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Varney v. United States

United States District Court, D. Colorado

May 14, 2014

JAMES NELSON and ELIZABETH VARNEY, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

WILEY Y. DANIEL, Senior District Judge.

THIS MATTER came before the Court on a bench trial held on April 21-25, 2014. Trial was bifurcated on liability and damages. This trial was on damages only. I previously found in favor of the Plaintiffs on liability at the liability portion of the trial held in December 2013.

Plaintiffs James Nelson and Elizabeth Varney appeared and were represented by David P. Hersh and Steven G. Greenlee of the firm Burg Simpson Eldredge Hersh & Jardine, P.C. Defendant United States of America was represented by Jacob Licht-Steenfat and Marcy Cook of the United States Attorney's Office.

Having heard and considered the evidence, including stipulated facts, live witness testimony, deposition testimony, admitted exhibits submitted by the parties, and counsel's arguments, the Court now makes the following findings of fact, conclusions of law and order:

I. FINDINGS OF FACT

A. Prior Findings of Fact from Liability Trial Relevant to Damages

1. The Findings of Fact that are set forth in the Court's previous Findings of Fact, Conclusions of Law and Order dated February 6, 2014 ["February 6, 2014 Order"] are incorporated herein. Most relevant to the damages issues are the following facts previously found by the Court:

2. This case arose from a biking accident that occurred on an asphalt paved path ("the asphalt path" or "the path") on real property owned by the United States Air Force Academy ("Academy" or "USAFA") in Colorado Springs, Colorado. (February 6, 2014 Order, Undisputed Finding of Fact #1.)

3. The biking accident occurred on September 3, 2008. ( Id., Undisputed Finding of Fact #2.)

4. Mr. Nelson left his home in Colorado Springs, Colorado, at approximately 7:20-7:25 p.m. to go for the bicycle ride. ( Id., Additional Finding of Fact #2.)

5. Sometime after he left his house, Mr. Nelson encountered the sinkhole on the path, lost control of the bicycle, and sustained injuries. ( Id., Additional Finding of Fact #13.)

6. At the likely speed Mr. Nelson was riding at the time, and based on the likely route he would have taken, it would have taken him approximately 10 to 15 minutes to reach the sinkhole. Thus, Mr. Nelson would likely have encountered the sinkhole at approximately 7:30 p.m. to 7:40 p.m. ( Id., Additional Findings of Fact #14.)

7. James Nelson was found by a jogger near the asphalt path on the morning of September 4, 2008. James Nelson sustained severe injuries as a result of the bicycle accident. ( Id., Undisputed Findings of Fact #56.)

B. Additional Findings of Fact from the Damages Trial

1. Mr. Nelson was located at approximately 10:30 a.m. on September 4, 2008. The paramedics transported Mr. Nelson to Penrose Main Hospital by ambulance.

2. Mr. Nelson received emergency care, intensive critical care treatment, and rehabilitation treatment at Penrose Hospital.

3. Mr. Nelson remained hospitalized at Penrose Hospital for one month.

4. Among his many injuries and diagnoses identified at Penrose Hospital were: severe brain injury (with initial extremely low Glasgow Coma Scale scores consistent with a severe traumatic brain injury), severe lacerations throughout his face and eyelid, broken and missing teeth, fractured jaw, fractures on the right side of his face, vision loss, and acute respiratory failure requiring mechanical ventilation support.

5. Mr. Nelson was diagnosed at Penrose Hospital with a severe traumatic brain injury ["TBI"] with significant cognitive defects.

6. On October 3, 2008, his discharge diagnosis was: severe TBI (subarachnoid hemorrhage, petechial hemorrhages bilateral hemispheres, left thalamic and basal ganglia injury with smaller arachnoid hemorrhage/diffuse axonal injury), multiple facial fractures and mandibular fracture, diplopia (double vision), cognitive impairment, pain, right upper extremity weakness, constipation, gastrointestinal (GI) and deep vein thrombosis (DVT) risk, hypertension, hypothyroidism, dysphagia, leukocytosis, urinary tract infection-antibiotic course complete, resolved elevated temperature, PEG tube, facial abrasions, dental trauma and teeth fractures, and aspiration pneumonia (resolved).

7. Following his discharge from the hospital on October 3, 2008, Mr. Nelson required 24 hour supervision, including close supervision with sit-to-stand transfers, gait, community outings, and all activities of daily living (ADLs) due to safety concerns. While this was temporary, he required ongoing care and supervision by doctors, therapists, and family for months.

8. Mr. Nelson has received ongoing and continuing medical and rehabilitative treatment since September 4, 2008, by numerous physicians and other health care practitioners, many of whom provided testimony at the damages trial.

