Articles Posted in Cervical Spinal Injury

The complainant also submits the affidavit of a chiropractor. The chiropractor conducted a computerized spinal range of motion exam and a computerized muscle strength test. The results of the tests indicated deviations from normal. The chiropractor states that in his opinion the complainant sustained spinal injuries and limitations to cervical range of motion. In addition, he opined that the herniated discs in complainant’s cervical spine, together with the resulting cervical radiculopathy and limitations to the cervical range of motion, are directly causally related to the automobile accident. He further states that it is possible that a pre-existing conditions, such as a degenerative conditions of the complainant’s spine related to his age, could be a factors which might have increased his vulnerable to the injury. However the factors by themselves would not be enough to explain the symptoms and limitations encountered during my examination and treatment of the complainant. Furthermore, it is his opinion that the injuries sustained by the complainant were such that they definitely and significantly reduced his functional capacity to perform his customary personal activities. The disabilities resulting from the complainant’s injuries manifested themselves following the accident and continued throughout the treatment of the complainant, and are likely to continue indefinitely.

The complainants also submitted the certified medical reports of another physician in support of their opposition to the opponent’s motion.

In reply to the complainants’ opposition, the opponent argue that in opposition, the complainant did not submit an affirmation from a treating physician, but rather came forward with the affirmation of the complainant’s treating chiropractor, which is insufficient to defeat the motion because he does not adequately address the complainant’s termination of treatment a year and half prior to chiropractor recent examination of the complainant, subsequent to the filing of the motion. The complainant’s chiropractor also does not address the two year gap in his treatment of the complainant which is less than two months after the spinal cord accident.

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This action arises from a motor vehicle accident occurred at approximately 5:30 p.m. The complainant asserts that the accident happened when his vehicle, moving slowly in stop, was struck in the rear by the opponent’s vehicle. The complainant claimed that the opponent admitted at his testimony that he did not see the complainant’s vehicle until the moment of collision and offered no explanation for the said incident other than his failure to pay attention to the road. The complainant asserts that the opponent was the negligent party and with that, he failed his duty to exercise reasonable care under the circumstances to avoid an accident. The complainant additionally argues that the opponent cannot come up with a non-negligent explanation for striking his vehicle.

In opposition to the complainant’s motion, the opponent argues that there were no brake lights illuminated on the complainant’s vehicle just before the accident.

Based on records, when the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle to exercise reasonable care to avoid colliding with the other vehicle. In addition, a rear-end collision with a stopped or stopping vehicle creates a case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to deny the inference of negligence by providing a non-negligent explanation for the collision. The vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. Lastly, the drivers must maintain safe distances between their cars and the cars in front of them and the rule imposes on them a duty to be aware of traffic conditions including stopped vehicles

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Well established is the rule that a jury may reject any testimony, including testimony of experts, even if not contradicted. Here, the Standard Jury Instruction which was appropriately read to the jury provides that the jury may accept expert witness opinion testimony, reject it, or give it the weight it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case. In other words, the jury was free to weigh and reject the testimony of the medical experts who opined that A’s injuries were caused, at least in part, by the automobile accident.

First, the court finds that the expert testimony conflicted with much of the lay testimony presented to the jury. In such cases, where expert testimony conflicts with lay testimony, the trial judge should defer to the jury to weigh the evidence.

