms. Kennedy's rank at the time of the March 2006 accident) to Corporal, the promotions system goes from automatic advancement (based on time in grade and service) to a highly competitive points based system where the Marine's individual composite score must meet or exceed the changing cutting scores that are announced by the Commandant of the Marine Corps. SeeRT at 228:12-19; 230:5-11. These cutting scores are used ...


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