                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS           July 16, 2007
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                        ))))))))))))))))))))))))))                 Clerk

                             No. 06-61103
                           Summary Calendar

                        ))))))))))))))))))))))))))

TODD SPAULDING

                  Plaintiff–Appellant

     v.

UNITED STATES OF AMERICA

                  Defendant–Appellee


           Appeal from the United States District Court
             for the Southern District of Mississippi
                         No. 1:05-CV-0221



Before SMITH, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

     Before us is an appeal by Plaintiff Todd Spaulding

(“Spaulding”) of a district court’s judgment following a two-day

bench trial that resulted in a verdict and damages for Spaulding

for personal injuries he received in a motor vehicle accident.

On appeal, Spaulding contends that the district court erred by

failing to take into account evidence regarding the severity of



     *
       Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
his injury, failing to award damages for future surgery, and

making too small an award of compensatory damages.    In accordance

with the deference afforded the district court in this situation,

we AFFIRM.

                        I. BACKGROUND FACTS

     On April 8, 2003, Spaulding, a reservist in the U.S. Air

Force, was driving east on Highway 26 in Stone County,

Mississippi.   He was on his way to Mobile, Alabama, to be married

and was accompanied by his fiancee Sheila, who is now his wife

(“Sheila Spaulding”), and her two children.    When Spaulding

slowed down to allow some dogs to pass in front of his vehicle,

he was hit from behind by John Nichols (“Nichols”), an employee

of the United States Postal Service.    Nichols had attempted to

stop, but the road was too slick due to rain.    Spaulding’s

vehicle sustained damage to the bumper, frame, and right rear

taillight.   After speaking with police at the scene, Spaulding

proceeded to Alabama and was married.    At trial, Spaulding

testified that he felt tense all over immediately after the

accident, but did not seek medical assistance at that time.

     Approximately one week after the incident, Spaulding went to

the emergency room of the Stone County Hospital with neck and low

back pain.   The x-rays taken of his cervical and lumbar spine

appeared to be normal, and Dr. Deepinder Burn (“Dr. Burn”)

discharged Spaulding after giving him a prescription for pain



                                 2
medication.   On April 19, 2003, Spaulding completed a pre-

deployment health assessment in preparation for his upcoming

deployment to Guam.   During the assessment, he described his

health as “good.”   Spaulding then spent two months in Guam as an

electronic avionic mechanic, returning in June 2003.      At his

post-deployment health assessment, Spaulding described his

overall health as “fair.”

     Several months later, on October 28, 2003, Spaulding went to

see Dr. Burn at the Stone County Family Medical Clinic with

complaints of back pain.    Dr. Burn ordered an MRI of Spaulding’s

lumbar spine and referred Spaulding to Dr. Charles Winters (“Dr.

Winters”), an orthopedic surgeon.      Spaulding did not go to see

Dr. Winters until October 8, 2004, almost one year later, at

which time Dr. Winters took a medical history and reviewed the

MRI scan from the previous year.       Dr. Winters diagnosed Spaulding

as having degenerative and protruding discs in his back.      He

advised Spaulding to limit the activities which put stress on his

back, such as bending, lifting, and jogging, and prescribed him

an anti-inflammatory.

     Spaulding next saw Dr. Winters on May 25, 2005, again

complaining of back pain.   Dr. Winters changed Spaulding’s

prescription and continued to advise Spaulding to refrain from

bending, lifting, and jogging.   Dr. Winters stated Spaulding

could still ride a bike and perform certain weight-lifting

exercises, as long as they did not put a strain on his back.

                                   3
     In the time between the accident in April 2003 and the trial

of this matter, Spaulding was called to active duty as a

reservist on four occasions (including the time he spent in Guam,

discussed above).    Spaulding also changed jobs twice during that

time period.   He initially worked as a mechanic for Kennedy

Marine.   In November 2004, Spaulding became employed by Keesler

Air Force Base.   He underwent a pre-employment physical and was

cleared to work as a special purpose vehicle mechanic.   In June

2005, Spaulding obtained a position with Vinell Corporation, a

position that he continued to hold at the time of trial and for

which he was again cleared to work as a special purpose vehicle

mechanic.   For his job with Vinell, Spaulding is stationed in

Qatar and routinely works sixty hours per week.   Apart from his

doctors’ visits, Spaulding has missed only one half-day’s work

due to back pain.

