Well, I won another case at trial this month (two, actually, but this post only deals with the first trial).  I had a great client and a great jury.  Somewhat complicated knee condition, but the jury was attentive and understood the situation.  Rather than try to explain it all, I will simply post my Trial Memorandum below.  Note that the jury awarded all medical expenses to date, noneconomic damages, and a significant amount of punitive damages for the drunk driving aspect of the case.  Interestingly, the defendant denied that he was drunk, and further denied that he even struck my client (who was calling 911 to report the Defendant’s drunk driving at the time he was hit).

Here is the memo:

COMES NOW the plaintiff, Rocky Evans, by and through his attorney, Tim Williams, hereby submits his Trial Memorandum.

Issues Before the Jury.

This trial involves reckless endangerment and negligence claims stemming from an auto accident in which Defendant was driving drunk and struck Mr. Evans, a pedestrian at the time.  Defendant not only denies liability, but also denies the incident even happened, despite substantial evidence to the contrary.  However, medical experts agree that Mr. Evans suffered an injury as a result of this incident.  Therefore, the issues to be decided by the jury are those of liability and extent of damages, including medical expenses, wage loss, impaired earning capacity and noneconomic damages, as well as punitive damages.

Statement of Facts.

This action arises out of an incident that occurred on April 11, 2008, at Niblick and Greene’s, a tavern at the Eagle Crest Resort in Redmond.  At about 8:45 p.m., Mr. Evans was leaving the establishment when he saw Defendant engaged in a physical altercation with another patron.  Mr. Evans watched Defendant – who has admitted to drinking alcohol before this incident – strike the patron, pushing him into Mr. Evans before falling to the floor.  Defendant then rushed out of the tavern into the parking lot.  Mr. Evans also left the restaurant and walked into the parking lot area.

Defendant thereafter began yelling obscenities as he turned around and approached Mr. Evans, threatening to harm Mr. Evans.  This led to a heated verbal exchange.  Defendant then walked to his minivan, prompting a warning from Mr. Evans that he would call the authorities to make a DUII report if Defendant attempted to drive.  Nonetheless, Defendant got into his van and began to pull out of his parking space, so Mr. Evans pulled out his phone to dial 911.

Mr. Evans walked to the front of Defendant’s van to get the license plate number to report the DUII to the 911 operator.  Defendant then began to drive in short bursts toward Plaintiff, in an apparent attempt to scare him away.  On Defendant’s final lurch forward, his vehicle struck Mr. Evans’ right knee, pinning his leg between the van and a Toyota Prius.  Defendant then tore out of the parking lot at high speed.  Mr. Evans immediately called Deschutes County 911 and reported the hit-and-run to dispatch.

Trial Exhibit 6 - Scene of the Injury

Deschutes County Sheriff’s deputies responded to the scene and, after taking witness statements, tracked Defendant down at his home in Eagle Crest.  After a brief investigation, Defendant was arrested and taken to jail.  Notably, Defendant refused both a field sobriety test, as well as a breathalyzer test at the sheriff’s office.  Defendant was subsequently charged by the Deschutes County District Attorney’s Office with DUII, Recklessly Endangering Another and Refusal to Take a Breath Test in Deschutes County Circuit Court, Case No. MI082434.  On July 27, 2009, Defendant pleaded no contest to the DUII charge and entered into a diversion program which resulted in the charges against him being dismissed.

As a result of this incident, Mr. Evans sustained right knee trauma, and has been diagnosed with a plica injury.  He underwent conservative treatment, including steroid, cortisone and joint-replacement fluid injections as well as physical therapy, before resigning himself to living with knee pain.  Nearly four years after this incident, the pain in his knee causes him to walk in a way witness can only describe as a “hobble.”  Mr. Evans has been advised that he will need surgical intervention in the future to address his injuries.  His treatment thus far has resulted in $8,350.10 in medical expenses.

Because of his injuries, Mr. Evans, who is self employed at his concrete business, was unable to work at times.  In addition, Mr. Evans has had to reduce the amount of work he does and hire help to finish the jobs he continues to take – jobs he was once able to do on his own.  As a result, he has sustained $7,989 in lost wages, primarily for replacement help hired during the first several months following the accident.  Further, because Mr. Evans cannot perform work in the manner he once could, he has had an impairment of his earning capacity.  Current mortality tables give him an additional 43.3 years of life, and Mr. Evans plans to work as long as he is able.  While he is hopeful that a future surgery will cure his injuries, Mr. Evans seeks compensation for his impaired earning capacity in the amount of $50,000.

Retired orthopedic surgeon Dr. Tom Carlsen, who specialized for 26 years in treating injuries to the knee, shoulder and ankle, will testify at trial.   Dr. Carlsen has determined that Mr. Evans’ injuries are permanent, not likely to improve on their own, and will necessitate further treatment, including surgery.  Defendant’s doctor has conditionally opined that Mr. Evans’ accident-related injuries resolved by March 2009, though his only basis for that opinion is that Mr. Evans had stopped frequent medical treatment in March 2009.  Defendant’s doctor further states that Mr. Evans’ current condition could be related to cystic degeneration of the patellar tendon.  Dr. Carlsen will address both of these erroneous opinions at trial.

