JOHN A. MENDEZ United States District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW—DAMAGES PHASE
Following an accident on Lake Tahoe that resulted in an above the knee amputation of her right leg, Plaintiff Manisha Palla brought a negligence claim against L M Sports, Inc.; L T Leasing, Inc.; and Paul Garcia. L M Sports and L T Leasing then filed a limitation of liability action under 46 U.S.C. §§ 30505 et seq. The Court consolidated the two cases, then bifurcated the issues of liability and damages. See Related Case Order, ECF /// No. 12; Palla v. L M Sports, No. 2:16-cv-02975-JAM-EFB, 2019 WL 427300 (E.D. Cal. Feb. 4, 2019).
Garcia initially participated in the suit. But since the withdrawal of his attorney in June 2018, ECF No. 72, Garcia has only made one appearance with the Court: on March 4, 2019, when he testified during the liability phase of the trial.
After conducting a ten-day bench trial on the issue of liability, the Court issued findings of fact and conclusions of law. ECF No. 284. Ultimately, the Court found Garcia and L M Sports's negligence caused Palla's injuries. Id. 35-36. It further found Garcia was 80% at fault for Palla's injuries and that L M Sports was 20% at fault. Id. at 31-33. Finally, the Court concluded L M Sports failed to show it lacked knowledge of the negligent conditions that gave rise to Palla's injuries. Id. at 33-36. As a result, it was not entitled to the limitation on liability afforded by section 30505(b). Id. L M Sports appealed the Court's decision in this first phase of the lawsuit. ECF No. 287.
Having waived her right to a jury trial, the Court proceeded to hold a nine day bench trial on the issue of Palla's damages. See ECF Nos. 309, 345. Palla and L M Sports offered in-person and deposition testimony from Palla, four people who were on the boat when the accident occurred, a first responder, a treating physician, Palla's mother, Palla's friend and co-worker, and seven expert witnesses. Numerous exhibits were also admitted at trial by both parties. The Court has considered the documentary evidence, the testimony of each witness, as well as the parties' trial briefs, their joint pretrial statement, and their stipulations. See ECF Nos. 316, 335, 336, 329.
I. FINDINGS OF FACT
Palla's Background
1. Manisha Palla was born to Suvarana and Sukender Palla on May 8, 1994 in San Jose, California.
2. She was raised by her maternal grandmother in Hyderabad, India and Portland, Oregon for the first five years of her life.
3. Palla spent the rest of her childhood in Portland, Oregon with her mother, father, and younger brother.
4. Growing up, Palla maintained a strong academic record, had lots of friends, and participated in several extracurricular activities, including basketball, volleyball, and taekwondo.
5. Palla travelled extensively—both domestically and internationally.
6. Palla testified that, before her accident, she never had hesitations about traveling; nor did she feel like there were physical limitations on what she could do.
7. For example, Palla had been backpacking, skydiving, and regularly went camping with her family.
8. After Palla graduated from high school, she moved to Atlanta, Georgia, where she attended Emory University.
9. At Emory, she continued to lead an outgoing and active lifestyle.
10. Palla graduated from Emory when she was twenty-two and began working at System Application Products ("SAP").
11. Palla was excited to have a job in an internationally- focused company, and eager to make her way as a woman in an industry dominated by men.
12. She met Mariah Koeltl during the SAP interview process.
13. Palla and Koeltl became fast friends when SAP hired them to both work in its Chicago office.
14. They saw each other at work nearly every day.
15. They ran together; planned trips together; went to social gatherings together; and talked about their hopes for the future. The Accident on Lake Tahoe
16. On July 24, 2016 Palla went to Lake Tahoe with a group of her SAP co-workers.
17. The group went tubing on the lake with a boat and an innertube they rented from L M Sports.
18. After Palla took her turn tubing, she swam back to the boat.
19. When re-boarding, her legs were struck by the boat's propellers.
20. Palla's screams alerted people on the boat of her injuries.
21. She felt excruciating pain in one of her legs, but no sensation in the other.
22. One of her legs had been struck by the propeller, while the other was completely lodged between the two counter-rotating propeller blades.
23. Palla reached down to touch one of her legs—it felt "squishy in some parts" and "hard in other parts." She testified that it did not feel like an "in tact human leg."
