Laura Walsh v. State of Connecticut et al. (2015)

MEMORANDUM OF DECISION

The plaintiff, Laura Walsh, (hereinafter referred to as the “plaintiff”), commenced a civil action against Nathan Charron, a Connecticut State Trooper, and the Department of Public Safety.   The plaintiff claims that the defendants were liable for injuries sustained in an automobile collision.   At all relevant times, the plaintiff claims that Trooper Charron was acting in performance of his duties and within the scope of his employment with the State Department of Public Safety.   The plaintiff commenced this tort claim pursuant to Connecticut General Statutes § 52–556.¹

The plaintiff contends that on or about May 22, 2009, she was operating a 2004 Toyota automobile on West Main Street, Norwich, Connecticut when she was stopped at a light trying to make a right hand turn onto Chelsea Harbor Drive.   She claims that Trooper Charron was driving a 2007 Ford automobile that collided into the rear of her vehicle.

The parties joined issue and this case was tried before the court, commencing October 21, 2014, with additional trial days and final argument on December 3, 2014.   The defendants did not contest the fact that there was an impact between the vehicles and that Trooper Charron failed to stop his vehicle prior to hitting the plaintiff's car.   The extent of the impact and the causation of claimed injuries to the plaintiff resulting therefrom were hotly contested by the parties and witnesses.

The plaintiff claimed at trial that she had stopped at a red light on red, then began to move forward to take a right on red, looking to the left for traffic when she was hit from behind.   Trooper Charron claimed that he had stopped behind the plaintiff and began to move his cruiser forward intending also to make a right turn on red.   He estimated that his vehicle was proceeding very slowly (i.e., 1 mph) when the right side of his push bumper bumped the right side of the right rear bumper of the plaintiff's SUV.

The court heard from the plaintiff and the defendant who were sole witnesses to the cause and the extent of the impact and damages to the plaintiff's vehicle.   The photos of the rear of the plaintiff's SUV (Defendant's Exhibits B–J) depict at best a small scuff mark indistinguishable from pre-existing scuff marks or dings on the plaintiff's rear plastic bumper cover.   The court concludes that the trailer hitch was not impacted and/or damaged in this minor collision as claimed by the plaintiff.   There is no damage to the hitch in the defendant's exhibits B–J.² The court further concludes that there was push bar damage to the cruiser as a result of the collision.

The court further finds from the evidence that Trooper Charron was at fault for the collision in question in that there is no doubt that an impact occurred.   Each party called an expert medical witness to testify as to the causation for any and/or all of the physical injuries and/or physical disabilities caused by the minor impact.   The plaintiff called Dr. Jeffrey Miller, an orthopedic surgeon from New London, Connecticut, who first performed an independent medical exam on May 15, 2012 at the request of the plaintiff's counsel and who later acted as a treating physician and surgeon for a cervical fusion.   The defendant hired Dr. Andrew Bazos, an orthopedic surgeon from New Milford, Connecticut, to perform an independent medical exam for the defense.   He also testified at trial concerning the issue of causation.

The court finds that the plaintiff has a long and complicated pre-existing medical history commencing from 1997 to the date of the collision in question on May 22, 2009.   She had suffered from pain and aches all over her body (referred to as polymyalgia and polyarthralgia), fibromyalgia, recurrent bouts of Lyme disease, headaches, depression, persistent joint pain and numbness, right and left shoulder and arm pain, parasthesia in both arms radiating pain in both hands including the third and fourth digits of her left hand, head pain, neck pain, chronic fatigue syndrome, mental confusion, osteoarthritis and cognitive dysfunction.   She was also diagnosed by Dr. Selden with cognitive disorder, major depression disorder and panic disorder with agoraphobia on September 1, 2008.  (Plaintiff's Exhibit 18.)   In addition, Dr. Selden found among the most remarkable findings in his neuropsychological evaluation was the plaintiff's endorsement of excessive psychological and physical symptoms.

The medical records and reports submitted into evidence by the parties references a complaint of numbness on the right side of the plaintiff's neck and into the right arm as early as February 13, 1997.  (Plaintiff's Exhibit 7.) The records commencing September 21, 1999, reflect that these symptoms, particularly in the left hand and arm with numbness into the third and fourth digits of the hand continued over several years resulting a neurologist order for EMG studies and an MRI. (Plaintiff's Exhibit 7.)

