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Wright v. United States

United States District Court, E.D. New York

July 24, 2017

Alexis L. Wright, as the administrator of the estate of James A. Wright, Plaintiff,
United States of America, Defendant.

          Plaintiff is represented by Joseph Miklos, Robert A. Miklos, and Daniel Patrick Miklos of Silberstein, Awad & Miklos, P.C.

          Defendant is represented by Vincent Lipari of the United States Attorney's Office for the Eastern District of New York.


          JOSEPH F. BIANCO United States District Judge.

         On March 15, 2013, decedent plaintiff James A. Wright[1] (“Wright”) filed this negligence action against the United States of America (the “government” or “defendant”) pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80 (the “FTCA”). Plaintiff alleges that the government is liable under the FTCA for injuries arising from an ankle bracelet that was placed and maintained on Wright's right leg and/or ankle by federal Probation Officer John Danielo (“Danielo”) from April to October 2010. Plaintiff asserts that the negligent placement and maintenance of the bracelet- notwithstanding Wright's extensive medical history (including diabetes, peripheral neuropathy, and a prior partial amputation of his left foot) and alleged complaints about irritation caused by the bracelet-resulted in, inter alia, months of hospitalization; debridement surgeries to remove tissue, ligaments, and bone; and an eventual below-the-knee amputation.

         The Court held a four-day bench trial from December 19, 2016 through December 22, 2016 and heard summations on February 24, 2017. After carefully considering the evidence introduced at trial, the arguments of counsel, and the controlling law on the issues presented, the Court issues the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). As discussed in detail infra, the Court determines that plaintiff has failed to prove by a preponderance of the evidence that the government was negligent in placing or maintaining the ankle bracelet on Wright's right ankle.

         First, even though Wright had a partial left-foot amputation from diabetes, Danielo was not negligent in his decision to place an ankle bracelet on Wright's right leg on April 13, 2010, pursuant to the electronic monitoring ordered by the court as part of his sentence of home confinement. It is uncontroverted that: (1) even though Wright's medical situation was fully known at the time of his sentencing on March 3, 2010, neither Wright nor his attorney raised any objection to the electronic monitoring at the sentencing when it was imposed by the court; (2) neither Wright nor his fiancée raised any objection to Danielo when he actually installed the bracelet on Wright's leg at his home on April 13, 2010; and (3) Wright visited his podiatrist on April 19, 2010 (six days after the installation of the device), and neither Wright nor anyone else told Danielo that his doctor had any concerns about the use of that device on his leg. Although plaintiff's expert suggested that it is “common knowledge” that this device would cause a problem to the skin of a diabetic, the Court finds that conclusory opinion to be entirely unpersuasive in light of the lack evidence to support it (and the contrary evidence in this case-namely, the lack of any expressed concern by plaintiff, his lawyer, his doctor, or anyone else to Danielo when the device was put on his leg). Instead, the Court concludes, under the circumstances of this case, that Danielo had no reason to believe that Wright was medically unsuitable for an ankle bracelet and was not negligent in deciding to install the device on April 13, 2010 on the right ankle/leg pursuant to the court order for electronic monitoring.

         Second, Danielo was not negligent in sizing the ankle bracelet by using the width of his finger to measure the distance between the bracelet and Wright's skin, which was presumably greater than the quarter-inch size discussed in the manufacturer's user manual. As is abundantly clear from the manufacturer's manual, the instruction that the transmitter should be “no more than one- fourth of an inch away from the client's ankle” is to ensure that the bracelet is in close enough proximity to the ankle for the signal to work, rather than to prevent an unspecified injury from a more loosely-fitted bracelet. There is no suggestion whatsoever in the manual that a loosely-fitted bracelet could cause injury, nor is there any suggestion that the device should not be used by diabetics. In short, there is absolutely nothing in the manufacturer's manual that would have put Danielo on notice that any injury could result from his method of fitting the bracelet on any person, including a diabetic person. In addition, Danielo had used this sizing method for over a decade without incident. Moreover, neither Wright nor anyone else told Danielo, when he fitted the bracelet in this manner on April 13, 2010, that the bracelet was too loose and/or would irritate Wright's skin. In fact, as noted above, Wright's scheduled visit to his podiatrist took place within six days of the fitting of the device, and there is no evidence that the podiatrist or Wright advised Danielo after that visit that there were any medical issues with the bracelet, including its sizing.

