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Yohn v. Brandon9/27/2002
Plaintiff, Elizabeth Yohn, filed suit against defendants, Kenneth W. Brandon, as administrator for the estate of his minor daughter, Kristin Nicole Brandon, and their insurer, Assurance Company of America, for damages from a traffic accident. After a jury verdict that failed to award damages, the trial judge granted Ms. Yohn's motion for Judgment Notwithstanding the Verdict (JNOV) and awarded damages to her. Defendants appealed. Ms. Yohn answered the appeal and asked for an increase in the damage award. We reverse the JNOV, and reinstate the verdict of the jury.
FACTS AND PROCEDURAL BACKGROUND
On June 9, 1997, Ms. Brandon and Ms. Yohn were stopped at an intersection. Under the impression that Ms. Yohn's leading vehicle had moved forward, Ms. Brandon started forward. Unfortunately, Ms. Yohn's truck was stopped, and was hit in the rear by Ms. Brandon's vehicle. Ms. Yohn continued to work full time from the date of the accident until early in July of 1997.
On July 2, 1997, Ms. Yohn's truck hit a bump. The impact threw her cargo of uniforms onto the floor of the truck. She had to quickly re-hang her stock and continue with her route. Defendants alleged that this second injury to Ms. Yohn at work caused the damages sought.
At trial, Ms. Yohn testified that, from 1993 through 1997, she had seen a chiropractor "several times a year" for soreness in her back. On a form filled out for a physical therapist in August of 1997, she stated that she had experienced back pain for years. Although Ms. Yohn denied that she suffered any injury from the July 2nd incident, contradictory statements by Ms. Yohn appear in the medical record. At trial, she testified that the pain from the June accident worsened daily, which finally forced her to quit on July 2, 1997. She denied any connection between the July 2nd alleged injury and the fact that she quit working on that same day. In 1998, she tried a less strenuous job with the same employer, but was unable to meet the performance requirements. She testified that her continued pain from the June accident caused the problems with the second job.
Dr. Dale Rollette, a chiropractor, first saw Ms. Yohn on June 13, 1997. Ms. Yohn reported that she experienced neck soreness immediately after the June accident, and suffered back pain shortly thereafter. Dr. Rollette testified that he found some objective signs of Ms. Yohn's complaints of neck and back pain. However, she also told Dr. Rollette that it was the low back pain that brought her in for treatment. Dr. Rollette advised Ms. Yohn to stop working, but she continued to work full time until early July of 1997. Although Ms. Yohn denied it, Dr. Rollette's records of July 2, 1997, contain a report by Ms. Yohn to his office that she strained her back at work, and had missed her appointment for that reason. Although Dr. Rollette did not classify the July 2nd incident as a new injury , he stated that the July 2nd incident did not help the June injury.
Dr. Roch Hontas, an orthopedic surgeon, first saw Ms. Yohn on July 24, 1997. Dr. Hontas testified that on the first visit, a little over a month after the June accident, Ms. Yohn reported that the neck pain had almost completely resolved, and her primary complaint was her lower back.
Although contradicted by Ms. Yohn, Dr. Hontas testified that, based on her preliminary complaints, he did not examine her neck. Upon examination, he did find spasm in her lower right back. Again in contradiction of Ms. Yohn's testimony, Dr. Hontas testified that she reported to him that she was responding well to treatment until July 2, 1997. A nurse's note in Dr. Hontas's records stated that Ms. Yohn went to Dr. Rollette after the fi
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