Opinion
CV166060147S
01-16-2019
Monique POUNCY et al. v. Anthony IGNOTO et al.
UNPUBLISHED OPINION
OPINION
Thomas Corradino, J.T.R.
This case is a suit brought by Monique Pouncy and her daughter Latoya Pouncey. Monique Pouncey was driving a car in an easterly direction on Foxon Boulevard in New Haven, on January 16, 2015. Her daughter was a passenger in the car. The plaintiff Monique Pouncey stopped at the intersection of Foxon Boulevard and Quinnipiac Avenue with the intention of turning left onto Quinnipiac Avenue and was in the left turn lane. The complaint alleges the traffic light turned green for the left turn lane and the plaintiff began to make a left turn. It further alleges that Anthony Ignoto was driving a vehicle westerly on Foxon Boulevard and, as the plaintiff Monique Pouncey was proceeding to make a left turn into Quinnipiac Avenue, Anthony Ignoto "ran his red traffic signal and entered the intersection." Monique Pouncey "turned her vehicle to the right in an effort to avoid the collision but the defendant Anthony Ignoto struck (the plaintiff’s) vehicle."
The plaintiffs claim to have suffered injuries as a result of this accident causing them economic and non-economic damages. They claim the collision was caused by Anthony Ignoto because of common-law and statutory negligence.
The suit lies against Anthony Ignoto and a claim was made under the Family Car Doctrine against Alphonse Ignoto who maintained the vehicle Anthony Ignoto was driving as a family car; the latter driving the car under the owner’s general authority. Alphonse Ignoto died intestate in March 2016, the Probate Court then appointed the defendant Cosmo Ignoto II as Executor of the Estate of Alphonse Ignoto.
A trial before the court was held on November 28, 2018. Liability was admitted and the hearing was held to determine what, if any, damages the plaintiffs are entitled to receive.
The court will discuss these claims for economic and non-economic damages separately for each plaintiff in more detail but first will discuss generally the relevance or weight that should be attached to the fact that it could be argued that the photos of both vehicles involved did not indicate there was a major impact despite the fact that Monique Pouncey testified the Anthony Ignoto vehicle pulled over because the collision caused a blow out of the tire in the car that he was driving.
There is a Delaware case, Davis v. Maute, 770 A.2d 36, 40 (Del. 2001) that holds: "As a general rule, a party in a personal injury case may not directly argue that the seriousness of personal injuries from a car accident correlates to the extent of the damage to the cars, unless the party can produce competent expert testimony on the issue. Absent such expert testimony, any inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation." Our state explicitly rejects this position. In Berndston v. Annino, 177 Conn. 41, 44 (1979) the court noted the division of authority on this issue but said: "even though liability is fully admitted, evidence of speed, physical impact, and the like is admissible as to the probable extent of personal injuries," see also Flores v. Jenison, 37 Conn.L.Rptr. 328 (Frazzini, J. 2004).
I.
The court will discuss the claim of Monique Pouncey for economic and non-economic damages. It will first review Ms. Pouncey’s testimony as regards the nature of the accident. It will then discuss her injury claims and claim for noneconomic damages. In a separate section the court will review the police report and medical treatment records in an effort to evaluate her claim of injuries that she says resulted from this accident. It will then address the issue of economic damages.
(a)
Ms. Pouncey described the impact of the accident on her car on a scale of one to ten saying it was eight or nine. She testified the accident caused her to jerk backwards, she was wearing a seat-belt. Her general claims in the complaint are back pain, knee injury, ankle pain and injury to her wrist and also neck and shoulder pain. She hurt her ankle after the accident when her car was stopped. She exited her vehicle and when she did so her foot rolled over causing injury to her ankle.
As will be discussed Ms. Pouncy went to the Emergency Room the day after the accident and on January 22, 2015 started a course of chiropractic treatment which terminated six months later on July 15, 2015. She described how her injuries affected her life activities since the accident and pain she claims resulted from the accident. She testified on November 28, 2018 almost four years after the accident. She works in a rehabilitation facility as a nurses’ assistant. Her job requires her to have patients pivot. She instructs patients on how to walk and use walkers or crutches. This is all hard for her because as a result of the accident her lower back hurts, and she also said "I still have that chronic pain every now and then, it’s like a muscle spasm." She started working as a nurses’ assistant in 2004 and never had these problems before. On the other hand at one point she testified now she has pain three or four times a week but that does not meet the definition of "chronic" and what is chronic pain "now and then."
