                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                             )
ROBERT D. HUBER, JR.,                        )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )       Civil Action No. 14-cv-1380 (TSC)
                                             )
                                             )
UNITED STATES OF AMERICA,                    )
                                             )
              Defendant.                     )
                                             )

           MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND
                                  CONCLUSIONS OF LAW


       Plaintiff Robert Huber sued the United States, pursuant to the Federal Tort Claims Act,

28 U.S.C. §§ 1346(b) and 2671, et seq. (“FTCA”), for damages arising from injuries that he

allegedly sustained when a Government Services Administration (“GSA”) vehicle hit his vehicle

while driving across Memorial Bridge on May 14, 2012. The government filed a counterclaim,

claiming that Huber’s negligence was the cause of the accident.

       The court conducted a five-day bench trial from January 22, 2018 through January 26,

2018, and the parties filed proposed findings of fact and conclusions of law on March 28, 2018.

ECF Nos. 47 and 48.

       Based upon the evidence presented at trial and submitted by the parties, the court makes

the findings of fact and conclusions of law set forth below. Based on these findings of fact and

conclusions of law, the court concludes that Plaintiff has sustained his burden of proof on his

negligence claim, and enters judgment in favor of Plaintiff.

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       Specifically, the court finds that Plaintiff has carried his burden of establishing by a

preponderance of the evidence that the driver of the GSA vehicle acted negligently in causing the

collision between the GSA vehicle and Plaintiff’s vehicle. The court also finds that Plaintiff has

established by a preponderance of the evidence that the accident was the proximate cause of at

least some of his injuries, and that the government has not carried its burden on its counterclaim.

However, because the parties submitted insufficient evidence and briefings on the issue of

damages, the court orders the parties to submit supplemental briefing on this issue. Plaintiff’s

brief is due on May 16, 2019, Defendant’s response is due on June 17, 2019, and Plaintiff’s reply

is due on July 1, 2019.

   I. FINDINGS OF FACT

           A. Circumstances Surrounding the Accident

                 i. The witnesses and their credibility

                          1. Five witnesses testified about the facts and circumstances
                             surrounding the accident: (i) Plaintiff Robert Huber; (ii) GSA
                             vehicle driver Ernest Gilbert; (iii) GSA vehicle passenger Paul
                             Chapman; (iv) Plaintiff’s collision expert David Plant; and (v)
                             Defendant’s collision expert Dennis Guenther.

                          2. The court finds that Robert Huber’s testimony about the accident
                             was credible.

                          3. The court finds that Paul Chapman’s testimony about the accident
                             was credible.

                          4. The court finds that Ernest Gilbert’s testimony about the accident
                             was not credible because he admitted he had a poor recollection of
                             the events in question, and that lack of recollection was apparent in
                             his testimony.

                          5. The court finds that David Plant’s testimony was credible.


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       6. The court finds that Dennis Guenther’s testimony was only
          partially credible.

ii. The accident

   The court makes the following findings of fact regarding the May 14,
   2012 accident.

       1. Plaintiff Robert Huber was driving his Toyota SUV from his home
          in Silver Spring, Maryland to work at Ronald Reagan Washington
          National Airport in Arlington, Virginia, having left home at
          approximately 10:00 a.m. Tr. 76:18-77:22.

       2. GSA vehicle driver Ernest Gilbert and passenger Paul Chapman
          were test driving a route for the Joint Improvised Explosive Device
          Defeat Organization (“JIEDDO”) from the JIEDDO office in
          Arlington, Virginia to the area around 23rd Street Northwest in
          Washington, DC and back. At the time of the accident, Gilbert and
          Chapman were returning to the JIEDDO office. Tr. 386:10-17.

       3. At approximately 11:00 a.m., the GSA vehicle and Huber’s vehicle
          collided on the traffic circle west of Memorial Bridge in
          Washington, DC. Pl. Ex. 3; Tr. 384:11-385:10.

       4. At the time of the accident, the roads were wet. Tr. 78:11, 342:10,
          385:5.

       5. At the time of the accident, Huber’s vehicle was traveling at
          approximately 30 miles per hour in the far left lane. Tr. 79:2, 88:1.

