## Facts

- James DePass was struck by a car driven by a United States employee and suffered severe injuries, including traumatic below-the-knee amputation of his left leg.
- DePass sued the United States under the Federal Tort Claims Act; the government admitted liability, and the bench trial concerned damages only.
- DePass sought damages not only for physical injury and pain and suffering, but also for (1) increased risk of cardiovascular disease and (2) reduced life expectancy.
- DePass’s medical proof relied primarily on testimony from an internist, Dr. Jerome D. Cohen, who cited an epidemiological study of World War II traumatic amputees reporting a statistical association between traumatic amputation and later cardiovascular mortality.
- Dr. Cohen testified in probabilistic terms that DePass, as a traumatic amputee, faced a greater risk of cardiovascular disease and decreased life expectancy, but did not state that DePass would probably develop cardiovascular disease or would probably die earlier.
- On cross-examination, Dr. Cohen acknowledged awareness of contradictory studies he had not reviewed, conceded uncertainty about whether the cited study’s conclusions were correct, and acknowledged the study’s stated methodological limits.
- The district court awarded damages for the injury and for past and future pain and suffering, but denied damages for increased risk and reduced life expectancy as unproven.

## Issues

1. Whether the district court clearly erred in finding that DePass failed to prove, by a preponderance of the evidence, a compensable loss of life expectancy or cardiovascular injury based on increased risk.
2. Whether the United States was bound by the epidemiological study as a governmental admission establishing reduced life expectancy or compensable future harm.

## Decision

- The Seventh Circuit affirmed.
- The court held the district court’s finding of no proven loss of life expectancy or compensable future cardiovascular harm was not clearly erroneous under Federal Rule of Civil Procedure 52(a).
- The court rejected the argument that a government-sponsored epidemiological study operated as a binding admission requiring an award for future harm in an individual FTCA case.

## Legal Principles

- Under Rule 52(a), appellate review of bench-trial factfinding is for clear error; the trial judge may reject expert testimony and draw permissible inferences from the record even if the opposing party offers no contradictory expert.
- In FTCA actions, state substantive tort law governs damages; a plaintiff seeking damages for future disease or reduced life expectancy must prove the future harm is more likely than not to occur (or that life expectancy has actually been shortened), not merely that population-level risk has increased.
- Epidemiological evidence showing statistical association may be considered, but does not, without individualized proof, compel a finding of compensable future injury for a particular plaintiff.
- A government-related publication or study is not automatically a conclusive judicial admission binding the United States; at most it is evidence to be weighed with the rest of the record.

## Conclusion

The Seventh Circuit upheld the denial of damages for reduced life expectancy and increased cardiovascular risk because the plaintiff’s expert proof showed only a statistical increase in risk and contained acknowledged uncertainties, leaving the district court’s finding of no proven compensable future harm well within clear-error deference.


DePass v. United States, 721 F.2d 203 (7th Cir. 1983)