Trial Exhibit 10 - Right Knee

In addition to the expected pain, anxiety, and frustration caused by his injuries, Mr. Evans also experienced a significant impact on his life.  Once an avid outdoorsman, Mr. Evans can no longer walk the required distances to go hunting or camping in his favorite remote locations.  He has difficulty maneuvering on a boat so fishing from anywhere other than the shore is not really an option for him.  His friends and coworkers describe him as “hobbling around like an old man” at times.  He seeks a reasonable amount for noneconomic damages, not to exceed $75,000.

Mr. Evans is Entitled to Plead and Recover His Billed Medical Bills

The medical bills Mr. Evans has incurred to date for injuries related to the incident total $8,350.10.  A portion of these bills were written off, secondary to his health insurance benefits.  Any write-offs on account of insurance discounts are a collateral source, as Mr. Evans paid the premiums for said insurance coverage.  Mr. Evans is therefore entitled to the benefit of those write-offs, and is thus entitled to an award for the gross amount of medical bills.  ORS 31.580; White v. Jubitz Corp., 219 Or App 62 (2008); Cohens v. McGee, 219 Or App 78 (2008).

Lost Wages and Impaired Earning Capacity

At the time of the collision, Mr. Evans was a self-employed independent contractor and owner of a concrete finishing business.  While he did miss some work and despite his injuries, Mr. Evans has continued working, though not to the extent he did before the accident.  Indeed, he initially had to hire extra help to do the work that he was to do personally.  Evidence will show Mr. Evans had incurred $7,989 in lost wages for replacement workers.

Because of his ongoing pain and symptoms, expert testimony will show Mr. Evans’ income has declined and, barring an unlikely complete recovery from his injuries, will continue to do so.  He therefore seeks up to $50,000 for impaired earning capacity.

Previous Infirm Conditions and Exacerbations are Compensable

If the jury finds that Mr. Evans was predisposed to injury due to his age, body habitus, or pre-existing bodily conditions, he is nonetheless entitled to full compensation for his injuries.  The Prior Infirm Condition jury instruction, UCJI 70.06, states[1]

If you find that Mr. Evans had a bodily condition that predisposed him to be more subject to injury than a person in normal health, nevertheless Mr. Buck would be liable for any and all injuries and damage that may have been suffered by Mr. Evans as the result of his negligence, even though those injuries, due to the prior condition, may have been greater than those that would have been suffered by another person under the same circumstances.

Thus, if the jury concludes that Mr. Evans’ knee pain was activated symptomatically as a result of this collision, he is entitled to his full damages incurred because of his symptoms.  But for the collision, there is no telling when, or even if, his knee would have ever become symptomatic.

Vocational Expert Not Required to Prove Impaired Earning Capacity

Plaintiff need not offer a vocational expert as a witness in order to prove his impairment of earning capacity claim.  In DeVaux v. Presby, 136 OR App 456, 468 (1995), evidence showed that the plaintiff suffered a permanent nerve injury that caused his hand to occasionally open or close without warning, and was sometimes unable to sense heat or cold and affected his ability to perform his job.   In holding that this evidence was sufficient, the DeVaux Court reasoned that: “In the ordinary case, and as a general rule, evidence that a plaintiff has sustained a permanent injury is sufficient to entitle him to submit to the jury the question whether there has been an impairment of his future earning capacity.”  Id. at 464, citing Tavenner v. Figini, 273 OR 415, 417-418 (1975).

The DeVaux court rejected the defendants argument that the evidence was insufficient to satisfy the statutory requirement that economic damages be “objectively verifiable monetary losses” under ORS 18.560(2)(a), claiming that the plaintiff’s evidence of loss of future earning capacity was solely subjective, consisting of his own testimony about his inability to perform as he once did.  Id. at 459.  The Court held that ORS 18.560(2)(a) does not impose any particular pleading or proof requirements for recovery of loss of future earning capacity, and held that the plaintiff’s subjective testimony sufficed.  Id. at 463-64.

Moreover, it has long been the rule in Oregon that the jury is entitled to consider impairment of earning capacity when assessing damages, even though the plaintiff’s former job paid less than his or her present job, if the evidence shows that the plaintiff can no longer physically perform the former job.  Henderson v. Hercules, Inc., 57 Or App 791, 797 (1982).  Indeed, the jury may even consider a claim for impaired earning capacity if the plaintiff is unemployed with no present intent to work.  Richmond v. Zimbrick Logging, Inc., 123 Or App 631 (1993).