She takes Aleve and muscle relaxers but she cannot use them at work because it makes a person fall asleep.
On direct Ms. Pouncey testified that she wears a brace at work every now and then but testified she cannot wear it every day because it hurts. On cross she said no one prescribed a brace for her and she also testified nurses’ assistants in any event wear braces to support their back while they work. The brace helps her lift things and pivot patients but she cannot wear it for more than eight hours. Query (1) is her work shift more than eight hours (2) does the brace itself hurt because of her injuries or do the injuries caused by the accident prevent her from using a brace all day long. Despite the claims of pain she experiences doing her job there is no claim for lost wages as a result of lost time from work due to this accident.
On Cross the following occurred:
Q. All right. Okay. So am I correct that your claims here in this accident specifically are Your— your back?
A. Yes.
Q. And your— your knee— I mean your ankle?
A. My Ankle.
As will be discussed this testimony in part contradicts claims made during physical therapy and allegations of the complaint filed December 3, 2016. Therein injuries to the right wrist and left knee were also made.
As to limitations and interference with life activities other than problems at work, there was not much in the way of trial testimony. During therapy Ms. Pouncey said as a result of the accident she could not engage in recreational walking. This was not mentioned at trial. During cross examination the following also occurred:
Q. Okay. All right. And you’ve been able to attend family functions and concerts and graduations and stuff like that?
A. Yes, I have.
Q. Okay. All right. So this accident hasn’t prohibited you from doing that sort of stuff, right?
A. No.
Specifically turning the injury to her right ankle, Ms. Pouncey testified that injury did not result from the collision with the defendant’s vehicle, the collision itself did not cause the injury to the ankle. She injured her ankle after the accident when she stepped out of her car and rolled over her ankle. The English philosopher David Hume once said if B follows A that does not mean that A caused B. Or. to suggest another hypothetical if the driver of a car is injured in a collision with another car whose driver was negligent in causing the accident and an ambulance is called to take the injured driver to the hospital, if on the way to the hospital another unrelated vehicle crashes into the ambulance the first at fault driver could not be held responsible for separate injuries resulting from the collision involving the ambulance. Causation requires same thing more than a temporal analysis.
(b)
The court will now focus on the police and medical records to try to determine what impact they have on her claim for pain and suffering and focus on whatever their contents contradicts any of her claims of injury and pain and suffering at trial.
A police officer went to the accident scene and made a report. Minor damage to the Pouncey car were noted which was not towed from the scene. Neither Monique or Latoya Pouncey requested medical attention at the accident scene and the officer noted that there was no apparent injury to the parties involved in the accident.
Monique Pouncey did not go for medical treatment right after the accident testifying that this was so because she had a training session scheduled at her job. The accident happened between 5:45 and 6:00 p.m. on January 16, 2015. She went to the Emergency Room at 3:52 p.m. on January 17, 2015. The Emergency Room notes indicate Ms. Pouncey indicated that since the accident she has had upper back pain, and pain in the left knee, and right ankle. She reported the pain was moderate but constant. Tests indicated mild decreased range of motion in the knee, swelling of the right ankle, tenderness in the thoracic and lumbar back but no tenderness in the cervical back. An abnormal gait and limping were noted. She was instructed to take pain medications (ibuprofen or Aleve) and arrange an appointment with her primary care doctor in two days. Her diagnosis was "MVA (motor vehicle accident), back pain, knee contusion, sprain of ankle, right, and arthritis."
She sought chiropractic treatment at Connecticut Spine & Rehab., her first visit being on January 22, 2015 six days after the accident. Dr. Corrigan wrote a letter on that date describing Ms. Pouncey’s complaints and his medical observations. He notes that the day after the accident Ms. Pouncey said "she woke up experiencing sharp pain across her lower neck and back region, right wrist soreness, upper to lower back pain and spasms, left knee and right ankle pain." In his examination the doctor noted severe muscle tenderness in the cervical and upper back area as well as joint restrictions in these areas. Range of motion testing of the right wrist produced pain.
Testing produced pain and limitation of range of motion in these areas. Knee examination revealed a contusion and pain upon movement. Ankle inspection indicated swelling and pain with range of motion.
The knee contusion indicates that the impact on her vehicle was of some force. She also indicates her right wrist hit the steering wheel.
What must be noted, however, is that she told the doctor she experienced the sharp pains mentioned when she woke up on the morning of January 17, 2015 several hours before she went to the Emergency Room. But Emergency Room notes indicate the pain to various parts of her body was moderate not sharp and she did not mention right wrist problems when she went to the Emergency Room.
