Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 1 of 107

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

CRAIG DOBBS and PLAINTIFFS EILEEN DOBBS

v. Case No.: 4:20-cv-01192-LPR

UNITED STATES OF AMERICA DEFENDANT

MEMORANDUM OF DECISION

On October 7, 2020, Plaintiffs Craig and Eileen Dobbs filed a Complaint against the United

States of America under the Federal Tort Claims Act, alleging that Mr. Dobbs suffered a brain

hemorrhage as a result of negligent medical care by Dr. Diaa Bahgat.1 More specifically, the

Complaint alleges that: (1) during the laminectomy surgery performed by Dr. Bahgat, Mr. Dobbs

suffered a dural tear; and (2) Dr. Bahgat’s subsequent medical treatment of Mr. Dobbs—

particularly the placement of a drain near the dural tear site—was below the standard of care in

Arkansas and caused Mr. Dobbs to suffer a brain hemorrhage.2

The Court held a bench trial from November 29, 2022, through December 2, 2022.3 At

this trial, Plaintiffs pressed their right to monetary relief for the following categories of damages:

(1) Mr. Dobbs’s past and future physical pain and suffering; (2) his past and future mental pain

and anguish; (3) his past and future permanent physical impairment; (4) his past and future mental

impairment; (5) his past and future physical disfigurement; (6) his past and future medical, health

care, and attendant care expenses; (7) his out-of-pocket expenses; (8) his past and future loss of

1 See Compl. (Doc. 1) ¶¶ 6.1–7.2. 2 See id. At trial, the witnesses used the terms “dural tear” and “durotomy” interchangeably. For consistency, the Court will refer to the tear as a “dural tear.” 3 See Clerk’s Minutes (Docs. 37–39, 41). Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 2 of 107

enjoyment of life; (9) the loss of consortium with his wife; and (10) Mrs. Dobbs’s loss of

consortium with her husband.4

After the Plaintiffs rested, the Government made a Motion for Judgment on Partial

Findings under Federal Rule of Civil Procedure 52(c).5 Parts of that Motion were easy to address.

For example, the Government argued that the Plaintiffs had failed to introduce any evidence that

Dr. Bahgat (1) negligently caused the dural tear, and (2) negligently repaired the dural tear.6

Plaintiffs’ counsel effectively conceded the points. She explained that Plaintiffs were not making

a claim that Dr. Bahgat was negligent in making the dural tear.7 She also explained that they were

not alleging that the dural-tear repair itself was negligent, except to the extent that Dr. Bahgat

“negligently left a drain in place in the absence of a complete repair.”8 Accordingly, and without

objection, the Court granted the Government’s Motion for Judgment on Partial Findings on the

two very specific issues raised by the Government.9

Other parts of the Government’s Motion for Judgment on Partial Findings were not so easy.

For example, with respect to Plaintiffs’ claims concerning the placement of a drain, the

Government argued that there had been no evidence to suggest that the use of a drain in the

circumstances of this case fell below the standard of care in Arkansas.10 The Government also

4 See Compl. (Doc. 1) ¶¶ 8.1, 8.2. At the start of the trial, Mr. Dobbs withdrew his claim for loss of earning capacity. See Tr. of Bench Trial (Doc. 45) at 20:15–20. And Mrs. Dobbs withdrew her claims for negligent infliction of emotional distress and for loss of household services. See id. at 20:21–21:7. 5 See Tr. of Bench Trial (Doc. 47) at 652:20–22. 6 See id. at 658:7–659:19. The Government made a Motion for Judgment on Partial Findings with respect to a third issue as well: that there was no evidence Dr. Bahgat had improperly delayed taking Mr. Dobbs for a re-exploration surgery. See id. But the Government withdrew this part of its Motion when Plaintiffs’ counsel explained that Plaintiffs were not making any claim for relief related to the delay in the re-exploration surgery. See id. at 662:11–22, 663:6– 15. Instead, this was merely a fact pled, not an independent allegation of wrongdoing. See id. 7 See Tr. of Bench Trial (Doc. 47) at 659:23–24. 8 Compl. (Doc. 1) ¶ 6.12. See also Tr. of Bench Trial (Doc. 47) at 660:3–8. 9 See Tr. of Bench Trial (Doc. 47) at 662:9–10. 10 See Tr. of Bench Trial (Doc. 47) at 654:8–657:7.

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argued that there was not enough evidence to prove that the use of the drain was a “but-for” and

proximate cause of the brain hemorrhage.11 The Court denied those parts of the Motion because

the Court had heard evidence that could ultimately lead to the conclusion that Plaintiffs had proved

Dr. Bahgat’s decision to place the drain fell below the standard of care in Arkansas and caused the

injury at issue.12 At the conclusion of the trial, the Government again moved for Judgment on the

Findings on these issues.13 And the Court again denied the Government’s Motion.14

On December 19, 2022, the parties submitted post-trial proposed findings of fact and

conclusions of law. In accordance with Federal Rule of Civil Procedure 52(a), and after reviewing

the entire trial record, the Court makes the following findings of fact and conclusions of law as set

out below. As a threshold matter, however, the Court wishes to note several global points. First,

the Court makes all findings of fact in this case subject to the preponderance-of-the-evidence

standard.15 And Plaintiffs bear the burden of proof with respect to all findings. Second, the Court

notes that sometimes—but not always—it expressly discusses the evidence in the trial record that

is contrary to the Court’s ultimate finding. Whether or not the Court expressly discusses

conflicting or contrary evidence, the Court’s findings should be taken to imply that any such

conflicting evidence was overcome by the evidence supporting the particular fact found. Third, to

the extent the Court has erroneously designated any findings of fact as conclusions of law, they

11 See id. 12 See id. at 657:8–10. 13 See Tr. of Bench Trial (Doc. 48) at 885:6–11. 14 See id. at 885:17–18. 15 Although the Court may not always expressly state it, all medical opinions were given to a reasonable degree of medical certainty. The terms “certainty” and “probability” were used interchangeably at trial, but either term is appropriate and sufficient under Arkansas law. See Williamson v. Elrod,

,

(2002).

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should be deemed findings of fact.16 And any conclusions of law erroneously designated by the

Court as findings of fact shall be likewise deemed conclusions of law.17 Fourth, and finally, some

of the findings of fact (and maybe conclusions of law) in the liability section are relevant to the

issue of damages as well. The particular section of this Memorandum of Decision in which a

finding is made, or conclusion is drawn, does not affect the substance of this Memorandum of

Decision.

FINDINGS OF FACT – LIABILITY

1. During the bench trial, 11 witnesses provided testimony. Plaintiffs called

Dr. Christopher Taylor,18 Dr. Diaa Bahgat,19 Dr. Paul Moore,20 Dr. Arthur Joyce,21 Dr. Carl

16 See Ridings v. Maurice,

, 981 n.5 (W.D. Mo. 2020). 17 See

18 Dr. Taylor is the Vice Chairman of Clinical Outreach for UT Southwestern Medical Center’s Department of Neurosurgery. See Pls.’ Trial Ex. 28 at 1. He was called by the Plaintiffs to provide expert testimony about the neurosurgical standard of care and the cause of Mr. Dobbs’s brain injury. See generally Tr. of Bench Trial (Doc. 45) at 47:25–134:22. 19 Dr. Bahgat was a staff neurosurgeon for the Central Arkansas Veterans Healthcare System from December 2015 until October 2019. See Def.’s Trial Ex. 4 at 2. Dr. Bahgat was the surgeon who performed Mr. Dobbs’s October 9, 2018 laminectomy and his re-exploration repair surgery on October 15, 2018. See Tr. of Bench Trial (Doc. 45) at 164:3–12. Plaintiffs’ counsel treated Dr. Bahgat as an adverse party, and the Government did its direct examination of Dr. Bahgat as cross-examination. See

at 162:21–163:2. Under the Arkansas Medical Malpractice Act, “[n]o medical care provider shall be required to give expert opinion testimony against himself or herself as to any” standard of care or proximate cause opinions “at a trial.”

(3). 20 Dr. Moore is the Medical Director for Somnologix, Limited and specializes in neurology and sleep medicine. See Pls.’ Trial Ex. 26 at 1; Tr. of Bench Trial (Doc. 46) at 366:1–6. Dr. Moore was called by the Plaintiffs to provide expert testimony about Mr. Dobbs’s injury and how the injury affected Mr. Dobbs. See Tr. of Bench Trial (Doc. 46) at 330:1–364:4. Dr. Moore is not a neurosurgeon, and he testified that he is not qualified to render neurosurgical standard-of-care opinions. See

at 365:12–16. 21 Dr. Joyce is a neuropsychologist in private practice. See Pls.’ Trial Ex. 25 at 2. Dr. Joyce was called by the Plaintiffs to give expert testimony about a neuropsychological evaluation he gave to Mr. Dobbs and the type of care Mr. Dobbs would need throughout his life as a result of the brain hemorrhage. See generally Tr. of Bench Trial (Doc. 46) at 386:14–419:15.

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Hubbard,22 Victoria Powell,23 Dave Hussey,24 and Eileen Dobbs.25 The Government called

Dr. John Day26 and Dr. Margaret Tremwel.27

2. For purposes of liability, our story begins on October 9, 2018. That is when

Mr. Dobbs (a 61-year-old, retired United States Marine28) arrived at the Central Arkansas Veterans

Healthcare System for a scheduled laminectomy with Dr. Bahgat.29 Mr. Dobbs’s laminectomy

was “an L2 to S1 fusion and decompression.”30 In layman’s terms, Mr. Dobbs was getting spinal

surgery.

3. Once Mr. Dobbs was admitted to the hospital, Dr. Bahgat met with Mr. Dobbs to

examine and evaluate him.31 In what looks and reads like a boilerplate paragraph, Dr. Bahgat’s

22 Dr. Hubbard is an economist and retired business professor. See Pls.’ Trial Ex. 24 at 1. Dr. Hubbard was called by the Plaintiffs to provide expert testimony about the cost of a life care plan for Mr. Dobbs. See generally Tr. of Bench Trial (Doc. 46) at 432:5–438:19. 23 Ms. Powell is a nurse and certified life care planner. Pls.’ Trial Ex. 27 at 1. Ms. Powell was called by the Plaintiffs to provide expert testimony about a proposed life care plan she created for Mr. Dobbs. See generally Tr. of Bench Trial (Doc. 47) at 485:1–535:21. 24 Mr. Hussey lives next door to Mr. and Mrs. Dobbs in Cotter, Arkansas. See Tr. of Bench Trial (Doc. 47) at 561:11– 12. Mr. Hussey has known Mr. and Mrs. Dobbs since they moved next door to him in 2015. See

at 561:14–15. 25 Mrs. Dobbs is the wife of Mr. Dobbs and is a Plaintiff in this case. See Tr. of Bench Trial (Doc. 47) at 574:20; Compl. (Doc. 1) ¶ 8.2. 26 Dr. Day is a professor and Chairman of the Department of Neurosurgery at the University of Arkansas for Medical Sciences. See Def.’s Trial Ex. 2 at 1. Dr. Day was called by the Government to offer expert testimony about the neurological standard of care and cause of Mr. Dobbs’s brain hemorrhage. See generally Tr. of Bench Trial (Doc. 47) at 668:24–718:17. 27 Dr. Tremwel is a neurologist and Medical Director of the Comprehensive Stroke Center at Washington Regional Medical Center in Fayetteville, Arkansas. See Def.’s Trial Ex. 3 at 1; Tr. of Bench Trial (Doc. 48) at 821:14–19. Dr. Tremwel was called by the Government to provide expert testimony about Mr. Dobbs’s physical and neurological state post-hemorrhage. See generally Tr. of Bench Trial (Doc. 48) at 822:17–859:4. She also examined Mr. Dobbs and provided expert testimony about the results of that examination. See generally

28 See Tr. of Bench Trial (Doc. 45) at 54:11–12; Tr. of Bench Trial (Doc. 47) at 576:22. 29 See Pls.’ Trial Ex. 1 at 1578–79. Although the medical records typically refer to the surgery as some variation of an “L2-S1 decompression and fusion” surgery, multiple witnesses at trial referred to the procedure as a “laminectomy” or “laminectomy and fusion.” See, e.g., Tr. of Bench Trial (Doc. 45) at 164:9–12. Thus, the Court will simply refer to Mr. Dobbs’s procedure as either a laminectomy or a surgery throughout this Memorandum of Decision. 30 See Tr. of Bench Trial (Doc. 45) at 138:19–22. 31 See Pls.’ Trial Ex. 1 at 1575–79.

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pre-surgery notes reflect that “[t]he patient and/or family representative have been presented with

the risks, benefits, potential complications and alternatives to planned surgery and agree with the

planned procedure.”32 In these same notes, Dr. Bahgat also recorded that a history and physical

exam of Mr. Dobbs was performed on September 27, 2018, and, having “reviewed and assessed

the patient[,]” Dr. Bahgat determined “[t]here [had] been NO CHANGES since that exam.”33 The

Court finds Dr. Bahgat’s notes to be an accurate representation of his post-admission encounter

with Mr. Dobbs.

4. Dr. Bahgat testified at trial that he remembered having another “case to do” before

Mr. Dobbs’s laminectomy on October 9, 2018.34 Dr. Bahgat admitted that his memory of finishing

the earlier case and of seeing Mr. Dobbs before his laminectomy was “very vague.”35 Dr. Bahgat

could not remember what the earlier case was about.36 He could not remember what he had for

breakfast that morning.37 He could not remember the specifics of his drive to work.38 He could

not remember giving the consent forms to Mr. Dobbs or getting them back from him.39 As a

32 Id. at 1579. This was not the first time Mr. Dobbs had been presented with such information. At a July 2018 appointment, Dr. Bahgat discussed with Mr. Dobbs the potential risks of the surgery, as well as the potential success. See id. at 1614; Tr. of Bench Trial (Doc. 45) at 176:12–179:7. According to Dr. Bahgat’s July 2018 notes, he informed Mr. Dobbs that “[r]isks include but [are] not limited to weakness, paralysis, infection, hemorrhage, pulmonary embolism, increased pain, bowel and bladder problems[,] . . . injury to surrounding neurovascular structures, durotomy with [cerebrospinal fluid] leak . . . .” Pls.’ Trial Ex. 1 at 1614. But Dr. Bahgat testified at trial that he did not remember whether he specifically informed Mr. Dobbs about the risk of a brain hemorrhage. See Tr. of Bench Trial (Doc. 45) at 178:19–179:7. At first, Dr. Bahgat testified that he only told Mr. Dobbs about the risk of “stroke and bleeding in general.” Id. Dr. Bahgat later clarified at trial that he did not actually remember the specific conversation with Mr. Dobbs about the risks of the surgery. See Tr. of Bench Trial (Doc. 46) at 259:9–260:3. Instead, his recollection was “based on what [he] normally would do . . . .” Id. at 259:18. 33 Pls.’ Trial Ex. 1 at 1575. 34 Tr. of Bench Trial (Doc. 46) at 270:23. 35 Id. at 270:25. 36 See id. at 271:3–7. 37 See id. at 271:8–10. 38 See id. at 271:11–14. 39 See id. at 271:15–17. This was the second set of consent forms obtained from Mr. Dobbs. Because the original consent forms—which Mr. Dobbs had signed on an earlier date—were only valid for 30 days, Dr. Bahgat had to again

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general matter, the Court finds that Dr. Bahgat did not remember that day—which was more than

four years prior to trial—very well.

I. The Surgery and the Dural Tear

5. Mr. Dobbs’s laminectomy began at 11:42 on October 9, 2018, and finished at 16:19

the same day.40 Other people were in the room with Dr. Bahgat during the surgery (or portions of

the surgery), including an anesthesiologist (or anesthetist).41 However, none of these people were

called to testify by either party. Accordingly, the only three sources of direct evidence concerning

what occurred during the surgery are: (1) Dr. Bahgat’s post-operative report, (2) Dr. Bahgat’s trial

testimony, and (3) the anesthesiologist’s (or anesthetist’s) notes. And, as the Court will explain

below, the Court discounts a great deal of Dr. Bahgat’s trial testimony—when it is in tension with

Dr. Bahgat’s medical notes—because the Court finds that Dr. Bahgat’s memory of the day in

question is, at best, hazy.

6. Dr. Bahgat authored his post-operative report very shortly after he finished

Mr. Dobbs’s surgery.42 The post-operative report has several sections, including sections titled

Indication, Operative Findings, Adverse Events, and Procedure.43

7. In the Indication section, Dr. Bahgat recounted Mr. Dobbs’s medical history and

the reasons for surgery.44 Then, in the Operative Findings section, Dr. Bahgat explained that:

obtain Mr. Dobbs’s consent to proceed with the laminectomy on the morning of the procedure. See id. at 269:22– 270:4. 40 See Pls.’ Trial Ex. 1 at 1563. The records also show Mr. Dobbs’s anesthesia care began shortly before his surgery at 10:51 and ended at 16:38. See id. 41 See id. at 1987. 42 See id. at 1984–86. The record reflects that the post-operative report was entered at 16:33 on October 9, 2018, and signed by Dr. Bahgat at 18:17 the same day. See id. See also Tr. of Bench Trial (Doc. 45) at 188:20–22. 43 See Pls.’ Trial Ex. 1 at 1984–86. 44 See id. at 1984–85. The report incorrectly states that Mr. Dobbs was 55 years old at the time of the surgery. See id. at 1984. As the Court explained above, Mr. Dobbs was 61 years old at the time of the surgery. See, e.g., Tr. of Bench Trial (Doc. 45) at 54:11–12.

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Intraoperative navigation with the use of the O arm was used for placement of L2, L3[,] L4, L5, S1 pedicle screws as well as interbody cage[]at L2-3. Pre and postplacement spin was used to confirm adequate positioning of the implants. That was significant lateral recess stenosis and facet arthropathy and foraminal stenosis at L4-L5.45

8. In the Adverse Events section of Dr. Bahgat’s post-operative report, Dr. Bahgat

provided the following details about Mr. Dobbs’s dural tear:

Dural tear at right L2-3 t closed with onlay muscle and Duraseal EBL: 500 mL Counts: Complete at the end of the procedure Anesthesia: Gen. prone position Implants: Medtronic Solera system (L2 : Right side 5.5 x 45, left side splint 5 x 45, L3 bilateral 6.5 x 45, L4 6.5 x 45 mm screws, L5 6.5 x 45 right side 6.5 x 50 mm screws, S1 4.5x40mm screws -7 mm elevate cage at L2-3 and 10 mL of MAP3 putty.46

This is the entirety of Dr. Bahgat’s notes in the Adverse Events section of the post-operative

report.47

9. In the Procedure section of the post-operative report, Dr. Bahgat detailed how he

performed Mr. Dobbs’s laminectomy.48 These details included everything from identifying

Mr. Dobbs as the correct patient and marking the site for the incision, to “hand[ing]” Mr. Dobbs

“to anesthesia for extubation and recovery.”49 This section also included further reflections by Dr.

Bahgat about Mr. Dobbs’s dural tear.50 Dr. Bahgat’s notes recounted that:

45 See Pls.’ Trial Ex. 1 at 1985. 46 See id. 47 See id. 48 See id. at 1985–86. 49 Id. 50 See id. at 1986.

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[During] the cage placements [a] dural tear at the axilla was identified. This tear was not amenable to primary [repair] so a muscle graft was placed on top of which a thin piece of Gelfoam was placed.51 Along with the discussion in the Adverse Events section, this description is the extent of

Dr. Bahgat’s notes about Mr. Dobbs’s dural tear and the efforts taken to repair it.52

10. A dural tear is a tear in the dura mater, which is a “covering that encases the brain

and the spinal cord and contains spinal fluid[,]” specifically cerebrospinal fluid (CSF).53 A dural

tear is a known complication of spine surgery.54 As even the Plaintiffs’ expert witness (Dr. Taylor)

admits, the fact that a dural tear occurs during surgery does not mean the surgeon did something

wrong.55 Approximately five to seven percent of patients who undergo lumbar surgeries

experience dural tears.56 But only 1 in 10,000 spinal surgeries (or about 0.03 percent) result in the

patient experiencing an intracranial hemorrhage.57

11. The Court finds that Mr. Dobbs’s intraoperative dural tear occurred when

Dr. Bahgat “took out the disc material and then put the cage in.”58 The cage, which was “thick

and metal[,]” had to be hammered in.59 Mr. Dobbs suffered a dural tear when Dr. Bahgat was

hammering the cage in.60

51 Id. At trial, Dr. Bahgat testified that he cannot pronounce the letter “R” correctly when dictating his notes, “[s]o during is often put in [as] doing.” Tr. of Bench Trial (Doc. 45) at 189:13–16. The Court finds this is one of those instances where “doing” should read “during.” 52 See Pls.’ Trial Ex. 1 at 1984–86. 53 See Tr. of Bench Trial (Doc. 45) at 55:8–9. 54 See id. at 141:6–8. 55 See id. at 141:12–14. 56 See id. at 129:1–5. 57 See id. at 53:25–54:4; Tr. of Bench Trial (Doc. 47) at 712:21–713:2. The testimonial evidence is conflicting as to whether the 1 in 10,000 figure means one brain hemorrhage in 10,000 surgeries or one brain hemorrhage in 10,000 dural tears. This is not a conflict that requires resolution. In either scenario, the agreed consensus is that the vast majority of dural tears do not lead to a brain hemorrhage. 58 Tr. of Bench Trial (Doc. 46) at 276:18. 59 Id. at 276:19. 60 See id. at 276:22–23.

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12. When a patient loses CSF, the loss can cause his brain to “sag.”61 That’s because

one role of CSF is to help the brain float.62 The sag can cause veins in the brain to stretch and

occlude, which in turn can cause a brain hemorrhage.63

13. But not all losses of CSF cause brain sag. For brain sag to occur, a patient has to

lose enough CSF to cross some unknown threshold. As a rough and general matter, and holding

all things equal, the larger and more sudden the loss of CSF, the more likely it is to cause brain

sag (and, consequently, a brain hemorrhage).64 Conversely, a smaller and less sudden loss of CSF

is less likely to cause brain sag.

14. In this case, the Government contends that there was a large and immediate loss of

CSF associated with the intraoperative dural tear.65 The Government’s point is that this large loss

of CSF caused the brain to sag (and the consequent brain hemorrhage) on its own. If this is true,

then any loss of CSF associated with the placement of subfascial drains would not be a but-for or

proximate cause of Mr. Dobbs’s brain sag (and consequent brain hemorrhage). So, it is important

to determine whether the evidence shows a large and immediate loss of CSF associated with the

intraoperative dural tear.

61 See Tr. of Bench Trial (Doc. 45) at 93:11–12. 62 See Tr. of Bench Trial (Doc. 46) at 331:20–22. 63 See, e.g., Tr. of Bench Trial (Doc. 45) at 93:8–14. 64 See, e.g., id. at 209:11–18; Tr. of Bench Trial (Doc. 47) at 697:1–3. Dr. Day testified that, “[b]ecause of the initial gush of spinal fluid . . . [t]hat’s when the large, immediate loss occurs, sagging of the cerebellum, compromise of the veins bridging there and then also happened up above in this gentleman’s case, unfortunately.” Id. at 709:18–22. To the Court, this testimony suggests that an average loss of CSF at the time of an intraoperative dural tear (i.e., not a large gush) would likely not cause brain sag. Furthermore, the trial record reveals that the body contains approximately 300 milliliters of CSF and reproduces CSF at a rate of about 20 milliliters per hour. See Tr. of Bench Trial (Doc. 45) at 55:24–56:6, 56:23–57:2. Considering both of these things, the Court finds that an average loss of CSF from an intraoperative dural tear is unlikely to be enough to cause the brain to sag. That is consistent with the fact that only 1 in 10,000 spinal surgeries result in a brain hemorrhage even though far more result in dural tears. See, e.g., id. at 129:5–8. 65 See, e.g., Tr. of Bench Trial (Doc. 45) at 41:1–2. Throughout trial, the “gush” was variously qualified as “big,” “large,” or “sudden.” See, e.g., id. at 128:18–19, 191:6–7, 192:8.

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15. The evidence in favor of a large gush of CSF during the surgery comes principally

from Dr. Bahgat’s testimony. Dr. Bahgat testified that “the cut would have produced a lot of fluid,

a sudden gush.”66 He also testified that “there was definitely a gush.”67 And he testified that he

“vividly remember[ed] the tear” and the fact that “it gushed.”68

16. But Dr. Bahgat didn’t know how much CSF leaked from the dural tear.69 Indeed,

Dr. Bahgat testified that there was no way to specifically measure the CSF that leaks when there’s

a dural tear.70 And there was no way for him to reasonably guess how much came out.71

17. Dr. Bahgat also conceded at trial that he did not note the quantity of CSF in the

post-operative report.72 And he concedes that he never mentioned in his post-operative report (or

to Mrs. Dobbs after surgery) that there was a big, large, or otherwise abnormal amount of CSF that

leaked from the intraoperative dural tear.73 Concerning the absence of any reference to a gush of

CSF in the post-operative report, Dr. Bahgat testified that his notes were “not to describe, you

know, an event as a movie and give, you know, the surrounding atmosphere about what

happened[,]” and “it wouldn’t occur to [him] to describe like how much fluid there was or the

intensity at the time T [sic] didn’t seem like a big deal, because it happens all the time.”74

66 Id. at 192:7–8. 67 Id. at 192:24–25. 68 Tr. of Bench Trial (Doc. 46) at 284:9–12. 69 See Tr. of Bench Trial (Doc. 45) at 192:7–25. 70 See Tr. of Bench Trial (Doc. 46) at 290:24–25. 71 See id. at 291:1–6. 72 See Tr. of Bench Trial (Doc. 45) at 193:20–194:8. 73 See id. at 193:20–194:1; Tr. of Bench Trial (Doc. 47) at 588:18–20. Based on this testimony, the Court finds that the “EBL: 500 mL” notation in the post-operative report is not about this supposed “gush” of CSF. Pls.’ Trial Ex. 1 at 1985. 74 See Tr. of Bench Trial (Doc. 45) at 191:9–17.

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18. When asked by Plaintiffs’ counsel (in the context of Dr. Bahgat’s prior evaluations

of Mr. Dobbs and the corresponding medical records) whether, “if there were anything unusual,

you would note it in the medical record[,]” Dr. Bahgat responded, “If it was something that was,

you know, clearly, you know, a problem, yeah, we would have [sic] at least have to address it.” 75

19. One of the Plaintiffs’ expert witnesses, Dr. Taylor, testified that, if there was a large

CSF leak at the time of the dural tear, he (Dr. Taylor) would have documented it.76 One of the

Government’s expert witnesses, Dr. Day, testified that, despite no record of a “large gush” of CSF

in Dr. Bahgat’s post-operative report, Dr. Day believed there was a “large gush” at the time of the

dural tear because he has “seen it in surgery.”77 Dr. Day did not attempt quantify or otherwise

explain the possible volume of the gush.78

20. Considering paragraphs 12–19 above, the Court finds it more likely than not that

only an average amount of CSF immediately leaked from Mr. Dobbs’s intraoperative dural tear.

