Jeffrey R. Lockhart Plaintiff- Appellant
United States of America Defendant-Appellee
Submitted: June 16, 2016
from United States District Court for the Western District of
Missouri - Joplin
SMITH, GRUENDER, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
federal employee injured Jeffrey R. Lockhart in a car
accident. Lockhart later required shoulder surgery. He sued
under the Federal Tort Claims Act (FTCA). The district court,
a bench trial, found the government 100% at fault for the
collision, but only 20% liable for Lockhart's injury. He
appeals the damages award. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.
March 2011, Lockhart was driving his truck south on a rural
Missouri road. A park ranger for the United States Army Corps
of Engineers was driving north. The ranger took his eyes off
the road to adjust his radio. His side mirror collided with
Lockhart's mirror. Lockhart sustained minor glass cuts
and felt some left-shoulder pain. Both drivers drove away
from the collision. Because the ranger was within the scope
and course of his employment, the United States stipulated to
liability for his acts under the FTCA.
the collision, Lockhart saw his primary care physician, Dr.
Leonard W. Bridges. Imaging of Lockhart's left shoulder
showed both degenerative conditions and traumatic injury.
Before the collision, Lockhart had not complained to Dr.
Bridges about, or been treated for, left-shoulder pain. Dr.
Bridges referred Lockhart to a specialist.
orthopedic surgeon, Dr. William T. Wester, examined
Lockhart's shoulder and reviewed the images. Dr. Wester
noted that the images showed the left shoulder had signs of
degenerative arthritis, specifically glenohumeral arthritis,
AC joint arthritis, and some degenerative arthritis in the
rotator cuff. According to the district court, "Dr.
Wester testified that imaging of the shoulder indicated
advanced degeneration that would have had to develop over
time . . . such that the degenerative condition is not
attributable to the Collision itself. . . . He further opined
that but for the Collision, the arthritis may not have
advanced to the point that shoulder replacement would be
necessary." After non-surgical treatment failed, Dr.
Wester performed total left-shoulder replacement surgery.
Lockhart then completed physical therapy. He returned to Dr.
Bridges for treatment and pain management, and Dr. Bridges
assisted him in applying for Social Security disability
benefits. The Social Security Administration found Lockhart
disabled as of the day after the collision.
sued under the FTCA. Before trial, the United States retained
Dr. Thomas B. Corsolini as a medical expert. He examined
Lockhart and prepared an expert report, admitted at trial.
Dr. Corsolini testified that the collision was-at
most-responsible for 20% of Lockhart's "need for the
later left shoulder surgery" "citing the advanced
arthritic changes that were found." He stated
"there is no way it [the collision] would cause all of
the abnormalities that were found on diagnostic testing"
and "pointed out that those findings would have required
years to develop." Dr. Corsolini further testified that
"the need for the left shoulder joint replacement would
have arisen and been necessary due to degenerative changes at
the left shoulder whether or not Mr. Lockhart had been in the
accident." However, Dr. Corsolini did say that the
collision "could have contributed a portion toward the
need for the surgery."
district court found the United States 100% at fault for the
collision. It also found that the medical opinions supported
Lockhart's claim that the collision contributed to his
left-shoulder issues and that Lockhart's injury was a
reasonably foreseeable consequence of the collision. Although
finding the United States at fault, the court concluded that
the collision resulted in, at most, 20% of
"Lockhart's need for the shoulder replacement."
Multiplying Lockhart's total medical expenses of $53,
968.42 by 20%, the court awarded $10, 793.68 in compensatory
medical damages. The court also awarded $10, 000 for pain and
suffering, and $22, 000 for lost income. Lockhart appeals,
seeking all his medical expenses and an increased award for
pain and suffering.
FTCA gives district courts jurisdiction over claims against
the United States for money damages "for injury or loss
of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred." Sheridan v. United States, 487 U.S.
