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Lewis v. United States

United States District Court, C.D. California

May 24, 2017

KYLE ANTHONY LEWIS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          CHRISTINA A. SNYDER, UNITED STATES DISTRICT JUDGE

         This matter was tried to the Court on October 21, October 27, October 28 and November 3, 2016. William Karns appeared for plaintiff and Assistant United States Attorney Garrett Coyle appeared for the United States.

         I. FINDINGS OF FACT

         A. The accident

         1. On the morning of January 9, 2015, United States Postal Service letter carrier Sue Silva was delivering mail on her normal route in Northridge. She was driving a government-owned 1992 Grumman LLV Postal Service vehicle eastbound on Chase Street, just west of Tampa Avenue.

         2. Ms. Silva came to a red light at Tampa Avenue, and signaled to make a left turn to proceed north on Tampa Avenue. After determining that it would take significant time to make a left hand turn, Ms. Silva decided instead to make a right hand turn onto Tampa Avenue going south where she planned to move to the center lane and turn left across Tampa Avenue into a parking lot, so that she could turn her vehicle around and make a right hand turn to proceed in the northerly direction on Tampa Avenue.

         3. Ms. Silva testified that once she made a right hand turn onto Tampa Avenue, she checked her mirrors, saw no cars behind her in the left lane, used her left turn signal, and then started to move into the left lane in accordance with her plan to turn around in the parking lot set as forth above.

         4. As Ms. Silva began to drive her vehicle into the left lane going south on Tampa Avenue, she collided into the passenger side of a 2012 Nissan Sentra driven by plaintiff Kyle Anthony Lewis.

         5. At the time of the collision Ms. Silva and plaintiff were traveling southbound in the same direction.

         6. After the collision, plaintiff stopped his car in the center lane without hitting any other cars or objects.

         7. Plaintiff was wearing his seatbelt when the collision occurred.

         8. No airbags deployed.

         9. Plaintiff was driving 53 miles per hour when the collision occurred. He had been accelerating just before the collision.

         10. The posted speed limit on Tampa Avenue where the collision occurred is 40 miles per hour.

         11. Both plaintiff and Ms. Silva were negligent. Plaintiff was speeding based on data obtained from the Nissan's “black box.” According to the government's witness, had plaintiff been observing the speed limit, he could have braked to avoid the accident. However, Ms. Silva should have observed plaintiff in her side view mirror and was obligated not to change lanes until she was certain that the road was clear. Plaintiff's automobile should have been observable as it was plainly behind Ms. Silva's vehicle when she attempted to change lanes, and even if Ms. Silva could not see plaintiff from her left side view mirror, she should have looked to the left rear for oncoming traffic before she attempted to make a lane change. In light of these facts, it appears that plaintiff was fifty percent at fault and Ms. Silva was fifty percent at fault.

         B. Plaintiff's injuries

         1. Chest contusion and moderate back and neck strain

         12. The parties dispute what injuries plaintiff suffered as a result of the January 9, 2015 accident (“the January accident”). According to the government, the only injuries plaintiff sustained from the January accident were a chest contusion and a moderate temporary back and neck strain. In this regard, the government asserts that plaintiff's only complaint to the paramedics and to the emergency room doctors on January 9, 2015, was moderate right rib pain.

         13. The government notes that the emergency room doctor ordered x-rays of plaintiff's neck and chest, both of which were negative.

         14. According to the government, the emergency room doctor also examined plaintiff's back and musculoskeletal system, both of which were normal, and noted no weakness.

         15. Finally, the government notes that the emergency room doctor diagnosed plaintiff with a chest contusion, prescribed a few days of pain medication, and discharged him the same day of the accident.

         16. Four days later, on January 13, 2015, plaintiff saw an orthopedist, Dr. Ramin Rabbani. At that time, plaintiff complained of chest, back, and neck pain. Dr. Rabbani diagnosed him with a chest contusion and a back and neck sprain. However, Dr. Rabbani opined that because this was a side impact collision, the injury was probably more severe, noting that plaintiff reported right flank pain which “can encompass the spine.” Although Dr. Rabbani acknowledges that plaintiff's subsequent testimony that he experienced back pain with radiation at the time of the accident was not identified in the emergency room records, he testified that delayed complaints of low back pain are common with a traumatic event such as the January accident.

