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Resnansky v. United States

United States District Court, N.D. California

May 1, 2015

LAURA RESNANSKY, et al., Plaintiffs,


DONNA M. RYU, Magistrate Judge.

Before the court is Plaintiffs' motion for an order permitting them to seek damages exceeding the amounts alleged in their administrative claims pursuant to 28 U.S.C. § 2675(b). [Docket No. 30.] The court held a hearing on the motion on April 9, 2015. Having considered the parties' submissions and oral argument, the motion is granted in part and denied in part.


A. The Incident

The following allegations are taken from the Complaint. Plaintiffs Laura Resnansky and Kris Jacob are married to each other. On February 12, 2013, Resnansky was walking in a crosswalk near the Presidio National Park in San Francisco when she was struck by a vehicle owned by Defendant[1] being driven by Defendant's employee, Karl Twiford.

Plaintiffs allege that the collision "legally and proximately caused" the following injuries to Resnansky's left wrist and right ankle:

[A] comminuted intra-articular of the distal radius as well as a minimally displaced ulnar styloid fracture in her left wrist, as well as a displaced fracture of the distal fibula below the tibial plafond in her right lower extremity. She also suffered other injuries to her body.

Complaint. at ¶ 1.

B. The Federal Tort Claims Act ("FTCA") Claims

On May 1, 2013, Plaintiffs presented written claims to The Presidio Trust as required by the FTCA. Resnansky filed a claim for $1 million, and Jacob filed a claim for $100, 000. By November 4, 2013, the government had taken no action on either of the claims, therefore deeming them rejected by operation of law. See 28 U.S.C. § 2675(a).

C. The Lawsuit

Plaintiffs filed this lawsuit on November 4, 2013. With respect to damages, the Complaint alleges that "[b]ased on current information, plaintiff believes her past medical bills total approximately $80, 000, with approximately $60, 000 paid." Complaint at ¶ 5. Plaintiffs also sought special damages in the amount of $186, 939.49 because Resnansky "has been unable at times to follow her regular work/occupational duties in her job as well as domestic chores, " but noted that "[t]his is an estimate and the presently unascertained sum is not yet finally determined." Id. at ¶ 6. Furthermore, Plaintiffs alleged that Resnansky sustained "general damages for pain, suffering, disability, inconvenience, embarrassment, and all other compensable elements of non-economic harm in the amount of $633, 060.51." Id. at ¶ 7.

In the claim for loss of consortium, the Complaint states that Jacob "suffered the loss of support, services, love, companionship, affection, society, and other elements of consortium, all to his general damage in an amount of $100, 000." Id. at ¶ 10.

D. Resnansky's Medical Treatment

1. Initial Treatment

After the incident, Resnansky was taken to San Francisco General Hospital, where she was diagnosed with a fracture in the radius of her left wrist and a fracture in her right ankle. Resnansky's right leg was placed in a walking boot and her left wrist was splinted.

Dr. Jeffrey Yao treated Resnansky's wrist. He determined that she had a comminuted, or "smashed, " wrist fracture. On February 15, 2013, Dr. Yao performed surgery, which included placing a plate and screws in the wrist. After surgery, Resnansky commenced physical therapy, which she continued through approximately June 2013.

For her ankle, Resnansky was referred to Dr. Kirstina Olson. Dr. Olson did not perform or recommend surgery at that time. Instead, Dr. Olson kept Resnansky's right ankle in the boot for six weeks, and prescribed physical therapy. Resnansky participated in physical therapy for her ankle from approximately April until the end of August 2013.

2. December 2013: Second Wrist Surgery

As noted above, Plaintiffs filed their FTCA claims on May 1, 2013. After May 1, 2013, Resnansky received additional treatment for her wrist and ankle.

On November 18, 2013, Resnansky saw Dr. Yao, complaining of pain on the dorsal aspect of her wrist. Dr. Yao recommended a second surgery to see if Resnansky's tendons were being irritated by the screws that Dr. Yao had placed into her wrist during the first surgery, and to remove the hardware since it was no longer necessary because the bone had healed. Dr. Yao also recommended an arthroscopy procedure since Resnansky was experiencing pain within the joint.

On December 17, 2013, Dr. Yao performed a second surgery on Resnansky's wrist. During the second surgery, Dr. Yao removed the plate and screws that he had previously installed. He also performed an arthroscopy and discovered a stretched scapholunate ligament, which he treated with heat. During the surgery, Dr. Yao noted "a nerve that we often find that may be irritated and may cause pain in the exact area where ...

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