9. Mr. Nelson has suffered and continues to suffer a wide variety of injuries, symptoms, and problems as a result of the bicycle accident.

10. Mr. Nelson's most severe injuries for which he has received ongoing treatment are as follows:

a. Traumatic Brain Injury

b. Severe injury to Mr. Nelson's face and right eye-lid, resulting in loss of function and scarring

c. Vision Loss

d. Broken jaw and dental trauma

e. Endocrine system injury

Traumatic Brain Injury

11. According to the credible testimony presented by Plaintiffs' health care providers, including Dr. House, Dr. Helffenstein, Dr. Hipskind, Dr. Barrick and Dr. Machanic, as well as the testimony of Mr. Nelson and Ms. Varney, Mr. Nelson suffered a severe, permanent, TBI in the bicycle accident.

12. Mr. Nelson was diagnosed in the hospital with a subarachnoid hemorrhage, multiple areas of petechial hemorrhage in both hemispheres and in the left thalamus and basal ganglia. An MRI showed diffuse axonal injury, meaning there was nerve injury throughout the entire brain. The brain stem was also affected.

13. Mr. Nelson's TBI resulted in permanent organic changes to his brain, as further evidenced by Dr. Hipskind's SPECT scans. The SPECT scans showed that Mr. Nelson had objective findings of brain hypoperfusion (low blood flow) in the frontal, temporal, occipital, and cerebral lobes.

14. As a result of the severe TBI, Mr. Nelson has sustained significant and ongoing cognitive deficits and dysfunction. He has deficits in higher level executive functioning (organizational skills, the ability to abstract, the ability to strategize) and memory due to injury to the frontal lobe and the temporal lobe of the brain.

15. The neuropsychological testing conducted by Dr. Helffenstein in March 2010 and as updated through August 2013 as well as Dr. Machanic's neurological examination in October 2013 confirm Mr. Nelson's cognitive deficits and dysfunction. Based on the credible testimony of Dr. Helffenstein, Mr. Nelson has permanent deficits in visual sustained attention, and his attention and concentration comes and goes which Mr. Nelson cannot control. He also has permanent deficits in the speed of processing (how fast his brain is processing material) and in memory (how well he is able to retain the information he learns). Dr. Helffenstein testified that there was a good correlation between the deficits he found, which were temporal and frontal lobe issues, and the results of Dr. Hipskind's SPECT testing which showed low blood flow in those areas. Dr. Helffenstein also testified that Mr. Nelson has behavioral, mood, and personality changes. Similarly, Dr. Machanic testified that Mr. Nelson is not functioning at the level that is considered to be appropriate for an individual of his age and previous health.

16. While I recognize that Dr. Kenneally, a neuropsychologist retained by the United States, testified that Mr. Nelson was cognitively intact based on her testing, as she found that his cognition was in the average to above average range, I do not find her testimony particularly credible. She did not take into account Mr. Nelson's job responsibilities and functioning in a high level executive job prior to the accident in assessing the test results, as Dr. Helffenstein did. Moreover, she did not talk to Mr. Nelson's prior supervisor, Mr. DeGrasse, or his family and friends as to the level of his cognitive functioning before the accident. This is significant because Dr. Kenneally admitted that one of the limits of testing is that while it tells the tester how Mr. Nelson compares to others, it does not tell how he compared to himself before his injury. Dr. Kenneally also employed a much more limited battery of tests than Dr. Helffenstein, and did not administer the tests that he administered where the scores were impaired or below average. For example, she chose to administer memory tests that only had 30 minute delays. Dr. Helffenstein administered memory tests that had four hour delays.

17. Mr. Nelson has received significant and ongoing treatment for his brain injury, including cognitive rehabilitation, therapy, and medications.

18. According to the credible testimony of Dr. Helffenstein, Mr. Nelson reached maximum improvement from a neuropsychological standpoint approximately 18 months after the accident, or by March 2010. While there is evidence that recovery from a TBI can occur up to two years after the injury, both Drs. Helffenstein and Machanic testified credibly that there is little to any recovery after 18 months. No additional recovery is anticipated for Mr. Nelson at this time.

19. Mr. Nelson's TBI resulted in permanent cognitive deficits and dysfunction.

20. Mr. Nelson suffered retrograde amnesia to approximately a week before the accident. Mr. Nelson also suffered post-trauma memory loss, with his first memory occurring while he was in the hospital.

21. Mr. Nelson also testified that he has a continuing ringing sound in his ear which he believes is attributable to the TBI. I find this testimony credible.

