Opinion
Case No. 8:20-cv-653-MRM
2023-06-26
Francisco GUERRA, Plaintiff, v. UNITED STATES of America, Defendant.
Jason Robert Derry, Paul B. Fulmer, III, Morgan & Morgan, PA, Tampa, FL, Jeanette O. Cardenas, Morgan & Morgan, P.A., Saint Petersburg, FL, Jason Gerard Gordillo, Pinellas County Sheriff's Office, Largo, FL, for Plaintiff. Callan Albritton, Joseph Michael Tompkins, U.S. Attorney's Office, Tampa, FL, Matthew Hart Perry, Boohoff Law, Tampa, FL, for Defendant.
Jason Robert Derry, Paul B. Fulmer, III, Morgan & Morgan, PA, Tampa, FL, Jeanette O. Cardenas, Morgan & Morgan, P.A., Saint Petersburg, FL, Jason Gerard Gordillo, Pinellas County Sheriff's Office, Largo, FL, for Plaintiff. Callan Albritton, Joseph Michael Tompkins, U.S. Attorney's Office, Tampa, FL, Matthew Hart Perry, Boohoff Law, Tampa, FL, for Defendant. ORDER Mac R. McCoy, United States Magistrate Judge
On March 20, 2020, Plaintiff filed his Complaint in this Court, bringing claims for negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., against the United States of America and Christy Green related to a motor vehicle accident. (Doc. 1). The Court later dismissed Ms. Green as a defendant, (Doc. 20), leaving only the negligence claim against the Government. The Court held a four-day bench trial from April 11, 2023 to April 14, 2023. (Docs. 78, 79, 82, 85). At the conclusion of Plaintiff's case-in-chief, the Government moved under Federal Rule of Civil Procedure 52(c) for judgment on partial findings on causation. (See Doc. 79). Having heard the testimony at trial and considered all the evidence and the parties' submissions, the Court enters the following findings of fact and conclusions of law in accordance with Rule 52. In short, the Court rules that Plaintiff has not met his burden of proving causation, the Government's Rule 52(c) motion is granted, and judgment is entered in favor of the Government.
BACKGROUND
The Court has jurisdiction over this case under the FTCA. 28 U.S.C. § 1346(b); see Porras v. United States, No. 8:21-cv-423-JSS, 2023 WL 2583303, at *1 (M.D. Fla. Mar. 21, 2023). Through the FTCA, the United States has waived its sovereign immunity "with respect to claims for money damages, injury or loss of property, or personal injury caused by the negligent or wrongful act or omission of any Government employee if the injury or loss was caused while the employee was acting within the scope of their employment." Id. (citing 28 U.S.C. § 1346(b)(1)). The governing law of claims under the FTCA is the "law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). Because the motor vehicle accident at issue occurred in Saint Petersburg, Florida, the Court applies Florida substantive law. See Porras, 2023 WL 2583303, at *1.
In the parties' Joint Pretrial Statement, they stipulated to the admission of four facts:
1. Time, date, and place of the accident.(Doc. 66 at 13). The Court adopts these as part of its findings of fact based on the parties' stipulation. The parties also identified three disputed issues of fact to be decided at trial:
2. At the time of the accident, Ms. Green was an employee of the Department of Veterans Affairs ("VA"), engaged in the course and scope of her employment, and operating a VA owned vehicle with permission.
3. Plaintiff timely filed his initial administrative claim (SF 95) with the VA.
4. Plaintiff owned the vehicle that he was operating at the time of the incident.
1. Whether the Defendant caused any injury to the Plaintiff.(Id. at 14). Because the Court finds Plaintiff did not prove causation, the Court does not reach the two, latter issues.
2. If the Defendant caused an injury to the Plaintiff, whether the injury is permanent.
3. Plaintiff's damages.
The parties also provided one issue of law that remained to be determined by the Court: "Whether Dr. [Howard] Hochman should be precluded from testifying as to causation." (Doc. 66 at 14). Plaintiff's counsel made a timely objection at trial as to Dr. Hochman's opinion testimony. (Doc. 89 at 14:4-9). The Court overruled the objection at the time but took the matter under advisement for purposes of issuing the final findings of fact and conclusions of law. (Id. at 14:23-15:1). Because the Court finds that Plaintiff has not met his burden on the issue of causation even without considering the opinions of Dr. Hochman, the Court finds that it need not revisit the issue of whether Dr. Hochman could provide opinion testimony.
FINDINGS OF FACT
The following are the findings of fact necessary for the Court to enter judgment. The Court has adopted and adapted many of these findings from the parties' proposed findings of fact and conclusions of law. (Docs. 91, 92).
If any finding of fact may constitute a conclusion of law (or any conclusion of law may constitute a finding of fact), the Court adopts it as such.
I. The Accident
This case arises from a motor vehicle collision that took place on January 12, 2018, sometime between 11:00 AM and 1:00 PM. (Doc 87 at 29:9, 20; 82:19-21). It was a rainy and cloudy day, with a lot of traffic on the road. (Id. at 29:22-23; 82:22-23). Plaintiff was traveling east along 38th Avenue North in the left turn lane. (Id. at 30:13, 18; 82:24-25; 85:1-4). In addition to the turn lane, there are three lanes proceeding straight. (Id. at 30:15). Traffic was very busy with all four lanes backed up. (Id. at 30:21; 31:9-10). Plaintiff was stopped in the left turn lane; when he saw the light turn to a green arrow, he proceeded forward. (Id. at 31:20-23).
Ms. Green had previously pulled off the road into a gas station parking lot to check her GPS for directions. (Doc. 88 at 155:11-18). After she figured out where she was, she decided she needed to pull out onto the road, entering the right lane perpendicular and then crossing multiple lanes of traffic to get into the left turn lane. (Id. at 156:4-9). She described her pace crossing the lanes as "creeping" and "crawling." (Id. at 163:12-20).
