Noelle Hanley v. Jarrell M. Smith et al. (2016)

MEMORANDUM OF DECISION

This personal injury case brought by the plaintiff against the defendants ¹ was tried to the court over multiple days.  Counsel presented closing arguments, and the court reserved decision to consider the evidence and issue a written decision.

The plaintiff, who was nineteen years of age at the time of the accident and twenty-seven years old at trial, claims significant personal injuries, medical treatment and expenses arising from a very minor motor vehicle collision that occurred on August 21, 2007 on North Main Street in Waterbury, Connecticut.  On that date, the plaintiff was a passenger in a vehicle operated by her then boyfriend, William Acevedo, when a small pickup truck owned by the defendant, and operated by Jarrell Smith, pulled into traffic from a parked position along the sidewalk.  The plaintiff testified that there was a third person in the back seat of the vehicle, but she did not remember that person's name at the time of trial.

What happened in the plaintiff's life from the moment of the collision to the time of the trial over eight years later is wholly the product of her credibility as to the movement of her body in the car as a result of the collision, and the necessity of her medical treatment for her claimed injuries.  The plaintiff relates a life of debilitating pain and pain management.

The court finds the plaintiff totally lacking in credibility through the course of the trial.  More directly, the court finds the plaintiff to be an untruthful witness.  Among other things, she continually gave illogical, inconsistent, exaggerated and evasive responses, and she fabricated testimony.  Astonishingly, lied to her pain management specialist about her prior extensive drug use, and failed to provide a reasonable explanation at trial as to the reason that she was untruthful.  Additionally, the court had the ability to observe the plaintiff's conduct in court over multiple days, and finds her to be a significantly less than average witness in that regard.  This decision reflects these adverse findings.

The court finds the defendant's negligence caused the accident with the plaintiff.  More particularly, the defendant is negligent as a matter of law in that its driver, Smith, violated General Statutes § 14–243(a).  Smith moved his small pickup truck from a parked position when the movement could not be made with reasonable safety and without interfering with other traffic, specifically the plaintiff's vehicle.  The court does not find the driver of the plaintiff's vehicle negligent.

The court credits Smith's testimony concerning the collision.  “Just the nose of the truck got out of the parking space,” and that the collision “was a rub, pretty much no impact.”  The court also credits the testimony of the passenger in the Smith vehicle, Jeff Ganavage, that the defendant's vehicle “struck the middle of the front passenger door [of the plaintiff's vehicle] at an angle.”  Finally, concerning the collision, the court credits the evidence in the Police Accident Report that the investigating officer “observed damage to both vehicles.  Each vehicle seemed to have incurred no more than a scrape.”  The court accepts the plaintiff's testimony that there were scrapes from the front passenger door to the back door, and that some unidentified piece of debris was on the ground.  There were no complaints of injuries at the scene.

The court discredits the testimony of the plaintiff in which she described the force of the collision.  For example, the court rejects the plaintiff's testimony that the accident involved a “hard impact,” and that the plaintiff “flew to the right” and hit her shoulder on the window and “flew back to the left” over the console in the middle of the vehicle.  The only evidence produced by the plaintiff concerning the impact was her self-serving testimony.  The court makes the reasonable inference that the “rub” like impact did not affect her body in the vehicle in the ways the plaintiff described, and that her testimony to the contrary is untruthful.  Importantly, this untruthful testimony is the medical history consistently given by the plaintiff to her treating physicians, and provides the basis for their diagnoses and treatments.

The plaintiff began her lengthy course of extensive medical care and treatment eight days after the accident.  On August 29, 2007, she went to the emergency room at Griffin Hospital complaining only of neck pain from the accident.  She was discharged and told to use muscle relaxants and ibuprofen.  Two days later, she began a course of treatment with Dr. Saul Hochman, a chiropractor, who treated her for neck, back and right shoulder pain related to the collision based on his diagnosis of sprains and strains to those regions.  She treated with Dr. Hochman until March 11, 2008.  At the time, the plaintiff was discharged for the reason that she reached “maximum medical improvement,” and she was assigned 5% permanent partial impairments to her neck, back and right shoulder.  Dr. Hochman causally related those injuries to the collision.  At trial, the plaintiff disagreed with Dr. Hochman's assessment that she had reached her maximum state of improvement for her injuries.

