Opinion
Case No. 4:20-cv-00314-SMR-SBJ
2023-03-28
Troy GARBER, Plaintiff, v. UNITED STATES of America, Defendant.
James Robert Lawyer, Robert Conklin, Lawyer, Lawyer, Dutton, Drake & Conklin, LLP, Urbandale, IA, for Plaintiff. Jason Ray Lawrence, David L.D. Faith (Former), Rachel J. Scherle, United States Attorney's Office, Des Moines, IA, for Defendant.
James Robert Lawyer, Robert Conklin, Lawyer, Lawyer, Dutton, Drake & Conklin, LLP, Urbandale, IA, for Plaintiff. Jason Ray Lawrence, David L.D. Faith (Former), Rachel J. Scherle, United States Attorney's Office, Des Moines, IA, for Defendant. TRIAL ORDER STEPHANIE M. ROSE, CHIEF JUDGE
On October 9, 2020, Plaintiff Troy Garber ("Plaintiff") filed a lawsuit under the Federal Tort Claims Act ("FTCA") against the United States of America ("the Government"). He alleges an employee of the United States Postal Service ("USPS") was negligent when, in the scope of her employment, her mail vehicle collided with Plaintiff's truck after she failed to yield to oncoming traffic. On June 6, 2022, the Court commenced a two-day bench trial on the issue of damages. Its findings of fact and conclusions of law are presented below.
I. BACKGROUND
A. Separation of Fact and Law
Federal Rule of Civil Procedure 52 provides, "[i]n an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions . . . may appear in an opinion or a memorandum of decision filed by the court." Fed. R. Civ. P. 52(a)(1). "In the context of a trial without a jury, courts have consistently noted that Fed. R. Civ. P. 52(a) does not require either punctilious detail or slavish tracing of the claims issue by issue and witness by witness." Larmon v. United States, 200 F. Supp. 3d 896, 900-01 (D. S.D. 2016) (quoting Leiber v. United States, No. 11-00699-CV-W-FJG, 2013 WL 5964427, at *1-2 (W.D. Mo. Nov. 8, 2013)). "Findings are adequate if they afford a reviewing court a clear understanding of the basis for the . . . decision." Collins v. Henderson, 180 F.3d 988, 990 (8th Cir. 1999) (quotation omitted).
B. Consideration of Evidence
In a bench trial under Federal Rule of Civil Procedure 52, the court's findings of fact are presumed to be based on admissible evidence only. Williams v. Illinois, 567 U.S. 50, 69, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012); Harris v. Rivera, 454 U.S. 339, 346, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) ("In bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions."). It is a " 'well-established presumption' that 'the judge [has] adhered to basic rules of procedure,' when the judge is acting as a factfinder." Williams, 567 U.S. at 69-70, 132 S.Ct. 2221 (quoting Harris, 454 U.S. at 346-47, 102 S.Ct. 460) (alterations in original and emphasis omitted). Therefore, any objections presented at trial on the exhibits that the Court considers below are overruled.
II. PROCEDURAL BACKGROUND
On January 7, 2019, Plaintiff filed an initial claim with the USPS under 28 U.S.C. § 2675. After nearly eleven months without an agency response, he amended the claim. This amendment restarted the period for the agency to respond. 39 C.F.R. § 912.5(c). Plaintiff did not receive a response, which is a constructive denial. 28 U.S.C. § 2675(a) ("Failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter be deemed a final denial of the claim."). The parties agree a final denial due to agency non-response constitutes administrative exhaustion under the FTCA. [ECF No. 52 at 2].
He initiated this suit on October 9, 2020, alleging that the USPS employee who struck him was negligent by failing to yield the right-of-way. [ECF No. 1 (Initial Complaint)]. Plaintiff later amended the Complaint. [ECF No. 8]. The parties completed discovery and filed no dispositive motions. They did file motions in limine, which the Court granted in part and denied in part. [ECF No. 50]. The Government did not contest liability and the case proceeded to a two-day bench trial on the issue of damages. [ECF Nos. 54; 55].
III. UNDISPUTED FACTUAL BACKGROUND
The facts were provided by joint stipulation unless otherwise noted. [ECF Nos. 44 at 2 (Plaintiff's Trial Brief); 46 at 3; 52 at 3-5 (List of Exhibits Admitted Without Objection)]. Because of this stipulation, the Court's discussion on these matters is the first portion of its findings of fact.
A. Car Accident
In the early evening of November 30, 2017, Plaintiff was driving northbound on Market Street in Oskaloosa, Iowa in his Chevy Silverado. As he drove by the Oskaloosa Post Office, a postal truck operated by Lisa Richardson pulled out of the USPS lot and hit the passenger's side of Plaintiff's truck. This impact caused Plaintiff to be slammed into the driver's side door and window of his vehicle. [ECF No. 66 at 151 (Garber - Direct)].
The police arrived on scene shortly afterwards. They issued Richardson a traffic citation for violating the Oskaloosa Code requirement that individuals stop and yield to oncoming traffic. Richardson was then taken to the hospital by ambulance with four broken ribs, a torn rotator cuff, and a concussion. Plaintiff's injuries were not obvious, which led him to go home and sleep rather than seek care. Over the following days, Plaintiff began to experience symptoms that would eventually require significant medical treatment. It is undisputed that the accident is the cause of the injuries. [ECF No. 52 at 2; 66 at 27].
Richardson did not contest the ticket and paid the fine on a later date.
B. Initial Medical Care
On December 1, 2017, Plaintiff went to the Mahaska Health Emergency Department due to headaches and neck pain. J.E. 1.2 at 1. During a physical examination, the observing physician identified numerous physiological issues. Id. The doctor noted a tender neck and inflammation. She identified loss of function and tenderness in the right shoulder. Id. Plaintiff was discharged with instructions to continue taking pain medications - ibuprofen and hydrocodone - to minimize his pain and ice the injuries. Id. at 3.
On December 2, 2018, Plaintiff went to Pella Regional Health's Emergency Department. J.E. 1.3. at 1. At the hospital, he explained his headache was much worse and he vomited several times. Id. He also complained of difficulties with neck extension and moving his neck from side to side. Id. An examination revealed that Plaintiff lacked a full range of motion ("ROM") and had neck tenderness. Id. Radiographic imaging showed Plaintiff had no issues with his head itself, but "moderate posterior spurring and at least [a] moderate posterior disc bulge" at the C5-C6 vertebrae. J.E. 1.4. at 1-4. He was treated with intravenous fentanyl, which "seemed to help quite a bit," and then told to follow up with his primary care doctor. J.E. 1.3.
On February 9, 2018, Plaintiff visited a new primary care doctor at Pella Regional Health Center. J.E. 1.5. He sought care because of headaches and neck pain, explaining that ibuprofen and an unnamed muscle relaxer have not alleviated the symptoms. Id. at 3. The physical exam revealed his ROM was "quite small due to hypertonicity of his paracervical spinal muscles." Id. The treating provider prescribed two separate medications - meloxicam and tizanidine - and sent a referral for physical therapy. Id.
