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Stacks v. Travelers Property Casualty3/1/2001
e did agree with Dr. Weinert that pre-June 1997 imaging studies disclosed no evidence of disk protrusion. (Id. at 64-65.) He believed he would have noted prior evidence of a disk protrusion if such existed, testifying: "My guess is that either it wasn't there on previous ones or those studies just weren't done. But I don't remember." (Id. at 65.)
However, based on his observations of the C3-4 disk during surgery, Dr. Gorsuch suspected the C3-4 condition had been present for more than a couple of months, which means it predated Stacks' May 1997 fall. He testified that the dura appeared very toughened, suggesting chronic irritation and compression. (Id. at 30-31.) In the doctor's experience, the appearance of the disk indicated a problem of more than two months duration, which in turn suggested the May 10th fall did not cause the condition. But, on a more probable-than-not basis, Dr. Gorsuch could not say that the disk condition antedated the May fall. (Id. at 31-34.)
Dr. Gorsuch testified that it was difficult to determine causation or aggravation with respect to Stacks' other cervical abnormalities:
Q. You've testified that the foramenon (phonetic) performed on Mr. Stacks' cervical spine, you believe those were due to - - rather than the May 10th fall, that's due to pre-existing degenerative problems rather than the May 10th, '97 fall itself?
A. The radiologic changes I would not attribute to the May 10th, '97 fall. The exacerbation of symptoms is a different issue. He says he was worse after the fall; therefore, I think he was exacerbated. It was a later exacerbation that precipitated the move to surgery. I don't know if that later exacerbation, when the left arm started going worse, was related to the fall or not.
THE COURT: I'm totally confused here. Is there something that occurred between May 10th of 1997 and June 5 of 1997 that I'm not aware of?
THE WITNESS: As far as an injury, I'm not aware of anything. His symptoms changed.
THE COURT: Between May 10th and June 5?
THE WITNESS: Yes, his spine was changed.
THE COURT: And that's all you mean when you talk about exacerbation?
THE WITNESS: Yes. This guy's spine is like a house of cards. You might be able to take one card out and the house will still stand, but it's impossible to know which card. These injuries are like taking a particular card out. I don't know how on earth to apportion causality in him. (Id. at 78-80, emphasis added.)
Because Dr. Gorsuch's testimony did not neatly fit into legal criteria governing injuries and aggravations, with the consent of counsel, I attempted to determine how his opinions fit the legal criteria, asking whether the May 1997 accident caused a permanent worsening of Stacks' neck condition or hastened the need for new or additional treatment. The following testimony is the result of my attempt to pin these matters down:
BY THE COURT: Q. Let's ask the pathological problem or the physiological. Do you have an opinion as to whether or not the May 10th, 1997 fall materially worsened Mr. Stacks' physical condition vis-a-vis his cervical spine
A. No.
Q. You have no opinion on that?
A. Correct.
Q. Do you have an opinion as to whether or not it materially worsened his condition vis-a-vis symptoms or acceleration of required treatment? Let's just talk about symptoms.
A. For the neck?
Q. Yes.
A. No. Let me back up. Yes, I do have an opinion.
Q. What is that opinion?
A. That it increased his symptomatology.
Q. On a permanen
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