What is clear is that an award of impaired earning capacity is compensation for a defendant causing at least some avenues of employment to be closed to the Plaintiff.  Here, Plaintiff, while not having lost his job, has suffered permanent injuries which will restrict his ability to perform certain tasks in the future.  As those tasks relate to his employability, Plaintiff is entitled to compensation for that loss, in the form of an award of impaired earning capacity.   Therefore, Plaintiff’s evidence of permanent injury and continued inability to perform certain types of work is sufficient to get the issue of future impairment of earning capacity to the jury

Plaintiff and Lay Witnesses are Competent to Testify as to Plaintiff’s Pain and Suffering

The plaintiff’s testimony about his or her own discomfort is always competent evidence on the issue of past and future pain and suffering.  Skeeters v. Skeeters, 237 Or 204, 231 (1964).  Lay witnesses may also testify about the plaintiff’s present complaints of pain or disability or about the witness’ own observation of the plaintiff’s limited activity or pain behavior.  Frangos v. Edmunds, 179 Or 577, 593, (1946) (testimony of plaintiff’s wife about plaintiff’s physical condition and restrictions held sufficient to allow the issue to go to the jury).

Rule of Completeness

If Defendant reads, or otherwise offers, portions of deposition transcripts at trial, Mr. Evans reserves his right to have additional portions read at that time.  The “Rule of Completeness” requires that, if one side reads portions of a deposition at trial, opposing counsel has the right to have other portions of the deposition on the same subject read at that time.  OEC 106; ORS 45.260.  Fairness requires that opposing counsel should be able to introduce other portions of the deposition that qualify, or provide context for, the proffered testimony.  It is reversible error not to permit the introduction of other relevant portions of the deposition, at least at the conclusion of the reading of the deposition.  Westinghouse Electric Corp. v. Wray Equipment Corp., 286 F2d 491, 494 (1^st Cir.), cert den 366 US 929 (1961).

UCJI 74.01 Should be Given Because Mr. Evans Has a Permanent Injury

Mortality tables are admissible into evidence once evidence of permanent injury has been shown.  Frangos v. Edmunds, 179 Or 577, 604 (1946).  Here, Dr. Carlsen will testify that Mr. Evans has incurred permanent injury as a result of the hit-and-run.  Thus, the jury should receive the UCJI 74.01 jury instruction.  According to the Center for Disease Control National Vital Statistics Reports, Vol. 58, No. 10 (March 3, 2010), Mr. Evans, now age 34, can expect to live an additional 43.3 years.  (See Exhibit 1).

Future Possible Complications are Compensable.

The Oregon Supreme Court has acknowledged that a jury may consider future possible complications in determining damages.  Feist v. Sears Roebuck & Co., 267 Or 402, 410 (1973) (reasonable medical probability as to causation of initial head injury required, mere possibility of future contracture of meningitis stemming from the head injury properly submitted to the jury).  The Oregon Court of Appeals has reiterated this rule.  Pelcha v. United Amusement Co., 44 Or App 675, 678, rev. den., 289 Or 275 (1980) (plaintiff’s doctor testified that chance of future physical complications and surgery was between 30% and 45%; degree of likelihood was deemed a proper subject of evidence and a proper question for the jury); Henderson v. Hercules, Inc., 57 Or App 791, 796-797 (1982) (“less than 50% possibility” of future physical problems and surgery properly submitted to the jury).

Here, Plaintiff expects that the medical evidence will prove that Mr. Evans is left susceptible to future complications on account of his permanent injury.  Thus, the issue of Plaintiff’s possible future complications and medical treatment should be submitted to the jury.

Unidentified Witness’ Statements to Bar Staff Admissible

Shortly before the hit-and-run, Defendant attempted to steal another patron’s poker machine, with money still in it.  The victim patron reported this to the bar staff, which prompted Defendant being cut off, and kicked out of the bar.  Said statements are wholly admissible, as they fall under an exception to the hearsay rule for excited utterances.  Specifically, OEC 803(2) allows for an exception to the hearsay rule for “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.”  An excited utterance is admissible even if made by a bystander rather than a party, and even if the declarant is unidentified.  Wright v. Swann, 261 Or 440, 493 P2d 148 (1972).  Moreover, an excited utterance is admissible even though self-serving and offered by the testimony of a party.  Id.  The statement itself may be used to prove that it was made in a state of excitement.  State v. Jones, 27 Or App 767, 557 P2d 264 (1976).

Unidentified Witness Statements included in Police Report Admissible

The unidentified witness discussed in the preceding section also made statements to the investigating sheriff deputy.  Should the court determine that those statements are not admissible as excited utterances, they are still admissible pursuant to OEC 803(8)(b), which provides:

The following are not excluded by ORS 40.455 [EOC 802], even though the declarant is available as a witness:

(8) [Public records and reports.]  Records, reports, statements, or data compilations, in any form, of public offices or agencies * * * setting forth:

(a) The activities of the office of the agency;

(b) Matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding however, in criminal cases matters observed by police officers and other law enforcement personnel; or

(c) In civil actions and proceedings and against the government in criminal cases, factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness. See also, ORS 40.460.