According to the physical therapy records, Plaintiff suffered from "persistent neck and upper back pain, headaches, and restricted mobility." J.E. 1.6. at 3. He also had significant disturbances that reduced his sleep by three to five hours a night. Id.
On March 15, 2018, Plaintiff again visited a primary care provider because of headaches, neck pain, ringing in his ear, and tingling in his arm. J.E. 1.7. The physical examination revealed that he had "severe decreased range of motion with neck extension and flexion" and a "decreased range of motion with lateral rotation to the left." Id. at 2. This finding led the medical professional to refer Plaintiff for an MRI of his cervical spine and order that he continue taking tizanidine. Id. The provider wrote a new prescription for prednisone. Id.
C. First Neurosurgery and Post-Surgery Care
After his MRI, Plaintiff had his first meeting with a neurosurgical provider. J.E. 1.9. Dr. Abernathey identified Plaintiff's clinical symptoms of left arm and neck pain as consistent "with C6 radiculopathy secondary to left C5-C6 disc extrusion." Id. The provider explained a potential solution to the headaches and pain was an anterior cervical discectomy and fusion ("ACDF"). Id. Dr. Abernathey fully informed Plaintiff of the risks of the procedure, as well as the "risks of delaying treatment regarding permanency of his current deficits as well as [potential] worsening." Id. at 2. After additional discussion, Plaintiff decided to proceed with the surgery, which was completed on May 22, 2018. J.E. 1.11.
All medical experts agree that this surgery was necessary after conservative management of the matter, i.e., medications and physical therapy, did not resolve Plaintiff's symptoms.
On June 6, 2018, Plaintiff visited Dr. Abernathey for follow up with respect to the ACDF. J.E. 1.9, 1.13, and 1.14. A physical examination revealed the surgical wound was "healing well and his neurologic function is intact." J.E. 1.9 at 2. Likewise, radiographs demonstrated the fusion remained stable. J.E. 1.14. Plaintiff had "excellent relief of his pre-operative symptomatology." J.E. 1.9 at 2. Despite this apparent success, Plaintiff began to "report [ ] right neck pain opposite to his preoperative symptoms." Id. Dr. Abernathey prescribed Flexeril and Medrol in response. Id.
Over the next few weeks, Plaintiff consistently reached out to Dr. Abernathey about the pain. J.E. 1.9. at 2. On June 14, 2018, he called to inform Dr. Abernathey's office that "he had developed upper right extremity pain and the pain medication did not help." Id. On June 18, 2018, he had a follow-up appointment to review the MRI, which had "excellent decompression" and "minimal foraminal narrowing on the right at C5-C6." Id. Based on this MRI result and Plaintiff's symptoms, Dr. Abernathey did not recommend additional surgery. Id.
On July 3, 2018, Plaintiff had his preliminary evaluation for physical therapy. J.E. 1.15. As part of the discussion of symptoms, Plaintiff explained that he suffered from burning and sharp pain in his neck and shoulders, as well as numbness and tingling in his arm. Id. at 2. He stated he could "not sleep more than 1 to 2 hours at a time as he will wake up with his right arm hurting and numb quite frequently." Id. Objective tests noted Plaintiff was "very guarded with any cervical movements with his head." Id. Additional exercises revealed that the rotation in his right arm was limited by twenty-five percent and a left arm was reduced in functionality by thirty percent. Id. The therapist concluded that there was a "[d]efine need for continued services for advancement of activities as tolerated." Id.
On July 12, 2018, Plaintiff saw his primary care provider. J.E. 1.17. He informed the provider he had pain in his right arm that extended to his shoulder and medication was not helping. Id. at 2. He felt "shock like electrical pulse feelings down into his right forearm and down into his thumb, first, and second fingers." Id. During the physical exam, the provider noted that Plaintiff elicited a pain response during the Hawkins test, which flexes a patient's elbow and shoulder. Id. The provider prescribed a hydrocodone and acetaminophen mixture known as norco and referred Plaintiff to an orthopedist. Id. at 3.
D. Second Neurosurgery and Post-Surgery Care
On July 30, 2018, Plaintiff visited Dr. Abernathey to discuss potential neurosurgery given Plaintiff's continued pain and the lack of orthopedic explanation. J.E. 1.9. At the appointment, Dr. Abernathey noted that the MRI study demonstrated "right C5-6 neuroforaminal stenosis." Id. at 3. Neuroforaminal stenosis is when the right side of the spine is narrowed. P.E. No. 12 at 44 (Rosenthal Depo.). The symptoms and radiological findings led Plaintiff and Dr. Abernathey to discuss conservative treatment versus surgical decompression. J.E. 1.9. at 3. After discussion, Plaintiff stated he wanted to proceed with a "right C5-6 posterior decompression with partial hemilaminectomy and foraminotomy." Id. The procedure was completed successfully. J.E. 1.21.
This procedure has two parts. First, the hemilaminectomy requires a neurosurgeon to remove or reduce away some of the bone around the vertebrae, which are called the laminae, to reveal the foramen. P.E. 12 at 15. Second, a surgeon removes debris from the region and removes pressure from the affected area, which is a procedure called a foraminotomy. Id. at 16.
On August 17, 2018, Plaintiff had a post-surgery follow up appointment. J.E. 1.9. During the physical examination, Dr. Abernathey found the wound was well healed and his neurological function was intact. Id. Plaintiff stated he had excellent relief of his "pre-operative pain." Id. Based on these benefits, as well as the fact he could work without difficulty, Plaintiff kept future appointments minimal and declined physical therapy. Id.
On October 11, 2018, Plaintiff had a visit with his primary care provider in Pella. J.E. 1.23. At the visit, Plaintiff explained that he had neck pain on the left and right side and noticed a painful bulge near the cervical incision. Id. at 2. He stated that he struggled to find a comfortable position to sleep. Id. at 2. The examination revealed a "cystic structure just left of his previous surgical incision" and "decreased sensation to touch over the right side." Id. at 4. The provider identified cervical spine tenderness at the C5 and C6 vertebrae and new inflammation at the C4 vertebrae. Id. This led the provider to issue an urgent referral to a different neurosurgeon. Id. at 5.
On December 4, 2018, Plaintiff had his first appointment with this neurosurgeon, Dr. Piper. J.E. 1.25. Plaintiff reported he suffered from headaches, tinnitus, and dizziness, as well as neck pain and spasms. Id. at 2. Dr. Piper explained Plaintiff had "occipital neuralgia type symptoms" and they were "not likely to respond to any surgical intervention." Id. He further clarified that Plaintiff's continued smoking did not help the symptoms. Id.