24. Efe Ozyurt, Regan Roberts, Sean O'Dea and Alvaro Gilsanz Herranz jumped in the water to help Palla.
25. They were unable to free Palla's leg from the blades.
26. The police and the boat rental company were called for help.
27. While awaiting help, Ozyurt and O'Dea held Palla's face out of the water to prevent her from drowning.
28. Notwithstanding their efforts, Palla's face still sunk below the water several times.
29. Palla testified that she thought she was going to die.
30. When Deputy Les Lovell arrived at the scene, Palla was "paling gray," nearing unconsciousness.
31. Lovell and his partner freed Palla from the propellers and handed her over to Marine One.
32. When Lovell removed Palla from the water, she was unconscious and no longer bleeding.
33. At that point, Lovell believed Palla was "either dead or in grave shape." Palla's Stay at Renown Memorial Hospital
30. Palla did not regain consciousness until the morning after the accident.
31. She was alone when she awoke, intubated, at Renown Memorial Hospital.
32. Palla got the attention of a nurse outside her room.
33. The nurse came in and pulled back the blanket covering Palla; Palla saw for the first time that the doctors had amputated her right leg above the knee.
34. Palla's mother ("Dr. Palla") went to her daughter's hospital room once she learned Palla was conscious.
35. Palla wrote her mother notes, asking whether she would still be able to accomplish the goals she once had.
36. Palla feared she would never run again; that she would never get married; that she would face discrimination in India; and that she would lose her job.
37. Dr. Palla could not provide her daughter reassurance; they both cried.
38. Four days after the amputation of her right leg, Palla began experiencing severe phantom pain.
39. Palla testified her phantom pain felt like electrocutions where her lower right leg used to be.
40. By July 31, Palla was experiencing phantom pain all hours of the day.
41. Palla returned to Portland, Oregon on August 4, 2016.
42. Her mother learned how to change Palla's bandages and watch for eschar so Palla could recover at home rather than at a rehabilitation center. Palla's Rehabilitation in Portland , Oregon
43. Palla spent five months recovering at home in Portland, Oregon.
44. Her phantom pain improved during this period of time but never went away completely.
45. Palla also had trouble sleeping.
46. Despite taking anti-anxiety and anti-depressant medication, she consistently suffered from nightmares where she would effectively re-live the accident on Lake Tahoe.
47. While in Portland, Palla required her mother's help to get out of bed, go to the restroom, shower, change her wound dressings, and prevent blood clots from forming.
48. Palla went to a hypnotist once while she was in Portland.
49. She did not, however, see a therapist.
50. During the first month of her rehabilitation, Palla developed necrotic tissue on her residual limb.
51. Necrotic tissue is tissue that has died because it lacks sufficient blood supply—it causes skin discoloration and poses risks of infection.
52. Palla's doctor recommended non-surgical treatments for Palla's necrosis.
53. When these non-surgical treatments failed, Dr. Palla took her daughter to Dr. Samuel Vincent Bartholomew.
54. Bartholomew recommended surgeries to cut out the dead tissue ("debridement") and then graft healthy tissue onto the open wound.
55. Bartholomew performed the first debridement surgery on September 6, 2016 and conducted two more debridements over the next three weeks.
56. Between each of the debridements, Dr. Palla had to change the dressings on Palla's wound several times a day.
57. Each time Dr. Palla put new gauze on the wound, it dried to the tissue and fat below.
58. When removed, the gauze ripped apart from the underlying wound.
59. Palla testified this was an extremely painful process-both because of the physical pain and because of the guilt she felt for causing her mom so much anguish.
60. On September 27, Bartholomew performed a successful skin graft.
61. He used skin from Palla's upper left thigh as the donor site.
62. Palla now has a large, rectangular scar in that area.
63. While recovering, Palla largely spent her time in bed.
64. She also spent some time writing.
65. She published two blog posts: one called "Opportunity of Adversity" and one called "38.991° N, 102.010° W".
66. Later, one of Palla's friends from Emory interviewed her for People magazine.
67. In 2017, People published the interview in an article titled, "I lost my leg . . . and couldn't feel luckier."
68. Palla testified that her interview and blog posts were attempts to candidly explain where she was in her recovery process, while also being hopeful and inspirational.