As Plaintiff was proceeding forward, going with the flow of traffic after the light had turned green, Ms. Green's car suddenly entered the lane, and the two cars collided. (Doc 87 at 31:17-32:12). Plaintiff's vehicle sustained damage to the front passenger side, and the frame of the vehicle became crooked, rendering it undriveable. (Id. at 32:24-25). No airbags deployed in either car. (Doc. 89 at 118:20-24). After the collision, both vehicles moved to the Burger King parking lot, on the left side across the road. (Doc. 87 at 35:5-7). Plaintiff called the police. (Id. at 35:22). Both Plaintiff and Ms. Green spoke with the officer, and a report was made. (Id. at 36:3-4).
II. Post-Accident
In the immediate aftermath of the collision, Plaintiff was in shock. (Id. at 35:2). While Plaintiff was not immediately in pain, he started noticing a sore feeling in his back the next day. (Id. at 36:8, 12-14). Plaintiff described the pain as occurring on the right side of his back, under his right shoulder blade, stemming up to his neck and down to his mid back. (Id. at 36:23-37:3). Plaintiff did not go to the doctor the next day in hopes that he could "tough it out." (Id. at 37:8-20). Before the accident, Plaintiff had never seen a chiropractor or had medical treatment related to neck or back problems. (Id. at 40:11-20). Plaintiff has not been involved in any vehicle crashes before or after January 12, 2018, either as a driver or passenger. (Id. at 57:20-58:4).
Over the next ten to twelve days, Plaintiff's pain gradually started getting worse, and the more he did physical activities or tried to move about, he noticed that the pain worsened. (Id. at 38:16-20). Around this time, along with his wife telling him to finally go to the doctor, his back locked up as he was making dog food. (Id. at 38:21-39:1). He was in bed for almost two days as a result of this and decided it was time to go see someone. (Id. at 38:22-39:3).
Plaintiff's sister-in-law referred him to Dr. Sean Woodward. (Id. at 39:5-8). Plaintiff sought medical treatment with Dr. Woodward for complaints of severe back pain. (Id. at 39:19-24). Following Plaintiff's first visit with Dr. Woodward, at which there was not much treatment, Dr. Woodward decided to order some imaging. (Id. at 40:25-41:2). At the direction of Dr. Woodward, Plaintiff had x-rays and MRIs of his neck and mid back area. (Id. at 41:11-15). Plaintiff began to regularly see Dr. Woodward, and in early 2018, he received (i) ice treatments with a TENS machine that would loosen up the muscles around his back area; (ii) manual therapy from one of the therapists, similar to a back massage; and (iii) some kind of strengthening exercise and an adjustment. (Id. at 42:17-43:3). The treatment and visits in these early stages with Dr. Woodward were temporarily helpful, providing two to three days of relief. (Id. at 43:14-21; see also Doc. 86-9, Joint Trial Ex. 9).
During Plaintiff's treatments with Dr. Woodward, he was referred to Dr. Christopher Koebbe, a surgeon from whom Dr. Woodward wanted to get an opinion. (Id. at 47:5-12). On March 30, 2018, Plaintiff presented to Dr. Koebbe one time, (id. at 48:6-9), at which Plaintiff indicated the areas of his body that were in pain, including from the top of his shoulder down to the right shoulder blade, in between the shoulder blade, and the spine on the right side. (Id. at 47:18-22). The purpose of seeing Dr. Koebbe was to get other opinions for additional treatments that might benefit Plaintiff. (Id. at 47:23-48:2).
After being evaluated by Dr. Koebbe, Plaintiff continued to treat with Dr. Woodward. In July 2018, Dr. Woodward recommended manipulation under anesthesia, which Plaintiff decided to try. (Id. at 48:20-49:4). This was a two-day procedure performed on consecutive days. (Id. at 49:5-8). The procedure was performed at Dunedin Surgical Center, with Dr. Woodward and Dr. David Wolstein. (Id. at 50:1-15). The manipulation under anesthesia provided Plaintiff relief, making him feel a lot more at ease and allowing him to stand up straighter. (Id. at 51:19-24). Plaintiff still had some pain with physical activity but not as bad as before he had the procedure done. (Id. at 51:24-52:2). The manipulation under anesthesia provided Plaintiff relief for two to three months. (Id. at 52:7-9).
During Plaintiff's treatments with Dr. Woodward, he was also referred to Dr. Stephen Watson for an evaluation in May 2018. (Id. at 52:18-20). Plaintiff was seen by Dr. Watson a couple of times. (Id. at 52:22-25). Dr. Watson referred Plaintiff for further imaging, and he then discussed the results during his last visit with Plaintiff. (Id. at 54:9-55:4). Ultimately, Dr. Watson opined that Plaintiff sustained permanent injuries to his thoracic spine at disc levels C2-3, C4-5, T2-3, T3-4, T4-5, T5-6, T7-8, T8-9, and T10-11. (Doc 88 at 117:3-118:11). Dr. Watson also opined that Plaintiff is a candidate for an annuloplasty/discectomy and neural decompression at T2-3, T3-4, T4-5, T7-8, T8-9, and T10-11. (Id. at 123:10-14). Dr. Watson had reservations, however, about performing the procedure unless Plaintiff lost weight: "I would request that the patient attempt to lose 20 to 25 pounds prior to the procedure if possible to hopefully make the technical aspects of the procedure go easier as well as potentially make the procedure safer." (Doc. 86-11, Joint Trial Ex. 11 at ISC-0046; see also Doc. 88 at 107:3-12 (Dr. Watson testifying about the need for Plaintiff losing weight for the procedure)).