On July 17, 2019, Plaintiff attended another primary care appointment. J.E. 1.27. He noted "daily headaches, neck pain, [and] right triceps / shoulder pain" and stated that his symptoms have not improved over time. Id. He commented that the ringing in his left ear has become unbearable. Id. Plaintiff felt a pins-and-needles sensation when the provider palpated in and around the healed surgical scar during the physical examination. Id. The provider noted a decreased range of motion for almost every type of movement. Id. at 2. These findings led the provider to prescribe Chantix for smoking cessation and complete a CT scan, as well as be seen by a neurological ear nose and throat ("ENT") professional at Iowa Ear Center. Id. at 3.
The CT scan revealed considerable changes to Plaintiff's spine. J.E. 1.29. It shows a "bony hypertrophic change at the C1-C2 articulation site" and some "hypertrophy." Id. It was spondylosis at the C3-C4 site and C4-C5 site and "persistent radiolucency in significant portions of the C5-C6 intervertebral space." Id.
On July 31, 2019, Plaintiff was evaluated at the Iowa Ear Center. J.E. 1.28. He identified "noted difficulty with hearing loss as well as tinnitus." Id. at 2. An otologic examination showed no obvious lesions or trauma. Id. at 3. Additional testing resulted in Plaintiff being diagnosed with sensorineural hearing loss in the left ear and left ear tinnitus due to a left-side labyrinthine concussion. Id. at 4-5. Given the nature of injury, the provider concluded Plaintiff should "expect hearing loss to persist" as well as "some degree of tinnitus." Id.
On September 17, 2019, another CT scan was completed of Plaintiff's spine and revealed significant changes. J.E. 1.29. The scan showed a "bony hypertrophic change at the C1-C2 articulation site." Id. It found spondylosis at the C3-C4 and C4-C5 vertebrae. Id. There was "persistent radiolucency in significant portions of the C5-C6 intervertebral space" on the scan. Id. Most importantly, the scan revealed a "new and progressive right paracentral disc protrusion at the C6-C7 level with associated lateral recess stenosis." Id.
On October 4, 2019, Plaintiff was evaluated by Iowa Clinic's pain management program. J.E. 1.31. In his initial report, he explained that he had arm weakness, numbness, and tingling, as well as off-and-on burning sensations. Id. at 1-2. The physical examination revealed no additional bumps on the neck or issues with the muscular system. Id. at 3. This led the treating physician to diagnose him with right side cervical radiculitis. Id. at 3-4. The provider gave him an epidural steroid injection ("ESI"), which he had declined previously. Id. at 4.
On November 15, 2019, Plaintiff had his first appointment at MercyOne's Ruan Neurology Care office. J.E. 1.33. At the appointment, Plaintiff described his headaches, which are posterior cervical and occipital in nature, and how the ESI did not provide relief. Id. at 1. The pain caused occasional nausea and vomiting. Id. An examination again noted Plaintiff had a decreased ROM in his cervical spine and the "occipital notch" was tender. Id. at 2. These findings led the provider to conclude that he has "cervicogenic headaches and perhaps left occipital neuralgia." Id. at 3.
On February 20, 2020, Plaintiff had a follow up appointment with Dr. Piper at the Iowa Clinic. J.E. 1.34. He continued to complain of loss of hearing, ringing in his ears, headaches, neck pain, tingling, and loss of sensation. Id. at 2. A complete physical examination revealed no issues. J.E. 1.35 at 2. The recent CT scan showed Plaintiff had solid fusion from the ACDF, which meant there were no additional services the clinic could provide for him. Id. Dr. Piper referred Plaintiff to the pain clinic to have an occipital nerve block or trigger point injection. Id. at 3.
On March 4, 2020, Plaintiff received his first nerve blocks and trigger point injections. See J.E. 1.37. These appear to have provided some pain relief. J.E. 1.38. He received additional nerve blocks on November 30, 2020, which provided relief for two to three months. J.E. 1.41. However, the medication wore off and the daily radiating headaches returned. Id. Plaintiff had another set of nerve blocks on June 7, 2021 and they again relieved his symptoms. J.E. 1.44, 1.45.
IV. FINDINGS OF FACT
The parties disagree on three issues. The first is Plaintiff's life expectancy. The second is how often Plaintiff would need treatments, specifically nerve blocks and radiofrequency ablations ("RFAs"), for the remainder of his life. The third is the cost of the procedures.
A. Life Expectancy
Under the FTCA, procedural issues are analyzed under federal law. Michels v. United States, 31 F.3d 686, 687 (8th Cir. 1994). Substantive issues are decided under state law. Sorace v. United States, 788 F.3d 758, 763 (8th Cir. 2015) (citing 28 U.S.C. § 1346(b)(1)).
Plaintiff asks the Court to find his life expectancy is thirty years based on the standard life expectancy table by the United States Center for Disease Control ("CDC"). [ECF No. 70 at 13]. The Government responds that Plaintiff's life expectancy is twenty-three and one-half years based on his heavy smoking. [ECF No. 69 at 18-19]. Upon consideration of the evidence, the Court concludes that Plaintiff's life expectancy is twenty-seven years.
i. Relevant Law
Life expectancy is a fundamental concept in personal injury actions because it predicts how much longer a Plaintiff may live. Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 662 (Iowa 1969). A court may lower damages awarded if a plaintiff would not live beyond a certain date. Ehlinger v. State, 237 N.W.2d 784, 792 (Iowa 1976). A shortened life expectancy "may be used to reduce damages for loss of earning capacity, future pain and suffering, and future nursing and medical expenses." Beeman v. Manville Corp. Asbestos Disease Comp. Fund, 496 N.W.2d 247, 257 (Iowa 1993) (citing Ehlinger, 237 N.W.2d at 792) (emphasis in original). Iowa factfinders rely on mortality tables to calculate life expectancy. Schmitt v. Clayton Cnty., 284 N.W.2d 186, 190 (Iowa 1979). A factfinder may consider evidence of a plaintiff's "health, habits, occupation, and lifestyle" when calculating life expectancy. Iowa Civil Jury Instr. 200.37.
ii. Vital Statistics Report
The primary evidence on life expectancy is the CDC's National Vital Statistics Report ("Report"). J.E. 2. This table contains a cohort life table, which represents the expected lifespan of generations, and the period life table, which is the expected lifespan of people of ages and races at specific times. Id. at 1. Its main statistic is life expectancy, which is "the average number of years of life remaining for people who have reached a given age (X)." Id. at 2. According to a table in the Report, an average non-Hispanic white male at the age of fifty, which is the relevant demographic information for Plaintiff, would be expected to live an additional thirty years. Id.
