BOYAJIAN v. UNITED STATES OF AMERICA et al
Filing
36
MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE MARY A. MCLAUGHLIN ON 10/14/11. 10/14/11 ENTERED AND COPIES E-MAILED.(ti, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BRIAN BOYAJIAN
v.
:
:
:
:
:
UNITED STATES OF AMERICA
CIVIL ACTION
NO. 10-1064
MEMORANDUM
McLaughlin, J.
October 14, 2011
Brian Boyajian was injured when the bicycle he was
riding was hit by a car being driven by an FBI agent.
brought a claim under the Federal Tort Claims Act.
held a bench trial on July 26 and 27, 2011.
He has
The Court
The Court finds for
the plaintiff in the total amount of $72,700.16.
I.
Findings of Fact
1.
The plaintiff, Brian Boyajian, is twenty-five
years old and lives in New Orleans, Louisiana, with Erin
Fitzgerald.
In February, 2009, he was living in Philadelphia
with Fitzgerald.
2.
At some time before noon on February 9, 2009,
Boyajian rode his bike from his house in West Philadelphia to
downtown Philadelphia.
He rode to a friend’s house at 9th &
Catherine Streets but his friend was not home.
chilly day.
It was a sunny,
3.
The bicycle he was riding was unconventional,
consisting of two frames welded together, one on top of the
other, with the seat about 5 feet above the ground.
front braking system on the bicycle.
way of a lever on the handle bar.
pull the lever.
There is a
You make the brakes work by
The pads hit the rim when you
The bike brakes like a regular mountain bike.
The brakes were functioning on this day.
4.
At approximately noon, he was riding his bike west
on Catherine Street, in South Philadelphia.
jeans and a sweat shirt.
back.
Boyajian was wearing
He had a bicycle messenger bag on his
He did not have on a helmet.
5.
At the same time, Special Agent Earl D. Martin of
the Federal Bureau of Investigation was driving south on 12th
Street, approaching Catherine Street.
6.
As Boyajian approached the stop sign on 12th
Street at Catherine Street, he saw Special Agent Martin’s car
coming south on 12th Street and he could see that it was slowing
down.
He saw the driver with his left hand up protecting his
eyes from sun glare.
past the stop line.
he stopped.
Boyajian stopped at the stop sign, just
He was closer to the center of the lane when
At that time, Special Agent Martin’s car was about
two car lengths back on 12th Street.
7.
Boyajian proceeded through the intersection.
When
he was most of the way through the intersection, he saw that the
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car was not slowing down or stopping.
The car hit the rear of
the bicycle frame on the right side.
The car did not strike his
body, just the bicycle.
His body was thrown toward the southwest
corner of the intersection.
He came down on his hands and feet.
His body cleared the bicycle.
8.
Special Agent Martin has been with the FBI for
twelve years and is presently assigned to the Milwaukee field
office.
The agent was involved in a surveillance operation at
the time of the accident.
the stop sign.
He did not stop because he did not see
He raised his left hand over his eye to protect
himself from the glare of the sun.
and he did not see it.
car hit the bike.
The stop sign was on his left
He saw Boyajian a split second before his
have time to stop.
At that point, Special Agent Martin did not
He was going 20 to 25 miles per hour at the
time of the impact.
9.
Special Agent Martin assisted Boyajian.
else called an ambulance.
Someone
They helped Boyajian get to the corner
of the intersection and Boyajian locked the bike to a sign.
Boyajian asked Special Agent Martin whether he saw the stop sign
and Special Agent Martin told him that he did not because the sun
was in his eyes.
10.
Boyajian had ridden this bicycle and others like
it for many years.
He rode this particular bicycle very often --
every day for periods of time.
He used it periodically as his
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regular mode of transportation.
He had never experienced
difficulty riding the bike.
11.
light.
There are two ways to stop the bike at a traffic
Boyajian could either hop down from the bike after coming
to a stop or lean on a post or sign.