On January 9, 2020 (about 19 months after he had first seen Dr. Watson), Plaintiff went to see Dr. Pedro Morales after suffering from food poisoning. (See Doc. 86-15, Joint Trial Ex. 15 at PM-0016-0023). In his notes, Dr. Morales noted that Plaintiff weighed about 270 lbs. (Id. at PM-0009). Dr. Morales diagnosed Plaintiff with "morbid (severe) obesity due to excess calories." (Id. at PM-0023). He advised diet and exercise. (Id.) A year later on January 11, 2021, Plaintiff remained about the same weight. (See Doc. 86-11, Joint Trial Ex. 11 at ISC-0053-0054). Dr. Watson on that date noted that Plaintiff, almost three years after accident, weighed 272 pounds. (Id. at ISC-0054).
Plaintiff was treated at MRI Associates of St. Pete for diagnostic testing on at least three separate occasions. (Doc 87 at 56:17-23). Plaintiff had cervical MRIs on February 13, 2018 and January 27, 2021, which were reviewed by Dr. Darren Buono. (Doc 88 at 26:8-12). Dr. Buono found normal levels at C6-7, C7-T1, and C2-3. (Id. at 30:23-32:13). Dr. Buono found a C3-C4 disc herniation abutting the central canal, resulting in mild central canal stenosis, (id. at 33:5-7); C4-C5 central protrusion type disc herniation with an annular tear that results in mild central canal stenosis, (id. at 36:13-37:1); and C5-C6 disc herniation with an annular tear impinging that thecal sac, with mild central canal stenosis, (id. at 37:13-21). Dr. Buono did not see any significant, degenerative changes of the cervical spine. (Id. at 40:19-20). Dr. Buono opined that it is more likely than not these findings are traumatic based on the way they look, the fact that he saw no other degenerative changes, and the fact that he saw no degenerative changes when compared to the original 2018 MRI. (Id. at 41:2-5). Dr. Buono testified that it is more likely than not going to be traumatic disc herniation rather than degenerative. (Id. at 41:15-17). Dr. Buono further opined that the herniations that exist in the cervical and thoracic spine are permanent. (Id. at 45:11-16).
Plaintiff also had MRIs of his thoracic spine on March 29, 2018 and January 27, 2021, which Dr. Buono reviewed. (Id. at 46:5-11). Dr. Buono found a normal disc at T1-T2; disc herniation, with annular tear, impinging on the spinal cord at T2-T3; and T3-T4 central disc herniation, with annular tear, impinging the cord, with mild central canal stenosis. (Id. at 49:17-50:22). He also found T4-T5 right lateralized disc herniation, with annular tear, impinging the cord; T5-T6 disc herniation, with annular tear, touching the cord; T6-T7 disc herniation; T7-T8 disc herniation, causing mild stenosis; T8-T9 central left paracentral herniation, with annular tear, pushing on the sac, flattening the cord; T9-T10 disc herniation; and T10-T11 disc herniation. (Id. at 51:14-53:4; see also Doc. 86-13, Joint Trial Ex. 13).
Finally, one of the things that Plaintiff used to able to do but testified that he stopped doing after the accident was weightlifting. (Doc. 87 at 61:15-17). Plaintiff was lifting weights four to five times per week before the crash. (Id. at 61:24-62:2). He had been weightlifting since high school, and he was twenty-eight years old at the time of the accident. (Id. at 81:10-13). He would do exercises like squats, in which he would squat 185 pounds, and deadlifts, in which he would deadlift 205 pounds. (Id. at 76:4-78:18). For these exercises, he would usually do three sets of five to ten each. (Id. at 78:24-79:7).
Plaintiff testified in his deposition that he lifted greater weights than those he testified about at trial. In his deposition, Plaintiff testified that he would usually max out on squats at around 250 or 275 pounds. (Doc. 86-22, Joint Trial Ex. 22 at 92:14-16).
III. The Government's Experts
Dr. Jeremy Cummings, a biomechanical engineer, testified on behalf of the Government and opined that the relative velocity at the time of the accident was less than five miles per hour. (Doc. 89 at 103:20-21). Although Dr. Cummings was not working from Plaintiff's actual measurements, he used a computerized test dummy created from Plaintiff's height, weight, sex, and age. (Id. at 110:21-24). He used the peer reviewed Mathematical Dynamic Models program to simulate the crash and calculate the forces at play, and that is the same computer program used by government agencies including the DOT, NTSB, NHTSA, NASA, and FAA. (Id. at 101:10-23). At trial, Dr. Cummings chose to highlight the compression force estimated from the accident, as it was the largest force at play. (Id. at 113:10-14). For instance, at C2-3, he calculated 46.8 pounds of force, where 555 pounds of force would more likely than not be expected to cause injury to someone of Plaintiff's height, weight, sex, and age. (Id. at 112:4-12). This was the smallest compression value, meaning the least likely to cause injury at this particular level, in this case. (Id. at 114:4-7).
As for the thoracic spine, Dr. Cummings looked at the T2-3 level, the highest level at which a bulge or herniation was recorded. (Id. at 116:6-8). From this, he calculated 99.8 pounds of force, where 626.7 pounds of force would be the amount expected to cause injury. (Id. at 6-11). The largest force Dr. Cummings calculated was at the T10-11 level, where he calculated 185.1 pounds of force, in which over 1,049.5 pounds of force would be the expected amount to cause injury. (Id. at 116:20-117:1). Dr. Cummings calculated the likelihood of injury to someone of Plaintiff's height, weight, sex, and age as 0.43 percent at this level. (Id. at 117:4-7).