Dr. Bahgat couldn’t quantify the amount. Moreover, given his hazy recollections of other specifics

on that day, the Court does not believe Dr. Bahgat could accurately remember whether the

immediate leak was small, average, or large.79 And the mere fact that Dr. Day has seen large

gushes occur in other operations is not a basis to speculate that one occurred here. On the other

side of the ledger is the omission of any reference to a “gush” or an otherwise large amount of CSF

75 See id. at 171:1–5. 76 See id. at 128:18–24. 77 Tr. of Bench Trial (Doc. 47) at 725:20–726:4. 78 See id. 79 See supra ¶ 4.

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leakage in the post-operative report.80 And there is also the fact that Mrs. Dobbs was told right

after the surgery that everything went well; she was not told anything about a serious CSF leak.81

21. The Court understands Dr. Bahgat’s testimony that the post-operative report is not

a movie script. But if the dural tear resulted in an abnormally big or large gush of CSF, the Court

finds that Dr. Bahgat would have made note of that in the post-operative report that he authored

very shortly after Mr. Dobbs’s surgery concluded. This finding is consistent with Dr. Bahgat’s

comment that, if there was anything unusual or problematic, it would be documented in the medical

records.82 It is also consistent with Dr. Taylor’s expert testimony that, if there was a large CSF

leak at the time of the dural tear, Dr. Taylor would have documented such an occurrence.83 Taking

all the foregoing into account, Plaintiffs have proved that it is more likely than not that the

intraoperative CSF leak that immediately followed the dural tear was not large, but rather no more

than an average leak of CSF that would occur from the average dural tear.84

II. The Secondary Repair

22. When there is a dural tear, there are two methods by which a surgeon can repair

it.85 The first method is a primary repair.86 As Dr. Taylor explained, a primary repair entails using

a “suture” and “sewing the opening closed so that it is watertight.”87 When the dural tear is not

80 See Pls.’ Trial Ex. 1 at 1984–86. 81 See Tr. of Bench Trial (Doc. 47) at 588:18–20. 82 See Tr. of Bench Trial (Doc. 45) at 171:1–5. 83 See id. at 128:18–24. 84 The Court understands that the implication of its finding is that Dr. Bahgat’s testimony on the stand was inaccurate. But the Court wishes to emphasize two points. First, this does not mean that Dr. Bahgat was lying. It only means that there is a greater than 50 percent likelihood that he was remembering things incorrectly. Second, because the Court is only finding facts on a more-likely-than-not standard, there is a fair (but less than 50 percent) chance that Dr. Bahgat was actually testifying accurately. 85 See Tr. of Bench Trial (Doc. 45) at 62:24–63:2, 64:13–65:1. 86 Id. at 63:3–5. 87 See id. at 62:24–63:2.

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amenable to a primary repair, the surgeon must attempt a secondary repair.88 As Dr. Taylor

explained, a secondary repair generally consists of using muscle, fascia, Gelfoam, or dural sealants

to “cover the hole . . . long enough for the dura to heal.”89 A secondary repair is weaker than a

primary repair.90 This is because, among other reasons, the tear is not sutured closed.91 As

Dr. Taylor and Dr. Day agree, there can be a CSF leak after either type of repair.92 Logic, of

course, suggests that there is greater risk of a CSF leak with the secondary repair as opposed to the

primary repair. And there was credible testimony to support this finding.93 Nonetheless, a

secondary repair can be considered watertight if the seal passes one of the tests described below.94

23. Because of the location of Mr. Dobbs’s dural tear, Dr. Bahgat was unable to do a

primary repair.95 As a result, Dr. Bahgat attempted a secondary repair “with onlay muscle and

Duraseal”—more specifically, “a muscle graft was placed on top of which a thin piece of Gelfoam

was placed.”96

88 See id. at 62:24–63:2, 64:13–65:14. 89 See id. at 64:13–65:1. 90 See id. at 65:12–14. 91 See id. at 62:22–65:20. 92 See id. at 144:20–22; Tr. of Bench Trial (Doc. 47) at 684:2–21. 93 See Tr. of Bench Trial (Doc. 45) at 74:22–75:13, 196:14–23. 94 See Tr. of Bench Trial (Doc. 47) at 683:24–684:1. 95 See Pls.’ Trial Ex. 1 at 1986; Tr. of Bench Trial (Doc. 46) at 278:25–279:19. 96 Pls.’ Trial Ex. 1 at 1985, 1986.

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24. After a surgeon has repaired a dural tear—whether by a primary or secondary

repair—the surgeon must confirm the seal is closed.97 The standard of care in Arkansas requires

such confirmation.98 And such confirmation can be accomplished in two ways.99

25. First, a surgeon can use the Valsalva maneuver.100 The Valsalva maneuver is done

by having the anesthesiologist (or anesthetist) “stop respiration and increase intrathoracic

pressure.”101 This “increase[s] the spinal fluid pressure, which is continuous, with the lumbar

spinal pressure.”102 When the pressure increases, CSF will come out of the tear if the seal is not

closed.103

26. The other way to determine whether a seal is closed is to elevate the patient’s head,

which also “increase[s] the pressure of the fluid in the lumbar spine . . . .”104 This is known as a

reverse Trendelenburg position.105

97 See Tr. of Bench Trial (Doc. 45) at 62:22–63:2, 63:25–64:2, 66:3–20; Tr. of Bench Trial (Doc. 47) at 764:7–17. 98 See Tr. of Bench Trial (Doc. 45) at 144:2–19. The standard of care for laminectomies does not vary from one locality to another. See id. at 50:9–12. The literature is the same throughout the United States, and none of the literature is unique to Arkansas or another region. See id. at 50:3–12. As Dr. Taylor testified, following the repair of an intraoperative dural tear, it is within the standard of care to perform a Valsalva maneuver to check and see if there is a persistent leak. See id. at 144:2–15. And if Dr. Bahgat had performed the Valsalva maneuver (or otherwise checked the sufficiency of the secondary repair’s seal), that would have been within the standard of care. See id. at 144:12–19. As Dr. Day similarly testified, if Dr. Bahgat had checked the sufficiency of the secondary repair’s seal, Dr. Bahgat’s surgical actions would have been within the standard of care. See Tr. of Bench Trial (Doc. 47) at 687:2– 8. 99 See Tr. of Bench Trial (Doc. 45) at 66:5. 100 See id. at 66:5–6. 101 Id. at 66:6–7. 102 Id. at 66:8–9. 103 See id. at 66:10–11. 104 See id. at 66:12–17. 105 See id. at 66:15.

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27. The post-operative report does not show that Dr. Bahgat used either method to

check whether the secondary repair was sufficiently sealed.106 The Government does not contend

that Dr. Bahgat used the reverse Trendelenburg position to determine whether the secondary repair

was sealed. Thus, a principal fact question in dispute is whether Dr. Bahgat performed the

Valsalva maneuver to test the sufficiency of the secondary repair’s seal.

28. At trial, Dr. Bahgat testified multiple times that he performed the Valsalva

maneuver after completing the secondary repair.107 In one instance, Dr. Bahgat and the Plaintiffs’

counsel engaged in the following colloquy:

Q: In the October 9th surgery, you do not document at all confirming that that tear was sealed, right?

A: Yes. But, again, this is—I’m describing one part of a big procedure. If and when I say, “this tear was not amiable to primary tear, so a muscle graft was placed on top, of which a thin piece of Gelfoam was placed,” it’s not like I just dumped it on there and went, oh, no. I actually did do at least the first part of the second procedure, because I have to tuck it around and make sure it’s secured in place, and then I have to put the Gelfoam on it in that location, make sure it’s tight, and I have to do a Valsalva to make sure it’s not leaking, because I’m not there to cheat on myself. I have no reason to cut corners and not do that stuff. And then at the end—

Q: Dr. Bahgat, let me stop you there. All I’m asking is whether in the first surgery operative note, you note that you looked for a leak. And you don’t note that, do you?

A: I don’t note it, but it happened.

Q: And you also—you mentioned the Valsalva maneuver. You say, you testified in deposition that you did a Valsalva maneuver. You remember that?

A: I did.

106 See Pls.’ Trial Ex. 1 at 1984–86. Nor do the anesthesiologist’s (or anesthetist’s) post-operative or intraoperative reports document that the Valsalva maneuver was performed. See id. at 44–65; Tr. of Bench Trial (Doc. 45) at 203:11– 204:2. 107 See Tr. of Bench Trial (Doc. 45) at 202:9–204:2; Tr. of Bench Trial (Doc. 46) at 279:23–280:3.

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Q: But in the operative note on October 9th, 2018, nowhere in there does the word “Valsalva maneuver” or phrase “Valsalva maneuver” appear, right?

A: Correct.

Q: And we talked about earlier in this trial how a Valsalva maneuver is done with the help of an anesthesiologist, right?

A: Yes.

Q: And that’s because the patient is unconscious. He can’t bear up/down, right?

A: Correct.

Q: And we have the anesthesiology notes in this case, right?

A: I assume so.

Q: And you didn’t find any note from your anesthesiologist that he helped you perform a Valsalva maneuver, right?

A: I don’t know if they ever document that. This is a 15-, 20-second thing that we just ask them, okay, hold his breath, do a Valsalva maneuver. When the pressure reach 30, let me know. They control the bag, elevate the patient’s pressure in his lung, we count to 10, I keep looking, there is no CSF, we release it, okay, let him breathe again.

Q: Well, Doctor—

A: I don’t know if they ever have documented it.

Q: What we can agree on is neither you, in your operative note, nor the anesthesiologist, in the anesthesiology notes, document a Valsalva maneuver, right?

A: I haven’t reviewed the anesthesiology notes, but if you say so.108

At another point in his testimony, Dr. Bahgat testified that “we . . . did the Valsalva, even though

I didn’t document it, because I have to make sure that he’s not leaking. . . . So at that point I was

satisfied that it wasn’t leaking . . . .”109

108 Tr. of Bench Trial (Doc. 45) at 202:3–204:2. 109 Tr. of Bench Trial (Doc. 46) at 279:23–280:3.

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29. When asked about his memory of performing the Valsalva maneuver, Dr. Bahgat

testified that:

I remember [asking] anesthesia to perform a Valsalva and make sure that it wasn’t leaking. It’s just a reflex thing we ask for. Like, let’s say when I do brain surgery. After I finish, I tell them do Valsalva to make sure that it doesn’t bleed at the surgical bed. When I do, like, neck surgeries, after I put the retractors, I ask them to deflate and inflate the cuff. I’ve never thought about dictating it, but it’s just a routine thing. I mean, I have no reason to, again—[.]110

30. Dr. Bahgat also testified that:

I remember doing it. I remember. Again, I only remember the vivid time of the tear, the repair and how tedious I tried to do it, and then was glad that when I put the muscle and the Gelfoam and did the Valsalva, that it wasn’t leaking. Because if it was leaking, it’s just more time, and then at some point you run out of options. You keep packing stuff, and then you don’t know what to do. . . . So I remember looking at it, asking if he do Valsalva, are you up to 30, or whatever number I said, 10 seconds. The dura started to pulsate, but I didn’t see spinal fluid coming out for the most part. . . . I mean, I don’t remember what number they said, if it was for 10 seconds or 15 seconds. But I remember looking at it. You know, you have this, like, snapshot memory of something pulsating, the muscle patch, the white Gelfoam on it and nothing coming out of it.111

31. The Court again discredits Dr. Bahgat’s testimony based on his hazy memories of

other parts of that day.112 There is no support in the evidence for why the performance of the

Valsalva maneuver would stand out in Dr. Bahgat’s memory. And the absence of it from his

post-operative report is significant evidence that it did not occur.

32. The Government’s standard-of-care expert, Dr. Day, testified that it was standard

practice for a surgeon to record the use of the Valsalva maneuver in his notes in the post-operative

report.113 The Court credits this testimony. Dr. Day qualified his testimony about this standard

110 Id. at 288:4–12. 111 Id. at 288:15–21, 289:1–10. 112 See id. at 259:24–260:3, 270:10–271:17. See also supra ¶ 4. 113 See Tr. of Bench Trial (Doc. 47) at 685:2–20.

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practice by explaining that “[k]ind of in every day [sic] reality have I seen where people didn’t do

it? Sure. Is it possible that I’ve forgotten to do that myself a time or two in my orientation? Yeah,

I’m not infallible with that. . . . [But] I think most of the time it should—it should be in there,

yeah.”114 When asked by Plaintiffs’ counsel: “if Dr. Bahgat had done a Valsalva maneuver, you’d

expect it to be documented,” Dr. Day responded, “I would hope so.”115 But Dr. Day also testified

that, while surgeons are expected to document relevant procedures undertaken in the operation,

“unfortunately there’s a difference between expectations and reality sometimes.”116

33. Dr. Day’s qualifications to his testimony do not help Dr. Bahgat much at all, given

the applicable preponderance-of-the-evidence standard. While it is possible that Dr. Bahgat

performed the Valsalva maneuver without documenting it, the Court finds that it is more likely

than not that Dr. Bahgat would have documented such a procedure had he performed it.

34. At trial, it came to light that Dr. Bahgat was once one of Dr. Day’s residents at the

University of Arkansas for Medical Sciences.117 Plaintiffs’ counsel elicited testimony from

Dr. Day about whether he teaches his residents to document performing a Valsalva maneuver.118

Dr. Day testified that he teaches his residents to document when they do a Valsalva maneuver, but

he could not specifically remember whether he had ever told Dr. Bahgat to do so.119 Based on this

testimony, the Court finds that it is more likely than not that Dr. Day did teach Dr. Bahgat to

114 Id. at 685:9–13, 19–20. 115 Id. at 731:22–24. 116 See id. at 733:23–734:1. 117 See id. at 721:15–20. Dr. Day testified that he “hardly see[s]” Dr. Bahgat since Dr. Bahgat left residency. Id. at 721:24–25. The Court does not find that Dr. Day’s past relationship with Dr. Bahgat undermines Dr. Day’s credibility in any way. 118 See id. at 729:19–21. 119 See id. at 729:19–24.

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document the use of the Valsalva maneuver. And this strengthens the Court’s foregoing finding

that Dr. Bahgat would have documented the maneuver if he had done it.

35. For the reasons explained in Paragraphs 27–34 above, the Court finds that Plaintiffs

have proved that it is more likely than not that Dr. Bahgat did not perform the Valsalva maneuver

or otherwise test the sufficiency of the secondary repair’s seal.120

III. The Use of a Drain

36. The post-operative report and Dr. Bahgat’s testimony reveal that Dr. Bahgat

installed a subfascial drain in Mr. Dobbs near the end of Mr. Dobbs’s laminectomy.121 There

appears, however, to be some confusion in the medical records about the precise type of drain

used.122 For example, in the post-operative report, Dr. Bahgat documents that he installed a

Jackson-Pratt (JP) drain.123 The use of a JP drain is also reflected in the nurse’s Progress Notes

from the day after surgery.124 But the Post Anesthesia Care Unit (“PACU”) records reflect, in part,

that the drain was a “Hemovac” drain.125 The PACU records also refer to the drain as a “[b]ulb

drain” in one instance.126

37. Testimony at trial went some way to clearing up the seemingly conflicting

documentary descriptions of the drain. At trial, Dr. Bahgat referred to the drain as a JP drain

120 The Court’s two observations made in note 84, supra, apply here as well. 121 See Pls.’ Trial Ex. 1 at 1986; Tr. of Bench Trial (Doc. 45) at 195:20–196:1. The Progress Notes refer to multiple drains. See, e.g., Pls.’ Trial Ex. 1 at 1560. However, the testimony suggests that only one drain was installed. See, e.g., Tr. of Bench Trial (Doc. 46) at 282:17, 287:7–8. The Court understands the medical records and testimony to mean that there was one drain, but there were two compartments into which the drain emptied. See, e.g., Pls.’ Trial Ex. 1 at 49. Ultimately, the number of drains doesn’t matter. As discussed below, placing any drain without ensuring a watertight seal of the dural tear falls below the standard of care in Arkansas. 122 Compare Pls.’ Trial Ex. 1 at 1545, 1986, with Pls.’ Trial Ex. 1 at 48, 49. 123 See id. at 1986. 124 See id. at 1545. 125 Id. at 48, 49. 126 Id. at 47.

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multiple times.127 He also described Mr. Dobbs’s drain as “a hand bulb . . . .”128 When asked if

“[t]here was a JP lumbar drain that was a Hemovac drain installed in the lumbar region of

Mr. Dobbs,” Dr. Taylor testified that:

JP and Hemovac are both—are two different types of drains that are used in surgery, and I think both of those words are used in the medical record. So it was one or the other. It’s irrelevant in terms of the function and in terms of the issues of this case, I think.129

Later in his examination, Dr. Taylor again testified that a JP drain and Hemovac drain are

essentially the same thing.130 Like Dr. Bahgat, Dr. Taylor refers to Mr. Dobbs’s drain as a bulb.131

Dr. Day similarly testified that “I don’t use the ones that are called Hemovacs, which a lot of

people—you know, people will use that word even for a bulb. They’re just using it like a general

term, but it’s not accurate.”132 He further explained that:

[U]nfortunately in the hospital, there are other examples of this where a—like a trade name of something is used kinda broadly, but it’s not—it’s not correct. So they could have written Hemovac, but it was the little bulb suction. So that doesn’t mean it was a Hemovac on suction. It means that somebody’s using that as a general term for the drain, wrongly unfortunately, but then they put that in the chart. Then it creates confusion.133

Considering all this testimony and the evidence admitted at trial, the Court finds that the drain

installed in Mr. Dobbs at the end of his surgery was, more likely than not, a JP drain with a bulb

suction function—not a high suction Hemovac drain. The one stray reference to the Hemovac

drain in the PACU records was, more likely than not, made in error.

127 See Tr. of Bench Trial (Doc. 45) at 212:6; Tr. of Bench Trial (Doc. 46) at 282:22. 128 Tr. of Bench Trial (Doc. 46) at 293:6. 129 Tr. of Bench Trial (Doc. 45) at 58:23–59:4. 130 Id. at 110:9–15. 131 See, e.g., id. at 69:23–70:4. 132 Tr. of Bench Trial (Doc. 47) at 692:4–7. 133 Id. at 765:19–766:1.

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38. It is still unclear from the trial record, however, whether the drain used was only

gravity-based, or also had a negative suction feature that could either be turned on or manually

employed. The Court need not resolve this factual dispute because the Court finds that it is below

the standard of care in Arkansas to use either type of drain when the sufficiency of the seal of the

dural tear has not been confirmed by way of the Valsalva maneuver of reverse Trendelenburg

position.134 The use of any drain near a dural-tear site without confirmation of a watertight seal of

the dural tear is below the standard of care because it allows, encourages, or promotes additional

leakage of CSF if the repaired dural tear is not sufficiently sealed.135

39. Dr. Bahgat testified that, near the end of surgery, he installed a JP drain in

Mr. Dobbs to remove excess blood and tissue fluid from the cavity around Mr. Dobbs’s spine.136

Dr. Bahgat testified that the build-up of excess blood and tissue fluid in this cavity could lead to

increased pressure in the cavity, which could cause pain, paralysis, blood clots, or numerous other

problems.137 The Court accepts this portion of Dr. Bahgat’s testimony as fact.

40. Dr. Bahgat testified that, when deciding to install the drain, he “put into

consideration” the fact that Mr. Dobbs had suffered a dural tear.138 Dr. Bahgat also testified that

he was “fully aware” that the dural tear “could leak again.”139 At one point, Dr. Bahgat suggested

that he weighed the risk of a rare complication, e.g., a remote cerebral brain hemorrhage, with

134 See, e.g., id. at 729:25–730:11, 764:7–13. 135 See, e.g., id. See also Tr. of Bench Trial (Doc. 45) at 160:23–24 (“The drain makes its [sic] more likely that the patch is going to fail.”); id. at 97:18–20 (“It is not safe [to use a drain] when there has been a durotomy, and the durotomy has not been closed in a watertight fashion.”). 136 See Tr. of Bench Trial (Doc. 45) at 195:23–196:1; Tr. of Bench Trial (Doc. 46) at 280:20–283:24. 137 See Tr. of Bench Trial (Doc. 46) at 282:11–23, 283:8–23. 138 Id. at 282:24–25. 139 Id. at 283:2–3.

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other more common complications.140 But after being questioned about his memory of the

decision-making process, Dr. Bahgat testified that, while he “vividly remember[ed] the tear,” he

“[wouldn’t] lie and say [he] was focusing on the cerebral hemorrhage. . . . [He] didn’t think about

it.”141 When asked whether he was “really thinking about at that moment, should I put this drain

in or should I not[,]” Dr. Bahgat testified, “One hundred percent, yes.”142

41. Although there is some internal conflict in Dr. Bahgat’s testimony in the preceding

paragraph, the Court need not resolve the conflict. Whatever Dr. Bahgat’s reasoning for placing

the drain, it is clear that doing so without confirming a watertight seal of the dural tear was below

the standard of care in Arkansas.

IV. Post-Laminectomy Events

42. The Court finds that Plaintiffs have proved that it is more likely than not that, after

Dr. Bahgat performed the secondary repair and finished the surgery, CSF continued to leak out of

the dural-tear site. The reasons for this finding are set out below, but generally consist of evidence

that (1) a significant amount of fluid was collected over many hours by the drain, and (2) CSF

leakage from the dural-tear site was found during a second surgery six days later.

43. After surgery, Mr. Dobbs was taken to the PACU to recover from his anesthesia.143

The PACU records show that at 17:29—an hour and ten minutes after Mr. Dobbs’s surgery

ended—the right side of the drain had collected a total of 25 milliliters of fluid, and the left side

140 See id. at 283:17–23 (“The remote cerebral hemorrhage is one in 10,000, you know, again, give or take the literature. So this is where being rare puts into the consideration. I can either not put the drain and avoid potentially causing that, or not put it and then get a clot, and then he can have bowel and bladder problems where he has to catheterize himself, or he has more pain or more weakness.”). 141 Id. at 284:11, 22–24. 142 Id. at 285:6–9. 143 See Pls.’ Trial Ex. 1 at 1986.

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of the drain had collected 75 milliliters of “all serous sanguinous [sic]” fluid.144 Dr. Taylor testified

that serosanguineous means “blood-tinged fluid[,]” and Dr. Day testified that it means “that there

is blood in fluid.”145 The 17:29 notes also show that Mr. Dobbs was alert, awake, and following

commands, but he was moaning.146

44. At 18:35, the PACU record shows that Mr. Dobbs’s right side of the drain now

contained an additional 150 milliliters of fluid, and the left side of the drain had an additional 100

milliliters of fluid.147 A 19:04 check-up shows that Mr. Dobbs was still alert, awake, and following

commands.148 At 19:08, the fluid collected in the drains still measured 150 milliliters in the right

side of the drain and 100 milliliters in the left side of the drain.149 The fluid was again described

as serosanguinous.150

45. Mr. Dobbs’s next check-up was at 20:30.151 In a record labeled “Progress Notes[,]”

Mr. Dobbs’s neurological assessment revealed that he was alert, oriented to person, place, and

time, and able to respond to verbal commands and answer questions appropriately.152 He did not

exhibit any signs of weakness, numbness, tingling, inattention, disorganized thinking, or visual or

hearing impairments.153 At this time, he spoke clearly and could move all extremities.154 Another

144 Id. at 48. 145 Tr. of Bench Trial (Doc. 45) at 106:23; Tr. of Bench Trial (Doc. 47) at 755:2–3. 146 See Pls.’ Trial Ex. 1 at 48. 147 See id. at 49. 148 See id. There was no longer any indication that Mr. Dobbs was moaning. 149 See id. 150 See id. 151 See id. at 1549. 152 See id. at 1550. 153 See id. 154 See id.

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check-up at 00:30 on October 10th revealed that Mr. Dobbs’s neurological assessment was

essentially unchanged.155

46. Mr. Dobbs’s next check-up was four-and-a-half hours later at 05:00.156 This time,

the nurse noted that Mr. Dobbs had “poor verbal expression[.]”157 Dr. Taylor testified that this

was a “nonspecific comment that the person doing the evaluation thought that [Mr. Dobbs’s]

speech was not normal for him.”158 But otherwise, the nurse’s observations were unchanged from

the 20:30 and 00:30 check-ups.159

47. At 05:06, the records show that an additional 200 milliliters of fluid had collected

in Mr. Dobbs’s drain.160 At 07:06, there was an additional 225 milliliters collected in the drain.161

48. By this point, Mr. Dobbs had lost approximately 775 milliliters of fluid since

Dr. Bahgat installed the drain fourteen hours earlier.162

49. Drs. Taylor, Bahgat, and Day all testified that there was no way to know exactly

how much of the drained fluid was CSF.163 Dr. Taylor testified that the average person has

155 See id. at 1551–52. 156 See id. at 1552. There is no record of any check-ups between 00:30 and 05:00 on October 10th. However, Mrs. Dobbs testified that on the night of October 9th and in the early morning of October 10th, Mr. Dobbs was repeatedly vomiting and “would roll back and forth in his bed, back and forth, back and forth, because he said his head was hurting so badly.” Tr. of Bench Trial (Doc. 47) at 590:21–591:3. Mrs. Dobbs also testified that she “felt like [Mr. Dobbs’s talking] was normal, you know, but, I mean, obviously he wasn’t talking too much because all that other stuff was kinda going on. So, I mean, but I didn’t think to myself, wow, he’s not responding normally or looking at me normally. It seemed all fine to me.” Id. at 594:7–12. Moreover, Mrs. Dobbs testified that Mr. Dobbs continued to vomit at least until he was taken for his MRI, but it is unclear which trip to the MRI she is referring to. See id. at 594:19–595:3. Of course, Mrs. Dobbs is likely not a particularly reliable witness here. That night, she passed out and hit her head. See id. at 591:4–15. As Mrs. Dobbs testified, she “was knocked out cold.” Id. at 591:14–15. The Court accepts the general tenor of her testimony but cannot accept the specifics because of the head injury. 157 Pls.’ Trial Ex. 1 at 1552. 158 Tr. of Bench Trial (Doc. 45) at 110:2–5. 159 See Pls.’ Trial Ex. 1 at 1552–53. 160 See id. at 1545. 161 See id. 162 See Tr. of Bench Trial (Doc. 45) at 113:13–17. 163 See id. at 112:7–9; Tr. of Bench Trial (Doc. 46) at 306:4–11; Tr. of Bench Trial (Doc. 47) at 715:2–6.

