Opinion
Civil Action No. 99-1825, Section: E/1.
May 11, 2000.
FINDINGS AND CONCLUSIONS
The following findings of fact and conclusions of law are hereby entered on the basis of the record, the evidence adduced at the non-jury trial, including the testimony and exhibits, and the law. This Court has subject matter jurisdiction over this action under the Public Vessels Act, 46 U.S.C. § 781, and the Suits in Admiralty Act, 46 U.S.C. § 781.
The United States has stipulated liability in this action and in addition, it has stipulated that all documented injuries were caused by the accident in question and all medical records introduced into evidence are authenticated and admissible and are submitted in lieu of the testimony of treating physicians and other health care providers.
On June 21, 1997, plaintiffs Joseph Madona and his wife, Jacqueline Madona were passengers in a United States Navy mini armored troop carrier vessel being operated by their son Steven V. Madona, United States Naval Reserve, in his capacity as a U.S. Navy PVR boat captain and patrol officer under instruction. They were present on the vessel as part of a Family Day activity at the Stennis picnic area. As the boat was navigating the river, it failed to negotiate a turn and allided with a tree on the river bank. Joseph Madona, who was standing behind a steel "radar box" on the vessel, testified that the vessel did not slow down until it struck the tree head on and he and his wife were propelled violently forward. His face and knee impacted the steel box and he was thrown to the floor of the boat. His face was severely cut and his glasses were smashed. His injuries were very painful. He was also very concerned for his wife because he noticed that her leg had been jammed under the vessel's equipment.
He was treated by a Navy SEAL from another vessel. A pressure bandage was placed on his face and an air bandage was placed on his leg. He was removed to an ambulance and brought to Slidell Memorial Hospital, where the Emergency Room staff cleaned his wounds, sutured the face and knee lacerations, and took x-rays. He had trouble breathing because of trauma to his larynx.
X-rays revealed that he suffered a fracture to the right orbital floor (bone beneath the eye) and nasal bone. Other injuries he received in the ahision included a jagged laceration and complex skin wound to the nose and face with resulting scarring, a left knee laceration which scarred, a partial tear of the medial collateral ligament of the left knee and joint effusion, trauma to his larynx, and abrasions to his right hand and other parts of his body.
Plastic surgeon Dr. Diffenbach recommends that Mr. Madona undergo revision surgery involving re-fracturing and re-positioning the base of the nose to the right nostril rim and below the right eyebrow. He did not think the facial scars or left knee scars would be significantly improved by surgery. Mr. Madona said that the facial scars do not greatly concern him because he wears glasses, but he has ruled out contact lenses because of the scars.
Mr. Madona also sustained a partial tear of the medial collateral ligament and joint effusion. Orthopedic surgeon Dr. Terry Habig does not think that the condition will be resolved by surgery.
Mr. Madona spent approximately 8 hours in the Emergency Room and was anxious to leave to visit his wife, who had sustained much more severe injuries. He was unable to visit her for a week because of his injuries. He was required to use crutches for two weeks and could not drive for three weeks. Upon the advice of the E.R. physician, he visited his ophthalmologist to rule out a retina tear. His knee laceration healed within one month, but left a permanent scar. His eye and nose lacerations healed within two months, but were painful for about four months. His doctor indicated that he may undergo the re-fracture and re-position surgery of the facial bones after his wife has reached maximum medical recovery, but he indicated that he has no plans to do so. This surgery is estimated to cost $6,000.00.
While Dr. Habig recommended arthroscopic surgery to his knee for the torn ligament, he declines this surgery because of his wife's experience with it. He suffers some pain and stiffness with his knee, but it does not prevent him from working or playing golf. He does not climb ladders or mow the lawn any longer and occasionally wears an ace bandage on the knee.
Mr. Madona is a middle-aged man who has been married thirty-seven years to his wife. He has children and grandchildren. He is retired from the insurance business and works seasonally as a tax preparer. Prior to the accident which injured both himself and his wife, they enjoyed traveling, various social activities and attending L.S.U. football games. Since the accident, they have had to relinquish their L.S.U. season tickets because Mrs. Madona cannot walk for any distance. They have curtailed many of their social activities because she is frequently in pain. They have discontinued taking any vacation trips because of her limited mobility. Her frequent pain has changed her personality and she is not as pleasant as she used to be. Physically, Mr. Madona continues to suffer with stiffness and mild pain in his knee and breathing difficulty and sinus drip because of the broken orbital rim.
Plaintiff Jacqueline Madona has been employed as a secretary to a contractor/realtor for 21 years. She has three sons and two grandchildren, ages one and two. She is able to continue working because her employer has accommodated her impaired mobility. She works in a small office and no longer does outside errands, shows property, or meets tenants.