Dr. Marc Kaye, another of the Government's experts, testified about his review of Plaintiff's records. (Doc. 89 at 38:13-39:3). Regarding the 2018 and 2021 MRIs, Dr. Kaye, similar to Dr. Buono, noted annular fissures, but where he disagreed with Dr. Buono is that annular fissures are a degenerative finding, not a traumatic one, because he opined that they are caused by disc desiccation. (Id. at 44:21-25). He testified that "annular tear" would be a misnomer and not the accepted term, because it would imply a traumatic cause. (Id. at 44:15-20, 78:19-79:1). He noted mild disc bulging at C3-4, C4-5, and C5-6 in the cervical spine. (Id. at 47:4-5). Dr. Kaye testified that when the discs begin to dry out, they start to flatten out, "like a hamburger patty," from mild chronic disc degeneration. (Id. at 46:15-21). At none of those levels did he note any nerve root compression or bulges on the spinal cord. (Id. at 47:16-22). This would have been obvious from the MRIs, Dr. Kaye maintained, because the cerebrospinal fluid shows up bright on an MRI. (Id.). Similarly, in the thoracic spine, he saw desiccation and "minimal bulges" from T2-3 to T9-10. (Id. at 53:11-14). He testified that the bulges in this case were "broad-based, and they're chronic. The disc desiccation doesn't occur overnight or in a month or two or even three months. It takes - if somebody had trauma and the disc started to degenerate, it would take at least a year before you'd see this degree of disc desiccation." (Id. at 55:2-8).
Additionally, not only did Dr. Kaye notice osteophytes in 2018 and 2021, he saw osteophytes at multiple levels in the thoracic spine in an X-ray of Plaintiff from 2012. (Id. at 57:7-22). This is significant, Dr. Kaye testified, because osteophytes are a chronic degenerative finding; osteophytes are bony growths or spurs that develop over time due to spinal irritation. (Id. at 50:23-51:7, 55:7-8). Dr. Kaye testified that causes of early spinal degeneration could include obesity, which causes the spine to wear faster. (Id. at 59:11-14). Other causes of spinal degeneration include weightlifting, and Dr. Kaye testified that he would not do squats of the kind Plaintiff was attempting because "you're going to damage your spine and your neck and joints." (Id. at 61:5-21). When asked if even five years of lifting weights in that fashion could cause spinal degeneration, Dr. Kaye answered in the affirmative. (Id. at 62:15-17).
Also, Dr. Kaye testified that the fact that the 2018 and 2021 MRIs provided similar results is evidence of degeneration, because it would not be expected to see evidence of degeneration in three years; in contrast, with an acute presentation, Dr. Kaye would expect to see changes with the body's healing process. (Id. at 49:1-12). Dr. Kaye did not see evidence of a traumatic herniation, which would include fluid (appearing bright on the MRI) leaking out of the nucleus. (Id. at 75:13-15, 79:10-13, 91:2-12).
Finally, Dr. Neil A. Schechter, an orthopedic surgeon, testified similarly to Dr. Kaye regarding degenerative findings. (Doc. 90 at 14:4-11). Like Dr. Kaye, he found desiccation and mild bulging at C3-4, C4-5, and C5-6, (id. at 16:10-12); he testified that this is a degenerative finding, which takes years to develop, with no edema which would indicate trauma, (id. at 16:3-5); he noted mild disc bulging in the thoracic spine at multiple levels, none of which was impinging on the spinal cord, (id. at 22:17-23:8); and he noted the presence of osteophytes, a degenerative finding, at five or six levels, (id. at 20:12-25). He testified that "people can get acute herniations, [but] usually it's one level maybe two. To have six, seven, eight discs, to be an acute event would be essentially unheard of." (Id. at 19:7-12).
As mentioned in an earlier footnote, the Government also called Dr. Howard Hochman as a witness. (Doc. 89 at 6:1-28:17). Plaintiff timely objected to Dr. Hochman's opinion testimony on causation. (Id. at 14:4-9, 16:2-4). The Court finds that Dr. Hochman's testimony is unnecessary to adjudicate this case. The evidence is sufficient to conclude that Plaintiff has not met his burden on causation. Accordingly, the Court does not discuss Dr. Hochman's testimony in either its findings of facts or conclusions of law. The Court notes that neither party cited testimony from Dr. Hochman in the proposed findings of fact and conclusions of law. (Doc. 91, 92).
CONCLUSIONS OF LAW
At the conclusion of Plaintiff's case-in-chief, the Government made an ore tenus motion for judgment on partial findings under Fed. R. Civ. P. 52(c). (Doc. 88 at 147:8-149:20). Rule 52(c) provides the following:
If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a)."When ruling on a Rule 52(c) motion, 'the court must weigh the evidence and may consider the witnesses' credibility,' treating the motion 'as if it were a final adjudication at the end of trial.' " JDI Holdings, LLC v. Jet Mgmt., Inc., 732 F. Supp. 2d 1205, 1209 (N.D. Fla. 2010) (quoting Caro-Galvan v. Curtis Richardson, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993)). "Thus, the court resolves the disputed issues on the basis of the preponderance of the evidence, without drawing any special inferences in favor of the plaintiff." Id.
A cause of action for negligence under Florida law comprises four elements: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; (3) a causal connection between the breach and the resulting injury; and (4) actual damages. Clay Elec. Co-op. Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). The Court first will address the issues of duty and breach jointly and find that the Government breached its duty to Plaintiff. Then, the Court will consider causation and find that Plaintiff has not met his burden. As a result, the Court must enter judgment for the Government and will not address the issue of damages.