       6. Huber was wearing his seatbelt at the time of the accident. Tr.
          98:21-23.

       7. The GSA vehicle was traveling one lane to the right of Huber’s
          vehicle. Tr. 348:11-13.

       8. A solid white line separated the lanes in which Huber’s vehicle and
          the GSA vehicle were traveling. Pl. Ex. 29-E.

       9. Immediately before the accident, Chapman was looking at traffic
          on his Blackberry device. However, he noticed that Huber’s
          vehicle had come from the rear left-hand side of the GSA vehicle.
          Tr. 387:17-18, 400:23-401:1.


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             10. Dr. Plant’s Monte Carlo analysis shows that immediately prior to
                 the accident both vehicles were crossing Memorial Bridge towards
                 Memorial Circle. Tr. 157:10-17.

             11. This means that Huber was not subject to a Yield sign, which
                 applies only to traffic coming around Memorial Circle. Tr. 348:15-
                 17.

             12. The accident involved an impact between the left side of the GSA
                 vehicle and the right side of Huber’s vehicle as the GSA vehicle
                 changed lanes. Tr. 84:22-85:8, 400:25-401:1. The damage to both
                 vehicles was consistent with a sideswiping accident due to a lane
                 change.

             13. Following the accident, Huber slowly braked his vehicle to a
                 complete stop near the left-hand shoulder. Gilbert stopped next to
                 Huber in the GSA vehicle. Tr. 86:7-8, 378:8-10; Pl. Ex. 3.

             14. All parties got out of the vehicles and checked to make sure no one
                 was injured and for damage to the vehicles. There were no
                 apparent injuries at the scene of the accident. Tr. 89:12-21,
                 399:11-12.

             15. The GSA vehicle had damage to the driver’s side mirror and
                 driver’s side front fender. Tr. 90:9-12, 395:5-10.

             16. Huber’s vehicle had damage along the passenger side, including a
                 missing fender and scratches. 90:1-8, 396:4-7, Pl. Ex. 5.

B. Huber’s Alleged Injuries

     i. The witnesses and their credibility

             1. Five witnesses testified about Huber’s injuries: (i) Huber; (ii)
                Plaintiff’s expert Susan Montgomery, a social worker; (iii)
                Plaintiff’s medical expert Dr. Marianne Talbot, a rehabilitation
                specialist; (iv) Plaintiff’s acquaintance, Keith Kreger; and (v)
                Defendant’s medical expert Dr. Jack Spector, a neuropsychologist.

             2. A sixth witness, Plaintiff’s medical expert Dr. Henry Kaminski, a
                neurologist, testified via video deposition.

             3. The evaluations of seven other medical experts were introduced
                through exhibits at trial: (i) Dr. James Yan, Pl. Ex. 16; (ii) Dr.

                              Page 4 of 12
            Marilyn Kraus, Pl. Ex. 23; (iii) Dr. Heechin Chae, Pl. Ex. 24; (iv)
            Dr. Barry Ekdom, Def. Ex. 24; (v) Dr. Mark Sementilli, Def. Ex.
            25; (vi) Dr. Jessica Clark, Def. Ex. 26; and (vii) Dr. Stephanie
            Johnson, Pl. Ex. 19. However, these seven experts did not testify,
            were not subject to cross-examination, and the court finds that their
            reports are not as probative as the testimony of testifying
            witnesses.

        4. The court finds that Huber largely testified credibly about his
           injuries, although the court also finds that he had pre-existing
           psychological issues that may have been exacerbated by the
           accident.

        5. The court finds that Montgomery, Dr. Talbot and Dr. Kaminski
           testified credibly about Huber’s injuries.

        6. The court finds that Dr. Spector’s testimony was not credible. Dr.
           Spector did not review all the medical records and appeared to
           have formed a conclusion without consulting all the relevant
           evidence. In a separate case, Dr. Spector’s testimony was found by
           another court to be “highly suspect.” United States v. Davis, 611
           F. Supp. 2d 472, 499 (D. Md. 2009). “The Court finds [Dr.
           Spector’s] analysis conclusory, unduly dismissive of the wealth of
           information contained in the voluminous historical records, and
           methodologically unsound.” Id.

ii. Plaintiff’s injuries

    The court makes the following findings of fact regarding Huber’s injuries:

        1. After he left the collision scene, Huber went to work, where he
           collapsed, briefly lost consciousness, and was transported by
           emergency medical personnel to George Washington University
           Hospital. There, Huber presented with abdominal pain, vomiting,
           headache, and an altered level of consciousness. He was
           discharged from the hospital two days later. Tr. 93:15-25; Pl. Ex.
           9, HUB-GWUH 321-22.

