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Gonzalez v. United States

United States District Court, M.D. Florida, Jacksonville Division

May 5, 2017

RADANNA S. GONZALEZ and KEITH GONZALEZ, her husband, Plaintiffs,



         THIS CAUSE is before the Court for the entry of findings of fact and conclusions of law. This action arises out of a minor motor vehicle accident that occurred in Jacksonville, Florida on November 29, 2012. At the time of the accident, Plaintiff Radanna Gonzalez was a passenger in a minivan driven by her daughter, Danielle Gonzalez-Peirson. Michael Santiago, an employee of the United States Postal Service (USPS), was driving a postal truck owned by the United States. Santiago and Peirson were stopped next to each other, both waiting to exit the parking lot of an office center, when Santiago began to turn right and collided with the front left fender of the minivan. As a result of the collision, Radanna Gonzalez, as well as her husband Keith Gonzalez, filed the instant action against the United States seeking compensation under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (FTCA).

         The United States has waived sovereign immunity in limited circumstances for claims for money damages against the United States for injury, death, or loss of property caused by the negligent or wrongful act or omission of a federal employee while acting within the scope of his employment. See 28 U.S.C. § 1346(b)(1). The parties have stipulated that on November 29, 2012, Santiago was an employee of the USPS acting within the scope of his employment, and the Court accepts that Santiago is a federal employee for purposes of the FTCA. See Pretrial Statement (Doc. 49) at 24.

         This Court has subject matter jurisdiction to hear properly filed FTCA claims arising in the Middle District of Florida. The accident at issue is alleged to have occurred within the Jacksonville Division of the Middle District of Florida. Prior to filing suit, Plaintiffs Radanna and Keith Gonzalez each submitted a timely administrative tort claim giving the United States notice of their claims. See Pretrial Statement at 24-25. The United States denied the claims. Having exhausted their administrative remedies, Plaintiffs filed the instant action over which the Court finds that it has subject matter jurisdiction.

         Pursuant to the FTCA, the United States can be held liable in tort in the same manner and only to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674. In considering claims brought under the FTCA, the Court applies the substantive law of the place where the claim arose. See 28 U.S.C. § 2674. Thus, the substantive law of the State of Florida is applicable in this case. In the State of Florida, a plaintiff bears the burden of proving all four elements of negligence by the greater weight of the evidence. See Jefferies v. Amery Leasing, Inc., 698 So.2d 368, 370-71 (Fla. 5th DCA 1997); Fla. Std. Jury Instr. (Civil) 401.2 & 401.3. To prevail on a claim of negligence, a plaintiff must establish the following:

1. A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure on the [defendant's] part to conform to the standard required: a breach of the duty . . . .
3. A reasonably close causal connection between the conduct and the resulting injury. This is what is commonly known as ‘legal cause, ' or ‘proximate cause, ' and which includes the notion of cause in fact. 4. Actual loss or damage . . . .

See Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 1227 (Fla. 2010) (quoting Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)).

         In their Amended Complaint (Doc. 5), Plaintiffs allege that Santiago negligently operated the USPS truck causing it to collide with Radanna Gonzalez's vehicle and legally causing certain injuries to her, as well as her vehicle. The United States does not dispute that Santiago's negligence was the sole cause of the accident, and the undisputed evidence before the Court supports such a finding. Nonetheless, the United States contends that the accident was not the cause of Radanna Gonzalez's subsequent medical problems. Thus, the sole issues in this case are whether the collision can be considered a legal cause of injury to Radanna Gonzalez, and if so, the extent of her damages, any damages for loss of consortium to Keith Gonzalez, and the extent of damage to Plaintiffs' vehicle.

