UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) ROBERT D. HUBER, JR., ) ) Plaintiff, ) ) v. ) Civil Action No. 14-cv-1380 (TSC) ) UNITED STATES OF AMERICA, ) ) ) Defendant. ) )

MEMORANDUM OPINION

Currently pending before the court are the parties’ recommendations for quantum of

damages, ECF Nos. 49 & 50. Based on the court’s findings of fact and conclusions of law, ECF

No. 48, and both parties’ recommendations, the court will award Plaintiff damages in the amount

of $468,119.82.

I. BACKGROUND

Plaintiff Robert D. Huber, Jr. filed his lawsuit against the United States under the Federal

Tort Claims Act (“FTCA”),

, 2671 et seq., following a traffic collision

between him and a federal employee driving a Government Services Administration vehicle in

the course and scope of his employment with the United States Department of the Army. The

court held a five-day bench trial in January 2018. On April 16, 2019, this court issued its

findings of fact and conclusions of law, entered judgment in Plaintiff’s favor, and concluded that

Plaintiff sustained his burden of proof on his negligence claim and that the accident was the

proximate cause of his injuries. ECF No. 48, Mem. Op. at 1, (II)(2)(B). However, the court was

unable to determine an appropriate quantum of damages because “not all of Huber’s

1 psychological problems have been shown to be the result of the accident.”

. The court

ordered both parties to submit supplemental briefing on the issue of damages and to provide

suggested calculations and the basis for those calculations.

at 11–12.

Plaintiff recommends a damages award of $1,297,087.82—$72,087.86 for past medical

costs and $1,225,000 for pain and suffering. See generally Pl.’s Recommendation, ECF No. 49.

Defendant recommends a damages award of no greater than $86,007.82—$71,007.82 for past

medical costs and $15,000 for pain and suffering. See generally Def.’s Recommendation, ECF

No. 50.

II. DAMAGES PRINCIPLES

The fundamental principle for determining the amount of damages to be awarded to a

plaintiff stems from the seminal case, Story Parchment Co. v. Paterson Parchment Paper

Co.,

(1931). See Hill v. Republic of Iraq,

(D.C. Cir. 2003)

(noting that Story Parchment Co. “states the American rule on damages[.]”). In Story Parchment

Co., the Supreme Court stated that “while the damages may not be determined by mere

speculation or guess, it will be enough if the evidence show the extent of damages as a matter of

just and reasonable inference, although the result be only approximate.”

.

The amount of damages requires only a reasonable estimate. See Samaritan Inns, Inc. v.

District of Columbia,

(D.C. Cir. 1997) (Plaintiff must “prove the fact of

injury with reasonable certainty, [and prove] the amount of damages . . . based on a reasonable

estimate.”); Wood v. Day,

(D.C. Cir. 1988) (Plaintiff must provide only

“some reasonable basis on which to estimate damages.”) (quoting Romer v. District of

Columbia,

(D.C. 1982)). Thus, the court’s task is to “make a just and

reasonable estimate of the damage based on relevant data.” United States ex rel. Miller v. Bill

2 Harbert Int’l Constr., Inc.,

(D.C. Cir. 2010) (quoting Bigelow v. RKO Radio

Pictures, Inc.,

(1946)). The relevant data may include “probable and

inferential, as well as direct and positive proof.” Bigelow,

(quoting Story

Parchment Co.,

). Damages “may not be determined by mere speculation or

guess . . . although the result be only approximate.” Hill,

(quoting Story

Parchment Co.,

).

In the District of Columbia, “[a]n award of damages must . . . avoid[] extravagant awards

that bear little or no relation to the actual injury involved.” Campbell–Crane & Assocs. v.

Stamenkovic,

(D.C. 2012) (internal citations omitted). The damages award

“must be proportional to the harm actually suffered.” Phillips v. District of Columbia,

(D.C. 1983).