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approximately 300 milliliters of CSF in his body at one time.164 Dr. Taylor also testified that the

average person produces about 20 milliliters of CSF per hour.165

50. By 07:20, Mr. Dobbs had begun to exhibit signs of expressive aphasia, which is the

inability to speak.166 Dr. Bahgat was informed of this development, and an urgent brain MRI was

ordered.167 Mr. Dobbs, however, did not have an MRI until later that afternoon.168 In the

intervening hours, nurses performed two neurological checks at 08:00 and 13:00.169 At both

checks, Mr. Dobbs was alert and able to follow commands, but he was still unable to speak.170

51. Mr. Dobbs’s MRI revealed that he had three brain bleeds.171 The neuroradiologist’s

notes explain that:

The cerebral venous sinuses appear widely patent on 3D postcontrast imaging. Diffuse mildly thickened dural enhancement consistent with the given history of recent dural tear. Favor transient intracranial hypotension that resulted in brain sagging and mechanical obstruction of cingulate and superior cerebellar veins. This likely resulted in venous ischemia/infarction with subsequent hemorrhage.172

When asked about the neuroradiologist’s findings at trial, Dr. Bahgat said it would be fair to

conclude that the most likely cause of the brain bleeds was CSF draining through the dural tear,

164 See Tr. of Bench Trial (Doc. 45) at 56:23–57:2. Specifically, Dr. Taylor said the average person could have anywhere from 150 to 400 milliliters of CSF in his body, with an average of 300 milliliters. See id. 165 See id. at 55:24–56:6. Under normal circumstances (i.e., when there is no dural tear), CSF is recycled into the bloodstream. See id. at 56:8–20. Dr. Day agreed with Dr. Taylor’s estimate. See Tr. of Bench Trial (Doc. 47) at 708:1–6. 166 See Pls.’ Trial Ex. 1 at 1540; Tr. of Bench Trial (Doc. 45) at 114:1–2. 167 See Pls.’ Trial Ex. 1 at 1540; Tr. of Bench Trial (Doc. 45) at 206:1–4. 168 See Pls.’ Trial Ex. 1 at 1530. Mr. Dobbs’s MRI was delayed because he had a metal Foley catheter with a temperature probe, which needed to be removed before he could have an MRI. See id. at 1529, 1539. 169 See id. at 1524, 1527. 170 See id. 171 See id. at 644–45, 1521; Tr. of Bench Trial (Doc. 45) at 206:10–15. 172 Pls.’ Trial Ex. 1 at 645.

26 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 27 of 107

which would have resulted in the brain sagging.173 In turn, the brain sag would have stretched and

torn veins in Mr. Dobbs’s brain.174

52. At 15:55, Mr. Dobbs was transferred to the Surgical Intensive Care Unit

(“SICU”).175 Dr. Bahgat’s post-MRI notes show that he ordered the drains to stay in Mr. Dobbs.176

At 17:00, Mr. Dobbs was able to follow some commands, such as squeezing a nurse’s hands, but

he could not hold up two fingers when asked.177 By 19:00, Mr. Dobbs was “becoming increasingly

more apneic and less responsive to following commands.”178

53. A CT scan of Mr. Dobbs’s head was performed at 20:12.179 The CT scan revealed

that Mr. Dobbs’s “ventricles were bigger. They looked enlarged.”180 Based on the CT results,

Dr. Bahgat’s concern was, “maybe the blood or the shift in the brain had blocked any of these

outflows, and it was building enough that these cavities were now expanding[,]” which could “just

squeeze the brain tissue against the walls of the skull, and then it can cause more damage.”181 As

173 See Tr. of Bench Trial (Doc. 45) at 211:19–23. 174 See id. 175 See Pls.’ Trial Ex. 1 at 1516, 1521. When asked at trial whether he considered taking the drain out after the MRI, Dr. Bahgat testified: Probably. I mean, I don’t remember vividly, but definitely I think logic would dictate I would have thought about taking it out. But I believe it was solid, looked at the drainage, and then again assessed whether was [sic] coming out of it was blood more or exudate more or spinal fluid, and decided that to keep it to prevent other issues with not—with taking it out, like you get a clot or a hematoma. That would be my guess of why I kept it. I don’t remember vividly, but that would be—definitely had to consider it, because I remember looking at it, remember reviewing the output of it. Tr. of Bench Trial (Doc. 46) at 300:14–24. 176 See Pls.’ Trial Ex. 1 at 1457, 1521; Tr. of Bench Trial (Doc. 45) at 206:16–207:4. 177 See Pls.’ Trial Ex. 1 at 1493. 178 See id. 179 See id. 180 Tr. of Bench Trial (Doc. 46) at 302:8–9. 181 Id. at 302:9–15. See also Pls.’ Trial Ex. 1 at 1492 (“CT shows enlarging ventricle with loss of CSF space and sylvian [fissure] tightness”).

27 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 28 of 107

a result, an external ventricular drain (“EVD”) was placed at 22:20.182 Dr. Bahgat testified that an

EVD was necessary to measure the pressure of the brain and drain fluid to reduce the pressure, if

necessary.183

54. Mr. Dobbs had another CT scan the next morning (October 11th), which showed

that the “stability of the bleed . . . was the same.”184 At this point, Mr. Dobbs’s drain output over

the previous twenty-four hours was 300 milliliters, which, according to Dr. Bahgat, was “within

what you would expect.”185 The Progress Notes from 08:00 on October 11th reflect that Mr. Dobbs

“does not follow commands but will withdraw to painful stimuli. Occasional blinking of eyes

noted but [Mr. Dobbs] does not open eyes to command or track around room.”186 At 10:34, a

check-up of Mr. Dobbs showed the “EVD working well with very low pressure. CSF is clear. . . .

Continue surgical drains which have thin output serosanginous [sic].”187

55. On the morning of October 12th, Mr. Dobbs underwent an electroencephalography

(“EEG”) to determine whether he was having seizures.188 The impressions of the EEG showed

that the EEG was “[a]bnormal . . . because of generalized slowing of teh [sic] EEG activity and

frequent bifrontal epileptiform discharges. This [is] indicative of moderate-severe generalized

cerebral [dysfunction] with bifrontal potential epileptogenicity.”189

182 See Pls.’ Trial Ex. 1 at 1493. 183 See Tr. of Bench Trial (Doc. 46) at 302:19–21. 184 Id. at 303:8–11. 185 Id. at 303:18–20. See also Pls.’ Trial Ex. 1 at 1458. 186 Pls.’ Trial Ex. 1 at 1461. 187 Id. at 1456–57. 188 See id. at 1401; Tr. of Bench Trial (Doc. 46) at 307:3–8. 189 Pls.’ Trial Ex. 1 at 1401–02.

28 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 29 of 107

56. Because of “worsening mentation since yesterday[,]” Mr. Dobbs had another CT

scan on October 12th.190 This scan revealed “[t]hat everything [was] stable.”191 (Dr. Bahgat

testified that, when the bleeds are stable, it simply means they have not worsened.192) However,

Mr. Dobbs’s “EVD and lumbar JP drains” were “pulled” at this time.193 Dr. Bahgat testified that

he decided to remove the drains at this time because:

[T]he EVD was, the pressure was not high, the ICPs were controlled. We didn’t need to drain anything out of it. We got a repeat CT scan. The ventricles weren’t enlarged, were appropriate size, so they had no function. We had closed them that morning and then got a scan later in the day, make sure that it doesn’t expand. So we took them out, the JP drain. That time the flow coming out of it had gone down. The odds of having a hemorrhage or anything concerning that I needed to drain was not needed, so I pulled them out. They did the function that I wanted them to do.194

57. On October 13th, Mr. Dobbs’s consciousness level was not improving, so another

MRI was done.195 Dr. Bahgat testified that “[f]or the most part [the findings of the MRI were]

stable. . . . [T]he ventricles were a little bit larger, but there was air in them probably from taking

out the EVD . . . .”196 When Dr. Bahgat checked on Mr. Dobbs after his most recent MRI,

Dr. Bahgat observed that Mr. Dobbs had a “[s]table neuroexam, slight improved flexation on left

[upper extremity], flex both [lower extremity] to minimal stimulation, [o]pen eye to stimuli once

. . . .”197 Dr. Bahgat testified that these observations indicated that Mr. Dobbs “was stable” and

“[n]othing had changed.”198

190 Id. at 1399. 191 See Tr. of Bench Trial (Doc. 46) at 307:13. 192 See id. at 317:8–12. 193 Pls.’ Trial Ex. 1 at 1426. 194 Tr. of Bench Trial (Doc. 46) at 308:7–18. 195 See id. at 309:4–17; Pls.’ Trial Ex. 1 at 1329–30. 196 Tr. of Bench Trial (Doc. 46) at 309:14–16. See also Pls.’ Trial Ex. 1 at 1328. 197 Pls.’ Trial Ex. 1 at 1328. 198 Tr. of Bench Trial (Doc. 46) at 309:25.

29 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 30 of 107

58. Dr. Bahgat’s next interaction with Mr. Dobbs was the following day (October 14th)

around noon. Dr. Bahgat’s notes and testimony reveal that nothing happened to Mr. Dobbs

overnight, and that Mr. Dobbs was “showing subtle improvement in neurological function.”199

59. Despite subtle improvement, Dr. Bahgat decided on October 15th that Mr. Dobbs

would need a second surgery.200 In deciding that a second surgery was necessary to determine

whether there was a CSF leak, Dr. Bahgat testified:

So the thought process was that he hadn’t gotten any better. There’s no significant change. We got repeat scans that for the most part were stable. Other than keep watching, there’s nothing active we can do. The only thing surgical I could offer is to say, okay, maybe he does have a leak in his back, maybe it was still leaking some. There was nothing leaking out of the incision. The incision wasn’t puffed, wasn’t leaking to the outside, wasn’t soft, wasn’t . . . no clear clinical indication that would say he definitely had a leak. It was just an assumption that, okay, if he was having a leak, why not to go in. The risk of going in again is low; and look at it. If there is a leak we can fix it, give him a better chance. And I explained to the family as best as I could this is what we’re thinking. It may end up being a helpful surgery, maybe not, but the risk is low, and the potential benefit could be worth it.201

Because Mr. Dobbs was unable to give consent, Dr. Bahgat “believe[s]” he obtained consent from

Mrs. Dobbs to perform the re-exploration surgery.202 Again, while there were other people in the

operating room with Dr. Bahgat for the re-exploration surgery, including an anesthesiologist (or

anesthetist), neither party called any of those other people to testify at trial.203

60. The October 15th re-exploration surgery revealed that, after “the paraspinal

muscles were separated with a cerebellar retractor[,]” Dr. Bahgat “could see fluid within the

199 Pls.’ Trial Ex. 1 at 1290. See also Tr. of Bench Trial (Doc. 46) at 310:11–14 (“So seems to be he’s opening his eyes, had more consistent responses. So maybe somewhat better, but really nothing major worse or better, just some very subtle improvement I would say.”). 200 See Pls.’ Trial Ex. 1 at 1238–41. 201 Tr. of Bench Trial (Doc. 46) at 311:3–19 (ellipsis in original). 202 Id. at 311:20–23. 203 See Pls.’ Trial Ex. 1 at 1981.

30 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 31 of 107

epidural space.”204 “The fluid was suctioned out . . . to inspect the site of the dural tear[,]” and

“[t]he prior muscle graft and Gelfoam was removed and the tear was identified.”205 The Operative

Findings in the post-operative report state that “[t]he site of the prior dural tear was explored[,]

[and] CSF could be seen coming from the tear but was not aggressive.”206

61. At one point, Dr. Bahgat testified that, “[t]heoretically, [Mr. Dobbs] could have

been not leaking at the time . . . [a]nd once [Dr. Bahgat] opened it the pressure is less and it could

start to leak.”207 He also testified that he saw “some fluid coming out of the edges of the repair[,]”

but doesn’t “remember if it was when [he] manipulated it or before [he] even touched it . . . .”208

Dr. Bahgat testified that the leak was “nothing that was like a gush of fluid.”209 Instead, according

to Dr. Bahgat, it was “[j]ust like a small trickle.”210 Dr. Bahgat testified that it could have been “a

combination of blood, normal tissue fluid, and in this case it could be CSF.”211 Dr. Bahgat could

not remember “exactly how much [fluid] it was.”212

62. At this point, “a large muscle graft was obtained and gently tucked and wrapped

around the tear.”213 Dr. Bahgat then “placed another piece of muscle graft to hold it in place after

which an onlay Gelfoam was placed soaked in blood.”214 Dr. Bahgat “sprayed DuraSeal after

204 Id. at 1980. 205 Id. 206 Id. at 1979. 207 Tr. of Bench Trial (Doc. 46) at 312:25–313:4. 208 Id. at 313:5–7. 209 Id. at 313:7–8. 210 Id. at 313:8. Dr. Bahgat testified that it was possible that the re-exploration surgery could have caused the leak. See id. at 315:24–316:4. But he also testified that Mr. Dobbs could have had an active leak on October 15th. See Tr. of Bench Trial (Doc. 45) at 199:16–18. 211 Tr. of Bench Trial (Doc. 45) at 199:6–8. 212 Tr. of Bench Trial (Doc. 46) at 313:8–9. 213 Pls.’ Trial Ex. 1 at 1980. 214 Id.

31 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 32 of 107

which another muscle layer was placed and a Gelfoam.”215 “These were secured and held in place

with a crossing stitch after which we inspected the rest of the surgical cavity for sites of other leaks

or tears.”216 No other leaks or tears were identified.217

63. After Mr. Dobbs’s “skin was closed with a stapler[,]” he “was flipped to a supine

position . . . and an EVD catheter was placed advanced to about 6-7 cm.”218 Dr. Bahgat’s

post-operative report for the re-exploration surgery explains that on “[t]he first pass we could not

obtain any CSF so a second pass was attempted this point we could see CSF coming back but at a

very low pressure.”219 This time, Dr. Bahgat did not install a JP drain.220 A post-surgery CT scan

revealed that Mr. Dobbs’s brain bleeds were “stable, but there was more air just from putting the

catheter in, that air just got in, filled up the ventricles.”221

64. The Court finds that the re-exploration surgery revealed a CSF leak from the

original dural-tear site. It is sheer speculation to suggest that this leak only began at the time the

re-exploration surgery was conducted. Based on the chain of events and testimony discussed

above, it is far more likely that the CSF discovered during the re-exploration surgery on October

15th was from an ongoing CSF leak from Mr. Dobbs’s original dural tear during the October 9th

laminectomy. Given Dr. Bahgat’s failure to confirm the sufficiency of the seal of the dural tear in

the first surgery, the subsequent placement of a drain, and the significant amount of drainage noted

between the first surgery and the second surgery, it is more likely that CSF began to leak shortly

215 Id. 216 Id. 217 See id. 218 Id. 219 Id. 220 See Tr. of Bench Trial (Doc. 45) at 133:4–6. 221 See Tr. of Bench Trial (Doc. 46) at 316:13–23.

32 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 33 of 107

after the first surgery was completed.222 While no one can know how much of the fluid collected

in the drains was CSF compared to other fluids, it is very likely that some portion of it was CSF.

The Court finds that Plaintiffs have proved this by a preponderance of the evidence.

65. The Court also finds that Plaintiffs have proved that it is more likely than not that

the drain promoted the CSF leak after the end of the October 9th surgery. Dr. Taylor explained

that a “negative pressure drain draws fluid out of the space and would promote CSF leakage from

the dura.”223 He also testified that “[t]he drain makes its [sic] more likely that the [secondary

repair] is going to fail.”224 For his part, Dr. Bahgat agreed with the Plaintiffs’ counsel’s assertion

that “a subfascial drain in that secondary closure setting promotes the movement of fluid from

inside the body to out . . . .”225 Even gravity drains encourage such leakage by creating an easy

path for the CSF to take.226 That is consistent with Dr. Day’s fervor about not placing a drain

without confirming a watertight seal. When asked whether he had ever placed a drain in such

circumstances, Dr. Day testified, “if I couldn’t fix it with suture or with a graft and then prove that

nothing’s coming with a Valsalva maneuver, then, no, that’s not something that anybody would

222 The Court cannot determine with any accuracy how much of the drainage between the two surgeries was CSF. However, the Court can and does find that some significant portion of the drainage was CSF. See Tr. of Bench Trial (Doc. 45) at 129:20–22 (“I think that his injury occurred following surgery, as there was CSF drained out, and a large volume of CSF drained out the morning after surgery.”). That finding follows—at least given the preponderance-of- the-evidence-standard—from the fact that the seal of the dural tear in the first surgery was not confirmed and that CSF was found leaking from the same place during the re-exploration surgery. In sum, the overarching story told by the Plaintiffs—a dural tear not confirmed to be sealed, followed by post-operative leakage of CSF into the drain, eventual brain hemorrhage from the continuous post-operative loss of CSF, and discovery of the leakage during a second surgery—is far more persuasive than the one told by the Government—a dural tear properly closed, no CSF in the drains at all, CSF only found in the second surgery because that surgery somehow opened the original dural-tear site, and a delayed brain hemorrhage arising many hours after the initial intraoperative dural tear. The Court cannot definitively say the Government’s version of events is wrong. But the Court can definitively say that the Government’s version of events is less likely than Plaintiffs’ version of events. Plaintiffs’ version of the events is more likely than not what happened. 223 Id. at 100:4–6. 224 Id. at 160:23–24. 225 Id. at 209:1–4. 226 See id. See also id. at 160:23–24.

33 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 34 of 107

do.”227 According to Dr. Day, no neurosurgeon in his right mind would place a drain in that

situation.228 The reasonable inference from this is that a drain—whether a gravity, negative

pressure, or suction drain—would promote or exacerbate a CSF leak.

V. The Cause of the Brain Sag and Hemorrhage

66. The Court finds that Plaintiffs have proved that it is more likely than not that the

immediate, intraoperative CSF leak from the dural tear did not—on its own—cause Mr. Dobbs’s

brain sag. Correspondingly, the Court finds that the Plaintiffs have proved that it is more likely

than not that the continuous CSF leak caused by the placement of the drain was a but-for cause

and proximate cause of the brain sag. That is, whether or not the immediate loss of CSF during

the October 9th surgery contributed to the brain sag, it is more likely than not that the brain sag

would not have occurred without the post-operative CSF leak caused by the placement of the drain.

The Court finds that Plaintiffs have proved this by a preponderance of the evidence for the

following reasons.

67. Dr. Taylor testified that he believed, within a reasonable degree of medical

certainty, that the drain caused Mr. Dobbs’s brain bleeds.229 He opined that Mr. Dobbs’s “injury

occurred following surgery, as there was CSF drained out, and a large volume of CSF drained out

the morning after surgery.”230 Dr. Taylor based this opinion “on the understanding of the

mechanism of injury, that symptoms of brain injury from intracranial hypotension and brain shift

and compressed veins and ischemia, those are all things that occur fairly quickly.”231 Quoting an

227 Tr. of Bench Trial (Doc. 47) at 764:7–13. 228 See id. at 764:14–17. 229 See Tr. of Bench Trial (Doc. 45) at 130:9–12. 230 Id. at 129:20–22. 231 Id. at 129:24–130:2.

34 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 35 of 107

article titled Symptomatic Intracranial Hemorrhage After Dural Tear in Spinal Surgery—A Series

of 10 Cases and Review of the Literature (“the Allouch Article”), Dr. Taylor testified that when a

patient loses CSF, “‘brain sagging may take place and possibly promote intra cerebral

hemorrhaging as a result of stretching of cortical bridging veins.’”232 According to Dr. Taylor, the

symptoms of the insult to the brain that Mr. Dobbs suffered “occur immediately or within minutes

or an hour or two[]” of the brain sag, “not a half a day later or 16 hours later.”233 The point being,

if the symptoms occur fairly quickly after the brain sag, then the timeline is far more consistent

with a brain sag occurring hours after the surgery as opposed to a brain sag occurring during or

right after surgery.

68. Dr. Day’s testimony generally supports Dr. Taylor’s testimony that the loss of CSF

can lead to a brain hemorrhage.234 Dr. Day testified that:

[W]hen you get a loss, a sudden loss of spinal fluid, and you get this so-called cerebellar sag, then it stretches those veins and pulls on them. These veins are fragile. The same thing can happen up top along the cerebrum, especially near the midline. That’s where most of our big bridging veins are, above the tentorium. Those veins are very fragile. When they stretch, they close down. So, you know, if it’s loose, then it’s, you know, it has the volume like that. But as it stretches, it goes like this. And some of them will tear. So whether they’re stretched and flattened and not flowing or they actually tear, the result is the same. You’ve interrupted the normal outflow of venous blood from that brain tissue.235

The stretching of the veins, Dr. Day concluded, could lead to a brain hemorrhage.236

232 Id. at 86:14–17, 93:11–14. 233 Id. at 129:24–130:4. 234 See Tr. of Bench Trial (Doc. 47) at 723:19–724:9. 235 Id. at 697:1–13. 236 See id. at 700:5–7, 12–13. (“And it’s because it’s the loss at the time of the big drainage of CSF is when the sag occurs and you have the problem . . . You get the sag, the veins break, stretch, occlude, and then things go from there.”).

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69. But Dr. Day testified that the cause of Mr. Dobbs’s brain sag—and, therefore, the

cause of the brain hemorrhage—was the loss of a large amount of CSF at the time of the dural

tear.237 In support of this theory, the Dr. Day testified that Mr. Dobbs brain sagged sometime

before 16:30 on October 9th.238 That is, the brain sagged during surgery or immediately

thereafter.239

70. Dr. Day acknowledged that Mr. Dobbs had normal neurological checks in the 15

hours following his first surgery.240 But Dr. Day suggested this was not inconsistent with his

timeline of when the brain sag occurred. According to Dr. Day:

[When y]ou occlude a vein, patient’s doing pretty well, and then usually about 12-ish hours later things start to change. And things get worse and worse, and then you end up getting a scan somewhere between 12 and 38 hours, and there’s the hemorrhage, it’s in the tissue. So, you know, when a vein busts initially from that sag, you could have some hemorrhage then, but that hemorrhage is outside the brain tissue. It’s not in the tissue like you see on Mr. Dobbs’[s] scan. That’s hemorrhage in the tissue.241

As the Court best understands Dr. Day’s testimony, it is his opinion that the initial dural tear

resulted in a “big gush” of CSF, which caused the brain to immediately sag. But the sag did not

immediately cause the brain hemorrhage. Instead, it caused some veins to “break, stretch, occlude,

and then things go from there.”242 Dr. Day described the things going from there as a “cascade of

events[,]” with the manifestation of the insult taking place “somewhere between 12 and 38 hours”

later.243 According to Dr. Day, the ultimate manifestation is a bleed in the brain tissue (i.e., the

237 See, e.g., id. at 700:11–12, 725:20–22, 726:5–7. 238 See id. at 726:24–727:2. 239 See id. 240 See id. at 727:3–6. 241 Id. at 699:6–14. See also id. at 728:4–6 (“We know that it occurs somewhere between 12 and up to 48 hours later, when the scans are done, when we see the hemorrhage.”). 242 Id. at 700:12–13. 243 Id. at 698:14–699:15.

36 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 37 of 107

hemorrhage) no sooner than 12 hours after the sag, which immediately followed the significant

loss of CSF.244

71. Based on this theory, Dr. Day testified that, because of the significant loss of CSF

at the time of the dural tear, Mr. Dobbs’s brain hemorrhage would have occurred regardless of

Dr. Bahgat’s decision to install a drain.245 And the hemorrhage would’ve been just as severe.246

72. The Court finds that Dr. Taylor’s theory of the injury here is more likely than

Dr. Day’s theory. First, Dr. Day’s theory is premised on a fact that the Court has already concluded

did not occur—namely, an unusually large and immediate loss of CSF at the time of the

intraoperative dural tear. Dr. Day does not suggest an average release of CSF from an

intraoperative dural tear would cause the brain to immediately sag. And, given the statistics the

Court has already credited concerning the frequency of intraoperative dural tears and the

infrequency of resulting brain hemorrhages, something more than an average loss of CSF during

the surgery would be necessary to support Dr. Day’s theory.

73. Second, Dr. Taylor testified that “symptoms of brain injury from intracranial

hypotension and brain shift and compressed veins and ischemia, those are all things that occur

fairly quickly. They occur immediately or within minutes or an hour or two, not a half a day later

or 16 hours later.”247 So this really is a true battle of the experts on the timeline from CSF loss to

brain sag to brain hemorrhage. After listening to the dueling expert testimony, the Court finds

Dr. Taylor’s testimony about the usual timeline of the brain bleed more credible than Dr. Day’s

244 See id. at 699:11–25. 245 See id. at 710:8–17. 246 See id. at 710:12–17. 247 Tr. of Bench Trial (Doc. 45) at 129:25–130:4.

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testimony.248 It is not that Dr. Day’s scenario is impossible. Rather, the Court believes the

Dr. Day’s scenario is more of an outlier than Dr. Taylor’s scenario.249

74. The facts in this case line up better with the more compressed timeline testified to

by Dr. Taylor. Put another way, Dr. Taylor’s testimony concerning the likely chain of events

seems to be consistent with, and accounts for, all the facts found by the Court so far in this case—

especially the absence of a large and immediate “gush” of CSF during the October 9th surgery.

And given the compressed timeline between the CSF loss, brain sag, and hemorrhage, it is far less

likely that the brain sag occurred during or immediately after the surgery than several hours later.

This, in turn, means that the brain sag must have occurred because of the post-operative CSF leak

into the drain (either alone or in combination with the original CSF leak during surgery), which

eventually caused the loss of so much CSF that the remaining CSF could no longer keep that part

of the brain afloat.

CONCLUSIONS OF LAW – LIABILITY

The Dobbses brought their claim against the United States under the Federal Tort Claims

Act.250 When analyzing a claim brought under the Federal Tort Claims Act, courts apply the

substantive law of the state where the events giving rise to the complaint occurred.251 Because the

alleged medical malpractice occurred in Arkansas, Arkansas law applies.252 The Arkansas

Medical Malpractice Act governs claims of medical negligence.253

248 See Kaplan v. Mayo Clinic,

(8th Cir. 2017) (the Court of Appeals “‘give[s] due regard to the opportunity of the district court to judge the credibility of the witnesses’” (quoting Tadlock v. Powell,

(8th Cir. 2002)). 249 See supra note 222. 250 See Compl. (Doc. 1) ¶ 1.4. 251 See Day v. United States,

(8th Cir. 2017). 252 See

253 See

et seq.