Ms. Pouncey began chiropractic treatment visits on January 28, 2015 with a final visit on July 7, 2015. Following each visit the physical therapist would list what he considered his objective findings in addition to the plaintiff’s subjective complaints, which the court will discuss. After each therapy session the treater noted joint fixation at C5, T1, T6, T12 and L5 on palpitation— the court assumes C refers to the cervical area, T to the thoracic area and L to the lumbar spine. For many of the therapy sessions the objective section of the report indicated "severe" and sometimes "exquisite" pain at C4 to T2, T5 to T8 and T12 to L5 bilaterally. Query how is the expression of pain by the person enduring therapy "objective"? The April 27, 2015 report indicated upon palpitation severe pain was noted at T5 to T8, and T12 to L5 bilaterally but only moderate pain and discomfort at C4 to T2.
Comments were made after each visit as noted and in the first several months pain and spasms in the mid back area were also noted in the neck and upper back areas with varying degrees of severity. She told the treater several times she had difficulty bending and walking. On several visits she reported knee and ankle pain and on June 8, 2015 at one session she said her knee and ankle were worse: she said to the clinician her ankle pain was worse at the June 29, 2015 session. Four times in March and two times each in April and May of 2015 Ms. Pouncey claimed she was having wrist pain.
Her description of her condition as to various body parts varied over the treatment period from saying it was unchanged, worse, or improving. From three times per week, therapy visits were reduced to twice a week commencing April 27, 2015. After April 27, 2015 the pain noted was sometimes severe but often moderate in these C, T and L areas. From May 19, 2015 on pain in some of these areas was objectively listed as moderate.
On June 19 visits were reduced to once a week. The Monday June 22, 2015 objective report upon examination of the aforementioned areas said pain and tightness was only "fairly moderate." On June 22, 2015 Ms. Pouncey said she was improving in her overall condition. The last session on July 7, 2015 said the "plan" was for Ms. Pouncey to continue with weekly visits upon reexamination. She never did so from July 7, 2015 to the date of the trial which was November 28, 2018, a period of three and a half years.
The last medical report is dated July 15, 2015 and is a letter from Dr. Corrigan of the Connecticut Spine & Rehab., issued the same day as Ms. Pouncey’s last physical therapy session. It purports to be a final evaluation of the injuries Ms. Pouncey sustained in a motor vehicle accident on January 16, 2015. What is interesting is that despite therapy treatments to the date of the letter for thoracic and cervical issues only the lumbar spine is mentioned for which Dr. Corrigan gives a 5% impairment although he represents he examined the treatment records in making his evaluation. There is no mention either of the right ankle injury or wrist injuries resulting from this accident. He concluded Ms. Pouncey had reached maximum medical improvement. He notes she cannot stand or did more than 30 minutes without experiencing lower back pain. A home remedies exercise regimen is recommended. If flare ups occur because of work or other activity and cannot be with home care she should contact his office.
In the letter, as noted, persistent symptoms in the lumbar spine are noted as well as spasms and myalgia and loss of lumbar range of motion. Also there has been a derangement of soft tissue in the lumbar spine. His final exam indicated pain in the lumbar spine upon palpitation, tenderness along with spasms and range of motion restrictions. Tests reproduced radiating pain down the right leg.
Dr. Corrigan, as noted, told Ms. Pouncey to return for treatment if flare ups occurred and cannot be controlled by home care. But how can a flare up prognosis describe a chronic condition? More to the point since July 15, 2015 Ms. Pouncey has not returned to Dr. Corrigan’s nor is there a record for going anyplace else for treatment of any uncontrolled flare ups to the lumbar region.
Also it should be noted that in obtaining this discharge from treatment letter Ms. Pouncey herself makes no mention of any injury or other problem except for her lower back problem although apparently to the conclusion of physical therapy she was treated for cervical and thoracic problems.
This is particularly confusing since as late as June 29, 2015 she was complaining to the physical therapist about problems with her neck and thoracic area. Also on the July sessions the therapist noted joint problems in the cervical and thoracic area with pain in these areas.
