Le v. United States

Case: 24-10123 Document: 114-1 Page: 1 Date Filed: 05/16/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-10123 FILED May 16, 2025 ____________ Lyle W. Cayce Henry Le; Dung Le, Clerk Plaintiffs—Appellees, versus United States of America, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CV-147 ______________________________ Before Elrod, Chief Judge, and Higginbotham and Southwick, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge: In this case, a minor collision had serious and deadly consequences.

After a postal vehicle struck his car, Michael Le was first hospitalized, then bedridden, and finally—during the pendency of this appeal—died. The district court found the Government liable and awarded commensurate damages. We AFFIRM.

Case: 24-10123 Document: 114-1 Page: 2 Date Filed: 05/16/2025

No. 24-10123

I.

This case begins with a collision between a United States Postal Service (“USPS”) vehicle and Michael Le (“Mr. Le”). Prior to this collision, Mr. Le was a middle-aged father of two who lived with his family in Grand Prairie, Texas. 1 He also suffered from ankylosing spondylitis, a lifelong inflammatory disease that can severely damage joints and cause vertebrae to fuse together. 2 It is undisputed that at the time of the accident, Mr. Le suffered from advanced ankylosing spondylitis—as evidenced by his “hunched-forward posture” that restricted his ability to look upward and prevented him from standing up straight. Despite this condition, Mr. Le worked full time, completed household chores, and exercised. 3 After work on May 4, 2018, Mr. Le was backing out of his driveway to pick his son up from school in his red Toyota Camry Solara when a USPS vehicle collided with his car. 4 Mr. Le was completely stopped in the street when the USPS vehicle driven by Jillian Williams struck the rear-right panel of Mr. Le’s Toyota. 5 This initial collision was followed by a second; Mr. Le’s Case: 24-10123 Document: 114-1 Page: 3 Date Filed: 05/16/2025

No. 24-10123 car accelerated for approximately six seconds over nearly ninety feet and collided with his neighbor’s house. 6 As the district court noted, a typical person’s reaction time to “a known event is a second and a half.” Upon impact, the frontal airbag deployed and Mr. Le’s car was brought to a stop by his neighbor’s home. 7 Mr. Le exited the vehicle and was able to walk with some assistance at first, but he collapsed soon after and was driven to a nearby emergency room by his son, Kevin Le. 8 Mr. Le was examined there and transported by helicopter to Baylor University Medical Center (“BUMC”) in Dallas. Dr. Matthew Berchuck, an orthopedic spinal surgeon at BUMC, examined Mr. Le and made the decision to postpone surgery until the next morning when a fully equipped medical staff would be available. 9

Case: 24-10123 Document: 114-1 Page: 4 Date Filed: 05/16/2025

No. 24-10123

The next morning, Dr. Berchuck and his team began the surgery, but at a certain juncture Mr. Le’s neuromonitoring signals were lost. 10 After changing course and opting for a different stabilizing technique, Dr. Berchuck ensured Mr. Le’s spine was decompressed and ended the surgery. 11 Mr. Le’s neurologic function never returned. 12 While recovering from the spinal surgery, Mr. Le developed a post- operative infection that snowballed into an esophageal tear and fistula that necessitated the implantation of a permanent feeding tube. 13 Mr. Le’s condition only grew worse, and he was repeatedly hospitalized to address recurring illnesses and the later amputation of both legs. As a result, Mr. Le was confined to his bed or wheelchair, and rarely left home. 14 As a result of the collision and proceeding events, Mr. Le had to use a catheter and a Case: 24-10123 Document: 114-1 Page: 5 Date Filed: 05/16/2025

No. 24-10123 colostomy bag. 15 Prior to his passing, he experienced phantom pain from his amputated limbs, depression, and suicidal ideations. 16 II.

On February 26, 2022, Mr. Le and Mrs. Le filed and brought this action under the Federal Tort Claims Act (“FTCA”) against the United States of America and the USPS in federal court. 17 Mr. and Mrs. Le alleged that Williams’ negligence proximately caused their damages.