        2. Huber was again admitted to George Washington University
           Hospital overnight on May 24, 2012 with complaints of an extreme
           headache, memory impairments, and double vision. Pl. Ex. 10,
           HUB-GWUH 247-48.



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3. On June 5, 2012, Huber saw neurologist Dr. James Yan. Dr. Yan’s
   notes indicate Huber had significant post-traumatic symptoms. Pl.
   Ex. 16.

4. On June 22, 2012, Huber was admitted to George Washington
   University Hospital overnight for a third time, after he displayed
   altered medical status and gait at a bank. He presented with
   headache, numbness, tingling, dizziness, and weakness. During
   this visit, Huber was seen by Dr. Kaminski, who concluded that
   Huber’s reported symptoms were those of post-concussion
   syndrome, and that these symptoms were related to the May 14,
   2012 car accident. Dr. Kaminski later concluded that Huber was
   suffering from additional psychological problems, but Dr.
   Kaminski did not make a finding as to whether the psychological
   problems were primary or a result of the concussion. Pl. Ex. 11A,
   HUB-GWUH 124-32, 151; Kaminski Dep. 12-13, 42.

5. Huber continued to see Dr. Kaminski through September 2013.
   Kaminski Dep. 41-42.

6. Beginning in April 2014 and continuing through December 2016,
   Huber was treated by two brain injury specialists: Dr. Marilyn
   Kraus and Dr. Heechin Chae. Pl. Ex. 23; Pl. Ex. 24.

       a. On April 3, 2014, Dr. Kraus diagnosed Huber with post-
          concussion syndrome related to the May 14, 2012 car
          accident. Dr. Kraus later stated that she believed that
          Huber’s post-concussion syndrome had multiple causes,
          with stress/psychological and functional factors playing a
          role, and that it was unlikely that Huber’s original injury
          was causing the degree of disability that he was reporting at
          that time. Pl. Ex. 23, HUB-NRH 30; Def. Ex. 36, HUB-
          GWMFA 69.

       b. On May 22, 2015, Dr. Chae likewise diagnosed Huber with
          post-concussion syndrome. Pl. Ex. 24, HUB-CHAE 10.

7. Huber had three neuropsychological tests performed on him.
   Neuropsychological testing looks at cognitive issues and does not
   address physical symptoms. The first test was performed by Dr.
   Ekdom upon referral by Dr. Kaminski on August 21-22, 2012, the
   second test was performed by Dr. Sementelli on July 10, 2013, and
   the third test was performed by Dr. Clark upon referral by Dr.
   Kraus on March 23, 2015. The tests generally indicated that Huber

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   suffered a mild to moderate traumatic brain injury but that his
   symptoms also had some psychosomatic effects. Kaminski Dep.
   32; Def. Ex. 24, Def. Ex. 25, Def. Ex. 26.

       a. Dr. Ekdom’s test results indicated “a concern for a
          significant psychological component that compromised
          thorough assessment.” Dr. Ekdom had concerns about
          Huber’s motivation during testing, and stated that the
          validity of the testing results was limited due to these
          concerns about Huber’s motivation. Kaminski Dep. 33;
          Def. Ex. 24, HUB-EKDOM 8.

       b. Dr. Sementilli indicated in his report that Huber likely
          suffered a concussion as a teenager. Dr. Sementilli
          reported that it appeared that Huber had an acquired brain
          injury of mild to moderate severity. However, Dr.
          Sementilli also stated that it appeared that there were
          psychological and/or personality features that strongly
          contributed to the persistence of Huber’s symptoms and
          that, therefore, most of Huber’s presentation was not
          traumatic-brain-injury related in nature. Dr. Sementilli
          likewise had concerns about Huber’s performance and the
          validity of the results. Def. Ex. 25 HUB MSPHD 9-11.

       c. Dr. Clark noted that Huber reported several psychosocial
          stressors, as well as a history of significant psychological
          difficulties. Dr. Clark stated that Huber presented with an
          atypical course of recovery and that it would be “important
          to explore additional factors that may be contributing to
          Mr. Huber’s symptoms,” but noted that these factors may
          have been created or exacerbated by Huber’s concussive
          injury. Dr. Clark also stated that it was important to
          explore in psychotherapy the possibility that Huber was
          being hypervigilant for neurologic symptoms to ensure that
          there is no potential misattribution of symptoms. Def. Ex.
          26 HUB-NRHPC 32-35.