I. Duty and Breach
"It is well-settled that drivers owe a 'duty to use reasonable care on roadways to avoid accidents and injury to [themselves] or others.' " Perez v. United States, No. 8:20-cv-769-SPF, 2022 WL 909763, at *8 (M.D. Fla. Mar. 29, 2022) (quoting Williams v. Davis, 974 So. 2d 1052, 1063 (Fla. 2007)). That "duty exists as a matter of law and is not a factual question for the jury to decide." Fla. Dep't of Corr. v. Abril, 969 So. 2d 201, 204-05 (Fla. 2007) (quoting McCain v. Fla. Power Corp., 593 So. 2d 500, 503 (Fla. 1992)). "Under Florida law, '[a]ny person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner . . . so as not to endanger the life, limb, or property of any person.' " Porras, 2023 WL 2583303, at *23 (quoting Fla. Stat. § 316.1925).
The Court finds Plaintiff's testimony on the issue of breach of duty more credible than Ms. Green's. Ms. Green testified that she was in the left turn lane for ten to fifteen seconds before Plaintiff hit her car. (Doc. 88 at 167:12-15). But that is inconsistent with the other testimony from both her and Plaintiff that all lanes of traffic were full of cars. (Doc. 87 at 30:21; Doc. 88 at 156:4). For Plaintiff to have hit Ms. Green's car while her car was stationary in the left turn lane, he must have been driving into that lane. But Plaintiff testified, as is consistent with the notion that all lanes were full of traffic, that he was waiting in traffic for the light to turn green. (Doc. 88 at 31:19-23). The most likely scenario borne out by the evidence is that Ms. Green pulled into the left turn lane just in front of Plaintiff's car as he was beginning to move with the flow of traffic after the light had turn green. Ultimately, she decided to leave a parking lot by cutting across three lanes of traffic to make an immediate left turn. (Id. at 156:5-9). While the cars in the non-turning lanes may have allowed her to do this, she still had an obligation to make sure that it was safe to proceed into the turn lane. The Court finds by a preponderance of the evidence that she did not do so, and, as a result, breached her duty to operate the vehicle safely. See Porras, 2023 WL 2583303, at *23 (finding that the plaintiff had satisfied his burden on proving breach against the Government because the employee, who acted in the course and scope of her employment, breached the duty of care).
II. Causation
" '[A] finding of breach of duty of care on the part of a defendant . . . does not establish a right to recovery by the plaintiff unless the plaintiff can also show causation and damages.' " Perez, 2022 WL 909763, at *8 (quoting Hendrix v. United States, No. 8:19-cv-1145-SCB-AAS, 2021 WL 1997426, at *6 (M.D. Fla. May 19, 2021)). "In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff's injury." Gooding v. Univ. Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). Put differently, a plaintiff "must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." Id. (quoting Prosser, The Law of Torts § 241 (4th ed. 1971)).
"Expert testimony is necessary in a negligence action to establish causation where the injuries are not readily observable." Perez, 2022 WL 909763, at *8 (citations omitted). "Florida courts have held that a plaintiff's back pain and other soft tissue injuries are not 'readily observable' medical conditions." Rementer v. United States, No. 8:14-cv-642-T-17-MAP, 2017 WL 1095054, at *18 (M.D. Fla. Mar. 21, 2017) (citing Crest Prods. v. Louise, 593 So. 2d 1075, 1077 (Fla. 1st DCA 1992)); see also Mustafa v. United States, No. 21-20633-CIV-LENARD, 2022 WL 18023353, at *11 (S.D. Fla. Sept. 15, 2022) (citations omitted) ("Soft-tissue injuries, such as back, head, neck, hip, and shoulder injuries, are not 'readily observable' medical conditions and, therefore, expert testimony as to the cause of such injuries is required."). "Expert testimony is also required to distinguish between ailments that a plaintiff had before an incident and those she experienced after—and due to—the incident." Mann v. Carnival Corp., 385 F. Supp. 3d 1278, 1285 (S.D. Fla. 2019) (citing Rivera v. Royal Caribbean Cruises Ltd., 711 F. App'x 952, 954-55 (11th Cir. 2017)).
"The testimony of treating physicians presents special evidentiary problems that require great care and circumspection by the trial court." Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1316 (11th Cir. 2011). While much of the testimony offered by treating physicians focuses on their experience in providing care to the patients, "their proffered testimony can go beyond that sphere and purport to provide explanations of scientific and technical information not grounded in their own observations and technical experience." Id. at 1317. "When such a situation presents itself, the trial court must determine whether testimony not grounded in the physician's own experience meets the standard for admissions as expert testimony." Id. In short, "when a treating physician's testimony is based on a hypothesis, not the experience of treating the patient, it crosses the line from lay to expert testimony, and it must comply with the requirements of Rule 702 and the strictures of Daubert." Id. at 1317-18.
"Non-expert (or lay) witnesses may only testify to opinions or inferences 'which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.' " United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (quoting Fed. R. Evid. 701). Put differently, "[w]hile lay witnesses may testify about their own immediate perceptions, testimony that blurs into supposition and extrapolation crosses the line into expertise." Lebron v. Sec. of Fla. Dep't of Child. and Families, 772 F.3d 1352, 1372 (11th Cir. 2014) (citing Williams, 644 F.3d at 1317-18 and Henderson, 409 F.3d at 1300).
"[I]n a bench trial, it has been an acceptable method 'to admit evidence of borderline admissibility and give it the (slight) weight to which it is entitled.' " Nat'l Union Fire Ins. Co. of Pittsburgh PA v. SPX Flow US, LLC, No. 18-cv-80332, 2019 WL 1227987, at *3 (S.D. Fla. Mar. 14, 2019) (quoting SmithKline Beecham Corp. v. Apotex, 247 F. Supp. 2d 1011, 1042 (N.D. Ill. 2003)). "The Court can separate and disregard any [improper or speculative] conclusions . . . from testimony which provides context and evaluates the evidence in light of specialized expertise." GLF Constr. Corp. v. Fedcon Joint Venture, No. 8:17-cv-1932-T-36AAS, 2019 WL 7423552, at *4 (M.D. Fla. Oct. 15, 2019). "At trial, the Court as fact finder is free to later decide to disregard testimony in whole or in part and/or to decide how much weight to give it." Id. at *3.