Under federal law, suits against the United States must be tried by the district court itself.18 Federal courts apply the substantive law of the state Case: 24-10123 Document: 114-1 Page: 6 Date Filed: 05/16/2025

No. 24-10123 where the alleged negligence occurred—to the extent state law is not precluded by federal law. 19 The district court conducted a four-day bench trial on April 24-27, 2023.

Both Plaintiffs and the Government presented the testimony of numerous medical and financial experts, as well as eyewitnesses and Plaintiffs themselves. 20 Plaintiffs claimed that Williams “negligently operated her postal truck, striking Mr. Le’s vehicle and causing the fracture that ultimately led to his quadriplegia.” In turn, the Government argued that Mr. Le bore most of the fault for his injuries by not wearing a seatbelt and causing the second impact into his neighbor’s house. The Government also argued that Dr. Berchuck was a negligent actor both during and after Mr. Le’s surgery because he rendered Mr. Le a permanent quadriplegic during surgery and failed to detect and treat a post-operative infection in a timely manner. 21 On July 24, 2023, the district court published a 40-page opinion that found the United States to be jointly and severally liable for Mr. and Mrs. Le’s damages. The damages for Mr. Le in this case included past and future medical expenses, loss of earnings, and intangible damages in the amount of Case: 24-10123 Document: 114-1 Page: 7 Date Filed: 05/16/2025

No. 24-10123

$23,908,479.73. The damages for Mrs. Le in this case included past and future loss of consortium and loss of services in the amount of $2,605,000.00.

In the course of its decision, the district court found a number of facts that are directly pertinent to this appeal. 22 After the district court handed down this judgment in July 2023, the Government filed a post-judgment motion for remittitur of non-economic damage awards based on the maximum recovery rule. 23 The district court denied this motion in a 23-page opinion that reviews its awards on Mr. Le’s physical pain and mental anguish, physical impairment, disfigurement, and Mrs. Le’s loss of consortium. Through its reasoning in the various categories of damages, the district court found the maximum recovery rule to be inapplicable to some categories because the awarded amounts were less than 133% of the highest inflation-adjusted award from factually similar state cases or an upward departure was warranted given the unique facts of Mr. and Mrs. Le’s case. 24 The district court concluded that, because “none of the noneconomic damages challenged in the instant Motion are unreasonably excessive[,]” reduction under the maximum recovery rule was not required.

Case: 24-10123 Document: 114-1 Page: 8 Date Filed: 05/16/2025

No. 24-10123

III.

A.

This Court reviews “findings of fact for clear error and conclusions of law de novo” when handling a bench trial appeal. 25 “The district court’s proximate cause and negligence findings are findings of fact that we review for clear error.” 26 Under FED. R. CIV. P. 52(a)(6), “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” As such, “[a] finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court based on all the evidence is left with the definitive and firm conviction that a mistake has been committed.” 27 “Factual findings made during a bench trial deserve ‘great deference.’” 28 In addition, the “district court’s finding of fact is clear error only if it is ‘implausible in the light of the record considered as a whole.’” 29 As the Supreme Court noted, “[w]here there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly Case: 24-10123 Document: 114-1 Page: 9 Date Filed: 05/16/2025

No. 24-10123 erroneous.” 30 And when “the trial court’s findings . . . are based on determinations of credibility[,]” this Court “grant[s] even greater deference . . . .” 31 B.

Because this action arises under the FTCA, Texas substantive law controls. 32 As this Court has observed previously, “[u]nder Texas law, comparative responsibility expressly applies to negligence claims.” 33 The district court—the trier of fact in this case—must “reduce a plaintiff’s recovery in tort by the proportion []he contributed to causing h[is] own harm through actions that were negligent or otherwise fell below some legal standard.” 34 If the plaintiff himself is found to have a percentage of responsibility greater than 50 percent, he “may not recover damages . . . .” 35 The Government asserts a tripartite error is ensconced within the district court’s opinion: that Mr. Le bore responsibility for crashing his car into his neighbor’s home; that Mr. Le bore responsibility for failing to wear a seatbelt; and that Dr. Berchuck bears responsibility for causing Mr. Le’s fistula. The Plaintiffs counter that Texas law requires the defendant to produce evidence of such assertions, and that the Government failed to produce the requisite evidence.