The fact remains that Dr. Corrigan advised in his July 15th letter to come back for restorative care if she had flare ups due to the amount of work activity and/or exercise she may perform. The point is that even with this admonition she never returned to the doctor’s facility for three and a half years before trial. There was no evidence that she continued with home exercises he recommended and did anything other than take pain medication. The court also has a problem with the claimed severity of her injuries. She cannot sit or stand for more than 30 minutes but admits going to concerts and graduations. The ordinary activities of life require us to sit or stand at least when moving for more than 30 minutes but she experiences the pain in her lower back only 3 or 4 times a week. There is no description of the intensity of pain in the lumbar region in Dr. Corrigan’s July 15, 2015 letter and he merely suggests she take over the counter medication to deal with her problems. As noted she did complain to the doctor of pain she experienced when she stood or sat more than thirty minutes but up until July 1, 2015 Ms. Pouncey told the therapist she could not engage in recreational walking. Why no mention of this to Dr. Corrigan’s letter if it were truly a problem for months.
Query if such a problem can disappear in a week or two as well as pain in the thoracic and cervical areas why not "chronic pain" in the lower back? And again the therapist notes in the "objective" part of the reports that the plaintiff was experiencing pain and Dr. Corrigan noted this in his July 15, 2015 letter when he gives a permanency rating but how are expressions of pain "objective," the same is true of range of motion testing— and can palpitation be the cause of spasms? These questions were not addressed by the offer of medical testimony.
In any event the court does conclude she experienced pain and other limitations requiring an Emergency Room visit as well as several months of physical therapy but that was the credible limit of her claim.
(c)
As a result of the foregoing discussion the court concludes Monique Pouncey should be awarded economic damages for hospital expenses incurred a result of going to the Emergency Room and the full expenses of chiropractic care including physical therapy sessions. But the non-economic damages must take account of the contradictions and qualifications in her testimony and the medical records she presented. The following is the court’s judgment in the case of Monique Pouncey:
Economic Damages
Chiropractic Treatment
$7, 025.00
Hospital Expenses
$2, 308.00
Total Economic
$9, 338.00 (minus any insurance payments*)
Non-Economic Damages
$15, 000.00
Total Economic and Non-Economic
$24, 338.00
Latoya Pouncey
Ms. Latoya Pouncey is the daughter of Monique Pouncey and was a passenger in the car. Her description of how the accident happened corresponds to her mother’s. The accident caused her back to come in contact with the car seat and she hit her head on the window. She did not lose consciousness. She did not go to the hospital the night of the accident because she did not feel pain and knew she had to go to work. She also had to pick up her daughter who was waiting at her sister’s. She went to the Emergency Room the next day and then to the chiropractor, Dr. Corrigan.
The court adopts the discussion earlier in the decision about the nature of the impact and the relevance of its severity on any claim for injuries.
(a)
Latoya Pouncey at trial was asked how the injuries she suffered affects her on a day to day basis. She responded in terms of back injury only. She is a cashier at Burger King, a job that does not require her to lift things. She said she has back pain that "comes and goes." It limits, to some extent, what she can do with her eight-year-old daughter but she did not get into specifics. She went for chiropractic treatment at Dr. Corrigan’s office because she had been having muscle spasms. On cross examination she said the symptoms she was having did not prevent her from doing work activities. She continues to take over the counter medication for residual symptoms. She lost no time from work.
She testified she does have daily back pain; she said "I just deal with it." She also testified she never had any injury to her lumbar spine before. The court will now try to examine the medical letter from Dr. Corrigan and the physical therapist she went to for chiropractic treatment including statements she made to medical treaters, and how this information correlates with the claim for pain and suffering.
The court has previously discussed the police report prepared in this case in the Monique Pouncey matter and those observations apply in the case of Latoya Pouncey.
(b)
The court will now try to review the hospital record physical therapy reports, and evaluations by Dr. Corrigan of Connecticut Spine & Rehab., where she went for chiropractic treatment.
She went to the Emergency Room the day after the accident saying she struck her head against the car window as a result of the crash and she had a headache. Pain was present in the head and mid back; the pain was moderate. She had taken Aleve prior to going to the Emergency Room. Upon examination it was noted that she did not appear ill; there was no distress. The neck was found to be supple and mild bilateral tenderness was noted but there was no spinous process tenderness. As to her thoracic back she exhibited mild bilateral muscular tenderness but no bony tenderness. Regarding the lumbar back the physical exam section states "lumbar back: she exhibits no tenderness and no bony tenderness." She was prescribed Tylenol upon discharge. The doctor opined her symptoms were casually related to the car accident. She went for chiropractic treatment at Connecticut Spine & Rehab., seeing Dr. Corrigan on January 22, 2015. He prepared a letter on that date which contained his initial evaluation. She complained to the doctor of constant headache, dizziness, radiating neck pain into the right shoulder, numbness and tingling in her right hand. She also said she had upper and lower back pain. Much of the foregoing was not mentioned in the Emergency Room visit to which she had gone five days earlier.