As an initial matter, the Government requests in its proposed findings of fact and conclusions of law that the Court exclude the opinions of Drs. Woodward and Watson on the issue of causation. (Doc. 92 at 8). But the Government never made such an objection at trial. (Cf. Doc. 89 at 14:4-9 (Plaintiff timely objected to Dr. Hochman's opinion testimony)). Even so, the Court need not decide whether to exclude the treating physicians' testimony as improper causation opinion. After all, the Court may decide how much weight to give such testimony. GLF Constr. Corp., 2019 WL 7423552, at *4. Therefore, even if the Court considers all of Plaintiff's witnesses' testimony, for reasons that will be explained, the Court still finds that Plaintiff has not satisfied his burden on causation.
As another initial point, neither party moved for the admission of their respective exhibits. The parties only moved to introduce the exhibits on the joint exhibit list. (Doc. 87 at 23:10-19). Accordingly, the Court only considers those exhibits along with the testimony presented as the evidence in this case.
The Court finds the testimony of Plaintiff's three witness doctors to be of limited value in proving causation. To begin, Dr. Buono did not offer an opinion that the car accident was the cause of Plaintiff's injuries. His testimony limited his opinion to a conclusion that a reading of Plaintiff's scans revealed post-traumatic findings. (See, e.g., Doc. 88 at 41:2-5, 44:17-24). But he also admitted that disc bulges, annular fissures, and disc desiccation could be evidence of spinal degeneration. (Id. at 65:17-20, 66:20-67:12). Moreover, Dr. Buono did not inquire into what could have caused Plaintiff's injuries. In fact, Dr. Buono knew nothing about Plaintiff's physical activity. (Id. at 22-24, 69:8-13). Whether the post-traumatic injuries resulted from a car accident, weightlifting, or any other potential cause, Dr. Buono made no determination about the cause of the findings. See Carmody v. State Farm Mut. Auto. Ins. Co., No. 6:14-cv-830-Orl-37KRS, 2015 WL 5542534, at *3 (M.D. Fla. Sept. 18, 2015) ("Courts frequently exclude causation opinion testimony from expert witnesses who . . . base their opinions on a plaintiff's account of the facts without consideration of other possible causes of an injury."). While it is not Plaintiff's burden to disprove other causes of his injuries, it is his burden to demonstrate that the accident was the cause by a preponderance of the evidence. See Gooding, 445 So. 2d at 1018. At best, Dr. Kaye's opinion provides circumstantial evidence of causation, but the Court finds Dr. Buono's opinions ultimately unpersuasive as to Plaintiff's burden of proving that the accident caused his injuries or even that it caused an aggravation of any latent defects in his spine.
Unlike Dr. Buono, both Drs. Woodward and Watson opined that the cause of Plaintiff's injuries was the accident. But like with Dr. Buono's opinion, the Court gives little weight to their opinions and finds them unpersuasive. First, Dr. Woodward's opinion about the cause of the injuries came from his initial evaluation of Plaintiff. (Doc. 86-9, Joint Ex. 9 at TVMG-0022-0025). Dr. Woodward testified that Plaintiff came to see him following a motor vehicle accident. (Doc. 87 at 120:2-3). He testified that Plaintiff never made him aware of any other collisions or falls. (Id. at 120:10-12). A treatment note from Plaintiff's first visit with Dr. Woodward, referred to by Dr. Woodward in his testimony as a "SOAP" note, (id. at 122:3-6), states that Plaintiff reported to the "office today due to the result of a[ ] Motor Vehicle Accident (MVA) which occurred on Jan[.] 12, 2018." (Doc. 86-9, Joint Trial Ex. 9 at TVMG-0022). The SOAP note also describes that Plaintiff was in the driver's seat with the "[p]oint of impact . . . at [the] right side." (Id.). Near the end of the note, under an initial evaluation discussion heading, Dr. Woodward wrote that Plaintiff "sustained significant injury causally related to this accident, which occurred on Jan[.] 12, 2018. His subjective complaints correlate well with both the mode of injury and our objective findings." (Id. at TVMG-0025). This was made before any diagnostic studies were received. (See, e.g., Doc. 87 at 134:22-135:3, 156:4-13). Dr. Woodward later testified that it is important to know a patient's history because he "want[s] to know what the injuries are caused by, if they've had pre-existing stuff before you're treating them." (Doc. 87 at 129:15-21). After reviewing imaging, he testified that the thoracic MRI of March 29, 2018 was consistent with Plaintiff's symptoms because it showed an acute injury through "tear, edema and inflammation." (Id. at 139:6-140:4). But Dr. Woodward summarized his causation determination as being based "on a one sentence description of the crash," subjective complaints, objective findings, that Plaintiff stated he was in a crash, and "because he never came to [Dr. Woodward] before." (Id. at 157:9-21).