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“[W]hen the asserted negligence does not lie within the jury’s comprehension as a matter

of common knowledge,” Arkansas statute provides that a plaintiff has the burden of proving:

(1) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant, the degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he or she practices or in a similar locality;

(2) By means of expert testimony provided only by a medical care provider of the same specialty as the defendant that the medical care provider failed to act in accordance with that standard; and

(3) By means of expert testimony provided only by a qualified medical expert that as a proximate result thereof the injured person suffered injuries that would not otherwise have occurred.254

But there is an important tweak to this standard. In Broussard v. St. Edward Mercy Health System,

Inc., the Supreme Court of Arkansas held unconstitutional the requirement that standard-of-care

opinions must be given by a doctor of the same specialty as the defendant.255 In short, given this

gloss on the statute, Plaintiffs must prove by competent medical expert testimony: (1) the

applicable standard of care, (2) that Dr. Bahgat failed to act in accordance with that standard, and

(3) that this failure was a proximate cause of Mr. Dobbs’s injuries.256 Plaintiffs must only prove

these by a preponderance of the evidence.257

254

(a)(1)–(3). 255

,

. Even though the Court is not required to make the “same specialty” finding, the Court finds that Dr. Taylor and Dr. Day were of the same specialty as Dr. Bahgat—neurosurgery. 256 See e.g., Webb v. Bouton,

,

(2002). 257 See

at 261–62,

.

39 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 40 of 107

I. Standard of Care

Plaintiffs called Dr. Taylor as their standard-of-care expert.258 Dr. Taylor testified that he

was familiar with the standard of care for neurosurgeons.259 At the time of trial, Dr. Taylor had

performed laminectomies at least hundreds of times.260 He testified that the standard of care for

laminectomies and dural tears does not change from one locality to another; for example, it is the

same in Dallas, Texas, as it is in Little Rock, Arkansas.261

Dr. Taylor did not criticize Dr. Bahgat for causing a dural tear, and Dr. Taylor agreed that

the fact a dural tear occurred does not alone mean that Dr. Bahgat was negligent.262 Moreover, it

was Dr. Taylor’s opinion that, to a reasonable degree of medical certainty, Dr. Bahgat’s secondary

repair of Mr. Dobbs’s dural tear (as well as Dr. Bahgat’s inability to do a primary repair) was

within the standard of care.263

The meat of Dr. Taylor’s standard-of-care testimony centered on Dr. Bahgat’s failure to

perform a Valsalva maneuver and his use of a JP drain. Quoting Treatment of Dural Tears

Associated with Spinal Surgeries (“the Eismont Article”), Dr. Taylor testified that when repairing

a dural tear, “‘[a]ll repairs should be tested by using the reverse Trendelenburg position and

Valsalva maneuvers to increase intrathecal pressure. Any persistent leaks should be repaired.’”264

Still quoting the Eismont Article, Dr. Taylor testified that “‘[t]here is no evidence that simply

placing Gelfoam or muscle over a dural leak is effective. This use of Gelfoam and muscle has

258 Supra note 18. Dr. Taylor was accepted as an expert witness without objection. See Tr. of Bench Trial (Doc. 45) at 51:7–15. 259 See Tr. of Bench Trial (Doc. 45) at 47:25–48:2. 260 See id. at 48:3–7. 261 See id. at 49:6–13, 50:4–23. 262 See id. at 141:12–21. 263 See id. at 143:12–144:1. 264 Id. at 76:11–17, 79:15–18.

40 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 41 of 107

been associated with failure of closure of the dura in other series.’”265 Furthermore, Dr. Taylor

testified that the Eismont Article clearly stood for the proposition that, “in closing around the dura

when there’s been a spinal fluid leak, no drain should be used.”266

Another article Dr. Taylor relied on was Incidental Durotomy in Spine Surgery (“the

Cammisa Article”).267 This article reviewed a study of 2,144 patients, 74 of whom had dural

tears.268 None of these 74 patients with dural tears suffered brain hemorrhages.269 And all 74 dural

tears “‘were deemed watertight to Valsalva maneuver before closure of the facie and skin.’”270

Quoting the Cammisa Article (which in turn cited the Eismont Article), Dr. Taylor testified that

the “‘Valsalva maneuver was recommended to check for the completeness of repair. Finally, they

advised against placement of subfascial drains in deference to the possibility of formation of duro-

cutaneous fistula.’”271

According to Dr. Taylor, the Cammisa Article also referenced another study: the Wang

Study.272 In the Wang Study, 87 of the 88 patients had primary repairs, while only one patient had

a secondary repair.273 There, “‘[a] substantial closed suction drain was used for all patients and

remained in place for an average of 2.1 days.’”274 Considering this study, the Cammisa Article

concluded that “‘[c]losed suction wound drainage does not seem to aggravate the leak and can be

265 Id. at 80:12–15. 266 Id. at 81:19–20. 267 See id. at 82:22–25. 268 See id. at 83:8–11. 269 See id. at 83:12–16. 270 Id. at 84:13–15. 271 Id. at 85:7–11. 272 See id. at 85:15–17. 273 See id. at 85:22–25, 151:22–152:10. 274 Id. at 152:11–15.

41 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 42 of 107

used safely in the presence of a dural repair.’”275 Dr. Taylor testified that the Cammisa Article and

the studies cited within the article instruct doctors “[t]hat in general, drains should be avoided, but

they can be used safely if there’s been a suture watertight closure.’”276

Dr. Taylor testified that it was not his position that a neurosurgeon should never use a

drain.277 Instead, according to Dr. Taylor, a neurosurgeon should not use a drain when there has

been a dural tear, and the dural tear was not “closed in a watertight fashion.”278 He based this

testimony on an article titled Intracranial Hemorrhage After Spine Surgery (“the Kaloostian

Article”), which, provided, in part, that “‘drain placement and continued suction at the site of dural

repair have also been proposed as a mechanism for sustained cerebral hypotension.’”279 The

Kaloostian Article further explained that “‘[r]ecent reports reflect a growing concern over the

placement of drains at the surgical site, which has emerged as one of the most consistently

confirmed variables in patients with intracranial hemorrhage after spine surgery.’”280 As

Dr. Taylor explained, the Kaloostian Article concluded that based on the eight patients studied,

“‘the presence of interoperative CSF leak and the use of drains postoperatively, with

aforementioned moderate outputs, were all common factors shared among [the] patients. This

does not indicate a causal relationship because of the lack of statistical validation, but merely that

these are factors that show an association.’”281

275 Id. at 152:20–22. 276 Id. at 86:2–6. 277 See id. at 97:15–17. 278 Id. at 97:18–20. 279 Id. at 94:21–95:1, 96:3–5. 280 Id. at 96:18–21. 281 Id. at 97:1–7.

42 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 43 of 107

Dr. Taylor also testified about the Allouch Article, which the Court introduced earlier.282

The Allouch Article found that, in a survey of 12,185 patients who underwent spinal surgery, eight

of them suffered intracranial hemorrhages.283 Quoting the Allouch Article, Dr. Taylor testified

that the risk of post-operative CSF loss following an intraoperative dural tear “‘is especially

increased by suction drains[,] [which] seem to be risk factors for intracranial hemorrhage,

complicating the spinal surgery.’”284 According to the Allouch Article, “‘[i]n every case in our

series, CSF loss was enhanced through use of drains in the subfascial space. In cases of observed

durotomy, we used gravity-driven drains, whereas in the four patients with occult dural tears,

drains with negative pressure were used, according to our usual practice in our department.’”285

Importantly, the Allouch Article explained that:

In cases of intra operative durotomy and [sic] intra operative repair in a watertight fashion should be attempted. Intraoperative assessment of sealing the dural tear may be controlled by visual inspection under the Valsalva maneuver for 10 seconds or longer. In complex defects, lumbar drainage should be considered. Minimization of CSF loss during spinal surgery through the immediate closure of a dural tear and head-down positioning of the patient is suggested. *** In cases of intracranial hemorrhage after spinal surgery, drains should be removed, and patients should be advised to stay in bed rest. Some investigators advocate resting in the Trendelenburg position. We perform MRI of the spinal index region to exclude persistent CSF leakage. In these patients, we consider revision surgery with dural repair to reduce CSF loss if the general condition of the patient allows it. ***

282 See generally id. at 86:14–94:3. 283 See id. at 88:3–6. 284 Id. at 88:14–17. 285 Id. at 89:10–15. Dr. Taylor explained that an occult dural tear is one where the doctors are unaware of it at the time of the surgery. Id. at 89:17–19.

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An intentional or inadvertent opening of the dura during spinal surgery should be managed by a watertight closure. Whenever possible, drains should be avoided or, if necessary, placed without negative pressure.286

Finally, Dr. Taylor considered Remote Cerebellar Hemorrhage as a Complication of Lumbar

Spine Surgery (“the Lim Article”).287 In doing so, Dr. Taylor testified that drains are an associated

risk for brain hemorrhages.288

Considering the medical records, the relevant medical literature, and his own experience,

Dr. Taylor concluded, to a reasonable degree of medical certainty, that Dr. Bahgat failed to act in

accordance with the standard of care in Arkansas by installing a drain after a secondary repair.289

Dr. Taylor testified that this was a failure to act in accordance with the standard of care, even if

the Valsalva maneuver was done or the seal of the secondary repair was otherwise confirmed to

be sufficient.290

The Government called Dr. Day as its standard-of-care expert.291 To establish the standard

of care, Dr. Day testified about some of the same articles Dr. Taylor relied on, while also

considering a few additional articles.292 Like Dr. Taylor, Dr. Day testified that it was within the

286 Id. at 91:7–14, 92:19–93:1, 93:19–22. 287 See generally id. at 97:21–100:18. 288 See id. at 97:23–25. The Lim Article explained that “‘[t]he presence of a subfascial drain was observed in 42 percent, suggesting that a prolonged postoperative CSF leak may be riskier than an intraoperative leak, which would have been promptly repaired.’” Id. at 98:18–21. 289 Id. at 51:4–6, 102:8–14, 134:20–22. 290 Id. at 102:8–19. 291 See generally Tr. of Bench Trial (Doc. 47) at 668:24–718:17. Dr. Day was accepted as an expert witness without objection. See id. at 668:17–22. 292 One of the additional articles Dr. Day testified about was titled Cerebellar Hemorrhage After Spinal Surgery: Case Report and Review of Literature (“the Konya Article”). See generally Tr. of Bench Trial (Doc. 47) at 710:23–712:8. But in this article, the patient had a dural tear that was closed with a primary repair, and the doctor didn’t see any more leakage of CSF. See id. at 711:16–712:8. This is quite distinguishable from Dr. Bahgat’s repair of Mr. Dobbs’s dural tear. The other article was Cerebellar Hemorrhage After Spinal Surgery, Report Two of Cases and Literature Review (“the Friedman Article”). See id. at 757:10–12. The Friedman Article discussed two patients who suffered dural tears. See id. at 757:13–17. One patient had a drain, and the other didn’t. See id. at 757:16–17. The article does not discuss how each patient’s dural tear was repaired, but the patient who had a drain suffered a brain hemorrhage. See id. at

44 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 45 of 107

standard of care for Dr. Bahgat to attempt a secondary repair of the dural tear when he was unable

to do a primary repair.293 Dr. Day also testified that the simple failure to document the Valsalva

maneuver in the post-operative report was within the standard of care, so long as Dr. Bahgat did,

in fact, perform the Valsalva maneuver.294

When asked about the use of a drain after a spinal surgery, Dr. Day testified that “if you

didn’t use a drain you’d be criticized . . . .”295 Dr. Day explained that this is because excess tissue

fluid and blood from the surgery could collect and cause inflammation and swelling.296

Furthermore, Dr. Day testified that “when you look at the bulk of people that have been reported

[to] have had [a brain hemorrhage], the presence of a drain is not a common factor. A CSF leak

is a common factor.”297 According to Dr. Day’s testimony, there are “just as many people that had

a spinal fluid leak and had no drain placed that ended up with a delayed hemorrhage in those cases,

as those who had a leak and then there was a drain. So what that tells me is the drains don’t make

a difference.”298

But during cross-examination, Dr. Day agreed that it is important for a doctor to do the

Valsalva maneuver so he can know whether the dural tear is sufficiently sealed.299 Dr. Day went

757:13–15, 22–24. Dr. Day’s testimony about the Friedman Article seems to support the Plaintiffs’ theory that a drain can increase the risk of a brain hemorrhage. 293 See id. at 680:13–681:15. 294 See id. at 687:2–8. 295 Id. at 687:13–14. Despite this assertion, Dr. Day later testified that he did not criticize Dr. Bahgat’s decision to not install a drain after the re-exploration surgery. See id. at 751:5–11. Dr. Day maintained this assertion, even though the repair of the dural tear in the re-exploration surgery consisted of many more layers than the first repair (as well as a suture). See id. at 751:12–14. Dr. Day later agreed with the Government’s assertion that one reason Dr. Bahgat would not have used a drain in the second surgery is “because the fluids had gone down and the drains had done their job . . . .” Id. at 766:5–11. 296 See id. at 688:2–689:10. 297 Id. at 716:15–17. 298 Id. at 716:20–24. 299 Id. at 729:25–730:4.

45 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 46 of 107

on to testify that, “[i]f you have an active leak, you’re not going to use a drain . . . you’re not going

to put a drain in and continue to suck out spinal fluid.”300 Furthermore, when asked whether he

had ever placed a drain in a situation where he did not achieve a sufficient closure of the dural tear,

Dr. Day testified: “No. If there’s—if I couldn’t fix—if I couldn’t fix it with suture or with a graft

and then prove that nothing’s coming with a Valsalva maneuver, then, no, that’s not something

that anybody would do.”301 Again, according to Dr. Day, no neurosurgeon in his right mind would

place a drain in that situation.302 This opinion was clearly given to a reasonable degree of medical

certainty.

Considering Dr. Taylor’s and Dr. Day’s expert testimony (to a reasonable degree of

medical certainty) about the use of the Valsalva maneuver and the placement of a drain after a

dural tear, Plaintiffs have proved by a preponderance of the evidence that the standard of care

requires a doctor to (1) check—either by way of the Valsalva maneuver or reverse Trendelenburg

position—that the repair of a dural tear is sufficiently sealed, and (2) not place a drain—whether

gravity, negative pressure, or high suction—if the doctor cannot determine that the repair of the

dural tear is sufficiently sealed.

II. Deviation From the Standard of Care

Plaintiffs must also prove by a preponderance of the evidence that Dr. Bahgat “failed to act

in accordance with” the applicable standard of care—i.e., that Dr. Bahgat did not test the

sufficiency of the secondary repair’s seal, but he nevertheless installed a drain.303 Because the

Court has found that Dr. Bahgat did not perform the Valsalva maneuver or otherwise test the

300 Id. at 730:4–5, 10–11. 301 Id. at 764:7–13. 302 See id. at 764:14–17. 303

(a)(2).

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sufficiency of the secondary repair’s seal, Plaintiffs have proved by a preponderance of the

evidence that Dr. Bahgat failed to act in accordance with the applicable standard of care by placing

a JP drain.304

Both Dr. Taylor and Dr. Day testified that, to a reasonable degree of medical certainty, the

installation of a drain after a secondary repair falls below the standard of care when the seal of the

secondary repair has not been tested to see whether the seal was sufficient. These opinions were

clearly made to a reasonable degree of medical certainty. And even though Dr. Day testified that

physician judgment is a part of neurosurgery—particularly in the context of weighing the risks of

surgery and the likelihood of more common complications versus less common complications—

he did not testify that physician judgment allows a surgeon to place a drain in the absence of a

confirmed watertight seal of a dural tear.305 Considering this, Plaintiffs have proved by a

preponderance of the evidence that Dr. Bahgat failed to meet the standard of care by installing a

drain (whether a gravity drain or other type of drain) without first performing the Valsalva

maneuver to confirm a watertight seal of the dural tear.

III. Proximate Cause

Finally, Plaintiffs must prove (by a preponderance of the evidence) that, “as a proximate

result” of Dr. Bahgat’s failure to act in accordance with the applicable standard of care, Mr. Dobbs

“suffered injuries that would not otherwise have occurred.”306 “[I]t is not enough for an expert to

304 The Government all but conceded during closing arguments that, if the Court finds that Dr. Bahgat did not perform the Valsalva maneuver or otherwise check the sufficiency of the secondary repair’s seal, the Government loses on the standard-of-care and breach issues. See Tr. of Bench Trial (Doc. 48) at 968:1–970:14. 305 See Tr. of Bench Trial (Doc. 47) at 713:12–22. Again, a watertight seal is possible even with a secondary repair. See, e.g., Tr. of Bench Trial (Doc. 45) at 196:9–23. When the Valsalva maneuver is used, and no CSF leaks, a watertight seal is confirmed. See

at 66:3–11. 306

(a)(3).

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opine that there was negligence that was the proximate cause of the alleged damages.”307 “The

opinion must be stated within a reasonable degree of medical certainty or probability.”308 That

standard has been satisfied here.

Under Arkansas law, for a cause to be considered a proximate cause of injury, the cause

must be a but-for cause of the injury.309 However, while that is necessary, it is not sufficient.310

In addition, there must be a sufficiently tight, legally cognizable nexus between the cause and the

injury.311 In short, a “[p]roximate cause is ‘that which in a natural and continuous sequence,

unbroken by any efficient intervening cause, produces the injury, and without which the result

would not have occurred.’”312 That is, Plaintiffs must prove “causation in fact and legal

causation.”313

The Court has already found above—based on the expert medical testimony given to a

reasonable degree of medical certainty—that Mr. Dobbs’s brain hemorrhage was a direct result of

the continuous, post-operative CSF leak, which occurred because of the use of a drain without

confirmation of a watertight seal of the intraoperative dural tear. The Court’s findings above

already satisfy but-for (factual) causation. Without the continuous post-operative CSF leak, there

would have been no brain sag and no brain hemorrhage. Legal causation is also satisfied by the

Court’s previous factual findings. The line from using a drain in the absence of a confirmed

307 Williamson,

,

. 308

309 See Ford v. St. Paul Fire & Marine Ins. Co.,

,

, 462–63 (1999) (explaining that the Arkansas Medical Malpractice Act “implements the traditional tort standard of requiring proof that but for the tortfeasor’s negligence, the plaintiff’s injury or death would not have occurred[]” (internal quotation marks omitted)). 310 See

(a)(3). 311 See

312 Dodson v. Charter Behav. Health Sys. of Nw. Ark., Inc.,

,

(1998) (quoting Union Pac. R.R. Co. v. Sharp,

,

(1997)). 313

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watertight seal of the dural tear, to the continuous post-operative CSF leak, to the brain sag, to the

brain hemorrhage, is short, direct, and unbroken by any intervening cause. The trial testimony

shows this to a reasonable degree of medical certainty. The Court now turns to damages.

FINDINGS OF FACT – DAMAGES

1. When Mr. Dobbs suffered the brain hemorrhage, he was 61 years old.314

2. Mr. Dobbs is a retired United States Marine.315 He served in the Marines for 32

years.316

3. While in the Marines, Mr. Dobbs completed multiple combat tours.317 He also

served as a drill instructor and aircraft structures mechanic.318

4. Mr. Dobbs is married to Eileen Dobbs, and they have been married since June

2015.319

5. Mr. Dobbs first saw Dr. Bahgat about neck and arm pain in June of 2017.320

Dr. Bahgat ordered physical therapy and a regimen of steroid injections.321 Mr. Dobbs returned

for a follow-up appointment with Dr. Bahgat in September of 2017 and reported that his neck pain

had improved.322 But Mr. Dobbs now complained about lower back pain, so Dr. Bahgat ordered

imaging and more physical therapy.323

314 See Tr. of Bench Trial (Doc. 45) at 54:11–12. 315 See, e.g., Tr. of Bench Trial (Doc. 47) at 576:22. 316 See

317 See

at 577:6–13. 318 See Tr. of Bench Trial (Doc. 48) at 880:19–24. 319 See Tr. of Bench Trial (Doc. 47) at 574:19–24. 320 See Pls.’ Trial Ex. 1 at 1709; Tr. of Bench Trial (Doc. 46) at 248:17–24. 321 See Pls.’ Trial Ex. 1 at 1709 (“[W]ill order PT and and [sic] ESI and will FU in 3 months . . . .”). 322 See Tr. of Bench Trial (Doc. 46) at 250:14–20. 323 See

at 250:20–25; Pls.’ Trial Ex. 1 at 1671.

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6. As reflected in Dr. Bahgat’s September 2017 notes, Mr. Dobbs “ha[d] noweakness

[sic], no bowel or bladder problems[.]”324 Dr. Bahgat’s physical exam of Mr. Dobbs showed that

Mr. Dobbs was “[a]lert and oriented to person, place” and had “[f]luent comprehensive speech.”325

Mr. Dobbs had “[n]o dysarthria, no dysphasia[,] CN II-XII grossly intact.”326 Dr. Bahgat also

observed that Mr. Dobbs’s “[f]ace [was] symmetric with no mouth droop.”327 Concerning

Mr. Dobbs’s motor power and strength, Dr. Bahgat noted that “Right UE 5/5, LE 5/5[,] [l]eft UE

5/5, LE 5/5[,] [n]ormal tone and bulk bilaterally[,] [c]erebellar function with finger-to-nose testing

normal[,] [s]ensation to light touch and pin prick is normal[,] [r]eflex are normal, [n]egative

Babinski sign[,] [g]ait normal, [and] kyphotic posture.”328 Dr. Bahgat also noted that Mr. Dobbs

had an earlier “lumbar decompression” surgery in August 2016.329 Dr. Bahgat’s assessment of

Mr. Dobbs in September 2017 provided:

X-ray shows L3-4 laminectomy[,] patient has kyphotic posture, will order [a] long spine x-ray to assess his sagital [sic] balance[,] will start PT to help with his muscle stifness [sic] and range of motion since with effort he is able to stnad [sic] up stright [sic] and if needed will order an ESI. If these maesures [sic] fail will need an MRI to better assess his spinal condition but will wait for now.330

The Court finds all these notes to be an accurate reflection of the facts.

7. Mr. Dobbs returned to Dr. Bahgat in February 2018 for another follow-up

appointment.331 At that visit, Mr. Dobbs “complain[ed] of constant aching lower lumbar pain in

324 Pls.’ Trial Ex. 1 at 1669. 325 Id. at 1670. 326 Id. 327 Id. 328 Id. at 1670–71. 329 Id. at 1669. 330 Id. at 1671. 331 See id. at 1628.

50 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 51 of 107

the midline that increases with sitting and relieved partially with standing.”332 Mr. Dobbs also

complained to Dr. Bahgat that the pain sometimes radiated to his inner thigh and groin.333 Despite

chiropractic adjustments and steroid injections, Mr. Dobbs complained that “[h]is pain ha[d]

become increasingly intense[,]” which “affected his day-to-day living and ability to bend[,] sits

[sic] and even sleep comfortably.”334

8. Based on this, Dr. Bahgat’s assessment of, and plan for, Mr. Dobbs was as follows:

Patient’s MRI shows multilevel degenerative disc disease with spondylosis and a right L2-3 disc collapse with root compression. His standing MRI shows a positive sagittal balance of 4-5 cm.

Patient has back pain with significant spondylosis Modic changes at multiple levels. I explained to the patient if his main problem is his leg pain and an L2-3 decompression would help with his radicular pain. The patient states that his main problem is his back in this case he would require a multilevel fusion. The patient has not had any recent physical therapy and and [sic] would like to try that prior to having an extensive procedure.

Will plan for physical therapy if that fails then the patient may require an L2-S1 fusion either from a combined anterior and posterior approach O just posterior approach. Patient will follow up according to his progression with physical therapy.335

Mr. Dobbs followed Dr. Bahgat’s direction and went to physical therapy.336

9. Mr. Dobbs again saw Dr. Bahgat in July 2018.337 By this point, Mr. Dobbs had

“tried physical therapy and injections but his pain ha[d] continued to progress.”338 As the July

332 Id. 333 Id. 334 Id. Dr. Bahgat’s observations of Mr. Dobbs’s neurological and motor strength characteristics were unchanged from the September 2017 examination, except that Dr. Bahgat now characterized Mr. Dobbs’s kyphotic posture as “slight[.]” Compare id., with id. at 1670–71. 335 Id. at 1628. 336 See Tr. of Bench Trial (Doc. 45) at 174:7–17; Pls.’ Trial Ex. 1 at 1614. 337 See Pls.’ Trial Ex. 1 at 1614. 338 Id.

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2018 medical records reflect, Mr. Dobbs’s “pain [was] a constant aching pain in his low lumbar

region” that radiated into his legs and “affect[ed] his walking standing up all all [sic] activity.”339

But Mr. Dobbs “ha[d] no weakness and no focal deficits.”340

10. Mr. Dobbs’s pre-surgery “MRI showed multilevel degenerative disc disease with

spondylosis and Modic changes at the L2-3 and also extensive changes at L3-4 L4-5 and L5-

S1.”341

11. Based on the foregoing, before the brain hemorrhage, Mr. Dobbs suffered from

some chronic back pain, but otherwise had normal cognitive and neurological functions. The back

pain made some daily activities more difficult and painful, but it did not appear to prevent him

from doing the normal activities of daily life.

12. After the brain hemorrhage, Mr. Dobbs’s physical and cognitive abilities were

severely diminished. For example, he had expressive aphasia—i.e., the inability to speak—on the

morning after the surgery.342 A little over a week later, on October 18th, Mr. Dobbs had

spontaneous, non-purposeful movement.343 Mr. Dobbs was able to “[f]urrow[] [his] brow to

noxious stimuli.”344 But he did not obey commands.345 Mr. Dobbs could not grip with either

339 Id. 340 Id. 341 See id. at 1985. 342 See id. at 1540; Tr. of Bench Trial (Doc. 45) at 113:25–114:2. 343 See Pls.’ Trial Ex. 1 at 1065, 1076, 1082. 344 See id. 345 See id.

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hand.346 His right hand was curled tight, and his left hand was flaccid.347 As the medical notes

say, Mr. Dobbs had a “[n]eurologial impairment due to CVA[.]”348

13. On October 19th, Mr. Dobbs had “some neurological improvement although it

[was] fluctuating[.]”349 Mr. Dobbs was able to wiggle his toes on command and, in one instance,

was able to give a thumbs-up.350

14. On October 20th, Mr. Dobbs was transferred via helicopter to Houston Methodist

Hospital, where he was admitted to the neuro-intensive care unit (“NICU”).351

15. Upon admission to Houston Methodist Hospital, it was determined that Mr. Dobbs

had suffered a frontal intracranial hemorrhage and a bilateral cerebellar intracranial hemorrhage

and had acute respiratory failure.352 He was in a coma and had to be put on a ventilator.353 On

October 22nd, doctors at Houston Methodist determined it was necessary to place a feeding tube

and perform a tracheotomy.354 Although the Court cannot determine from the Houston Methodist

medical records when Mr. Dobbs awoke from his coma, the reasonable inference from the

evidence is that he awoke well before November 20th.

