Facts

On Aug. 6, 2011, plaintiff Laura Lamoureux, 46, was struck in the abdomen by her shopping cart after an employee of defendant Keil's Food Store hit it.

PLAINTIFF'S CONTENTIONS:
Plaintiff claimed the employee was operating a fully loaded powerized pallet jack. The impact, plaintiff contended, was significant forcing plaintiff backwards several steps and into the diary case. Plaintiff argued that the impact was severe, by knocking the wind out of her, and that she was in significant distress post accident. Plaintiff claimed that defendant saved the only video of the accident and accused defendant of intentionally failing to save more video because it would have depicted plaintiff in significant distress after the accident.

DEFENDANT'S CONTENTIONS:
The defense admitted liability but denied the impact was as significant as alleged by plaintiff.

Settlement Discussions

Plaintiff made a statutory demand in the sum of $250,000. The defense made a settlement offer of $10,000 that was reduced to a statutory offer to compromise.

Specials in Evidence

$175,000 waived waived $79,902

Injuries

Plaintiff claimed she suffered trauma to her lumbar spine aggravating a pre-existing slight scoliosis that ultimately rendered her scoliosis unstable requiring surgery with stabilization. Plaintiff claimed that she had a history of fibromyalgia, but no prior diagnosis of scoliosis or a recommendation for back surgery. Plaintiff claimed her life had been dramatically changed as a result of the surgery and that she would need a future surgery at the adjacent levels of her lumbar spine above and below the location of the current surgery. Defendant claimed that plaintiff's pre-existing fibromyalgia and other abnormalities caused her to over dramatize the situation. Defendant argued that plaintiff initially made complaints of abdominal pain only at the emergency room the day following this incident. A CT scan of her abdomen was taken which did identify pre-existing scoliosis. Over the next year, plaintiff was seen at UC San Diego Medical Center for multiple ailments including joint pain associated with her fibromyalgia. Plaintiff alleged that she told her fibromyalgia doctor that she had a new and significant pain to her mid back, but the records did not document a new complaint. The accident occurred on Aug. 6, 2011 and in October 2012, after returning from an out-of-state trip, plaintiff requested an x-ray and referral to an orthopedist. X-rays and MRIs of her lumbar spine documented severe and unstable scoliosis to the mid lumbar spine resulting in a four-level fusion. The defense contended that plaintiff gave a false history to the surgeon at UCSD stating her back pain started with the subject incident. The surgeon at UCSD made a diagnosis of traumatic scoliosis and performed surgery. The defense medical expert, neurosurgeon Peter Ostrup, M.D., opined that traumatic scoliosis is extremely rare and that there was no evidence of acute pathology in the diagnostic studies immediately after the accident. Further, a comparison of the lumbar spine seen in the CT scan taken the day after the accident was similar to the MRI and x-ray studies that were done just prior to the surgery more than a year later. The defense therefore argued there was no causal connection between the surgery and the subject incident and that the only medical treatment plaintiff received related to the subject incident was her initial ER visit that cost $6,100.

Result

Plaintiff's verdict was $6,100 for past medical expenses, $0 for future medical expenses, $7,000 past non-economic damages and $0 future non-economic damages for a total verdict of $13,100.

Other Information

FILING DATE: July 30, 2013.

Deliberation

one day

Length

five days