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Dissector in the area of the bleeding which was near the intervertebral foramen, and he applied light pressure in using the device (n.t. 397). Doctor Sharp further testified that the most likely cause of the plaintiff's injury was damage to the cord (n.t. 425). He reached this conclusion because he had used cauterization to stop the bleeding and because there were manipulations around the posterior rib (n.t. 425). Doctor Kieffer had testified that it was not advisable to use cauterization or clamps in this area because of fear of injury to the spinal cord and the nerve tissue (n.t. 332, 333). When the oxycel packing was removed by Doctor Kieffer he saw spinal fluid escaping through the intervertebral fora. men. Also, a tear in the dura caused spinal fluid to escape freely. All of these facts in conjunction with the expert testimony lead us to the conclusion that the operation was performed in a negligent manner and such negligence was the proximate cause of the plaintiff's paraplegia.

On the question of damages we have specifically set forth in our findings each category of damages. We made our decision with the primary intention of awarding the plaintiff just compensation. While this is a tragic case we have not been influenced by sympathy in this regard.

We have followed the instructions of the United States Supreme Court in Brooks v. United States, 337 U.S. 49, 53 (1949) which stated that the amount payable under servicemen's benefit laws should be deducted "* * * or taken into consideration when the serviceman obtains judgment under the Tort Claims Act.” 1 (Emphasis supplied.) It is only fair that this result should follow since the United States, as any other defendant, should not have to pay twice for the same injury. We have deducted the past disability payments because these sums have already been paid. With regard to the plaintiff's loss of future earning capacity, we have considered his present physical condition and prospects for future improvement through rehabilitation. We believe that with proper management and rehabilitation the plaintiff's scientific training will make it possible for him to secure employment in the future. This Court has personal knowledge of the improvements that can be effected through the diligent use of rehabilitative techniques available to paraplegics. In the unreported case of Hutton, Guardian of the Estate of Eddie Graybeal, a minor v. Fisher, C.A. No. 28261 (E.D. Pa. 1963) a sixteen-year-old boy who is a paraplegic, was trained to the degree that he can take care of ail his needs. He has managed through operations and training to control his bowel and bladder movements. Also, he has learned the trades of a watchmaker and optician. In addition to these occupational improvements, he participates in wheelchair races and basketball games in New York City. He has also appeared on television and promoted National Hire the Handicapped Week. The law does not expect that such heroie determination will be exhibited by all plaintiffs and the defendant must accept the present plaintiff as it finds him.

While some hope for future rehabilitation does exist we do find that the plaintiff has established a diminution of earning capacity. He has shown by his past employment record and his pursuit of an advanced engineering degree that he is an industrious, capable person. The record shows that aeronautical engineers entering the field today could command an entrance salary of $7,600.00. The future prospects, assuming no serious national economic recessions or depressions, are very favorable with a high salary of $18,000.00 during the 1980's. This salary range gives no consideration to the possible management promotions which a superior engineer could attain.

In making our award, we balanced such factors as the plaintiff's proven earning ability, his prospects for some future employment, against his VA monthly disability benefits of $525.00 (unrelated to any medical expenses) and reached the conclusion that his future earning capacity has been reduced by $6,000.00 annually. We also found as a fact, that, but for his disability the plaintiff would have worked for thirty additional years. Thus, his loss of future earning capacity at $6,000.00 per year reduced to present value at the rate of 3.5 percent? is $110,352.00.

1 See Snyder v. United States, (5 cases) 118 F. Supp. 585. (D. Md. 1953); modified in part aff'a in part 218 1:20 266 : revid and judgment of District Court reinstated, per curiam, 350 U.S. 906 (1955) where the District Court took into account prospective future disability payments in reaching its verdict

2 Maryland has no rigid riile as to the discount rate to be applied in reducing damages to present value. See, Snyder v. United States, (5 cases) supra note 1 (3.5 percent); Jennings v. United States, 178 F. Supp. 516 (4 percent); vacated and remanded on other grounds 291 F. 2d 8s0 (4 Cir. 1961); judgments reinstated 207 F. Supp. 143; aft'd per curiam 318 F. 2d 718 (4 Cir. 1963). Inquiry was made by this Court to the District Court for Maryland and it was learned that 3.5 percent is within the current range of discount values now being applied by that Court.

We reject the Government's argument that the law of the forum should be applied to reduce the damages to present worth. In Pennsylvania the discount figure is 6 percent. Brodie v. Philadelphia Transportation Company, 415 Pa. 296 (1964). The United States argues that since the Maryland cases are silent on the conflict of laws question, the Maryland law is that the general law should be applied. Herr v. Holohan, 131 F. Supp. 777 (D.C. Md. 1955). The new, flexible conflict of laws concept, recently adopted by Pennsylvania in Griffith v. United Air Lines, Inc., 416 Pa. 1, 15 (1964) is to apply the law of the state having the most significant relationship with the occurrence and the parties. This principle was recognized by the United States Supreme Court in Richards v. United States supra pp. 12, 13.

