The plaintiff highway worker in the employ of the Department of Transportation (D.O.T.) contended that the defendant driver negligently failed to observe a work truck containing a flashing arrow to alert drivers of a road construction site, and struck the truck as the plaintiff was sitting in it. The plaintiff, who was a heavy-set individual who had formerly played semi-pro football, and who was a weightlifter, contended that despite prior back problems and treatment, he had been able to work as a laborer for the D.O.T. for an approximate 20 year period. The plaintiff asserted that the accident caused a severe aggravation of the degenerative disc disease and necessitated an initial laminectomy and subsequent fusion surgery, which will permanently prevent the plaintiff from working.
The evidence disclosed that the plaintiff had a relatively significant history of prior lower back complaints, had required intermittent conservative treatment, and had missed some time from work because of episodes of lower back pain. The plaintiff contended, however, that he was able to work at heavy physical labor and otherwise lead a very active lifestyle until the subject accident occurred. The plaintiff maintained that the accident was severe, that the property damage was extensive, and that he was removed on a backboard.
The plaintiff further maintained that after it became apparent that continued conservative therapy was not sufficient, he underwent a laminectomy. The evidence revealed that after the plaintiff’s recuperation from this initial surgery, the plaintiff returned to work. The plaintiff related that he attempted to work despite the pain until approximately six to eight months later when he suffered an aggravation when using a jackhammer. The plaintiff asserted that after the incident, it became apparent that he required additional surgery and the plaintiff’s orthopedic surgeon performed fusion surgery. The plaintiff’s orthopedist would have maintained that the plaintiff is permanently unemployable. The plaintiff also maintained that he has been forced to lead a much more sedentary lifestyle and that such impediments are permanent in nature.
The defendant would have argued that in view of the history of significant degenerative disc disease, the need for a substantial amount of prior medical care, and the history of missing some time from work because of lower back difficulties, the plaintiff’s claims that his current condition was caused by the subject accident should be significantly questioned. The plaintiff would have countered that since he had been able to work in heavy labor for many years and had been able to otherwise engage in physically rigorous activities until the subject accident occurred, it was clear that the injuries sustained in the accident were causally related to his current condition.
The case settled prior to trial for $1,000,000.
D.K. vs. Hendricks; July 2004
Attorney for plaintiff, Charles Cerussi of Red Bank and Manhattan and John Marshall of Red Bank.
COMMENTARY:
The plaintiff was able to command a very significant recovery notwithstanding a very significant history of lower back complaints associated with degenerative disc disease. The plaintiff stressed during settlement negotiations, that despite this history, he had been able to continue working at heavy physical labor. Additionally, the evidence that the plaintiff made an attempt to return to work after the initial surgery, but could not continue, and required the fusion surgery after he suffered an aggravation upon working with a jackhammer, clearly would have rendered the plaintiff’s arguments that he was a very determined and hard working individual who would not permit the injuries to have a greater impact on him than absolutely necessary.
The evidence that the work truck containing the warning arrow on the back was struck with great force during daylight hours, and that the plaintiff was subjected to an extensive amount of force in the impact, would have also impacted significantly on the jury if the case had been tried. Finally, in his report, the defendant’s orthopedist “asked” a rhetorical question if it could be reasonable to believe that in the face of the prior extensive pathology, that the accident could cause an aggravation which was sufficiently severe to prompt the surgical interventions. In the report, the expert answered this rhetorical question in the affirmative.