Upon examination the doctor noted muscle spasms in the cervical, thoracic, and lumbar areas and a restricted range of motion. Testing resulted in radiating pain in her right shoulder and mid scapular region. She also told the doctor she had not previously experienced symptoms like the foregoing. The doctor recommended chiropractic treatment. The first visit by the plaintiff was on January 28, 2015 and her final treatment visit was on July 7, 2015.
Therapist notes from the January 28th session to March 26 show a consistent pattern in that Latoya Pouncey indicates that she felt pain in the neck, upper back and lower back areas. The therapist noted muscle spasms in these areas also. After February 19, 2015 the plaintiff said her head pain had moderated and prior to March 26, 2015 she usually told the therapist her condition was unchanged from the last visit. On April 8th she noted improvements in her neck pain and her upper back area but the pain bilaterally on the lower back area became more intense. On April 30, 2015 she noted improvement in her overall condition. Objective testing however, revealed pain in the entire back area. But after the April 30th visit upon each visit, she often noted improvement in her condition but on occasion this would not be the case. The "objective findings" after this date still referred to pain in the neck and back area but often used the word mild or moderate to describe these findings. Until April 9th three therapy visits were scheduled, after that date it was reduced to two visits per week. Subjectively the plaintiff kept noting improvements in her overall condition or said it was unchanged. Throughout this period, however, the therapist on occasion made observation of severe amount of tension and stiffness in the lower back. On June 4, 2015 the visits were reduced to one visit a week but the therapist continued to make observations of severe muscle tension and stiffness in the lower back area.
The July 7, 2015 visit indicates the plaintiff noted "some general improvement with headache pain," suggesting it was ongoing; she noted some improvements also in neck pain and in her middle back area but the pain in the lower back "has become a little more intense." The "plan" comments on the July 7, 2015 report state "Anticipating a reexamination patient, will return weekly." There is no indication she returned for further treatment after the July 7th date which was over three years prior to trial.
The letter of Dr. Corrigan issued on July 15, 2015 discharging the plaintiff Latoya Pouncey from treatment is very similar to her mother’s July 15th letter. Although he reviewed all the physical therapy reports before writing the letter and in his original January 22, 2015 letter said her multiple complaints of radiating pain in the cervical area and mid back pain were caused by the January 16, accident, the only conclusion reached in the July 15, 2015 letter is that Latoya Pouncey had a 5% impairment of the lumbar spine— no mention is made of pain and spasms in the neck and upper and mid back region almost a common theme of the therapy reports. As late as July 7, 2015 the plaintiff reports muscle pain in the neck region and upper back. But eight days later on July 15, 2015 the letter issued on that date indicates only problems with back pain. The "final clinical impression talks of residuals of a lumbar strain/sprain." She like her mother was told to return to the office if there were any flare ups but there is no indication she did so until the time of trial some three and a half years until the time of trial.
What does this mean? Did all the other pain and injury claims she made when she first talked to the doctor and during therapy clear up in a week’s time, or was there never a credible basis for a conclusion that they resulted from the January 16, 2015 accident?
In the activities of daily living section of the July 15, 2015 letter the plaintiff makes similar claims to her mother— she cannot sit, drive, or stand more than thirty minutes without experiencing lower back pain which radiates to the left leg. In the letter when the doctor describes the 5% impairment rating he mentions positive examination findings as a basis including "continued pain" and "subjective and objective complaints as factor he considered. The foregoing discussion throw into question these particular claimed "objective" factors such as claims of pain and this coupled with no return for treatment despite claims of daily pain, at least for the court, limits the amount of recovery for pain and suffering and limitation of life activities. The limitation on activities claim is only given passing, non-detailed mention in the trial testimony. It is also true that her job does not require much movement lifting or bending which seems to be an aspect of the mother’s job.
In any event the court does believe there were grounds for her going for therapy— in all likelihood it appears to have been successful to a large degree if her communications to Dr. Corrigan for the July 15th letter are accepted.
Judgment
The court awards the following damages to Latoya Pouncey:
Economic: Hospital
$6, 680.00
Chiropractic Treatment
$1, 022.00
Total:
Non-Economic
$10, 000.00
Total:
$19, 702.00
It is the court’s understanding that much if not all of this expense has been satisfied by insurance payments.