He would use his body
weight and steer the front of the bike to offset the balance,
similar to how one rides a unicycle.
He could balance the bike
in this way for more than a minute if he concentrated.
12.
At the time of the accident, Boyajian was working
at a restaurant in West Philadelphia.
He had been working there
for about two and a half months at the time of the accident.
Before the accident, he had no difficulty working in the
restaurant.
He never had any difficulty with his left wrist.
When he was about fourteen years old, Boyajian had a minor
fracture in his left wrist and had a cast on it for about four
weeks.
The wrist never bothered him after that.
He had a minor
fracture on his right wrist when he was eight or nine years old
and that fracture healed without a problem.
13.
bicycles a lot.
Before the accident, Boyajian worked on and rode
He volunteered for a co-op called “Neighborhood
Bike Works” where people can work on their bikes for free with
the help of volunteers like himself.
Before the accident, he and
Fitzgerald shared cooking, cleaning, housework, laundry, etc.
4
Cooking is a passion for both of them.
Boyajian never attended
any cooking schools or took any courses on cooking.
14.
The bicycle was heavy gauge steel.
repairable after the accident.
It was not
The parties agree that the cost
of the bicycle is $500.00
15.
While Boyajian was on the ground after the
accident, his wrist hurt a lot and both feet were painful.
He
had some scrapes on his body and palms and a protrusion on his
left wrist.
The fact that the plaintiff fell from the five feet
high seat on the bike contributed to his injuries.
16.
The plaintiff fractured his left wrist as a result
of the accident.
The plaintiff is right handed.
also injured his large left toe.
The plaintiff
No doctor has prescribed any
treatment for the plaintiff’s left foot.
The plaintiff has had
some minor balance issues arising from the injury to his foot.
17.
At the present time, there is some prominence or
protrusion of the ulnar styloid area on the plaintiff’s left
wrist.
Contributing to this prominence were both the childhood
injury he suffered as well as the accident of February 9, 2009.
18.
Following the accident, the plaintiff took
prescription pain medication for several weeks.
Since that time,
he has used over-the-counter medication such as ibuprofen on an
as needed basis.
He wore a brace on his right hand for about a
5
week after the accident and a cast on his left hand for five
weeks.
19.
He did not work for the first nine weeks after the
accident and that includes volunteer work.
20.
After the accident, he went to Jefferson Hospital
where they put his left wrist in a cast and put his arm in a
sling.
He could not do much for the next several weeks.
He
could not walk because his feet hurt and he could not use his
wrists, especially the left one.
21.
He went to the Philadelphia Hand Center a few days
after his emergency room visit.
him another cast.
They took more x-rays and gave
That was the first time he saw Dr. Taras.
Boyajian was given an appointment for a week later.
His wrist
was feeling worse so he went back to the Hand Center early before
his next appointment.
options.
Dr. Taras spoke with him about surgical
Boyajian asked Dr. Taras if he could think about the
surgical options for a few more days.
22.
Boyajian testified that he made the decision not
to have surgery because he did not have any health insurance.
23.
$7277.95.
There is no dispute that the medical bills are
The agreed wage loss is $3000.00.
24.
Boyajian decided to contact an attorney and find a
way to talk to a medical professional because he did not have
medical insurance and could not afford to go to a doctor.
6
His
lawyer put him in contact with Dr. Jaeger, and fronted the money
to Dr. Jaeger.
2009.
His first visit with Dr. Jaeger was in May of
Dr. Jaeger performed some basic tests for grip strength
and sent him to get x-rays and an MRI.
He did not give the
plaintiff any therapy.
25.
Five radiological reports were introduced into
evidence:
Government’s Exhibit 13 is a report of an x-ray of the
left wrist taken on February 9, 2009.
The findings of the
radiologist is that there was a “comminuted intra-articular
fracture of the distal radius.”
Government’s Exhibit 14 is a report of an MRI of the wrist
taken on May 5, 2009.