16. In any event, Mr. Dobbs underwent a month of treatment at Houston Methodist’s

NICU before doctors concluded that “admission to inpatient rehabilitation [was] medically

346 See id. at 1055, 1065, 1076, 1082. 347 See id. 348 Id. at 1065, 1076, 1082. “CVA” is a cerebrovascular accident. 349 Id. at 1017. 350 See id. 351 See id. at 953; Pls.’ Trial Ex. 6 at 1, 495. 352 See Pls.’ Trial Ex. 6 at 4, 16, 24, 26. 353 See id. at 16; Pls.’ Trial Ex. 1 at 971, 1054. While at Houston Methodist, Mr. Dobbs developed several additional complications, including a urinary tract infection, a pulmonary embolism, and deep vein thrombosis. See Pls.’ Trial Ex. 6 at 474. 354 See Pls.’ Trial Ex. 6 at 15.

53 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 54 of 107

necessary.”355 On November 20th, Mr. Dobbs was discharged from the NICU and entered

inpatient rehabilitation.356 His discharge notes showed that Mr. Dobbs had “gradually

improved . . . .”357

17. Among the goals of Mr. Dobbs’s admission to the in-patient rehabilitation program

were to “improve functional independence and decrease caregiver burden[.]”358 To accomplish

these goals, Mr. Dobbs would need:

24 hour rehabilitation nursing for management of bowel, bladder, skin integrity, medication management, safety measures and preventing risk factors and complications . . . [and] will require a minimum of 15 hours every 7 days throughout the hospitalization, including at least the following: 1-2 hours Physical Therapy, 1-2 hours Occupational Therapy and 1 hour Speech-Language pathology, Neuropsychology. These disciplines will be needed in order to improve [Mr. Dobbs’s] impairments in mobility, transfers, activities of daily living, swallowing and cognition and evaluation of durable medical equipment if needed at discharge.359

18. On December 12, 2018, Mr. Dobbs was discharged from Houston Methodist’s in-

patient rehabilitation and returned to his home in Cotter, Arkansas.360 As the discharge notes

showed, Mr. Dobbs was “referred to [r]ehab for extensive therapy services and for further medical

management & close monitoring of his medical condition.”361

355 Id. at 474. 356 See id. 357 Id. at 149. 358 Id. at 487. 359 Id. at 488. 360 Id. at 519. 361 Id. at 513.

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I. Personal Observations of Mr. Dobbs’s Post-Hemorrhage Changes

19. Mrs. Dobbs testified that, before the brain hemorrhage, Mr. Dobbs was “very

strong” and “very physically fit.”362 Now he is “weaker and very unstable.”363 The Court credits

this testimony and finds it as fact.

20. However, that is not the whole picture. Despite Mrs. Dobbs’s description of her

husband’s diminished physical abilities, he still suffered from some physical deficits before his

brain hemorrhage. Mr. Dobbs had chronic back pain (the underlying reason for the

laminectomy).364 He also suffered from lumbar spondylosis, osteoarthritis, degenerative joint

disorder, cervical disc disorder, hypertension, and gastroesophageal reflux disease (“GERD”), and

he had problems with neck pain that radiated to his shoulder.365 Mrs. Dobbs testified that

Mr. Dobbs “had trouble with his hands” before the brain hemorrhage.366 He also had problems

with his gait, and he was diagnosed with neuropathy before the brain hemorrhage.367 As a result,

he had some balance issues and problems with falling before he suffered the brain hemorrhage.368

He also (at least in 2016) had difficulty walking barefoot and experienced dizziness and light-

362 Tr. of Bench Trial (Doc. 47) at 635:9–13. 363 Id. at 635:14–16. 364 See, e.g., Tr. of Bench Trial (Doc. 46) at 367:8–10; Tr. of Bench Trial (Doc. 47) at 639:5–17, 670:18–21; Tr. of Bench Trial (Doc. 48) at 824:24–825:1. 365 See, e.g., Tr. of Bench Trial (Doc. 45) at 249:20–24; Tr. of Bench Trial (Doc. 46) at 367:11–24; Tr. of Bench Trial (Doc. 48) at 825:2–10. 366 Tr. of Bench Trial (Doc. 47) at 568:13–14. 367 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:3–4; Tr. of Bench Trial (Doc. 47) at 568:12; Tr. of Bench Trial (Doc. 48) at 825:11–12. 368 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:5–7; Tr. of Bench Trial (Doc. 48) at 825:13–15; Pls.’ Trial Ex. 1 at 1805.

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headedness when standing.369 And on top of all that, he suffered from general high levels of

pain.370 Again, all of this was before the brain hemorrhage.

21. As Mrs. Dobbs testified, Mr. Dobbs likes to fish, and the two of them used to go

out on their boat together every week.371 They would also hike through the woods on their property

and ride four-wheelers around the neighboring properties.372

22. After the brain hemorrhage, Mr. Dobbs can no longer fish or go out on his boat.373

The one instance when Mr. Dobbs tried to take his boat out after his brain hemorrhage “turned into

a disaster[,]” and Mr. Dobbs’s daughter’s boyfriend had to “jump into the driver’s seat . . . .”374

Mr. Dobbs has not attempted to drive the boat since this incident because Mrs. Dobbs “won’t let

him.”375

23. Nor can Mr. and Mrs. Dobbs go on walks or hikes around their property anymore.376

Mrs. Dobbs credibly testified that, after the brain hemorrhage, Mr. Dobbs “can’t do it anymore

[because] [h]e doesn’t have the balance . . . [and] [their] land is not flat . . . .”377 Mrs. Dobbs

credibly explained that “even if there’s a rock on the road, [Mr. Dobbs] can trip over that.”378

369 See Pls.’ Trial Ex. 1 at 1821–22. 370 See, e.g., Tr. of Bench Trial (Doc. 46) at 368:8–10; Tr. of Bench Trial (Doc. 48) at 825:16–17. Mr. Dobbs also had an earlier back surgery and knee replacement in 2016, and an arthroscopy of his right shoulder in 2017. Tr. of Bench Trial (Doc. 47) at 586:14–22; Tr. of Bench Trial (Doc. 48) at 826:19–827:2. 371 See Tr. of Bench Trial (Doc. 47) at 580:15–581:5. 372 See id. at 584:22–585:5, 635:17–25. 373 See id. at 581:17–582:1. 374 Id. at 582:4–10. 375 Id. at 582:18–22. 376 Id. at 636:7–9. 377 Id. at 636:11–13. 378 Id. at 636:14–15.

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24. Mr. Dobbs has stopped driving his tractor around his nine-acre property since his

brain hemorrhage.379 While he has been able to drive his four-wheeler “down to get the mail and

drive it back up[,]” he does not drive the four-wheeler around their property (or any of the

neighboring property) like he used to do.380 He has, however, visited his neighbor “once in a while

on his four-wheeler . . . .”381

25. A neurologist signed off on Mr. Dobbs driving a car.382 But Mrs. Dobbs testified

that she doesn’t believe Mr. Dobbs is capable of driving safely.383 She explained at trial that:

You need to be able to do several different things as you’re driving, and his focus is not clear, and I think, you know, I mean, you’re holding a steering wheel, you’re looking out the window, you’re looking in all your mirrors, brake, you know, all that. I think that’s really difficult for him to handle.384

Mrs. Dobbs’s concerns notwithstanding, Mr. Dobbs still drives alone maybe once or twice a

week.385 Typically, Mr. Dobbs drives “[j]ust to town and back, about 12 miles on a back road,

country road.”386

26. Since the brain hemorrhage, Mrs. Dobbs has ridden in a vehicle with Mr. Dobbs

while he was driving.387 She testified that the experience was “[s]cary” because “he kinda swerves

a little bit here and there . . . drives a little too fast . . . [and] [she’s] always worried whether or not

379 See id. at 584:21–22. Mrs. Dobbs testified that Mr. Dobbs “loves his tractor[,]” and it’s his “favorite little toy.” Id. at 584:10–11. 380 Id. at 584:22–585:5. The Court finds that any gait issues or pain Mr. Dobbs had prior to the brain hemorrhage did not prevent him from taking such walks or hikes. 381 Id. at 572:5. 382 See id. at 648:23–25. 383 See id. at 649:1–9. 384 Id. at 649:4–9. 385 See id. at 650:20–25. 386 Id. at 651:1–3. 387 See id. at 649:10–12.

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he’s going to hit the brake in time.”388 The Court finds that, for now, Mr. Dobbs can drive a car.

But the Court also finds that he does so less frequently, less safely, and less enjoyably than he did

before the brain hemorrhage.389

27. Based on these facts, the Court finds that Mr. Dobbs can physically drive several

types of vehicles, but it is far more difficult and dangerous for him to do so than it was before the

brain hemorrhage. This is the reason he limits his use of the vehicles.

28. As Mrs. Dobbs testified, Mr. Dobbs loves gardening, and it is one of his favorite

things to do.390 Before the brain hemorrhage, Mr. Dobbs had planted trees and a garden on the

Dobbs’ property, and “he took care of it immaculately.”391 Before the brain hemorrhage,

Mr. Dobbs and his neighbor Mr. Hussey felled trees, worked in each other’s yards, and split wood

together.392 They also “moved a bunch of boulders around and made a big fire pit.”393

29. Mrs. Dobbs testified, and the Court finds as fact, that gardening has become

“dangerous” for Mr. Dobbs since the brain hemorrhage.394 It is now “more of a trip hazard than

enjoyable.”395 Mrs. Dobbs credibly recounted one instance when Mrs. Dobbs found Mr. Dobbs in

the garden “literally laying facedown with his arms stuck behind his back, with the hose right in

388 Id. at 649:14–19. 389 The Court also finds that any medical problems present before the brain hemorrhage did not affect Mr. Dobbs’s ability to drive any vehicle normally or safely. 390 See id. at 578:23–579:1. 391 See id. at 571:13–14. 392 Id. at 564:17–18, 569:9–11. 393 Id. at 564:20. Again, whatever gait issues or pain Mr. Dobbs had before the brain hemorrhage, they did not interfere with his ability to garden or work outdoors. See, e.g., id. at 571:13–14. 394 Id. at 579:4–5. 395 Id. at 579:5–7.

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his face.”396 Since that incident, “[h]e’s not allowed to go anywhere near the hose, because . . .

it’s just hazardous for him.”397

30. Mr. Hussey hasn’t split any wood with Mr. Dobbs since Mr. Dobbs returned from

the hospital.398 Indeed, as of the time of the trial, Mr. Hussey and another neighbor have had to

do some of the yardwork for the Dobbses that Mr. Dobbs would have done in the past.399

31. Before he suffered the brain hemorrhage, Mr. Dobbs had taken up the hobby of

woodworking.400 Some of the fruits of his woodworking hobby were birdhouses, a chicken coop,

and decorations for his home.401

32. Mr. Dobbs has attempted to do some woodworking since the brain hemorrhage, but

that endeavor resulted in him cutting his hand open with the saw.402 He has not tried to do any

woodworking since he cut his hand because Mrs. Dobbs “won’t let him.”403

33. As Mr. Hussey credibly testified, he and Mr. Dobbs joined a group called the

Crosstrail Outfitters several years before Mr. Dobbs’s brain hemorrhage.404 The group worked

with young boys and girls, and Mr. Dobbs used his military experience to teach them about firearm

safety.405 Additionally, Mr. Hussey also credibly testified that before Mr. Dobbs suffered the brain

396 Id. at 579:21–23. 397 Id. at 580:8–10. 398 Id. at 569:12–17. 399 Id. at 568:23–569:8. 400 See id. at 630:14–631:4. 401 See id. at 630:22–631:4. 402 See id. at 631:7–19. 403 Id. at 631:20–24. 404 See id. at 564:20–25. 405 See id. at 564:20–565:5.

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injury, he and Mr. Dobbs would go on hog hunts, fishing trips, and camping outings together.406

There’s no suggestion in the record that Mr. Hussey does any of these things with Mr. Dobbs now.

And there’s no suggestion in the record that Mr. Dobbs does any of these things now on his own

or with others—certainly not to the extent he did before the brain hemorrhage. To be complete,

there’s nothing in the record to suggest that Mr. Dobbs doesn’t do any of these things now. But,

that is a reasonable inference from the rest of the evidence. In any event, Mr. Hussey’s credible

testimony concerning what he and Mr. Dobbs did together before the brain hemorrhage is helpful

evidence to round out the picture of who Mr. Dobbs was and how he socialized before the brain

hemorrhage.

34. As Mr. Hussey credibly testified, Mr. Dobbs was very structured and organized.407

This was reinforced by Mrs. Dobbs, who credibly testified that “[e]verything” with her husband

was “neat and tidy, meticulous.”408 When asked how Mr. Dobbs was at managing multi-tasking

before his brain hemorrhage, Mrs. Dobbs credibly testified that “[h]e could pretty much do just

about anything. He could . . . do a whole bunch of different things all at once.”409 She credibly

testified that he was a self-sufficient man.410 The Court finds all this as fact.

35. Things have been different since the brain hemorrhage. Now, Mr. Dobbs “leaves

everything kinda messy[,]” and Mrs. Dobbs has to pick up after him.411 Before the brain

hemorrhage, Mr. Dobbs would shower every day and sometimes twice a day.412 Now, he usually

406 See id. at 565:11–21. 407 See id. at 573:12–14. 408 Id. at 624:6–7. 409 Id. at 624:19–22. 410 See id. at 631:25–632:2. 411 Id. at 625:16–21. 412 See id. at 624:9–11.

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only showers once a week.413 When Mr. Dobbs has tried to do laundry, he has been unable to turn

the dryer on.414 Relatedly, even though Mr. Dobbs was once “the griller of the house[,]” there

have been several instances since the brain hemorrhage when he has forgotten to turn the heat off

after he has cooked something.415

36. Since the brain hemorrhage, Mrs. Dobbs must help her husband get dressed in the

morning because “he has a really hard time putting socks and shoes on and putting his feet, like,

into pants and stuff like that.”416

37. In the same vein, Mrs. Dobbs credibly testified that she now has to be careful with

her husband everywhere they go.417 She credibly explained that, “if [they] go to the grocery store,

to keep him in check, he’s the one that’s pushing the cart. And sometimes he can stay in the aisle,

and sometimes he’ll just, like, sway over, you know, and I kinda hold the front of it and kinda

guide it along sometimes.”418 There is no suggestion that similar caution was required before the

brain hemorrhage.

38. Whenever the Dobbses leave their home, Mrs. Dobbs is “always scoping out where

[they’re] going, where [they’re] walking, if there’s steps, if there’s something to hold on to [sic],

413 See id. at 624:12–18. 414 See id. at 633:13–25. 415 Id. at 634:13–635:8. 416 Id. at 626:24–627:2. As noted in paragraph 75, infra, one of the expert witnesses testified that Mr. Dobbs could dress himself with the exception of being able to put on his socks or shoes. See Tr. of Bench Trial (Doc. 48) at 830:6– 10. There is no real conflict between this testimony and Mrs. Dobbs’s testimony. Both the expert witness and Mrs. Dobbs say that Mr. Dobbs can’t put on his socks and shoes by himself. See Tr. of Bench Trial (Doc. 47) at 626:24– 627:2; Tr. of Bench Trial (Doc. 48) at 830:6–10. And while Mr. Dobbs may be physically able to put on his pants, that does not mean it is not a difficult task for him—one for which he often seeks help from Mrs. Dobbs. See Tr. of Bench Trial (Doc. 47) at 626:24–627:2. 417 See Tr. of Bench Trial (Doc. 47) at 636:15–19. 418 Id. at 636:22–637:1.

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if there’s any kind of trip thing that [Mr. Dobbs] might trip on.”419 And “sitting is a big thing.”420

Mr. Dobbs must always have a stable chair to sit in.421 The chair can’t roll or be too light, and it

must have arms so he can get himself up.422

39. Mrs. Dobbs also credibly testified that, before the brain hemorrhage, her husband

was “brilliant at math.”423 It’s not clear what brilliant means in her testimony, but the Court finds

that Mr. Dobbs was competent in math before the brain hemorrhage. After the brain hemorrhage,

Mr. Dobbs “can barely add or subtract . . . .”424 Nor can he make any financial decisions.425

40. Mrs. Dobbs testified that he used to be “very outgoing and loved to talk with

people” and “very much” liked to spend time with his friends and family.426 While the record

suggests that might be a bit of an overstatement, the Court does find that Mr. Dobbs was able to

socialize (within normal limits) before the brain hemorrhage. 427 Since the brain hemorrhage, Mr.

Dobbs keeps to himself, and “it’s very hard for him to follow along in a conversation and to

participate . . . in what we’re talking about.”428 Combined with the findings of fact made in

Paragraph 33 above, the Court finds Mrs. Dobbs’s observations of how her husband has changed

socially to be credible.

419 Id. at 627:19–22. 420 Id. at 627:22. 421 See id. at 627:22–23. 422 See id. at 627:23–628:1. 423 Id. at 625:9. 424 See id. at 625:11. 425 See id. at 634:5–7. 426 Id. at 625:22–626:1. 427 As Mr. Hussey credibly testified, he and Mr. Dobbs had “been in each other’s face” before the brain hemorrhage. Id. at 570:20–21. Also, there is some evidence of mood problems in Mr. Dobbs’s pre-brain-hemorrhage history. See, e.g., Tr. of Bench Trial (Doc. 46) at 375:2–11. 428 Tr. of Bench Trial (Doc. 47) at 626:3–7.

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41. Before the brain hemorrhage, Mr. and Mrs. Dobbs had an intimate sexual

relationship on a regular basis.429 But since his brain hemorrhage, the Dobbses have not been able

to enjoy that type of relationship.430 Mrs. Dobbs testified that, despite attempts to do so, it’s very

difficult for them and “just doesn’t work.”431 The Court finds this as a fact—specifically, that the

Dobbs’ intimate sexual relationship has significantly suffered (if not entirely ended) since the brain

hemorrhage.

42. Mr. Hussey credibly testified that Mr. Dobbs is “180-degree[s] different . . . he’s

not the same person.”432 Mr. Hussey credibly testified that Mr. Dobbs “remembers things, but not

like with the clarity that he did before. And his emotions are—he’s more—he was kinda combative

before because of his military experiences . . . [a]nd now it’s, he’s just not the same person. It’s a

personality change for me, you know.433 According to Mr. Hussey, Mr. Dobbs was “a strong[,]

opinionated guy” before the brain hemorrhage, but “[n]ot so much now.”434 The Court finds all

this as fact.

43. Mrs. Dobbs’s testimony about Mr. Dobbs’s emotional capacity after his

hemorrhage was similar. For example, she credibly testified that Mr. Dobbs no longer has an

identity.435 He wonders what he is good for and why he is here.436 Mr. Dobbs used to never stop

working from the time he woke up until it was time for dinner.437 “[He] was always busy and

429 See id. at 629:25–630:4. 430 See id. at 630:5–7. 431 See id. at 630:8–12. 432 Id. at 569:22–570:1. 433 Id. at 570:1–8. 434 Id. at 570:21–22. 435 See id. at 637:23. 436 See id. at 637:25. 437 See id. at 637:12–21.

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active and doing something physical.”438 But now, “he watches TV a lot during the day.”439 She

credibly testified that she believes “he’s kind of almost given up . . . .”440 Nevertheless, Mr. Dobbs

is still able to help around the house some.441 For example, he can still fill the bird feeders, and he

can retrieve the mail.442 The Court finds all this as fact. The Court acknowledges that there is

evidence that Mr. Dobbs had some mood and emotional problems before the brain hemorrhage.

But the evidence does not suggest those problems ever caused him to act in the way he has acted

since the brain hemorrhage, as described in this paragraph and the preceding paragraph.

II. Expert Opinions Concerning Mr. Dobbs’s Post-Hemorrhage Changes

44. Dr. Moore was called by Plaintiffs as an expert witness to explain the effects of

Mr. Dobbs’s brain hemorrhage and to consider Mr. Dobbs’s neurological status pre- and post-

hemorrhage.443

45. In reviewing Mr. Dobbs’s pre-hemorrhage medical records, Dr. Moore testified that

Mr. Dobbs suffered from no cognitive impairments before his brain hemorrhage.444 The Court

finds Dr. Moore’s testimony on this point highly credible and accepts it as fact. Among other

things, this is consistent with Dr. Bahgat’s pre-hemorrhage impressions of Mr. Dobbs,

Mrs. Dobbs’s pre-hemorrhage impressions of Mr. Dobbs, Mr. Hussey’s pre-hemorrhage

impressions of Mr. Dobbs, and Mr. Dobbs’s pre-hemorrhage medical records as a whole.

438 Id. at 637:20–21. 439 See id. at 632:8–9. 440 Id. at 632:7–8. 441 See id. at 632:9. 442 See id. at 584:22–23, 632:9–11. 443 See generally Tr. of Bench Trial (Doc. 46) at 330:1–384:1. Dr. Moore was accepted as an expert in neurology without objection. See id. at 329:19–24. Because Dr. Moore is not a neurosurgeon, he did not render standard-of- care opinions. See id. at 365:12–16. 444 See id. at 330:1–4.

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46. Dr. Moore did acknowledge that pre-hemorrhage medical records suggested that

Mr. Dobbs suffered from PTSD, mood disorders, opioid addiction, suspected bipolar disorder

(otherwise known as manic depressive disorder), irritability, emotional outbursts, cluster B

disorder, and difficulty concentrating.445 It does not appear to the Court that Mr. Dobbs was ever

formally diagnosed with ADHD (despite receiving an on-and-off prescription for Adderall before

the hemorrhage).446 Nor was he formally diagnosed with PTSD.447 The formal diagnosis and

treatment of the other suggested disorders is also unclear.448 Given the state of the record—

including the absence of formal diagnoses—the Court does not find that Mr. Dobbs had specific

disorders like PTSD, ADHD, or bipolar disorder prior to (or after) the hemorrhage. But the Court

can and does find that Mr. Dobbs had some unspecified behavioral and emotional issues before

the hemorrhage. The Court further finds those issues were serious enough to be observable, but

not so bad as to significantly interfere with Mr. Dobbs’s daily life.

47. Dr. Moore conducted an in-person physical examination of Mr. Dobbs in

November 2021.449 At the time of the examination, Mr. Dobbs’s “gait was a bit unsteady[]” and

“[h]e wasn’t that talkative.”450 Additionally, Mr. Dobbs “had some short-term memory deficit[,]”

as well as “some asymmetry of his reflexes on the right compared to the left.”451 And he (and his

445 See id. at 368:17–378:6. The records do note that Mr. Dobbs was “not agreeable” to taking psychiatric medication. See id. at 375:12–15; Pls.’ Trial Ex. 1 at 1959. 446 See Tr. of Bench Trial (Doc. 46) at 381:10–383:17; Tr. of Bench Trial (Doc. 48) at 866:3–5, 868:5–21; Pls.’ Trial Ex. 1 at 1959–62. 447 See Tr. of Bench Trial (Doc. 48) at 866:5–6, 869:2–874:14; Pls.’ Trial Ex. 1 at 1951–54. 448 See generally Tr. of Bench Trial (Doc. 46) at 368:17–383:17; Tr. of Bench Trial (Doc. 48) at 869:2–874:14; Pls.’ Trial Ex. 1 at 1951–56, 1958–62. 449 See Tr. of Bench Trial (Doc. 46) at 355:12–18. 450 Id. at 355:19–22. 451 Id. at 356:15–16.

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wife) complained to Dr. Moore of balance issues that had gotten worse since the hemorrhage.452

Dr. Moore credibly opined that all of the foregoing was consistent with the hemorrhagic injury

Mr. Dobbs suffered.453 The Court finds this testimony highly credible and accepts it as fact.454

48. In forming his opinions, Dr. Moore also reviewed a report prepared by another of

Plaintiffs’ experts, Dr. Joyce. Dr. Joyce’s report will be discussed in more detail below, but

essentially the report provides evaluation and testing showing that Mr. Dobbs’s post-hemorrhage

intellectual functioning is quite low. Dr. Moore credibly opined that Dr. Joyce’s report “tied things

together nicely, based on what we saw on his neuroimaging, what his family reported, and then

what Dr. Joyce found.”455 Dr. Moore credibly opined that the IQ scores on Dr. Joyce’s reports

would be entirely incompatible with Mr. Dobbs’s academic history and military career.456

Dr. Moore further credibly opined that Mr. Dobbs’s cognitive and intellectual decline was due to

the brain hemorrhage.457

49. Dr. Moore also credibly opined that Mr. Dobbs’s intellectual and cognitive

impairments affect his quality of life and activities of daily living.458 According to Dr. Moore, as

a result of the brain hemorrhage (and to a reasonable degree of medical certainty), Mr. Dobbs is

not able to live independently, make complex financial decisions, or handle tasks like grocery

452 The Court does not use this testimony for the truth of the matter asserted, but rather as information Dr. Moore relied on in forming his expert opinions. 453 See id. at 358:12–359:24. 454 Dr. Moore acknowledged that Mr. Dobbs had neuropathy and had fallen on several occasions before the hemorrhage. See id. at 359:3–12. However, Dr. Moore credibly opined that, whatever small balance issues there might have been prior to the hemorrhage, the hemorrhage was the culprit of the more serious balance issues Mr. Dobbs has now. See id. at 359:13–19. 455 See id. at 360:6–8. 456 See id. at 360:9–16. 457 See id. at 361:4–6. 458 See id. at 361:7–10.

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shopping or meal preparation without assistance.459 The Court finds this credible and accepts it as

fact.

50. In light of these deficits, Dr. Moore testified that Mr. Dobbs would potentially

benefit from ongoing therapy and cognitive rehabilitation.460 But Dr. Moore also testified that, to

a reasonable degree of medical certainty, Mr. Dobbs’s “ability to improve is limited.”461

Accordingly, Mr. Dobbs will more likely than not need lifelong assistance with activities of daily

living.462 The Court finds this credible and accepts it as fact.

51. Dr. Joyce was called as an expert witness by Plaintiffs to testify about the

neuropsychological evaluation he conducted over the course of two days in January 2022.463 The

evaluation lasted about five hours on the first day and three hours on the second day, but there

were multiple breaks for Mr. Dobbs to “recharge in between the testing.”464 The evaluation

consisted of 12 tests, with many of these tests having multiple subtests.465 These tests are

objective, standardized tests.466 They have been peer reviewed and have undergone validity and

459 See id. at 361:11–25. 460 Id. at 362:1–7, 363:13–18. 461 Id. at 363:19–21. 462 See id. at 363:25–364:4. 463 See generally id. at 385:1–419:15. The Court accepted Dr. Joyce as an expert witness without objection. See id. at 386:7–11. By his own admission, he was not qualified to testify about the neurosurgical standard of care or medical causation. See id. at 421:4–10. 464 See Tr. of Bench Trial (Doc. 46) at 388:5–10. 465 Id. at 387:25–388:2. The Government objected to the admission of a summary of these test results as evidence, which this Court sustained in part. See id. at 389:5–392:20. Dr. Joyce was allowed to use the summary as a demonstrative, but the Court did not admit the document itself as evidence. See id. at 392:14–20. 466 See id. at 388:25.

