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Mesimeris v. United States

January 17, 2006

VASILIOS MESIMERIS, PLAINTIFF
v.
THE UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM, DECISION AND ORDER AFTER BENCH TRIAL

INTRODUCTION

On May 9, 2001, Plaintiff Vasilios Mesimeris ("Plaintiff") was loading packages into the trunk of his car when he was struck from behind by an unattended United States Postal Service ("USPS") truck. On February 25, 2003, Plaintiff commenced the instant action against Defendant United States of America ("Defendant") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). The facts constituting Defendant's negligence are not disputed. The only remaining issues for this Court to decide are whether Defendant's negligence caused Plaintiff to incur a serious injury and, if so, the appropriate amount of damages.

Between September 26 and September 29, 2005, this Court presided over a three-day bench trial concerning causation and damages. Based upon the evidence and arguments presented, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To the extent that any of the findings of fact may be deemed conclusions of law, they also shall be considered conclusions. Likewise, to the extent that any of the conclusions of law may be deemed findings of fact, they shall be considered findings. See Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 451-52, 88 L.Ed. 2d 405, 413-14 (1985) (noting the difficulty, at times, of distinguishing findings of fact from conclusions of law).

FINDINGS OF FACT

Plaintiff is a periodontic surgeon. He is presently thirty-nine years old (thirty-five at the time of the accident) and is married with two children. His medical practice is located in Babylon, New York. (Tr. at 5-6.) To date, Plaintiff still practices dental surgery.

On May 9, 2001, Plaintiff was struck by a USPS truck. He was outside the Americana Shopping Center in Manhasset, New York when the accident occurred. The circumstances of the accident are not seriously disputed. Plaintiff was at the rear of his car, loading packages into the trunk. He became distracted by mud-prints on the right (passenger) side of his car and leaned over for a closer inspection. While in the process of straightening up, Plaintiff was struck from behind by the USPS truck. (Id. at 7-9.) The USPS truck was unattended and had, inexplicably rolled towards Plaintiff and his car. Plaintiff had no opportunity to see the truck prior to impact. (Id. at 8-9). He was struck on the upper left portion of his back, and was spun clockwise until he was facing the truck. Plaintiff was knocked off balance, but was never thrown to the ground. The USPS truck came to a stop when it hit Plaintiff's automobile. The force of the impact was sufficient to push Plaintiff's automobile out of its parking space. (Id.)

In the moments following the accident, Plaintiff felt pain in his left shoulder and upper arm. He described the pain as "nothing too dramatic," but states that his ability to provide an accurate description of the pain at that time was compromised by shock. (Id. at 215, 230.) Plaintiff refused immediate medical attention (i.e., an ambulance). Instead, he opted to go home and rest. That evening, Plaintiff telephoned his primary care physician who recommended that Plaintiff take some ibuprofen and rest.

Over the next few days, Plaintiff's discomfort increased. (Id. at 13.) Initially, the pain was centralized in his upper left back and shoulder. Neck pain commenced one to two days after the accident. Notwithstanding the pain, Plaintiff continued to go to work. It is undisputed that Plaintiff did not have any abrasions, bruises or other superficial injuries as a result of the accident.

On May 14, 2001, Plaintiff visited Dr. David Weissberg, an orthopedic surgeon. Dr. Weissberg's initial examination of Plaintiff included a review of Plaintiff's medical history and x-rays. Dr. Weissberg's diagnosis was that Plaintiff suffered from cervical radiculitis*fn1 and sprain, along with sprains of the left shoulder and lower back. (Ex. 6.) Dr. Weissberg also noted that Plaintiff's x-ray indicated "degenerative disc disease from the C4 through C7 levels." (Id.) Dr. Weissberg prescribed painkillers and physical therapy. Plaintiff began physical therapy at Park Avenue Physical Therapy in Huntington under the care of Dave Fisher. Immediately after the initial visit, Plaintiff contacted Dr. Weissberg about enhanced pain. Dr. Weissberg directed Plaintiff to undergo a Magnetic Resonance Imaging exam ("MRI").

The MRI was "open." The description "open" refers to the fact that a patient is not required to be enclosed in a tube during the exam. The procedure is provided as an accommodation for patients that have claustrophobic tendencies. An "open" MRI is contrasted with a "closed" MRI, which requires enclosure. While the "open" MRI provides a useful means of diagnosing injuries, it does not provide the most detailed image available. The "closed" MRI provides superior imaging because it allows for the more effective use of magnets that provide the imaging. (Id. at 117.)

The open MRI indicated that Plaintiff had "cervical spondylosis with osteophyte formation." (Ex. 13.) Plaintiff had osteophytes*fn2 at the C4-C5 level of his vertebrae. At the C6-C7 level, the MRI showed that Plaintiff had "a right paracentral osteophyte . . . and a possible small annular tear." (Id.)

Plaintiff continued under the care of Dr. Weissberg until March 2002. The general course of treatment was physical therapy and anti-inflammatory drugs. In March 2002, Plaintiff was referred to Dr. Eric Mermelstein, a spinal surgeon, because of neck pain and the onset of numbness in his right hand. Dr. Mermelstein testified at trial as a treating physician and was also qualified as an expert in the area of orthopedic and spinal surgery. (Tr. at 111.)

Dr. Mermelstein first examined Plaintiff on March 20, 2002. (Id. at 113.) According to the initial medical history taken by Dr. Mermelstein, Plaintiff was working full-time, but had changed his practice significantly due to the weakness and pain in his hand. The "mechanism of the [May 2001] accident" was described in the history taken by Dr. Mermelstein as "a runaway mail truck . . . barreling down [on Plaintiff that] hit him in the back and slammed him into the back of his car." (Ex. 7; see also Tr. at 113-14.) "[Plaintiff] was tossed out of the way and had multiple contusions and superficial injuries." (Ex. 7)

As part of the initial visit, Dr. Mermelstein reviewed Plaintiff's May 2001 MRI. (Tr. at 116.) Based upon the MRI, Dr. Mermelstein found that Plaintiff had some "mild degree of cervical spondylosis." He also noted, "[t]here is some question of small annular tear*fn3 and a small right paracentral protrusion at C6-7." (Id.) Finally, Dr. Mermelstein reported that the MRI indicated no significant degree of neural compression, i.e., no significant pain through neural compression. (See Id. at 116, 166-167.)

Dr. Mermelstein's initial impression was that Plaintiff suffered from myofascial (muscle-related) back pain, and, perhaps, suffered from disc-related neck pain. (Id. at 116.) He recommended that Plaintiff continue physical therapy, and ordered an EMG nerve conduction study. (Id.) At trial, Dr. Mermelstein testified that he recommended the EMG to determine the etiology, or cause, of Plaintiff's hand complaints. (Id. at 121.) Dr. Mermelstein testified that Plaintiff's complaints, at the time, were consistent with a "nerve injury, or a pinched nerve . . . in the cervical spine." (Id.)

The EMG was performed on May 10, 2002. The test results were "consistent with a mild acute cervical radiculopathy with active denervation in the C6-7 nerve root distribution." (Id. at 122.) The significance of the finding of denervation at this level was that it ...


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