The findings of the radiologist were a
“healed, nondisplaced fracture,” “no step-off deformity,” and
“carpal arc alignment is maintained.”
Government’s Exhibit 15 is an x-ray from May 5, 2009.
It
also shows “healing left intra-articular comminuted distal radial
fracture,” and “preserved and aligned carpal arcs.”
Government’s Exhibit 16 is a May 5, 2009, x-ray of the foot.
It showed “no fracture or soft tissue swelling,” and “no
significant bony abnormality of bilateral feet.”
Government’s Exhibit 17 is an x-ray of the left wrist
performed on May 2, 2011.
It states: “previously identified
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distal left radius fracture has healed;” “no significant
degenerative arthropathy.”
26.
A major dispute between the parties is whether the
plaintiff has established future medical expenses and continuing
injuries.
The main question is whether the plaintiff needs an
operation on his left wrist.
And if so, what kind of operation.
In his expert report, Dr. Scott Jaeger, the plaintiff’s expert,
opined that the plaintiff should undergo an open reduction and
reconstruction of the distal radioulnar joint.
operation was $17, 500.
The cost of this
See Government Exhibit 4.
On May 2,
2011, Dr. Jaeger issued a report that stated that “if [plaintiff’s
condition] progresses to a greater extent, he may very well be
required to consider a fusion arthrodesis of the wrist to prevent
a further collapse of the articular structures.”
Exhibit 9.
Government
No new supporting clinical data was presented for
this conclusion.
During his trial testimony, Dr. Jaeger opined
that it was too late for open reduction and a reconstruction
operation. and that the plaintiff would need at some point in the
future fusion surgery to fuse the wrist.
Dr. Jaeger testified
that the cost was “probably about double the repair.”
27.
The Government’s expert, Dr. Richard J. Mandel,
testified by way of videotape that when he looked at the x-rays
that were taken in the emergency room shortly after the accident,
he saw evidence of an old injury to the ulnar styloid, the small
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forearm bone that was consistent with the childhood injury that
the plaintiff reported.
There was also evidence of a new
fracture of the distal radius, which is the large forearm bone.
Dr. Mandel testified that the new fracture would have contributed
to a small extent to the prominence of the ulnar styloid, but the
main prominence was related to the old childhood injury.
28.
Dr. Mandel opined that he does not anticipate that
the plaintiff will develop arthritis in the wrist.
occurred thus far and he does not expect it.
plaintiff will improve.
It has not
He thinks that the
The injury was in February 2009.
Mandel saw him a year and a half later.
no arthritis had developed.
Dr.
New x-rays showed that
If posttraumatic arthritis is going
to develop in the wrist, it develops within this time frame.
He
testified that the plaintiff was not a candidate for surgery.
29.
The Court did not find Dr. Jaeger persuasive on
the question of whether the plaintiff needs an operation or will
need an operation in the future.
with the radiological reports.
opinion with any clinical data.
His testimony was inconsistent
Dr. Jaeger did not support his
Dr. Mandel’s testimony about the
need for an operation was consistent with the radiological
reports and more convincing.
30.
Several months before the accident, Boyajian and
Fitzgerald had planned a trip to New Orleans.
They had planned
to leave Philadelphia in August, and followed through on that
9
plan.
They rode to New Orleans on a standard bicycle.
Boyajian
modified the frame so that he was sitting more upright so that he
did not have any weight on his wrists.
He shifted everything
toward the back of the bicycle and the lower part of his body.
They had a tent and a sleeping bag with a handful of tools and a
bit of clothing with them for the trip.
The bags were attached
to the bicycle like saddle bags on a horse.
The tent was on the
top of the rack that the bags were attached to.
It took them
over a month to go to New Orleans.
31.
It was a leisurely trip.
hills but avoided certain spots.
They encountered some
For example, they did not ride
up the Blue Ridge Parkway.
32.