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reliability studies.467 Broadly, they test a subject’s intellectual functioning, learning and memory,

attention, and executive functioning.468

52. The first evaluation that Dr. Joyce testified about was the Wechsler Adult

Intelligence Scale.469 This test evaluates verbal comprehension, perceptual reasoning, working

memory, and processing speed.470 These four categories are measured by index scores, which are

reflected by percentages—or, more specifically, percentiles in comparison to similar individuals

in Mr. Dobbs’s age group.471 Mr. Dobbs scored in the eighth percentile in the IQ test—i.e., “he

performed better than only eight percent of the individuals in the normal sample.”472 His “full-

scale IQ” was 79, while his verbal comprehension IQ, perceptional reasoning, working memory

index, and processing speed index scores were 89, 82, 86, and 74, respectively.473

53. Dr. Joyce testified that:

Knowing what I know about [Mr. Dobbs] and his background, having obtained bachelor’s degrees, his work history is all consistent with an individual that has a much higher IQ than that. It’s consistent with somebody that has an IQ certainly within the average range. So this is significantly below what would be expected.474

The Court finds this portion of Dr. Joyce’s opinion credible and accepts it as fact.

54. Dr. Joyce also testified that he was able to gauge what Mr. Dobbs’s pre-hemorrhage

IQ was by testing Mr. Dobbs’s premorbid functioning.475 This test “involves using a person’s

467 See id. at 388:14–20. 468 See id. at 393:2–9. 469 See id. at 393:14–15. 470 See id. at 393:14–18. 471 See id. at 393:14–394:10. 472 Id. at 394:11–15. 473 Id. at 395:20–396:3. 474 Id. at 394:16–22. 475 See id. at 394:23–395:3.

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ability to pronounce unfamiliar words.”476 Mr. Dobbs’s premorbid functioning test results

revealed a range of 99 to 101 in the various index areas.477 The Court is far less certain of the

propriety, effectiveness, and reliability of this test. The Court found Dr. Joyce’s explanation of

this backward-looking test confusing, unpersuasive, and somewhat unsupported. Accordingly, the

Court finds that it does not know a specific pre-hemorrhage IQ (or even a specific range) for

Mr. Dobbs. Nonetheless, the Court finds that it is more likely than not—given Mr. Dobbs’s

academic history and military career, as well as the impressions conveyed by those who knew him

before his brain hemorrhage—that Mr. Dobbs’s pre-hemorrhage IQ was significantly higher than

it was after the brain hemorrhage.

55. To reiterate, Dr. Joyce did not base his gauge of Mr. Dobbs’s pre-hemorrhage

cognitive capacity on IQ alone.478 As alluded to above, he considered Mr. Dobbs’s educational

and vocational background.479 And Dr. Joyce also considered the fact that no mental health

professionals had identified any significant neurocognitive problems with Mr. Dobbs before he

suffered the brain hemorrhage.480 The Court finds this portion of the opinion highly credible and

adopts it as fact.

56. The next test Dr. Joyce administered was the California Verbal Learning Test.481

This test is a measure of “word list learning, and it provides an overall measure of learning, as well

476 Id. at 395:14–15. As part of the premorbid functioning test, the subject is given a set of 50 different words, which he’s asked to pronounce. See id. at 397:3–5. Unless there is a “catastrophic injury,” a person’s ability to pronounce words is one of the last skills he will lose. Id. at 397:25–398:2. This is because pronunciation is both overlearned and learned very early in life. See id. at 398:2–4. As Dr. Joyce testified, this makes the ability to pronounce words a good way to gauge someone’s earlier functioning. See id. at 398:4–6. 477 See id. at 396:9–10. 478 See id. at 398:12–16. 479 See id. at 398:18–399:11. 480 See id. at 399:12–21, 401:2–8. 481 See id. at 401:12–13.

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as measures of memory recall and memory recognition.”482 Mr. Dobbs’s overall learning score

was in the second percentile compared to individuals of a similar age.483 Dr. Joyce testified that

this score “is much, much lower than we would expect based on [Mr. Dobbs’s] background.”484

The Court finds this highly credible and adopts it as fact.

57. The California Verbal Learning Test also showed that Mr. Dobbs was in the 16th

percentile for short delay free recall, which is a measure of a person’s immediate verbal memory.485

This score was “somewhat lower than [Mr. Dobbs’s] peers,” but “wasn’t a terrible score by any

means.”486 The Court finds this highly credible and adopts it as fact.

58. The next sub-score was for long delay free recall, in which Mr. Dobbs scored in the

eighth percentile.487 According to Dr. Joyce, this indicated that Mr. Dobbs had “lost significant

amounts of information” over a period of about 25 minutes.488 Simply put, Mr. Dobbs “was not

able to efficiently recall the information.”489 The Court finds this highly credible and adopts it as

fact.

59. On the final part of the California Verbal Learning Test—the forced choice

recognition score—Mr. Dobbs scored 100 percent.490 In this test, a person is required to identify

two words that he previously saw on a list of words.491 Dr. Joyce explained that the 100-percent

482 Id. at 401:13–16. 483 See id. at 401:19–21. 484 Id. at 401:21–22. 485 See id. at 401:24–402:2. 486 Id. at 401:25–402:2. 487 See id. at 402:3. 488 Id. at 402:4–6. 489 Id. at 402:6–7. 490 See id. at 402:10–11. This score measures Mr. Dobbs’s ability to “recogniz[e] a word he previously saw.” Id. at 402:11–12. 491 See id. at 402:11–14.

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score meant that Mr. Dobbs does not have any primary memory deficit.492 Instead, Mr. Dobbs’s

“problem is much more consistent with source memory deficits associated with frontal systems

damage.”493 The Court finds this highly credible and adopts it as fact. The Court also notes that

Mr. Dobbs’s brain bleed occurred in or around his frontal lobe.494

60. Dr. Joyce credibly testified that these scores from the Wechsler Adult Intelligence

Scale and California Verbal Learning Test show that Mr. Dobbs is “not going to be able to easily

learn new things.”495 And for those things he has been previously exposed to, he is liable to forget

them.496 Dr. Joyce credibly explained that this can be a safety issue for Mr. Dobbs, insofar as he

can forget what he is doing—e.g., leaving propane on—and he can lose track of things he needs

to do—e.g., going to appointments.497 The Court finds this highly credible and adopts it as fact.

61. Dr. Joyce also tested several aspects of Mr. Dobbs’s attention.498 First, Dr. Joyce

tested Mr. Dobbs’s ability to complete timed tasks with speed and accuracy.499 When Mr. Dobbs

didn’t make errors on any of the tasks, he performed much slower than the control group.500

Conversely, when Mr. Dobbs completed the timed tasks at the same speed as his peers in the

control group, “he had an incredibly high number of errors.”501 Dr. Joyce determined that these

492 See id. at 402:15–19. 493 Id. at 402:20–403:1. 494 See id. at 330:12–16, 343:17–20, 402:20–403:1, 409:10–16; Tr. of Bench Trial (Doc. 48) at 845:10–12. 495 Tr. of Bench Trial (Doc. 46) at 403:2–19. 496 See id. at 403:20–21. 497 See id. at 403:22–404:4. 498 See id. at 404:11. 499 See id. at 404:11–16. 500 See id. at 404:16–18. 501 Id. at 404:22–24. Mr. Dobbs’s scores were in the second percentile, which shows that “he had a bunch of errors, bunch of mistakes on those tests.” Id. at 404:25–405:3.

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scores were not attributable to any pre-existing attention deficit issues that Mr. Dobbs may have

had.502 The Court finds this highly credible and adopts it as fact.

62. As with the intelligence test results, Dr. Joyce credibly explained that these poor

test results raise safety concerns for Mr. Dobbs. For example, in an emergency situation,

Mr. Dobbs is going to do one of two things: either he will fail to respond quickly enough, or he

will respond in the wrong way.503

63. The next test Dr. Joyce administered was the executive function test.504 This test

evaluated Mr. Dobbs’s working memory, which is the ability to retain information for a very brief

period of time—usually 30 seconds or less.505 The test is comprised of several subtests.

64. The first subtest of the executive function test evaluated Mr. Dobbs’s ability to

remember a sequence of numbers, both backwards and forwards.506 Mr. Dobbs “had mild deficit

scores in those areas.”507 The Court finds this highly credible and adopts it as fact.

502 See id. at 405:14–25. For example, as Dr. Joyce testified, although people with ADHD score less than one standard deviation lower than the control group, Mr. Dobbs scored “well over one and a half or even two standard deviations lower than you would expect.” Id. at 405:20–25. Similarly, while Dr. Joyce acknowledged that there is some research that supports the theory that untreated depression can affect attention (as well as other aspects of the testing that Dr. Joyce did), the Court finds that, as Dr. Joyce testified, there is also research that supports a contrary conclusion. See id. at 425:8–426:2. Thus, this is an open question. See id. Given this, the Court finds that it is more likely than not that any emotional or behavioral problems Mr. Dobbs may have had before the brain hemorrhage—such as PTSD, ADHD, bipolar disorder, depression, etc.—did not meaningfully affect his scores on Dr. Joyce’s testing. Any effect was more likely than not negligible. The only exception is for the short-term memory testing. There, Dr. Joyce acknowledged clearly that untreated depression can negatively affect short-term memory. See id. at 425:25–426:2. Still, in light of all the other evidence in the record, it is more likely than not that any pre-hemorrhage depression was not the main culprit of Mr. Dobbs’s short-term-memory-related deficits. It is more likely than not that any depression-related effect to short-term memory testing was slight (if it was more than negligible). 503 See id. at 405:4–13. 504 See id. at 406:2–3. 505 See id. at 406:7–9. 506 See id. at 406:11–14. 507 Id. at 406:14.

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65. The second subtest—the auditory consonant trigrams test—“measures real world-

type working memory.”508 In other words, it measures how well the subject can remember

something when getting interrupted by something else.509 Mr. Dobbs scored “from the third

percentile to well below the first percentile at various timeframes[,]” which were measured at 9,

18, and 36 seconds.510 Dr. Joyce credibly testified that this “indicates a very severe working

memory deficit.”511 The Court finds this highly credible and adopts it as fact.

66. A third subtest evaluated Mr. Dobbs’s verbal fluency—i.e., whether Mr. Dobbs can

spontaneously produce verbal information.512 He initially scored a mild deficit, but “[w]ith added

complexity,” Mr. Dobbs’s scores fell below the first percentile.513 The Court finds this highly

credible and adopts it as fact.

67. The Tower of London Test—which tested whether Mr. Dobbs could solve a

planning problem—returned “okay” scores for Mr. Dobbs.514 But “he required more time than

99 percent of the people in his age group.”515 Dr. Joyce credibly opined that this meant Mr. Dobbs

“could solve a planning problem, but it just took him an incredibly long time.”516 The Court finds

this highly credible and adopts it as fact.

508 Id. at 406:18–20. 509 See id. at 406:20–23. 510 Id. at 406:24–407:2. 511 Id. at 407:2–3. 512 See id. at 407:9–11, 20–22. 513 Id. at 407:22–408:2. 514 See id. at 407:14–19. 515 Id. at 407:17–18. 516 See id. at 407:18–19.

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68. Here again, Dr. Joyce credibly testified that these scores have safety implications

for Mr. Dobbs.517 As Dr. Joyce testified, in an unexpected emergency situation, Mr. Dobbs is

“much more at risk to not initially know what to do.”518 It may take him ten minutes to figure out

what to do, at which point it could be too late to appropriately respond.519

69. As Dr. Joyce also testified, Mr. Dobbs’s executive learning and working memory

deficits can result in daily inconveniences, such as losing different items repeatedly and having

difficulty carrying on a conversation.520

70. Dr. Joyce credibly testified that, to a reasonable degree of neuropsychological

certainty, “[t]hese results are consistent in multiple ways with the primary areas of damage

[Mr. Dobbs] had from the hemorrhages . . . .”521 And, as explained above, as Dr. Joyce testified

and as the rest of the record reveals, these results were not in any meaningful way attributable to

any of Mr. Dobbs’s pre-existing conditions.522 Instead, the Court finds that “these deficits are very

likely directly related to the hemorrhages and brain injuries [Mr. Dobbs] had in 2018 . . . [and] the

deficits that he has are likely to be permanent in nature.”523

71. The Government called Dr. Tremwel as an expert witness to testify about

Mr. Dobbs’s post-hemorrhage cognitive and physical abilities.524 Like Dr. Joyce, she too

evaluated Mr. Dobbs and administered a battery of tests to evaluate his cognitive and physical

517 See id. at 408:4–18. 518 Id. at 408:13–16. 519 Id. at 408:16–17. 520 See id. at 408:19–409:5. 521 Id. at 409:6–14. 522 See id. at 409:17–410:20, 414:11–15, 425:8–426:5. 523 Id. at 411:1–9. 524 See Tr. of Bench Trial (Doc. 48) at 817:23–818:2. The Court accepted Dr. Tremwel as an expert witness in neurology without objection. See id. at 822:11–15.

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functioning in January 2022.525 But unlike Dr. Joyce’s two-day evaluation, Dr. Tremwel only

evaluated Mr. Dobbs for one hour.526

72. Dr. Tremwel testified that the number of tests Dr. Joyce performed was unusual

because only one or two tests for each area of the brain is sufficient to determine whether the

subject has a deficit.527 She explained that repeat testing can make the patient fatigued.528 She

also took issue with the number of tests Dr. Joyce performed by testifying that “it implies that

there’s more areas of [the] brain that are affected, but it’s multiple tests pointing to the same area

of the brain.”529

73. The Court understands, but does not agree with, Dr. Tremwel’s criticisms.

Dr. Joyce’s test was not a non-stop, two-day evaluation. The evaluation lasted a total of five hours

on the first day, and three hours on the second day.530 There were multiple breaks each day, which

allowed Mr. Dobbs to rest.531 Considering this, the Court finds that the results of Dr. Joyce’s

testing were not in any way attributable to patient fatigue. And the greater scope of testing

performed by Dr. Joyce does not suggest the type of overreach Dr. Tremwel alleged. Instead, it

only adds to the reliability of Dr. Joyce’s findings. Indeed, for those reasons, the Court finds that

Dr. Joyce’s evaluation was more reliable and persuasive than Dr. Tremwel’s evaluation.

525 See id. at 827:9–11, 23–24. 526 Compare Tr. of Bench Trial (Doc. 46) at 388:5–6, with Tr. of Bench Trial (Doc. 48) at 860:10–11. 527 See Tr. of Bench Trial (Doc. 48) at 846:24–847:7. 528 See id. at 847:6–7. 529 Id. at 849:3–5. Dr. Tremwel also testified that people with ADHD perform poorly on IQ tests. See id. at 849:11– 18. The absence of any formal diagnosis of ADHD notwithstanding, Dr. Joyce acknowledged that someone with ADHD would perform worse on the IQ test than the control group. See Tr. of Bench Trial (Doc. 46) at 405:18–25. But Dr. Joyce also credibly explained that the standard person with ADHD would perform far less poorly than Mr. Dobbs performed. See id. It is more likely than not that ADHD played a negligible role (if any) in the test scores. 530 See Tr. of Bench Trial (Doc. 46) at 388:5–6. 531 See id. at 388:8–10.

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74. Dr. Tremwel memorialized her findings in an expert opinion report in February

2022.532 She formulated a supplemental opinion in April 2022 after reviewing Dr. Joyce’s

deposition.533 As part of her evaluation, Dr. Tremwel interviewed the Dobbses.534 They told

Dr. Tremwel that while Mr. Dobbs had initially required assistance with all of his activities of

daily living, he had significantly improved over the last two years.535 However, Mr. Dobbs was

still walking with a cane, and he could only walk about half a block before growing fatigued.536

He also still had problems with his balance, which caused him to fall and made him unable to do

the outdoor activities he wanted to do.537 The Court finds as a fact that the Dobbses made these

statements to Dr. Tremwel. And the Court finds the statements to be an accurate reflection of

reality. Of course, significant improvement is relative; it does not mean serious problems don’t

persist. And improvements may be permanent or temporary.

75. While Mr. Dobbs once had trouble swallowing and controlling his bladder after the

brain hemorrhage, those problems had since resolved (at least at the time Dr. Tremwel examined

him).538 Mr. Dobbs had a good appetite, was sleeping well, could bathe independently, and could

dress himself, with the exception of being able to put on his own shoes and socks.539 The Court

finds as a fact that the Dobbses made these statements to Dr. Tremwel. And the Court finds the

statements to be an accurate reflection of reality. Of course, as explained above, the fact that Mr.

532 See Tr. of Bench Trial (Doc. 48) at 827:14–16. 533 See id. at 827:17–19. 534 See id. at 827:25–828:10. 535 See id. at 829:12–17. 536 See id. at 829:17–19 537 See id. at 829:20–22. 538 See id. at 829:23–830:1. 539 See id. at 830:1–10.

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Dobbs can physically complete a task does not suggest how easy or difficult it is for him to do it

on his own. And it does not suggest whether he will be able to continue doing it on his own.

76. During Dr. Tremwel’s evaluation, Mr. Dobbs told her that he was neither

depressed nor anxious, and he felt like his cognition had improved since he returned home from

Houston Methodist more than two years before.540 Mr. Dobbs was not participating in any therapy

at the time, and he was on two medications—one for GERD, and the other for an enlarged

prostate.541 The Court finds as a fact that Mr. Dobbs made these statements to Dr. Tremwel. And

the Court finds the statements to be an accurate reflection of reality.

77. Other than difficulty bending at the knees, Dr. Tremwel’s physical exam of

Mr. Dobbs was unremarkable.542 Dr. Tremwel also performed a neurological exam of Mr. Dobbs,

which he scored well on.543 As part of the neurological exam, she “checked a Thurstone[,]” which

tests to see how many words a subject can name within a minute that start with the same letter.544

Although Dr. Tremwel testified that Mr. Dobbs “performed it well,” she acknowledged that “it’s

been shown that on average, that a person should be able to name 11 words in a minute, and he

only named six.”545

78. Dr. Tremwel also evaluated Mr. Dobbs’s short-term memory.546 This evaluation

entailed giving Mr. Dobbs three words to remember and having him repeat them two or three

540 See id. at 830:11–19. 541 See id. at 830:20–831:2. 542 See id. at 831:3–14. Dr. Tremwel also checked Mr. Dobbs’s cranial nerves, extremities, fine motor movement, pronator drift, sensation, and temperature. See id. at 832:17–833:17. Other than Mr. Dobbs having “some sensory normal hearing loss,” the results for these exams were also unremarkable. See id. at 832:22. This indicated some improvement of pronator drift since Dr. Moore’s examination of Mr. Dobbs. See id. at 836:12–20. 543 See id. at 831:15–24. 544 Id. at 831:25–832:3. 545 Id. at 832:4–6. 546 See id. at 832:7.

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times.547 After five minutes (and other intermittent testing), she would see if he could remember

the three words.548 Mr. Dobbs remembered none of the words.549 Mr. Dobbs was, however, able

to spell the word “world” both forwards and backwards.550

79. When Dr. Tremwel tested Mr. Dobbs’s vibratory sense with a tuning fork, he could

not sense it at his ankles but could at his knees.551 A test of Mr. Dobbs’s reflexes showed that he

had bicep reflexes, but he did not have any reflexes in his triceps or lower extremities.552

Dr. Tremwel testified that these sensory and reflex issues were consistent with Mr. Dobbs’s pre-

hemorrhage neuropathy.553 While the Court understands Dr. Tremwel’s point, the Court believes

the rest of the evidence in this case proves that it is more likely that the sensory and reflex

deficiencies Dr. Tremwel observed were, in part, caused by and, in part, significantly exacerbated

by, the brain hemorrhage. In this vein, the Court specifically notes that Dr. Bahgat’s pre-

hemorrhage examinations and observations revealed no problems with Mr. Dobbs’s reflexes.554

80. When Dr. Tremwel had Mr. Dobbs walk, he walked with a wide base and “had a

fairly decent stride with that and he ambulated with a cane.”555

547 See id. at 832:7–9. 548 See id. at 832:9–10. 549 See id. at 832:11. 550 See id. at 832:13–15. Dr. Tremwel described this as “a very basic attention kind of test . . . .” Id. at 832:14. 551 See id. at 833:17–19. 552 See id. at 833:20–23. 553 See id. at 835:7–836:5, 837:3–14. 554 See supra ¶ 6 of Findings of Fact – Damages. 555 See Tr. of Bench Trial (Doc. 48) at 833:24–834:2. When Dr. Tremwel remarked during the evaluation that Mr. Dobbs had a wide-based gait, he responded that he had had that since before the brain hemorrhage. See id. at 838:19–21. Dr. Tremwel testified that this was related to Mr. Dobbs’s neuropathy. See id. at 838:22–23. Specifically, she explained that “the gait problem is more than 50% due to the neuropathy[]” but conceded this was “not a scientific calculation . . . .” Id. at 839:13–14.

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81. Mr. Dobbs had intact verbal fluency, which meant that he was able to respond to a

question with a full sentence, including a noun, verb, and object.556 In the evaluation, Mr. Dobbs

“was not lacking for words.”557 He could also understand the various commands Dr. Tremwel

gave him and did not seem confused by them.558

82. Based on the evaluation and other records examined, Dr. Tremwel determined that

Mr. Dobbs’s executive functioning was impaired.559

83. Dr. Tremwel also performed a cerebellar exam.560 This consisted of two tests: (1)

Mr. Dobbs bringing his finger to his nose, and (2) Mr. Dobbs bringing his heel to his shin.561

Mr. Dobbs was able to do both normally, which evidenced improvement since Dr. Moore’s same

examination two months earlier.562 Again, the Court notes that improvement is a relative term and

does not necessarily suggest permanency of improvement.

84. Dr. Tremwel testified that Mr. Dobbs had “mild cognitive impairment.”563 She

classified Mr. Dobbs’s cognitive impairment as mild “[b]ecause he’s able to function . . .

[e]ssentially independently.”564 The Court believes this understates Mr. Dobbs’s condition.

Essentially, the Court finds that (1) Dr. Joyce’s testing was more reliable and revealed greater

impairments, and (2) Dr. Joyce’s testing fits more consistently with the post-hemorrhage

observations of Mr. Dobbs by his wife, kids, neighbors, and Dr. Moore.

556 See id. at 834:12–17. 557 See id. at 834:16–17. 558 See id. at 834:20–23. 559 See id. at 835:4–6. 560 See id. at 837:15–16. 561 See id. at 837:18–838:5. 562 See id. at 838:6–14. 563 Id. at 839:25. 564 Id. at 840:2–4.

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85. Ultimately, Dr. Tremwel agreed with Dr. Joyce’s conclusion that Mr. Dobbs “has

frontal lobe dysfunction.”565 But Dr. Tremwel attributed some of Mr. Dobbs’s cognitive problems

to pre-existing conditions.566 Frankly acknowledging that her attribution “is not a scientific

calculation,” Dr. Tremwel suggested that “maybe 50 percent” of Mr. Dobbs’s cognitive deficits

are attributable to pre-existing conditions.567 More specifically, Dr. Tremwel testified that ADHD,

PTSD, and other “personality traits were quite remarkable before the surgery . . . .”568 The Court

is unpersuaded by Dr. Tremwel’s testimony here. First, the 50-percent figure does not appear to

have any scientific, medical, or rational basis. It seems like a number picked out of thin air.

Second, as discussed above, it is not clear that Mr. Dobbs had received a formal diagnosis of

ADHD, PTSD, or any other emotional or behavioral issues before (or after) the hemorrhage.

Third, all the testimony concerning pre-hemorrhage observations of Mr. Dobbs suggest that any

emotional or behavioral issues had no significant effect on his daily life or his cognitive

functioning. Considering the entire record, as well as the testimony of the Plaintiffs’ and the

Government’s expert witnesses, the Court finds that, even though Mr. Dobbs had some pre-

existing behavioral and emotional deficits, these deficits, on their own, were not the cause of any

of the cognitive impairment seen in Mr. Dobbs’s post-hemorrhage testing.

86. In light of the foregoing—to a reasonable degree of medical certainty, and using

the preponderance-of-the-evidence standard—the Court finds that Mr. Dobbs’s post-hemorrhage

physical and cognitive deficits are directly attributable to the brain hemorrhage Mr. Dobbs

565 Id. at 848:17–23. 566 See id. at 839:7–846:14. 567 Id. at 839:7–20. 568 Id. at 839:16–20. On cross-examination, Dr. Tremwel acknowledged that Mr. Dobbs was never formally diagnosed with ADHD or PTSD. See id. at 866:3–6.

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suffered. In many instances, the hemorrhage is the sole cause of his deficits. In a few instances,

the hemorrhage greatly exacerbated pre-existing issues that, on their own, would have never

caused the life-altering consequences Mr. Dobbs has suffered since the hemorrhage.

III. Mr. Dobbs’s Future Care and Treatment

87. Based on their findings, Dr. Joyce and Dr. Tremwel made competing

recommendations about what care and treatment would be necessary for Mr. Dobbs. Dr. Joyce

testified that Mr. Dobbs would need to see a neurologist on a long-term basis.569 Dr. Joyce

determined that a neurologist would be ideal to monitor Mr. Dobbs and make sure he’s getting the

interventions he needs.570 Dr. Joyce explained that, because of Mr. Dobbs’s brain hemorrhage,

Mr. Dobbs is at a higher risk to develop dementia earlier than his peers, and a neurologist could

help treat this condition.571 Dr. Joyce also recommended psychiatry care due to Mr. Dobbs’s

significant personality changes as a result of the brain hemorrhage.572 And Dr. Joyce

recommended monthly meetings with a psychiatrist for the first six months, followed by quarterly

meetings thereafter.573

88. He also recommended that Mr. Dobbs have follow-up neuropsychological

evaluations to help identify any new neurocognitive symptoms that arise.574 These follow-up

evaluations would be every five years.575 And Dr. Joyce recommended that Mr. Dobbs see a

569 See Tr. of Bench Trial (Doc. 46) at 412:13–16. 570 See id. at 412:13–16. 571 See id. at 412:17–21. 572 See id. at 412:22–413:7. 573 See id. at 413:9–10. 574 See id. at 413:14–18. 575 See id.