                       II. PROCEDURAL HISTORY

     Spaulding filed suit against Defendant-Appellee United

States of America (“United States”) on May 12, 2005, pursuant to

the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671, et

seq. (2000).   Spaulding sought damages for the injuries he

received as a result of the accident in April 2003.   Following a

period of discovery, the district court held a bench trial on

October 3-4, 2006.   At trial, the district court heard testimony

from Spaulding and Sheila Spaulding.   Dr. Winters’s deposition



                                  4
was also entered into evidence.   The district court issued

written findings of fact and conclusions of law on October 5,

2006, in which it found that Nichols had been negligent and that

the United States was liable.   The district court assessed

damages of $2958 in medical expenses and $20,000 for “past,

present, and future mental and physical pain and suffering, and

the loss of enjoyment of life.”

     Believing the evidence entitled him to more damages than

were awarded, Spaulding filed a motion to amend or correct the

judgment, which the district court denied without comment.

Spaulding now appeals to this court.    As a final judgment has

been entered, we have jurisdiction pursuant to 28 U.S.C. § 1291.

                     III. STANDARD OF REVIEW

     Our standard of review for findings and conclusions

following a bench trial is well established--findings of fact are

reviewed for clear error, while legal issues are reviewed de

novo.   Water Craft Mgmt., L.L.C. v. Mercury Marine, 457 F.3d 484,

488 (5th Cir. 2006); Energy Mgmt. Corp. v. City of Shreveport,

397 F.3d 297, 302 (5th Cir. 2005).    “A factual finding is not

clearly erroneous as long as it is plausible in the light of the

record read as a whole.”   Walker v. City of Mesquite, 402 F.3d

532, 535 (5th Cir. 2005) (internal quotation marks and citation

omitted); see also Moorhead v. Mitsubishi Aircraft Int'l, Inc.,

828 F.2d 278, 283 (5th Cir. 1987) (describing clear error).



                                  5
Reversal for clear error is warranted only if the court has a

definite and firm conviction that a mistake has been committed.

Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir.

2000).

     Similarly, a motion to amend the judgment is generally

reviewed for an abuse of discretion, while any legal conclusions

are considered de novo.    Elementis Chromium L.P. v. Coastal

States Petroleum Co., 450 F.3d 607, 610 (5th Cir. 2006).

                           IV. DISCUSSION

     Spaulding brought suit pursuant to the FTCA, which waives

the United States’ sovereign immunity for personal injuries

“caused by the negligent or wrongful act or omission of any

employee” of the United States acting in the course and scope of

his duties.    28 U.S.C. § 1346(b); Metro. Life Ins. Co. v. Atkins,

225 F.3d 510, 512 (5th Cir. 2000).    Under the FTCA, the United

States is liable in damages to the same extent a private person

would be liable for the same negligent act or omission under the

law of the state in which the act or omission occurred.    28

U.S.C. § 1346(b); Skipper v. United States, 1 F.3d 349, 352 (5th

Cir. 1993).    Here, the United States does not dispute that

Nichols was acting in the course and scope of his duties as an

employee of the United States Postal Service when he rear-ended

Spaulding.    As the accident occurred in Mississippi, we will

apply Mississippi’s laws regarding negligence in this case.



                                  6
A.   Whether the district court erred in limiting damages to the
     exacerbation of a pre-existing condition

     Spaulding first contends that the district court erred when

it limited Spaulding’s compensatory damages to those for

exacerbation of a pre-existing condition.      Spaulding argues that

the district court used the wrong standard of proof to analyze

Dr. Winters’s opinion regarding the cause of Spaulding’s

injuries, and that the district court should have compensated him

for the damages he incurred as a result of his protruding discs.

The United States counters that Dr. Winters’s testimony

concerning the timing and cause of the protruding discs was less

than straightforward.

     As much of Spaulding’s argument hinges on Dr. Winters’s

testimony regarding the cause and extent of the problems with

Spaulding’s back, we consider how Mississippi courts treat such

expert testimony.    Under Mississippi law, expert testimony

regarding medical causation is not probative unless it is in

terms of probabilities, not possibilities.      Pittman v. Hodges,

462 So. 2d 330, 333-34 (Miss. 1984).      This is not to say that a

specific word must be used by an expert before the court may rely

on his opinion.     See Daughtery v. Conley, 906 So. 2d 108, 110

(Miss. Ct. App. 2004) (noting that courts should not undertake an

exercise of form over substance).      Further, an expert witness

need not testify with absolute certainty.      Pittman, 462 So. 2d

at 335.   Instead, the underlying concern of the court is whether


                                   7
or not the expert’s testimony is sufficiently reliable.

Daughtery, 906 So. 2d at 110.   In other words, the use of

“probability” and “possibility” is a semantic illustration that

reflects the requirement that an expert’s testimony be reliable.

Id.