Finally, the “court must explain the reasons for the determination of the damages award

and tether these reasons to the record.” Rhodes v. United States,

(D.D.C. 2013); see also Eureka Inv. Corp., N.V. v. Chicago Title Ins. Co.,

, 940

(D.C. Cir. 1984) (“[I]t is essential that the trial court give sufficient indication of how it

computed the amount so that the reviewing court can determine whether it is supported by the

record.”) (citation omitted).

III. ANALYSIS

Plaintiff seeks $72,087.86 in economic damages for medical bills and $1,225,000 in non-

economic damages for pain and suffering. See generally Pl.’s Recommendation. Specifically,

Plaintiff requests non-economic damages that include: $700,000 for the extent and duration of

his physical injuries; $250,000 for the effects his physical injuries have on his overall physical

and emotional well-being; $100,000 for acute pain and $100,000 for chronic headaches; and

3 $75,000 for inconveniences he has experienced in the past or may experience in the future. See

id at 2, 4, 6, 7.

Plaintiff bases his request on five factors from the District of Columbia Standardized

Civil Jury Instructions § 13.01, 1–7: (1) the extent and duration of plaintiff’s injuries; (2) the

effects that any physical injuries have on plaintiff’s overall physical and emotional well-being;

(3) any physical pain and emotional distress that the plaintiff has suffered in the past or may

suffer in the future; (4) any inconvenience the plaintiff has experienced in the past or may

experience in the future; and (5) past and future medical expenses. See Pl.’s Recommendation at

2–8.

Although Defendant contends this court is not bound by the D.C. jury instructions, see

Def.’s Recommendation at 4 (citing to 8th Circuit cases), judges in the U.S. District Court for the

District of Columbia may use these jury instructions as a “useful reference” when considering a

damages award. See Rhodes, 967 F. Supp. 2d at 324–25 (referring to the D.C. Standardized

Civil Jury Instruction § 13.01, 1–7 in its damages analysis). Because Plaintiff has reached his

recommendation using the DC jury instructions, the court will refer to these instructions in its

consideration for damages.

1. D.C. Standard Civil Jury Instruction 13.01-1: The extent and duration of any physical injuries sustained by Plaintiff

Plaintiff seeks $700,000 in damages in recognition of the extent and duration of his

physical injuries. Pl.’s Recommendation at 2. This court found that, as a result of the accident,

Plaintiff suffered from post-concussion syndrome, which gave rise to a mood disorder. Mem.

Op. at (I)(B)(ii)(12). His symptoms included headache, numbness, tingling, dizziness, and

weakness. Id. at (I)(B)(ii)(4). Three neuropsychological assessments indicated that Plaintiff

4 suffered a mild to moderate traumatic brain injury but that his symptoms also had some

psychosomatic effects. Id. at (I)(B)(ii)(7).

As to the duration of Plaintiffs’ physical injuries, although Plaintiff claims that he “has

suffered from June 23, 2012 to the first date of trial January 22, 2018,” Pl.’s Recommendation at

4, from the injuries associated with the accident, he does not cite to any evidence in the record

that describes his physical injuries past April 2015. At trial, Dr. Talbot testified that when she

first saw Plaintiff on April 25, 2015, his symptoms were consistent with someone who had

experienced post-concussion syndrome. Mem. Op. at (I)(B)(ii)(10) (citing Tr. 56:22–24).

Defendant argues that Plaintiff has almost fully recovered, but it does not seem to contest his

physical injuries from the period between the accident and April 25, 2015. Def.’s

Recommendation at 12. Therefore, the court will consider only the extent of his injuries from

the time of the accident until April 25, 2015.

Plaintiff has given little indication of how he arrived at the $700,000 in damages he

claims, so the court must make its own calculation. Plaintiff asserts that he “has suffered [for] . .

. five years and five months and 29 days [and] [a]s of the date of trial, Mr. Huber is expected to

live another 29.9 years.” Pl.’s Recommendation at 4. The court is left to assume that Plaintiff

calculated this damages recommendation based on the roughly 35.4 years he suggests he has

suffered and will continue to suffer as a result of the accident. By the court’s calculation,

Plaintiff is, therefore, requesting approximately $19,774 in damages per year ($1,648 per month)

as a result of his physical injuries.