         The Court conducted a five-day bench trial spanning October 25-27, 2016, and November 1-2, 2016, see Minute Entries (Docs. 63-65, 68-69).[1] Numerous witnesses testified in person. Plaintiffs called Carol Crocker, Danielle Laree-Gonzalez-Peirson, Mark Emas, M.D., Marlene Thomas, Krystal Sykes, Christopher Roberts, M.D., John B. Roberts, M.H.S., Keith and Radanna Gonzalez, Adriana McClerren and J. Rody Borg, Ph.D. Plaintiffs also presented the testimony of Samuel Hess, M.D., by video deposition. The United States called Robynanne Cash-Howard, Marc D. Kaye, M.D., M. John Von Thron, M.D, Fremont P. Wirth, M.D, Michael Santiago, and Lance Ferrelli. Additionally, the Court reviewed evidence introduced by the parties, including Radanna Gonzalez's extensive medical records, and photographs of the scene of the accident and the vehicles. With the Court's permission, on January 6, 2017, the parties also submitted into evidence a Joint Stipulation Regarding Post Trial Off-Sets and Contractual Disputes (Doc. 81; Off-Set Stipulation). See Minute Entry (Doc. 69). After the close of the evidence, the parties filed proposed findings of fact and conclusions of law. See United States' Proposed Findings of Fact and Conclusions of Law (Doc. 80; Government Proposal); Plaintiffs' Proposed Findings of Fact and Conclusions of Law (Doc. 82; Gonzalez Proposal), both filed January 6, 2017.

         Having reviewed the pleadings, examined the evidence, observed the witnesses, and considered the arguments of counsel, as well as the remainder of the record, the Court makes the following findings of fact and conclusions of law as required by Rule 52(a) of the Federal Rules of Civil Procedure (Rule(s)).

         I. Findings of Fact[2]

         A. The Accident and Aftermath

         The accident occurred on Thursday, November 29, 2012, around 5:00 p.m., when Danielle Gonzalez-Peirson, Plaintiff Radanna Gonzalez's daughter, was giving her mother a ride home from the Allstate Insurance office where Gonzalez worked in Jacksonville, Florida. Peirson was driving Gonzalez's Chrysler Town & Country minivan, and Gonzalez was riding in the front passenger seat with her seatbelt fastened. Having just picked up Gonzalez, Peirson intended to exit the parking lot of the office center by turning right onto Atlantic Boulevard. Peirson pulled into the right-turn exit lane of the parking lot next to a USPS “2-ton” mail truck, driven by Michael Santiago, which was idling in the left turn lane, directly to the left of Peirson and Gonzalez. Failing to observe the minivan stopped next to him, Santiago began to make a right turn from the left turn lane and collided with the front left fender of the minivan. At the time of the collision, Santiago was traveling no more than 5 mph.

         Upon impact, the postal truck dragged the minivan forward but stopped before entering the roadway. The impact of the collision caused the minivan to jerk up and down, and back and forth, sharply jostling Peirson and Gonzalez.[3] A police officer was called to the scene and cited Santiago for careless driving. Santiago called and reported the accident to his supervisors, Terry Atkinson and Carol Crocker, and they also came to the scene. Santiago told his supervisors that he did not see Gonzalez's vehicle, and the USPS found Santiago at fault for the accident.

         Although the collision did not damage the postal truck, Gonzalez's minivan sustained damages to the front bumper, as well as the left front headlight, fender, and door. After the accident, Gonzalez drove her minivan to a parking spot at the office center, and her employer, Lance Ferrelli, gave Gonzalez and her daughter a ride home. Gonzalez testified that she experienced a “funny sensation” in her lower extremities at the scene of the accident, but she did not experience any pain at that time. Indeed, Gonzalez did not tell her daughter, employer, the law enforcement officer or anyone else at the scene that she was experiencing any pain or discomfort. Later that evening, and over the following days, Gonzalez felt stiff and sore from the accident and developed a burning sensation radiating down her left thigh.

         On Friday, November 30, 2012, the day after the accident, Gonzalez did not report to work and spent several hours with Peirson at the Department of Motor Vehicles (DMV) attempting to obtain the documents and registrations necessary to drive a different vehicle. Although Gonzalez did not obtain any medical treatment on Friday, she did contact two attorneys. After firing the first attorney she contacted, Gonzalez hired John Thomas, an attorney she knew from her church, and he helped her set up an appointment with a neurologist, Mark Emas, M.D., for the coming Monday. Gonzalez testified that she was in significant pain over the weekend, however, she did not attempt to obtain any medical care prior to her appointment with Emas.[4]