         17. Plaintiff returned to see Dr. Rabbani on March 3, 2015, reporting continued cervical and lumbar pain that radiated to his buttocks and thighs. Dr. Rabbani ordered more physical therapy and an MRI of the cervical and lumber spine. According to Dr. Rabbani, the MRI showed disc protrusion at ¶ 5-6, disc bulges at ¶ 3-4 and L4-5. The L4-5 disc bulge extended into the bilateral neural foraminal exit zones and resulted in a neural foraminal narrowing which, according to Dr. Rabbani, was the “primary culprit” of plaintiff's low back and radicular complaints. Dr. Rabbani opined that it was unclear whether the January accident or long-standing degenerative disease caused the disc bulge, but given plaintiff's youth and the degree of plaintiff's pain, he believed the accident was the cause of this injury.

         18. Dr. Rabbani thereafter performed epidural injections in April and June 2015, to alleviate plaintiff's pain. The injections provided temporary relief, but plaintiff's pain returned. In October 2015, Dr. Rabbani performed a surgery in an attempt to decompress the nerves at ¶ 4-5.

         2. No head injury

         19. Although plaintiff asserts that the impact of the accident caused him to hit his head, plaintiff did not sustain a head injury in the accident.

         20. The accident caused plaintiff's head and body to move forward and to the right during the collision - that is, away from the driver-side door and towards the passenger seat.

         21. Consistent with these mechanics, plaintiff did not report head trauma or any symptoms of head injury to the paramedics responding to the scene of the accident, although he subsequently reported headaches when he visited Dr. Rabbani. No signs of head trauma were noted by the paramedics or the emergency room medical staff.

         22. The paramedics assessed plaintiff's Glasgow Coma score as 15, which is normal.

         23. Plaintiff denied having any headaches in the emergency room and reported no head injury.

         24. The neurologist who saw plaintiff on January 21, 2015, reported no objective evidence of head injury, and neither the government expert nor plaintiff's expert asserts that plaintiff suffered a significant head injury.

         25. A brain MRI on January 22, 2015, was normal.

         26. An EEG on March 19, 2015, was normal.

         3. No herniated disc or pinched nerve

         27. Plaintiff did not sustain a herniated disc or pinched nerve in the accident.

         28. The government asserts that the highest change in speed that plaintiff's body experienced during the collision was 3.1 miles per hour, and that a change of this magnitude was too mild to have caused a traumatic disc herniation in plaintiff's back or neck.

         29. MRIs of plaintiff's neck and back on March 10, 2015, show longstanding degenerative changes, and not any abnormalities caused by acute trauma, such as a herniated disc or pinched nerve.

         30. No other test results in the six months after the accident showed a herniated disc or pinched nerve.

         4. Recovery

         31. According to the government's experts, moderate soft-tissue strains like the one plaintiff sustained typically resolve within about six weeks as the soft-tissue inflammation gradually subsides.

         32. Plaintiff reported that his chest pain had resolved by his second visit to Dr. Rabbani on March 3, 2015.

         33. Dr. Rabbani performed a physical examination during plaintiff's March 3, 2015 visit. Aside from the MRI results described above, no objective test results showed any back or neck injuries.

         34. Plaintiff missed no days of work after the accident and continued to work full-time in his job as a machinist.

         35. Dr. Rabbani did not place any physical restrictions on plaintiff's job duties, which involved regularly lifting up to 100 pounds.

         36. Plaintiff received a positive performance review and was given a raise in April 2015.

         37. Although the government provided expert testimony and argument that the reasonable amount was $11, 786.90, plaintiff's health care providers billed a total of $16, 211.50 for the care attributable to the January accident. This excludes emergency room services ...


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