Because Plaintiff has provided only factual support for his injuries from the time of the

accident until April 25, 2015 (roughly 34 months), an award reduced in proportion to that

duration is more appropriate. Therefore, multiplying $1,648 by the roughly 34 months Plaintiff

5 has shown he suffered from his injuries, the court determines that $56,032 is the appropriate

quantum of damages for the extent and duration of Plaintiff’s physical injuries.

2. D.C. Standard Civil Jury Instruction 13.01-2: The effects that any physical injuries have on the overall physical and emotional well-being of Plaintiff

Plaintiff requests $250,000 as compensation for the effect his physical injuries have had

and will have on his overall physical and emotional well-being. However, Plaintiff does not

show how he arrived at this figure.

The court found that “although some of Huber’s psychological problems predated the

accident on May 14, 2012, the accident exacerbated those problems or created new ones.” Id. at

(I)(B)(ii)(14). It further found that Plaintiff experienced headaches, sleep disturbance, cognitive

difficulties, difficulty concentrating, balance and gait issues, memory impairment and dizziness

as a result of the accident. Id. at (I)(B)(ii)(13). Plaintiff’s psychotherapist, Susan Montgomery,

who testified credibly concerning Plaintiff’s injuries, id. at (I)(B)(i)(5), found that the post-

concussion syndrome likely exacerbated Plaintiff’s depression and anxiety. Id. at (I)(B)(ii)(8).

Defendant argues that the court should not rely on Plaintiff’s expert witnesses,

Montgomery, Dr. Talbot, and Dr. Kaminski in assessing the accident’s effects on Plaintiff’s

well-being. Def.’s Recommendation at 7, 8, 10. The court, having previously found that these

witnesses testified credibly about Plaintiff’s injuries, Mem. Op. at (I)(B)(i)(5), sees no reason to

discredit their testimony. Based on this testimony, the court will award Plaintiff $150,000 for the

effects that the physical injuries had on Plaintiff’s overall physical and emotional well-being.

6 3. D.C. Standard Civil Jury Instruction 13.01-3: Any physical pain and emotional distress that Plaintiff has suffered in the past or may suffer in the future

Plaintiff seeks $200,000 based on Standard Civil Jury Instruction 13.01-3, which

provides that a jury may consider any physical pain and emotional distress that Plaintiff has

suffered in the past or may suffer in the future. “Any determination of a non-economic damages

award is, by necessity, fact-intensive and tailored to the specific circumstances of the plaintiff.”

Rhodes,

. Additionally, the court “has broad discretion in calculating

damages for pain and suffering.” See Stern v. Islamic Republic of Iran,

(D.D.C. 2003) (citing Taylor v. Washington Terminal Co.,

(D.C. Cir. 1969)).

Plaintiff seeks $100,000 in damages for acute pain resulting from the accident. Pl.’s

Recommendation at 4. When determining appropriate pain and suffering damages, courts may

consider “the severity of the pain immediately following the injury, the length of hospitalization,

and the extent of the impairment that will remain with the victim for the rest of his or her life.”

Owens v. Republic of Sudan,

(D.D.C. 2014) (citation omitted).

Plaintiff has presented substantial evidence to prove that he suffered from acute pain as a

result of the accident. He was admitted to the hospital three times, suffering from abdominal

pain, vomiting, severe headaches and altered level of consciousness, memory impairments,

altered medical state, and gait imbalance. See Mem. Op. at (I)(B)(ii)(1), (I)(B)(ii)(2),

(I)(B)(ii)(4); see also Doe v. Binker,

(D.C. 1985) (explaining that pain and

suffering damages are appropriate for “conscious” pain and suffering). The court also found that

Plaintiff “experienced headache, sleep disturbance, cognitive difficulties, difficulty

concentrating, balance and gait issues, memory impairment and dizziness” because of the

accident. Mem. Op. at (I)(B)(ii)(13).