On June 21, 1997, the day of the accident, Mrs. Madona was riding in the Navy vessel with her husband. She braced herself for the collision, but the impact was severe and she was thrown to the floor. She could not see her legs immediately after the collision and was told not to move because it was apparent that she had broken her leg. She was grateful to be alive, but very worried about her husband, whom she could see was bleeding. She felt pain in her legs, shoulder and arm.
Two Navy corpsmen applied a foam splint to her arm and leg to immobilize them. Her arm was in severe pain when it was moved. She was placed on a stretcher and transported to the Emergency Room at Slidell Memorial Hospital.
She was brought to the x-ray department, where x-rays were taken of her arm, leg and ankle. The x-ray of her leg was torturous because it had to hang freely to be x-rayed and this caused excruciating pain. The E.R. personnel sutured her lacerations, immobilized her arm, and told her that she needed surgery. She opted to be transferred to Methodist Hospital in New Orleans so that she would be closer to her family. She was induced to a "twilight sleep" in order to be transported.
Her documented injuries from this accident included: (1) a spiral fracture to the humerus in the left arm, with medial angulation of the distal component, i.e., joint separation, and bursitis aggravated by the trauma, which required three separate casts and resulted in a 5% permanent disability; (2) a torn rotator cuff to the left shoulder, distal supraspinatus tendon tear with fluid and fluid leaking in the subacromial bursa; (3) trimalleolar fracture of the right ankle with dislocated talus requiring a closed reduction and then open reduction internal fixation surgery with compression plates, screws and wire, several casts, and resulting in chronic pain and swelling, scarring, and 10% functional permanent disability; (4) laceration and blunt trauma to the left knee causing a complex tear in the posterior horn of the medial meniscus and a partial tear of the medial collateral ligament, requiring arthroscopic surgery, including laser surgery and debridement of posterior horn of the medial meniscus, chrondomalacia with several aspirations and injections, and recommendation of total knee replacement in the future; and (5) abrasion to the top of the foot, abrasions, and small lacerations and contusions throughout her entire body.
She was initially hospitalized for fourteen days. Her left arm fracture was set and placed in a cast for several months. It was quite painful and remained immobilized for three months. She still has limited range of motion and diminished strength in the left arm. She has received extensive physical therapy to the arm and has a 5% permanent disability to it.
Mrs. Madona sustained a malleolar fracture of the right ankle with dislocated talus. The fracture was reduced and splinted in the E.R. After she was transferred and admitted to Methodist Hospital, her orthopedist Dr. Allan Cracco performed an open reduction internal fixation surgery using a compression plate, screws and wire. She underwent extensive physical therapy. Her right ankle swells and has a scar. Dr. Cracco assigns her a 10% functional permanent disability, recommending hardware removal surgery in the future.
Mrs. Madona suffered a laceration to the left kneecap and blunt trauma. Her knee continued to swell and an MRI revealed a complex tear of the posterior horn of the medical meniscus and a partial tear of the medial collateral ligament. She underwent arthroscopic surgery with laser chrondoplasty of the medial femoral condyle and debridement of the posterior horn of the medial meniscus. She also has chrondomalacia.
Fluid on the knee was aspirated on eight occasions and she received numerous knee injections of anti-inflammatories and pain medication to her knee joint. She continues to suffer stiffness, pain, effusion and swelling. She uses a walking cane. She has undergone numerous physical therapy sessions. Dr. McLachlan, an orthopedist, states that her only option is to undergo total knee replacement. Mrs. Madona testified that when she is mentally ready, she will undergo this surgery because her knee condition causes her significant disability and pain. She did not indicate that she intended to undergo hardware removal surgery from her ankle. The cost of the knee replacement operation, as estimated by the United States' medical expert, is $25,000.00, including $5,000 in surgeon's fees and $1,500 in anesthesia fees. The cost of the surgery for the hardware removal from her ankle the cost is $7,000, including less than $1,000 in surgeon's fees and less than $1,000 in anesthesia fees.
After the accident Mrs. Madona was totally confined to a wheelchair for six weeks and slept in a lounge chair because of the injuries to her limbs. Her 80-year old aunt stayed with her and took care of her during this period. She still has occasional pain in her ankle. Although the scars do not concern her, the ankle's deformity, the hardware protruding from either side, does bother her. She does not have plans to undergo surgery to remove the hardware.
The casting of her arm was exquisitely painful, but home physical therapy helped her arm and shoulder. She tends to guard against pain. Unless they worsened significantly, she has no plans to undergo surgery on her arm or shoulder.
Her knee continues to cause her severe problems. While the arthoscopic surgery helped temporarily, the knee has continued to get worse. It has been drained and injected several times.
As to how her injuries from the accident has affected her life, Mrs. Madona echoed the sentiments of her husband. Because of her disability and pain, she is unable to enjoy or participate in many of her former activities. She cannot walk one block without stopping. While she previously was active, she leads a sedentary life. Walking, particularly on concrete, is very painful. She cannot take her grandchildren on outings. She finds it exhausting to cook.