The Report itself acknowledges that "[c]hanges in mortality by age and cause of death can have a major effect in life expectancy." J.E. 3 at 5. Specifically, mortality can be adjusted based on causes ranging from cancer, chronic respiratory disease, diabetes, heart disease, influenza, liver disease, pneumonia, and suicide. Id. The Report details how men have recently had an increase in life expectancy because of "decreases in mortality from cancer, heart disease, influenza and pneumonia, chronic lower respiratory diseases, and suicide." Id.
iii. Testimony at Trial
The Government's primary medical expert - Dr. Benjamin Bjerke - provided additional context on the impact of smoking on life expectancy. [ECF No. 66 at 21]. Specifically, he stated that websites such as lifeexpectancy.org use CDC information to calculate the life expectancy of individuals in certain classes, such as smokers. Id. at 40. Dr. Bjerke inputted data about smoking habits, which mirrored the information about Plaintiff's smoking behaviors, into the website. Id. Based on these inputs, the website calculated that a fifty-year old white male who smokes a half pack or more of cigarettes a day would be expected to live twenty-four and one-third years, while a similarly positioned individual who smokes a pack a day would be expected to live twenty-two and one-half years. Id. at 41. He explained that these findings matched what he would expect based on his professional experience. Id.
The websites are reliable, according to Dr. Bjerke, because they use CDC data for their calculations, which is the most reliable data available. [ECF No. 66 at 40]. Dr. Bjerke noted the websites produced numbers that would match traditional expectations of outcomes. Id.
Upon further examination, Dr. Bjerke explained the decrease in Plaintiff's life expectancy, roughly six years, can be attributed entirely to his smoking habits. [ECF No. 66 at 44]. In support of this calculation, Dr. Bjerke pointed to the numerous medical studies suggesting that heavy smokers can expect a ten-year decrease in their overall life expectancy. Id. In these studies, someone who began smoking in their early twenties and continued through the end of their life would likely lose the entire ten years, while Plaintiff was likely to lose six years of his life based on him smoking a pack of cigarettes a day. Id.
At this point, the Court asked Dr. Bjerke whether the life expectancy statistics he identified included both non-smokers and smokers in the average. [ECF No. 66 at 44]. Dr. Bjerke responded that the statistics incorporated both groups and that smokers comprise one-eighth of the population. Id. at 45. The Court asked Dr. Bjerke to clarify if this meant his calculation, which took an average that included smokers and implemented the whole penalty against them, provided a double count of the impact. Id. Dr. Bjerke explained the Court was correct and the life expectancy of a white man that does not smoke would be higher. Id.
iv. Discussion
The Vital Statistics tables and Dr. Bjerke's testimony are helpful in determining Plaintiff's life expectancy. According to the Vital Statistics table, an average fifty-year-old white male can expect to live nearly an additional thirty years. J.E. 4 at 3. Dr. Bjerke calculated the average life span of a heavy smoker in Plaintiff's situation to be between twenty-two and twenty-four years. [ECF No. 66 at 40]. Setting Plaintiff's life expectancy to twenty-four years would generally be the most appropriate considering the evidence before it.
However, there are a handful of issues with Dr. Bjerke's testimony that lead the Court to adjust towards the Plaintiff having a life expectancy of more than twenty-four years. First, as the Court noted at trial, Dr. Bjerke's calculations double penalize Plaintiff for being a smoker by virtue of using a statistic that includes smokers and subtracting the entire six-year period as loss of life due to smoking. [ECF No. 66 at 45]. Second, Dr. Bjerke testified the whole penalty would apply if Plaintiff had smoked the entirety of his adult life. Id. at 44. The record demonstrates Plaintiff has smoked for many years, but much less than the thirty years that would trigger the entire penalty. J.E. 1.19, 1.34 (stating that he has smoked for twenty years). These convince the Court that adding three years to twenty-four years is appropriate. Accordingly, Plaintiff's life expectancy is twenty-seven years for the purposes of this order.
B. Frequency of Procedures and Treatments
The parties agree Plaintiff will need three types of care in the future: x-rays, occipital nerve blocks, and RFAs. [ECF Nos. 69 at 22; 70 at 14]. They disagree on how often Plaintiff will need the occipital injections and RFAs. Id. The Court discusses each treatment below.
The parties agree Plaintiff will need an annual series of x-rays. [ECF Nos. 69 at 23; 70 at 14]. Medical evidence fully supports this conclusion. [ECF No. 66 at 55 (Bjerke Direct)].
i. Occipital Nerve Blocks
Plaintiff maintains that he will need occipital injections, which reduce the frequency and severity of his headaches, approximately two and three times a year. [ECF No. 70 at 14 (discussing Dr. Segal Depo.)]. The Government alleges Plaintiff will need occipital injections once a year. [ECF Nos. 66 at 57; 69 at 22]. For the reasons discussed in detail below, the Court finds that Plaintiff will need occipital nerve blocks twice a year.
Occipital nerves are at the base of the skull. [ECF No. 66 at 57]. These sensory nerves provide feedback about "pain, temperature, and light touch sensation." Id. A nerve block or nerve injection - the terms are used interchangeably - serves to administer "a combination of numbing medication and steroid injections around the greater occipital nerve as it leaves the spinal area and courses up the back of the skull." P.E. 11 at 33. This procedure is typically done on both the left and the right side of the base of the skull and provides relief for occipital neuralgia type symptoms. [ECF No. 66 at 57].
Plaintiff had his first nerve block on November 30, 2020 and had relief of his symptoms for three months. J.E. 1.41. When his symptoms returned, he received another nerve block on May 17, 2021. J.E. 1.43. A medial branch block was administered in preparation for the RFA on June 7, 2021. J.E. 1.44. The series of blocks provided him thirty-five percent relief of the symptoms initially but increased to sixty percent over the next few days. J.E. 1.45. Plaintiff described the blocks as "wonderful" because they meant he could "go about my day and actually do something" while not being in "pain." [ECF No. 66 at 174].
As noted above, Plaintiff is seeking damages for at least two nerve blocks per year while the Government asserts Plaintiff should be awarded one nerve block per year. [ECF Nos. 69 at 22; 70 at 14]. Unfortunately, there is no objective manner to measure the "correct" number of blocks that should be awarded because the science is inexact. [ECF No. 66 at 59]. This leaves the Court in the position of trying to assign a concrete award based on an inherently "subjective number." Id. Upon review, the recommendations of Plaintiff's medical experts, as well as Plaintiff's testimony on the subjective benefits, the Court concludes the appropriate number of occipital nerve blocks is two per year.
ii. Radiofrequency Ablations
Plaintiff asserts he will need annual RFAs to manage his condition. [ECF No. 70 at 14]. The Government contends Plaintiff should receive an RFA every two years. [ECF No. 69 at 21]. For the reasons discussed in detail below, the Court finds that Plaintiff will need an annual RFA.
The neck contains facets in the spine. P.E. 12 at 11 (Rosenthal Depo.). These facets allow the spine to glide in a manner that allows a range of motion. Id. When damage happens to these joints, an individual suffers from pain because motion irritates the nerves. [ECF No. 66 at 48]. To remedy this issue, medical providers inject a general numbing medication to give pain relief. Id. In many cases, an individual's pain is not sufficiently treated by the general numbing medication, so they receive medial branch blocks that stop nerve function. Id. If an individual receives relief from the medial branch blocks, they often receive RFAs. P.E. at 11 at 34. RFAs are a process by which a provider heats up a probe and burns away the problematic nerve to inhibit pain. [ECF No. 66 at 47].
