Facts

Defendant Gary McKae was driving his wife Cynthia's SUV. As he approached an intersection, the SUV collided with the rear of an American Lock van. The impact moved the van forward so that it struck the rear of plaintiff Kim Ortega's vehicle, which was stopped at an intersection. Two weeks after the collision, the plaintiff sought treatment for her lower back and neck. She had two sessions and then went on vacation for the holidays. She resumed treatment and her doctor documented that her pain had increased. Several months later she suffered a sudden, acute episode of pain, accompanied by radiating pain and numbness in her leg. A lumbar MRI revealed a 7-mm left-sided herniated disc at L4-5 and an annular tear at L5-S1. The plaintiff sued Gary McKae for negligent operation and Cynthia for vicarious liability. The McKaes conceded liability.

PLAINTIFF'S CONTENTIONS:
The plaintiff claimed that her back injury and subsequent surgery were caused by the accident. Her chiropractor testified that he was aware she had been suffering from thoracic spine pain and radiating leg pain ever since plaintiff returned from her vacation, but that he had failed to note it in his records.

DEFENDANT'S CONTENTIONS:
The defendants presented an expert who testified that a person with plaintiff's injuries would not have been able to withstand the pain for over four months, as the plaintiff claimed to have done. The defendants emphasized that the plaintiff's chiropractor's records made no mention of radiating leg pain until nearly three months after the accident. Their expert testified that radiating leg pain is the key clinical symptom of a herniated lumbar disc, and therefore, the herniation likely occurred after the accident. They suggested that the plaintiff, an expert snow boarder, had injured herself performing some other physical activities after the accident. The plaintiff admitted that she had gone snow boarding once after the accident, but the defendants identified a series of 10 to 12 inch snowfalls in Lake Tahoe that appeared to pattern the plaintiff's increased back pain during that time period.

Specials in Evidence

$12,000 $50,000

Damages

The plaintiff claimed that she led an active lifestyle prior to the accident and that her back injury impeded her lifestyle. She sought $300,000 for pain and suffering.

Injuries

The plaintiff had a 7-mm left-sided herniated disc at L4-5 and an annular tear at L5-S1. She underwent an emergency discectomy.

Result

The jury found that the accident initiated by Gary McKae was not the cause of plaintiff's injury and subsequent surgery.

Deliberation

two days

Poll

10-2

Length

eight days