Over the next seven years from 2001 through 2009 treated with a host of specialists for arthritis, Lyme disease, infectious diseases, including a neurologist, a rheumatologist, an oncologist and her PCP. (Plaintiff's Exhibits 5, 10, 11, 12, 14, 16 & 17.)   During this time period no part of her body was excluded regarding complaints of pain and discomfort.   At times as medical records show, she was unable to function resulting in a cognitive disorder and an inability to concentrate.   She was referred to Dr. Selden, a neuropsychologist, who referenced a strong psychiatric overlay in her medical complaint.  (Plaintiff's Exhibit 18.)

As to her specific neck pain, the plaintiff was referred by Dr. Anka Bulgaru to Backus Hospital for neck x-rays.  (Plaintiff's Exhibit 14.)   Dr. Bulgaru had been treating her since May of 2007 for her left lateral cervical lymphadenopathy on referral from Dr. Michael Rajkumar (Plaintiff's Exhibit 12) who had treated her for chronic Lyme disease since 2006.   The cervical spine series (Plaintiff's Exhibit 15) showed degenerative disc disease, disc space narrowing and end plate spurring at C5–C6 and a loss of normal lordosis in May of 2007.

The plaintiff, as a result of the accident that is the subject of this lawsuit, went to the emergency room at Backus hospital on the evening of May 22, 2009.  (Plaintiff's Exhibit 21.)   She reported mild pain in the neck and shoulder junction on the Emergency Room diagram.   CT Scans were performed of the cervical spine and head.   The cervical spine CT Scans diagnosed the loss of lordosis and degenerative disc disease at C5–6 and an annular disc bulge and mild narrowing.   The radiologist described this as “no acute ․ cervical abnormality.”  (Plaintiff's Exhibit 21.)

The medical experts differ as to their interpretation of the 2007 ER report and x-ray results versus the post-accident 2009 ER records and CT scan results.   Both Dr. Miller and Dr. Bazos did independent medical exams at the request of counsel.   Dr. Miller was contacted by letter from Attorney Paul Costa dated May 9, 2012.  (Defendant's Exhibit 1.) The letter signed by a paralegal states that “I have enclosed all notes and reports for our client, Laura Walsh,” requesting independent medical exam with the further statement that, “We will also obtain the films from Backus Hospital from her May 22, 2009 visit.”   This correspondence was followed by a letter signed by Attorney Paul Costa to Dr. Miller himself requesting an opinion regarding (1) permanent cervical spine injuries;  (2) percentage of loss of same;  (3) causation from May 22, 2009 car accident and future surgery;  and (4) cost of future treatment or surgery.

Dr. Miller met with the plaintiff on May 15, 2012.   Attorney Costa provided him with an office note from Dr. Tauro dated June 16, 2009 and EMG test results.  (Plaintiff's Exhibit 7.) Dr. Miller took a history from the plaintiff which consisted solely from the plaintiff's statements and the limited materials from Dr. Tauro.   He concluded that her medical history was “unremarkable” and that at the time of the accident the plaintiff was “otherwise in her usual state of good health.”   He then performed an exam and concluded that “she sustained a cervical strain and sprain superimposed upon some degree of pre-existing and previously asymptomatic degenerative disc disease of her cervical spine.” ³  He concluded that she had reached maximum medical improvement and did not require surgery.   He assigned a 10% permanent impairment of the cervical spine pursuant to the AMA Guidelines 5th Ed. (Plaintiff's Exhibit 25.)

Dr. Miller saw her again on May 20, 2013 as a patient.   He reported that “her past medical history is updated and is unremarkable.”   His clinical exam revealed “a pleasant female in acute distress” with the same left cervical radiculitis and her positive Spurlings manuver.   She told Dr. Miller that she has not had any treatment since he had seen her in May of 2012.  (Plaintiff's Exhibit 25.)   Dr. Miller recommended an MRI which was performed on June 20, 2013.   He reviewed the MRI and opined that she had a paracentral disc herniation at C5–C6 as well as C6–C7 nerve root cyst.   He concluded that the C6–C7 cyst does not relate in any way to the present accident.   While he had some of the prior records, he did not have all including all of the Generation records (Plaintiff's Exhibit 20) at the time he made his final diagnosis by medical report dated September 30, 2014.   The plaintiff had her cervical spine fused at C5–C6 on January 29, 2014.   Dr. Miller relates the cervical fusion performed on the plaintiff to the automobile collision on May 22, 2009.