Second, in addition to the medical experts, the jury heard testimony from several witnesses, including the plaintiffs, A and his wife. Evidence and testimony introduced at trial portrayed the accident as a mere fender-bender. The jury examined photographs depicting the damage to A’s vehicle, which was described by A as a crack or scrape on the back bumper. According to A, the total damage to his vehicle was estimated to be approximately $800, and at the time of trial or about 2 1/2 years after the accident, the damage to the bumper had not been repaired, and the vehicle was still being driven by A’s wife. Other testimony offered at trial demonstrated that A had an extensive medical history, which included a prior surgery, another automobile accident, and several significant medical diagnoses, and this was also testified to by A. A stated that he had undergone a prior cervical spinal fusion surgery in 1991, he had been in an automobile accident in 1998, in which he was ejected from the vehicle, and he had a back sprain shortly before the 2007 accident. In addition, medical records were introduced at trial revealing that A had visited a hospital in 2006, complaining of severe lower back pain, that A had visited the hospital less than a month before the 2007 accident, complaining of the same symptoms, and that he was taking the pain medication, Lortab, at the time of the 2007 accident. Through the testimony of the medical experts, the jury heard that A had a pre-existing degeneration of his cervical spine. On cross-examination, A revealed a number of other medical conditions affecting his overall health. A testified that he had been diagnosed with emphysema in the early 1970’s, and that he had been hospitalized four times in the year leading up to trial for breathing problems, clogged lungs, pneumonia, and cardiac surgery. Testimony introduced at trial also demonstrated inconsistencies in A’s story on material issues, placing his credibility into question. Regardless of A’s testimony regarding his extensive medical history and pre-existing medical conditions, and that he had not been employed since the 1970’s, he nonetheless testified that before the 2007 automobile accident he was able to work around the house, do carpentry work or mechanic work, and swim, run, and play with his grandkids; that after the 2007 accident, he was unable to engage in these activities. However, when A sought medical treatment following the 2007 accident, he failed to disclose to the treating physician that he had undergone a prior cervical spinal fusion surgery or that he had been involved in an earlier automobile accident. A disclosed the prior cervical spinal fusion surgery only upon inquiry by his neurosurgeon, who discovered indicia of an earlier surgery after reading the results of an MRI scan he had ordered of A’s spine. During trial, the jury observed A wearing a neck brace, but during the cross-examination of A’s neurosurgeon, the physician testified that there was no medical necessity for A to be wearing the neck brace. Thus, under the circumstances, the jury was entitled to judge A’s credibility, whether to accept or reject his testimony on all issues.

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The Facts of the Case:

Sometime in October 2007, an automobile accident occurred involving A and B, A being the injured victim. As a result of the accident, A suffered from a spinal injury. Consequently, A had to undergo a cervical spinal fusion surgery in September 2009. Thereafter, A filed a personal injury action against B and seeks recovery for the personal injuries he sustained. B did not contest his liability for causing the automobile accident, but argued that the accident was not the cause of A’s injury or need for medical treatment; that the nature of the automobile accident was only minor; that A’s medical history which included a prior cervical spinal fusion surgery in 1991, a 1998 automobile accident in which A was ejected from the vehicle, and diagnoses of emphysema and spinal degenerative disease were the main causes of A’s spinal injury. After a three-day trial, the jury returned a verdict in favor of B, finding that A had not suffered an injury as a result of the 2007 accident. A then filed a motion for a new trial and the trial court granted the motion. The trial court concluded that the jury’s verdict finding no causation was contrary to the manifest weight of the evidence in light of the testimony of the three expert medical witnesses, one of whom was a defense witness, who each opined that A’s personal injury and resulting surgery was caused at least in part by the 2007 accident; that while acknowledging B’s arguments and the evidence offered in support thereof, the trial court disregarded all lay testimony bearing on causation of A’s injuries; that the court expressly concluded that in the absence of expert testimony regarding accident reconstruction or other technical matters affecting causation for the injury, no reasonable juror would conclude no causation in light of the opinions of the three doctors; that with regard to A’s credibility, the court found, his credibility had little, if any, weight on the issue of causation in light of the uncontroverted opinions of the three informed and credible doctors; that with regard to A’s pre-existing spinal degeneration, the court again found the expert testimony to outweigh other evidence where no reasonable juror would conclude that degeneration, to the exclusion of the collision, was the cause of A’s injury in light of the testimony of the three doctors.

The Ruling of the Court:

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