This process is not a permanent fix because the nerves grow back. [ECF No. 66 at 48]. It is disputed whether RFAs have a cumulative effect, i.e., after repetition of the procedure the nerves are permanently deadened, or a singular effect, i.e., the nerves grow back without fail. Compare P.E. 11 at 35 and [ECF No. 66 at 48]. Dr. Bjerke maintains the RFAs have a cumulative effect, which means the nerves are permanently deadened and the needed frequency of RFAs decreases. [ECF No. 66 at 48]. Meanwhile, Dr. Segal explains RFAs are typically provided between once or twice a year because the nerves continue to grow back. P.E. 11 at 35.
Upon review of the testimonies, the Court finds that Plaintiff will need an RFA every year. This is because the Court finds Dr. Segal's testimony on the frequency and necessity of the RFAs convincing. When taken with its previous finding that Plaintiff has a life expectancy of twenty-seven years, the Court awards Plaintiff twenty-seven RFAs.
C. Cost of Procedures and Treatments
Plaintiff claims the cost of the necessary future procedures and treatments are $400 per x-ray series, $600 per occipital nerve injections, and between $5,000 and $10,000 for an RFA. [ECF No. 70 at 14]. The Government responds that the cost is significantly lower, contending Plaintiff should receive $28 per x-ray series, $287 per occipital nerve injection, and between $1,428 and $3,035 per RFA. [ECF No. 69 at 23]. As discussed below, the Court finds the prices are $400 per x-ray series, $550 per occipital nerve injection series, and $3,035 per RFA.
i. Relevant Law
A tortfeasor in Iowa has an "obligation to make full restitution for the injuries caused by [its] negligence." Pexa v. Auto Owners Ins. Co., 686 N.W.2d 150, 156 (Iowa 2004). Its liability may not be reduced because Plaintiff recovers from a different source. Schonberger v. Roberts, 456 N.W.2d 201, 202 (Iowa 1990) ("Under the collateral source rule a tortfeasor's obligation to make restitution . . . is undiminished by any compensation received by the party from a collateral source."). This applies to recovery from "insurance policies, employment benefits, gratuities, and social legislation benefits." Midland Mut. Life Ins. Co. v. Mercy Clinics, Inc., 579 N.W.2d 823, 828 (Iowa 1998) (citing Restatement (Second) of Torts § 920A cmt. c. (1979)). Courts must be wary of relying on future benefits from health insurance in damage calculations because coverage for services, as well as an individual's continued enrollment in a program, are often speculative. Stanley v. State, 197 N.W.2d 599, 607 (Iowa 1972).
ii. Cost of X-Rays
The materials in the record provide a range of potential costs for x-rays. Dr. Bjerke testified he used a website known as fairhealth.org to determine the price, which he calculated by assuming an "outpatient setting" and Plaintiff having health insurance. [ECF No. 66 at 56]. Based on these assumptions, Dr. Bjerke stated Plaintiff would expect to pay $28 per series, which would be solely for the series of x-rays. Id. This testimony is supported, in part, by Plaintiff's previous bills for a four-piece cervical x-ray and single view x-ray, which totaled $61. P.E. 6 at 5. The Government asserts the price of an office visit should not be included, but if it is, the amount is minimal. [ECF No. 69 at 24].
Plaintiff provides the testimony of Dr. Segal, who explained that x-rays cost an individual who does not have insurance between $200 and $600 per series. P.E. 11 at 31. This cost does not explain what portion of the fees are for the x-ray themselves versus the cost of the doctor, as well as potentially a separate radiologist. Id. Given the wide variance between Plaintiff's expert and the Government's expert, the Court believes Dr. Segal's amount represents the cost of the x-rays as well as review by a medical professional.
Considering the evidence, the Court concludes the appropriate award for an x-ray, inclusive of the costs for review by a provider and a radiologist, is $400 per series. This amount accounts for the fact that x-rays are useless without a provider's review. [ECF No. 66 at 117]. This is consistent with Iowa law, which requires that the Court award the entire cost of the medical service regardless of insurance status. Stanley, 197 N.W.2d at 607.
iii. Cost of Occipital Nerve Injections
The record contains conflicting information on the cost of occipital nerve injections. Dr. Patel charged Plaintiff $344.00 for his nerve injections and $133.00 for dexamethasone, which is the injected drug. P.E. 6 at 36. This provides a total cost of $476.00. P.E. 6 at 36. Dr. Bjerke testified that Iowa data shows a cost of $287 for the procedure without insurance. [ECF No. 66 at 60]. However, he was unsure whether this cost was for nerve blocks on a single side of a skull or both sides. Id. Dr. Segal explained the cost of these procedures can range from $200 to $800 per visit depending on the specific circumstances of the case. P.E. 11 at 33-34.
Upon consideration of the materials, the Court awards $550 per session of occipital nerve injections. This amount was reached by balancing the cost of Dr. Patel's price, the uncertainty Dr. Bjerke's number, and Dr. Segal's credible explanation based on his professional experience.
iv. Cost of RFAs
The evidence in the record on the cost of RFAs varies widely. Dr. Patel's practice charges patients without insurance $1,680 per RFA and provides a fifteen percent cash discount. J.E. 1.45. This yields a cost of $1,428 per RFA. Id. Dr. Bjerke's research, which consisted of obtaining the price of RFAs charged by Iowa providers through various websites, yielded $3,035 per RFA. [ECF No. 66 at 49-50]. These numbers matched what Dr. Bjerke experienced in his practice. Id. at 50. Dr. Segal explained RFAs cost between $5,000 and $10,000 per procedure based on experience. P.E. at 35-36. He did not provide data or an explanation to support this conclusion. Id.
After review of the materials, the Court credits the testimony of Dr. Bjerke on this matter. Dr. Bjerke provided a wide range of Iowa-specific data in his testimony, which was helpful and credible. Accordingly, the Court finds that RFAs cost $3,035 per procedure.
V. DISCUSSION OF DAMAGES
The parties agree the Court must address six categories of damages, which are past medical expenses, future medical expenses, pain and suffering, future pain and suffering, past loss of function, and future loss of function. [ECF Nos. 69 at 20-43; 70 at 20-28]. In addition, the parties contest whether the Court should reduce its damages award based on a failure to mitigate defense. Defendant argues Plaintiff failed to mitigate his damages, requiring a reduction in his total award. Plaintiff rejects the contention that he failed to reasonably mitigate his damages.
A. Past Medical Expenses
Eligibility of past medical expenses for recovery is governed by Iowa Code § 622.4. Under that statute, recovery is limited to "amounts actually paid to satisfy the bills that have been satisfied . . . and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied." Iowa Code § 622.4. Damages are limited by a reasonableness requirement, which only allows for submission of bills that are fairly related to the injuries caused by the tortious conduct. Pexa, 686 N.W.2d at 156-57.
