Shields v. Fafard

33 Pa. D. & C.5th 28
CourtPennsylvania Court of Common Pleas, Lackawanna County
DecidedAugust 23, 2013
DocketNo. 09 CV 8636
StatusPublished

This text of 33 Pa. D. & C.5th 28 (Shields v. Fafard) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lackawanna County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shields v. Fafard, 33 Pa. D. & C.5th 28 (Pa. Super. Ct. 2013).

Opinion

NEALON, J.,

Following a verdict of $3,720.00 in this admitted liability case, plaintiff has filed a motion for a new trial on the ground that the defense medical witness was allegedly permitted to testify beyond the fair scope of his pre-trial reports, in contravention of Pa.R.C.P. 4003.5(c), by discussing an MRI report dated May 9, 2009, and an office note authored by plaintiff’s treating physician on November 8, 2008. The trial record reflects that plaintiff failed to timely object to the defense witness’s original testimony concerning those matters, and in the process, waived her objections to that testimony. In addition, the expert’s pre-trial reports did reference the treating physician’s diagnosis and treatment of plaintiff and the fact that an MRI was ordered in May 2009, as a result of which plaintiff was not unfairly surprised by the expert’s reasonable explanation of his written words. More importantly, since plaintiff was subsequently able [30]*30to secure the medical testimony of an expert witness to rebut the defense expert’s opinions in that regard, she was not prejudiced by the admission of that testimony. Accordingly, her motion for a new will be denied.

I. FACTUAL BACKGROUND

(A) INTRODUCTION

This personal injury suit stems from an automobile accident which occurred on July 24,2008, when a vehicle operated by plaintiff, Marilynn Shields (“Shields”), was struck from behind by an automobile driven by defendant, Christina M. Fafard (“Fafard”). Fafard admitted liability for the accident, and a trial was conducted solely on the issue of damages. (Transcript of Proceedings (“T.P.”) on 4/2/13 at pp. 5-6,51-52). The parties presented conflicting medical testimony regarding the nature and extent of Shields’ injuries that were causally related to the accident, and since the defense medical expert witness conceded that the accident caused soft tissue sprains that resolved shortly thereafter, the jury was instructed that it “must at least award some damages for those undisputed injuries.” (T.P. 4/4/13 at p. 5).

Shields argued at trial that the accident caused a herniated disc at L4-5, required her to undergo a lumbar decompression discectomy, and resulted in permanent residual pain and disability. (T.P. 4/2/13 at pp. 24, 34, 36-39, 42-46; T.P. 4/4/13 at pp. 50-51, 63-69). She further asserted that since the L2-3 disc directly above her surgical site has been forced to bear a greater load following her surgery at the L3-4 and L4-5 levels, the L2-3 disc has become more stenotic and she has developed “next level syndrome.” (T.P. 4/4/13 at pp. 66-67). Shields sought to recover damages for unpaid, past medical expenses [31]*31totaling $5,952.50, projected future medical expenses of $221,000.00, past and future loss of earnings in the amount of $42,000.00, and past and future non-economic loss. (T.P. 4/4/13 atpp. 69-80).

Fafard maintained that the accident caused minor cervical and lumbosacral sprains and an exacerbation of pre-existing degenerative disc disease, which resolved within six weeks of the accident. (T.P. 4/4/13 at pp. 19-20, 32). Relying upon Shields’ extensive prior treatment for low back pain, including two pre-accident magnetic resonance imaging (“MRI”) scans, Fafard argued that Shields’ disc injury, surgery and continued pain were attributable to her longstanding “pre-existing condition that has evolved overtime.” (T.P. 4/2/13 atpp. 53, 55; T.P. 4/4/13 at pp. 21-22, 25-31). Characterizing the accident as a “very low speed minor impact,” (T.P. 4/2/13 at p. 54), Fafard asserted that only “about $500.00” of Shields’ past medical expenses were attributable to her accident-related injuries, (T.P. 4/4/13 at p. 39), and maintained that no damages should be awarded for any alleged loss of earnings. {Id. at pp. 37-38). Fafard submitted that Shields should be “compensated for the injury that she sustained as a result of this accident, but only as a result of this accident, not because she has continuing problems that are a progression of her pre-existing condition.” {Id. at p. 39).

(B) PRIOR INJURIES AND TREATMENT

Shields admitted during her trial testimony that prior to her accident on July 24, 2008, she was involved in automobile accidents on July 7,2006, and January 4,2007, and injured her neck and low back in those two earlier accidents. (T.P. 4/2/13 at pp. 65-66, 125-126, 130-131). Even prior to the first accident on July 7, 2006, Shields [32]*32was treating with a neurologist, Dr. Vithalbhai Dhaduk, for radiating low back pain that caused numbness and tingling in her legs. {Id. at pp. 128, 150). In March 2006, Dr. Dhaduk ordered an MRI scan and EMG/nerve conduction study of Shields’ low back, and also performed nerve block injections in her lumbar spine area. {Id. at pp. 128-129). The MRI that was conducted on March 11,2006, revealed broad based, right-sided disc bulging at L3-4 with mild canal stenosis and mild to moderate right-sided foraminal narrowing, broad based disc bulding at L4-5 with a small central disc protrusion causing moderate canal stenosis and mild bilateral foraminal narrowing, and advanced L5-S1 degenerative disc disease with spondylosis and facet hypertrophy resulting in mild to moderate bilateral foraminal narrowing. (Defendant’s exhibit no. 6).

Following her prior accidents in July 2006 and January 2007, Shields continued to treat with Dr. Dhaduk for radiating low back pain that caused numbness and tingling in her legs. (T.P. 4/2/13 atpp. 65-66,125-126,130-132). In May 2007, she sought treatment from another neurologist, Dr. Leroy J. Pelicci, who performed an additional EMG/ nerve conduction study. {Id. at pp. 132-133). On May 12, 2007, Shields had a second MRI scan performed, {Id. at pp. 135-135), which revealed “marked narrowing of the L3-L4 disc space” with “significant bilateral neural foraminal encroachment,” “prominent indentations upon the dural sac at L3-L4 and L4-L5 levels,” “concentric protrusion with a central extrusion indenting the dural sac” at the L4-L5 disc space causing a “mild to moderate degree of central canal stenosis,” and a “severely narrowed and desiccated” L5-S1 disc space with “severe degenerative changes of the intervertebral joints, as well as a concentric protrusion” that “extend[ed] within the neural foramina [33]*33creating a mild degree of encroachment of the structures.” (Defendant’s exhibit no. 1). On April 15, 2008, Shields’ primary care physician diagnosed her with fibromyalgia. (T.P. 4/2/13 at pp. 136-137). Approximately one month before the automobile accident with Fafard, Shields fell and broke her left foot. (Id. at pp. 138, 154).

On July 24, 2008, Shields was involved in the subject accident with Fafard. There was no visible damage to either car, and when Fafard contacted the police to report the accident, “the police said they weren’t going to come because no one was injured.” (T.P. 4/3/13 at pp. 22-24). Shields drove her vehicle from the accident scene and did not seek immediate medical treatment. (T.P. 4/2/13 at p. 79). She eventually treated with her primary care physician four days later on July 28, 2008. (Id. at pp. 80-81).1

(C) MEDICAL EVIDENCE

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33 Pa. D. & C.5th 28, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shields-v-fafard-pactcompllackaw-2013.