(Emphasis supplied.)

The legislative commentary to OEC 803(8)(b) states that public records are a recognized exception at common law, and that this exception is justified by the assumption that a public official will perform the official’s duty, and by the unlikelihood that a person will remember details independently of the record.  See Laird C. Kirkpatrick, Oregon Evidence 541-542 (3d ed., Michie 1996).  Thus, under OEC 803(8)(b) – (c), police reports are an explicit exception to the hearsay rule in civil cases so long as the matters are observed pursuant to a duty imposed by law, and that there was a duty to report such matters, as is clearly the case here.

Recorded Statements of Defendant’s Witnesses Must be Produced.

After a witness testifies, opposing counsel is entitled to any statements a witness gave, even if to his or her own insurance company.  Rigelman v. Gilligan, 265 Or 109, 115 (1973), citing with approval Pacific N.W. Bell v. Century Home, 261 Or 333, 339-340 (1972) (transcript of recorded statement of adverse testifying witness must be produced prior to cross examination, even if work product).  Plaintiff requests that all recorded statements of Defendant’s witnesses, including Defendant himself, be produced prior to cross examination of said witnesses.

Plaintiff May Ask Leading Questions When Examining Adverse Witnesses

In his case in chief, Plaintiff expects to call Defendant as a witness.  OEC 611(3) permits an attorney to use leading questions when examining the adverse party or those associated with the adverse party. 

Mr. Evans Requests that the Jury Receive a Written Copy of the Jury Instructions

ORCP 59 B provides that “In charging the jury…the court shall reduce, or require a party to reduce, the charge to writing.  However, if the preparation of written instructions is not feasible, the court may record the instructions electronically during the charging of the jury.”  Mr. Evans requests that the jury receive a written copy of the jury instructions charged.  For the Court’s convenience, Mr. Evans offers to reduce the jury instructions to writing.

I won another trial this month, which wrapped up a little over a week ago.  Briefly, my client was injured in a low-speed collision in Redmond.  Because he is a tough guy, he didn’t see a doctor right away.  In fact, he waited nearly a month to see a doctor.  However, shortly after he was seen, it was determined that he needed a left shoulder surgery.  Anyway, here is a brief post-trial report:

FACTS:   The collision occurred at the intersection of SW 6th Street and SW Evergreen Avenue in Redmond, Oregon.  My client was a passenger in his father’s Honda Accord at the time.  My client was turned to his left, watching police arrest an individual, and had his left arm extended behind his father’s seat while doing so.  the defendant failed to stop behind the Honda, rear-ending the car at a low speed (less than ten miles per hour).  Property damage was minimal – no airbag deployment, the Honda was not pushed forward appreciably, and defendant didn’t need to get his SUV fixed.

Trial Exhibit 2 - Shoulder muscles

My client felt uninjured at the scene (not unusual with soft tissue injuries).  He testified that he felt symptoms in his neck, mid back and left shoulder later that day, with pain setting in the following day.  He did not treat for his injuries for approximately 30 days following the collision.  He ultimately required left shoulder surgery to treat his primary injury – a symptomatic activation of prior left AC joint arthritis.   After his surgery, he was unable to work his at-injury job for a number of months.  As a result, he sought reimbursement for his lost wages.  He is also left with permanent physical impairment secondary to his injuries, though nothing too significant, for which he sought reimbursement for related impairment of his earning capacity.  However, he testified that his current condition really does not cause pain, nor interfere much with his daily activities.  He also brought to the table a longstanding low back issue.

Defendant admitted liability, but denied causation and damages.

JUDGE:   Recently retired Judge Stephen N. Tiktin (from Bend) presided over the trial.  He was excellent, as usual.

DEFENSE COUNSEL:   Barry Goehler, head of Nationwide Insurance’s Oregon in-house firm.  He did a fine job, and was very easy to work with.

EXPERTS:   My client’s surgeon, Blake Nonweiler, MD, testified for us.  He opined that the collision caused the AC joint symptoms, but that there was no evidence of labral injury upon his examinations.   Defendant had Dr. Brenneke of Clackamas testify.  Dr. Brenneke admitted quite a bit of stuff that was helpful to me, including the fact that he had never seen the MRI that claimed to show a Hills-Sachs lesion (which can only come from a dislocation), but gave the opinion that the symptoms were more consistent with a labral tear which must have been present prior to the collision based on the lesion.  Our doctor testified that the MRI did not confirm such a lesion, and showed no signs of labral tearing.  Dr. Brenneke also testified that the mechanism of injury was wrong for an AC joint injury, and that there should have been immediate and immense symptoms if the AC joint was, in fact, injured.

