"Eggshell" plaintiff sustains knee, serious back and mental injuries, with lifetime disability. Causation disputed. $2.8 million. Sacramento County.

Facts and Background

• Facts and Background:

  On December 4, 2010, defendant Susan Van Rein, in her Jeep Liberty, impacted  the passenger side front quarter of the Subaru Impreza wagon driven by plaintiff Kimberly Muniz..

  At trial, defendant emphasized the fact that plaintiff was morbidly obese and a recently laid-off dental lab technician who lived a sedentary lifestyle with her mother and father before the collision.

  Experts for both sides described a “moderate” impact collision involving a change in velocity of 12 to 15 miles per hour in a tenth of a second. Plaintiff’s airbag deployed, the seat belt functioned properly, but plaintiff’s knees hit the interior of the driver compartment.

  At the scene of the collision plaintiff exited the vehicle and then returned to rescue her dachshund from her car. The traffic collision report indicated a report of pain to plaintiff’s neck, back and legs. EMT records and emergency room records mentioned only knees.

  One month after the collision, plaintiff sought treatment at a clinic for low income families lacking insurance. Plaintiff’s questionnaire indicated no low back or neck issues. Plaintiff’s mother testified that back and neck problems were raised at the clinic. Plaintiff’s left knee bruise and shins were the focus of the initial clinical treatment.

  Beginning immediately after the collision, plaintiff developed an acute fear of driving or riding in any vehicle. Plaintiff also experienced memory problems immediately following the collision such that she cannot compute her current age, cannot spell her middle name and cannot sketch drawings, which she enjoyed as her primary pastime.

  Plaintiff also experienced anxiety and panic attacks as well as chronic sleep disturbance. Pre-collision records revealed plaintiff suffered from a brain seizure disorder as a child and was placed in special education classes up to high school graduation.

  Eight months after the collision, the clinic treating plaintiff’s knees referred her internally to a staff chiropractor for low back and neck complaints. Plaintiff had four sessions of chiropractic therapy over four weeks. Eleven months after the collision, plaintiff was released from further medical treatment of her knees at the clinic. Plaintiff still had complaints of lingering pain in her knees. Plaintiff’s mother testified that back pain was mentioned to the clinic even though not reflected in the records at the time treatment ended.

  One year after the collision, plaintiff’s mother arranged consultation with the family chiropractor because of continued complaints of pain in the low back, neck and knees. Plaintiff’s family testified that the onset of low back pain and neck pain began immediately after the collision.

  MRI confirmed an alarmingly large herniation blocking 80% of the spinal canal. Orthopedic surgery was recommended immediately; however, financial constraints delayed surgery an additional year. Due to an emergent onset of lost sensation, plaintiff received emergency surgery, microdiscectomy from Dr. Philip Orisek of Folsom, CA. At trial, Dr. Orisek testified that it was 95% likely the herniation he operated on was caused by the collision.

   

• Plaintiff's Contentions:

  Sacramento physiatrist, Dr. Christopher Stephenson, provided expert forensic medical opinion testimony linking the collision to plaintiff’s various injuries, including the herniation. Based upon his physical examination and interview of the patient, Dr. Stephenson recommended lifetime treatments for plaintiff’s chronic pain and limited function, including trigger point injections, four hours' daily home health aide and a service animal for life.

  Plaintiff’s expert neuropsychologist, Dr. Richard Perrillo offered testimony and evidence linking the collision to the loss of 24 IQ points to plaintiff’s auditory working memory. Dr. Perrillo’s diagnostic impression included panic attacks, PTSD and brain dysfunction caused by severe emotional disturbance imposed on an unusually susceptible ("eggshell") abnormal brain. Dr. Perrillo recommended 3 to 5 years of therapy and treatment and also endorsed home health and a service animal for plaintiff’s safety and well-being.

• Defendant's Contentions:

  Defendant admitted negligence but the nature and extent of plaintiff’s injuries were disputed.

  Defendant stipulated that plaintiff’s post-surgical pain complaints and lack of function were legitimate. Defendant did not offer evidence to contradict plaintiff’s claimed incapacity to work.

  However, defendant argued that the herniation, discovered one year after the collision, could not have been related to the collision. According to defendant’s expert neurosurgeon, Dr. Kawanaa Carter, the collision could not have been a factor in causing the herniation because back problems were not documented in medical records until the clinic chiropractor did so eight months after the collision. Dr. Carter further testified that everyday events such as bearing down on a bowel movement could cause a large herniation. In Dr. Carter’s opinion since the herniation could be caused by anything, the herniation was caused by possibly anything close in time to the onset of herniation related symptoms (8 months later) and not the collision.

  Defendant neuropsychologist Dr. John Wicks testified that he was unable to complete his examination of plaintiff but his incomplete diagnostic impression was that plaintiff is possibly schizophrenic and not brain injured from the collision.

  Defendant further argued that Plaintiff’s unemployed status at the time of the collision negated Plaintiff’s claim for future lost wages.