7 Defendant does not dispute any of Plaintiff’s claims of acute pain and does not directly

address Plaintiff’s claim for damages for acute pain, but generally argues that Plaintiff’s damages

request is not proportional to the harm that he suffered. Def.’s Recommendation at 13. Based on

the extent of Plaintiff’s pain, which required three stays in the hospital, and which included

headaches of such severity as to alter his cognitive state, the court will award Plaintiff $100,000

for the acute pain he suffered from the accident.

Plaintiff also seeks compensation of $100,000 for a life of severe and extreme pain with

chronic headaches that require daily medication. See Pl.’s Recommendation at 7. But, despite

the court’s instruction that the parties “cite to the record in support of their calculations,” Mem.

Op. at 12, Plaintiff has not provided any support in the record for his recommendation for

chronic headaches. See Pl.’s Recommendation at 7. A plaintiff may recover for future harm

“only by a reasonable certainty or preponderance of the evidence.” Hill,

. Because Plaintiff suffered acute pain as a result of the accident, Pl.’s Recommendation at 4,

the court will award $60,000 based on his life expectancy of roughly another 30 years ($2,000

per year).

4. D.C. Standard Civil Jury Instruction 13.01-5: Any inconvenience Plaintiff has experienced in the past or may experience in the future

Plaintiff seeks $75,000 in damages for any inconvenience he has experienced in the past

or may experience in the future. Damages may be awarded for inconvenience. See, e.g.,

Campbell v. District of Columbia,

(D.D.C. 2016). Plaintiff seeks such

damages from: collapsing in his office; staying five nights in a hospital on three separate

occasions; a trip to a neurologist; meeting with multiple doctors to determine the source of his

extreme headaches, memory impairments, and double vision; meeting with two brain injury

specialists; and performing neurological tests with three neuropsychologists. See Pl.’s

8 Recommendation at 7–8. Defendant did not address the issue of inconvenience damages in its

briefing. Although the court finds $75,000 to be an excessive amount, it will award Plaintiff

$30,000 in inconvenience damages.

5. D.C. Standard Civil Jury Instruction 13.01-6: Medical Expenses – Past and Future.

Plaintiff seeks $72,087.86 in damages for past and future medical expenses. Defendant

contests $1,200 of Plaintiff’s medical bills related to several of his sessions with Susan

Montgomery, a psychotherapist, arguing that Plaintiff and Montgomery discussed outside

psychological stressors and symptoms, unrelated to the accident, during the contested sessions.

Def.’s Recommendation at 14–15. The record shows the contested sessions involved treating

symptoms caused by seizures, relationships, family stress, impulsivity, decision making, anxiety,

and one session was unrelated to Plaintiff’s brain injury. See Pl.’s Ex. 18 at HUB-SMLCSW-

000017, HUB-SMLCSW-000046, HUB-SMLCSW-000049, HUB-SMLCSW-000051, HUB-

SMLCSW-000064, HUB-SMLCSW-000065, HUB-SMLCSW-000078, HUB-SMLCSW-

000079. In making a “just and reasonable estimate of the damage based on relevant data,”

Miller,

(citing Bigelow,

), the court may base its assessment on

“probable and inferential . . . proof,” Bigelow,

. Because Montgomery testified

that it is “more likely than not [] the injury affected Huber’s depression [and] anxiety,” Tr.

52:16–24, and the court concluded the accident “exacerbated [Huber’s] problems or created new

ones,” Mem. Op. at (I)(B)(ii)(14), it is probable that the contested sessions with Montgomery

were due to Plaintiff’s depression and anxiety, which were exacerbated by the accident.

Therefore, the court will award past medical expenses to Plaintiff for all medical bills produced

to the court, in the amount of $72,087.86.

9 IV. CONCLUSION

Therefore, the court will award damages to Plaintiff in the amount of $468,119.82.

A corresponding Order will be issued separately.

Date: September 19, 2019

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge

10