Trial Exhibit 3 - AC Joint

Defendant then hired DME doctor Holm Neumann just ten days prior to trial.  Dr. Neumann, interestingly, agreed with Dr. Nonwiler regarding the lack of a Hills-Sachs lesion!  However, he also opined that the mechanism of injury was all wrong for an AC joint injury, apparently ignoring the fact that my client was turned to the left at the time of the collision.  He also testified that there should have been immediate and significant symptoms if it had been injured.  I pointed out also that he was not provided with all of the records, including any of the chiropractic records.  He then added that he was not given all of the pre-surgery imaging records, either!  Both defense doctors agreed, however, that there was no evidence presented to them confirming or even mentioning any left shoulder pain or symptoms prior to the injury, that all evidence (by client history) was that the left shoulder was symptomatic within days of the collision, and that the surgery was appropriate for symptomatic AC joint arthritis.  Given this testimony, all opinions turned on the credibility of my client in giving an accurate history as to having no symptoms prior to the collision, but feeling pain shortly after the collision.   Because of the 30 day gap in treatment, as well as the fact that he had to keep working to keep his job, the defense argued that he must not have been injured, and must be lying.

RESULT:  Trial took three days.  Our jury was great – very smart and paid a lot of attention to the evidence.  The jury awarded all medical expenses ($21,000), all lost wages ($8,480), and $10,000 noneconomic damages (this small amount is not surprising since my client could point to very little differences in his physical activity attributed to his shoulder, as well as essentially no long term pain).  We were also able to recover a significant portion of the cost of trial.  The settlement offer going to trial was only $5,000.  While not a big case, it was a good win.

I am often asked what my arbitration memorandum looks like in relatively simple cases.  Given that I just won an arbitration two weeks ago on a small case, I figured that I’d simply post the mediation memorandum that was submitted, and which convinced the arbiter to rule in our favor.  (Note: I have removed the involved parties’ names for confidentiality purposes.  My client is the “Plaintiff.”).  Here it is:

This lawsuit stems from a motor vehicle collision that occurred on August 26, 2009 in Bend, Oregon.  Both liability and damages are issues to be decided by the arbitrator.

FACTS OF THE COLLISION

On August 26, 2009, Plaintiff finished shopping at the Bend Petco on 3rd Street, near Appleby’s.  She placed her goods into her 2001 Lexus RX 300, got into the driver’s seat, and prepared to back out of her parking spot.  About that time, Defendant drove her 2000 Saturn LW through the parking lot, and passed the rear of Plaintiff’s SUV.  After Plaintiff saw Defendant pass the rear of her SUV, she proceeded to slowly back out of the parking space, in an “L” pattern, and once she was into the parking lot, she stopped her vehicle in preparation to drive it forward and through the parking lot.  At the same time, Defendant realized that she passed a parking spot while cruising through the lot.  Not wanting to lose the spot to someone else, Defendant shifted her vehicle into reverse and backed up.  Unfortunately, she did not see Plaintiff’s SUV already in the lane of travel, at a full stop, and backed into the rear of Plaintiff’s SUV, pushing it forward some six inches or so. 

While the photographs do not show much by way of property damage, Plaintiff had her vehicle professionally evaluated.  As the property damage estimate verifies, her SUV sustained nearly $1,100 in property damage.  (Tab 4).  As the damage estimate and photographs show, a majority of the damage was done to the right quarter panel, bumper assembly, and bumper.  (Tabs 4-5).  In fact, the photographs clearly depict a large separation between the rear quarter panel and the bumper cover, confirming that the entire bumper assembly was bent downward.  As the damage estimate indicates, this caused additional damage to both mud guards.  Clearly, this was not a simple “parking lot bump” as the defendant may be inclined to insinuate.

Plaintiff recalls the severity of the impact as a 3-4/10.  She recalls her SUV being pushed forward as well.  Even though it was pushed less than a foot, it is significant in that both the pushing of the SUV and the property damage indicate that the force of impact was significant enough to injure Plaintiff.  Indeed, while Plaintiff did not feel pain at the scene, she began to feel tightness in her neck that night, and the pain really came on the next day, including pain down her right arm and into her hand, as well as headaches.   Her injuries and treatment is discussed in further detail below. 

DISCUSSION OF LIABILITY

The evidence will show that Defendant is fully liable for the collision, and that Plaintiff bears no liability, despite the fact that Defendant amended her Answer to allege comparative negligence.

1.      Defendant admits to failing to exercise due care.

Speed, control, and duty to maintain an adequate lookout are interrelated.  As speed increases, the duty to be alert and have one’s automobile under adequate control increases.  Troupe v. Ledward, 238 Or 531, 395 P2d 279 (1964).  The same holds true for lookout: as lookout (visibility) decreases, the duty to move at a reasonable speed and keep control of one’s vehicle increase.  Here, the defendant failed her duty on all three counts, and admits to at least one of those specifications of negligence. 

          a.      Defendant did not keep a lawful lookout.