The parties agree Plaintiff should receive $47,830.86 for past medical expenses. [ECF Nos. 69 at 22; 70 at 7]. This amount is supported by exhibits that contain Plaintiff's previously incurred expenses and both parties agree these treatments were medically necessary. P.E. 6-7. The Court awards the jointly stipulated amount of $47,830.86.
B. Future Medical Expenses
Plaintiff maintains $192,000 in future medical expenses should be awarded. [ECF No. 70 at 23]. The Government suggests the Court award between $24,381 and $47,665. [ECF No. 69 at 25]. The Court awards Plaintiff $122,445 in future medical expenses.
"To recover the cost of future medical treatment, a plaintiff must furnish substantial proof of necessity for future treatment and the cost thereof." Mossman v. Amana Soc'y, 494 N.W.2d 676, 679 (Iowa 1993) (citations omitted). "While a plaintiff does not have to accurately determine the cost of future medical expenses, there should be one or more qualified witnesses giving such an opinion upon which a jury may reasonably fix an allowance." Leet v. Burbridge, No. 03-0557, 2004 WL 573798, at *3 (Iowa Ct. App. Mar. 24, 2004) (citing Nesbit v. Myers, 576 N.W.2d 613, 614 (Iowa Ct. App. 1998)). This element can be met with expert testimony or by submission of past billing records to project reasonable future costs. Dock v. Pioneer Hi-Bred Int'l, Inc., No. 00-1106, 2001 WL 710118, at *2 (Iowa Ct. App. June 13, 2001).
The parties agree there is a one-hundred percent chance that Plaintiff will need three types of medical treatment - x-rays, occipital nerve blocks, and RFAs - for the remainder of his life. [ECF Nos. 69 at 22; 70 at 13]. They disagreed on life expectancy, how frequently Plaintiff would need the procedures and their prices, which the Court resolved in its finding of fact section. Based on its previous findings, the monetary awards are as follows: For future x-rays, Plaintiff will receive $10,800, which is reached by multiplying $400 by 27. On nerve blocks, the Court awards $29,700, which is found with the following equation: $550 x 2 x 27. Finally, $81,945 will be awarded for the RFAs, which is reached by multiplexing $3,035 by 27. When combined, this yields a total award of $122,445.
C. Past Pain and Suffering
Plaintiff requests the Court award $200 per day for each of the 1650 days between the crash and trial, which totals $330,000 in past pain and suffering. [ECF No. 70 at 25]. The Government does not provide an amount, instead asking the Court to exercise its independent judgment. [ECF No. 69 at 29-40]. It suggests that the Court should award nothing for mental anguish. Id. at 40. Upon consideration of the record, the Court awards $200,000 for Plaintiff's past pain and suffering.
A fact finder may not conclude medical treatment is necessary to relieve headaches and pain but award nothing for mental pain and suffering. Cowan v. Flannery, 461 N.W.2d 155, 160 (Iowa 1990) ("It is illogical to award past and future medical expense incurred to relieve headache, neck and back pain and then allow nothing for such physical and mental pain and suffering."). It is reversible error for a fact finder to provide such an award. Perry v. Brown, No. 02-0648, 2003 WL 1969204, at *2 (Iowa Ct. App. Apr. 30, 2003) (citation omitted).
"Physical pain and suffering includes bodily suffering, sensation, or discomfort." Estate of Pearson ex rel. Latta v. Interstate Power and Light Co., 700 N.W.2d 333, 347 (Iowa 2005) (citing Brant v. Bockholt, 532 N.W.2d 801, 804 (Iowa 1995)). "Mental pain and suffering includes mental anguish, anxiety, embarrassment, loss of enjoyment of life, a feeling of uselessness, or other emotional distress." Id. "Awards for pain and suffering are highly subjective" because "there is no precise or exact measuring stick for calculating general damages." Gonzalez v. United States, 681 F.3d 949, 953 (8th Cir. 2012) (quoting Morrissey v. Welsh Co., 821 F.2d 1294, 1301 (8th Cir. 1987)). Iowa's courts have cautioned the "amount of damages awarded for pain and suffering cannot be determined from evidence of value because there is no tangible or market value for such damages." Blume v. Auer, 576 N.W.2d 122, 126 (Iowa Ct. App. 1997) (citation omitted).
There is ample evidence to support a finding that Plaintiff suffered between the initial accident and trial. He visited doctors on a consistent basis because of the pain. During these visits, he rated his pain at an eight or above on a ten-point scale and noted how it interferes with his ability to sleep. He took naproxen, ibuprofen, norco, meloxicam, tizanidine, hydrocodone, and prednisone in a futile effort to lessen his neck pain and headaches. When conservative treatment did not work, he had two surgeries, which the medical experts agree were necessary. He developed stabbing pain, burning sensations, and other occipital neuralgia symptoms after the first surgery. Plaintiff experienced consistent pain until he received occipital nerve injections and RFAs, which were the first treatment outside of intravenous fentanyl to provide long lasting relief. Put bluntly, the record is clear that Plaintiff suffered significant anguish and pain.
There is some contrary evidence on the severity of Plaintiff's past pain and suffering. The pain was not so debilitating that Plaintiff presented a claim on loss of wages because he was unable to work. His pain also fluctuates in nature, which means he had relief at times after the surgeries and was completely overwhelmed at others. These weigh against a higher award.
Upon review, the Court believes $200,000 is appropriate. This acknowledges that Plaintiff had significant pain for years before trial which he was not able to reduce despite aggressive treatment, while also balancing evidence that suggests the severity of the pain fluctuates.
D. Future Pain and Suffering
Plaintiff suggests an award of $328,500 for future pain and suffering. [ECF No. 70 at 26]. The Government recommends an award above zero, but not much more. [ECF No. 69 at 43]. Considering the record, the Court will award $328,500 for Plaintiff's future pain and suffering.
"It is well known that a showing of reasonable medical certainty is a predicate for recovery for future physical consequences" including pain and suffering. Hoist v. Stapleton, No. 17-1270, 2018 WL 5292091, at *3 (Iowa Ct. App. Oct. 24, 2018) (quoting Wilber v. Owens-Corning Fiberglas Corp., 476 N.W.2d 74, 77 (Iowa 1991)). This requirement means expert testimony is "necessary to establish future physical pain and suffering." DeBurkarte v. Louvar, 393 N.W.2d 131, 140 (Iowa 1986). "Direct expert evidence is not essential to establish the future effects of an injury if the future pain and suffering can be inferred from the nature of the injury alone." Two Rivers Bank & Tr. v. Atanasova, 686 F.3d 554, 565 (8th Cir. 2012) (citing Kaltenheuser v. Sesker, 255 Iowa 110, 121 N.W.2d 672, 677 (1963)).