69. Eventually, Palla was fitted for a prosthetic leg.
70. The first time she saw her prosthesis, she cried. Palla's Return to Work in Chicago
71. Bartholomew released Palla to work on December 5, 2016.
72. Notwithstanding her mother's reluctance, Palla insisted upon returning to work the following month.
73. In January 2017, Palla attended SAP's Field Meeting Kickoff in Las Vegas, Nevada.
74. Palla then returned to work in SAP's Chicago office.
75. Upon returning, Palla began and completed training with a new class of SAP employees.
76. She received a title change at same time as her colleagues in that class.
77. Initially, Palla wore dresses and skirts to work; this was consistent with how she dressed before losing her leg and allowed her to more comfortably move around with her prosthesis.
78. Eventually, however, she started dressing to hide her prosthesis—an attempt to avoid stares and invasive questions from clients, co-workers, and strangers.
79. Koeltl was still working in the Chicago office when Palla returned to work.
80. Koeltl has never heard anyone speak poorly of Palla's performance at work.
81. Even so, Koeltl was cognizant of the many ways Palla had changed since her accident.
82. Koehltl testified Palla had trouble traveling by plane, attended fewer social events, walked with an uneven stride, and generally moved around more slowly than she did before her accident.
83. The pain in Palla's residual limb and in her contralateral leg prevented, and continues to prevent, her from walking more than a few blocks without taking a break.
84. As a result, Palla began using rideshare applications to get to places to which she used to walk.
85. She also began attending fewer social events.
86. Palla testified that it takes more energy and advanced planning for her to go to social gatherings than it did before she lost her leg.
87. She sometimes fears that going out with friends will deprive her of the energy she needs to do her job well.
88. Palla's main priority is keeping her job with SAP. Palla's Move to Philadelphia
89. Palla eventually applied for a transfer to SAP's Philadelphia, Pennsylvania office.
90. Following an interview process, SAP awarded Palla the position.
91. Palla now lives in a high-rise studio apartment about forty-five minutes away from SAP's offices in Newtown Square.
92. The apartment has an elevator and covered parking.
93. Palla takes advantage of online delivery services to get her groceries but can do most other household chores on her own.
94. As a senior account executive, Palla manages around twenty-five accounts in a territory that ranges from Maine to Virginia.
95. SAP requires its senior account executives to meet quarterly and annual quotas.
96. Palla testified that if an account executive fails to meet her quotas, SAP may fire her or reassign part of her territory.
97. Palla understands that she is entitled to accommodations through her employer.
98. She nonetheless fears that taking time off from work for appointments related to her injury places her job with SAP at risk.
99. Palla has not requested any accommodations from SAP.
100. She can generally travel to her most-frequented sites by train; in Chicago she had to travel by plane for many of her client visits. Palla's Post-Accident Travels
101. Palla has travelled domestically and internationally since her accident.
102. When possible, Palla prefers to travel by car and by train.
103. Palla drives with her left foot by bending her residual limb back toward her and crossing her left leg over her residual limb toward the gas pedal.
104. She stops at least once every hour because of the pain this position causes her residual limb.
105. Palla knows it is possible to modify her car so she could more easily drive with her left foot.
106. She testified, however, that she does not want to get into the habit of driving in a car with modifications because she often has to drive unmodified rental cars when traveling for her job.
107. When Palla travels by plane, TSA requires her to undergo invasive, additional security checks.
108. Palla testified that TSA agents must see the top of her prosthetic device before she passes through security.
109. This process requires her to go to a separate room and partially undress every time she goes to the airport.
110. It is also difficult for Palla to travel by plane because (a) she often needs to walk long distances between gates, (b) changes in elevation cause swelling in her residual limb; and (c) the size of airplane restrooms prevents her from effectively removing or adjusting her prosthetic if necessary.
111. Palla has never requested accommodations for her disability at an airport in anticipation of a flight and does not have specific plans to do so in the future.
112. Palla has traveled to Germany once for work.
113. On that trip, Palla's prosthesis stopped fitting correctly, leaving her unable to walk.
114. She had to return to Chicago early.
115. Palla has also taken personal trips to Iceland, England, Switzerland, France, and Colombia.
116. Although she was not able to participate in all the activities she would have done before her accident, Palla did not have to end any of these trips early because of her disability.
