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Topp v. Leffers10/21/2005
FOR PUBLICATION
Yvonne Topp appeals the trial court's grant of Sarah Leffers' motion for a directed verdict in Topp's personal injury action against Leffers. We affirm.
Issue
Topp raises three issues for our review, which we consolidate and restate as whether the trial court properly granted Leffers' motion for a directed verdict.
Facts and Procedural History
On November 24, 2000, Topp was sitting in the front passenger seat of a vehicle driven by David Marks that was stopped at a stoplight. Leffers failed to stop at the stoplight, and her car rear-ended Topp's vehicle. When Leffers' vehicle hit Topp's car, Topp hit her head, which caused her to immediately feel intense pain. Emergency medical technicians arrived on the scene and wanted to take Topp to the hospital, but she refused. Topp then went home and took some Tylenol because her head was hurting.
The next day, Topp testified that she had pain in her neck, mid-back, and lower back. On November 28, 2000, Topp called Dr. George Joachim, a chiropractor, and scheduled an appointment for the following day. Topp had previously treated with Dr. Joachim in April, May, and June of 2000 for pain in her neck, mid-back, and lower back. During her initial visits with Dr. Joachim, Topp informed Dr. Joachim that she had been involved in several automobile accidents. She could not remember the exact number of accidents, but stated that it was less than five. Between November 2000 and May 2001, Topp treated solely with Dr. Joachim.
On May 10, 2001, Topp met with Dr. Eric Schreier, who had been referred to her by Dr. Joachim. After examining Topp, Dr. Schreier wrote, "This examination and history in this 54-year-old woman reveals evidence for subacute chronic mechanical spinal dysfunction, apparently due to the motor vehicle accident." Appellant's Appendix at 153. Topp treated with Dr. Schreier approximately ten times. At one point, Dr. Schreier wrote that Topp "appears to have occipital neuralgia from a motor vehicle accident." Id. at 155. In a letter dated March 13, 2003, Dr. Schreier noted that he "first saw [Topp] in physical medicine clinic on 5/10/01 due to complaints suffered in a motor vehicle accident injury 11/24/00." Id. at 156.
On July 24, 2002, Topp filed her complaint in which she alleged that Leffers had committed negligence when she rear-ended Topp's vehicle. Topp sought damages only for the aggravation of her pre-existing injuries from prior accidents.
On November 20, 2003, Dr. Mark Reecer conducted an independent medical examination of Topp. After examining Topp and reviewing her medical records, Dr. Reecer issued a report in which he stated:
Ms. Topp clearly had pre-existing history of back complaints. According to Ms. Topp, she states that she treated with a chiropractor before the accident but her symptoms were better prior to the accident of November 24, 2000. In reviewing the records, this does not appear to be the case. In fact, the chiropractor was recommending that the patient come more often so that they could get her symptoms under control.
There is also a reported history of multiple motor vehicle accidents. Ms. Topp indicates that she has been in several but it is less than five. She denies any tests or treatment for these accidents. This was noted in the chiropractic records as well. I do not have any other records which indicate any treatment was provided after these accidents.
Ms. Topp had prior spine complaints which could possibly have been aggravated by the accident. There certainly was an increase in the frequency of chiropractic treatments after the accident occurred.
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