There are two additional rules for pain and suffering. First, "[w]hile the amount of future medical expenses may be a factor when calculating future pain and suffering . . . its importance is limited when the plaintiff will continue to suffer pain despite achieving the maximum level of recovery from the accident." Triplett v. McCourt Mfg. Corp., 742 N.W.2d 600, 603 (Iowa Ct. App. 2007). Second, "an award of damages for future pain and suffering must be reduced to present value." Shatzer v. Glob. Am. Cas. Co., 639 N.W.2d 1, 3-4 (Iowa 2001) (citing Iowa Code § 624.18(2)).
The experts agreed that Plaintiff will experience considerable pain for the remainder of his life. Dr. Segal explained whiplash injuries, much like the ones experienced by Plaintiff, "very commonly leave[ ] people with permanent neck pain and headaches." P.E. 11 at 24. The fact Plaintiff had two surgeries and still experiences pain is strongly indicative of the fact Plaintiff will have pain for the rest of his life. See J.E. 1.35 (Dr. Piper discussion about the fact no surgical options remained to address the pain), P.E. 11 at 24, P.E. 12 at 20 (Rosenthal commentary on how "if those were going to resolve we would have seen it by now."). Dr. Bjerke acknowledges that Plaintiff's injuries and pain are likely to be permanent. [ECF No. 66 at 103].
Given this record, Plaintiff has established with "reasonable medical certainty" that he will suffer from neck pain and headaches for the remainder of his life. His future pain symptoms will also mirror the symptoms he experienced in the months prior to the lawsuit. The record shows that these symptoms, while aided by the administration of occipital nerve blocks and RFAs, will persist even with treatment. Triplett, 742 N.W.2d at 603. Considering these conclusions, the Court believes an award of $328,500 in future pain and suffering is appropriate.
E. Past Loss of Function
Plaintiff seeks $330,000 in damages for his past loss of function. [ECF No. 70 at 29]. The Government maintains Plaintiff's loss of function award should be less than the pain and suffering award. [ECF No. 69 at 41 - 42]. The Court awards $166,500 for the reasons discussed below.
i. Relevant Law
"The element of loss of function of the body is broadly inclusive of various physical injuries." Brant, 532 N.W.2d at 804. Specifically, it refers to "the inability of a particular body part to function in a normal manner." Pexa, 686 N.W.2d at 163 (quoting Brant, 532 N.W.2d at 804-05). Function is "the special, normal, or proper action of any part or organ." Elick v. Garrett, No. 13-0285, 2013 WL 5962960, at *4 (Iowa Ct. App. Nov. 6, 2013) (quoting Dorland's Pocket Medical Dictionary 284 (22d ed. 1977)). When calculating loss of function, a factfinder must avoid an "award for loss of function [that] may duplicate the pain and suffering award." Delaney v. Bogs, No. 14-2150, 2015 WL 7075815, at *9 (Iowa Ct. App. Nov. 12, 2015).
ii. Loss of Spinal Function
A healthy cervical spine contains vertebrae, discs that aid with movement, a cord through which signals are passed, and a canal filled with spinous processes. P.E. 12 at 9. When it functions well, the spine allows a person to extend their body, flex muscles, and rotate in various directions. See J.E. 1.3-1.4 (discussing Plaintiff's decreased range of motion). In Plaintiff's case, his spine was damaged following the accident and he subsequently lost a significant portion of his range of motion ("ROM"). Id. He suffered from a decrease of sensation in his left arm and weakness in his upper extremities, as well as damage to his facet joints. J.E. 1.9.
These symptoms made him a candidate to receive an ACDF of his C5-C6 vertebrae. [ECF No. 66 at 28]. An ACDF uses screws and a metal plate to "fuse[ ] the spine together anteriorly." Id. at 74. The surgery effectively "lock[s] up the front of the spine" and immobilizes it. Id. This immobilization constitutes a loss of function for the purpose of calculating damages. Elick, 2013 WL 5962960, at *4 ("It naturally follows that if a portion of the cervical spine no longer moves, it is unable to function in a normal manner). This loss of function is sufficient to return a significant award in his favor even though the surgery remedied his changes in sensation and weakness. Id.
iii. Loss of Sleep
A healthy spine does not cause headaches, loss of sensation, neck pain, or upper extremity weakness. It does not interfere with an individual's ability to sleep. The record shows Plaintiff's spine injuries and symptoms interfered with his ability to sleep, often preventing him from sleeping more than a few hours each night. J.E. 1.5 (initial report of sleep disturbance), J.E. 1.6 (identifying that he suffered from three to five hours of sleeplessness due to spine issues). This interference caused him to list a short-term goal of physical therapy as being "able to sleep at least 3 hours at a time without being awakened due to neck pain or upper extremity symptoms." J.E. 1.15. He also identified a long-term goal of "be able to sleep at least 5 hours through the night without being awakened due to any neck pain or right upper extremity symptomatology." Id. This issue with sleep continued long after his injury. J.E. 1.18, 1.41. Plaintiff testified he suffers from sleep issues "almost every night" and this contributes to constant fatigue. [ECF Nos. 66 at 184; 67 at 10-11].
Sleep disturbances are frequently observed among individuals involved in car accidents. P.E. 12 at 22. A lack of sleep due to spinal injury decreases quality of life, notably through fatigue. [ECF No. 66 at 99]. Loss of sleep is considered an impairment in the medical community. P.E. 12 at 22. Accordingly, the Court believes an award for loss of function on this issue is appropriate.
iv. Loss of Hearing and Tinnitus
Plaintiff has extensive issues with his hearing. After the accident, Plaintiff reported ringing in his left ear, which is a problem called tinnitus. J.E. 1.3, 1.7. This symptom continued after the first and second surgeries. J.E. 1.27. He developed hearing loss after the second surgery. Id. These symptoms led Plaintiff to be evaluated at the Iowa Ear Center, where he was diagnosed with sensorineural hearing loss in the left ear and left ear tinnitus. J.E. 1.28 at 4-5. The provider concluded that Plaintiff should "expect hearing loss to persist" as well as "some degree of tinnitus." Id. Hearing issues constitute loss of function. See Greenfield v. Cincinnati Ins. Co., 737 N.W.2d 112, 122 (Iowa 2007) (loss of function covers the deprivation of one's full body and mind).
v. Summary
Plaintiff suffered loss of function related to the spinal fusion, lack of sleep, and hearing impairment, all of which continue to today. He had a deceased range of motion and loss of strength in his extremities, both of which were improved by surgery but were still present. An award of $166,500 for this extensive past loss of function is appropriate.
F. Future Loss of Function
Plaintiff requests $328,000 in damages for future loss of function. [ECF No. 70 at 28-29]. The Government responds that the future loss of function award should be slightly higher than the past loss of function award, but not much more, because Plaintiff's "ability to function is almost the same as what it was prior to his injury." [ECF No. 69 at 45]. For the reasons detailed below, the Court awards the whole $328,000 in future loss of function.
