Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 1 of 15 PageID #:
`383
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF MAINE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`No. 1:23-cv-00027-SDN
`
`
`
`
`JANET PALMER as Personal,
`
`Representative of the Estate
`
`of Roy C. Palmer,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`FINDINGS OF FACT AND CONCLUSIONS OF LAW
`
`Janet Palmer as personal representative of the estate of her late husband, Roy
`
`Palmer, brings this medical malpractice wrongful death case against the United States
`
`pursuant to the Federal Tort Claims Act (“FTCA”). Mrs. Palmer filed her Complaint on
`
`January 12, 2023 (ECF No. 1). The Government admits that through the conduct of its
`
`employees and agents, while acting within the scope of their employment, it was negligent
`
`in its care and treatment of Mr. Palmer during his hospitalization at the Togus VA Medical
`
`Center (the “Togus VA”) in Augusta, Maine, from April 6 to April 9, 2020. The parties
`
`agree that this negligence proximately caused Mr. Palmer’s cardiac arrest on April 9,
`
`2020, at the Togus VA and ultimately his death on April 30, 2020. The parties stipulate
`
`that Mr. Palmer’s pecuniary losses total $453,066.71. The Court held a bench trial, see 28
`
`U.S.C. § 2402, on January 27, 28, and 29, 2025, to determine the appropriate measure of
`
`damages for Mrs. Palmer’s loss of the comfort, society, and companionship of Mr. Palmer
`
`and for Mr. Palmer’s conscious pain and suffering that he experienced between April 9,
`
`2020, and April 30, 2020. The parties agree Mr. Palmer suffered conscious pain and
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 2 of 15 PageID #:
`384
`
`suffering for a total of thirteen days within the twenty-one-day period between his cardiac
`
`arrest and his death. At trial, the Court heard the testimony of Plaintiff’s expert witness,
`
`Dr. Stephan Mayer, and the Government’s expert witness, Dr. Jeffrey Cohen. The Court
`
`also heard the testimony of fact witnesses Mrs. Palmer and Timothy Hutchinson, Jr., Mr.
`
`Palmer’s grandson. Having carefully considered the evidence, I make the following
`
`findings of fact and conclusions of law.
`
`I.
`
`Findings of Fact
`
`Mr. Palmer was a veteran who served in the U.S. Army from August 31, 1970, to
`
`March 16, 1972. He was honorably discharged from the U.S. Army in March 1972.
`
`Roy and Janet Palmer began a romantic relationship in May 2009 and started
`
`living together in October 2009. The Palmers married on October 18, 2016. Mr. and Mrs.
`
`Palmer had a loving partnership and enjoyed intimate relations throughout their
`
`relationship and marriage. The Palmers enjoyed spending time together doing activities
`
`such as taking walks outside, taking day trips, annually attending the Fryeburg Fair,
`
`playing bingo, cooking and sharing meals together, celebrating holidays and birthdays
`
`with family, and watching TV together, including NCIS, Chicago Fire, and televised
`
`NASCAR races.
`
`On April 6, 2020, Mr. Palmer drove to the Togus VA with complaints of abdominal
`
`pain in the epigastric/peri-umbilical region. He was admitted to the Togus VA that day.
`
`On April 6, 2020, at 3:40 PM, a Togus VA hospitalist entered an order for Mr. Palmer to
`
`receive one milligram of intravenous (“IV”) hydromorphone, an opioid, every two hours
`
`as needed. As of April 6, 2020, Mr. Palmer had not been prescribed any opioids for at
`
`least two years.
`
` 
`
`2 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 3 of 15 PageID #:
`385
`
`On April 7, 2020, Mr. Palmer continued to report pain. On April 7, 2020, at 02:03
`
`AM, a Togus VA hospitalist entered a new order for Mr. Palmer to receive an immediate
`
`dose of two milligrams of IV hydromorphone and then receive two milligrams of IV
`
`hydromorphone every two hours as needed. If administered every two hours per this
`
`order, Mr. Palmer would receive twenty-four milligrams of IV hydromorphone in one
`
`twenty-four-hour period. As such, this dosage of hydromorphone triggered an automatic
`
`“alert” in the electronic medical system that notified the Togus VA hospitalist that the
`
`order would result in Mr. Palmer receiving more than the sixteen-milligram maximum
`
`daily dosage for hydromorphone. The Togus VA hospitalist manually overrode the alert.