8. Ms. Montgomery, who provided psychotherapy to Huber,
   diagnosed him with a mood disorder due to a traumatic brain
   injury. Tr. 22:12-21. She noted that post-concussion syndrome
   can cause a mood disorder. Tr. 23:13-16. Huber discontinued
   treatment for several months at the start of treatment but later
   recommenced treatment. Ms. Montgomery noted that this
   behavior is a common problem for individuals with traumatic brain

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   injuries. Tr. 40:2-10. Ms. Montgomery testified that more likely
   than not, the injury affected Huber’s depression and anxiety. Tr.
   52:16-24.

9. Dr. Stephanie Johnson, a licensed neuropsychologist, treated
   Huber throughout 2013 with cognitive behavioral therapy to
   improve his cognitive functioning. In an undated memorandum,
   Dr. Johnson noted that Huber was diagnosed with cognitive
   impairment not otherwise specified associated with a traumatic
   brain injury, generalized anxiety disorder, and other unrelated
   diagnoses. Pl. Ex. 19, HUB-COGSOL-12.

10. Dr. Talbot testified that her observations of Huber were consistent
    with someone who had experienced post-concussion syndrome.
    Tr. 56:22-24.

11. Mr. Kreger testified that he had known Huber for approximately
    20 years, and that after the accident, Huber became more subdued.
    Kreger further testified that he noticed that Huber had coordination
    problems after the accident. Tr. 141:22-24, 142:14-20, 143:1-9.

12. The court finds that following the accident on May 14, 2012,
    Huber suffered from post-concussion syndrome and a mood
    disorder due to the post-concussion syndrome.

13. The court further finds that Huber experienced headache, sleep
    disturbance, cognitive difficulties, difficulty concentrating, balance
    and gait issues, memory impairment and dizziness as a result of the
    accident.

14. The court also finds that although some of Huber’s psychological
    problems predated the accident on May 14, 2012, the accident
    exacerbated those problems or created new ones.

15. The court finds Dr. Spector’s testimony not to be credible. Dr.
    Spector did not review Dr. Chae’s records while completing his
    report, but only reviewed them shortly before testifying.
    Furthermore, Dr. Spector, who had previously been criticized by
    the court in an earlier case, never reviewed the records of several
    other providers who had previously treated Huber, nor did he
    review the notes or deposition testimony of any lay witnesses who
    knew Huber before and after the accident. Tr. 261:11-15, 261:20-
    263:17.


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II. CONCLUSIONS OF LAW

1. Under the FTCA, negligence cases such as this one are governed by the law of the state
   in which the claim arose. See 28 U.S.C. § 1346(b); Richards v. United States, 369 U.S.
   1, 5-7 (1962). Because the accident occurred in the District of Columbia, the District's
   law governs.

2. “In order to show negligence, a plaintiff must establish, by a preponderance of the
   evidence, the applicable standard of care, a breach of that standard by the defendant, and
   a causal relationship between the breach and the plaintiff's injury.” District of Columbia
   v. Price, 759 A.2d 181, 183 (D.C. 2000) (citing District of Columbia v. Wilson, 721
   A.2d 591, 597 (D.C. 1998)).

       A. Whether Defendant’s Negligence Caused The Accident

             i. Standard of care

                      1. In the District of Columbia, an individual who drives on a public
                         roadway must “use ordinary care at all times” to avoid collisions
                         with other individuals on the roadway. Lyons v. Barrazotto, 667
                         A.2d 314, 321 (D.C. 1995). Ordinary care is defined as using the
                         “‘attention or skill that a reasonable person would use under
                         similar circumstances.’” Butts v. United States, 822 A.2d 407,
                         416 (D.C. 2003) (quoting Standardized Civil Jury Instr. for the
                         District of Columbia, No. 5-2 (2002 rev. ed.)).

