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McLeish v. Beachy

March 02, 2000


Before Farrell and Reid, Associate Judges, and Kern, Senior Judge.

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

Appeal from the Superior Court of the District of Columbia (Hon. Jose M. Lopez, Trial Judge)

(Submitted February 15, 2000

Appellants, a mother and child, filed suit in May 1996 alleging injury sustained by the child (hereafter "Tahishia") in an accident that occurred while she was a passenger in a school bus driven by appellee. Before trial, appellee moved the court to strike the de bene esse deposition of appellants' sole medical expert and grant summary judgment on the ground that the expert failed as a matter of law to establish proximate causation between the accident and Tahishia's alleged injuries, which consisted of ongoing headaches. The trial judge granted the motion essentially because, as he read the expert's testimony, it would not enable the jury to quantify the relationship between pre-existing headaches Tahishia had experienced and those traceable to the accident. We reverse and remand, holding that the expert's testimony, if credited, was sufficient to allow a jury to conclude that Tahishia suffered discrete injury - migraine headaches - as a result of the bus accident.


While on a field trip to Washington, D.C. in May 1993, the bus in which Tahishia was riding struck an automobile. Tahishia stated in her deposition that when the bus driver (appellee) applied the brakes, she struck part of her face on the seat in front of her, loosening a tooth and causing her lip to bleed. A hospital examination that evening revealed few signs of injury, but beginning in April 1995 Tahishia was treated by a physician for headaches which, according to his report, she had had almost daily "for 2-3 years," accompanied by "some light- headedness and nausea and occasional blurred vision." A second physician who treated the child in May 1996 reported that she had "experienced headaches for the past 4 years. They are worsening. She describes them as throbbing. They occur daily [and] . . . are accompanied by blurred vision, diplopia, tearing, nausea, vomiting, light-headedness, and numbness of both legs." He diagnosed her as "[p]ositive for head injury. The patient experienced headaches prior to [the bus accident] injury but they worsened afterwards"; and his impression was that they were migraine headaches.

Tahishia began receiving care from Dr. Amy Stauffer, a pediatric neurologist, in June 1996 (three years after the accident). Dr. Stauffer was then listed as the appellants' sole medical expert at trial. In her de bene esse deposition, Dr. Stauffer sought to distinguish between two different forms of headaches for which she had treated (and was still treating) Tahishia. On the basis of what the child and her mother had told her, Dr. Stauffer was aware that before the bus accident Tahishia had experienced "just normal headaches that anybody else would get, tension type where you lie down and probably don't even require medicine." Since the accident, however, Tahishia suffered from both tension headaches and migraine headaches, for which Dr. Stauffer was treating her separately:

[Tahishia] does complain of daily headaches, mostly in the afternoon. These headaches I consider to be tension headaches. Most daily headaches are not migraine headaches but are, in fact tension headaches. We are trying to deal with those with physical therapy. She does also have the migraines which, when she gets them, do interfere [with her life]. She does not go about her usual activities. She goes into the bedroom. She sometimes gets sick to the stomach and basically has to lie down and take something to go to sleep. And so she can't be doing her normal activities during the time that she has a migraine.

For the migraine headaches, Tahishia was being treated primarily with medication.

Dr. Stauffer expressed the opinion, "based on a reasonable degree of medical probability," that "the trauma [associated with the bus accident had] cause[d Tahishia's] headaches to begin." Comparing the symptoms of the ordinary headaches she had experienced before the accident with those characteristic of migraines, the doctor found "no evidence" that Tahishia's migraines pre-dated the accident. Symptomatically, the two forms of headache differ markedly:

[M]igraines tend to be much worse than your every day, what we consider tension type headaches. The tension type headaches are usually pressure, usually feel like pressure and involve the whole head or like a band around the head or a [sic] and sometime the muscles in the neck can become involved and sore. Those headaches are basically what we could call everyday or tension, or when you have a hard day at work, you come home and have a headache. That's the normal headache type.

Migraine is different, both in the fact that it affects the blood vessels and also in the intensity of pain and the other symptoms that are involved. You generally, with tension headaches, you don't throw-up. Generally, with tension headaches you don't see funny things in front of your eyes. You don't usually get numb or weak on one side of the body with a tension headache. The degree of pain is certainly a lot greater.

Moreover, according to Dr. Stauffer, unlike ordinary headaches caused by tension, migraine headaches may be caused by trauma, although they need not be and the trauma "can be relatively minor." But, again "with[in] the reasonable degree of medical probability," Dr. Stauffer's opinion was "that if someone [like Tahishia] had no migraines and then all of a sudden after the trauma [of an accident] they're having migraines, that's pretty clear that that . . . played a role in causing the migraine for that person."

Cross examined by appellee's counsel, Dr. Stauffer acknowledged that she had made previous statements less explicit in linking the migraines solely to the accident. Thus, in an earlier deposition she had stated that Tahishia "was suffering from migraine headaches which worsened after the bus accident" (emphasis added); and in a March 1997 letter she had opined that Tahishia's migraine had "become much worse as a result of her accident on 5/19/93." Her opinion ...

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