         Gonzalez first obtained medical care four days after the accident, on Monday, December 3, 2012. The night before, Gonzalez called her employer and told him that she would not be in to work on Monday because she had a fever. Ex. 56, ALLSTATE0022. Gonzalez acknowledged at trial that this excuse was not true, and that she intentionally misled her employer.[5] Gonzalez also told her employer that she may or may not be at work on Tuesday. Ex. 56, ALLSTATE0022. Notably, on Tuesday afternoon, Gonzalez drove the minivan to two different auto repair shops to obtain estimates for the cost to repair the minivan. Gonzalez received one estimate in the amount of $1, 940.23, and the other for $1, 651.49. Exs. 15, 16. However, because of the high cost, Gonzalez did not have the car repaired professionally. Rather, Gonzalez's husband and brother made some repairs to the minivan, and Gonzalez continued to drive the vehicle for several more months. On June 18, 2013, Gonzalez traded the minivan to an auto dealership as part of the purchase of a car and received a $900 credit. Ex. 17.

         On December 5, 2012, Ferrelli met with Gonzalez to discuss moving her to a part-time schedule. Ferrelli's decision to reduce Gonzalez's hours did not stem from the accident, but was the result of her history of chronic absenteeism. Gonzalez and Ferrelli agreed that a part-time schedule was appropriate under the circumstances. Ex. 56, ALLSTATE0021. On December 12, 2012, Gonzalez signed a document for submission to her insurance company stating that she was placed on a part-time schedule due to the accident, and sent the document to Ferrelli for his signature. Ferrelli refused to sign the document because it was not true. Id., ALLSTATE0007. Instead, Ferrelli revised the document to state that Gonzalez “was placed on part-time employment effective 12/17/2012 due to poor attendance leading to unacceptable work performance.” Id., ALLSTATE0019.

         Gonzalez testified that she was terminated from her employment with Allstate due to excessive doctor's appointments related to her injuries, but the Court rejects this testimony. Rather, the Court credits the testimony of Ferrelli, her employer, who stated that Gonzalez never told him that she was injured in the accident or needed to miss work to attend a medical appointment related to injuries she sustained in the accident. Ferrelli testified that he did not notice any change in Gonzalez after the accident, although he acknowledged that it would be hard for him to identify a difference since she did not come to work much after the accident. Ferrelli's employment records indicate that Gonzalez missed several days of work in late January and early February because she had “pink eye, ” the “flu” and was “sick.” Id., ALLSTATE0021. Notably, the Court is unable to identify even one single appointment related to this accident that conflicted with Gonzalez's part-time work schedule at Allstate. Gonzalez's employment with Allstate ended on February 4, 2013. On that date, after being out “sick” for several days, Gonzalez's employer asked her when she would be returning and she told him she had no idea. Then, when asked, she said she did not know what direction she wanted to take on her job. Her employer interpreted those statements to be a separation from employment and thus, her employment terminated. Id., ALLSTATE0020.

         B. Medical Care

         i. Initial Evaluations and Treatment

         As stated above, Emas, a neurologist, was the first doctor to examine Gonzalez following the accident. As documented in Emas' medical records, Gonzalez presented to Emas four days after the accident with complaints of “cervical, thoracic, and lumbosacral regional pain with intermittent numbness of the bilateral hand and a nearly constant burning sensation with intermittent numbness to the lateral aspect of the left thigh.” Ex. 26, EMAS0026. Among other things, she reported to Emas that her past medical history consisted of a car accident from 23 years prior involving a “left leg contusion that fully resolved, ” and another car accident from 19 years ago in which she sustained a neck and back injury, including a bulging disc in her lumbar spine, but all symptoms had resolved. Id. After this initial evaluation, Emas diagnosed Gonzalez with post-traumatic myofascial paraspinous injuries to her cervical, thoracic, and lumbar spine, as well as left sacroiliitis. Id., EMAS0028. Emas noted in the medical records that these injuries were the result of a November 29, 2012 motor vehicle accident. Id. Because Gonzalez reported intermittent numbness in her hands and left thigh, Emas also noted the possibility that Gonzalez was suffering from radiculopathies, i.e., pinched nerves in her neck and lumbar spine. Id. Emas prescribed physical therapy, as well as medications for pain (Lortab) and muscle spasms (Baclofen), and referred Gonzalez for a cervical MRI. Id.