Unlike Dr. Miller, Dr. Bazos performed his independent medical exam of the plaintiff with the prior medical records and reports provided to him in advance.⁴  He was also made aware of intervening physical assaults and accidents that occurred subsequent to the motor vehicle accident in question and prior to Dr. Miller's independent medical exam of May 12th.   He was also provided with the 2007 ER report and x-rays of the cervical spine, the 2009 ER report and CT scan results and the MRI results of the cervical scan of June 20, 2013.   Dr. Bazos was also made aware of the physical altercations and accidents involving the plaintiff's head, neck, shoulders, etc., all of which Dr. Miller was not made aware of at the time of the IME and final report of September 30, 2014.⁵

Dr. Bazos opined that the motor vehicle collision on May 22, 2009, was not a cause of the surgery and medical treatment performed by Dr. Miller.   His reading of the diagnostic testing results in 2007, 2009 and 2013 did not reveal a cervical disc condition different from the disc degeneration caused by aging.   He concluded that the plaintiff suffered at best the cervical sprain strain found by the ER physicians on the evening after the accident, as found by Dr. Miller himself on the date of his independent medical exam and the MRI results of June 20, 2013.   Dr. Bazos made his findings with all of the medical history and intervening physical assaults and accidents prior to and subsequent to Dr. Miller's independent medical exam and final evaluation.

The plaintiff was less than candid in her reporting of the impact and damages to the motor vehicles in question, her pre-existing medical conditions both prior to and subsequent to the IME examination by Dr. Miller.   Her testimony as to events and medical treatments conflicted with statements made at her deposition.   She also portrayed herself to Dr. Miller as a person in a usual good state of health with an unremarkable medical history, which is clearly contrary to the evidence.   The court in a trial before the court is the sole arbiter as to the credibility of a witness testifying before it.   Caroli v. DeSimone, 88 Conn.App. 638, 646 (2005).

This court concludes that the plaintiff has failed in her burden of proof as to medical causation for the medical care and surgery performed by Dr. Miller assisted by Dr. Doherty.   The plaintiff failed to adequately advise Dr. Miller of her prior multiple and repeated prior complaints of head, neck, shoulder and arm pain both radicular and/or nonradicular that she had suffered and complained of for years prior to the motor vehicle accident in question.   Furthermore, her description of the damage to her rear bumper cover and trailer hitch was at best inconsistent and confusing.   Her description of the impact to her vehicle was again inconsistent and did not jibe with the amount of scratches on her rear bumper many of which are found to be pre-existing with no indication to any contact with her trailer hitch.

Dr. Miller was not given as an adequate medical history concerning all of the conditions or types of medical treatment and care for her orthopedic and neurological problems.   He was not made aware of all of the physical altercations between the plaintiff and her spouse and accidents hereinafter more fully set forth.   When Dr. Miller performed his independent medical exam on May 15, 2012, he was not aware of physical altercations between the plaintiff and her husband shortly after the collision in question when she was drugged and sexually assaulted by her husband and pulled to the floor by her hair.   He was also unaware that on or about December 7, 2009, her husband again physically assaulted her by striking her in the chest with an open hand and placed her in a headlock and leg lock pinning her on the floor.  (Defendant's Exhibit A.) ⁶ Dr. Miller was also unaware that from the date of the accident in question, May 22, 2009, until the IME, May 15, 2012, the plaintiff tripped over her dog gate and hit her head in April 2010.

Dr. Miller, in his final report of September 30, 2014, stated that he had become aware of “generalized body aches and neck discomfort prior to the motor vehicle accident of May 22, 2009.”   He attributes these complaints as secondary to Lyme disease.   He admits that she had a prior history of tingling in her upper extremities that were noted in 2007, that responded to antibiotics.   He places no emphasis on the trip over the dog gate falling on her face, the domestic violence incidents on May 2009, and December 2009, and the incident where she struck her head on a cement wall which denied any knowledge of it in her trial testimony.