392, 398 (1988), quoting 28 U.S.C. §
1346(b)(1). Because the collision occurred in Missouri,
Missouri substantive law applies. See id. Under the
FTCA, "Damages are determined according to the relevant
state law." Wilkinson v. United States, 564
F.3d 927, 934 (8th Cir. 2009). See also Limone v. United
States, 579 F.3d 79, 103 (1st Cir. 2009) ("We
approach the awards at issue here mindful that, in an FTCA
case, both the nature of allowable damages and the measure of
those damages are drawn from state law. . . . Under
Massachusetts law, the proper measure of damages is, within
wide limits, committed to the sound discretion of the trier
court reviews the district court's findings of fact for
clear error, and its conclusions of law de novo.
Washington v. Drug Enforcement Admin., 183 F.3d 868,
872 (8th Cir. 1999). "This court has recognized that
while 'the amount of damages entered in a non-jury case
is a finding of fact and therefore subject to the
'clearly erroneous' standard of review set forth in
Fed.R.Civ.P. 52(a), any application of that general standard
must take account of the special circumstances in which that
kind of factual finding is rendered.'" Gonzalez
v. United States, 681 F.3d 949, 952 (8th Cir. 2012),
quoting Overton v. United States, 619 F.2d 1299,
1304 (8th Cir. 1980).
to Lockhart, the district court improperly applied Missouri
law by concluding that Lockhart's shoulder injury was
only 20% attributable to the collision (thus awarding only
20% of the medical expenses), after finding the government
100% at fault for the collision. Lockhart asserts Missouri
precedent does not allow this reduction. He believes that the
district court incorrectly used a "direct result"
standard instead of the correct "directly caused or
directly contributed to cause" standard. See
Missouri Approved Jury Instructions (Civil) 4.01, 19.01 (7th
Missouri, for multiple causes of damages, the "direct
result" jury instruction must be changed to
"directly caused or directly contributed to cause"
in both the liability and damages instructions. See
Carlson v. K-Mart Corp., 979 S.W.2d 145, 148 (Mo. banc
1998) ("If the 'direct result' language is
confusing in the verdict director when there are multiple
causes of injury, it is equally so in the damages
instruction."), cited in MAI 4.01 n.3, 19.01
n.2. The jury instruction reads: "If you find in favor
of plaintiff, then you must award plaintiff such sum as you
believe will fairly and justly compensate plaintiff for any
damages you believe plaintiff sustained that [the collision]
directly caused or directly contributed to cause." MAI
4.01 n.3. See also MAI 19.01 n.2. True, in the bench
trial required by the FTCA, the district court-not a
jury-determines the damages. See 28 U.S.C. §
2402. However, the Missouri Approved Jury Instructions, as
created and interpreted by the Missouri Supreme Court, are
the substantive law of the state. See Eubank v. Kansas
City Power & Light Co., 626 F.3d 424, 427 (8th Cir.
2010) ("When determining the scope of Missouri law, we
are bound by the decisions of the Supreme Court of
"direct result" from "directly caused or
directly contributed to cause, " Lockhart emphasizes
Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852
(Mo. banc 1993). Discussing foreseeability in proximate
causation, the Callahan court quoted the Prosser
treatise: "It is as if a magic circle were drawn about
the person, and one who breaks it, even by so much as a cut
on the finger, becomes liable for all resulting harm to the
person, although it may be death." Id. at
865-66, quoting Prosser and Keeton on Torts §
43, at 291 (5th ed. 1984). Illustrating the concept, the
Missouri Supreme Court discusses a case where a "blow to
[the plaintiff's] back . . . . activated a dormant cancer
in his adrenal gland which caused the cancer to spread
throughout his body." Id. at 866,
discussing Heppner v. Atchison, Topeka and Santa Fe
Railway Co., 297 S.W.2d 497 (Mo. 1956). That case
"held that the jury could find that the
railroad's negligence activated a latent disease
and that the railroad was liable for all of the
resulting harm that flowed from its negligence."
Id. (emphasis added). Lockhart contends that under