`
`On April 7, 2020, Mr. Palmer received a total of sixteen milligrams of IV hydromorphone.
`
`On April 8, 2020, Mr. Palmer received a total of twenty milligrams of IV
`
`hydromorphone. On April 8, 2020, at 11:07 PM, a different Togus VA hospitalist ordered
`
`thirty milligrams of Oxazepam, a benzodiazepine. Hydromorphone and Oxazepam have
`
`box warnings (formerly known as Black Box Warnings) specifically warning that the use
`
`of benzodiazepines and opioids together may result in profound sedation, respiratory
`
`depression, coma, and death. Box warnings are the highest safety-related warning that
`
`the Food and Drug Administration assigns to medications.
`
`On April 9, 2020, at 12:12 AM, Mr. Palmer received thirty milligrams of Oxazepam.
`
`On April 9, 2020, at 01:58 AM and again at 04:12 AM, Mr. Palmer received two additional
`
`doses of IV hydromorphone (two milligrams each). On April 9, 2020, at 12:10 AM, Mr.
`
`Palmer’s oxygen saturation level was 90%. After receiving both IV hydromorphone and
`
`Oxazepam early on April 9, 2020, Mr. Palmer’s blood pressure dropped: at 12:10 AM, it
`
`was 172/84; at 02:06 AM, it was 109/71; at 04:21 AM, it was 103/62. During the time he
`
` 
`
`3 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 4 of 15 PageID #:
`386
`
`was treated at the Togus VA, Mr. Palmer was admitted to 4 South, a fourteen-bed overflow
`
`medical-surgical unit and did not have access to continuous vital sign monitoring.
`
`On April 9, 2020, at 05:35 AM, Mr. Palmer was found not breathing and his heart
`
`was in asystole. The administered overdose of opioids (hydromorphone) in combination
`
`with a benzodiazepine (Oxazepam) caused Mr. Palmer to experience a respiratory driven
`
`cardiac arrest. His providers performed CPR until his pulse returned. Four minutes after
`
`his pulse returned, Mr. Palmer was intubated. After he was resuscitated, Mr. Palmer was
`
`transferred to Maine Medical Center (“MMC”) in Portland on April 9, 2020.
`
`When he arrived at MMC,1 Mr. Palmer was diagnosed with “[c]ardiac arrest most
`
`likely secondary to hypoxia2 from respiratory arrest following receiving high doses of
`
`benzos/opiates [sic].” After Mr. Palmer was transferred from the Togus VA to MMC,
`
`medical providers at MMC induced therapeutic hypothermia to attempt to reduce brain
`
`cell damage.3 Because of COVID-19 restrictions, no family members, including Mrs.
`
`Palmer, were permitted to see Mr. Palmer on April 9, 2020, or any day thereafter with
`
`one exception.
`
`Both parties’ experts reviewed Mr. Palmer’s medical records beginning with his
`
`visit to the Togus VA on April 6, 2020, to his admission to MMC on April 9, 2020, and
`
`through the end of Mr. Palmer’s life on April 30, 2020, to evaluate whether and to what
`
`extent Mr. Palmer experienced conscious pain and suffering from the time of his cardiac
`
`arrest until his death. As evidence of consciousness, both experts looked to Mr. Palmer’s
`
` 
`1 Both experts agreed that MMC provided Mr. Palmer with excellent care throughout his time at MMC.  
`2 Hypoxia occurs when there is “a deficiency of oxygen reaching the tissues of the body.” Hypoxia, Merriam-
`Webster, https://perma.cc/T7P8-XNY2.
`3 Dr. Mayer explained that therapeutic hypothermia is employed to protect brain cells that have been
`injured by oxygen deprivation because the damage is greater at higher body temperatures and lowering the
`body temperature reduces the risk of damage.
`
` 
`
`4 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 5 of 15 PageID #:
`387
`
`ability to follow commands. Dr. Mayer described consciousness as awareness of the self
`
`and the environment that is mediated by the cortex or supratentorial4 region of the brain
`
`(as opposed to the brain stem which controls autonomic functioning such as breathing).