117. Palla has not visited India since her accident.
118. Palla's mother, on the other hand, last visited India in June 2018.
119. Dr. Palla found that only a very small percentage of buildings were handicap-accessible. Palla's Recurring Issues
120. Palla continues to experience intermittent phantom pain.
121. Palla also experiences fatigue in her residual limb and contralateral leg, instability in her contralateral knee, and pain in her hip, back, and contralateral ankle.
122. Palla stopped taking prescription pain medication in January 2017 because she feared developing a dependency.
123. She now only takes Advil and Tylenol for phantom pain relief.
124. Palla does not work out with the same consistency she did before her injury.
125. Working out causes strain on her contralateral knee that makes it difficult for her to keep up with the physical demands of her job.
126. Palla has gone to physical therapy in the past but does not currently go to physical therapy.
127. Moreover, she does she have specific plans to try physical therapy again in the future.
128. Palla has tried other physical modalities to address the physical pain in her hips, back, and contralateral joints.
129. Palla does five- to ten-minute stretching exercises at home to help manage her pain.
130. She has also tried massage therapy and acupuncture.
131. Palla can reduce the pain in her residual limb by taking her prosthetic off and/or lying down.
132. She addresses her phantom pain by walking around her apartment and waiting for the pain to subside.
133. Palla's use of her prosthesis has improved over the past three years.
134. Specifically, Palla's prosthesis expert, Drew Hittenberger, testified Palla has good balance, understands where her prosthetic is in space, and can put her prosthesis on without holding onto anything.
135. Even so, Palla still sometimes struggles to maintain her balance when walking with her prosthesis or standing without her prosthesis.
136. Palla testified that she has one or two "major falls" (where she falls completely to the ground) per year.
137. She also has one "catch-herself fall" (where she trips but catches herself before falling to the ground) every one or two weeks.
138. Alongside her physical pain, Palla struggles with feelings of insecurity, frustration and embarrassment.
139. Palla copes with the emotional consequences of her injury by talking to close family and friends, going to church, and meditating.
140. She has not, however, told her family members in India about her accident or the resulting amputation.
141. Based on the time she has spent in India, Palla fears her extended family would view her as "less than" if they found out she was an amputee.
142. Nevertheless, Palla's decision not to tell her family in India about her injury "w[ears] on her."
143. In Chicago, she went to therapy once a week for six months.
144. She also attended one support-group meeting.
145. Palla testified that she did not continue going to therapy or the support group because she did not find them helpful.
146. She does not have specific plans to try therapy or support groups again in the future.
147. In November 2018, she attended a ten-day meditation retreat in California, and found it helpful.
148. Palla testified she would be interested in continuing to go to meditation retreats.
II. OPINION
A. Damages
A plaintiff bears the burden of proving her damages by a preponderance of the evidence. Model Civ. Jury Instr. 9th Cir. 5.1. A plaintiff who meets this burden is entitled to the "amount of money that will reasonably and fairly compensate the plaintiff for any injury . . . caused by the defendant." Id. A fact-finder must consider several factors to determine what measure of damages will reasonably and fairly compensate the injured party, including: the nature and extent of the injuries; the disability, disfigurement, and/or loss of enjoyment of life experienced; the mental, physical, and/or emotional pain and suffering experienced; the reasonable value of necessary medical care, treatment and services received; and the reasonable value of necessary household help and/or non-medical services required. Model Civ. Jury Instr. 9th Cir. 5.2. When a plaintiff claims future damages, the fact-finder must also consider whether the damages already incurred will, "with reasonable probability," also be incurred in the future. Id.
1. Life Expectancy
Palla was born on May 8, 1994. She was 22 years old when she was injured. She was 25 years old at the time of trial and at the date of this Order. The parties stipulate that her life expectancy is 82. Pretrial Conference Order at 12, ECF No. 321.
2. Past Economic Damages
Palla claims past economic damages. First Am. Compl. ("FAC") ¶ 51. The parties stipulate Palla incurred $305,762.03 in reasonable and necessary past medical costs. ECF No. 329. Palla does not seek past loss of earnings or income. Pretrial conference Order at 12. The Court accepts the parties' stipulation and awards Palla $305,762.03 in past economic damages.