                      2. “Whenever any roadway has been divided into two (2) or more
                         clearly marked lanes for traffic . . . [a] vehicle shall be driven as
                         nearly as practicable entirely within a single lane and shall not be
                         moved from that lane until the driver has first ascertained that
                         such movement can be made with safety.” D.C. Code Mun. Regs.
                         tit. 18, § 2201.6(a).

                      3. Where there is a solid white line marking dividing the lanes, lane
                         changes are discouraged. U.S. DEP’T OF TRANSP., FED. HIGHWAY
                         ADMIN., MANUAL ON UNIFORM TRAFFIC CONTROL DEVICES
                         (2009), Ch. 3B § 3B.04, White Lane Line Pavement Markings
                         and Warrants,
                         https://mutcd.fhwa.dot.gov/htm/2009/part3/part3b.htm.

                      4. The court finds that Gilbert was required to ascertain whether it
                         was safe to change lanes. The court also finds that Huber could
                         assume that Gilbert would yield when changing lanes. Huber also


                                      Page 9 of 12
                  had the duty to exercise reasonable care as a normal driver would
                  when another vehicle was changing lanes.

      ii. Breach of duty

          Based on the evidence presented, the court finds the following:

              1. Huber’s vehicle was one lane to the left of the GSA vehicle driven
                 by Gilbert.

              2. A solid white line separated the two lanes.

              3. Gilbert changed lanes in an area where lane changing is
                 discouraged, i.e., an area with a solid white line marking.

              4. The damage to the vehicles is consistent with a collision occurring
                 during a lane change.

              5. Huber’s vehicle was coming from the left rear of the GSA vehicle
                 immediately prior to the accident.

              6. Huber was driving within the speed limit of 30 miles per hour on
                 the roadway and was wearing his seatbelt.

              7. Huber has shown by a preponderance of the evidence that
                 Gilbert’s negligent breach of duty in failing to adequately
                 determine that it was safe to change lanes was the proximate
                 cause of the accident.

              8. Huber has shown by a preponderance of the evidence that he was
                 exercising reasonable care while driving.

B. Whether the accident was the proximate cause of Huber’s injuries

   1. For an accident to be the proximate cause of a plaintiff’s injuries, (1) the
   injuries must be foreseeable; (2) the injuries must be the natural and probable
   consequence of the negligence; and (3) the negligence must have played a
   substantial part in bringing about the injuries. Sanders v. Wright, 642 A.2d 847,
   849-50 (D.C. 1984) (citations omitted).

       i. Foreseeability

              1. Injuries, including traumatic brain injuries, are foreseeable as a
                 result of a collision between two cars in a collision.

                             Page 10 of 12
                           2. The court concludes that Huber’s injuries were foreseeable.

                   ii. Natural and probable consequences

                           1. The court finds that Huber suffered a concussion as a result of the
                              accident and later suffered post-concussion syndrome as a result
                              of the concussion.

                           2. The court concludes that Huber’s injuries were the natural and
                              probable consequence of Gilbert’s negligence.

                   iii. Substantial part

                           1. The court finds that Gilbert’s negligence was the cause of the
                              accident and Huber did not act negligently. Huber’s injuries were
                              a natural and probable consequence of the accident.

                           2. The court concludes that Gilbert’s negligence played a substantial
                              part in bringing about Huber’s injuries.

            C. The Government’s Counterclaim

               1. In order to prevail on its counterclaim, the government must carry its burden
                  in establishing that it was Huber’s negligence that caused the accident.
                  Specifically, the government must show that there was a breach of the
                  applicable standard of care, and that this breach was the proximate cause of
                  the government’s injuries. See Price, 759 A.2d at 183.

               2. The court has concluded that, based on the evidence presented, Huber was
                  exercising reasonable care while driving. For that reason, the court concludes
                  that the government has not carried its burden on its counterclaim and enters
                  judgment in favor of Huber on the counterclaim.

   III. DAMAGES

       Having reviewed the records and other exhibits provided by the parties, as well as the

testimony at trial, the court concludes that not all of Huber’s psychological problems have been

shown to be the result of the accident. However, the parties’ submissions and briefing leave the

court unable to reach a conclusion as to an appropriate quantum of damages. Therefore, both


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parties are ordered to submit supplemental briefing on the issue of damages and to provide

suggested calculations, and the basis for those suggested calculation as to the proper award of

damages. The parties shall cite to the record in support of their calculations.


Date: April 16, 2019


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




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