`
`According to Dr. Mayer, following commands is evidence of consciousness because
`
`following a simple command requires hearing the command, understanding it, initiating
`
`a volitional response to the command, and performing the response. Dr. Mayer described
`
`following commands as evidence that demonstrates the “neurological circuitry” in the
`
`cortex is working. Dr. Cohen described consciousness as the ability to respond to external
`
`stimuli and also relied on notations of Mr. Palmer’s ability to follow commands as
`
`evidence of consciousness.
`
`Both expert witnesses agreed that Mr. Palmer experienced periods of both
`
`consciousness and unconsciousness throughout his treatment at MMC and both expert
`
`witnesses further agreed that Mr. Palmer never regained fully functioning or normal
`
`consciousness after his cardiac arrest. Dr. Mayer described Mr. Palmer’s consciousness
`
`as liminal,5 inconsistent, and in a grey zone. Dr. Cohen described Mr. Palmer’s
`
`consciousness as fluctuating and waxing and waning throughout his time at MMC and
`
`analogized the ability to feel pain at such a level of consciousness as that of the ability of
`
`one who has drank excessive amounts of alcohol. Both expert witnesses agreed that it is
`
` 
`4 “Supratentorial” denotes “cranial contents located above the tentorium cerebelli,” Supratentorial,
`Stedman’s Medical Dictionary 868210 (28th ed.), which itself is a
`strong fold of dura mater roofing over the posterior cranial fossa with an anterior median
`opening, the tentorial notch, through which the midbrain passes; the tentorium cerebelli is
`attached along the midline to the falx cerebri and separates the cerebellum from the
`inferior surface of the occipital and temporal lobes of the cerebral hemisphere.
`Tentorium cerebelli, Stedman’s Medical Dictionary 902470 (28th ed.).
`5 “Liminal” means “of, relating to, or situated at a sensory threshold[;] barely perceptible or capable of
`eliciting a response.” Liminal, Merriam-Webster, https://perma.cc/MV5Z-EY3X.
`5 
`
` 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 6 of 15 PageID #:
`388
`
`more likely than not that Mr. Palmer did experience conscious pain and suffering between
`
`April 12 and April 18, and between April 22 to April 27, a total of thirteen days.
`
`The experts agreed that Mr. Palmer did not experience any degree of
`
`consciousness, and therefore did not experience conscious pain and suffering, on April 9,
`
`2020. On April 10, 2020, Mr. Palmer remained intubated and heavily sedated at MMC’s
`
`Intensive Care Unit (“ICU”) where he had a central venous catheter, an arterial line, a
`
`nasogastric tube, and an indwelling urinary catheter. Mr. Palmer did not experience
`
`conscious pain and suffering on April 10, 2020.
`
`On April 11, 2020, after Mr. Palmer’s period of therapeutic hypothermia was
`
`complete and while Mr. Palmer was still intubated, his medical providers began
`
`performing “wake ups” or “sedation vacations” every two hours in which they would stop
`
`his sedation and evaluate his neurologic status by checking his response to painful stimuli
`
`and commands. During wake ups on April 11, 2020, Mr. Palmer was observed to be
`
`uncomfortable, severely shivering, coughing in response to the intubation, and
`
`experiencing myoclonus, which are sudden, involuntary muscle jerks, spasms, and
`
`twitches. Mr. Palmer did not respond to commands on April 11, therefore neither expert
`
`concluded, under a more likely than not standard, that Mr. Palmer was conscious on April
`
`11, 2020.
`
`During wake ups on April 12, 2020, Mr. Palmer regained consciousness as
`
`evidenced by his ability to give a thumbs up in response to command, which was
`
`reproducible. When Mr. Palmer was conscious and off all sedation, medical staff observed
`
`him to be agitated and coughing around his intubation tube with an elevated heart rate
`
`and blood pressure. As a result of his suffering and distress, a new order was entered for
`
`Mr. Palmer to receive sedative medication.