3. Future Economic Damages
Palla also contends she is entitled to future economic damages. Although L M Sports concedes Palla is entitled to some measure of damages for future medical expenses reasonably incurred as a result of her injury, it disagrees with the amount. At trial, Plaintiff presented testimony from Drew Hittenberger, a prosthetist, and Dr. Christopher Stephenson, a physiatrist. The Court found Hittenberger and Stephenson qualified as experts in their respective fields. Hittenberger testified about the prosthetic devices and associated expenses Palla would reasonably incur throughout her life. Stephenson provided testimony about other equipment, services, surgeries, and treatments that he believed Palla would reasonably require because of her disability. In response, L M Sports elicited testimony from their retained experts—Rick Chavez, a prosthetist, and Dr. Suzy Kim, a physiatrist. The Court found Chavez and Kim likewise qualified as experts in their respective fields.
The Court did not find the testimony of Hittenberger, Stephenson, Chavez, or Kim to be persuasive in toto. Rather, it found certain aspects of each expert's proposed life-care plan credibly assessed the care, treatment, equipment and services that Palla will, with reasonable probability, require in the future. The lists that follow reflect those credibility determinations.
The Court finds that over the course of her lifetime, Palla will, with reasonable probability, require: Prosthetic Devices
• 11 replacement walking prostheses;
• 11 walking prosthesis socket replacements;
• A sports prosthesis;
• Eight replacement sports prostheses;
• Seven sports prosthesis socket replacements;
• A backup walking prosthesis;
• Three replacement backup walking prostheses;
• A foot orthotic;
• 21 replacement foot orthotics; and
• Prosthetic device maintenance (10% of prosthesis cost).
Physiatrist Visits
• Four physiatrist visits per year for ages 25-27; and
• Two physiatrist visits per year for ages 27-82.
Orthopedist Visits
• Two orthopedist visits between ages 25-30;
• Four orthopedist visits between ages 31-40;
• Seven orthopedist visits between ages 41-50;
• Eight orthopedist visits between ages 51-60; and
• One orthopedist visit per year for ages 61-82.
Physical Pain Management
• One tube of compound cream per month for life;
• One acupuncture session per month for ten years;
• Two physical therapy sessions per year for ages 25-40;
• Five physical therapy sessions per year for ages 41-60;
• Six physical therapy sessions per year for ages 61-82; and
• 15 occupational therapy sessions for life.
Emotional Pain Management
• 50 counseling sessions for life; and
• One meditation retreat per year for life.
Surgical/Emergency Services
• Five emergency room visits for life; and
• Two knee arthroscopies for life.
Attendant Care
• 15 hours per month from ages 25-60; and
• 40 hours per month from ages 61-82.
Wound Care
• Three regular visits; and
• Eight nursing visits.
Other
• A total gym;
• A power therapy table;
• Seven replacement power therapy tables;
• A portable shower bench;
• Seven replacement shower benches;
• A TENS unit;
• 14 replacement TENS units;
• A set of TENS unit electrodes;
• 227 replacement sets of TENS unit electrodes;
• A pair of Mobileg crutches;
• 14 replacement pairs of Mobileg crutches;
• A set of three resistance bands;
• 28 replacement sets of resistance bands;
• A set of two foam rollers;
• 56 replacement sets of foam rollers;
• A wheelchair; and
• Seven replacement wheelchairs.
The Court found credible the testimony of Carol Hyland regarding the cost of these items and services. As a result, the Court finds that, before conducting a present-value calculation, Palla's future economic damages are $2,912,344.63.
Neither party's economist conducted a present value calculation for this total, and the Court does not endeavor to render its own calculation. Using the spreadsheet attached as Exhibit 1 to these findings of fact and conclusions of law, the Court orders the parties to file supplemental reports with the Court that calculate the present value of the $2,912,344.63 award for future economic damages. The parties must use the same economists who testified at trial. Moreover, those economists must use the same methodologies used in their original reports and described to the Court. Alternatively, the parties may stipulate to the present value of the above-listed amount.
