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Karen M. Moe v. United States of America

December 2, 2010

KAREN M. MOE, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pending before the Court is the final resolution of plaintiff's damages claims, following a bench trial and subject to defendant's pending motion in limine. Plaintiff seeks both economic and non-economic damages stemming from a motor-vehicle accident in which an employee of defendant struck plaintiff's motorcycle while on duty with the United States Postal Service. Having previously awarded plaintiff summary judgment as to liability, the Court presided over a bench trial*fn1 as to damages on May 5, May 6, and June 23, 2010. After briefing from the parties, the Court held oral argument regarding proposed findings of fact and conclusions of law on October 15, 2010. Upon consideration of all of the evidence admitted at trial and of all of the papers and arguments submitted by the parties, the Court will deny defendant's motion in limine and award plaintiff damages as explained below.

II. BACKGROUND AND FINDINGS OF FACT

The following constitutes the Court's findings of fact pursuant to Rule 52 of the Federal Rules of Civil Procedure.

A. Pertinent Events

This case concerns a motor vehicle accident that occurred on August 28, 2003, at the intersection of Tonawanda Creek Road and Orbit Drive in Amherst, New York. That day, postal worker Robin Truby*fn2 was delivering mail along her regular delivery route in the ordinary course of her employment with the United States Postal Service ("USPS"). The USPS considered Ms. Truby's delivery route to be a rural route. Although not a lot of background details emerged at trial, the nature of Ms. Truby's rural route and the logistics of accommodating rural routes led USPS to instruct Ms. Truby to work her delivery route in a particular way. In accordance with USPS instructions, Ms. Truby worked her route with her own vehicle, a white Buick LeSabre sedan. In contrast to USPS-issued delivery vehicles, which are built with or adapted to right-hand drive to place postal workers within arm's reach of rural mailboxes while driving, Ms. Truby's personal vehicle featured the common left-hand drive configuration. To compensate for Ms. Truby's inability to reach mailboxes from the driver's side of her vehicle, USPS instructed her to sit in the front passenger's seat and to reach over with her left arm and left foot to operate the vehicle. Ms. Truby then would proceed to drive along the shoulder of any road on her route, stopping at each mailbox. The instructions that USPS gave Ms. Truby are important because the altered angles from which Ms. Truby would have been looking out of her vehicle's mirrors almost certainly factored into the events that followed.
A "misdelivery" at a mailbox set in motion the events leading to the accident at the heart of this case. As Ms. Truby testified, she was working her route without incident when she realized that she made a mistake with the delivery to the last mailbox behind her that she serviced. The mailbox in question was on Tonawanda Creek Road near the intersection of Orbit Road. Rather than put her vehicle into reverse to back up to the mailbox, Ms. Truby decided to return to that mailbox by driving forward through a double U-turn. That course of action required to Ms. Truby to cross both lanes of traffic twice,*fn3 once for each U-turn. Ms. Truby began this course of action by pulling out of the shoulder where she was and into the same flow of traffic in which her vehicle was pointed. As Ms. Truby pulled into traffic, she never saw plaintiff riding up the road on her motorcycle. The nature and timing of Ms. Truby's entrance into the flow of traffic caused plaintiff to slam into the side of Ms. Truby's vehicle. The collision threw plaintiff from her motorcycle and into the air. Plaintiff landed on a grassy area just off of Orbit Road, about 35--40 feet from Ms. Truby's vehicle. Resident Kurt Schultz,*fn4 on whose parcel plaintiff landed, recalled that plaintiff landed with her head pointed toward Orbit Road. Emergency responders treated plaintiff at the scene and then transported her to Erie County Medical Center.

The basic events of the accident, as the Court has summarized them above, led to a traffic citation to Ms. Truby for failure to yield the right of way when entering a roadway, in violation of N.Y. Vehicle and Traffic Law § 1143.*fn5 The accident, together with the resulting violations of the Vehicle and Traffic Law, persuaded this Court to adopt a Report and Recommendation from Magistrate Judge Leslie G. Foschio (Dkt. No. 20) and to grant plaintiff partial summary judgment as to liability.