Case: 24-10123 Document: 114-1 Page: 10 Date Filed: 05/16/2025

No. 24-10123

1.

First, the Government contends that the district court should have “entirely, or at least substantially, reduced plaintiffs’ recovery because Mr. Le is primarily at fault for the second impact.” 36 They cite to Mr. Le’s statements after both impacts and to their expert witnesses—and conclude that Mr. Le panicked after the first impact and was not immobilized. The Plaintiffs, in turn, cite to three pieces of physical evidence that support the district court’s finding that the first impact with the postal vehicle was the chain reaction that began this series of events. 37 Relying on Mr. Le’s pre-existing spinal affliction, which causes rigidity and brittleness of vertebrae, the district court understood this condition as the antecedent that facilitated this chain of events. 38 The district court noted that Mr. Le’s condition made him prone to low-impact fractures.

In the district court’s eyes, Mr. Le’s condition—paired with the force of the postal truck’s collision with his car—compounded to fracture Mr. Le’s vertebra. The district court examined scanned images of Mr. Le’s fracture Case: 24-10123 Document: 114-1 Page: 11 Date Filed: 05/16/2025

No. 24-10123 and found the available evidence to support the conclusion that the first impact caused the fracture. 39 The district court found that the first impact caused a fragmented piece of his vertebra to fluctuate between pinching and not pinching his spine. 40 This “transient neurological dysfunction” resulted in disruption of motor control to Mr. Le’s right leg and foot. 41 This fluctuation, to the district court, explained why Mr. Le was unable to stop, and caused him to barrel straight towards his neighbor’s house for six seconds before crashing.

The Government relies heavily on Dr. Colman’s expert opinion that the spinal fracture could not have happened from the first impact. The Plaintiffs rebut this with their own expert’s testimony and the presence of Mr. Le’s pre-existing condition. 42 Next, the Government assails the district court’s finding of a “transient neurological dysfunction” and cites to statements Mr. Le made to the responding officer and to medical responders. The Plaintiffs respond with their own swath of competing evidence—all of which was before the district Case: 24-10123 Document: 114-1 Page: 12 Date Filed: 05/16/2025

No. 24-10123 court—and explain that he was confused, and in some instances drugged, when making those statements. Moreover, the Plaintiffs emphasize the fact that Mr. Le had six seconds to respond to the initial impact and pump the brakes on his car, and despite the Government’s assertion that he had control over his car, the second impact itself demonstrates he lost control.

Finally, the Government contends that the fracture pattern was not caused by the first impact, yet the Plaintiffs observe that their expert found the pattern to be equally consistent with the first impact. This is the type of call a district court is best suited to make—and without more definitive evidence from the Government—there is no error, much less clear error. 43 Mr. Le was not the typical driver or middle-aged man. He suffered from a degenerative disease that made him very susceptible to spinal fractures from minor impacts. As such, it is quite possible that the initial tortious collision with the USPS vehicle could have rendered him incapable of braking. It took six seconds for Mr. Le to crash through a fence and into his neighbors’ house. With his right leg and foot working as they normally would, Mr. Le could and would have stopped. The Government did not meet their burden. 44 We see no clear error in the district court’s conclusion that the first impact was the proximate cause of the second.

Case: 24-10123 Document: 114-1 Page: 13 Date Filed: 05/16/2025

No. 24-10123

2.

Second, the Government asserts that the district court erred in finding that Mr. Le did not contribute to his injuries by not wearing a seatbelt.

