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Bravo-Garcia v. United States

United States District Court, D. New Jersey, Camden Vicinage

January 15, 2015



JOEL SCHNEIDER, Magistrate Judge.

This matter is before the Court on the "First Motion to Amend/Correct Complaint" filed by plaintiff Francisco Bravo-Garcia. [Doc. No. 24]. The Court received the opposition of defendant United States of America ("Def.'s Br.") [Doc. No. 27] and plaintiff's reply ("Pl.'s Reply Br.") [Doc. No. 17]. The Court held oral argument. The crux of plaintiff's proposed amendment is his request to amend his ad damnum clause to reflect his demand for damages for "not more than $5, 000, 000, together with interest and costs." This amount exceeds the amount plaintiff claimed in his amended administrative claim ($1 million) filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2675. The Court must decide whether plaintiff is permitted to seek damages at trial in excess of $1 million. For the reasons to be discussed, plaintiff's motion is GRANTED.


1. Procedural History

Plaintiff's claim arises out of a pedestrian/motor vehicle accident which occurred on September 15, 2010. Second Am. Compl. ("Compl.") [Doc. No. 1]. While working on a roadway as a driller's helper, plaintiff was struck in the head by the side mirror of a passing U.S. Mail truck which knocked him to the ground and rendered him momentarily unconscious. Compl. ¶¶ 11, 15. Plaintiff claims that as a result of the negligence and carelessness of the vehicle's driver he has suffered painful and permanent injuries. Compl. ¶ 24.

Plaintiff filed his first Notice of Claim with the United States Postal Service on January 12, 2012, which included a demand for damages totaling $250, 000. Id. at 4-5. Initially, plaintiff believed his injuries were limited to herniations in his cervical spine and a torn rotator cuff. Pl.'s Br. at 4. Before defendant responded to the first Notice of Claim, plaintiff filed an amended claim on August 14, 2012 with a monetary demand of $1 million. Def.'s Ex. D-10.[1] Defendant denied the amended claim on February 19, 2013. Id . However, defendant concedes plaintiff may seek damages up to $1 million at trial. Plaintiff commenced the present action on April 6, 2013, claiming that defendant was negligent under the Federal Tort Claims Act. See generally Compl. In the present motion, plaintiff seeks to amend his complaint to increase his damage demand "on the basis of new evidence and intervening facts related to the nature and extent of his injuries." Pl.'s Br. at 8.[2] Specifically, plaintiff seeks to add the following language: "WHEREFORE, Plaintiff, FRANCISCO BRAVO-GARCIA, Demands judgment against the Defendant, UNITED STATES OF AMERICA, on this Count for damages, not more than $5, 000, 000.00, together with interest, costs of suit and any other and further relief that the Court deems appropriate." Compl. at 5. To determine whether leave to amend should be granted, an in-depth consideration of plaintiff's post-accident medical history is required.[3]

2. Plaintiff's Medical History

The Court's analysis begins on January 21, 2011 with a neurological exam by Evren Burakgazi, M.D., who observed that as a result of the accident plaintiff had possible cervical radiculopathy at C6-C7, memory disturbance and chronic headaches. Def.'s Ex. D-12.[4] On February 23, 2011, plaintiff received his first electromyogram (EMG) which suggested plaintiff was negative for acute or chronic radiculopathy, plexopathy or local mononeuropathy. Def.'s Ex. D-13. This diagnosis would later be largely reversed by subsequent EMG studies. On June 30, 2011, Joseph Kozielski, M.D., an orthopedic surgeon, performed surgery on plaintiff's left shoulder to repair his torn rotator cuff. Pl.'s Ex. B.

In the spring months of 2012, plaintiff's doctors were cautiously optimistic regarding plaintiff's long-term prognosis. This is evidenced by the fact that on April 10, 2012, plaintiff was released to return to work on light duty by Joan F. O'Shea M.D., a neurosurgeon and orthopedic spine specialist. Pl.'s Ex. D.[5] Nonetheless, Dr. O'Shea also recommended an anterior cervical discectomy and fusion at C3-4 and C4-5. Id . She noted that plaintiff experienced neck pain, arm pain and memory difficulty. Id . On May 10, 2012, Bruce D. Lipsius, M.D., a neurologist, observed that plaintiff complained of memory loss, headaches, neck pain, and left shoulder pain. Def.'s Ex. D-14. Dr. Lipsius opined that plaintiff may have "a seemingly uncomplicated closed head injury." Id . Dr. Lipsius saw plaintiff again on June 28, 2012 and noted that plaintiff had "exquisite shoulder pain" and "was likely depressed." Def.'s Ex. D-16.