22. The past treatment provided to Mr. Nelson and the future treatment recommendations given by his health care providers are all reasonable and necessary as a direct result of the bicycle accident.

Severe Injury to Mr. Nelson's Face and Right Eye-Lid, Resulting in Loss of Function and Scarring

23. According to the credible testimony presented by Plaintiffs' health care providers, including Dr. House, Dr. Pelton, Dr. Barrick, as well as the testimony of Mr. Nelson and Ms. Varney, Mr. Nelson suffered severe, permanent injury and disfigurement, including scarring, to his face and right eye-lid in the bicycle crash.

24. Mr. Nelson was treated for these acute injuries while in the hospital with complex facial laceration debridements and closures. He then received follow-up care by Dr. Pelton, an expert in ophthalmology and oculoplastics. In his first appointment in December 2008, Dr. Pelton found on examination lateral ectropion of the right lower lid and a dense scar lateral to the right lateral canthus, which pulled his lower lid down and caused the eye to not close all the way. Mr. Nelson's right eye did not mach his left eye. Dr. Pelton testified that the injuries were suggestive of trauma to the back of the head.

25. Mr. Nelson's injuries required ongoing treatment and care by Dr. Pelton, including keloid/steroid injections, surgery, and excision of the scar. The surgery was performed in March 2009 to try to get better closure of Mr. Nelson's right eye. Dr. Pelton testified that while the surgery was successful to some extent, Mr. Nelson was not returned to his pre-accident status.

26. Dr. Pelton's diagnosis as of November 2009 was paralytic/cicatricial right lower lid lateral ectropian.

27. The injury to Mr. Nelson's face and eye has caused abnormal functioning of his eye-lid. Dr. Pelton testified that even after the surgery, Mr. Nelson's right eye does not have complete closure because the lower lid does not come up all the way to meet the upper lid when Mr. Nelson blinks. Accordingly, the eye gets dry and irritated and makes tears, which is very uncomfortable. Consistent with this, Mr. Nelson testified that his right eye always feels irritated because his eye does not close all the way and thus does not get properly lubricated. When it is cold or windy Mr. Nelson's eye waters and it blurs his vision, impacting the activities he can do in these conditions.

28. The injury to Mr. Nelson's face and eye has caused an abnormal appearance.

29. No further treatment is suggested by Dr. Pelton, although he testified that Mr. Nelson will need medical attention for the rest of his life because his right eye is not at 100% capacity and will probably deteriorate over time. Dr. Pelton testified that at this time further surgery would not make things better, although Mr. Nelson may need additional surgery if things deteriorate. Dr. Pelton did state, however, in a letter dated December 11, 2009 (Ex. 73) that Mr. Nelson may decide to have surgery in the future to try to improve his lid position. That surgery would be at the election of Mr. Nelson and, according to Dr. Pelton, could improve the lid position but could not make the eye look like it was prior to the accident.

30. The credible testimony of Dr. Pelton demonstrates that Mr. Nelson will have permanent functional and appearance abnormalities for the rest of his life, due to the permanent tissue damage in that area.

31. The past treatment provided to Mr. Nelson and the future treatment given by his health care providers regarding Mr. Nelson's facial and are eye-lid trauma, dysfunction, and disfigurement, including scarring, are all reasonable and necessary as a direct result of the bicycle accident.

Vision Loss

32. According to the credible testimony presented by Plaintiffs' health care providers, including Dr. House, Dr. Wilson, Dr. Barrick, as well as the testimony of Mr. Nelson and Ms. Varney, Mr. Nelson suffered permanent vision loss as a result of the bicycle crash.

33. Mr. Nelson suffered and complained of vision problems following the bicycle crash. He was evaluated by Dr. Wilson, an expert optometrist with a focus/ specialty in neuro-optometric rehabilitation.

34. Dr. Wilson conducted testing on Mr. Nelson and found that Mr. Nelson sustained severe peripheral vision loss in the upper right-hand quadrant in both eyes as a result of the bicycle crash.

35. The visual loss in the upper right-hand quadrant in both eyes is significant and was caused by the brain injury Mr. Nelson sustained in the bicycle crash.

36. The vision loss sustained by Mr. Nelson likely has a detrimental effect on his daily living, including visual processing difficulties. Among other things, this impacts his ability to read and find words. This loss may also compromise Mr. Nelson's motor vehicle driving competency based on the testimony from Ms. Varney.

37. The visual loss in the upper right-hand quadrant in both of Mr. Nelson's eyes is a permanent loss caused by the bicycle crash.

38. The past treatment provided to Mr. Nelson and the future treatment recommendations by his treating health care providers regarding Mr. Nelson's vision losses are all reasonable and ...


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