In Oregon, the driver of a vehicle must keep and maintain a reasonable lookout for other vehicles or persons on the street, highway, or parking lot[1].  A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances.  (See UCJI 35.04).  After Defendant passed the rear of Plaintiff’s vehicle, then decided to reverse the direction of travel, it was she who bore the burden of keeping a lookout for others who may have backed out of a parking space once she passed.  However, she failed to do so.  Indeed, she immediately declared to Plaintiff after the crash, “Oh my God, I didn’t see you!”  (Ex. 3, Response to RFA No. 2).  Indeed, Defendant admits that she was “at least partially” at fault in causing the subject collision.  (Ex. 3, Response to RFA No. 3; Amended Answer, paragraph 3).

          b.      Defendant was not driving at an appropriate speed under the circumstances.

Simply put, Defendant was driving faster than is reasonable considering the traffic, visibility, and unusual manner she was driving (reverse in a parking lot in an attempt to nab a spot she had missed).  Given that she clearly couldn’t see well – illustrated by the fact that she backed into a parked SUV – she travelled too fast for the conditions then and there existing.  Indeed, if one cannot see in a parking lot, the only safe speed is a dead stop until they can properly see behind them.  Otherwise, they should use a spotter, or honk their horn as they slowly back up.  None of this was done here.  Defendant is only all too lucky she hit an SUV instead of a small child eager to look at puppies in Petco.

          c.       Defendant did not keep proper control of her vehicle.

Given that she was apparently distracted by the need to nab the missed parking spot, Defendant did not keep proper control of her vehicle, in that she did not give herself an opportunity to avoid, or otherwise stop short of, obstacles behind her in the parking lot.  Here, that obstacle was Plaintiff’s vehicle.

2.      Plaintiff is not liable, as she was acting reasonable under the circumstances.

Defendant amended her answer to allege an affirmative defense of comparative negligence, claiming that Plaintiff did not keep a proper lookout.  This allegation, however, is without merit.  Indeed, the evidence will show that Plaintiff was acting as most people would under the circumstances – slowly backing out of a parking space once traffic behind had cleared, and bringing her vehicle to a full stop prior to shifting into “drive.” 

Even a cursory review of Oregon law clearly shows that Plaintiff is free from liability for this collision.  As UCJI 35.04 states:

It is the continuing duty of a driver of a motor vehicle to keep and maintain a reasonable lookout for other vehicles or persons.

A reasonable lookout means such as would be maintained by a reasonably  prudent person under the same or similar circumstances.

In determining this question you should take into consideration the extent or degree of danger reasonably to be expected. A person does not comply with the duty to keep a reasonable lookout by simply looking and not seeing that which is plainly visible and which would have been seen by a reasonably prudent person under the same or similar circumstances.

(emphasis added).  Thus, the real question is whether Plaintiff should have reasonably expected Defendant to throw her car in reverse to nab a spot, and further expected that Defendant would not see her SUV when attempting to do so.  Significantly, Defendant, in admitting that she failed to keep a proper lookout, admits that, had she been complying with Oregon law, would have seen Plaintiff’s SUV and have stopped short of it.  So, the question is whether it is foreseeable to assume that others would not follow their duties obligated to them by law.

Once the lookout instruction is read in conjunction with UCJI 20.05, things become clear.  UCJI 20.05 states that “Every person has a right to assume that others will obey the law, unless and until that person knows or in the exercise of reasonable care should know otherwise.”  Here, Plaintiff had the right to believe that Defendant would comply with her duties of lookout, control and speed.  However, as discussed above, even Defendant admits that she failed to do so. 

The law does not require that folks act with perfection – it only requires reasonableness under the circumstances.  Here, Plaintiff was quite reasonable.  Perhaps the story might be different had she backed into Defendant, but this was not the case.  She waited until the coast was clear, slowly backed out, and came to a complete stop before Defendant backed into her.  What else could she have done?  It was Defendant who chose to back up without looking where she was going, it is Defendant who admits that she was in the wrong, and it is Defendant who bears all responsibility for this collision.

SUMMARY OF INJURIES

As a result of the collision, Plaintiff sustained the following injuries:

• Damage to the muscles, ligaments, tendons, nerves, and other soft tissue of the neck;
• Right arm and right hand pain;
• Headaches;
• Pain, discomfort and suffering; and
• Inconvenience and interference with usual and everyday activities, apart from gainful employment.

Defendant has denied any and all injury in both her Answer and Amended Answer.

SUMMARY OF MEDICAL TREATMENT[2]

On August 27, 2009, the day following the incident, Plaintiff presented to The Center for evaluation of her neck pain by neurosurgeon Brad Ward, MD.  Dr. Ward noted neck pain, greatest on the right side.  Testing was within normal range, and he diagnosed Plaintiff with “Neck pain with whiplash injury.”  Notably, he was aware that this was a low speed collision in a parking lot.  He prescribed antiinflammatories, and noted that he would send her to physical therapy if things worsened.