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psychologist or licensed social worker because of his emotional state.576 Dr. Joyce testified that

these meetings could start out at one to two times a week for six months, and shift to every other

week for the next six months.577 From there, the frequency would depend on how Mr. Dobbs was

doing.578

89. Dr. Joyce next recommended that Mr. Dobbs would need rehabilitation case

management and cognitive rehabilitation.579 The rehabilitation case management would entail a

case manager meeting with Mr. Dobbs in his home a couple of hours per week “to pick him up

and get him moving towards doing some things that are more active than he’s been doing.”580 The

frequency of the case management tasks would depend on Mr. Dobbs’s progress, but Dr. Joyce

recommended meeting twice per week.581 As for the cognitive rehabilitation, which is specifically

focused on helping people with brain injuries, Dr. Joyce testified that this would help develop

strategies for Mr. Dobbs to manage his cognitive deficits.582 The frequency of the cognitive

rehabilitation would vary depending on how Mr. Dobbs was doing.583

90. Finally, Dr. Joyce recommended attendant care for Mr. Dobbs.584 Dr. Joyce

credibly testified that, because of Mr. Dobbs’s difficulties with managing his activities of daily

living (including, for example, cooking, getting dressed, getting from place to place, and keeping

576 See id. at 413:19–414:5. Dr. Joyce testified that Mr. Dobbs was tearful during the evaluation and made extremely negative comments about himself. See id. at 413:23–414:5. 577 See id. at 415:10–15. 578 See id. at 415:15. 579 See id. at 414:18–415:9. 580 Id. at 414:18–23. 581 See id. at 415:20–22. 582 See id. at 415:1–9. 583 See id. at 415:23–24. 584 See id. at 416:1–3.

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track of his medical appointments), Mr. Dobbs would need somebody (other than his wife) to be

with him at least four hours a day, seven days a week, to help with these things.585 Dr. Joyce

credibly testified that attendant care would help mitigate some of the safety concerns for Mr.

Dobbs.586 According to Dr. Joyce, Mr. Dobbs cannot rely solely on his wife to take care of these

things.587

91. Dr. Tremwel did not affirmatively dispute the need for Mr. Dobbs to see a

neurologist, psychiatrist, psychologist or social worker, or to have further neuropsychological

evaluations.588 The Court finds that Dr. Joyce’s undisputed recommendation is necessary for

Mr. Dobbs’s future medical care and treatment.

92. Dr. Tremwel did testify that it was not medically necessary for Mr. Dobbs to have,

in the Government’s words, “a paid friend or paid safety friend.”589 Dr. Tremwel explained that

Mr. Dobbs would instead benefit from goal-directed therapy that he could then continue on his

own.590 But her testimony was not persuasive on this point, especially given her concession on

cross-examination that Mr. Dobbs still needs supervision and assistance.591 This is at least

generally consistent with Dr. Joyce’s opinion. The Court finds the need for supervision and

assistance as a fact.

585 See id. at 416:4–417:14. 586 See id. at 417:5–14. 587 See id. at 417:10–418:7. The Court overruled the Government’s objection to Dr. Joyce’s testimony about caregiving being stressful for Mrs. Dobbs. See id. at 418:12–17. 588 See Tr. of Bench Trial (Doc. 48) at 850:19–876:18. 589 Id. at 850:19–851:1. Dr. Joyce did not recommend that Mr. Dobbs need a “paid safety friend[,]” but the Court construes Dr. Tremwel’s present testimony as referring to Dr. Joyce’s recommendation for attendant care. At this point in trial, Plaintiffs’ counsel objected to Dr. Tremwel’s testimony about what care Mr. Dobbs would need because it was not disclosed in her Rule 26 reports. See id. at 853:11–15. The Court overruled the objection because this was discussed in Dr. Tremwel’s deposition, and Plaintiffs’ counsel did not seek leave from the Court to tender a rebuttal report. See id. at 853:11–858:9. 590 See id. at 851:6–853:3. 591 See id. at 876:6–7.

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93. Dr. Tremwel also testified that cognitive rehabilitation counseling for the remainder

of Mr. Dobbs’s life would not be medically beneficial.592 She explained that:

[W]hat has been shown to be the most helpful is the patient taking the initiative, the family working with the patient, that having outside forces to come in and make a plan, you know, one visit where—and usually it’s physical, speech and occupational therapist make a plan for the patient, but from there, the patient owns their own rehab, and that is what has shown to have the best success.593

Because of this, Dr. Tremwel has never prescribed anything like cognitive rehabilitation

therapy.594 The Court finds Dr. Tremwel’s explanation unpersuasive and finds Dr. Joyce’s opinion

on this point far more persuasive. Accordingly, the Court finds that Mr. Dobbs’s need for cognitive

rehabilitation therapy is medically necessary in the circumstances of this case and a direct result

of the brain hemorrhage.

94. Plaintiffs called Victoria Powell—a nurse consultant and certified life care

planner—as an expert witness to testify about the kind and extent of care that Mr. Dobbs would

need as a result of his brain hemorrhage.595 Life care planning is the practice of creating a care

plan for a person over the course of his life expectancy.596 As Ms. Powell explained, this spans

the spectrum of care—it’s everything from home modifications to Band-Aids.597 The life care

planning process begins with reviewing the patient’s medical records and recommendations made

592 See id. at 858:13–18. 593 Id. at 858:20–859:1. 594 See id. at 858:18. 595 See generally Tr. of Bench Trial (Doc. 47) at 480:8–535:21. The Court accepted Ms. Powell as an expert witness without objection. See id. at 484:19–24. However, her expert qualifications were limited to the life care plan. See id. at 504:13–505:19. She was not qualified as a nursing expert. See id. at 505:2–19. The Court has not considered Ms. Powell’s testimony as any form of medical diagnosis. See id. at 505:15–18. 596 See id. at 480:24–25. 597 See id. at 480:25–481:3.

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within.598 Then there’s an independent assessment of the patient.599 A life care planner consults

with physicians and conducts medical and financial research.600

95. In preparation for Mr. Dobbs’s life care plan, Ms. Powell met with him and his wife

in their home.601 Like Dr. Joyce and Dr. Tremwel, Ms. Powell evaluated Mr. Dobbs by

administering several surveys and tests.602 These included an “activities[,] balance[,] and

confidence survey[,]” the PHQ9 (which screens for depression), the GAD7 (which screens for

anxiety), and a fatigue assessment scale.603

96. The activities, balance, and confidence survey measures the subject’s confidence

in doing different activities.604 Mr. Dobbs reported a lack of confidence in most activities and

scored a 23 percent.605 According to Ms. Powell, any score below 80 percent is an indication that

the person needs additional physical therapy.606 Mr. Dobbs’s PHQ9 score was a 19.607 As

Ms. Powell testified, this showed that he had moderately severe depression, which warranted

treatment.608 The GAD7 test did not show that Mr. Dobbs suffered from anxiety.609 On the fatigue

assessment scale, Mr. Dobbs scored a 44 out of 50, which indicated high levels of fatigue.610

598 See id. at 485:6–9. 599 See id. at 485:24–25. 600 See id. at 486:19–23. 601 See id. at 486:24–25. Ms. Powell’s assessment of Mr. Dobbs was conducted in September 2021. See id. at 490:18– 19. 602 See id. at 487:13–17. 603 See id. at 487:20–21, 488:18, 22, 24. 604 See id. at 487:21–488:2. 605 See id. at 488:13–14. 606 See id. at 488:15–17. 607 See id. at 488:18–19. 608 See id. at 488:19–21. 609 See id. at 488:22–23. 610 See id. at 488:24–25.

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97. Ms. Powell’s assessment of Mr. Dobbs also revealed that “[h]is right hand is

essentially nonfunctional.”611 She found that “he was not independent in self-care[,]” and she

described his bathing as “setup and supervision.”612 Ms. Powell explained that, while Mr. Dobbs

did not require someone else to bathe him, it was unsafe for him to be in the shower with no one

at home due to his risk of falling.613 Ms. Powell also testified that he needed help with “setup,”

such as “getting his clothes out, things of that nature.”614 And she testified that Mr. Dobbs was

unable to reach into the kitchen cabinets—low or high—without falling or holding onto

something.615 And, as Ms. Powell testified, when she asked Mr. Dobbs to do three things, he

would forget to do one or two of the three.616 The Court finds this all as fact.

98. Ms. Powell also testified that Mr. Dobbs had problems with dizziness.617 His

dizziness is worse in the morning and lasts about half or two-thirds of the day.618 But because

Ms. Powell was not qualified to testify about the cause of this dizziness (and because Mr. Dobbs’s

guess that his dizziness stemmed from the holes drilled in his skull after the surgery is

unsupported), the Court finds that Mr. Dobbs’s dizziness was not proximately caused by his brain

hemorrhage. No other expert witness testified that dizziness was a symptom of a brain

hemorrhage.619

611 Id. at 491:4–5. 612 Id. at 491:5–7. Despite this, Ms. Powell also testified that Mrs. Dobbs told her she could give her husband a knife and some carrots, and he would be able to cut them. See id. at 494:7–9. However, he wouldn’t know what the next step would be, such as putting the carrots into a bowl. See id. at 494:10–11. 613 See id. at 491:10–12. 614 Id. at 491:16–17. 615 See id. at 491:21–24. 616 See id. at 491:25–492:1. 617 See id. at 498:24–499:5. 618 See id. at 499:1–5. 619 Dr. Moore testified that neuropathy could cause dizziness. See Tr. of Bench Trial (Doc. 46) at 372:8–9, 18–20.

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99. Ms. Powell determined that Mr. Dobbs had problems with his vision, smell, taste,

and hearing since his brain hemorrhage.620 But as with dizziness, no other doctor attributed these

problems to Mr. Dobbs’s brain hemorrhage.621 Because there is no expert testimony to support

these inhibitions as proximately caused by the brain hemorrhage, the Court finds Mr. Dobbs’s

problems with vision, smell, taste, and hearing are not a result of the brain hemorrhage.

100. Ms. Powell also testified that Mr. Dobbs had problems with his speech.622

Specifically, he was unable to project his voice, his voice was raspy, and the volume of his speech

tended to decline as the conversation went on.623 The Court finds all this as fact, and notes that it

is not inconsistent with anything observed by the doctors who evaluated Mr. Dobbs or reported by

his friends and family. It is more likely true than not.

101. Like the other expert witnesses who evaluated Mr. Dobbs, Ms. Powell observed

that, while you could ask him a question, and he could answer the question, he could not remember

the conversation later.624 When that happened, “he became emotional and would be tearful.”625

102. Additionally, Ms. Powell determined that Mr. Dobbs has bowel and bladder

problems, which includes incontinence and urge frequency.626 As a result, Mr. Dobbs has started

to wear adult diapers at night, and his wife must always ensure there is a bathroom nearby.627

Ms. Powell testified that Mr. Dobbs “should not move quickly and cannot move quickly[,]” but

620 See Tr. of Bench Trial (Doc. 47) at 499:6–20. 621 See id. at 558:10–23. Because Ms. Powell could not “connect the dots” herself, she did not include treatment for these problems in her life care plan. See id. at 558:21–23. 622 See id. at 499:21–500:3. 623 See id. 624 See id. at 500:7–10. 625 See id. at 500:10–11. 626 See id. at 500:12–501:12. 627 See id. at 501:7–12.

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“he doesn’t have the judgment to know that he move slowly.”628 Despite this, “he wants to move

quickly,” which causes more problems like tripping or falling.629 The Court finds that this was a

fact at the time of Ms. Powell’s evaluation. However, as noted above, the Court finds that the

bladder issues improved between Ms. Powell’s evaluation and Dr. Tremwel’s evaluation.

103. As Ms. Powell (and other expert witnesses) testified, Mr. Dobbs has fine motor

problems.630 His hands are moving all the time, and he rolls his fingers and rubs his pants

constantly.631 He also has gross motor problems.632 He does not have full range of motion in his

right shoulder, arm, or hand.633 Mr. Dobbs also has limited strength and reported to Ms. Powell

that he can no longer lift anything over 20 pounds.634 The Court finds all this as fact.

104. In evaluating Mr. Dobbs, Ms. Powell observed that he had lost interest in most

things, was often sad, had difficulty concentrating, was unable to plan things, and had limited

ability to engage with others socially.635 For example, before the brain hemorrhage, Mr. Dobbs

oversaw his and his wife’s plans.636 But now, his wife must do all the planning.637 The Court

finds all this as fact.

628 Id. at 501:16–18. 629 Id. at 501:18–23. 630 See id. at 501:24–502:2. 631 See id. at 501:24–502:2. 632 See id. at 502:7–11. 633 See id. at 502:7–17. 634 See id. at 503:9–19. 635 See id. at 503:22–504:12, 505:25–508:3. 636 See id. at 507:14–17. 637 See id. at 507:17–21.

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105. In determining the length of the life care plan, Ms. Powell relied on official United

States Government life tables.638 These included CDC tables and the National Vital Statistics

Report.639 These tables are updated at least once a year (and sometimes multiple times a year) and

project an individual’s life expectancy based on sex and race.640 They do not, however, segregate

life expectancy based on comorbidities; instead, all healthy and unhealthy people are lumped

together.641 Based on these tables, Ms. Powell determined that Mr. Dobbs’s life expectancy (as of

the fall of 2021) was 18.8 years.642 The Court finds these life tables authoritative and reliable.

106. Considering her evaluation of Mr. Dobbs, Ms. Powell prepared a 12-page life care

plan that detailed the expected care (and cost thereof) that Mr. Dobbs would need because of his

brain hemorrhage.643 As Ms. Powell testified, the life care plan recommendations are directly

related to Mr. Dobbs’s brain injury.644 She clarified, however, that she takes the patient as he

comes, and he may have additional issues that are compounded by the brain injury.645 But, for

638 See id. at 495:21–24; Pls.’ Trial Exs. 29–33. Before trial, the Government filed a Motion in Limine to, in part, exclude these life tables. See Def.’s Mot. in Limine (Doc. 29) ¶ 3; Br. in Supp. of Def.’s Mot. in Limine (Doc. 30) at 4–5. The Court denied this part of the Motion without prejudice to being re-raised at trial. See Order (Doc. 36); Tr. of Bench Trial (Doc. 45) at 12:4–15:5. The Government raised this objection again during Ms. Powell’s direct examination, and the Court overruled the Government’s objection. See Tr. of Bench Trial (Doc. 47) at 497:25–498:8. The life tables were admitted as evidence. See Tr. of Bench Trial (Doc. 47) at 498:9; Pls.’ Trial Exs. 29–33. They are relevant. They are a proper subject of judicial notice. At the pre-trial conference, the Government noted it had no objection to the taking of judicial notice as to the life tables themselves. See Tr. of Bench Trial (Doc. 45) at 14:14– 15:5. The Court takes judicial notice of them. 639 See Tr. of Bench Trial (Doc. 47) at 495:25–496:1. Ms. Powell used Volume 69, Number 12 of the report, which was dated November 17, 2021. See id. at 496:1–3. 640 See id. at 496:22–23, 497:12–14. Ms. Powell used the life expectancy for a non-Hispanic, white male in making her findings. See id. at 496:5–6. 641 See id. at 539:9–11. 642 See Pls.’ Trial Ex. 34 at 1. 643 See id. at 1–12; Tr. of Bench Trial (Doc. 47) at 508:10–535:21. 644 See Tr. of Bench Trial (Doc. 47) at 516:12–21; id. at 547:20–23 (“I don’t believe that anything in my plan is not related to the incident.”). 645 See id. at 516:17–19.

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example, if the patient already had a wheelchair before the relevant injury, she would not include

a second wheelchair in the life care plan.646

107. First, Ms. Powell determined that Mr. Dobbs would need to meet with his primary

care physician above and beyond what a normal person would—an additional one to two times a

year.647 Like Dr. Joyce, she also recommended that Mr. Dobbs see a neurologist every six months

because of his balance and cognitive issues.648 Ms. Powell also recommended urology and

gastroenterology appointments because of Mr. Dobbs’s bladder and bowel incontinence.649

Additionally, the life care plan includes recommendations for physiatry and psychiatry

consultations.650 Ms. Powell testified that the physiatrist would serve as a “gatekeeper to all of the

other recommendations,” while the psychiatrist would be a one-time evaluation to assess

Mr. Dobbs’s situation and provide recommendations with monthly follow-ups for six months,

followed by quarterly follow-ups for three years.651

108. Another medical care recommendation Ms. Powell made for Mr. Dobbs in his life

care plan was for nutritional consulting five times over the course of his remaining life

646 See id. at 516:19–21. 647 See id. at 508:20–509:4. 648 See id. at 509:5–12. 649 See id. at 509:13–20; Pls.’ Trial Ex. 34 at 7. The urology visits would be four times a year, and the gastroenterology visits would be twice a year. See Pls.’ Trial Ex. 34 at 1. Even though Dr. Tremwel testified that the bladder incontinence had resolved by the time she evaluated him, there was no testimony that this resolution was permanent. See Tr. of Bench Trial (Doc. 48) at 829:23–830:1. Other expert witnesses testified that Mr. Dobbs suffered from bladder and bowel incontinence. See, e.g., Tr. of Bench Trial (Doc. 47) at 500:14–25. Moreover, Dr. Joyce testified that Mr. Dobbs’s deficits are likely permanent. See Tr. of Bench Trial (Doc. 46) at 411:1–9. The Court thus finds that despite the (perhaps) temporary resolution of Mr. Dobbs’s bladder incontinence when Dr. Tremwel evaluated him, it is more likely than not that this deficit, too, will be permanent. That is especially so given the continuation of Mr. Dobbs’s bowel problems. 650 See Tr. of Bench Trial (Doc. 47) at 509:21–510:3. 651 Id. at 509:21–511:10. Ms. Powell clarified at trial that the years are mislabeled for follow-up psychiatry visits in the life care plan. See id. at 510:21–511:10. Because the follow-up visits are only for two years, it should read 2021– 2023, not 2021–2040. See id.; Pls.’ Trial Ex. 34 at 1.

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expectancy.652 This would be for weight management and to help with Mr. Dobbs’s

incontinence.653 Like Dr. Joyce, she recommended neuropsychiatric evaluations to continue to

assess Mr. Dobbs’s cognitive functioning.654 This would entail an initial evaluation and follow-

ups every five years.655

109. Beyond the medical care portion of the life care plan, the plan also includes

recommendations for therapeutic evaluation modalities.656 This includes physical therapy,

occupational therapy, speech therapy, and inpatient rehabilitation.657 Ms. Powell testified that the

physical and occupational therapy would help Mr. Dobbs work on his balance, gait, and physical

functioning.658 The speech therapy would not focus on his speech, but instead would be a means

to help Mr. Dobbs’s executive functioning.659 Based on Dr. Joyce’s recommendation that

Mr. Dobbs needed further inpatient rehabilitation, Mr. Dobbs’s life plan includes the average cost

for a one-time visit to one of four possible inpatient rehabilitation facilities.660 The Court finds

that the need for these therapies—both in-patient and out-patient—are a direct and necessary result

of Mr. Dobbs’s brain hemorrhage and the deficits that stem from it.

110. The next section of Mr. Dobbs’s life care plan is for diagnostic studies and lab

work.661 These include an annual comprehensive health panel, a CT of the brain every five to

652 See Tr. of Bench Trial (Doc. 47) at 512:4–8; Pls.’ Trial Ex. 34 at 1. 653 See Tr. of Bench Trial (Doc. 47) at 512:4–8. 654 See id. at 512:9–10. 655 See id. at 512:10–11. 656 See Pls.’ Trial Ex. 34 at 3. 657 See id.; Tr. of Bench Trial (Doc. 47) at 512:22–514:13. 658 See Tr. of Bench Trial (Doc. 47) at 513:7–10. 659 See id. at 513:12–14. This would be a one-time evaluation. See id.; Pls.’ Trial Ex. 34 at 3. 660 See Tr. of Bench Trial (Doc. 47) at 513:15–514:7; Pls.’ Trial Ex. 34 at 3. 661 See Pls.’ Trial Ex. 34 at 4.

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seven years, and an EEG every two to three years.662 Ms. Powell testified that the comprehensive

health panel would be for kidney and liver function studies that are necessary for someone who is

on long-term medications—medications that Mr. Dobbs would not otherwise be on absent the

brain injury.663 The need for comprehensive health panels, CTs, and EEGs is a direct result of Mr.

Dobbs’s brain hemorrhage (and the related treatment of the brain hemorrhage), and the Court finds

that the comprehensive health panels, CTs, and EEGs are medically necessary for Mr. Dobbs’s

future treatment and care.

111. Next is medications.664 The life care plan includes monthly prescriptions for

Gabapentin (for neuropathy), Naproxen (for pain), Trazodone Hydrochloride (for sleep),

Oxybutynin Chloride and Tamsulosin Hydrochloride (both for urinary issues), and Omeprazole

(for GERD).665 The Court finds that the prescription for Gabapentin does not directly result from

Mr. Dobbs’s brain hemorrhage. As repeatedly noted throughout the trial and in medical records,

Mr. Dobbs suffered from neuropathy before his brain hemorrhage. The same goes for the

Omeprazole and Trazodone Hydrochloride prescriptions. Mr. Dobbs suffered from GERD before

his brain hemorrhage.666 And Mr. Dobbs was on sleep medication before the brain hemorrhage

and reported to Dr. Tremwel that he was sleeping well at night when she evaluated him.667

112. Nevertheless, the Court finds the need for the other prescription medications is

directly related to, and is medically necessary because of, the brain hemorrhage. Even though Mr.

Dobbs suffered from high general levels of pain before his brain hemorrhage, the Court finds that,

662 See id. 663 See Tr. of Bench Trial (Doc. 47) at 514:17–23, 515:16–516:9, 644:6–8. 664 See Pls.’ Trial Ex. 34 at 5. 665 See id. 666 See Tr. of Bench Trial (Doc. 46) at 249:23–24. 667 See Tr. of Bench Trial (Doc. 48) at 830:1–2.

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based on the expert testimony at trial, it is more likely than not that the brain hemorrhage

aggravated and increased Mr. Dobbs’s pain and has significantly contributed to his bowel and

bladder incontinence.

113. The life care plan also provides for mobility aids, durable medical equipment, and

aids for independent function.668 The mobility aids include a scooter (to be replaced every five

years), annual scooter maintenance, scooter accessories (to be replaced every three to five years),

a HurryCane (to be replaced every three years), and a rolling walker with a seat (to be replaced

every five years).669 These will all help Mr. Dobbs with his mobility and mitigate his risk of

falling.670 To Ms. Powell’s knowledge, Mr. Dobbs did not require any of these mobility aids

before his brain hemorrhage.671 The Court finds that Mr. Dobbs’s need for these mobility aids is

medically necessary and a direct result of his brain hemorrhage.

114. The durable medical equipment and aids for independent function range from a

sock puller to a urinal.672 Ms. Powell testified that these would help with Mr. Dobbs’s functioning

and independence.673 Because Mr. Dobbs cannot put his socks or shoes on by himself, she

recommended a sock puller and shoehorn to assist with these tasks.674 Ms. Powell also

recommended a handheld showerhead to better facilitate Mr. Dobbs’s bathing.675 Further

recommendations include toilet rails, a safety bath mat, and indoor and outdoor interlocking grip

668 See Pls.’ Trial Ex. 34 at 6–7. 669 See id. at 6. 670 See id. 671 See Tr. of Bench Trial (Doc. 47) at 525:1–3. 672 See Pls.’ Trial Ex. 34 at 7. 673 See Tr. of Bench Trial (Doc. 47) at 526:5–7. 674 See id. at 526:8–12, 17–19. 675 See id. at 526:13–16; Pls.’ Trial Ex. 34 at 7.

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tiles, which are all aimed at reducing Mr. Dobbs’s risk of falling.676 Next, she recommended a

urinal to allow him to use the bathroom more quickly.677 And finally, she recommended an

allowance for various memory aids like recording devices, calendars, Post-It notes, batteries, and

medication organizers.678 The Court finds that Mr. Dobbs’s need for all these aids is medically

necessary and a direct result of his brain hemorrhage.679

115. Next, the life care plan recommends home and attendant care.680 Ms. Powell

testified that while Mr. Dobbs does not need a babysitter, he needs a “paid safety friend.”681 As

Ms. Powell explained, this is someone who could “assist [Mr. Dobbs] with his activities of daily

living and the heavy housekeeping, home maintenance, [and] the things that he used to want to

do.”682 The plan provides for this care for four hours a day, seven days a week through 2031.683

In 2032, the recommendation increases to eight hours a day, seven days a week.684 Ms. Powell

explained that this would help unburden Mrs. Dobbs and provide the necessary care her husband

needs.685

676 See Tr. of Bench Trial (Doc. 47) at 526:20–527:4; Pls.’ Trial Ex. 34 at 7. 677 See Tr. of Bench Trial (Doc. 47) at 527:5–7; Pls.’ Trial Ex. 34 at 7. 678 See Tr. of Bench Trial (Doc. 47) at 527:8–19; Pls.’ Trial Ex. 34 at 7. Ms. Powell testified that she did not include an assistive technology specialist in this recommendation but believes Mr. Dobbs would benefit from a one-time evaluation by one. See Tr. of Bench Trial (Doc. 47) at 527:8–16. Ms. Powell explained that an assistive technology specialist helps someone with a brain injury determine what kind of cueing, apps, and reminders may be helpful. See id. at 527:11–15. The Court finds that these additional benefits are sufficiently encompassed by the services of the other above-discussed (and soon-to-be-discussed) medical providers. Because the assistive technology specialist was not included in Mr. Dobbs’s proposed life care plan, no reduction for this is necessary. See Pls.’ Trial Ex. 34 at 1–12. 679 Even though Ms. Powell observed that Mr. Dobbs is able to bathe himself, the Court finds that a handheld shower head would better facilitate Mr. Dobbs’s ability to bathe on his own and help lessen his risk of falling in the shower and is therefore medically necessary as a direct result of his brain hemorrhage. 680 See Pls.’ Trial Ex. 34 at 8. 681 Tr. of Bench Trial (Doc. 47) at 528:13–14. 682 Id. at 528:14–17. 683 See Pls.’ Trial Ex. 34 at 8. 684 See id. 685 See Tr. of Bench Trial (Doc. 47) at 529:22–530:2.