The reasons for the future loss of function damages award are both similar to and different from the past loss of function award. It is similar because many of the reasons for the past award - loss of spinal function due to fusion, sleeping issues, and loss of hearing - are primary bases for the future award due to their permanency. They are different, in part, because medical evidence shows that Plaintiff's function is likely to worsen over the rest of his life. P.E. 11 at 64 (Segal conversation on future treatments that Plaintiff might need in the future), P.E. 12 at 51 (Rosenthal discussion on how Plaintiff "is at substantial risk of worse function as he ages.").
This substantial risk of worse future function stems from the nature of the ACDF surgery. Dr. Bjerke explained that when a surgeon locks up a segment of the spine, it leads to "more stress" on the surrounding vertebrae. [ECF No. 66 at 101]. This causes "adjacent segment disease," i.e., nearby tissue starts to "wear out, become symptomatic, or even require another operation" because of the extra pressure. Id. Research shows that an individual with an ACDF has a roughly three percent chance per year of developing symptoms that require more aggressive treatments due to this stress. Id. These percents stack, which means an individual with a single vertebrae fusion has a twenty-five percent chance of developing more symptoms and loss of function over a decade. P.E. 12 at 19. This increases to even odds over twenty years. Id. at 52. Extrapolated to Plaintiff's twenty-seven-year life expectancy, this data suggests he has a seventy percent chance, if not more, of worsening symptoms that require significant intervention like a third surgery. Id.
Dr. Bjerke explained this clock begins on the date of the fusion surgery. [ECF No. 66 at 102-03]. Given that Plaintiff had the surgery in 2018, well before the twenty-seven-year life expectancy would begin to run, this may be an underestimate.
After review of the entire record, the Court concludes Plaintiff's future loss of function is substantial and should be compensated with an award of $328,000. This award considers the permanent nature of his loss of function and the substantial risk, well above the preponderance of the evidence standard, that his function will worsen during the remainder of his life.
G. Reduction for Failure to Mitigate
At trial, the Government asked the Court to lower Plaintiff's damages award based on his failure to complete physical therapy and continuing to smoke, i.e., a failure to mitigate. [ECF No. 67 at 85]. Plaintiff responds there is no evidence he was unreasonable in his conduct or suffered harm from his actions. [ECF No. 70 at 17]. The Court agrees with Plaintiff that the failure to mitigate affirmative defense fails and no reduction will be awarded.
i. Relevant Law
There are three elements of a failure to mitigate defense. First, there must be "substantial evidence that there was something that the plaintiff could do to mitigate his loss and that requiring the plaintiff to do so was reasonable." Greenwood v. Mitchell, 621 N.W.2d 200, 205 (Iowa 2001) (citation omitted). Second, "it must be shown that the plaintiff acted unreasonably in failing to undertake the mitigating activity." Id. (citing Iowa Code § 668.1(1)). Third, there must be "proof of a causal connection between the plaintiff's failure to mitigate and his damages." Id. (citing Iowa Code § 668.1(2)); Fuches v. S.E.S. Co., 459 N.W.2d 642, 643 (Iowa Ct. App. 1990) ("there must be a showing that such treatment would in fact have mitigated the damages."). A defendant carries the burden of proving each element. Vasconez v. Mills, 651 N.W.2d 48, 54 (Iowa 2002).
ii. Physical Therapy
There is evidence Plaintiff was repeatedly encouraged to participate in physical therapy. J.E. 1.5, 1.31. However, there is also evidence Plaintiff attempted physical therapy and received little relief. J.E. 1.9 at 1, 1.17 at 4. This failure is a significant reason why Plaintiff had the surgery. J.E. 1.9 (Dr. Abernathey note that conservative treatment did not help). Dr. Segal explained how physical therapy is "controversial" in these cases because it might give Plaintiff "temporary relief" but nothing permanent. P.E. 11 at 40. Dr. Bjerke agreed physical therapy was unlikely to relieve Plaintiff's need for either surgery because of "the degree of foraminal stenosis." [ECF No. 66 at 77-78]. This conclusion is also supported by an orthopedist who saw Plaintiff. J.E. 1.18.
Given this evidence, the Court cannot say Plaintiff was unreasonable in his conduct. He tried physical therapy and did not obtain a benefit, which medical providers and records support. There is no medical record or testimony that physical therapy would have relieved his symptoms. Therefore, the Government has not established its mitigation defense.
iii. Smoking
It is well understood smoking negatively impacts almost every function in the body, which causes shortened lifespans. [ECF No. 66 at 44]. In the context of spinal surgery, the largest harm from smoking is that fusion will not occur following an ACDF procedure. P.E. 11 at 59. It may also delay or prevent fusion. [ECF No. 66 at 125]. Smoking slows the rate of healing post-surgery and increases the likelihood of complications such as infection. Id. at 37. Continuous smoking presents a significant risk of subsidence, which is when the graft begins to subside and "reduce the space available for the nerve." P.E. 12 at 31. In short, an individual's smoking habits can have a significant impact on spinal surgery outcomes.
However, the record does not support a finding that the frequent negative outcomes came to pass in the instant case. It is undisputed that Plaintiff developed a solid fusion after the ACDF. P.E. 11 at 59. Plaintiff had excellent healing after both the ACDF and partial laminectomy plus foraminotomy. J.E. 1.9 at 2-3 (Dr. Abernathey notes on Plaintiff's post-operative recovery). He did not acquire any post-operative infections. [ECF No. 66 at 65]. There is no evidence to suggest Plaintiff's six months of smoking prior to the surgery was the cause of subsidence rather than his decade of smoking before the accident. The absence of negative outcomes caused by smoking leads the Court to conclude Plaintiff's smoking after the accident is not a contributing factor to his continued symptoms and need for additional treatments.
There is an additional causation issue with this contention. Benn v. Thomas, 512 N.W.2d 537, 539 (Iowa 1994) (citing Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976)). Specifically, Plaintiff's smoking prior to the accident may be the cause of the subsidence and weak bones rather than the six months of smoking prior to the surgery. In this case, where the USPS employee's conduct worsened Plaintiff's existing condition, the Government is responsible for the full extent of the injuries. Sleeth v. Louvar, 659 N.W.2d 210, 212 (Iowa 2003) (quoting Becker v. D & E Distrib. Co., 247 N.W.2d 727, 731 (Iowa 1976)); see also Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 577 (Iowa 1997) (discussing the impact of an eggshell plaintiff).
Based on these conclusions, Plaintiff has not established that Plaintiff failed to mitigate his damages by continuing to smoke. The request for a reduction is DENIED.
VI. CONCLUSION
For the reasons discussed above, the Court finds that the following award is appropriate for Plaintiff's case: $47,830 in past damages, $122,445 for future medical expenses, $200,000 for past pain and suffering, $328,500 for future pain and suffering, $166,500 for past loss of function, and $328,500 for future loss of function. As set forth above, Plaintiff is awarded a total of $1,193,775 as well as applicable interest.
IT IS SO ORDERED.