Case details

Crash aggravated prior asymptomatic spinal injuries: plaintiff





Result type

Not present

back, bulging disc, cervical, neck, stenosis
On Dec. 28, 2016, plaintiff Gougnia Xyong, 27, a cashier, was driving north on North First Street, in Fresno. As she entered the intersection with Gettysburg Avenue, her vehicle was broadsided by a vehicle operated by Kelvin Diaz, who was making a right turn onto North First Street from westbound Gettysburg Avenue. Xyong claimed to her neck and back. Xyong sued Kelvin Diaz (who was initially sued as "Titilola Lakeru-Rivas") and the registered owner of Diaz’s vehicle, Titilola Rivers (who was initially sued as "Kelvin Diaz Inoa"). Xyong alleged that Diaz was negligent in the operation of his vehicle and that Rivers was vicariously liable for Diaz’s actions. Rivers was ultimately dismissed form the case and the matter continued against Diaz only. Xyong’s counsel contended that Diaz ran a red light at the subject intersection and attempted an unsafe right turn onto North First Street. Counsel contended that as a result, Diaz struck Xyong’s vehicle, which entered the intersection on a green light. Diaz claimed that he did not see Xyong before entering the intersection. Thus, Diaz ultimately admitted liability for the accident., Xyong claimed that she was an "eggshell plaintiff" and that her previously asymptomatic condition became symptomatic after the accident. Specifically, she claimed that she had degenerative bulging cervical and lumbar discs at the C3-4, C4-5, C5-6, L2-3 and L4-5 levels, as well as stenosis at almost all levels of her lumbar spine. However, she claimed that her spinal condition was asymptomatic — with no neck or back pain — before the accident and that her both her cervical and lumbar conditions became symptomatic after the accident. Xyong claimed that on the day of the accident, she had soft tissue to her chest and left shoulder and that she developed neck pain and dizziness shortly thereafter. However, she was not treated at the scene or taken to by ambulance to a hospital. Instead, the next day, she presented to the emergency room at Clovis Community Medical Center, in Clovis, where she underwent X-rays and was prescribed pain medication. She was then discharged and told to follow up with her primary care physician. Xyong claimed she developed lower back pain a few days later and eventually presented to a chiropractor on Jan. 3, 2017. The chiropractor diagnosed her with to her chest, neck, left shoulder, and middle and lower back. Xyong subsequently underwent physical therapy and chiropractic therapy. She also had neurosurgical consultations and received a few rounds of epidural steroid injections to her lower back by an interventional pain specialist. According to plaintiff’s counsel, all medical specialists agreed that Xyong’s bulging cervical and lumbar discs were present before the accident and only became symptomatic after the accident; that Xyong had chronic pain that was caused by the accident; and that Xyong’s condition was almost entirely resolved by the time of trial, except for her lower back pain. The plaintiff’s expert neurosurgeon opined that Xyong would need a long-term physical therapy program, active exercise and a yoga program, and a trial of radiofrequency ablations. Xyong changed her job from a cashier at Jack’s Carwash to a waitress and was able to continue working as a waitress after her first epidural injection. However, she claimed that once the injection wore off, the job became too physical for her, so she had to take a position as a packer at Inc. Xyong did not make a wage loss claim, and only sought recovery for her past and future medical costs, and her past and future pain and suffering. Defense counsel agreed that all of Xyong’s complaints, except her lower back complaint, were resolved by the time of trial. However, counsel contended that since all of Xyong’s other were resolved, Xyong was excessively treated. Specifically, defense counsel argued that Xyong’s epidural injections were unwarranted and outside of best practices, and that the MRI was unrelated to the subject accident and outside of best practices. The defense’s expert neurosurgeon opined that Xyong would not need ablations and that Xyong would not need anything other than a short course of physical therapy, home and gym exercises with yoga, and strengthening.
Superior Court of Fresno County, Fresno, CA

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