Observing that the Supreme Court of Texas has recognized that, “a plaintiff who breaks the law or otherwise acts negligently by not using a seat belt is at least partially responsible for the harm that befalls him[,]”the Government contends that there is overwhelming evidence that Mr. Le was not using a seatbelt at the time of the collision. 45 The district court determined it was not necessary to make a finding of whether he was wearing a seatbelt at the time of the collision because of its finding that the first impact caused spinal fragmentation.

The Plaintiffs observe that while there is testimony from an EMT that Mr. Le told him he was not wearing a seatbelt, there are also conflicting police report notes and first responder records stating the opposite. Mr. Le, Mrs. Le, Kevin Le, and Henry Le all testified that he was a “habitual seat belt- wearer” and that he did buckle up on the day in question. As such, the district court was presented with conflicting, but mostly concurring, evidentiary points of seat belt use.

At trial, the Government attempted to show that the “seatbelt tensioner” was “stowed” and that this proved he was not wearing it at the time the airbag deployed. The district court noted, however, that neither party determined if the pretensioner was operable and did, in fact, deploy during the second impact. There were competing expert opinions, and with the lack of any diagnostic tests performed on the car part in question, the district court concluded that there was not conclusive evidence of Mr. Le’s nonuse of the seatbelt.

What matters for the purpose of this analysis is whether usage of a seatbelt would have reduced additional stress on Mr. Le’s spine and Case: 24-10123 Document: 114-1 Page: 14 Date Filed: 05/16/2025

No. 24-10123 prevented his quadriplegia. Without more concrete evidence of cause-in fact by the Government (other than the fact that there could have been more stress on his spine) and without clear proof that Mr. Le was not wearing his seat belt, the factual determination reverts to the trier of fact’s determination. 46 We find no clear error as to the district court’s finding.

3.

Third, the Government contends that Dr. Berchuck, the BUMC doctor who performed surgery on Mr. Le, is partially at fault for Mr. Le’s post-operative fistula. Under Texas law, the Government must show “(1) the physician’s duty to act according to an applicable standard of care; (2) [the physician’s] breach of that standard of care; (3) injury; and (4) causation.” 47 The Supreme Court of Texas has determined that the standard of care for a physician is “what a doctor of ordinary prudence in that particular field would or would not have done under the circumstances.” 48 At trial, the Government argued that BUMC practitioners and Dr. Berchuck were partially responsible for his quadriplegia—a claim they now abandon on appeal. 49 The primary piece of evidence they use to carry forward their one preserved claim (that Dr. Berchuck failed to timely treat and detect the fistula) is Dr. Colman’s testimony as one of their expert witnesses. The district court considered this testimony and found that it was insufficient to establish the applicable standard of care, any breach by Dr. Berchuck, or causation in connection with the esophageal tear.

Case: 24-10123 Document: 114-1 Page: 15 Date Filed: 05/16/2025

No. 24-10123

Under Texas law, a claimant must show that “a doctor of ordinary prudence in that particular field would or would not [have undertaken the action] under the circumstances.” 50 In particular, a determination of a breached standard “cannot be determined absent specific information about what the [doctor] should have done differently.” 51 Using Texas caselaw, the district court found that there was not a reasonable medical probability that Dr. Berchuck caused or contributed to the injury.

At trial, Dr. Colman stated that Dr. Berchuck “need[ed] to recognize” post-operative complications—but did not elaborate on how he had the primary or sole responsibility for post-operative care at a facility such as BUMC. 52 Without this information, however, it is impossible to determine if there was clear error in determining that Dr. Berchuck was the person responsible for not catching the tear in time.

Furthermore, the Plaintiffs note that Dr. Colman did not explain when the tear should have been recognized, when it was recognized, what Dr. Berchuck actually did or did not do, or when his tortious act or omission occurred. 53 We view Dr. Colman’s testimony as to this specific matter as “improperly equat[ing] negligence with a bad or unsuccessful result.” 54 We find no clear error on the district court’s part.

Case: 24-10123 Document: 114-1 Page: 16 Date Filed: 05/16/2025

No. 24-10123

IV.