         Eleven days later, on December 14, 2012, Gonzalez attended her first physical therapy appointment where she was evaluated and prescribed therapy sessions two to three times a week. Ex. 33, MAGNOLIA0009. Nonetheless, Gonzalez waited a week before returning for a second physical therapy appointment, on December 21, 2012, and did not return again until January 11, 2013. Gonzalez attended therapy only twice more, on February 25, 2013, and March 4, 2013, and then stopped going entirely. Id., MAGNOLIA0004-0008. Notably, in her follow-up appointments with Emas, he consistently instructed her to continue with physical therapy. Based on his records and testimony, it appears that Emas was unaware that Gonzalez was not participating in physical therapy as prescribed.

         On December 26, 2012, Gonzalez underwent a cervical MRI and returned to Emas' office. The report on the MRI documented “minimal cervical spondylosis” and a “left C5-C6 tiny paracentral disc herniation.” Ex. 26, EMAS0021. Gonzalez reported that she was taking Baclofen but had lost the prescription for Lortab. Id., EMAS0026. According to the medical records, Gonzalez was continuing to experience pain in her neck, back, hands and thigh, and she reported for the first time the presence of pain in her left shoulder, documented as “reinjury.” Id. Although she was experiencing muscle spasms in her back, she declined trigger point injections at that time. She was prescribed Tramadol for pain and instructed to continue with her medications and physical therapy. Due to her shoulder pain, she was advised to obtain an MRI of her left shoulder and referred to an orthopedic specialist for an evaluation. In addition, she was sent for a nerve conduction study of her arms to look for any impingement on the nerve roots in her neck.

         In early January, Gonzalez underwent the MRI of her left shoulder and nerve conduction study. The nerve conduction study showed evidence of mild carpal tunnel syndrome, id., EMAS0023, and the report on the left shoulder MRI indicated “mild tendonopathy of the rotator cuff” and a “mild degenerative change” in the joints with “no significant impingement.” Id., EMAS0022. Based on these studies, as well as the cervical MRI, Emas updated Gonzalez's diagnosis on March 11, 2013, to include: a paracentral cervical disc protrusion at ¶ 5-C6, bilateral posterior cervical paraspinal and trapezius myofascial injuries, thoracic and periscapular sprain, lumbosacral myofascial injuries, left lumbosacral sacroiliitis, bilateral shoulder contusions, and bilateral carpal tunnel syndrome. Id., EMAS0021-0023, 0045. Emas identified all of these diagnoses as “post-traumatic, ” and “secondary to the motor vehicle accident on 11/29/12.” Id., EMAS0045.

         ii. Treatment of Spine

         Initially, Emas' treatment plan for Gonzalez's neck and back pain involved anti-spasmodic and pain medications, as well as physical therapy. On March 11, 2013, Emas began administering trigger point injections in Gonzalez's back in an effort to “reduce the pain and spasm [she] has in her injured muscles and improve her lumbosacral range of motion.” Id., EMAS0045. Emas also placed a trigger point injection in Gonzalez's left sacroiliac joint to reduce “inflammation and pain.” Id. Due to the severity and persistence of her pain, Emas also discussed with Gonzalez more invasive pain management options, such as steroid injection therapy. Although Emas instructed Gonzalez to continue with physical therapy, she had last attended therapy on March 4, 2013, and did not return. Id., EMAS0045; Ex. 33, MAGNOLIA0010-0012. After she canceled an appointment with Emas on April 1st, and failed to show up for her appointment on April 4th, Ex. 26, EMAS0043-0044, Gonzalez next saw Emas on April 9, 2013. At this visit, she reported that the trigger point injections had been helpful, and received additional trigger point injections in her thoracic paraspinous muscles. Id., EMAS0039. However, given the severity and persistence of Gonzalez's reported pain, Emas determined that she may need more invasive treatment, and after discussing the matter with her, Emas referred Gonzalez for more extensive pain management care. Specifically, Emas referred Gonzalez to Paul Baxt, M.D., an orthopedic surgeon at Integrated Surgical.