`
` 
`
`6 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 7 of 15 PageID #:
`389
`
`Both experts testified that simply being in the ICU is distressing for patients
`
`because of the unusual and unfamiliar ICU environment, being connected to monitors,
`
`IVs, and catheters, strange alarms and beeping noises, disorientation from losing track of
`
`time, and isolation from loved ones. In addition, ICU patients can experience post-
`
`intensive care syndrome, which shares symptoms with post-traumatic stress disorder.
`
`Both experts agreed that Mr. Palmer was conscious for at least portions of each day
`
`from April 12, 2020, through April 18, 2020, because he was following commands. Mr.
`
`Palmer likely was awake for about four to six hours on each day he was conscious. During
`
`the April 12 through April 18 period of consciousness, Mr. Palmer experienced pain,
`
`suffering, and distress from the following: periods of increased myoclonus and shivering;
`
`coughing around his breathing tube during periods of decreased sedation; receiving
`
`multiple enemas and undergoing a rectal exam; the indwelling catheter and central
`
`venous catheter; being trapped in an unfamiliar environment with an intubation tube
`
`down his throat; being poked and prodded by strangers; being unable to communicate;
`
`and being isolated from Mrs. Palmer and all other family and friends. Medical providers
`
`at MMC treated his pain, distress, and agitation with sedatives and pain medication when
`
`he appeared agitated, uncomfortable, or in pain. There are notations throughout Mr.
`
`Palmer’s MMC medical records noting times when he appeared uncomfortable or in pain
`
`and also times when he appeared comfortable or denied being in pain.
`
`On April 13, 2020, Mr. Palmer remained intubated but his ventilator was on
`
`continuous positive airway pressure (“CPAP”) mode. In CPAP mode, the patient is doing
`
`most of the work of air movement and breathing. If the patient can tolerate CPAP mode
`
`for a prolonged period of time, that indicates that it is time to extubate the patient.
`
` 
`
`7 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 8 of 15 PageID #:
`390
`
`On April 14, 2020, Mr. Palmer remained intubated on CPAP mode. However, at
`
`10:50 AM, Mr. Palmer’s respiratory rate was abnormal and elevated, in the thirties,6 he
`
`was tachycardic7 with a heartrate in the 110s, and his oxygen saturation had decreased to
`
`the seventies. The respiratory therapist had to switch Mr. Palmer back to continuous
`
`mandatory ventilation. At 11:00 AM, medical staff observed Mr. Palmer to be agitated and
`
`choking on the intubation tube and trying to lift himself out of bed.
`
`Mr. Palmer was extubated on April 16, 2020, but he remained unable to verbally
`
`communicate. On April 17, 2020, at 8:30 PM, Mr. Palmer experienced suffering and
`
`distress because he could not breathe properly as a result of thick, white secretions
`
`blocking his airway. Because he was experiencing difficulty breathing, his respiratory rate
`
`increased to thirty to thirty-five breaths per minute, his accessory muscles were visibly in
`
`use, and providers attempted nasotracheal8 suctioning, but it was unsuccessful. Mr.
`
`Palmer’s inability to clear his secretions caused distress and caused him to experience a
`
`sensation akin to drowning.
`
`On April 18, 2020, Mr. Palmer remained unable to verbally communicate, but he
`
`was able to follow commands, demonstrating that he was conscious. Mr. Palmer’s medical
`
`providers found it difficult to balance reducing his myoclonus with sedatives against
`
`overly sedating him.
`
` 
`6 Dr. Mayer testified that a normal respiratory rate is between twelve and sixteen breaths per minute.
`7 “Tachycardic” means “relating to rapid heart rate.” Tachycardic, Stedman’s Medical Dictionary 895310
`(28th ed.).
`8 “Nasotracheal” means “of, relating to, being, or performed by means of intubation of the trachea by way
`of the nasal passage.” Nasotracheal, Merriam-Webster, https://perma.cc/G2R9-7RPH.
`8 
`
` 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 9 of 15 PageID #:
`391
`
`Despite demonstrating consciousness by following commands for the weeklong
`
`period of April 12 through April 18, 2020, Mr. Palmer was persistently somnolent9 three
`
`days in a row, from April 19 through April 21, 2020, and did not follow commands on any
`
`of those three days. Therefore the experts were unable to conclude that he was more likely
`
`than not conscious on any of those three days.