On September 2, 2009 (one week post injury), Plaintiff returned to The Center, with complaints of persisting neck pain with a burning sensation of the right trapezius, and an experience of sharp right scapular pain with motion.  Examination revealed slight pulling in the right trapezius with lateral rotation.  She was assessed with a “cervical strain secondary to motor vehicle whiplash injury.”  She was prescribed physical therapy and an Advil regimen, and told to return if symptoms persisted.

On September 9, 2009, Plaintiff started physical therapy with Rebound Physical Therapy.  She continued through November 18, 2009, for a total of 15 visits.  During this time, she was treated for right-sided neck and trapezius pain and headaches.  The therapist noted an apparent right C5-6 facet opening restriction with moderate to marked decrease to sensation to the right upper trapezius and levator scapulae.  The therapist noted signs and symptoms “consistent with status post motor vehicle accident” including increased right cervical spine tissue tension, moderate facet joint hypomobility, and mild decrease in cervical spine strength and stability.  During the treatment, it was noted an overall slight improvement with therapy, and also some right arm/hand symptoms.

On November 25, 2009, Plaintiff returned to see Dr. Ward at The Center.  She reported some relief with physical therapy, but a setback the night prior where her right sided neck pain once again became severe.  The pain was noted in the same spot – right side of the neck extending into the right trapezius.  Dr. Ward diagnosed continuing cervicalgia (neck pain), and prescribed her medication, with instruction to continue physical therapy.  The plan was to send her for an MRI if things did not get better.

On December 9, 2009, an MRI was taken of Plaintiff’s neck, per Dr. Ward’s orders.  Thankfully, the MRI showed no disc herniation or significant degenerative changes.  It was read as negative.  On the same day, Plaintiff followed up with Dr. Ward at The Center.  She described her neck pain as improved somewhat since the November 25 visit.  His diagnosis was continuing cervicalgia (neck pain), and wanted her back in to physical therapy.  If the pain persisted, he noted that he would refer to physiatry.

On December 9, 2009, Plaintiff returned to physical therapy, per Dr. Ward’s instructions.  She treated through February 1, 2010, for 11 total visits.  During this second course of treatment, the therapist noted significant soreness, particularly after work, though improvement toward the end of the treatment.  She was ultimately discharged on February 3, 2010, though the therapist did not indicate whether or not her therapy goals had been met.  Notably, however, the last date of service just two days prior indicated that the therapy goals had not been met.

On April 1, 2010, Plaintiff returned to see Dr. Ward at The Center for reevaluation.  She reported continued neck pain as before, with a new episode of pain, aching and paresthesia into her right arm that lasted for two days and hadn’t completely resolved.  Dr. Ward noted minimal relief of her neck pain with the treatment he had prescribed.  Neck pain was noted with extension upon testing.  He assessed her with continued cervicalgia (neck pain) and neck strain.  He wanted to rule out facet arthrosis, so referred her on for a SPECT scan.  He also prescribed anti-inflammatories and considered a physiatry referral if the pain did not get better.

On April 12, 2010, Plaintiff presented for the SPECT scan Dr. Ward had ordered.  Thankfully, it was read as normal, with no significant abnormalities.

On April 14, 2010, Plaintiff returned to see Dr. Ward at The Center for follow-up.  She reported that she was doing pretty well at that point, with minimal neck pain and still occasional pain in her right arm.  She was assessed with intermittent cervicalgia (neck pain) following the MVA.  Dr. Ward referred her to physiatry to assess her continued symptoms.

On April 26, 2010, Plaintiff presented to Dr. Hill, a physiatrist at The Center, at the request of Dr. Ward.  In the visit, Dr. Hill noted the same history as was previously given, and further notes a waxing and waning symptomology, with spikes in pain in the 7-8/10 range.  He noted mid- and upper neck pain, greater right than left, with fairly severe headaches.  Indeed, Plaintiff had a headache at that visit.  Dr. Hill also noted that simple, everyday activities flared her symptoms, and it was interfering with her sleep.  On exam, Dr. Hill noted “no pain behavior” (i.e., she’s not faking), and tenderness in the upper cervical muscles, upper trapezius, and rhomboid.  Myofascial type stretching did cause muscular irritation.  Dr. Hill assessed:

1).  Cervical strain injury with residual myofascial pain syndrome.  Imaging studies have been benign. 

2).  Cervicogenic headaches related to condition #1. 

3).  Secondary sleep difficulties due to pain which may be contributing to some pain amplification.

Dr. Hill states under Causation/Prognosis: “The above conditions are secondary to the documented MVA of 9/26/2009[3].  Patient is still struggling with some nondisabling pain.  I think she will have ongoing improvement with treatment.”  Dr. Hill instructed Plaintiff on a home stretching program, prescribed medication, and discussed chiropractic or massage therapy if no improvement.  There has been no further treatment since this date of service.

SUMMARY OF MEDICAL BILLS

As a result of her injuries, Plaintiff incurred approximately $8,290.01 in medical and therapy expenses.  (See Tab 6).  Her auto insurer paid $6,017.50 of this amount, and she makes no claim for the difference.  The remaining difference of $2,272.51 was written off, and Plaintiff does not seek reimbursement of that amount. 