         Third, to the extent that Wright and his fiancée testified that Wright first complained to Danielo in August or September 2010 about discomfort to his leg caused by the bracelet, the Court finds that testimony not to be credible in light of all the evidence in the record and the Court's evaluation of the credibility of the witnesses, including their demeanor. As a threshold matter, Wright never sought any medical treatment for any alleged irritation to his skin prior to October 2010. In any event, even assuming arguendo that the discomfort to the right leg/ankle began in August/September 2010, the Court finds that such irritation to the skin was never mentioned to Danielo prior to October 12, 2010. Moreover, the Court concludes that Danielo had no duty to conduct a medical exam of Wright during his home visits to inspect for such irritation or to take any other affirmative actions in the absence of such a complaint from Wright, or someone on Wright's behalf, during the period from April 13, 2010 until October 12, 2010.

         Finally, Danielo was not negligent in his response to the events of October 12, 2010 at Wright's residence. Specifically, although Danielo saw the cut on Wright's ankle on that date during the home visit, Wright told Danielo that he was going to have the cut examined by his doctor later that day. Under those particular factual circumstances (which are uncontroverted), it was not negligent for Danielo to fail to remove the bracelet immediately (or to immediately inform the court or his supervisor of the problem), nor was it negligent for Danielo to move the bracelet up and tighten it slightly to keep it away from the cut for a few hours until the doctor could determine whether the bracelet was causing the cut and, if so, whether the bracelet needed to be removed. In fact, Danielo instructed Wright to report the doctor's assessment to him, and Danielo said that he would do whatever was in Wright's best interest medically going forward. There is no evidence that, when Wright's doctor examined Wright later on that date and prescribed oral antibiotics for the cut, that he suggested that the bracelet needed to be removed to prevent further injury. In fact, plaintiff's medical expert at trial testified that, if the bracelet had been removed after the doctor visit, the later injuries (which are the subject of this lawsuit) would not have occurred. In any event, it is undisputed that neither Wright nor his doctor ever contacted Danielo following the office visit to advise Danielo that the device needed to be removed for medical reasons. Moreover, the Court concludes that Danielo had no affirmative duty to follow up with Wright or his doctor to confirm that the bracelet did not need to be removed. In light of the prior conversation and the circumstances, it was entirely reasonable for Danielo to expect that Wright would certainly contact him after the doctor visit if the doctor believed that the device was causing the cut and needed to be removed for medical reasons. In fact, Wright contacted the Probation Department on October 15, 2010 (three days after his visit to the doctor) to request permission to leave his home to meet with his attorney and, even though he was on the telephone with the Probation Department, there is no evidence that he mentioned any ongoing medical issues with the bracelet. Given these facts on October 12, 2010, including that Wright was about to see a doctor regarding the cut in a few hours and Danielo reasonably expected to hear back from Wright if the bracelet was causing the irritation and needed to be removed, Danielo's actions that day, and any subsequent failure to affirmatively follow-up with Wright or his doctor, were not negligent.

         Accordingly, for these reasons and those that follow, the government is not liable to plaintiff under the FTCA, and plaintiff is not entitled to any damages.

         I. Background

         Plaintiff commenced this action on March 15, 2013. (ECF No. 1.) On December 4, 2014, plaintiff moved for summary judgment (ECF No. 33), and the following day, the government cross-moved to dismiss for lack of subject matter jurisdiction and for summary judgment (ECF No. 35). Wright died in February 2015, and his daughter Alexis Wright was thereafter appointed as administrator of his estate and substituted as plaintiff. (See ECF No. 54.) On May 29, 2015, plaintiff filed an amended complaint together with a renewed motion for summary judgment. (ECF Nos. 55-56.) On June 1, 2015, the government renewed its cross-motion to dismiss and for summary judgment. (ECF No. 57.)

         By Memorandum and Order dated February 11, 2016, the Court denied both parties' motions. See Wright v. United States, 162 F.Supp.3d 118 (E.D.N.Y. 2016). As a threshold matter, the Court rejected the government's argument that it was entitled to absolute immunity from liability on plaintiff's negligence claim on the ground that Danielo placed the ankle bracelet on Wright pursuant to an order by United States District Judge Feuerstein. Id. at 121. Because “Judge Feuerstein simply ordered home detention with electronic monitoring [and] gave no direction regarding the manner of such monitoring, ” the Court determined that “any negligence in the application or maintenance of the ankle bracelet by the Probation Department [was] not protected by absolute immunity.” Id. With respect to the ultimate issue of negligence, the Court found that neither party was entitled to summary judgment because of disputed issues of material fact pertaining to, among other things, Wright's claims that (1) he complained to Danielo in August 2010 about a rash and irritation on his right ankle prior to his hospitalization in October 2010 for an infection to that ankle; and (2) after Wright showed Danielo a cut on his ankle on October 12, 2010, Danielo moved the bracelet away from the cut and tightened it so that it would not slide down, rather than removing the bracelet or seeking some modification of the monitoring conditions from the court. Id. at 121-22. Finally, the Court determined that, even if plaintiff had adduced sufficient evidence of the government's negligence, there were also disputed issues of comparative negligence that could not be resolved at the summary judgment stage. Id. at 122.