After a week or two in New Orleans, they decided
to move there permanently.
Boyajian got a job in a restaurant
within a week of moving to New Orleans.
The first restaurant at
which he worked was a tourist restaurant in the French Quarter.
He then worked at a steak house owned by the Brennan family.
After that, he got a job at Satsuma which he held for about a
year.
He did saute and grill work, made sandwiches and prepared
breakfast and lunch.
He worked in the mornings from 7 or 8 a.m.
until 3 or 4 p.m. in the afternoon.
He left that job because his
wrist injury was becoming more painful and it was stressful
working with the pain in his wrist.
10
33.
wrists a lot.
In his work as a chef, he used his hands and
His left wrist was sore some of the time when he
was working and after work.
34.
Boyajian did not have the same range of motion
with his wrist so he could not do the things he used to as far as
flipping food in pans, etc.
He did not have any specific plans
about cooking in the future at this time.
probably would open his own restaurant.
He thought that he
He does not have those
plans any longer.
35.
Currently, Boyajian works in New Orleans in a
bicycle shop diagnosing problems with bikes and doing some
mechanical work and sales.
He has been working at the bicycle
shop since September 2010.
36.
rides.
He has done alterations to every bike that he
He bikes at least two miles a day, maybe more.
The
longest ride he has taken within the last month is fifteen miles
that takes between one and two hours.
37.
II.
The plaintiff has seen no doctors in New Orleans.
Conclusions of Law
The plaintiff has brought his lawsuit under the Federal
Tort Claims Act, 82 U.S.C. § 2671 et seq.
The Federal Tort
Claims Act provides that, “the United States shall be liable
. . . in the same manner and to the same extent as a private
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individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.”
§ 2674.
28 U.S. C.
The Court has jurisdiction pursuant to 28 U.S.C.
§ 1346(b)(1).
The liability of the United States and the amount
of damages and the manner in which they can be collected is
governed by the law of Pennsylvania, where the accident occurred.
The plaintiff must establish a causal connection
between the defendant’s allegedly negligent conduct and the
plaintiff’s injury.
Trude v. Martin, 660 A.2d 626, 632 (Pa.
Super. 1995), citing Restatement (Second) of Torts, § 431(a).
The defendant’s conduct must be shown to have been the proximate
cause of the plaintiff’s injury.
The plaintiff must show that
the defendant’s negligent act or omission was a substantial
factor in bringing about the plaintiff’s injury.
Id.
Under the
Federal Tort Claims Act, the plaintiff is not entitled to a
trial by jury; the case is tried by the court without a jury.
28 U.S.C. § 2402.
The United States does not dispute that Special Agent
Martin was negligent in not stopping at the stop sign.
Indeed,
Pennsylvania Motor Vehicle Code 75 § 3323(b) provides that:
“Every driver of a vehicle approaching a stop sign shall stop at
a clearly marked stop line . . ..”
There is no dispute that
there is clearly marked stop line at the corner of 12th &
12
Catherine Streets at which Special Agent Martin should have
stopped.
Pennsylvania has adopted the comparative negligence
statute which provides at 42 Pa. Cons. Stat. Ann. § 7102:
In all actions brought to recover damages for
negligence resulting in death or injury to
persons or property, the fact that the
plaintiff may have been guilty of
contributory negligence shall not bar a
recovery by the plaintiff or his legal
representative where such negligence was not
greater than the causal negligence of the
defendant or defendants against whom recovery
is sought, but any damages sustained by the
plaintiff shall be diminished in proportion
to the amount of negligence attributed to the
plaintiff.
The Court finds that the plaintiff was contributorily
negligent and, therefore, the Court will decrease the damages
suffered by the plaintiff by ten percent, the amount of
negligence the Court attributes to the plaintiff.
The defendant has argued that the plaintiff was
contributorily negligent in a variety of ways: by failing to stop
at the stop sign; by riding such an unconventional bicycle that
carried with it such an inherent risk of injury; and, by not
stopping at the stop sign long enough to make sure that Special
Agent Martin was going to stop.