The plaintiff testified that she began to suffer severe migraine headaches a month or two after the accident.  The headaches were so severe during four or five days of the month that she would basically be bedridden because she suffered from nausea, vomiting, and sensitivity to light and sound.  The plaintiff claimed to have less severe headaches for five to ten days of the month.  She did not complain of headaches to Dr. Hochman, although she had been suffering from them during five or six months of his treatment.  The plaintiff claims that these headaches are caused by the collision.  The defendant vehemently disagrees.

The plaintiff did not seek treatment for her injuries again for approximately nine months.  On June 2, 2008, she visited Dr. William Lewis, an orthopedic physician, complaining of continuing pain in her neck and low back.  Dr. Lewis commented that “[t]he patient notes frequent headaches since the time of the accident.”  Dr. Lewis noted that the plaintiff “denies any nausea or vomiting ․” which was inconsistent with her own description of the physical effects of her migraine headaches.  Despite the fact that she continued to be treated by various medical doctors, there is no documentary evidence that the plaintiff again complained of headaches in any detail until her first visit to Dr. Roslyn Einbinder, a neurologist, approximately four and one-half years after her visit with Dr. Lewis.²  Dr. Lewis discharged the plaintiff after one visit, and assigned her a 5% permanent partial impairment to her neck and back.

The plaintiff did not seek treatment for her injuries after her single visit with Dr. Lewis until a year later, and testified that the reason she did not treat is because she did not have transportation.  On June 5, 2009, the plaintiff visited Dr. Gerald Abidor, an orthopedic physician, complaining of low back, neck and right shoulder pain.  She characterized her pain in each of those regions as eight out of ten.  The plaintiff denied any history of opiate addiction, treatment or abuse.  Dr. Abidor administered a lidocaine injection into the plaintiff's cervical spine.

Dr. Alice Chen, an orthopedic physician, was the next medical doctor visited by the plaintiff.  In her medical report dated December 9, 2009, Dr. Chen stated that she was “asked to evaluate [the plaintiff] for persistent low back pain radiating down the right leg.”  This was the plaintiff's only visit, and no significant treatment occurred.

The plaintiff visited Dr. Eric Katz on March 19, 2012, and had three subsequent visits with him.  He diagnosed her as suffering from neck and back strain, and impingement syndrome of her right shoulder.  Dr. Katz administered a cortisone injection to the plaintiff's low back, gave her a lumbosacral corset, and treated her with Vicodin and Motrin.  Dr. Katz noted that he “discussed [with the plaintiff that] taking narcotics on a regular basis is not appropriate treatment.”

In January 2013, the plaintiff discussed with a medical doctor for the first time the migraine headaches that were causing her severe physical symptoms since shortly after the accident in 2007.  The plaintiff saw Dr. Einbinder for a neurologic evaluation on January 17, 2013.  Dr. Einbinder noted that the plaintiff's “vehicle was broadsided ․ by a pickup truck on her passenger side.  She recalls being jolted over to the right and over the center console to the left, striking the passenger door.  She was shaken, but did not seek care.”  Dr. Einbinder testified that the use of the word “broadsided” was her own, and that she meant a “perpendicular strike.” ³  That testimony is inconsistent with Dr. Einbinder's deposition testimony wherein she testified that the plaintiff told her “that she was broadsided on the passenger side by a pickup truck.”  Regardless, the plaintiff gave Dr. Einbinder an inaccurate description of the nature of the collision, and, as a result, the patient history underlying the physician's assessment and treatment of the plaintiff was inaccurate.  Further, based upon the plaintiff's description of what physically happened to her in the vehicle as a result of the impact, which testimony the court has found not credible, Dr. Einbinder testified at her deposition as follows:  “I mean, she was, she was jostled around quite a bit.  From a neurologic point of view, it doesn't matter to me whether she went from side to side or forwards or backward or all of the above, she had neurologic symptoms after being jostled around.”