         Thereafter, in advance of trial, plaintiff submitted proposed findings of fact and conclusions of law on December 9, 2016 (ECF No. 68); the government did the same on December 12, 2016 (ECF No. 69); and plaintiff filed supplemental proposed findings on December 13, 2016 (ECF No. 74). The Court held a bench trial from December 19, 2016 through December 22, 2016. (ECF Nos. 76-79.) Plaintiff presented the testimony of two expert witnesses-Dr. Elizabeth Harrington (“Dr. Harrington”), a vascular surgeon; and Robert Thornton (“Thornton”), a former federal probation officer-and the testimony of Dorothy Sprague (“Sprague”), who was engaged to Wright prior to his death. In addition, plaintiff played a video recording of Wright's deposition. The government called Danielo to testify as its sole witness.

         After the bench trial concluded, the Court granted the parties the opportunity to submit revised proposed findings of fact in light of the evidence introduced at trial. Plaintiff submitted proposed findings of fact on February 10, 2017 (ECF No. 82), and the government filed its proposed findings on February 13, 2017 (ECF 85). The Court subsequently heard summations from counsel on February 24, 2017. (ECF No. 87.)

         The Court has fully considered all of the evidence presented by the parties, as well as their written submissions. Below are the Court's findings of fact and conclusions of law.

         II. Findings of Fact

         The following section constitutes the Court's findings of fact pursuant to Federal Rule of Civil Procedure 52(a)(1).[2] They are drawn from witness testimony and the parties' trial exhibits. In general, having considered all of the evidence (including the credibility of the witnesses), the Court found Danielo's testimony to be entirely credible, but found, as discussed infra, that certain portions of Wright's deposition testimony were not credible. Moreover, as discussed infra, the Court did not find Thornton's expert opinions to be persuasive after carefully considering them in light of all the evidence. Because the Court concludes that the government is not liable to plaintiff, the Court will only briefly summarize those findings of fact that pertain to the issue of damages.

         A. Witness Background

         1. Dr. Harrington

         Dr. Elizabeth Harrington is a vascular surgeon licensed to practice medicine in New York State, as well as a Clinical Associate Professor of Surgery at Mt. Sinai Hospital. (Tr. at 36, 38.)[3] She graduated from New York Medical College in 1975 and has been a practicing surgeon since finishing a five-year residency and a one-year fellowship in 1981. (Id. at 37.) Dr. Harrington has experience treating patients with diabetes, an illness that can exacerbate vascular and cardiovascular diseases. (Id. at 41.)

         2. Thornton

         Robert Thornton is a retired United States Probation Officer who was employed by the Probation Department for over 27 years. (Tr. at 176.) During his time as a Probation Officer, he worked in the Northern District of Georgia and the Western District of Washington. (Id. at 177-78.) Thornton's experience includes presentence investigation, supervision, pretrial services, and pretrial service investigations. (Id. at 177-79.) He held the titles of Probation Officer, Senior Probation Officer, and Supervising Probation Officer before retiring. (Id. at 179-180.) Thornton has experience with location monitoring, electronic monitoring, and voice verification supervision as part of conditions of probation. (Id. at 181-86.) However, he has never personally placed an electronic bracelet on an offender. (Id. at 184, 298.)

         3. Sprague

         Dorothy Sprague met James Wright approximately 26 or 27 years ago and was engaged to him prior to his death. (Id. at 34, 335.) She and Wright had one son named Connor, and she currently works as a receptionist for Lexus luxury cars. (Id. at 335-36.)

         4. Wright

         James Wright was born in 1948 and resided with his fiancée Sprague and their son Connor before his death. (Wright Dep. Tr. at 5-6.)[4] He also had a daughter named Alexis from a prior marriage. (Tr. at 335.) Wright obtained a master's degree in education from New York University and worked for the William Floyd School District prior to his retirement in 2005. (Wright Dep. Tr. at 11-12.) He died on February 2, 2015. (Tr. at 353.)

         5. Danielo

         John Danielo began his employment with the United States Probation Department for the Eastern District of New York in 1991. (Id. at 402.) He worked at the Probation Department's office in the Brooklyn federal district court from May 1991 to May 1992. (Id. at 403-04.) Initially, his duties consisted of writing presentence reports. (Id. at 404-05.) After the latter part of 1992, he had no further involvement in writing presentence reports, (Id. at 413.)