While he did a physical examination of Plaintiff, made objective findings, and considered Plaintiff's subjective complaints, Dr. Woodward's opinion on causation primarily rests on Plaintiff's claim that he was involved in a crash. (See id. at 157:9-21). Put differently, Dr. Woodward did not inquire into or rule out other possible causes of Plaintiff's injuries. Carmody, at 2015 WL 5542534, at *3. Compounding this issue is that Dr. Woodward said that his prescribed course of treatment would not have been different had Plaintiff fallen down some stairs. (Doc. 87 at 158:19-159:1). Nor did he have the benefit of any medical imaging studies at the time of his opinion that the crash caused the injuries. (See, e.g., Doc. 87 at 134:22-135:3, 156:4-13). These facts hurt the reliability of Dr. Woodward's findings as to determining the cause of Plaintiff's injuries. The result is that Dr. Woodward reached his opinion almost entirely on Plaintiff's allegations and the temporal proximity to the accident, but those conclusions are not the type of expert opinions that can properly support a causation determination. See Cooper v. Marten Transp., Ltd., 539 F. App'x 963, 967 (11th Cir. 2013) (affirming district court's decision to exclude treating doctor's opinions, in part, because the doctors "simply conducted physical examinations and reviewed the [patients'] medical histories to arrive at the conclusion that the 2010 collision caused the . . . injuries in this case").
Dr. Watson's causation opinions are even less reliable, and, as a result, the Court gives them no weight. Dr. Watson testified that Plaintiff's injuries were caused by the accident, "especially the extruded disc." (Doc. 88 at 120:15-22). On redirect, Dr. Watson testified that even a small impact would be enough to cause some latent defect in someone's back to start causing pain. (Id. at 143:3-9). But when asked on direct examination about whether he tried to eliminate other sources of injuries, Dr. Watson testified that "[t]here's no way for me to know anything. I mean, I suppose [Plaintiff] could have worked in a factory and done heavy lifting and he never said anything, but I don't have that information." (Id. at 121:6-15). On cross, Dr. Watson admitted that his prescribed treatment plan for Plaintiff would not have changed if Plaintiff's injuries were not traumatic. (Id. at 132:8-14). Dr. Watson explained that "[t]he only thing I know is that no pain before, pain after, something has occurred." (Id. at 132:14-15). This is classic post hoc ergo propter hoc reasoning that cannot be the basis of reliable expert opinion on causation. Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1343 (11th Cir. 2010) ("This is classic 'post hoc ergo propter hoc' fallacy which 'assumes causation from temporal sequence. It literally means "after that, because of this" . . . . It is called a fallacy because it makes an assumption based on the false inference that a temporal relationship proves a causal relationship.' ") (quoting McClain v. Metabolife Int'l, Inc., 401 F.3d 1233, 1243 (11th Cir. 2005)).
In fact, Dr. Watson admitted that it is unimportant to him to find the specific cause of the injuries because he cannot say for certain that the injuries occurred at the time of the accident. (Doc. 88 at 17-24, 134:5-7). The cause of the injury "doesn't really matter" to Dr. Watson because he is "looking for a remedy for [the] pain." (Id. at 137:6-10). As evidence of this, Dr. Watson did not know details about the accident. (Id. at 134:9-18 (answering, "Any and all of the above," to the question, "So you don't know whether plaintiff got hit by a semi at 100 miles an hour or whether it was just a one mile an hour—")). Dr. Watson's diminished interest in the cause of Plaintiff's injuries renders his ultimate conclusion as to the cause less reliable. See Williams, 644 F.3d at 1318 (finding that opinion testimony as to the identification of a foreign substance (i.e., the cause of the injury) was not permissible because the treating physicians were "concerned with the presence of foreign material and with its effect on [the patient's] physical condition" rather than its identity). Also, Dr. Watson testified that he did not know what kind of weightlifting Plaintiff was doing. (Doc. 88 at 136:2-15). He certainly did not attempt to rule out any other causes. Carmody, at 2015 WL 5542534, at *3. Instead, Dr. Watson relied on the fact that it would be "unlikely that this man [Plaintiff] would be asymptomatic prior to the accident . . . and have an annular fissure." (Doc. 141:19-22). Again, this reasoning is the classic post hoc fallacy, relying solely on the temporal relationship between the timing of the accident and Plaintiff's claim of symptoms. Kilpatrick, 613 F.3d at 1343. It does not persuade the Court on the issue of causation. Id.
In sum, Plaintiff is required to show causation through expert testimony. Perez, 2022 WL 909763, at *8. The testimony of Plaintiff's three treating physicians (of whom, only Dr. Watson is designated as an expert) does not move the needle on causation. Only Drs. Woodward and Watson actually opined on causation, and those two doctors based their opinion testimony almost exclusively on Plaintiff's allegations and the temporal proximity to the accident. The Court finds those bases for the opinions to be unreliable. Kilpatrick, 613 F.3d at 1343; Carmody, at 2015 WL 5542534, at *3. As a result, the Court is left only with the conclusion that the accident may have caused Plaintiff's injuries. But "[a] mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." Gooding, 445 So. 2d at 1018 (quoting Prosser, The Law of Torts § 241 (4th ed. 1971)). Therefore, even considering only the evidence submitted by Plaintiff, the Court finds that he has not provided persuasive and reliable expert testimony necessary to meet his burden of showing the accident was a more likely than not cause of any of his injuries. The Court could find for the Government on that basis alone, and, as such, the Government's ore tenus Rule 52(c) motion should be granted.
