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Posner v. Holmes

October 28, 1999

LAURIE E. POSNER, APPELLANT
v.
KEVIN A. HOLMES, APPELLEE



Before Terry, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Terry, Associate Judge

Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)

Submitted January 28, 1999

Appellant Posner brought this negligence action against appellee Holmes for damages resulting from injuries she allegedly suffered when the two of them were involved in an automobile accident. A jury, having found that Holmes was negligent and that the injuries suffered by Posner were the result of his negligence, awarded Posner $80,000 in damages. Posner filed a motion for new trial, asserting that the amount of the verdict was inadequate, but the trial court denied the motion. On appeal Ms. Posner contends that the denial of her motion was an abuse of discretion. She argues that because the jury found that Holmes' negligence proximately caused the accident, it was required to compensate her for all of her injuries. Since the amount of the verdict was not even sufficient to cover her medical expenses and lost wages, she concludes that the verdict could not have included any amount for her pain and suffering, and that she should therefore have a new trial. We hold that, because there was a factual dispute as to the extent of the injuries actually attributable to the accident, the amount of the verdict was not legally inadequate, and that the trial court therefore did not abuse its discretion when it denied Ms. Posner's motion. Accordingly, we affirm.

I.

Appellant Posner is a paramedic. On the evening of July 10, 1994, she was driving an ambulance on an emergency run, with flashing lights and blaring siren. Despite the lights and siren, appellee Holmes failed to yield the right of way at an intersection, and his car collided with the ambulance.

Following the accident, Ms. Posner sought medical treatment for pain in her neck, arms, and back. A magnetic resonance imaging (MRI) examination, performed on August 5, revealed that she had two herniated disks at C4-5 and C6-7 in her neck. Her treating physician, Dr. Neil Kahanovitz, determined from a physical examination and from the MRI that her symptoms were consistent with a herniated C6-7 disk; he concluded, however, that the herniated C4-5 disk was asymptomatic. On September 13 Dr. Kahanovitz operated on Ms. Posner's neck. He removed the damaged disk at C6-7 and replaced it with a piece of bone taken from her hip, thereby fusing that section of the spine. Although the surgery was successful, the site on the hip from which the bone had been removed became infected, requiring Ms. Posner to take antibiotics and have the wound periodically drained for several months thereafter.

Following the surgery, Ms. Posner wore a hard neck collar for six weeks and then a soft collar for six more weeks. According to Dr. Kahanovitz, Ms. Posner was free of symptoms in January 1995 and was ready to return to work as a paramedic, which she did on February 9, 1995. *fn1 However, because her certification as a paramedic had lapsed during her time away from work, she could not immediately return to her full duties. On her first day back on the job, therefore, Ms. Posner did nothing but paperwork. On the second day, she helped her supervisor move some office chairs up three flights of stairs. That night she experienced pain and spasms in her neck. On February 13 she returned to Dr. Kahanovitz, who conducted additional tests and gave her some more medication. She did not then go back to work.

In October 1995 Ms. Posner consulted Dr. Bruce Ammerman, who determined, after some additional tests, that Ms. Posner was experiencing problems associated with a herniated disk at C4-5. Accordingly, Dr. Ammerman operated on the C4-5 disk in November 1995. The operation was very similar to the previous one, except that the site on her hip from which the piece of bone was removed did not become infected. After the second surgery, Ms. Posner again had to wear a collar - this time for fourteen weeks - and to receive physical therapy. Finally, Ms. Posner was physically able to return to work on June 3, 1996. Because her certification had lapsed, however, she had to go back to the training academy to get recertified. On July 20 she returned to work in her full capacity as a paramedic.

Ms. Posner has scars on her neck and hips as a result of the two surgeries. According to her testimony, she continues to have pain in her arms and neck. Although she can perform her duties as a paramedic, she cannot lift as much as she could before she was injured. Her medical expenses, including all the tests and the two surgeries, totaled $44,095.53. Her lost wages from July 10, 1994, to February 9, 1995, and from February 11, 1995, to June 3, 1996, added up to $63,833.01. Her total financial losses (the sum of these two figures) amounted to $107,928.54.

At trial Mr. Holmes stipulated that Ms. Posner's injury to her C6-7 disk was the result of the accident. However, he denied that his negligence was the cause of the accident and also raised issues of contributory negligence and ambulance brake failure. In addition, Holmes disputed the assertion that the accident was the proximate cause of the injury to the disk at C4-5. His medical expert, Dr. Herbert Joseph, relying on Dr. Kahanovitz's records, *fn2 testified that before February 1995, when she carried the chairs up three flights of stairs, Ms. Posner did not have any symptoms related to the C4-5 disk. In his opinion, Ms. Posner's lifting and carrying the chairs up those stairs was the proximate cause of the problems she had with the C4-5 disk, necessitating the second surgery. *fn3

With the aid of a special verdict form, the jury found that Mr. Holmes was negligent and that his negligence "was the proximate cause of the injuries and damages sustained by the plaintiff Laurie Posner." It awarded Ms. Posner $80,000 in damages. The verdict form, however, was not specific enough to permit the jury to indicate whether Mr. Holmes' negligence was the proximate cause of all the injuries and damages sustained by Ms. Posner or just the injury to the C6-7 disk and the medical expenses, lost wages, pain and suffering attributable to that injury alone.

After the return of the verdict, Ms. Posner filed a motion for a new trial on the issue of damages. She claimed that the amount of the verdict was insufficient because it did not cover all of her medical expenses and lost wages and did not compensate her at all for her pain and ...


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