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Tucker v. United States

United States District Court, D. Minnesota

September 12, 2019

SARA TUCKER, Plaintiff,

          Robert N. Edwards, for plaintiff.

          Ana H. Voss, UNITED STATES ATTORNEY'S OFFICE, for defendant.


          Patrick J. Schiltz United States District Judge

         Plaintiff Sara Tucker brought this action against defendant United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b), for injuries that she suffered in a collision with a vehicle driven by a mail carrier. Both parties agree that the United States is liable to Tucker, and both parties agree that the United States must pay past medical expenses in the amount of $9, 718.43. The parties dispute how much the United States must pay Tucker for (1) future medical expenses; (2) past pain and suffering; and (3) future pain and suffering.

         Tucker's claim was tried before the Court. Having heard the evidence and arguments of counsel, the Court makes the following findings of fact and conclusions of law under Fed.R.Civ.P. 52(a).


         A. Background

         1. Tucker is 34 years old and works as a nurse at the Maple Grove Hospital in Maple Grove, Minnesota. TT 15, 58.[1] Before the accident, Tucker was healthy and led an active life. TT 15-16. Tucker and her husband have one child and, at the time of trial, were expecting a second child. TT 18, 34.

         2. Tucker timely filed a complaint on August 10, 2017. ECF No. 1.

         B. The Accident

         3. On May 27, 2014, an employee of the United States Postal Service negligently crashed his vehicle into Tucker's car as she was driving home. TT 13-15; JE 660-63.

         4. Immediately after the accident, Tucker felt "sharp pain" in her head and neck. TT 13. An ambulance arrived and transported Tucker to the emergency room at Mercy Hospital in Coon Rapids, Minnesota. TT 13-14; JE 574. A doctor ordered CT scans of Tucker's head and cervical spine; the scans were normal. TT 187, 190-91; JE 574, 577-78. After the doctor diagnosed Tucker with a headache, neck pain, and dizziness, JE 574, she was given pain medication and instructed to follow up with a primary-care physician, TT 19.

         5. The Court finds that Tucker was a credible witness. She appeared to testify truthfully about the accident and the pain that she has experienced since May 2014. There is no reason to believe that Tucker has been malingering or exaggerating. Several witnesses described how the accident has affected Tucker, and their testimony corroborated Tucker's. See TT 86 (co-worker testifying that the accident has changed how Tucker works as a nurse); TT 76-78 (husband testifying that the accident has "affect[ed] her whole life" by causing pain and forcing her to give up certain activities).

         6. Since the accident, Tucker has experienced chronic mild-to-moderate pain. The pain has not had a debilitating impact on Tucker's life. Tucker can still perform her daily activities, TT 43-44; she can still work as a nurse, TT 58; she has become pregnant, given birth to a child, helped raise the child, and become pregnant again, TT 18, 40-42; and she regularly drives to Iowa to visit her parents, TT 37-38, 61.

         That said, Tucker does suffer from chronic pain-and all the frustration and stress that typically accompany chronic pain. Tucker's pain waxes and wanes; Tucker occasionally experiences stiffness, burning, tingling, headaches, and neck discomfort. TT at 20-21. Tucker's injury can make it difficult for her to complete basic activities such as mowing the lawn, cooking food, and shoveling the driveway, TT 30-32, 61-62, and she has given up some of her hobbies, such as gardening, TT 35, 76, 79. At times, the pain has made it harder for Tucker to care for her family. TT 40-41.

         C. Treatment History

         7. From June 2014 to November 2015, Tucker tried different types of non-invasive pain treatment. On three separate occasions, Tucker participated in physical-therapy courses involving outpatient treatment and at-home exercises. All told, Tucker attended over 50 physical-therapy sessions from June 2014 to May 2017. See TT 67-68 (testifying that her first and second rounds of physical therapy involved between 40 and 50 visits combined); TT 52-53 (testifying that her third round of physical therapy involved 11 sessions); see also JE 191-92. Tucker also tried a handful of other treatments, including massage therapy, chiropractic care, TENS units, [2] and a corticosteroid injection. TT 21-22, 25-26, 53; see JE 533-64.

         8. None of these treatments brought lasting pain relief. TT 23-26 (physical therapy, TENS unit, trigger point injection). Although physical therapy brought temporary relief, Tucker's symptoms-headaches, "aching" and "stabbing" neck pain, and tingling in her left little finger-reappeared after treatment ended. See, e.g., TT 24-25 (testifying that her pain would gradually return after attending physical therapy).

         D. New Diagnosis and Radio frequency Ablations

         9. Frustrated with these results, Tucker explored other treatment options. In November 2015, she visited a chronic-pain specialist at the Institute for Low Back and Neck Care. TT 27; JE 1051-52. The doctor recommended that Tucker go through a diagnostic procedure known as a "medial branch block"[3] to determine whether a treatment known as "radiofrequency ablation" (or "RFA") might reduce or eliminate her pain. TT 27-28; JE 1052.

         10. RFA is a widely accepted, minimally invasive surgical procedure designed to treat facet-joint pain. RFA provides pain relief by burning the nerves within the damaged facet joints. See TT 99, 116. A doctor uses a special needle with a heated tip to coagulate the proteins within the nerve so that the nerve can no longer transmit pain signals. TT 99, 116. Over time, the nerve regenerates and can send pain signals once again. TT 116, 129-30. For this reason, medical professionals view RFA as a "management strategy" rather than a "permanent cure." TT 116.

         11. The Court credits the testimony of Tucker's expert, Dr. David Schultz, that RFA is a "common" and "fairly routine" procedure that is performed at "all interventional pain clinics," as well as at such world-renowned medical facilities as the Mayo Clinic. TT 98. The RFA procedure is backed by medical literature and extensive practice. See TT 125-30. Dr. Schultz alone has performed thousands of RFAs. TT 98. Dr. Schultz testified ...

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