Based on the plaintiff being an inaccurate and untruthful historian in this case, the court rejects the medical opinions of Dr. Einbinder.  Significantly, based upon the history recited by the plaintiff, Dr. Einbinder diagnosed her as having post concussive syndrome with post traumatic headaches.  As Dr. Einbinder explained at trial, the plaintiff sustained a concussion in the accident that resulted in post concussion syndrome with post concussive headaches (meaning the headaches are part of the syndrome).  There is no objective evidence that supports the plaintiff's claim that she sustained a concussion in the accident.  The court has rejected the plaintiff's testimony that the impact was hard, and that she was thrown about the interior of the vehicle.  Therefore, the court gives no weight to Dr. Einbinder's opinion that the movement of the plaintiff's body inside the vehicle as a result of the impact caused her to suffer post concussion syndrome with post traumatic headaches.  That the plaintiff did not have any medical treatment for these claimed severe headaches she experiences numerous times a month until years after the accident provides support for the court view of Dr. Einbinder's diagnostic and causal conclusions.  Moreover, the court finds Dr. Einbinder's response to the plaintiff's failure to treat for her severe and debilitating headaches for five and one-half years after the accident was due to Dr. Einbinder's belief that most physicians “don't understand headaches,” to be self-serving and also deserving of no weight.

Succinctly stated, the court concludes that the plaintiff failed to prove that the accident caused her migraine headaches.  The court also rejects Dr. Einbinder's opinions on the plaintiff's neck and back injuries for the same reasons.  In view of the foregoing, the plaintiff failed to prove that Dr. Einbinder's medical treatment and expenses are causally related to the accident, reasonable and necessary.

Dr. Einbinder referred the plaintiff to Dr. Pardeep Sood, a pain medicine physician.  She first visited him on July 28, 2014, almost seven years after the accident.  The plaintiff described the physical effects of the accident to Dr. Sood in the same manner as she did to Dr. Einbinder;  that is, “[s]he reports that she hit the passenger side front door and then was thrown over the console.”  On that day, Dr. Sood noted that the plaintiff rated “her pain at a severity of 9/10.”

As discussed, the plaintiff has rated her pain as being constantly and unrelentingly in that range since the date of the accident, and that she is significantly limited in her daily activities.  To the surprise of the plaintiff, the defendant introduced into evidence during her cross examination a videotape taken the day before her initial visit with Dr. Sood showing the plaintiff and her sister jumping off a high wooden pier on Montauk in Long Island, into a body of water that appears to be the ocean.  They then swam out of the picture despite the plaintiff's testimony, given prior to her being confronted with the videotape, that she was unable to swim as she did.

More troubling to the court are two forms completed by the plaintiff as part of her care and treatment with Dr. Sood. A Narcotic Medication Agreement signed by the plaintiff on her initial visit, and form designated as “SOAPP–R” filled out by the plaintiff on November 6, 2014.  In the Narcotic Medication Agreement, the plaintiff wrote her initials next to numbered paragraphs, including her acknowledgment that she has “no history of substance abuse or dependence,” would “not use any illegal substances,” and would “not take prescription pain medication from another physician, patient, friend or family member.”  The SOAPP form contained questions that required the plaintiff to respond based on a five factor scale from “Never” to “Very Often.”  The plaintiff responded that she never attended an AA or NA meeting, never had any others suggest that she had a drug or alcohol problem, and was never treated for a drug or alcohol problem,

The plaintiff was untruthful to her pain doctor about her prior drug abuse.  The evidence at trial showed that approximately ten years prior to trial, when the plaintiff was 17 years of age, she was admitted in October 2005 to Hall–Brooke Behavioral Services Adolescent Intensive Outpatient Program.  The plaintiff was referred to that program by Arms Acres, a substance abuse residential inpatient program, where she was admitted in August 2005 for chronic heroin (which she was inhaling) and cannabis abuse.  In an assessment form for Hall–Brooke, the plaintiff indicated that she began using marijuana daily at 13 years old, opioids by way of inhalation at 16 years once in a while, heroin daily at 16 years old, PCP at 16 years one time, and cocaine at 14 years old two times.  The plaintiff also attended AA and NA meetings at that time.