By July 2012, the forecast began to change. On July 11, 2012 plaintiff met with Robert P. Falconiero, D.O., an orthopedic surgeon. Def.'s Ex. D-17. Dr. Falconiero noted that plaintiff associated his pain to be within his neck and not within his shoulder. Id . He diagnosed plaintiff with neck pain, incomplete rehabilitation of the left shoulder and depression, among other less relevant diagnoses. Id . Dr. Falconiero opined that plaintiff could not return to his former type of work. Id . He recommended that plaintiff focus on the recovery of his cervical spine injury and then move on to shoulder rehabilitation. Id . On July 26, 2012 plaintiff was again seen by Dr. Lipsius who evaluated plaintiff's recent MRI exam. Def.'s Ex. D-18. Dr. Lipsius opined that plaintiff's brain scan was normal but that plaintiff had some sinus issues. Id . Dr. Lipsius recommended cervical spine surgery to remedy plaintiff's disc herniations and a neuropsychological exam if plaintiff's depression did not improve. Id.

On August 14, 2012 plaintiff filed his Amended Notice of Claim, which increased his demand from $250, 000 to $1 million. Pl.'s Ex. F. Ten days after plaintiff filed his Amended Notice he underwent the recommended cervical discectomy and arthroplasty performed by Luis A. Cervantes, M.D., a neurosurgeon. Pl.'s Ex. E.

In October, 2012, plaintiff's diagnoses remained consistent with prior determinations. On October 10, 2012, John R. McGowan, Ph.D., performed a neuropsychological evaluation of plaintiff. Pl.'s Ex. I. Dr. McGowan noted plaintiff had some depressive symptomology and recommended psychotherapy. Id . He also noted plaintiff had memory problems, left arm pain and numbness in his left hand and fingers. Id . Dr. McGowan opined that plaintiff's scores were indicative of symptom magnification and concluded there was "little evidence to suggest that he suffers from continuing cognitive complaints related specifically to traumatic brain injury." Id.

By November 2012 the tide began to materially change as plaintiff's prognoses worsened. On November 7, 2012 plaintiff underwent a second EMG performed by Kavita Gupta, D.O., who reported that plaintiff had multilevel cervical radiculitis and radiculopathy at C7, C8 and T1, a diagnosis contradictory to the February 13, 2011 EMG which ruled out these conditions. Pl.'s Ex. G. On January 16, 2013 plaintiff was seen by Dr. Kozielski who opined that plaintiff may be suffering from brachial plexopathy[6] and recommended another EMG. Def.'s Ex. D-20. Plaintiff saw Dr. Cervantes on January 24, 2013. Def.'s Ex. D-21. Dr. Cervantes disagreed with Dr. Kozielski's suggestion that plaintiff had brachial plexopathy and stated, "I have no clue where Mr. Bravo's problems or complain[t]s are coming from." Id . On January 28, 2013 plaintiff underwent his third EMG study. Def.'s Ex. D-23.

Plaintiff saw Dr. Cervantes again on February 6, 2013. Def.'s Ex. D-24. Dr. Cervantes opined that plaintiff's cervical spine injury was "doing well" and noted that plaintiff described his pain as now mainly related to his shoulder. Id . According to plaintiff's case manager, Dr. Cervantes felt that the third EMG did not show plaintiff had a brachial plexus injury. Def.'s Ex. D-25. On June 14, 2013 plaintiff was seen by Louis Spagnoletti, M.D., a specialist in physical medicine and rehabilitation. Def.'s Ex. D-27. After reviewing plaintiff's third EMG, Dr. Spagnoletti concluded that plaintiff suffers from cervical radiculopathy, myofascial pain syndrome, a left rotator cuff injury, cervical degenerative disc disease and a closed head injury with post-traumatic cephalgia. Id . On March 31, 2014 plaintiff had a follow-up visit with Dr. Kozielski. Pl.'s Ex. L. Dr. Kozielski interpreted plaintiff's January 28, 2013 EMG to show "chronic changes both in the biceps, infraspinatus, and deltoid implicating C5 and C6 nerve roots and/or upper trunk ...

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