PERMANENCY

Evidence of continued pain two years after the injury “establishes a probability that for sometime in the future the plaintiff will suffer pain.”  Nelson v. Tworoger, 256 Or 189, 192 (1970).  Moreover, if there are observable manifestations of a permanent injury as well as subjective complaints, the question of permanency will likely be submitted to the jury without the necessity of medical testimony.  Senkirk v. Royce, 192 Or 583, 593 (1951); Heckler v. Union Cab Co., 134 Or 385 (1930).  Here, Plaintiff still exhibits observable pain and weakness in her neck on an intermittent basis.  Conservative treatment has made things better, but not perfect.  Given that she is now over two years post injury, she will likely have difficulties extending well into the future.  Given that Plaintiff is only 27 years old, and if you find the injuries to be permanent in any respect, even in the sense that she will be more subject to re-injury on account of her underlying injuries arising from this collision, she can expect to continue to live with these conditions for an additional 54.2 years.  (See Tab 8).

EFFECT ON LIFE

Plaintiff experienced a substantial and dramatic change in her quality of life as a result of her injuries.  Most significantly, she had pervasive and continual neck pain, right arm numbness, and headaches for the first eight months following the collision.  After that point, the neck pain became more intermittent, waxing and waning two or three times per week.  However, and as noted above, it has continued to wax and wane through the present, with no sign of fully resolving. 

These symptoms had a significant impact on Plaintiff’s recreational activities.  She had to skip an entire season of snowboarding (2009-10) due to her continued neck pain and headaches, and the fear of aggravating those symptoms with the activity she so loved.  Moreover, she had to quit bowling with her friends due to the same reasons.  The same goes for her other primary hobby: riding her bicycle.  Long drives have also been difficult, particularly during those first eight months of symptoms.  Thankfully, however, she managed to continue working her job as a switchboard operator for The Center here in town.  Quite commendable, given her symptoms, both past and present.

CONCLUSION

Liability in this case is clear.  Defendant has already admitted fault.  Indeed, a review of the evidence demonstrates that Defendant’s negligence is the sole cause of the collision.  Plaintiff suffered over two years of pain, frustration, and concern as a result.  Her damages total more than she prays for in this lawsuit.  However, she has chosen to limit her prayer to qualify for the protection of ORS 20.080.  Thus, she respectfully asks that you award the prayer in this matter: $7,500 in noneconomic damages.

Cervical disc arthroplasty is surgery on the neck joints which is done for a variety of reasons, the main reason is pain or loss of function. Problems with the cervical disc can cause arm pain, arm weakness or numbness, with some degrees of neck pain. A cause of neck joint pain can be a herniated disc or osteophytes which compresses the adjacent nerves or spinal cord. A herniated disc is when a portion of the spinal disc is pushed outside of its normal boundaries.
A herniated disc can be caused by many things, some common causes are:
•    Aging
•    A person’s physical condition
•    Injury from a sudden heavy strain or increased pressure on back
•    Repetitive activities that stress the lower back such as poor lifting habits or a sports related motion done over and over
If a person’s job requires repetitive lifting, they should make sure that they follow all safety guidelines their job has put in place. If there is a work related injury, the employee can file a workman’s compensation claim. An injured employee, may file a workman’s compensation claim so they can get monetary compensation for the injury they received while on the job. Workman’s compensation pays for medical services and gives money to the employee for time away from work. There are four different types of disabilities that arise from an injury:
•    Temporary Partial Disability
•    Temporary Total Disability
•    Permanent Partial Disability
•    Permanent Total Disability
Whatever the cause of neck joint pain, any treatment should be done under a doctor’s supervision. If you’ve been injured at work the first thing you should do is talk with an attorney about your financial protection.

Driving a motor vehicle can be dangerous, especially in inclement weather that makes the road icy or reduces visibility. It isn’t uncommon for motor vehicles to roll over while driving. Anyone that drives assumes some personal liability associated with driving. All drivers owe it to each other to be as safe as possible. If someone you  were riding with caused the car to roll over and that accident directly caused your injury then they can be held responsible for their actions. The negligent person may need to compensate you for medical costs, loss of income, emotional distress and property damages.
In the case that the vehicle was rented, the company where it was rented from may say that it was regularly inspected. If it is the manufacturer’s fault for the injury then the renter will have to prove this. This is called strict liability for a consumer product and in order to prove this you need to prove all of these items:
•    Motor vehicle was defective which caused unreasonable danger to users
•    The motor vehicle was used for its intentional use only
•    Defect caused the injury
•    Injuries were suffered
Motor vehicles with higher clearance off the ground have an increased chance of a rolling over, for example SUVs. In the same conditions a passenger car has a 12% chance of rolling over, while a SUV has a 27% chance. These statistics are according to the National Highway Transportation Safety Administration.