With liability affirmed, the great denouement of damages comes to the fore. “A court’s damages award is a finding of fact reviewed for clear error.” 55 “As such, the award is not clearly erroneous if it is plausible in the light of the record.” 56 Furthermore, an award will not be “revers[ed] . . . for excessiveness except on the strongest showings” that it “exceeds the bounds of reasonable recovery.” 57 It must be noted that “[w]hen this court is left with the perception that the verdict is clearly excessive, deference must be abandoned.” 58 We also note, however, that this Court “review[s] with deference damage awards based on intangible harm.” 59 In the Fifth Circuit, we “use[] the ‘maximum recovery rule’ to determine whether an award is excessive.” 60 Applying this rule, “this [C]ourt ‘will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction.’” 61 For bench trials, we will not overturn awards that are within 133% of the highest comparable award, adjusting for inflation. 62

Case: 24-10123 Document: 114-1 Page: 17 Date Filed: 05/16/2025

No. 24-10123

Here, the relevant jurisdiction to draw caselaw from is Texas because the substantive law for the claim is Texas-sourced. 63 The maximum recovery rule is not operative “unless the award exceeds 133% of the highest previous recovery in the state” adjusted for inflation. 64 “[A] departure from prior awards is merited ‘if unique facts are present that are not reflected within the controlling caselaw’” 65 In addition, only published decisions are available for the comparability inquiry. 66 The Government challenges four portions of the district court’s awards for Mr. Le’s: (A) past physical pain and mental anguish; (B) future physical pain and mental anguish; (C) past physical impairment; (D) future physical impairment; and (E) past and future disfigurement.

A.

The district court awarded $1,500,000 for past physical pain and suffering and $750,000 for past mental anguish. The district court noted Mr. Le’s “grueling physical, mental, and emotional pain” that had resulted from his quadriplegia, amputations, and esophageal fistula—on top of the “severe depression, periodic suicidality, sleep deprivation, and loss of appetite” that Case: 24-10123 Document: 114-1 Page: 18 Date Filed: 05/16/2025

No. 24-10123 had resulted from these harms. 67 The district court used Holcombe v. United States as a marker for damages. 68 The Government attempts to distinguish this by arguing that Holcombe was never affirmed by the Fifth Circuit and as such, should not carry precedential value, and cite cases that do not involve permanent paralysis or amputation as comparators. 69 Furthermore, the Government also argues that Holcombe is too distant to be a comparator. This is incorrect.

In Holcombe, there was a shooting at a church where the plaintiff was shot multiple times, and afterwards he had to catheterize his bladder and manually evacuate his bowels. 70 Mr. Le was not a shooting victim—but his injuries were remarkably akin to the plaintiff in Holcombe.

The district court rendered separate awards at the trial level for past physical pain and past mental anguish. When it conducted its maximum recovery analysis, it combined the awards. The district court delineated exactly what each award was for—and split up the awards by backward- and forward-looking analyses—and was thus as precise as necessary.

Case: 24-10123 Document: 114-1 Page: 19 Date Filed: 05/16/2025

No. 24-10123

Previously in this Court, the issue was that the district court did not differentiate between past and future damages for suffering and loss of companionship. 71 This is not an issue here; Vogler does not bind the hands of the district courts in considering damages when they fall beneath the comparator case when combined. The district court did not clearly err when it awarded Mr. Le less than half of what the Holcombe court awarded.

B.

The district court awarded $4,400,000 for both future physical pain and future mental anguish. At trial, the Le family presented evidence on Mr. Le’s pain and mental anguish, and there is no evidence that his quadriplegia, amputations, and esophageal tears did not persist until his eventual passing.