      In this case, Dr. Winters’s testimony was presented in the

form of his deposition.   In support of his argument on appeal,

Spaulding relies heavily on Dr. Winters’s affirmative answer when

asked if he believed, based on reasonable medical probability,

that the motor vehicle accident was the cause of Spaulding’s

“condition.”   Dr. Winters, however, did not elaborate as to how

he reached that conclusion, and the rest of Dr. Winters’s

testimony creates some confusion as to his exact opinion

regarding the cause of Spaulding’s injuries.

      First, Dr. Winters admitted that at least part of

Spaulding’s back problems predated the accident.   Dr. Winters’s

diagnosis of Spaulding was that he had a “combination of

problems” with his back that included a degenerative problem

caused by wear and tear and protruding discs that appeared as if

Spaulding had injured them.   Dr. Winters also referred to

Spaulding as having a “combination of degenerative changes,”

meaning “arthritis-type changes and post-traumatic changes.”

According to Dr. Winters, the degenerative problems with

Spaulding’s back arose prior to the accident in April 2003.

Given that the degenerative problems with Spaulding’s back

                                 8
predated the accident, Dr. Winters’s conclusion that Spaulding’s

“condition” was caused by the accident is not entirely accurate.

     Second, Dr. Winters’s testimony was undermined by his

admission that he was unaware of several facts that might have

affected his opinion.    For example, Dr. Winters testified that

Spaulding’s failure to seek any medical treatment for his back

for long periods of time was inconsistent with Spaulding’s

complaints.   Dr. Winters further stated that it was inconsistent

that Spaulding did not miss any work due to his back problems and

had in fact been cleared to do physical labor.

     Finally, Dr. Winters’s testimony could reasonably be

interpreted to mean that Spaulding’s protruding discs were the

exacerbation of a pre-existing condition.     Dr. Winters testified

that “[m]y diagnosis was that [Spaulding] had degenerative

changes which were aggravated by his motor vehicle accident based

on the history that I was given.”     This testimony accords with

the district court’s ruling that Spaulding should be compensated

for the exacerbation of a pre-existing condition.     Dr. Winters

further stated that “my opinion is that [Spaulding] had a pre-

existing condition that was aggravated by the motor vehicle

accident and the protrusions of the disk likely occurred at the

time of the accident.”    Again, this supports the conclusion that

the protruding discs were an aggravation or exacerbation of

Spaulding’s pre-existing condition.     Consequently, the district

court’s award of damages for the exacerbation of a pre-existing

                                  9
condition is entirely reasonable and appropriate.

     In sum, the district court did not err in limiting

Spaulding’s damages to those for exacerbation of a pre-existing

condition, as Dr. Winters’s testimony was unclear on the extent

of the damages caused by the motor vehicle accident.    The

district court’s conclusion is plausible in light of all the

evidence, and, thus, does not amount to clear error.    See Walker,

402 F.3d at 535 (describing clear error).    Therefore, we will not

reverse the district court on this point.

B.   Whether the district court erred in failing to award the
     cost of future surgery

     Spaulding next contends that the district court erred by not

awarding him damages for the cost of future surgery for his back.

The United States argues that Dr. Winters never testified that

the amounts for the surgery were reasonable and that Dr. Winters

never linked Spaulding’s need for surgery to the motor vehicle

accident.

     Spaulding again relies on the testimony of Dr. Winters to

support his claim that he will eventually need surgery to correct

his back problems.   In his deposition, Dr. Winters testified that

Spaulding would likely need surgery in the future to alleviate

some of the problems in his back.    Dr. Winters described the

procedures as a discectomy, laminectomy, and lumbar fusion, for a

total cost of $14,000.   The district court did not award damages

for this amount and noted that Dr. Winters failed to testify that


                                10
such amounts were reasonable or that surgery was a reasonable

medical probability.

     Setting aside the issue of the reasonableness of the amount,

we note that Mississippi law requires evidence that the damages

sought were causally connected to the accident.   See Bryan Bros.

Packing Co. v. Grubbs, 168 So. 2d 289, 293 (Miss. 1964); see also

Owen v. Owen, 928 So. 2d 156, 168 (Miss. 2006) (regarding damages

for repairs and noting there must be evidence that repairs were

“necessary as a result of the wrongful act”) (emphasis added).

Dr. Winters never testified that Spaulding would need surgery as

a result of the motor vehicle accident.   Instead, each time Dr.

Winters mentioned surgery, it was in connection with Spaulding’s

degenerative and arthritic condition, which, as noted above,

predated the accident.1   If the surgery was required because of

the pre-existing degenerative condition, it is not compensable as

damages in the instant case because the requisite causal

connection to the accident would be lacking.   Therefore, given

the uncertainty of whether the accident caused the back problem

requiring surgery, the district court did not err in refusing to

award damages for future surgery.