B. Damages

The parties largely do not dispute some of plaintiff's damages claims. Plaintiff testified at trial that she briefly lost consciousness after the accident and was in considerable pain when she regained consciousness.*fn6 Emergency room physicians diagnosed plaintiff with a minor closed head injury, a comminuted fracture of the right clavicle, and three fractures in her right foot. Plaintiff's injuries kept her out of work until late December 2003 and required physical therapy for about a year after the accident. Plaintiff's mother, Luise Moe, testified credibly that she had to help plaintiff with meals, dressing, and bathing until plaintiff had regained enough strength to handle those activities on her own. Plaintiff was able to return to full-time work in late December 2003 to her job as a team leader in the rod job department at the General Motors ("GM") Power Train plant in Tonawanda, New York. Plaintiff has not lost time at work since, except for a few months in early 2006 that relate to strongly disputed injuries that the Court will address later.

With respect to the aspects of plaintiff's damages claims that the Court just described above, the only notable dispute between the parties concerns how the Court would calculate plaintiff's lost overtime wages if it chose to make an award for them. Plaintiff seeks recovery for overtime hours lost between January and April 2006, based on the number of hours that would have been available to her under her employer's rules for overtime assignments. GM labor relations official Kevin Barton testified credibly about how, in general, GM calculates how many overtime hours it needs from its employees and how it assigns those hours based on seniority. Mr. Barton's testimony, though generally credible, was of limited use to the Court because it did not address how many overtime hours plaintiff actually would have worked in early 2006. Defendant, accordingly, challenges the calculation of lost overtime hours as too speculative and asks the Court not to guess what overtime assignments plaintiff actually would have accepted and which she might have passed to co-workers with less seniority.

The parties strongly dispute plaintiff's claims of injuries to her right shoulder. Plaintiff submitted credible evidence that she took about a year after the accident to address her right clavicle fracture with conservative, non-surgical treatment and therapy. Plaintiff took this course of action on the advice of her treating physician, Dr. Marcus Romanowski, M.D.*fn7 Plaintiff returned to Dr. Romanowski in November 2004 to report ongoing pain and tenderness in her right shoulder. An x-ray showed that the clavicle fracture healed, leading Dr. Romanowski to recommend a non-surgical approach to plaintiff's complaint. Plaintiff returned to Dr. Romanowski again in August 2005 to report continuing pain and tenderness. Further x-rays and examination revealed that the clavicle fracture altered the alignment of plaintiff's shoulder joint in such a way that it began deteriorating and caused a rotator cuff tear. Dr. Romanowski performed arthroscopic surgery on plaintiff's right shoulder on January 20, 2006. Plaintiff missed work from January 20 through April 30, 2006. Defendant disputes plaintiff's injuries by submitting evidence that they do not relate to the accident but rather resemble repetitive-stress injuries that she has suffered intermittently for years. Although the Court considers credible the evidence of plaintiff's history with repetitive-stress injuries, it rejects defendant's attempt to label plaintiff's current shoulder condition as another such injury. The Court finds credible the testimony of Dr. Mark Mieth, M.D. to the extent that he found plaintiff to have symptoms of impingement syndrome at specific times in the past. Beyond that, however, defendant submitted insufficient evidence that plaintiff's repetitive-stress injuries did not resolve each time or were cumulative in nature. The Court finds that the chronic nature of plaintiff's present condition, coupled with the evidence of permanent shoulder realignment, makes her condition a consequence of her clavicle fracture. The Court will address later whether plaintiff's current condition qualifies legally as "newly discovered evidence" so as to defeat the pending motion in limine.

Similarly, the parties strongly dispute plaintiff's claims of injuries to her right foot. When plaintiff visited Dr. Romanowski visited in November 2004, she mentioned that she was experiencing foot pain. Dr. Romanowski referred plaintiff to Dr. Michael Parentis, M.D., who examined plaintiff in December 2004. Dr. Parentis formed the credible medical opinion that the joint synovitis that he found in plaintiff's great toe had its origins in the fractures that the accident caused in her foot. Dr. Parentis formed the additional credible opinion that plaintiff's joint synovitis would have taken time to develop as a chronic consequence of the accident. Defendant challenges, more or less in its entirety, the evidence both of the severity of plaintiff's joint synovitis and of her experience of pain in dealing with it. The Court disagrees with most of ...


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