4. Past Non-economic Damages
Palla is also entitled to past non-economic damages. As both parties acknowledge, calculating non-economic damages is not an exact science. The Court must consider the relevant factors set forth in the Ninth Circuit's Model Civil Jury Instruction 5.2 and, bearing those factors in mind, determine what measure of damages will reasonably and fairly compensate Palla for her non-economic injury. Model Civ. Jury Instr. 9th Cir. 5.1. The testimony presented at trial indicated that Palla suffered varying levels of physical and emotional suffering during her accident, recovery, and acclimation to life as a transfemoral amputee. As discussed below, the Court assigns damages to those phases accordingly.
The most severe period of Palla's suffering, was, of course the accident itself, followed closely thereafter by five months spent in the hospital and at home in Portland recuperating from her injuries. The Court finds $5,500,000 reasonably and fairly compensates Palla for: (1) the fear and excruciating pain she experienced while caught in the boat's propeller; (2) for the time she spent in the hospital following her amputation—when she realized she lost her leg, began undergoing the first stages of recovery, and started experiencing her first, and most severe, bouts of phantom pain; (3) for her first two months in Portland, Oregon, during which she underwent three debridement surgeries and a skin graft and experienced the emotional suffering of coming to terms with her amputation, along with the severe physical pain of five wound dressing changes every day for nearly a month; and (4) for the remaining three months she spent recovering in Portland. Although the testimony does not indicate that this period of recovery was as physically and emotionally trying as the first two months, the Court does not find—as Defendant would have it—that the blogs Palla published and the interview she participated in reflect an absence of severe physical and emotional injury.
The Court further finds $2,500,000 reasonably and fairly compensates Palla for non-economic injuries she suffered from January 2017 through the date of this Order. The testimony at trial showed that, prior to her accident, Palla moved through the world as a physically- and socially-active, able-bodied, confident young woman, eager to embark on international travels and more than capable of taking on a demanding work schedule. The habits and routines she had established reflected her pre-accident capabilities. While the evidence supports the reasonable inference that Palla may lead a remarkable, accomplished life, it also supports the finding that she has had to dedicate much of the past three years to learning how to change those habits and routines to account for the fact that she now moves through the world differently. And as the testimony showed, this learning process has come with a significant amount of physical and emotional suffering. Among other things, Palla learned firsthand how driving and walking in the snow is different with two legs than it is with one; how revealing her disability subjects her to shame, while hiding elicits skepticism of her needs; how chronic pain and fatigue forces her to make sacrifices most young adults don't have to make; and how spontaneity is far less achievable when wholly relying on a prosthetic device for mobility. The Court finds the pain and suffering associated with restarting her life as someone with a transfemoral amputation was most pronounced in the first year Palla returned to work, but that it has continued to have significant impact on her life in the nearly two years since.
In total, the Court awards Palla $8,000,000 in total past non-economic damages.
5. Future Non-economic Damages
Plaintiff claims future non-economic damages. The Court finds Palla's future pain and suffering will be significant. She will always face reminders of the physical limitations that her disability places upon her life. Emotional pain aside, the testimony showed that, as a result of her injury, Palla is likely to suffer from some degree of physical pain for the rest of her life—phantom pain, pain in her residual limb, and pain in her contralateral muscles and joints. The Court must adequately compensate her for an injury whose effects will be felt for nearly six more decades.
But Palla is resilient. And while the Court does not penalize her for that resiliency, it must account for the evidence that showed Palla's ability to cope with the pain and suffering accompanying her disability is likely to improve with time up until the latter stages of her life when she will be much less mobile and at greater risk to injury due to a fall. As a result, the Court finds that $2,500,000 will reasonably and fairly compensate Palla's pain and suffering from December 2019 through December 2026; $2,000,000 will reasonably and fairly compensate her pain and suffering from January 2027 through December 2036; $2,000,000 will reasonably and fairly compensate her pain and suffering from January 2036 to December 2046; $2,000,000 will reasonably and fairly compensate her pain and suffering from January 2047 to December 2056; and $3,500,000 will reasonably and fairly compensate her pain and suffering from January 2057 to May 2076. In total, the Court awards Palla $12,000,000 in future non-economic damages.
B. Mitigation
In its closing argument, L M Sports argued the Court should reduce Palla's damages because she failed to mitigate them. L M Sports correctly argues plaintiffs have a duty to mitigate both economic and non-economic damages. See Gomez v. American Empress Ltd. Partnership, 189 F.3d 473 (9th Cir. 1999). Even so, a defendant arguing a plaintiff failed to mitigate damages bears the burden of proving two elements by a preponderance of the evidence: (1) that the plaintiff failed to use reasonable efforts to mitigate damages; and (2) the amount by which damages would have been mitigated. Model Civ. Jury Instr. 9th Cir. 5.3. The Court finds L M Sports failed to satisfy its burden.