Emotionally, she is depressed at the changes in her life. She and her husband, however, are still devoted to one another. While these were supposed to be her golden years, she testified that the quality of these years have been diminished. She has not had one pain free day in 2 years and 8 months, i.e., from the date of the accident to the date of the trial.
The parties have agreed to the following quantum stipulations: (1) Joseph Madona's past medical bills related to the injuries suffered in the incident total $4,231.00; (2) Jacqueline Madona's past medical bills related to the injuries suffered in the accident total $53,517.00; and (3) Jacqueline Madona's past wage loss related to the injuries suffered in the incident total $9,062.00. Mr. Madona suffered no wage loss.
In addition to the above special damages, which the Court hereby awards the plaintiff, the Court finds that Mrs. Madona is entitled to future medical expenses in the amount of $25,000.00, which is cost of knee replacement surgery. Mrs. Madona stated that when she was mentally ready, she planned to undergo this surgery. The Court specifically declines to award Mrs. Madona any amount for removal of the hardware and Mr. Madona any amount for future medical expenses. While Mrs. Madona indicated that she intended to have knee replacement surgery, she testified that she has no plans to undergo any other type of surgery. Mr. Madona likewise testified that he had no plans to undergo scar revision or surgery to re-fracture and re-set the orbital rim, as he was basically not suffering any debilitating side effects or pain from his injuries.
Both Mr. and Mrs. Madona are entitled to general damages for physical pain and suffering, mental anguish and anxiety, inconvenience, and the effect of their injuries on the normal pursuits and pleasures of life. They both sustained serious injuries in the accident which caused them both mental and physical pain and suffering. They sustained lacerations and bruises throughout their bodies and both suffered broken bone and torn ligaments. It is apparent that the impact was quite a jolt.
Mr. Madona did not undergo surgery, but he suffered a broken nose and eye socket and torn ligaments in his knee. He sustained lacerations to his face which have scarred and trauma to his larynx, which temporarily caused pain and hoarseness. He was on crutches for a period of time after the accident and his facial lacerations required extensive suturing. He continues to experience pain and stiffness in his knee, but fortunately these symptoms have not forced him to curtail most of his leisure activities, including golf.
Considering the totality of the circumstances, particularly the fact that he suffered a number of injuries, continues to experience problems with his knee, and has facial scarring and deformity due to the broken nose and orbital rim, the Court finds that Mr. Madona is entitled to $55,000.00 for past and future physical pain and suffering, mental anguish and anxiety, and the effects of his injuries on the normal pursuits and pleasures of life. This figure is supported by the following decisions: Bacle v. Wade, 607 So.2d 927 (La.App. 2d Cir. 1992) (Older man suffered ankle fracture, meniscal tear in knee, and back pain when trailer rolled over his right calf, throwing him to the ground, awarded $50,000.00); Alexander v. Rivers, 560 So.2d 999 (La.App. 4th Cir. 1990) (Man involved in automobile collision who suffered a fractured jaw, loss of teeth, carpal tunnel syndrome, and knee injuries awarded $90,000.00);Nichols v. Wal-Mart Stores, Inc., 698 So.2d 53 (La.App. 3rd Cir. 1997) ($35,000.00 in general damages awarded to woman ship tripped and fell in Wal-Mart parking lot and sustained injuries to her hands, elbows, and knees and underwent arthroscopic knee surgery); Nicks v. Teche Electric Co-op, Inc., 640 So.2d 723 (La.App. 3rd Cir. 1994) (Sixty-two year old man who suffered to his back, head, neck and foot and torn cartilage in his knee requiring out-patient knee surgery as a result of an ahision, between his truck and a telephone pole, awarded $40,000 in general damages; and Rubino v. Louisiana Stadium Exposition District, 619 So.2d 738 (La.App. 4th Cir. 1993) (Woman who slipped and fell on access ramp to the Louisiana Superdome suffering cuts and bruises and injuring her knee, requiring arthroscopic surgery for torn ligaments, who suffered pain for several years afterward when required to stand on her feet for a long time, awarded general damages of $60,000.00).
Mrs. Madona's also sustained multiple injuries which were more severe and disabling than her husband's. She sustained a left arm fracture with joint separation and bursitis aggravated by the accident, which left her with a 5% disability, a torn rotator cuff and tendon tear with fluid, a right ankle fracture requiring a closed reduction and then open reduction internal fixation surgery, swelling, scarring, 10% functional disability and recommendation of hardware removal, laceration and blunt trauma to the left knee causing torn ligaments and arthroscopic surgery, chrondomalacia, with likelihood of total knee replacement in the future, and abrasions, lacerations and contusions on her entire body. She was hospitalized initially for 14 days. For several months she had casts on her arm and her ankle. She was wheelchair bound and virtually helpless due to limb fractures on the opposite sides of her body.
