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Glamann v. Kirk8/17/2001
No. 5450
I. INTRODUCTION
David Glamann was injured when Gloria (Caler) Kirk's automobile rear-ended his automobile. Kirk admitted negligence but disputed the extent of her liability. Glamann did not respond to Kirk's $50,000 offer of judgment, and the case went to trial. A jury awarded Glamann $10,000.
Glamann appeals the trial court's decisions to: (1) admit evidence of malingering, (2) give an aggravating-cause jury instruction, (3) deny the motion for a new trial, (4) disallow Mary Glamann's wage loss claim, and (5) award Kirk attorney's fees. Because we conclude that the trial court did not err with respect to the first four issues and that any error with respect to the award of attorney's fees was harmless, we affirm the verdict and judgment.
II. FACTS AND PROCEEDINGS
On October 10, 1996, Glamann and Kirk were involved in an automobile collision in Kodiak. Kirk rear-ended Glamann's stopped truck. Glamann's truck then collided with another vehicle. Glamann was injured when his head struck the rear window of his truck's cab, but he did not lose consciousness. He was stabilized by medics and taken to Kodiak Island Hospital for x-rays. Dr. Kevin Creelman examined Glamann in the emergency room and diagnosed a scalp contusion and probable neck strain.
Glamann had a follow-up appointment with Dr. Creelman on October 15. Dr. Creelman prescribed physical therapy for Glamann. Glamann attended several sessions in October 1996. The therapist's notes from the final October session indicate that treatment would be discontinued, unless the symptoms returned, based on Glamann's report of having been headache-free since his last treatment.
Between the time of the collision and the end of December, Glamann was able to work a full schedule in his job as parts manager for PenAir. His next appointment with Dr. Creelman took place on December 20, based on a reoccurrence of headache pain following a long session splitting wood. Glamann then returned to physical therapy at the end of December. Glamann complained of headaches following certain activities, including those he enjoyed, such as shooting and woodsplitting. At that time, some three to four months after the collision, Dr. Creelman began prescribing various medications, including narcotic drugs.
In March 1997 Dr. Creelman referred Glamann to Dr. Leon Chandler, an anesthesiologist and pain management specialist, for an evaluation and report. Dr. Chandler determined that Glamann had incurred a flexion extension injury, or whiplash, in the collision, with cervical spine injuries that resulted in occipital headaches and occipital neuralgia. Dr. Chandler presented several options to Glamann for dealing with cervical pain. These included cryotherapy (freezing of the nerves at the base of the skull), occipital nerve blocks (injection of steroids and local anesthetics in the pain causing nerves), radio frequency lesions of the cervical nerves (cutting the nerve with a radio frequency lesion), and cervical epidural stimulator as a last resort. Over time, Glamann tried all but the epidural stimulator.
In October 1997 Glamann was referred by Dr. Creelman to the Virginia Mason Clinic in Seattle, Washington. Glamann was examined by a neurologist, Dr. Lynn Taylor. Glamann was also examined, at the suggestion of Dr. Taylor, in January 1998 by Dr. Leon Fordyce, a neuropsychologist at Virginia Mason.
The Glamanns filed suit against Kirk in December 1997, claiming that Kirk's negligent failure to stop her car caused the accident that injured Glamann and, consequently, his family. Kirk admitted fault for the collision, but she disputed the extent of
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