Case details

Plaintiffs’ ongoing pain not related to crash, defense argued





Result type

Not present

back, bruise, bulging disc, cervical chest, cervical disc injury, chest, fusion, head, headaches neck, lower back, lumbar, neck, neck. pain, neurological, radicular pain, radiculitis, whiplash
On Oct. 1, 2008, plaintiff Dean Lehr, 60, an unemployed hotel and restaurant upper manager, was operating his vehicle with his daughter, plaintiff Jacqueline Lehr, 23, a student, as a front seat passenger. Mr. Lehr was driving approximately 20 to 30 miles per hour when he was forced to slow down to a complete stop in order to allow the vehicle driving in front of him to make a right hand turn into a driveway. Elda Phillips, who was driving behind Mr. Lehr at approximately 20 to 25 mph, allegedly did not notice Mr. Lehr’s vehicle slowing down. As a result, Phillips was unable to stop her vehicle before colliding with the rear of Mr. Lehr’s vehicle. Mr. and Ms. Lehr each complained of back and neck pain to the responders at the scene. The Lehrs sued Phillips, alleging that Phillips was negligent in the operation of her vehicle. Phillips conceded negligence, but disputed the nature and extent of the Lehrs’ alleged ., Mr. and Ms. Lehr both declined medical treatment at the scene. Mr. Lehr claimed lower back pain due to lumbar disc at the L4-5 and L5-S1 levels, retrolisthesis, foraminal narrowing of the L5 and S1 spinal region, causing radiating pain down into his legs. He also claimed mid-back pain, bruising on his left shoulder and chest, and a torn tendon/ligament in the left non-dominant hand and wrist that caused pain to radiate up his left arm. Mr. Lehr underwent surgery on his left wrist on Aug. 20, 2009, and underwent a second procedure on Sept. 10, 2009, in order to remove pins that were placed during the first wrist procedure. Thereafter, Mr. Lehr underwent a third surgery on his left wrist on Sept. 15, 2011, and then underwent lumbar fusion surgery to eliminate the radiating pain in December 2012. Thus, Mr. Lehr sought recovery of $143,000 in past medical expenses, $520,000 in future medical expenses, $1,022,020 in past lost wages, and $800,646 in future lost wages. Ms. Lehr claimed she sustained minimal cervical disc bulges at the C3-4, C4-5 and C5-6 levels. She also claimed she suffered whiplash, myalgia, and a thoracic disc extrusion at the T3-4 level. She further claimed she suffered pain in the areas of the lower cervical spine, shoulder, and mid-back; and spasms and pain in the trapezium, neck, and mid-back muscles, and occasionally in the lower back. In addition, she claimed thoracic disc , a bruise across her chest/sternum, and headaches. Ms. Lehr initially received conservative treatment for her alleged until she was discharged from physical therapy on Feb. 26, 2009. She was then involved in a second motor vehicle accident on May 29, 2009. Thereafter, Ms. Lehr treated with a physician on Sept. 10, 2009, and then began receiving trigger point neck injections on May 26, 2011. She also underwent a branch block procedure and began receiving rhizotomy treatments in order to reduce her alleged neck pain. Thus, Ms. Lehr sought recovery of $38,000 in past medical expenses and $357,000 in future medical expenses. Plaintiffs’ counsel argued that Mr. and Ms. Lehr had been in constant pain since the date of the accident and that this pain interfered with their daily activities and employment opportunities. Therefore, in addition to the amount of economic damages sought, plaintiffs’ counsel asked the jury to award Mr. and Ms. Lehr approximately $3 million in damages for their past and future pain and suffering. Defense counsel noted that the property damage to Mr. Lehr’s vehicle totaled $2,422 and that the property damage to Phillips’ vehicle totaled $15,188. Thus, defense counsel argued that the plaintiffs’ claims of pain were greatly exaggerated, as also evidenced by significant gaps in the plaintiffs’ treatment, their frequent traveling, and their overall activity level. The defense’s orthopedic expert performed an independent medical exam of Mr. Lehr and opined that Mr. Lehr did not suffer a significant injury as a result of the subject incident. The expert also opined that the injury was merely an exacerbation of Mr. Lehr’s underlying degenerative spondylolisthesis and degenerative lumbar spine. The defense’s hand surgery expert also performed an IME of Mr. Lehr. He opined that Mr. Lehr had osteoarthritis in his left hand and wrist prior to the subject incident and that Mr. Lehr’s scapholunate ligament rupture was an attritional injury, rather than a traumatic injury. Thus, it the expert opined that Mr. Lehr’s left hand and wrist injury was not attributable to the subject incident. The defense’s orthopedic expert performed an IME of Ms. Lehr and opined that Ms. Lehr had suffered a mild to moderate strain/sprain as a result of the subject accident. The expert also opined that all of Ms. Lehr’s treatment was reasonable and necessary until the end of February 2009 and that any subsequent treatment was borne out of Ms. Lehr’s subsequent motor vehicle accident and complex physical and emotional makeup.
Superior Court of Marin County, Marin, CA

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