`
`On April 22, 2020, after medical providers withheld all sedation, Mr. Palmer’s
`
`somnolence improved slowly and he was able to follow commands, demonstrating
`
`consciousness. He could not verbally communicate and was limited to grunting in
`
`response to yes or no questions. Mr. Palmer was incontinent of urine and stool and
`
`required complete assistance from his medical team to clean him and replace his condom
`
`catheter. He continued to have difficulty breathing and clearing secretions. Mr. Palmer
`
`was observed to be coughing and moving his mouth toward the suction probe to suck up
`
`oral secretions.
`
`Mr. Palmer was conscious on April 23, 2020, as demonstrated by his ability to
`
`follow commands to move his upper and lower extremities. He could not verbally
`
`communicate, but he attempted to communicate by mouthing words, mumbling, and
`
`vocalizing intermittently. He continued to experience myoclonic jerks and twitching in
`
`his upper body.
`
`Because Mr. Palmer’s medical providers perceived he was improving, on April 24,
`
`2020, he was transferred out of the Special Care Unit and underwent surgery to have a
`
`feeding tube placed into his stomach. Because of COVID-19 restrictions, he had no family
`
` 
`9 According to Dr. Mayer, somnolence refers to appearing “sleepy and deactivated.” In this context,
`somnolence is not a normal, healthy sleep state because normal sleep is reversible; Mr. Palmer’s somnolent
`state was persistent despite efforts to engage him.
`
` 
`
`9 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 10 of 15 PageID #:
`392
`
`or friends present following the surgery to comfort him. He remained unable to
`
`communicate with words and could not effectively communicate his needs or ask for help.
`
`Mr. Palmer remained conscious on April 25 and April 26, 2020. He was on a bowel
`
`regimen to manage the regularity of his bowel movements and prevent constipation. Mr.
`
`Palmer continued to experience myoclonic jerking. On April 26, 2020, a nurse brought a
`
`phone near Mr. Palmer so Mrs. Palmer could speak to him, and Mr. Palmer immediately
`
`awoke from sleeping upon hearing Mrs. Palmer’s voice and attempted to lift his head. He
`
`attempted to speak to Mrs. Palmer, but he could not communicate using words.
`
`In the early morning of April 27, 2020, Mr. Palmer was observed performing
`
`intentional movements using both upper extremities, including wiping a tear from his left
`
`eye with his left hand. He also had improved ability to squeeze the nurse’s hand with his
`
`left hand and attempted communication with nods. He was incontinent of stool during a
`
`therapy session, requiring assistance from staff to clean him. He was moaning
`
`intermittently throughout his therapy sessions on April 27.
`
`As of April 28, 2020, Mr. Palmer’s cognitive state worsened as he was not able to
`
`follow commands and displayed only minimal withdrawal to painful stimuli. Because of
`
`this decline, Mrs. Palmer was permitted to see Mr. Palmer for the first time since he had
`
`been admitted to the Togus VA and subsequently MMC. She held his hand and talked to
`
`him. While she was at MMC, the attending physician met with Mrs. Palmer to discuss Mr.
`
`Palmer’s goals of care and explained that his “[c]hance of recovery seem[ed] poor given
`
`[the] lack of brainstem reflexes.” Mr. Palmer was not able to follow commands on April
`
`28 or any day thereafter through his death on April 30, 2020, therefore he was not able
`
`to experience conscious pain and suffering on those three days.
`
` 
`
`10 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 11 of 15 PageID #:
`393
`
`On April 29, 2020, Mrs. Palmer consented to move Mr. Palmer to hospice. On April
`
`30, 2020, Mrs. Palmer agreed to a Do Not Resuscitate order. On that same day, Mr.
`
`Palmer was transferred to Hospice of Southern Maine nursing care and passed away the
`
`same afternoon. Because of COVID-19 restrictions, during the twenty-one days Mr.
`
`Palmer was hospitalized at MMC, Mrs. Palmer was permitted to see Mr. Palmer only once,
`
`on April 28. Mrs. Palmer spent the rest of the time Mr. Palmer was hospitalized alone,
`
`waiting by the phone for daily updates about Mr. Palmer’s condition. Mrs. Palmer was
`
`forced to make difficult decisions about Mr. Palmer’s care.