         In May 1992, Danielo transferred to the Probation Department's Long Island office. (Id. at 404-05.) From the end of 1992 until May 1995, he supervised a caseload of offenders. (Id. at 405.) For the next 19 years, from May 1995 until his retirement from the Probation Department in June 2013, Danielo was the sole location monitoring specialist for all of Nassau and Suffolk Counties and, for a time, part of eastern Queens County. (Id. at 406, 415.) He enforced and supervised compliance with court orders for probation and home confinement, including restitution. (Id. at 408-09.) During that period, Danielo had on average 100 cases a year-30 or 40 at any particular time-for an approximate total of 2, 000 cases over the course of his career. (Id. at 407.)

         In most of the cases that Danielo supervised, the court had ordered home confinement with electronic monitoring for the offender. (Id.) During Danielo's employment with the Probation Department, all electronic home monitoring in the Eastern District of New York was done with electronic ankle bracelets; the Probation Department did not use electronic wrist bracelets. (Id.) In addition to electronic monitoring, other methods of location monitoring include voice verification, which employs computer-generated telephone calls to the offender's home made at random; and GPS, which uses satellite tracking of an offender's movements outside of the home. (Id. at 411-12.)

         B. The Criminal Case

         On April 11, 2008, the government filed a criminal information in United States v. Wright, 08-CR-231 (SJF), charging Wright with filing a false federal tax return for the year 2002, which understated his income as $127, 525, when it exceeded $407, 023; and the tax due as $31, 898, when it exceeded $154, 688. (Def.'s Exh. (“DX”) A.)[5] On June 20, 2008, Wright signed a plea agreement in the criminal case whereby he waived indictment and agreed to plead guilty to tax evasion, in violation of 28 U.S.C. § 7201. (DX B.)[6] That same day, he pled guilty, and Judge Feuerstein accepted his plea to the tax evasion charge. (DX C.)

         United States Probation Officer Steven Guttman prepared, and supervising Probation Officer Carmen Leichtle approved, a presentence investigation report (“PSR”), dated November 13, 2008 that noted Wright's medical history, including his diabetes illness, hospitalizations, and medications. (Pl.'s Exh. (“PX”) 2 at 18-21.) That same day, the Probation Department issued a Sentence Recommendation that recommended, inter alia, a sentence of three years' probation with 12 months of electronic home confinement. (DX E.)[7] The Sentence Recommendation noted Wright's medical ailments, including diabetes, and stated that the deterioration in his physical condition over the preceding two to three years supported a non-custodial sentence. (Id. at 2.) On October 22, 2009, the Probation Department issued a second addendum to the PSR, which noted that Wright underwent a partial amputation of his left foot due to complications from diabetes during the summer of 2009. (PX 2 at 39-42.)

         On March 3, 2010, Judge Feuerstein sentenced Wright to three years' probation, with the first 12 months to be served under home detention with electronic monitoring (DX I), and the court entered a judgment of criminal conviction that reflected that sentence on March 18, 2010 (DX J).

         C. Practices and Polices for Electronic Monitoring

         The electronic ankle bracelets used in the Eastern District of New York from April to October 2010 were made by a company named BI, which also prepared a BI HomeGuard Series User Guide (the “BI User Guide”). (Tr. at 213; PX 3.) The BI User Guide instructs that after the bracelet strap is fastened, the transmitter portion of the electronic bracelet should be no more than one-quarter inch from the ankle; the transmitter can rotate around the ankle with resistance in the front and back; and the transmitter should feel comfortable to the offender while walking so that the offender's ankle does not feel pinched. (Tr. at 215-16; PX 3 at 26.) The BI User Guide explains that improper installation or a poor fit may result in false alerts. (PX 3 at 30.) In addition, in the “Frequently Asked Questions” Appendix, the BI User Guide further explains how a loose-fitting bracelet can result in a false alert:

Can the transmitter be installed a little loose to allow room for leg swelling?
No. If the transmitter is not appropriately sized to the client's ankle it sends a false tamper message to the central monitoring computer.
The transmitter has built-in sensors that detect whether or not it is properly placed against the client's ankle.

(Tr. at 217, 299-300; PX 3 at 78.) At no point in the BI User Guide is there any warning that the electronic bracelet is medically unsuitable for certain individuals, such as individuals with severe diabetic conditions, or that a loosely-fitted bracelet could cause any injury.

         The Eastern District of New York Location Monitoring Manual (the “EDNY Manual”) also addresses sizing of BI electronic ankle bracelets. (PX 1 at 44-45.) It states that (1) the distance between the bracelet strap and the offender's skin must not exceed three-eighths of an inch, and a finger must fit snugly in between; (2) the transmitter can rotate from one side of the ankle to the other but not easily; and (3) when walking, the bracelet should not pinch the offender's ankle. (Id. at 45.) The EDNY Manual further states that the probation officer must install the transmitter “following the contractor's [BI's] instructions . . . Upon installation, [BI] ...

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