         On May 2, 2013, Gonzalez had a consultation with Baxt who evaluated Gonzalez for possible epidural steroids. Baxt referred Gonzalez for an MRI of her lumbar spine to determine the cause of her low back pain and recommended a cervical epidural steroid injection to treat her neck pain. Baxt gave Gonzalez the injection at that visit, but when she returned to Baxt on July 23, 2013, Gonzalez reported that the injection had not alleviated her pain. Ex. 31, INTSUR0186, 0184. On Baxt's referral, Gonzalez obtained the first post-accident MRI of her lumbar spine on August 5, 2013, over eight months after the accident. Id., INTSUR0183. The impression from this MRI report reads: “[a]t the L5-S1 level, there is 3-4 mm right paracentral and lateral herniation with mild to moderate effacement of the entrance to the right neural foramen.” Ex. 26, EMAS0020. On August 13, 2013, Gonzalez met with Samuel Hess, M.D., an orthopedic surgeon doing consulting work with Integrated Surgical, to whom she was referred by Baxt. At this appointment, Hess recommended that Gonzalez undergo low back surgery due to: her ongoing complaints of back pain radiating into her left leg, an MRI revealing a herniated disc at ¶ 5-S1, and the failure of all other interventions, including “injections, physical therapy, medication, and the tincture of time.” Ex. 31, INTSUR0181-0182. Notably, Hess testified that he reviewed Gonzalez's medical records from Baxt, but does not recall seeing any other medical records. Baxt's medical records indicate that Gonzalez “has been treated extensively with physical therapy and other conservative forms of treatment” but “has not responded, ” and noted on July 23, 2013, that Gonzalez “has been discharged apparently by the other treating medical personnel.” Id., INTSUR0186, 0184.

         However, as is evident from the foregoing, these statements in Baxt's medical records are inaccurate. Contrary to the instruction of her physical therapist, Gonzalez had attended physical therapy only five times, including the evaluation, and despite Emas' direction that she continue with physical therapy, she had not attended therapy since March 4, 2013. In addition, Gonzalez had received trigger point injections on only two occasions-March 11, 2013, in her lumbosacral spine and left sacroiliac joint region, and April 9, 2013, in her left thoracic paraspinous muscles-and had reported to Emas that the injections were helpful. She had received only one cervical epidural injection, although she reported to Baxt that it was not helpful, and no epidural injections in her lumbar spine. Moreover, Gonzalez had not been discharged by Emas, but had seen him as recently as June 28, 2013. Notably, Gonzalez canceled an August 28, 2013 appointment with Emas, which would have taken place after her consult with Hess about surgery, but prior to the surgery. Ex. 26, EMAS0035. As such, Gonzalez did not discuss her decision to have back surgery with Emas, her neurologist, nor did Hess consult with Emas prior to the surgery. At trial, Emas testified that he had not considered her to be a candidate for back surgery at the time.

         On September 18, 2013, Hess performed a lumbar laminectomy and discectomy on Gonzalez's back to address the herniated disc at ¶ 5-S1. Ex. 31, INTSUR0148-0149. During the surgery, Hess observed an annular tear and removed loose fragments of the herniated disc. Id., INTSUR0014. Following surgery, Gonzalez attended only four physical therapy sessions, despite a prescription for physical therapy three times a week for four weeks. Id., INTSUR0136-0137, 0145. Gonzalez did not see Hess again until December 11, 2013, at which time she reported a recurrence of her pain following her participation in Thanksgiving Day preparation and cooking activities. Id., INSTUR0026. As such, Hess ordered an MRI of her lumbar spine which showed the presence of scar tissue. Ex. 26, EMAS0018. Hess reviewed this MRI with Gonzalez at her next appointment on February 11, 2014, and recommended that she continue to give her lower back time to heal. Ex. 31, INTSUR0027-28. Due to her cervical neck pain, Hess referred her to pain management involving medial branch blocks and possibly radiofrequency ablation. Id. Gonzalez's last appointment with Hess occurred on May 21, 2014, at which time he recommended continued pain management therapies including cervical facet injections, radiofrequency ablation, epidural steroid injections, and prescription pain medication. Id., INTSUR0029.