The district court relied on National County Mutual Fire Insurance Co. v. Howard, a case where the plaintiff was a quadriplegic. 72 The district court noted that it exceeded the 133%-plus-inflation calculation but concluded that the deviation was derivative of his additional injuries including his fistula, amputated legs, depression and suicidality, and other physical and mental complications. The Government challenges this comparator for being “aggregative” and thus in violation of Vogler’s (narrow, time-oriented) ruling. 73 We reject this argument and find that the district court did not err in its damages award for future physical pain and mental anguish.

C.

The district court noted that Mr. Le’s quadriplegia rendered him unable to perform basic chores, participate in sports, hobbies, or recreational activities—and awarded him $2,000,000 for past physical impairment. The Case: 24-10123 Document: 114-1 Page: 20 Date Filed: 05/16/2025

No. 24-10123

Government cited to a case with a much smaller award of $100,000 for a plaintiff who became a quadriplegic who used a catheter and colostomy bag.74 In its denial of remittitur motion, the district court cites to Holcombe once more, and found its award to be under the $3,000,000 by a significant amount. The Plaintiffs note that the victim in Holcombe was still able to maintain hobbies and other activities—something Mr. Le was not able to do—and as such he deserved more than $2,000,000. Here, Holcombe is a proper upper bound for the district court to use. Given the significant downward departure the district court decided on, we find that the district court did not clearly err in using Holcombe.

D.

In awarding Mr. Le $5,200,000 for future physical impairment, the district court used a Texas Court of Appeals case—General Motors Corp. v. Burry—to compare. 75 The plaintiff in Burry had suffered a severe brain injury, but the district court reasoned that his impairment was comparable.

Like Mr. Le post-accident, the Burry plaintiff was also limited almost entirely from hobbies, activities, and personal maintenance. It is not clear that the district court plainly erred, as Mr. Le was more diminished in many ways than the relevant Holcombe plaintiff. 76 This made Mr. Le’s situation of future impairment akin to Burry in effect. We affirm the district court’s award.

E.

Finally, the district court awarded $1,800,000 for past and future disfigurement to Mr. Le. The district court took notice of Mr. Le’s “bodily deformities and contortions resulting from his injuries, including his amputated legs[.]”The Plaintiffs cite to Baptist Memorial Hospital System v.

Case: 24-10123 Document: 114-1 Page: 21 Date Filed: 05/16/2025

No. 24-10123

Smith, a case where the plaintiff had persistent flexion contractures of his limbs. 77 The Government cites to Holcombe as a comparator for disfigurement—despite the plaintiff in that action not having fistula or a double amputation like Mr. Le. This damages award is lower than in Smith, and the disfigurement is as severe. The district court did not commit clear error in determining that this was a comparable case.

V. Four hundred and fifty-three days after the district court rendered final judgment, and seventy-two days after this case had been fully submitted to this Court, Mr. Le died. 78 The Government waited until oral argument to assert that Mr. Le’s death nullifies the final judgment and renders any future damages awards inequitable. The exact opposite is true.

The Government offers no answer to that reality and cites no cases that suggest a plaintiff’s death during the pendency of an appeal has such effect on the final judgment. We reject the assertion that a plaintiff’s post- judgment death alone affects the damages awards, even when death cuts a life short compared to the calculated life expectancy. 79 To rule otherwise Case: 24-10123 Document: 114-1 Page: 22 Date Filed: 05/16/2025

No. 24-10123 would manufacture inequity, uncertainty, and arbitrariness. Such inequity has not gone unnoticed in other cases across the country. 80 The district court—using all available evidence—made an informed determination on life expectancy and entered final judgment in favor of Mr. Le. Adopting the number presented by the Government’s expert witness, the district court found Mr. Le’s life expectancy to have been 12.6 years. In doing so, the district court rejected the Plaintiffs’ expert witness’ testimony that Mr. Le’s life expectancy was approximately 20 years. No one suggests that if he had lived longer, the awards ought to be adjusted upwards.

As such, Mr. Le’s damages awards are preserved for his estate. 81 VI.

The Government did not clear the high bar of showing clear error below in the district court’s apportionment of liability or calculation of damages. We AFFIRM the able district court on all findings.