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Tenny v. Allen11/7/2003
Lois Tenny, the defendant in this personal injury action, appeals from the trial court's order which set aside the part of the jury verdict which found the plaintiff, Sandra Allen, had not sustained a permanent neck injury. The order also directed a verdict in favor of Allen on the issue of her permanent neck injury, and granted her a new trial solely on the issue of damages. We conclude the evidence presented at trial was sufficient to support the jury's determination that Allen suffered no permanent injury caused by the defendant's negligence. Accordingly, we reverse and remand with directions to reinstate the jury verdict.
In November of 1999, a van driven by Allen's husband collided with a vehicle driven by Tenny. Tenny admitted liability for having caused the accident. Allen was a passenger in the backseat of the van. About an hour or so after the accident, Allen went to the hospital, complaining of neck, back and wrist pain.
The emergency room physician who examined Allen described her condition as follows:
NECK/EXTREMITIES/BACK: Supple with no palpable fracture or deformity. No significant tenderness. She has full range of motion of her neck and shoulders. She can bend forward and nearly touch her toes and bend backwards without significant pain. He (sic) can do lateral bending without significant pain. She is able to walk, sit, and stand. Examination of the back does not reveal any significant tenderness. Straight leg raising is negative.
Allen was later seen by Dr. Hunter, who specializes in physical medicine and rehabilitation. Dr. Hunter concluded she had suffered a permanent neck and back injury as a result of the accident.
In June 2001, Allen filed this personal injury action against Tenny. Tenny stipulated to having caused the accident but disputed the permanency of Allen's injuries and damages.
On August 2, 2001, Allen's counsel took her deposition. Two weeks later, she died from lung cancer, a cause not related to the automobile accident. Her husband, Richard Allen, as personal representative, continued the lawsuit.
No live witnesses testified at the trial. The parties presented the following evidence: the depositions of Allen and Dr. Hunter; Allen's medical records; photographs of the Allen vehicle; an estimate to repair that vehicle for $507.68; a stipulation that Allen's unreimbursed medical expenses totaled $1,661.64; and Tenny's answer to an interrogatory stating repairs to her vehicle were estimated at $9,000.
In his deposition, Dr. Hunter stated he first saw Allen several weeks after the automobile accident. At this time she was complaining of headache and pain in her neck, left elbow, wrist and lower back. Her neck muscles were tight and she had decreased motion of neck movements.
On her next visit to Dr. Hunter, Allen had improved range of motion of her neck and back but continued to have neck tenderness with rigidity or muscle spasms. At her January 2000 visit, Allen brought x-rays with her which showed degenerative changes of her cervical spine.
At her February 2000 visit, Allen was still having problems with her neck and back. She also reported a new symptom -- when she tipped her neck and head backwards, she had a sharp, electrical feeling. These new complaints prompted Dr. Hunter to recommend an MRI for her neck and lower back and also a nerve test. The MRI showed Allen had two herniated discs in her neck. The nerve test showed no evidence of nerve-root damage to her neck.
At her next few visits, Allen was still having problems with her neck and back. At a visit in January 2001, Allen disclosed she had been diagnosed with lung cancer a
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