Under Griffith, the contacts test considers as vital, the place of the injury, place of conduct, domicil of the parties and the place where the relationship between the parties is centered. Also, under $ 379(a) of the new Restatement, "the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern."

Applying this test to the instant case, we find that the place of the conduct and injury as well as the relationship between the parties are all centered in Maryland. The plaintiff's domicil is in doubt. When suit was filed in May, 1961, he was living with a quadraplegic in a home in Fort Lauderdale, Florida to avoid the cold weather. The complaint only speaks of the plaintiff's residence as being in Pennsylvania and not his citizenship. When the plaintiff returned to this area in July, 1961, he has since resided continuously in New Jersey. Initially, he lived with his sister and brother-in-law from July, 1961, until November, 1964, when shortly before trial he purchased his own home in Somerdale, New Jersey.

We conclude that Maryland has the most significant relationship between the parties and its law controls the amount of damages to be awarded the plaintiff.

In determining the plaintiff's future medical expenses, it is impossible to award a figure with any absolute certainty.

"Where the tort itself is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it would be a perversion of fundamental principles of justice to deny all relief to the injured person, and thereby relive the wrongdoer from making any amend for his acts. In such case, while the damages may not be determined by mere speculation or guess, it will be enough if the evidence show the extent of the damages as a matter of just and reasonable inference, although the result be only approrimate. The wrongdoer is not entitled to complain that they cannot be measured with the exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise. (cases cited] As the Supreme Court of Michigan has forcefully declared, the risk of the uncertainty should be thrown upon the wrongdoer instead of upon the injured party. [case cited]” Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 563 (1931) (emphasis supplied).

The plaintiff has proved his present and future need for constant, unremitting and highly intensive care from almost every medical specialty known to

There is sufficient evidence in the record to warrant an annual expense of $5,000.00 for his projected life expectancy of 40 years.

In reaching this figure we have considered the fact that he will receive, for the rest of his life, $200.00 monthly from the VA for aid and attendance at home. It matters not that the plaintiff has looked to the VA hospitals for all of his medical needs in the past. He has a right to select a private hospital or physician of his own choosing should he so desire in the future. Feeley v. United States, 337 F. 2d 924 (3 Cir. 1964).

The last and most distressing element of damages concerns the plaintiff's pain and suffering. We have no desire to engage in the macabre by detailing every gruesome aspect of the plaintiff's considerable suffering. However, we find it difficult, if not impossible, to assess the loss of such fundamental ordinary human functions as the ability to stand, walk, run and eliminate. He has

man.

: We also reject the Government's argument that projected income taxes should be deducted in computing lost future earning capacity. We know of no precedent in Maryland or Pennsylvania which absolutely requires such a deduction. In fact, it is against the general weight of authority. Annotation : "Propriety of taking income tax into consideration in fixing damages in personal injury or death action." 63 A.L.R. 2d 1393.

lost the ability to procreate and he will never know the pleasures and satisfactions of marriage and parenthood. He has a life that offers little in the way of optimism for the future. The disfigurement, humiliation and anxiety he has undergone is considerable. He is paralyzed from his chest down to his legs which are subject to uncontrolled spasms. This man's condition will only become increasingly more distressing with advancing years. We believe that $350,000.00 is just and reasonable compensation under the circumstances of this

case.

The plaintiff objects to our deduction of past disability payments because the plaintiff already had a 100 percent disability rating before the injury of May 4, 1959. He further objects to our considering future VA disability payments in making our award. It was stipulated that the plaintiff was cured of his tuberculosis following the operation of May 4, 1959. Therefore, his only 100 percent disability rating can be attributed to the injuries sustained by the operation of May 4, 1959. All amounts paid since that date are the only sums sought by the United States and we find that such deductions are proper. Brooks v. United States, supra.

His contention as to our considering future VA payments is based on the Veterans' Benefits Act 38 U.S.C.A. § 351 which provides for the suspension of future benefits by the VA for any month following a judgment under the Tort Claims Act "until the aggregate amount of benefits which would be paid for this sentence equals the total amount included in such judgment * * *." We find nothing in this Act or its legislative history · which indicates that Congress intended that the District Court was preempted from making a judicial determination of just compensation in rendering a judgment under the Tort Claims Act. The Act merely gives the VA the right to make a policy determination in each individual case to grant or withhold benefits when similar amounts are "included" in a judgment under the Tort Claims Act. We emphasize the fact that in making our award proper weight was given to the possible future VA benefits accruing to the plaintiff and our judgment was reduced accordingly. Certain pain and suffering has no bearing on what disability rating a Veteran will receive and could not be construed to be a duplication of benefits.

Finally, four weeks after trial on January 22, 1965, the Government has filed a motion for leave to amend its Answer. The Amended Answer seeks to deny jurisdiction in this Court under 28 U.S.C. & 1346(b) and 1402 (b). Also, the United States now claims 28 U.S.C.A. § 2680 precludes liability because the Government cannot be responsible for lack of due care in the exercise of a discretionary function. We find no merit in any of these allegations and the motion is denied. The Government claims that it first learned of the plaintiff's Florida residence at the time of trial. This is contrary to the record. In Answers To Defendant's Interrogatories (Document No. 8) filed August 27, 1962, the plaintiff specifically informed the Government that he was living in Florida from December, 1960, until July, 1961. Also, by prior stipulation of counsel the United States agreed not to object on grounds of jurisdiction or venue and the plaintiff withdrew his action previously instituted in the District Court for Maryland.