The Court has found as a fact
that the plaintiff did stop at the stop sign so that is not a
basis for contributory negligence.
The Court also does not
believe that it has a basis to find that riding this bicycle is
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inherently negligent.
Although unconventional, the plaintiff had
ridden this bicycle and bicycles similar to it for a long time
prior to the accident without incident.
He was an experienced
bike rider.
The Court does find, however, that the unconventional
nature of the bicycle does underlie its conclusion that the
plaintiff should have stopped at the stop sign longer to make
sure that Special Agent Martin was going to stop.
Boyajian saw
Special Agent Martin’s car coming and he saw that the sun glare
was in Special Agent Martin’s eyes.
Boyajian also knew that he
was on a bicycle that had such a high seat that he could be more
seriously injured if he were ever hit by a car.
Under all of
these circumstances, the Court finds that Boyajian should have
stopped at the stop sign until he saw Special Agent Martin stop.
In view of the clear negligence of Special Agent Martin
in not stopping at the stop sign, the Court finds that the
plaintiff’s contribution to his own injuries was ten percent.
The plaintiff is entitled to be compensated for the
amount of earnings that he lost up to the time of the trial as a
result of his injuries.
This amount is the difference between
what he could have earned but for the harm suffered in the
accident.
Since the plaintiff was out of work from February 10,
2009, through April 20, 2009, and was earning between $250 and
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$300 a week, he is entitled to recover a total loss of income of
$3,000.
The plaintiff is entitled to be compensated for the
harm done to his bicycle.
Since his property was a total loss
and damages are to be measured by either its market value or its
special value to the plaintiff, whichever is greater, the
plaintiff is entitled to be compensated in the amount of $500.
The plaintiff is entitled to be compensated in the
amount of all medical expenses incurred for the diagnosis,
treatment and cure of his injuries in the past.
These expenses
are $7,277.95.
The Court concludes that the plaintiff has not shown by
a preponderance of the evidence that the plaintiff will need
fusion surgery in the future or that the cost will be $35,000.
First, Dr. Jaeger first mentioned the surgery in his report
issued shortly before trial on May 2, 2011.
time was very tentative.
His opinion at that
Second, Dr. Jaeger did not support the
new opinion with any clinical data.
plaintiff for many months before May.
He had not seen the
Third, and very
importantly, no radiological report supports Dr. Jaeger’s
opinion.
The May 2, 2011, radiological report finds that there
is “[n]o significant degenerative arthropathy.”
Fourth, the
defendant’s expert, Dr. Mandel, persuasively testified that he
does not anticipate that the plaintiff will develop arthritis in
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the wrist.
According to Dr. Mandel, if posttraumatic arthritis
is going to develop in the wrist, it would have developed
already.
He opined that the plaintiff is not a candidate for
surgery.
The plaintiff has made a claim for a damage award for
past and future noneconomic loss.
There are four items that make
up a damage award for noneconomic loss, both past and future: (1)
pain and suffering; (2) embarrassment and humiliation; (3) loss
of ability to enjoy the pleasures of life; and (4) disfigurement.
The Court is convinced by the plaintiff’s testimony
that he is continuing to feel pain and stiffness in his wrist and
that condition contributed to his leaving his last job as a chef.
He also has to modify bicycles to accommodate his weakened wrist.
The pleasures of life have been impacted by his injury.
There
has been some disfigurement in that at least some of the
prominence of the ulnar styloid area of the plaintiff’s left
wrist is from the accident.
The Court, therefore, concludes that
the plaintiff is entitled to a damage award for past and future
noneconomic loss in the amount of $70,000.
damages is $80,777.95.
The total amount of
Ten percent of that amount is $8,077.79.
The total damage award is, therefore, $72,700.16.
An appropriate order follows separately.
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