C.   Whether the award of $20,000 for pain and suffering was fair

     1
        Dr. Winters testified that “[a]s [Spaulding’s] arthritis
got worse, he would develop more crowding of his nerves. He
would have to have what’s called a laminectomy . . . .” Dr.
Winters also stated that “[w]ithin a reasonable medical
probability his arthritis is going to get worse to the point
where he’s going to have to have something done.”

                                11
     and adequate

     Finally, Spaulding contends that the district court’s award

of $20,000 in compensatory damages for “[p]ast, present, and

future mental and physical pain and suffering, and the loss of

enjoyment of life” was clearly inadequate.    The United States

argues that the amount is fair and reasonable, given Spaulding’s

pre-existing condition, his infrequent doctor visits, and his

ability to work.    Under Mississippi law, an award of damages

cannot be determined by any fixed rule, but rests largely within

the discretion and judgment of the factfinder.    See Kinnard v.

Martin, 223 So. 2d 300, 302-03 (Miss. 1969).

     In its findings and conclusions in this case, the district

court noted that its award of $20,000 was fair and reasonable

when compared to similar cases involving back pain caused by

rear-end collisions.    See Burge v. Spiers, 856 So. 2d 577, 580

(Miss. Ct. App. 2003) (awarding medical expenses, but no pain and

suffering damages); Clark v. Deakle, 800 So. 2d 1227, 1231 (Miss.

Ct. App. 2001) (awarding medical expenses and approximately $511

in pain and suffering); Hubbard v. Canterbury, 805 So. 2d 545,

550-51 (Miss. Ct. App. 2000) (awarding medical expenses, but no

pain and suffering damages).    Spaulding argues these cases are

distinguishable on the facts and that his situation is similar to

other cases in which much larger awards were given.    See Williams

v. Chevron U.S.A., Inc., 875 F.2d 501, 506-07 (5th Cir. 1989)

(awarding $200,000); Holmes v. J. Ray McDermott & Co., 734 F.2d

                                 12
1110, 1119 (5th Cir. 1984), overruled on other grounds, Guevara

v. Maritime Overseas Corp., 59 F.3d 1546 (5th Cir. 1995)

(awarding $180,000); Whitten v. Land, 188 So. 2d 246, 252 (Miss.

1966) (awarding $70,000); McNeil v. Bourn, 721 So. 2d 663, 670-71

(Miss. Ct. App. 1998) (awarding $121,000, which included over

$22,000 in medical expenses).

     Not to be outdone, we, too, have scoured the caselaw and

found several cases worth mentioning here.    See City of Jackson

v. Lipsey, 834 So. 2d 687, 694 (Miss. 2003) (awarding $25,000 for

injuries following a car accident when plaintiff was laid up for

two weeks, unable to work or move); Wal-Mart Stores, Inc. v.

Johnson, 807 So. 2d 382, 392 (Miss. 2001) (awarding $30,000 and

$37,000 to two plaintiffs in a car accident where neither broke

any bones, but both testified as to continued pain and limited

mobility); Kern v. Gulf Coast Nursing Home of Moss Point, Inc.,

502 So. 2d 1198, 1201 (Miss. 1987) (awarding $20,000 for a fall

requiring hip replacement); Sharp v. Odom, 743 So. 2d 425, 432

(Miss. Ct. App. 2000) (awarding $16,000 for pain and suffering to

a plaintiff who was shot in the chest).

     Rather than demonstrate that the district court was right or

wrong in its award of damages, what these cases show is that

damages are necessarily awarded on a case-by-case basis and

dependent upon the specific facts of the case.    See Kinnard, 223

So. 2d at 303 (“Each suit for personal injury must be decided by

the facts shown in that particular case.”).   As the trier of fact

                                13
in this matter, the district court was best situated to determine

what amount of damages was warranted.

     Here, the evidence shows that Spaulding has pain in his

back, is limited in some, but not all, areas of exercise, has

trouble sleeping, and has some emotional distress as a result.

Should Spaulding eventually have back surgery, which may or may

not be related to the accident, he would suffer a 7% impairment

to his whole body.    We cannot say that the district court’s award

of $20,000 for Spaulding’s pain and suffering was clearly

insufficient.    Therefore, we will not disturb the district

court’s judgment.

                            V. CONCLUSION

     For the foregoing reasons, we conclude that the district

court did not err in its judgment.    Therefore, we AFFIRM.

     AFFIRMED.




                                 14