Jurisdiction is unquestionably in this Court under $ 1316(b). Venue under $ 1402 (b) may have been defective, but the United States has waived any defects in such venue by failing to make timely objection. Hoiness v. United States. 335 U.S. 297 (1948) 28 U.S.C.A. $ 1406 (b).

On the theory of liability that the United States failed to warn the plaintiff of the danger of paraplegia, our Finding No. 40 makes it unnecessary for the United States to amend its Answer to meet this amended claim of the plaintiff.

CONCLUSIONS OF LAW 1. Jurisdiction and Venue are properly in this Court.

2. The operation of May 4, 1959, was performed in a negligent manner by a physician who was an agent or employee of the United States acting within the scope of his employment.

3. Such negligence was the proximate cause of the plaintiff's permanent injuries.

4 1962 U.S. Code and Cong. and Adm. News, p. 3260 :

“Also duplicate recoveries from the United States for the same disability or death under Section 351 and the Federal Tort Claims Act would be precluded by providing a setoff against compensation benefits of the amount of any recovery pursuant to a civil judgment, settlement, or compromiso."

5 Subsequent to this motion the United States has filed another motion to amend its prior motion for leave to amend its answer denying venue and jurisdiction. Now, the Government seeks to admit these allegations. In all other respects its motion to amend remains intact.

4. The plaintiff is entitled to damages in the following amounts: Past Income..

$142, 314. 00 Loss of Future Earning Capacity.

110, 352.00 Future Medical Expense_

200,000.00 Pain and Suffering-

350, 000.00 Gross Damages--

$702, 666. 00 5. The United States is entitled to a deduction of past disability payments totaling: $52,455.00.

6. The plaintiff is entitled to a verdict in the sum of $650,211.00.

7. The plaintiff failed to prove that the Government's failure to warn was negligence.

8. Judgment will be entered on the verdict.

ORDER AND Now, this 3rd day of February, 1965, It Is ORDERED that judgment is entered in favor of the plaintiff Daniel D. Christopher in the sum of $650,211.00 against the United States.

IT IS FURTHER ORDERED that the Government's motion for leave to file an Amended Answer is Denied and the Government's motion to amend the above motion is also denied.

HAROLD K. WOOD. J.

VETERANS' ADMINISTRATION,

DEPARTMENT OF VETERANS BENEFITS, Mr. OLIVER E. MEADOWS,

Washington, D.C., March 17, 1965. Staff Director, Committee on Veterans Affairs, House of Representatives, Washington, D.C.

DEAR MR. MEADOWS: As requested in your letter of March 10, 1965, I am enclosing a chart showing a comparison of the percentage increase in disability compensation with military pay and civilian wage increases since 1952. The percentage increases in military pay and civilian wages were taken from the report of the Armed Services Committee staff as published in the Army Times on March 10, 1965.

A member of my staff telephoned the Department of Defense and talked with Lt. Col. John N. Naler, Office of the Secretary of the Army, Legislative Liaison. Colonel Naler stated that the 36.6 percent increase in military pay since 1952 included the increase granted by Public Law 82–346, effective May 1, 1952. Sincerely,

A. W. STRATTON,

Chief Benefits Director. Enclosure.

HISTORY OF COMPENSATION INCREASES SINCE 1952 Public Laro 82–356.Compensation payable for disabilities evaluated as 10 percent through 40 percent disabling were increased by 5 percent and those 50 percent through 100 percent by 15 percent from July 1, 1952. The statutory rates were not increased.

Public Laro 82-427.-Increased the statutory rates by approximately 11 per. cent from August 1952.

Public Law 83-695.--Increased all compensation rates including statutory awards (except 38 U.S.C. 314 (k) and (q)) in effect at that time by approximately 5 percent, from October 1, 1954.

Public Law 85–168.-Increased rates of compensation payable for disabilities evaluated as less than 100 percent disabling by approximatley 10 percent. Disabilities evaluated as 100 percent disabling were increased by 24.3 percent. Statutory awards, except those provided in 38 U.S.O. 314 (k) and (q) were increased by percentages ranging from 7.1 to 10.8.

Public Law 87–645.—Increased the basic rates of disability compensation by percentages ranging from 5.3 percent to 11.1 percent and up to 33.3 percent in the statutory rates.

Additional compensation for dependents was initially established by Public Law 80–877, effective September 1, 1948, and by section 4, Public Law 81-339. effective September 1, 1949. The rates provided by these laws were increased approximately 10 percent on October 1, 1957, by section 3, Public Law 85–168. There were in this interim, however, two increases in basic compensation rates. No increases have been granted in the additional compensation rates since October 1, 1957.

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