`
`Prior to his hospitalization, Mr. and Mrs. Palmer talked about the future and
`
`looked forward to spending time together for years to come. Mr. Palmer was sixty-nine
`
`years old at the time of his death. The parties have stipulated that but for the United
`
`States’ negligence, Mr. Palmer would have lived another eleven years, to April 30, 2031.
`
`Mr. Palmer would have been eighty years old on April 30, 2031. Mrs. Palmer continues to
`
`mourn the loss of Mr. Palmer. She misses him and since his death, she carries wherever
`
`she goes a photograph of them on their wedding day so that Mr. Palmer is always close to
`
`her.
`
`II.
`
`Conclusions of Law
`
`Mrs. Palmer brings this suit under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq.
`
`Under the FTCA, the “law of the place” where the tortious acts or omissions occurred
`
`provides the substantive law. Id. § 1346(b)(1); Lozada-Manzano v. United States, 75
`
`F.4th 31, 38 (1st Cir. 2023). Here, the tortious conduct took place in Maine, so the Court
`
`applies Maine tort law to decide this FTCA action.
`
` 
`
`11 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 12 of 15 PageID #:
`394
`
`The Government concedes liability and economic damages,10 leaving for decision
`
`only those damages for Mrs. Palmer’s loss of the society, comfort, and companionship of
`
`Mr. Palmer and Mr. Palmer’s conscious pain and suffering. In Maine, “[t]ort
`
`damages . . . are intended to make the plaintiff whole by compensating him or her for any
`
`injuries or losses proximately caused by the defendant.” Estate of Hoch v. Stifel, 2011 ME
`
`24, ¶ 41, 16 A.3d 137 (quoting Reardon v. Lovely Dev., Inc., 2004 ME 74, ¶ 9, 852 A.2d
`
`66). It is the plaintiff’s burden to “establish[] facts from which the loss may be determined
`
`to a probability.” Snow v. Villaci, 2000 ME 127, ¶ 9, 754 A.2d 360 (quoting Currier v.
`
`Cyr, 570 A.2d 1205 (Me. 1990)). “[A] damage award must be supported by some evidence
`
`in the record, [but] the damages need not be proved to a mathematical certainty.”
`
`Palleschi v. Palleschi, 1998 ME 3, ¶ 6, 704 A.2d 383. “Damages that are ‘uncertain,
`
`contingent, or speculative’ are not recoverable.” Estate of Hoch, 2011 ME 24, ¶ 43, 16 A.3d
`
`137 (quoting Wood v. Bell, 2006 ME 98, ¶ 21, 902 A.2d 843). Mrs. Palmer’s damages for
`
`the loss of comfort, society, and companionship of Mr. Palmer are subject to a statutory
`
`cap of $750,000.11 18-C M.R.S. § 2-807(2) (2023), amended by P.L. 2023 ch. 390, § 3
`
`(effective Oct. 25, 2023). The amount of damages that may be awarded for Mr. Palmer’s
`
`conscious pain and suffering is not subject to any statutory limitation.
`
`A. Mr. Palmer’s Conscious Pain and Suffering
`
`The Government argues that the damages award for Mr. Palmer’s conscious pain
`
`and suffering should be “moderate” because he had diminished consciousness during his
`
` 
`10 The agreed-upon damages for Mr. Palmer’s economic damages are as follows: pecuniary losses are
`$453,066.71; medical expenses are $1,252.11; and funeral expenses are $1,096.00. The Court therefore
`awards to Plaintiff $455,414.82 for economic damages.
`11 The statutory cap has since been raised to $1,000,000 adjusted for inflation. 18-C M.R.S. § 2-807(2)
`(2024). However, this cause of action accrued before the statute was amended and the parties do not dispute
`that the $750,000 cap applies.
`
` 
`
`12 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 13 of 15 PageID #:
`395
`
`hospitalization at MMC, because the pain he felt was neither enduring nor severe due to
`
`the pain medication he received, and because the period of his conscious pain and
`
`suffering was relatively brief. To argue for a higher damages award, Mrs. Palmer points
`
`to damage amounts awarded for conscious pain and suffering in Maine and FTCA bench
`
`trials where the period of conscious suffering lasted only a few minutes.