L M Sports argues Palla's failure to make more concerted efforts toward attending to her physical and mental health amount to a failure to mitigate damages. It suggests Palla could have used the time she's spent traveling to acquire an orthopedist and a physiatrist in Philadelphia, attend physical therapy sessions, go to counseling, or join a support group. L M Sports also argues Palla's disavowal of prescription pain medication, cannabis, and CBD likewise reflect plaintiff's unwillingness to mitigate the harm she has suffered and continues to experience. Finally, it argues Palla has volitionally made life harder upon herself through the apartments she has chosen to live in and her refusal to request accommodations in airports or at work.
Although Defendant, Dr. Palla, Koeltl, and the Court might like to see Palla spend more time trying different modalities for physical and emotional relief, that is not the only question at hand. Rather, Defendant must also show that by engaging in these specific efforts, Palla would have, more likely than not, alleviated her injuries in some respect. See Model Civ. Jury Instr. 9th Cir. 5.3. This, L M Sports did not do. Palla testified she had, at various points, tried counseling, physical therapy, hypnosis, and a support group. She, then, gave reasoned, and unrefuted, explanations for why she did not find those services helpful. She explained that she foregoes prescription pain medications because of the physical effect they have on her and her fear of becoming dependent on them. She also need not explain why she has not yet experimented with substances that are still illegal under federal law.
The Court does not disagree with L M Sports's argument that Palla has not chosen the most intuitive living arrangements given her amputation. Even so, L M Sports failed to adduce any evidence that Palla had other, comparable housing options that, if chosen, would have likely reduced her non-economic damages. Likewise, it did not show what types of travel and work accommodation Palla could have sought out or how they would have eased her suffering, if requested.
In short, the Court agrees that Palla could have taken more reasonable efforts to mitigate her damages over the past two and a half years. But L M Sports fell far short of proving the amount by which damages would have been mitigated had she taken those efforts. Accordingly, the Court denies L M Sports's request to reduce Palla's damages on a failure-to-mitigate theory.
C. Joint and Several Liability
Finally, L M Sports argues that in an admiralty case like this, the law does not require the application of joint and several liability. But as the Supreme Court and the Ninth Circuit have indicated time and again, it is a "well-established principle" that joint and several liability applies in admiralty. McDermott, Inc. v. AmClyde, 511 U.S. 202, 220 (1994) ("[T]he well-established principle of joint and several liability . . . . was in no way abrogated by Reliable Transfer's proportionate fault approach."); see also Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 271 n.30 (1979); Lundquist v. U.S., 116 F.3d 1486 (9th Cir. 1997); see also Moreno v. Ross Island Sand & Gravel, Co., 704 Fed. Appx. 716 (9th Cir. 2017). Neither court has distinguished between cases involving commercial ventures and those involving recreational ones or alluded to the prudence of such a distinction. This Court sees no reason to do so now. The Court therefore finds that joint and several liability applies in this case.
III. CONCLUSIONS OF LAW AS TO DAMAGES
For the reasons set forth above, the Court concludes as follows:
1. Palla's past economic damages are $305,762.03.
2. Palla's non-adjusted future economic damages are $2,912,344.63
3. Palla's past non-economic damages are $8,000,000.
4. Palla's future non-economic damages are $12,000,000.
5. L M Sports did not show, by a preponderance of the evidence, that Palla failed to mitigate her damages.
6. L M Sports and Paul Garcia are jointly and severally liable.
IV. ORDER
The Court finds that Plaintiff Manisha Palla is entitled to recover $20,305,762.03 for past economic damages, past non-economic damages and future non-economic damages. Palla is also awarded the present value of $2,912,344.63 for future economic damages. Within 30 days of this Order, the parties must file supplemental reports from their economists calculating the present value of this amount. Alternatively, the parties may stipulate to a present value amount.
IT IS SO ORDERED. Dated: December 2, 2019
/s/_________
JOHN A. MENDEZ
United States District Judge
EXHIBIT 1
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