Yet when the Court considers other evidence, including the testimony of the Government's experts, Plaintiff's failure to demonstrate causation by a preponderance becomes even more pronounced. In particular, the Court found the testimony of Dr. Cummings highly persuasive and reliable. Dr. Cummings testified that the relative velocity at the time of the accident was less than five miles per hour. (Doc. 89 at 103:20-21). This testimony is consistent with the black box from the VA vehicle. (Id. at 118:20-21). The black box is a colloquial term for the airbag module, which starts recording crash data at a crash velocity of five miles per hour (the velocity at which the airbags deploy). (Id. at 118:12-24). The airbags did not deploy, and the black box did not record crash data. (Id. at 118:20-24). Dr. Cummings's opinion on the relative velocity is also consistent with the Court's findings of how the accident happened; that is, Ms. Green attempted to creep into the turn lane as Plaintiff began driving forward after the light had turned green. (Doc. 87 at 31:19-23; Doc. 88 at 163:12-20)
Moreover, Dr. Cummings evaluated the likelihood of injury from the accident based on the forces at play. For example, at Plaintiff's C2-3, he calculated 46.8 pounds of force, where 555 pounds of force would more likely than not be expected to injure someone of Plaintiff's height, weight, sex, and age. (Doc. 89 at 112:4-12). At the T2-3 level, the highest level at which a bulge or herniation was recorded, (id. at 116:3-8), Dr. Cummings calculated 99.8 pounds of force, where 626.7 pounds of force would be the amount expected to cause injury, (id. 89 at 6-11). The largest force Dr. Cummings calculated was at the T10-11 level, where he calculated 185.1 pounds of force, but for which over 1,049.5 pounds of force would be expected to cause injury. (Id. at 116:20-117:1). At that level, Dr. Cummings calculated the likelihood of injury to someone of Plaintiff's height, weight, sex, and age as 0.43 percent. (Id. at 117:4-7). In sum, the Court finds Dr. Cummings both credible and reliable and therefore affords his testimony great weight. While his testimony certainly does not disprove that the accident caused Plaintiff's injuries, Dr. Cummings's opinions provide evidence that the accident was not a more likely than not cause of Plaintiff's injuries.
It is also important to compare the testimony of Plaintiff's doctors with that of Drs. Kaye and Schechter. Unlike Plaintiff's doctors who saw no degenerative changes in Plaintiff's neck and spine, Dr. Kaye testified that Plaintiff's MRIs showed degenerative changes. (Doc. 89 at 75:13-15; 79:10-13; 91:2-12). Dr. Schechter also found degenerative rather than traumatic changes in Plaintiff's spine. (See, e.g., Doc. 90 at 14:4-11, 19:7-12). The result is that there are competent medical doctors on both sides reading the same MRIs and coming to different conclusions. The Court cannot independently read the MRIs and determine, for example, whether Plaintiff in fact does have osteophytes, a sign of degenerative changes. But the Court can find (and does find) that the testimony of Drs. Kaye and Schechter was more credible. GLF Constr. Corp., 2019 WL 7423552, at *3. Ultimately, that means that the Court finds that the testimony of Drs. Buono, Woodward, and Watson do not do enough to convince the Court that Plaintiff's complaints were probably caused in whole or in part by the accident. In short, the conflicting testimony between the battling experts leaves the Court unpersuaded that the medical findings in Plaintiff's neck and spine were more likely than not caused by the accident.
Finally, the Court finds Plaintiff's causation arguments undermined by his weightlifting and obesity. Plaintiff was lifting weights four to five days a week before the crash. (Doc. 87 at 61:24-62:2). His weightlifting began in high school and continued until twenty-eight. (Doc. 87 at 81:12-13). He would squat at least 185 pounds and deadlift around 205 pounds. (Doc. 87 at 76:4-78:18). Dr. Kaye testified that doing squats at that weight could cause damage to the back and neck. (Doc. 89 at 61:5-21). As mentioned earlier, none of Plaintiff's doctor witnesses tried to discount (or even considered) weightlifting as a cause of Plaintiff's injuries. As a result, the Court is left concluding that weightlifting, either from trauma or degenerative changes, could be the cause of Plaintiff's injuries. Not that weightlifting did cause his injuries. Again, the issue is that Plaintiff has not met his burden of proving the accident was a more likely than not cause of his injuries. Gooding, 445 So. 2d at 1018. The same is true with obesity. Dr. Kaye testified that causes of early spinal degeneration could be obesity. (Doc. 89 at 59:11-14). Even Dr. Watson noted that obesity would play a factor in Plaintiff's potential, further treatments. (Doc. 86-11, Joint Ex. 11 at ISC-0044-0048; see also Doc. 88 at 107:3-12 (testifying about the necessity for Plaintiff to lose weight for the recommended procedure)). Years after the accident, Plaintiff continued to be diagnosed with severe obesity. (Doc. 86-15, Joint Ex. 15 at PM-0021). It is Plaintiff's burden to demonstrate that the accident is a more likely than not cause of his injuries. Considering weightlifting and obesity as potential causes, alongside all other evidence, the Court does not find that Plaintiff has met that burden.
In making these findings, the Court does not discount Plaintiff's testimony about his pain. When looking at the testimony of all the doctors, the common thread is that there are changes to Plaintiff's neck and spine, whether traumatic or degenerative. And the Court believes Plaintiff when he testifies about how those changes impact Plaintiff's life. But that is not enough for Plaintiff to succeed in this case. He needs to demonstrate that the Government's actions in this case (i.e., the accident) caused his reported injuries. There is a chance that the accident caused Plaintiff's injuries. There may even be a decent chance that the accident was a cause. But, considering both the totality of the evidence presented and the fact that causation must be proven by expert testimony, the Court finds that Plaintiff has not met his burden of proving that the accident was probably the cause of his injuries. Therefore, the Court must grant the Government's ore tenus Rule 52(c) motion and enter judgment in favor of the Government.
Because the Court finds that Plaintiff has not established causation, the Court does not consider damages.
CONCLUSION
Accordingly, the Court ORDERS that:
1. The Government's ore tenus motion for judgment on partial findings under Fed. R. Civ. P. 52(c) is GRANTED. Plaintiff failed to prove that the motor vehicle accident probably caused his injuries.
2. The Clerk of Court is directed to enter judgment in favor of the Government, to terminate any pending motions and deadlines, and to close the case.
DONE and ORDERED in Tampa, Florida on June 26, 2023.