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BREACH BUT NO DAMAGE

In October of 2011, Dwayne Schwartz side-swiped Susan Christ while he was trying to pass a stopped bus; Schwartz was travelling approximately ten miles per hour. After the accident, both drivers moved their cars to the side of the rode and at that time Mrs. Christ got out of her car and began running up and down the street looking for witnesses. The police were called to the accident scene and when they attempted to talk to Mr. Schwartz, Ms. Christ continuously interrupted them, stepping in between Mr. Schwartz and the police. It was not until Ms. Christ’s husband, Jon Christ, arrived that Ms. Christ began to complain of pain in her shoulder, neck and back. Mr. Christ offered to drive Ms. Christ home, but she refused and drove herself home.fast-car-1561464

The day after the accident, Ms. Christ went to her family physician, Dr. Gregory Babikian, complaining of neck and back pain. She was prescribed muscle relaxers and physical therapy. Ignoring the recommendation of her doctor, Ms. Christ began to see a massage therapist instead. It was not until January of 2012 that Ms. Christ finally went to physical therapy. While, Ms. Christ saw some improvement, a year after the accident she was still complaining of neck pain. In June of 2012, Ms. Christ began seeing a new physician, Dr. Fahime Lessani, complaining of ongoing pain and reduced range of motion. Dr. Lessani ordered x-rays and an MRI, which showed no injury or abnormalities. Ms. Christ was referred to a rheumatologist; she only went once. Dr. Lessani prescribed more physical therapy.

Between October and August of 2013, Ms. Christ received no treatment with concern to pain and injuries from the October 2011 accident. However, in August 2013, Ms. Christ filed a lawsuit against Mr. Schwartz for negligence and Mr. Christ, in the same suit, claimed a loss of consortium. Also, in August 2013, Ms. Christ began seeing a new rheumatologist, Dr. Frank Kozin. She told Dr. Kozin in the two years since the accident, she had experienced constant pain in her neck and upper back. Dr. Kozin diagnosed her with residuals of whiplash injury that was going to be a permanent process.

The defense requested a medical exam of Ms. Christ. On April of 2014, the defense medical expert, Dr. Raymond Vance, examined Ms. Christ. Dr. Vance found her to be completely normal, with no significant atrophy of the muscles, and no loss of range of motion. Dr. Vance opined that the only injury from the accident was from Ms. Christ’s subjective complaint of neck and back pain. Also, it came to light that Ms. Christ had a history of neck pain prior to the accident. In 2009, Ms. Christ was injured in the slip-and-fall accident injuring her shoulder, arm and knee, with shoulder pain radiating to her neck. She filed a personal injury claim for this incident and settled the case out of court. Before 2009, Ms. Christ had filed a claim in dog bite case involving an injury to her hand; that case was also settled. Medical records dating back to 2010 demonstrated a history of Ms. Christ suffering from headaches, neck pain, upper back pain, anxiety, depressive disorder, and facial pain.

Not long after Dr. Vance’s examination, Ms. Christ wrote him a letter changing what she told him in the examination; stating she underrepresented the amount of pain she was in and the symptoms she was suffering from. She claimed that she could no longer do household chores or take care of her personal care needs, such as brushing her teeth and getting dressed. Ms. Christ claimed that she could not lift anything over five pounds and could not function in some semi-normal way unless she did yoga. Dr. Vance went on to state that the soft tissue damages that Ms. Christ was claiming usually heal within days, weeks or a matter of months and that soft tissue injury causes a chronic condition, such as Ms. Christ was claiming, in only one percent of the population.

Along with the personal injury claim filed by Ms. Christ, Mr. Christ filed a loss of consortium claim. The Christs testified that Ms. Christ’s symptoms interfered with their relationship and that it made it impossible for them to participate in the activities that they once enjoyed together. Mr. Christ testified that he could not even touch Ms.. Christ’s arms, shoulders, back or neck without causing her to jump in pain, wince and pull away from him. However, the defense hired an investigator that videoed Ms. Christ lifting large trash cans and carrying them down the driveway, picking up dogs, holding large handbags, and bending at the waist without apparent pain. The video also showed Mr. Christ touching Ms. Christ’s back without causing her any pain.

The case went to trial and Ms. Christ’s attorney requested $227,289 in damages, between $855,000 and $1,995,000 for pain and suffering, $15,960 for future medical expenses, $104,025 for future medication, $27,360 for future opiate medication and $75,000 for past loss of consortium and $200,000 for future loss of consortium. The jury awarded zero dollars for past and future economic damages and zero dollars for non-economic damages and Mr. Christ’s loss of consortium claim. This verdict was upheld in California’s Fourth Appellate District.

In order to bring a negligence claim, the plaintiff must prove that the defendant owed the plaintiff a duty of care; that the defendant breached that duty; that the breach directly caused injuries to the plaintiff; and plaintiff suffered a monetary loss. Here, Ms. Christ could not adequately prove that Mr. Schwartz’s breach of duty, sideswiping her as he attempted to pass a bus, caused her injuries. In fact, the defense was able to show that Ms. Christ had a medical history of complaining of neck and back pain prior to the accident and that the “injuries” that Ms. Christ suffered were not interfering in her daily life as she claimed. Also, Ms. Christ lost credibility with the jury in multiple ways: the prior injuries, the long periods of time between doctor’s appointments, the changing of doctors, changing her complaints after her visit with the defense expert, and the video that seemingly refuted her claims.

It is important when you are in an accident to call the police immediately and get a report, and if you are in pain getting in with a doctor immediately. It is also important to follow the recommendations of the doctor, whether that be physical therapy, surgery, massage therapy, or simply rest. If you do not follow the doctor’s recommendations and do not immediately seek a second opinion then understand that such a break in treatment does not look good when trying to settle or try your case. Also, the defense does have the right to ask for a medical examination of you and your injuries by a doctor of their choice. Ms. Christ hurt her case by doing none of the above.

Secondly, it is important to maintain honesty with your doctor and your lawyer. Repeatedly changing the story or the symptoms, places your doctor in a position where he cannot accurately diagnose you, in turn making it difficult for your lawyer to claim damages from injuries. Honesty with your attorney, from the beginning, allows your attorney to effectively represent you and prepare for any attacks or questions that the defense may raise. Remember, honesty is the best policy.

Here at the Dean Law Firm, our attorneys are experienced and prepared to guide you through your negligence claim. We have experience and know how to help you through this difficult time. Please call us at 352-387-8700 or visit our website at www.deanfirm.com.