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116. The Court finds that attendant and home care is medically necessary for Mr. Dobbs

as a direct result of his brain hemorrhage. As detailed earlier in this Memorandum of Decision,

Mr. Dobbs’s cognitive and physical capabilities are significantly diminished as a direct and

proximate result of his brain hemorrhage.686 Consequently, he is mostly unable to independently

complete (or even attempt) many ordinary activities of daily life. Although Ms. Powell testified

that it would be appropriate for this care to total more than four hours a day right off the bat, the

Court believes—based on both her and Dr. Joyce’s testimony—that four hours of daily home and

attendant care seven days a week is sufficient through 2031. As Mr. Dobbs ages (and, as a direct

result of his brain hemorrhage, his brain will age more quickly), eight hours of daily home and

attendant care will be necessary for Mr. Dobbs beginning in 2032, and through the remainder of

his life.687

117. Relatedly (and in agreement with Dr. Joyce), the life care plan recommends a

rehabilitation counselor and case manager.688 As Ms. Powell and Dr. Joyce testified, a

rehabilitation counselor would help Mr. Dobbs learn to function with his numerous cognitive and

physical deficits.689 The Court agrees and finds that a cognitive rehabilitation counselor is

medically necessary as a direct result of Mr. Dobbs’s brain hemorrhage.690 The Court finds that

686 Dr. Tremwel testified that attendant and home care, or a paid safety friend, is not medically necessary for Mr. Dobbs. See Tr. of Bench Trial (Doc. 48) at 850:19–851:1. However, she agreed that Mr. Dobbs needs supervision and assistance. See id. at 876:6–7. The Court finds that attendant and home care is important to ensure that Mr. Dobbs has the supervision and assistance that is medically necessary as a direct result of the brain hemorrhage. 687 See Tr. of Bench Trial (Doc. 46) at 415:1–9; Tr. of Bench Trial (Doc. 47) at 530:16–531:4. Based on Ms. Powell’s calculation of Mr. Dobbs’s life expectancy, this would be from the time of trial until 2040. See Tr. of Bench Trial (Doc. 47) at 539:9–11. 688 See Pls.’ Trial Ex. 34 at 10, 11. 689 See Tr. of Bench Trial (Doc. 47) at 533:3–11. 690 Even though Dr. Tremwel testified that it would be better for Mr. Dobbs to work with his family to resolve these issues, the Court finds that is still possible in addition to the cognitive rehabilitation. See Tr. of Bench Trial (Doc. 48) at 858:20–859:1. In addition to the other forms of therapy that the Court has found to be medically necessary as a direct result of Mr. Dobbs’s brain hemorrhage, the Court finds that Mr. Dobbs’s need for cognitive rehabilitation is medically necessary and a direct result of Mr. Dobbs’s brain hemorrhage.

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Dr. Joyce’s recommendation that this rehabilitation occur weekly for two hours a week is, more

likely than not, medically necessary considering Mr. Dobbs’s numerous deficits.691 However, the

Court finds that the recommendation for a case manager is not medically necessary, considering

the number of providers who will be working with Mr. Dobbs. As Ms. Powell explained, this is

more of a gap-filler role, in case anything falls through with the other providers.692

118. Finally, the life plan provides for mileage reimbursement for the various medical

appointments that Mr. Dobbs must attend as a direct result of his brain hemorrhage.693 The life

care plan determined the round-trip mileage for these appointments and multiplied those totals by

the IRS’s mileage-reimbursement rate.694 Absent Mr. Dobbs’s brain hemorrhage, he would not

have to travel to these numerous and relatively frequent medical appointments. The Court

therefore finds that the incurred mileage is a direct result of Mr. Dobbs’s brain hemorrhage and

properly included in Mr. Dobbs’s life care plan.

119. Regarding the cost of Mr. Dobbs’s life care plan, the Court also heard testimony

from Dr. Hubbard.695 Dr. Hubbard testified that when considering a life care plan, “the numbers

have already been given to [him], and [his] job there is simply to do the financial mathematics on

it . . . .”696 In this case, Ms. Powell provided the proposed life care plan for Mr. Dobbs, and

Dr. Hubbard calculated the present value of the future expenses using the appropriate inflation and

discount rates.697 Specifically, Dr. Hubbard used an inflation-adjusted discount rate approach in

691 See Tr. of Bench Trial (Doc. 47) at 534:4–21. 692 See id. at 535:2–14. 693 See Pls.’ Trial Ex. 34 at 9. 694 See id. 695 See generally Tr. of Bench Trial (Doc. 46) at 428:1–441:21. 696 See id. at 430:18–21. 697 See id. at 432:8–10, 22–25.

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calculating the cost of Mr. Dobbs’s life care plan.698 Using these calculations, Dr. Hubbard

concluded that, to a reasonable degree of economic certainty, the present value of Mr. Dobbs’s

proposed life care plan is $638,373.00.699 The Court finds that Dr. Hubbard’s methods are

authoritative, and his calculations are reliable.

CONCLUSIONS OF LAW – DAMAGES

As with liability, damages are determined according to Arkansas law.700 The Arkansas

Medical Malpractice Act provides that “damages awarded may include compensation for actual

economic losses recognized by law suffered by the injured person by reason of medical injury,

including, but not limited to, the cost of reasonable and necessary medical services, rehabilitation

services, custodial care, loss of services, and loss of earnings or earning capacity.”701 The awarded

damages may also “include compensation for pain and suffering and other noneconomic loss

recognized by law.”702 Like liability, “it is not enough for an expert to opine that there was

negligence that was the proximate cause of the alleged damages.”703 “The opinion must be stated

within a reasonable degree of medical certainty or probability.”704

At trial, the Government argued (at least implicitly) that Mr. Dobbs’s damages award

should be reduced to account for pre-existing conditions.705 But under Arkansas law, a fact-finder

698 See id. at 433:14–18. 699 See Pls.’ Trial Ex. 34 at 12; Tr. of Bench Trial (Doc. 46) at 438:9–16. This total includes a geographic area factor (“GAF”), which adjusts the costs upward or downward based on where Mr. Dobbs would obtain his various medical services. See Tr. of Bench Trial (Doc. 47) at 511:12–18. The GAF in Mr. Dobbs’s life care plan varied downward for every applicable item. See Pls.’ Trial Ex. 34 at 1–4. 700 See Wilkinson v. United States,

(8th Cir. 2009). 701

(a)(1)(A). 702

§ 16-114-208(a)(2). 703 Williamson,

,

. 704 Id. 705 See Tr. of Bench Trial (Doc. 48) at 976:14–980:9.

97 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 98 of 107

“is allowed to consider the full extent of any injury sustained, even though the degree of injury

proximately resulted from the aggravation of a pre-existing condition.”706 This is more commonly

known as the “eggshell plaintiff rule,” which “embraces the principles that a tortfeasor must accept

a plaintiff as he finds him and may not escape or reduce damages by highlighting the injured

party’s susceptibility to injury.”707 Of course, “the physician found guilty of malpractice is not

chargeable for pain, suffering or anguish that arose because of the original ailment, but is

chargeable only for the pain, suffering, anguish and expenses that naturally follow from the

malpractice.”708 This caveat is consistent with the Arkansas Medical Malpractice Act’s

requirement that “the injured person suffered injuries that would not otherwise have occurred.”709

Generally, a plaintiff can prove the damages owed for past medical bills with exact

certainty.710 This is usually done simply by providing the medical bills.711 Here, Mr. Dobbs has

proved his past medical bills with exact certainty. He submitted as evidence medical bills from:

(1) Houston Methodist712 for $28,979.55; (2) Metropolitan Emergency Medical Services713 for

$696.15; (3) AirMed714 for $13,968.00; (4) Baxter Regional Urology Clinic715 for $1,089.01; (5)

706 Clawson v. Rye,

,

(1983). 707 Primm v. U.S. Fid. & Guar. Ins. Corp.,

,

(1996). 708 Bockman v. Butler,

,

(1956). 709

(a)(3). 710 See, e.g., Bill Davis Trucking, Inc. v. Prysock,

,

(1990). 711 See

,

. The provision of the Arkansas Medical Malpractice Act that did away with the collateral-source rule was found unconstitutional in Johnson v. Rockwell Automation, Inc. See

,

. Therefore, Mr. Dobbs is allowed to recover the full value of his past medical bills. See

712 See Pls.’ Trial Ex. 7 at 1, 19–24; Pls.’ Trial Ex. 16 at 2; Pls.’ Trial Ex. 19 at 2. This includes Mr. Dobbs’s bills from Houston Radiology and separate bill from Dr. David Ho. See Pls.’ Trial Ex. 16 at 2; Pls.’ Trial Ex. 19 at 2. 713 See Pls.’ Trial Ex. 18 at 2. 714 See Pls.’ Trial Ex. 10 at 2. 715 See Pls.’ Trial Ex. 13 at 2.

98 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 99 of 107

Baxter Regional Neurology and Spine Clinic716 for $879.00; (6) Baxter Regional Medical

Center717 for $11,834.77; (7) Mountain Home Radiology718 for $376.00; (8) Lincoln Paden

Medical Group719 for $2,476.95, and (9) Ozark Physical Therapy720 for $13,714.10. Thus,

Mr. Dobbs’s past medical bills total $74,013.53. The Court awards $74,013.53 to Mr. Dobbs for

past medical bills.

“Future medical expenses do not require the same degree of certainty as past medical

expenses.”721 “It is not speculative or conjectural to calculate future medical expenses where there

is a history of medical expenses that have accrued as of the date of trial, particularly where there

is also a degree of medical certainty as to the need for future medication.”722 With (1) the exception

of a nutritionist, a case manager, and prescriptions for Gabapentin, Omeprazole, and Trazodone

Hydrochloride, and (2) the recalculation of one part of the life care plan, in which Ms. Powell

made some accounting errors, the Court concludes that the life care plan prepared by Ms. Powell

is consistent with the expert medical testimony given at trial and reflective of the reasonable and

necessary future medical care and medical expenses that Mr. Dobbs will incur as a direct result of

716 See Pls.’ Trial Ex. 14 at 2, 9. 717 See Pls.’ Trial Ex. 15 at 2. 718 See Pls.’ Trial Ex. 17 at 2. 719 See Pls.’ Trial Ex. 3 at 2. 720 See Pls.’ Trial Ex. 5 at 1, 15. The Plaintiffs made two separate requests for these medical records—one in March 2019, and the other in June 2022. See id. at 1, 14–18. As a result, it appears to the Court that there were some duplicative charges between the two records. See id. at 10–13, 19–22. The Court has excluded these duplicative charges—a total of $7,272.47—from the total of Mr. Dobbs’s past medical expenses from Ozark Physical Therapy. See id. The Court does not award damages for past medical bills Mr. Dobbs incurred at Ozark Physical Therapy before his brain hemorrhage. 721 Matthews v. Rodgers,

,

(1983) (“The doctor testified that the appellee might need future medical procedures. The appellee testified he still had pain in the area. This was sufficient for the court to consider this element of damages.”). 722 Prysock,

, 784 S.W.2d at 757–58.

99 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 100 of 107

his brain injury.723 Excluding the items just referenced, the total future value of Ms. Powell’s life

care plan is $504,740.00. The necessary recalculation of the accounting error just referenced adds

another $785,160.00 to that value. Accordingly, factoring in all these changes (and applying the

spirit of Dr. Hubbard’s discount rate), the Court awards $1,417,844.56 to Mr. Dobbs for future

care and medical expenses.724

The Court can award damages for pain and suffering that Mr. Dobbs has experienced since

the hemorrhage. Damages for past pain and suffering—that is, pain and suffering after the

triggering event but before the trial—are awardable.725 As to likely pain and suffering after the

723 A fact-finder may award reasonable mileage when calculating future medical and care expenses. See AMI Civ. 2204 (“The reasonable expense of any necessary medical care, treatment and services received, [including (transportation)(and)(board)(and)(lodging) expenses necessarily incurred in securing such care, treatment, or services] [and the present value of such expense reasonably certain to be required in the future].”) (alterations and emphases in original). 724 The Court needs to make two additional findings here. First, Ms. Powell’s life care plan incorrectly calculated the total amount necessary to support her attendant care recommendations. See Pls.’ Trial Ex. 34 at 8. Specifically, Ms. Powell miscalculated the frequency of the attendant care in column seven (titled FREQ) of rows one and two— the frequency should represent days, not weeks. See

The Court has reworked the math on the recommendations. For the first ten years of attendant care, the math is as follows: 3,652 days multiplied by four hours a day, multiplied by $22.50 an hour equals $328,680.00. For the next 8.8 years, the math is as follows: 3,212 days, multiplied by eight hours a day, multiplied by $22.50 an hour equals $578,160.00. The sum of those two figures is $906,840.00. That’s $785,160.00 more than the $121,680.00 figure that Ms. Powell’s life care plan (mis)calculated. So, the Court has added $785,160.00 to the $504,740.00 that it calculated by excluding from the life care plan’s calculated costs the categories that the Court found not medically necessary and unreasonable. That equals $1,289,900.00, which represents the total future value of the proposed life care plan as altered by the Court. Second, as already explained, the Court excluded from future expenses several items of medical care, medications, and case management. And, as just explained, the Court altered the calculation of one item, namely future attendant care. Dr. Hubbard’s net discount rates for these categories are -1.0380 percent (medical care), -1.3233 percent (medications), -0.9515 percent (case management), and -0.9558 percent (attendant care). See Pls.’ Trial Ex. 34 at 12. But even after reviewing Dr. Hubbard’s testimony about the mathematical formula he applied, the Court is unsure how to exactly calculate the total present value of Mr. Dobbs’s future care and medical expenses (excluding those items the Court found were not medically necessary and altering the one item the Court found was miscalculated) using these exact rates. Accordingly, the Court has used a work-around that it believes will roughly but fairly approximate what the correct calculated amount would have been using the more intricate category-by-category formula set forth by Dr. Hubbard. The Court calculated the present value of Mr. Dobbs’s future care and medical expenses in the following way: $580,767 total future value of proposed life care plan) = $1,289,900 (total future value of proposed life care plan as altered by Court) $638,373 (total present value of proposed life care plan) X (total present value of proposed life care plan as altered by Court)

Put another way, the rough formula would be $1,289,900.00 multiplied by $638,373.00, divided by $580,767.00. And that equals $1,417,844.56. 725 See Garrison v. Hodge,

,

(affirming a jury verdict that awarded, in part, damages for past and future pain and suffering).

100 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 101 of 107

trial, “[e]vidence of future pain and suffering and permanent disability must be established with

reasonable certainty and must not be left up to speculation or conjecture on the part of the fact-

finder.”726 But the caselaw is clear that the fact-finder may infer pain and suffering from the

serious nature of the injury.727 And “changes in lifestyle will also support an award for pain and

suffering.”728 At bottom, “[t]here is no definite and satisfactory rule to measure compensation for

pain and suffering and the amount of damages must depend on the circumstances of each particular

case.”729 Still, the fact-finder may only award damages for future pain and suffering if it is

“reasonably certain to be experienced by [Mr. Dobbs] in the future.”730

Over the course of trial, the Court heard a significant amount of credible testimony (as

explained in the findings of fact above) that Mr. Dobbs was not the same man he was before he

suffered the brain hemorrhage. And the Court heard credible testimony (also explained above)

about the nightmare he endured during and after the brain hemorrhage. By way of example and

not limitation, consider the following few lowlights. He spent over two months in the hospital as

a result of Dr. Bahgat’s malpractice. Of those two months, he was in intensive care (first at the

Central Arkansas Veterans Healthcare System and then at Houston Methodist) for more than a

month. He was in a coma for an unspecified period of time. When he left intensive care, he went

to inpatient rehabilitation, where he needed nearly continuous care and had to work to relearn basic

726 MCSA, LLC v. Thurmon,

, at 7–8,

. 727 Garrison,

,

. 728 Id. at 15,

. 729 Id. at 14,

. 730 Bailey v. Bradford,

,

(1968) (internal quotation marks and citations omitted). Testimony that there “is a good possibility” that the plaintiff may endure future pain and suffering is not enough.

. When asked whether Mr. Dobbs’s deficits are permanent to a reasonable degree of neuropsychological certainty, Dr. Joyce testified “[y]es[,] [g]iven that it’s been well over a year since [Mr. Dobbs] had these injuries, the deficits that he has are likely to be permanent in nature.” Tr. of Bench Trial (Doc. 46) at 411:4– 9.

101 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 102 of 107

functions like swallowing. He also had significant bladder and bowel control problems, eventually

necessitating an adult diaper for some period of time. This was all directly and proximately caused

by the hemorrhage—and the testimony on this point from one or more experts was made to a

reasonable degree of medical certainty.

Mr. Dobbs now suffers from numerous cognitive and physical deficits, which are directly

and proximately attributable to the brain hemorrhage. Again, this conclusion is based on testimony

made to a reasonable degree of medical certainty. And these deficits are likely to be permanent.731

They are wide-ranging, affect most facets of his life, and make it impossible for him to live life in

any way close to the way he used to. The Court will not repeat here all the findings it made above

concerning the extent and effect of those deficits. It incorporates them by reference here. Based

on expert medical testimony, to a reasonable degree of medical certainty and by a preponderance

of the evidence, Mr. Dobbs will suffer the consequences (and accompanying pain) of these deficits

for the rest of his life. Simply put, Mr. Dobbs is unable to live life as he once did. And he will

never be able to do so again. His pain and suffering will be constantly with him, as it has been

since the brain hemorrhage.

Considering the thousands of pages of medical records and multiple days of trial testimony

from both expert witnesses and those who are personally familiar with Mr. Dobbs’s pain and

suffering, and based on all the findings of fact made above, and noting the 18-plus-year life

expectancy of Mr. Dobbs, the Court awards Mr. Dobbs $1,000,000.00 for past and future pain and

suffering directly and proximately caused by the hemorrhage.732 The link between the brain

731 See Wheeler v. Bennett,

,

(1993) (“A permanent injury is one that deprives the plaintiff of his right to live his life in comfort and ease without added inconvenience or diminution of physical vigor.”). 732 This award also encompasses Mr. Dobbs’s physical and mental impairment as a direct result of the brain hemorrhage. Mr. Dobbs also sought damages for disfigurement and scarring. See Compl. (Doc. 1) ¶ 8.1. Damages for disfigurement and scars are “separate and apart from mere embarrassment and the mental anguish they may cause.”

102 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 103 of 107

hemorrhage and the pain and suffering is short, direct, and unbroken by any intervening cause.

None of this pain and suffering would have taken place in absence of the hemorrhage.

Mrs. Dobbs also seeks damages for loss of consortium.733 Arkansas courts have defined

consortium as the “[c]onjugal fellowship of husband and wife, and the right of each to the

company, co-operation, affection, and aid of the other in every conjugal relationship.”734 “[T]he

loss of consortium is something difficult to measure in dollars and cents, but the recovery for loss

of consortium should be dictated by reason and justice.”735

As noted above, Mrs. Dobbs and her husband had a regular and intimate sexual relationship

before his brain hemorrhage. Despite trying to maintain an intimate sexual relationship since the

brain injury, they have been unable to do so. As further noted above, Mrs. Dobbs has also been

largely unable to enjoy her husband’s cooperation, companionship, affection, fellowship, and aid

since the brain hemorrhage.736 The change in the relationship has been vast, as Mrs. Dobbs has

had to largely transition from the role of wife to a more motherly role.737 Mrs. Dobbs married a

physically-fit, outdoors-loving, adventure-seeking, retired marine a little more than three years

Matthews,

,

. But Plaintiffs presented no evidence at trial about Mr. Dobbs scarring or physical disfigurement. Therefore, the Court does not award any damages for Mr. Dobbs’s disfigurement or scars. Moreover, insofar as Mr. Dobbs seeks damages for his loss of enjoyment of life pre-death, these damages have not been specifically recognized in Arkansas. See Howard W. Brill, Arkansas Law of Damages § 34:3. Finally, as the injured party, Mr. Dobbs cannot recover for loss of consortium with his wife. See Hisaw v. State Farm Mut. Auto. Ins. Co.,

,

(2003) (describing a loss of consortium claim as “derivative” to the claim of the injured party). 733 See Compl. (Doc. 1) ¶ 8.2; Tr. of Bench Trial (Doc. 48) at 943:14–19. 734 White v. Mitchell,

,

(1978) (internal quotation marks and citations omitted). 735

at 807–08,

. 736 See Missouri Pac. Transp. Co. v. Miller,

, 359–60,

(1957) (“Mrs. Miller has suffered the complete loss of consortium; Miller is not able to furnish any companionship; it does not appear that he has sufficient mental attainments that would enable him to be an enjoyable companion notwithstanding his present pain and mental anguish and his physical disabilities. Prior to Mr. Miller’s injuries, Mrs. Miller led a happy life, enjoyed her husband, his companionship and marital relation. And now, instead of a mate with whom she can mutually enjoy life, she has a burden to bear by the loss of consortium. Undoubtedly, she has been damaged heavily.”). 737 See Tr. of Bench Trial (Doc. 47) at 650:6–7 (“I feel like a mother and a caretaker.”).

103 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 104 of 107

before the brain injury. Although the Court is certain Mrs. Dobbs is dedicated to her husband now,

Mr. Dobbs is (through no fault of his own) a completely different person and their marriage is of

a completely different character. Mrs. Dobbs deserves compensation for the loss, which was

directly and proximately caused by the brain hemorrhage. The link between the hemorrhage and

the losses the Court discusses here is short, direct, and unbroken by any intervening cause. And

such losses would not have occurred absent the hemorrhage. Accordingly, based on all the

findings of fact in this Memorandum of Decision, and noting Mr. Dobbs’s 18-plus-year life

expectancy, the Court awards Mrs. Dobbs $500,000.00 for the loss of consortium with her

husband.

Finally, Plaintiffs also seek damages for past and future caretaking expenses.738 An injured

plaintiff is entitled to reimbursement for past and future caretaking expenses.739 This is true

whether the caretaking is provided by his wife or a professional.740 Future caretaking expenses,

however, have already been awarded as part of the future medical care damages. Because the

Court is providing damages for professional attendant care for the rest of Mr. Dobbs’s life, the

Court does not believe it appropriate to also pay Mrs. Dobbs for the performance of attendant care.

Such double-dipping would not be appropriate in the circumstances of this case.741

738 See Compl. (Doc. 1) ¶ 8.2 (“Eileen Dobbs brings this suit to recover all damages cognizable under the law resulting from the injuries to Craig Dobbs and to herself as a result of the occurrence in question.”). 739 See Gross & Janes Co. v. Brooks,

, at 9–10,

. 740 See Jackson v. United States,

(E.D. Ark. 1981) (“We are in agreement that plaintiff is entitled to a substantial award for caretaking expense, even though these services are now provided by his wife who undoubtedly took a marriage vow to care for him in sickness and in health.”). 741 If Ms. Powell had believed it was medically necessary and reasonable to provide Mr. Dobbs round-the-clock attendant care (or even, say, twelve hours of attendant care a day), Ms. Powell would have put that in the proposed life care plan. She didn’t, which leads the Court to believe that Mr. Dobbs does not need attendant care over and above what was suggested by Ms. Powell’s plan. The Court understands that Dr. Joyce and Ms. Powell testified that additional attendant care hours might be appropriate, but finds this testimony incredible and unpersuasive given the proposed life care plan. Additional hours might be nice, but they are not medically necessary and reasonable.

104 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 105 of 107

However, considering Mrs. Dobbs’s unavoidable and time-consuming efforts to take care

of her husband in nearly every aspect of his life over the four years leading up to trial, the Court

finds that Mrs. Dobbs is entitled to past caretaking expenses. Ms. Powell’s proposed life care plan

for Mr. Dobbs valued such care at $22.50 an hour.742 The Court finds that this rate is reasonable.

While Mrs. Dobbs did not keep a timesheet of the hours she spent caring for her husband, the

absence of such evidence does not preclude recovery for past caretaking damages.743 Based on

Mrs. Dobbs’s testimony at trial, the Court concludes that it was reasonably and medically

necessary for Mrs. Dobbs to spend (on average) four hours a day taking care of her husband. The

Court reaches this conclusion because (1) the need for attendant care in the long term is limited to

four hours a day until 2031, and (2) Mrs. Dobbs’s own testimony suggests that Mr. Dobbs spends

time alone during the day without her. Mrs. Dobbs spends at least four waking hours per day

attending to Mr. Dobbs’s needs that are directly attributable to the brain injury.

Mrs. Dobbs took care of Mr. Dobbs over the course of at least 1,452 days.744 The Court

finds the need for this care was a direct and proximate result of the brain hemorrhage. There would

be no such need without the brain hemorrhage, and the link between the brain hemorrhage and the

need for past caretaking is short, direct, and unbroken by an intervening cause. Considering the

time and effort Mrs. Dobbs has spent taking care of her husband as a direct and proximate result

of the brain hemorrhage, the Court awards $130,680.00 in past caretaking damages to Mrs. Dobbs.

742 See Pls.’ Trial Ex. 34 at 8. 743 See Carr v. Nance,

,

(“[I]n those instances where damages simply cannot be proven with exactness, when the cause and existence of damages have been established by the evidence, recovery will not be denied merely because the damages cannot be determined with exactness.”). 744 This represents the time that passed from the day Mr. Dobbs was released from Houston Methodist Rehabilitation (December 21, 2018) to the end of the bench trial in this case (December 2, 2022).

105 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 106 of 107

Although Plaintiffs are not entitled to pre-judgment interest under the Federal Tort Claims

Act, the Court may order post-judgment interest.745 The Court will do so here.746 Under federal

law, post-judgment interest is calculated “at a rate equal to the weekly average 1-year constant

maturity Treasury yield, as published by the Board of Governors of the Federal Reserve system,

for the calendar week preceding the day of judgment.”747 Here, that’s 5.16 percent.

Finally, Plaintiffs seek attorney fees equal to 25 percent of the judgment.748 The Court

does not grant those fees as part of this judgment. However, the Court will entertain (as it does in

every other case) a post-judgment motion for attorney fees. That motion must address whether

attorney fees are appropriate at all, given that the Arkansas Medical Malpractice Act does not

explicitly provide for attorney fees.749 (In Arkansas, attorney fees are generally not recoverable

absent specific statutory authorization.750) Additionally, the Court requests information necessary

to determine whether a 25-percent fee would be reasonable, including information necessary for

the Court to roughly make a lodestar calculation.

745 See

;

(b)(1). 746 Post-judgment interest is allowed “only from the date of filing of the transcript of the judgment with the Secretary of the Treasury through the day before the date of the mandate of affirmance . . . .”

(b)(1)(A). 747

(cleaned up). 748 A plaintiff may recover attorney fees in a Federal Tort Claims Act case “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

§ 1346(b)(1). See also id. § 2674 (“The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”); Tri-State Hosp. Supply Corp. v. United States,

(D.C. Cir. 2003) (holding that attorney fees are only recoverable under the Federal Tort Claims Act if the law of the state where the tortious act occurred provides for them). 749 See generally

. 750 See, e.g., Gibson v. Buonauito,

, at 11,

, 66 (“Arkansas follows the American rule, which requires every litigant to bear his or her attorney[] fees, absent a state statute to the contrary.”).

106 Case 4:20-cv-01192-LPR Document 50 Filed 12/05/23 Page 107 of 107

CONCLUSION

In accordance with the above Findings of Fact and Conclusions of Law, IT IS HEREBY

ORDERED that Judgment shall be entered in FAVOR of Plaintiffs Craig Dobbs and Eileen Dobbs

and AGAINST Defendant United States of America for damages in the amount of $3,122,538.09.

Judgment will be entered accordingly. The Judgment will accrue at an interest rate of 5.16 percent.

IT IS SO ORDERED this 5th day of December 2023.

________________________________ LEE P. RUDOFSKY UNITED STATES DISTRICT JUDGE

107