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Vickers v. Olaes2/14/2005
At issue is an order granting a new trial to plaintiff Wesley Vickers in his suit for damages caused by an automobile accident for which the defendant admitted liability. Vickers claimed that the accident had caused a herniated disk, resulting in permanent disability, while the defendant argued that Vickers had back problems well before the accident.
Because the evidence would have supported pattern instructions on lighting up of a pre-existing condition and particular susceptibility to injury, and the trial court's failure to give these instructions may have prejudiced Vickers, we conclude the court did not abuse its discretion in ordering a new trial.
Wesley Vickers has been a transmission mechanic most of his life. Vickers was test-driving a repaired vehicle when he was struck by a car driven by defendant Irene Olaes. Olaes, who was going in the wrong direction down a one-way street, turned suddenly and crossed two lanes to crash into the front driver side of the vehicle Vickers was driving. The impact pushed Vickers into the curb and bent the frame of his vehicle so that he could not open the driver's side door. Neither vehicle was speeding. There were no other cars on the road at the time of the accident.
Vickers had a sore back and neck immediately following the accident. He returned to his shop, and his pain increased throughout the day. That evening, he went to the emergency room for treatment. The emergency room physicians diagnosed his pain as caused by muscle strain and predicted his symptoms would subside in a few days. About three weeks after the accident, he went to see his primary physician for follow up. This doctor also diagnosed Vickers' symptoms as resulting from muscle strain and predicted it would clear up in time. Neither the emergency room physicians nor Vickers' primary physician took x-rays of his back.
According to Vickers, the pain in his neck did go away after a short time, but the pain in his lower back 'never did get better.' Although Vickers was careful to refrain from activities that would aggravate the pain in his lower back, his pain did not go away. He claims that because of the injury, he was unable to continue working on transmissions and was forced to find replacements for himself in his new business. He has also had to give up physical activities that he used to enjoy with his children. About a year after the accident, Vickers went to see a registered nurse practitioner about the persisting pain in his lower back. The nurse ordered x-rays followed by a magnetic resonance image scan, or MRI. The MRI revealed that Vickers suffered from a herniated disc at his L5 vertebra, which is located in the lower back.
Vickers filed suit against Olaes, alleging that the automobile accident caused his herniated disc. Olaes admitted liability for the accident and thus the only issues for trial were causation and damages.
Vickers' expert witness, Dr. Herring, was unable to appear in court for trial because of a schedule conflict with his position as the team physician for the Seattle Seahawks. The jury watched his videotaped deposition in lieu of live testimony. Dr. Herring stated his opinion that Vickers' herniated disc, shown in the 2001 MRI film, resulted from the April 2000 automobile accident. He based this on Vickers' report of the sudden onset of pain he suffered after the accident and the continuing pain, as compared to the absence of pain and disability prior to the accident. He also testified that Vickers could have had a 'disc at risk' and the trauma from the accident 'developed the symptoms' that he was being seen for. He opined that Vickers' injuries were permanent and that his back pain would no
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