         On May 8, 2014, Gonzalez had an interventional physiatric consultation with Gerald Nickerson, M.D., of Interventional Pain Solutions. He treated Gonzalez for cervical facet syndrome, and over the following months she underwent several pain management procedures such as medial branch blocks, cervical radiofrequency ablations, and a transforaminal epidural steroid injection. Id., INTSUR0005-11. On September 23, 2014, Gonzalez had a neurosurgery consult with Raul Rodas, D.O., of Integrated Surgical, who recommended continued conservative pain management and exploration of her candidacy for an epidural stimulator, but found no need for further neurosurgical intervention. Id., INTSUR0202. During this time, Gonzalez continued receiving trigger point injections from Emas every few months. Ex. 26, EMAS0031, 0015, 0011, 0006, 0004, 0068, 0187, 0182, 0174, 0213.

         Because Gonzalez's low back pain continued, on January 6, 2015, Emas referred her to Christopher Roberts, M.D. of the Jacksonville Spine Center for more invasive steroid injection therapy. Gonzalez began seeing Roberts on February 5, 2015. Ex. 32, JSC0016-0018. Roberts determined that scar tissue pressing on a nerve following the surgery was the cause of Gonzalez's low back pain. After trying a series of epidural injections with no long-term relief, Roberts recommended that Gonzalez have a spinal cord stimulator implanted. After a successful trial period with a spinal cord stimulator, Gonzalez underwent a second back surgery on November 13, 2015, during which Claudio Vincenty, M.D., on Roberts' recommendation, implanted a spinal cord stimulator in Gonzalez's back to help alleviate her ongoing low back pain. Id., JSC0107. Since that time, Gonzalez has continued receiving trigger point injections from Emas and epidural injections from Roberts to treat the pain in her cervical spine. Recent MRIs of Gonzalez's cervical and lumbar spine show additional disc protrusions. Roberts testified that these protrusions are either discs that were damaged in the accident but were not significant enough to be visible until some time had passed, or they are new herniations that have developed due to the abnormal gait with which Gonzalez walks as a result of her back problems.

         iii. Treatment of Shoulder[6]

         Gonzalez first complained of shoulder pain to Emas when she saw him for the second time, on December 26, 2012, almost a month after the accident. Ex. 26, EMAS0024. As stated above, Emas sent Gonzalez for an MRI of her left shoulder and referred her to an orthopedic specialist, Ted Northrup, D.O., for treatment. At Gonzalez's first appointment with Northrup, on January 28, 2013, his assessment was that she had a “sprain of the levator scapulae and rhomboids of the left shoulder.” Ex. 30, FSMI0012-13. Because Gonzalez was already in physical therapy for her back, Northrup recommended that Gonzalez continue with physical therapy and add treatment for her shoulder. Gonzalez attended physical therapy only twice after her appointment with Northrup. Although Northrup instructed her to follow up in three weeks, she did not return to Northrup until July 22, 2013. At that appointment, Northrup noted that Gonzalez “did go through physical therapy without any significant long-term improvement.” Id., FSMI0009. Northrup and Gonzalez agreed that she had reached maximum medical improvement, and Gonzalez has not returned to Northrup for any additional shoulder treatment.

         iv. Treatment of Hands

         Due to the numbness in Gonzalez's hands, Emas ordered a nerve conduction study on January 14, 2013.[7] The study did not show any evidence of nerve root impingement in her cervical spine. Rather, the study found evidence of a problem with the nerves in her wrists and as such, Emas diagnosed her with bilateral carpal tunnel syndrome. Ex. 26, EMAS0023. At the March 11, 2013 appointment, Emas encouraged Gonzalez to use bilateral carpal tunnel wrist splints during the evening hours to treat the carpal tunnel syndrome. Id., EMAS0045. Emas testified that anti-inflammatory medication is also used to treat carpal tunnel, but Gonzalez is unable to take those medications. Thus, aside from the wrist splints, Gonzalez has ...

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