She has partial permanent functional disability of her arm and ankle and suffers continued knee problems, with the future necessity of a knee replacement. Her injuries have caused both severe acute and chronic physical pain. Their effect on her life has caused mental anxiety and depression and has forced her to discontinue many of her activities in the "golden years" of her life. She testified that since the accident occurred, she has suffered pain every day of her life.
Upon consideration of the extent of her multiple injuries, the fact that she has permanent disabilities to her arm, ankle and knee, that she has undergone two surgeries in the past and will have to undergo knee replacement, a serious operation, in the future, has experienced a significant level of pain and suffers pain daily, and considering the impact of these physical injuries and conditions on her mental and emotional state, the Court finds by a preponderance of evidence that plaintiff Jacqueline Madona is entitled to general damages for physical and mental pain and suffering, past and future, in the amount of $250,000.00. The following decisions support this award: Butcher v. City of Monroe, 737 So.2d 189 (La.App. 2d Cir. 1999) (Eighteen year old boy who was struck by a police car, sustaining an open comminuted fracture of the right tibia and fibula, left ankle fracture, tail bone fracture, torn medial meniscus in the right knee, post-traumatic leg length discrepancy, subdural hematoma, bruised lungs, a liver injury, and multiple abrasions and lacerations and who was hospitalized for nine days and underwent three surgeries, with scar revision possible in the future, awarded $300,000.00); Gauthier v. Kansas City Southern Railroad Co., 682 So.2d 993 (La.App. 3rd Cir. 1996) (General damages of $450,000.00 awarded to 28 year old man who suffered fractures of both thigh bones, a fracture of the left leg below the knee, knee fracture, large left arm wound and fracture of the left humerus, radial nerve injury of the left arm and fractured front tooth with bridge replacement, with three surgeries); Maeder v. Williams, 652 So.3d 1005 (La.App. 4th Cir. 1994) (Man injured when ambulance broadsided his van, resulting in a fractured left forearm requiring closed reduction surgery, dislocated left elbow and right thumb, open reduction and internal fixation surgery on his left shoulder, with physical therapy, and persistent wrist, shoulder and elbow problems and pain awarded general damages of $195,000.00); Easley v. State Dept. of Transportation and Development, 679 So.2d 124 (La.App. 5th Cir. 1996) (43 year old woman injured in a car accident sustaining multiple rib fractures on both sides, multiple facial and extremities lacerations, fractured right femur, compound ankle fracture/dislocation, fractured pelvis and nose fracture, who underwent surgeries for ankle repair, to remove a pin from the femur and remove hardware from the ankle and to repair lacerations to her face and injuries to her septum awarded $350,000.00); Lennix v. Labee, 652 So.2d 50 (La.App. 5th Cir. 1995) ($250,000.00 in general damages awarded to man sustaining a compound upper arm fracture requiring surgery, a dislocated foot, right hand laceration, arm lacerations and muscle loss, and two surgeries for placing a rod in the femur and cleaning the wound, who may eventually need surgery to remove the rod, and who is restricted in his activities and experiences chronic pain);Haydel v. Commercial Union Ins. Co., 617 So.2d 137 (La.App. 5th Cir. 1993) (Woman in automobile accident sustaining a hip fracture and dislocation, rib fracture, fractured left ankle, and long laceration to the forehead, and surgeries for the hip fracture and ankle fracture, who will likely need hip replacement surgery in 10 to 15 years, awarded $400,000.00 in general damages).
Defendant United States urges the Court to adopt a legal finding that general damages must be limited to an amount which equals the medical expenses multiplied by a certain number. The Court specifically declines to do so, noting that perhaps this method might be helpful in settlement negotiations, but there is no legal authority requiring any factfinder to fashion general damages awards in this manner. Each plaintiff's general damage award must be based upon his or her specific injuries, the medical procedures which he was required to undergo, the degree and duration of pain and disability which he is required to endure, and the effect of these injuries on his emotional state and his life. Whether or not such damage awards are reasonable depends upon awards in similar cases, inasmuch as that is the measuring stick for determining whether a reasonable factfinder could have rendered such an award.
A recapitulation of the damages awarded to the plaintiffs are:
Joseph Madona
Special Damages
a. Past Medical Expenses $ 4,231.00
b. Past Lost Wages -0-
c. Future Medical Expenses -0-
General Damages $55,000.00 __________ Total Damages — Joseph Madona $59,231.00
Jacqueline Madona
Special Damagesa. Past Medical Expenses $ 53,517.00
b. Past Lost Wages $ 9,062.00
c. Future Medical Expenses $ 25,000.00
General Damages $250,000.00 ___________Total Damages — Jacqueline Madona $337,579.00
A judgment shall be entered in accordance with these findings of fact and conclusions of law.