The record reflects that the plaintiff had radicular pain in her left arm and right arm prior to the accident of May 22, 2009.   The records reflect these symptoms starting in 1997.  (Plaintiff's Exhibit 7.) Dr. Tauro's reports indicate in September of 1999, she complained of pain in both hands but mostly on the left greater than the right, with numbness in the third and fourth fingers on the left hand.   She continued to treat with Neurology Associates and reported still having parasthesia in her left arm in a followup note on January 30, 2001.   Records in 2010 reflect complaining left arm and neck pain with physical therapy increasing her pain (Plaintiff's Exhibit 23) and further complaints of radiation of pain into the right arm.⁷

The court concludes that the surgery performed by Dr. Miller was as a result of a progression of her cervical disc disease exacerbated by one or more of the intervening events of physical abuse by the plaintiff's husband, tripping on the dog gate, hitting her head on the cement wall, etc.   The plaintiff has failed in her burden of proof for medical causation for the subsequent medical care, treatment and neck fusion surgery performed by Dr. Miller with the assistance of Dr. Doherety.

The court finds that the plaintiff has proven that the defendants are negligent in causing the collision in question.   The plaintiff is to be compensated for the medical treatment at the Backus emergency room of May 22, 2009 ($3,452.32), Generation PCB care through May 9, 2009 ($426.00) and Neurology Associates bill of June 16, 2009 ($2,385.50) totaling past economic damages of $6,263.82.   The court also awards $4,000.00 in noneconomic damages for limited pain and suffering etc.

Order

Judgment is entered in favor of the plaintiff as follows:  $6,263.82 economic damages plus $4,000.00 noneconomic damages in the total of $10,263.82 plus costs.

Devine, J.

FOOTNOTES

FN1. Sec. 52–556.   Actions for injuries caused by motor vehicles owned by the state.   Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury..  FN1. Sec. 52–556.   Actions for injuries caused by motor vehicles owned by the state.   Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury.

FN2. The alleged contact with the plaintiff's trailer hitch first appears in a medical report years after the accident.   There is no evidence of contact and/or damages to the trailer hitch in the photo exhibits and police report in evidence..  FN2. The alleged contact with the plaintiff's trailer hitch first appears in a medical report years after the accident.   There is no evidence of contact and/or damages to the trailer hitch in the photo exhibits and police report in evidence.

FN3. Dr. Miller, based upon the limited noncredible history from the plaintiff and sparse medical records concluded that the plaintiff's cervical condition was “asymptomatic” which is contrary to the prior medical history commencing in the late 1990s..  FN3. Dr. Miller, based upon the limited noncredible history from the plaintiff and sparse medical records concluded that the plaintiff's cervical condition was “asymptomatic” which is contrary to the prior medical history commencing in the late 1990s.

FN4. Dr. Bazos, in addition to Dr. Miller, did not have all of the medical records of plaintiff prior to their testimony at trial.   The omitted records, mostly from Generation which were added to the exhibits by the parties during trial, have been reviewed by the court and weighed against the testimony of the plaintiff and medical experts..  FN4. Dr. Bazos, in addition to Dr. Miller, did not have all of the medical records of plaintiff prior to their testimony at trial.   The omitted records, mostly from Generation which were added to the exhibits by the parties during trial, have been reviewed by the court and weighed against the testimony of the plaintiff and medical experts.

FN5. The history given by the plaintiff, together with the limited medical records provided by plaintiff's counsel for the IME of Dr. Miller, were misleading, were woefully incomplete.   Dr. Miller did not have all the prior medical history and events of abuse and injury from the plaintiff's husband, her falls and other accidents after the motor vehicle collision in question..  FN5. The history given by the plaintiff, together with the limited medical records provided by plaintiff's counsel for the IME of Dr. Miller, were misleading, were woefully incomplete.   Dr. Miller did not have all the prior medical history and events of abuse and injury from the plaintiff's husband, her falls and other accidents after the motor vehicle collision in question.

FN6. The plaintiff who signed an affidavit dated December 8, 2009, denied at trial she was pulled to the floor by her hair, which is inconsistent with her affidavit for a restraining order.  (Defendant's Exhibit 4.).  FN6. The plaintiff who signed an affidavit dated December 8, 2009, denied at trial she was pulled to the floor by her hair, which is inconsistent with her affidavit for a restraining order.  (Defendant's Exhibit 4.)

FN7. At her deposition, the plaintiff denied any neck pain or problems, left arm pain, headaches prior to the accident on May 22, 2009, which is contrary to the record before the court..  FN7. At her deposition, the plaintiff denied any neck pain or problems, left arm pain, headaches prior to the accident on May 22, 2009, which is contrary to the record before the court.

Devine, James J., J.