`
`While it is true that Mr. Palmer was treated with pain medication such that his
`
`physical pain was neither severe nor enduring, the concept of conscious suffering includes
`
`more than just physical pain but also the mental anguish that accompanies the realities
`
`of the injury. Prior to entering the Togus VA for abdominal pain and ultimately being
`
`rendered unconscious by the Government’s negligence, Mr. Palmer could walk, talk, eat,
`
`and engage in all his normal activities of daily life. The next time he regained
`
`consciousness, he was at an entirely different hospital, intubated and hooked up to
`
`machines in the ICU, and unable to communicate. Mr. Palmer was isolated from Mrs.
`
`Palmer and all other family and friends throughout the rest of his conscious life.
`
`The process of awarding noneconomic damages “is inherently difficult because the
`
`alleged injury is a subjective, unliquidated, nonpecuniary loss.” Holcombe v. United
`
`States, 584 F. Supp. 3d 225, 287 (W.D. Tex. 2022). “[C]onverting feelings such as pain,
`
`suffering, and mental anguish into dollars is not an exact science.” Correa v. Hosp. San
`
`Francisco, 69 F.3d 1184, 1198 (1st Cir. 1995). In FTCA cases, courts often look to previous
`
`reported damage awards to determine the claimant’s recovery for noneconomic damages.
`
`Here, I carefully evaluated the comparative verdicts offered by Mrs. Palmer and the
`
`Government. See Pl.’s Legal Argument (ECF No. 62); Gov.’s Legal Argument (ECF No.
`
`63). Additionally, the Court has evaluated other comparison verdicts and, for older
`
`matters, considered the value of the dollar today relative to years ago. See Woodman v.
`
` 
`
`13 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 14 of 15 PageID #:
`396
`
`United States, 602 F. Supp. 3d 265, 301 (D.N.H. 2022). Because the facts of each case are
`
`remarkably different from each other, however, such comparison awards are of modicum
`
`assistance.
`
`After careful consideration, I will award Mr. Palmer, though his estate,
`
`$175,000.00 for his conscious pain, suffering and mental anguish.
`
`B. Mrs. Palmer’s Loss of Comfort, Society, and Companionship
`
`The Government argues the damages award for Mrs. Palmer’s loss of the comfort,
`
`society, and companionship of Mr. Palmer should be far below the statutory cap. The
`
`Government argues that Mr. Palmer’s life expectancy of eleven more years should cabin
`
`the damages compared to a loss of consortium claim for the loss of a younger person. Mrs.
`
`Palmer argues limiting her damages because of her and her late husband’s advanced ages
`
`would constitute age discrimination and is unfounded on the record showing the couple
`
`enjoyed an intimate and companionate relationship. Like all noneconomic damages, loss
`
`of consortium damages are “notoriously difficult to quantify.” Havinga v. Crowley
`
`Towing & Transp. Co., 24 F.3d 1480, 1484 (1st Cir. 1994). Because of the Government’s
`
`negligence, Mrs. Palmer has been and will continue to be deprived of the companionship,
`
`comfort, and society of Mr. Palmer. The evidence established that, but for the
`
`Government’s negligence, the couple would have continued for eleven more years to enjoy
`
`their time together going on walks, taking day trips, celebrating holidays with family, and
`
`watching TV. I will award Mrs. Palmer $750,000 for her loss of consortium claim.
`
`III. Conclusion
`
`It is accordingly ORDERED that judgment is awarded to Plaintiff Janet Palmer as
`
`personal representative of the Estate of Roy C. Palmer in the amount of $1,380,414.82.
`
` 
`
`14 
`
`

`

`Case 1:23-cv-00027-SDN Document 64 Filed 04/23/25 Page 15 of 15 PageID #:
`397
`
`Pursuant to 28 U.S.C. § 2678, attorney’s fees are limited to twenty-five percent of this
`
`Judgment.
`
`SO ORDERED.
`
`Dated this 23rd day of April, 2025.
`
`
`/s/ Stacey D. Neumann
`UNITED STATES DISTRICT JUDGE
`
`15 
`
`
`
`
`
` 
`
`