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Johnson v. Carbon9/24/1991
Leonard Johnson appeals the denial of his motion for a new trial of a personal injury action following a jury verdict awarding him $13,200, less 25 percent comparative fault for a net judgment of $9,900. He asserts the trial court erred (1) when it allowed questioning, testimony and argument on causation based on speculation, and (2) when it failed to grant a new trial based on juror misconduct. We affirm.
On May 20, 1985, Mr. Johnson was involved in an automobile collision with Carl Carbon in Spokane. Mr. Johnson did not seek or receive medical care that day. The
next day he contacted Dr. Hopwood, a general practitioner, and was given an appointment with Dr. Hopwood's assistant 4 days later. Mr. Johnson's injury was diagnosed as cervical shoulder strain. Dr. Hopwood first saw Mr. Johnson on June 28. Dr. Hopwood testified Mr. Johnson reported "his neck was better"; however, since going back to work in construction a week earlier, "he had been getting worse" in that " e was having sharp pain in the upper shoulder . . .". Dr. Hopwood did not restrict Mr. Johnson's work activities. Through November 1985, Mr. Johnson was seen by Dr. Hopwood, received physical therapy from Duffy Reedy, and participated in a variety of physical activities. These activities included carrying and nailing Sheetrock in his basement, playing basketball, running and shoveling snow. X-rays ordered by Dr. Hopwood in November 1985 showed a normal cervical spine with no evidence of bone injury.
On December 5, 1985, Dr. Hopwood ordered a CAT scan to determine if Mr. Johnson had any soft tissue injury . The CAT scan indicated a herniated disk. Mr. Reedy began to treat Mr. Johnson with traction, which was effective. On January 16, 1986, Mr. Johnson told Mr. Reedy his neck was still not what it was before "contact" basketball activity on January 13, 1986. On January 21, Mr. Johnson first reported shakes in his hand to Dr. Hopwood, who referred him to Dr. Gerber, a neurosurgeon. On January 22, Mr. Johnson had his last physical therapy treatment from Mr. Reedy. On January 31, Dr. Gerber examined Mr. Johnson and diagnosed a herniated disk. On July 28, Mr. Johnson was examined by a second neurosurgeon, Dr. Demakas, who performed a double cervical spine fusion on Mr. Johnson in September 1986.
Mr. Johnson was granted summary judgment of liability on the issue of failure to yield the right of way. Trial proceeded on the issues of proximate cause, comparative fault and damages. Before receiving evidence, the trial court heard Mr. Johnson's motion in limine to exclude questioning, testimony and argument concerning other "possible"
causes of his herniated disk. The trial court reserved ruling. During trial, Mr. Johnson renewed his motion. The trial court denied Mr. Johnson's motion after Mr. Carbon made an offer of proof he would present evidence through the testimony of Dr. Warren Adams, an orthopedic surgeon, the automobile accident did not cause Mr. Johnson's disk injury .
Two of Mr. Johnson's experts, Dr. Hopwood and Dr. Demakas, testified it was their opinion Mr. Johnson's herniated disk was caused by the automobile accident. Mr. Carbon's expert, Dr. Adams, testified there was no causal relationship between the accident and the herniated disk because signs and symptoms of nerve impingement would have presented themselves almost immediately or within a few days. Furthermore, he testified the physical therapy by Mr. Reedy and the physical activity by Mr. Johnson from the time of the accident up through the first part of December 1985 were not consistent with a herniated disk.
The jury returned a verdict for less than the amount offered by Mr. Carbon in settle
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