The plaintiff's response at trial that she forgot about her documented history of significant drug abuse until trial because it was merely high school experimentation defies common sense and believability.  Her testimony concerning her drug history illustrates one of numerous times the plaintiff was untruthful and fabricated her testimony.

Dovetailed with her lack of truthfulness to Dr. Sood is the fact that the plaintiff has received from Dr. Sood, as part of his treatment of her over 465 days as of the time of trial approximately 1,000 Vicodin pills as part of her pain management.  That amount equals slightly over two pills a day.  There is evidence that one month the plaintiff finished her Vicodin earlier than prescribed, and frequently requested that her dosage be increased.  Dr. Sood testified that he did not give the plaintiff a new prescription earlier than he should have, and did not accede to her requests to increase her dosage.  Nevertheless, the plaintiff has never tested positive for the presence of that drug in her system in the five toxicology tests that were administered to her through August 10, 2015.  The plaintiff offered no explanation as to why she never tested positive.  The plaintiff did offer an explanation for testing positive for oxycodone and oxymorphone on November 6, 2014;  that being, she never received a controlled substance from another provider and did not know why those drugs were in her system.

In view of the foregoing, Dr. Sood's treatment of the plaintiff does not merit discussion other than to note that the court credits the testimony of Dr. Mushaweh, a neurosurgeon who performed a records review.  The court credits Dr. Mushaweh's testimony that Dr. Sood “way overtreated” the plaintiff and that his aggressive interventional pain management was unreasonable and unnecessary.  The court concludes that the plaintiff failed to prove that her treatment with Dr. Sood was causally related to the accident, reasonable and necessary.

The court also credits Dr. Mushaweh's testimony, supported by the medical evidence, that the plaintiff sustained a sprain and strain to her neck and back in the accident, and reached maximum improvement for those injures within eight months after the accident.  Additionally, the court finds that some additional medical treatment after the plaintiff concluded her treatment with Dr. Hochman was reasonable and necessary.  Finally, the court finds that the plaintiff has sustained minor permanent injuries to her neck and back.  The court finds that the plaintiff failed to prove her claim for injury to her right shoulder was caused by the collision, and her claims for any other injuries, including headaches.

The court awards economic damages of $9,155.84.  That amount is the total of the plaintiff's medical expenses for her treatments with the emergency room at Griffin Hospital on the day of the collision;  Dr. Hochman and Dr. Jimenez;  Dr. Lewis;  Dr. Abidor;  Dr. Chen;  2012 MRI of lumbar spine;  and Dr. Katz;  and the cost of her Motrin.  The court awards the plaintiff noneconomic damages of $35,000.  The total damages awarded to the plaintiff are $44,155.84.

TYMA, J.

FOOTNOTES

FN1. The plaintiff's claim against the defendant, William Acevedo, was resolved prior to trial.  The defendant, Jerrell Smith, was an employee of the defendant city at the time of the accident and acting within the scope of his employment.  Therefore, the use of the word “defendant” in this decision means the defendant city..  FN1. The plaintiff's claim against the defendant, William Acevedo, was resolved prior to trial.  The defendant, Jerrell Smith, was an employee of the defendant city at the time of the accident and acting within the scope of his employment.  Therefore, the use of the word “defendant” in this decision means the defendant city.

FN2. The plaintiff visited Dr. Katz on March 19, 2012, and indicated on the history form provided to her that she had a history of headaches.  There is no evidence that she discussed her headaches any further with Dr. Katz..  FN2. The plaintiff visited Dr. Katz on March 19, 2012, and indicated on the history form provided to her that she had a history of headaches.  There is no evidence that she discussed her headaches any further with Dr. Katz.

FN3. In the witness box, the doctor placed her hands in a “T” like position, inferring the colloquial “T–Bone” collision..  FN3. In the witness box, the doctor placed her hands in a “T” like position, inferring the colloquial “T–Bone” collision.

Tyma, Theodore R., J.