Opinion
CV156056824S
03-12-2019
Stephanie RISPOLI et al. v. David TUELL
UNPUBLISHED OPINION
OPINION
Corradino, Judge
This case is a claim arising out of an auto accident by two plaintiffs, Stephanie Milano and Jason Rispoli against David Tuell. At the time of the accident on January 30, 2014, they were married and Ms. Milano was driving their vehicle in a southerly direction entering Route 15 in North Haven. While stopped on the ramp to enter the highway their vehicle was rear ended by a vehicle driven by Mr. Tuell. As a result of the accident both plaintiffs claim injuries.
Pictures of the plaintiffs’ vehicle were taken after the accident. Pictures marked as Exhibits 1 through 6 and 8 through 12 indicate that the impact did observable damage to the left rear side of the vehicle on the driver’s side. This was not a simple tap or bump situation that is sometimes the case in these rear end collision cases. Ms. Milano said upon impact which was "pretty hard"; "I went forward and my seatbelt kind of held me back." Mr. Rispoli was a passenger in the car. He testified that the impact "was hard enough to throw me forward" and he said "first I went back into the seat and then forward and then back into the seat again."
There is a Delaware case, Davis v. Marge, 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).
At trial it was not contested that the defendant was liable for causing the accident. The trial was basically a hearing in damages as to whether and to what extent Ms. Milano and Mr. Rispoli suffered economic and non-economic damages. The court will first discuss the claims of Ms. Milano and then those of Mr. Rispoli.
I.
The day after the accident Ms. Milano testified that she started experiencing pain in her neck, left shoulder and had headaches.
(a.)
The court will first discuss the claim as to headaches which the plaintiff testified were caused by this accident. The question presented is whether the headaches cause her pain, how often, and the way this affected her life activities for several months after the accident and whether these headaches presently affect her and to what extent.
She testified that a month or so after the accident she told Dr. Connair the headaches especially are affecting her daily life— when they hit they were extremely debilitating. Their duration was longer than headaches she suffered before this accident and "the pain was much more intense." The court will first discuss the trial testimony of Ms. Milano with regard to her headaches.
Before this accident she would have headaches twice a week. After the accident she could not get any relief from the headaches. She went again to see Dr. Connair, her orthopedist, in April 2014 because her headaches "had gotten a lot worse." She went to an April 20, 2014 appointment "hysterically crying." She had a headache that lasted six days. She testified she had never had a headache like this before, she could not function. The doctor prescribed a medication and this helped. The testimony about the frequency of the headaches is somewhat confusing. In May 2014 she went again to see Dr. Connair. She said at that time she was having headaches several times a week. Then May 2, 2014 Dr. Connair said she was having the headaches approximately twice a week and she agreed with an August 2014 report by the doctor that she was having headaches twice a week. Medication that was prescribed did not make their intensity return to the less intense typed of headache she experienced before this accident.
She saw Dr. Connair in July 2015 and disagreed with a statement in the doctor’s report that the increased headaches experienced she had after this accident had subsided. She then said she was having headaches three or four times a week and that continued to the present time.
She also saw Dr. Hasbani for the headaches but nothing helps. The headaches are "very significant" and their duration is "several hours at a time." She has to take several days a week off from work "a couple of times a month." The headaches affect her socially. When the headaches hit she has to stay at home and she has to cancel plans— she mentioned one time she had to cancel dinner plans she had with her daughter.
(b.)
The court will now examine two sets of medical reports; one involves treatment records for this accident, the other set involves records for treatment for an earlier auto accident which occurred in February 2012.
(i)
This discussion is somewhat repetitive and will focus not on Ms. Milano’s testimony as to various office visits but the actual content of the reports themselves.
In her first visit to Dr. Connair, on February 28, 2014 one month after the accident, the doctor noted that she had had headaches before the accident but now they were more frequent, three or four times per week rather than twice per week. The doctor noted Ms. Milano does have a history of prior tension type headaches. As noted on April 1, 2014 she went to the doctor sooner than previously scheduled because of a headache she has had for six days. Interestingly she told the doctor that up to a week ago her headaches numbered two or three times per week and only lasted four hours— this is a different narrative than what she told the doctor in February as to the number of headaches.
He prescribed Fioricet "which she has used in the distant past with relief of headaches." And at a May 2, 2014 visit it is noted taking Fioricet has improved her headaches which now occurs twice weekly. The intensity of the headaches is also less. At an August 20, 2014 visit it notes she is on medication and is only having two headaches per week. The doctor notes she experiences tension type headaches following the January 13, 2014 accident.
The January 6, 2015 report by Dr. Connair is also interesting. The first sentence says she continues to experience one or two headaches per week but the "Diagnoses" section says "She still has an increased frequency of headaches now compared to prior to that date (1/30/14) although the frequency is approaching the one or two per week she was having prior to 1/30/14. Cause for these headaches is not entirely clear . Typically the tension type headache is associated with neck pain." (Emphasis by the court.)
The April 22, 2015 report contradicts her testimony about the frequency of her headaches in the first part of 2015 in that it states Ms. Milano is having three headaches a month which are relieved by taking Fioricet. The doctor says her neck pain has been better for several months and in any event counters any observation that the neck injury causes the headaches which is hinted at in the January 2015 report— the doctor says: "These headaches are not associated with neck pain." A July 17, 2015 report states she is having two to three headaches per month which are relieved by Tylenol as necessary.
She also went to see a Dr. Hasbani whose first report is dated April 16, 2015. He states she has post-traumatic migraine headaches. He then says it’s been a few years since her last visit, her headaches are less frequent now that she is off the Topomax but then says she has them only three times per month and once she takes Fioricet the headache is aborted in a half an hour which contradicts her trial testimony.
(b)
Past medical reports are also informative. Dr. Connair in a February 21, 2012 report says she had an auto accident two weeks before and says Ms. Milano has tension headaches associated with neck injury and pain. A March 21, 2012 belies any present claim that the present post-accident headaches are so much worse than headaches prior to this accident. At one point it states: "she is having occipital headaches daily which are, sometimes severe and incapacitating" (emphasis by court). An April 13, 2012 report repeats the theme of daily headaches which are said to be more of a problem for her than the neck pain she experienced in this 2012 accident. A June 13, 2012 report by Dr. Connair indicates she continues to have daily headaches which have not been helped by medication prescribed to her by Dr. Hasbani who treated her apparently for the 2012 accident.
A July 17, 2012 report by Dr. Connair indicates she is still having daily headaches suggestive of a tension type pattern (which in none of the reports is fully defined). An August 10, 2012 report indicates the headaches have dropped to twice per week with medication. An October 12, 2012 and a January 9, 2013 repeat the foregoing.
A final report on October 12, 2013 written to her attorney for the 2012 accident indicates the headaches are "partially improved" and Dr. Connair notes that because of her headaches Dr. Hasbani recommended a limited workday of six hours as of August 13, 2012 was best earlier it had been four hours. A March 29, 2013 letter to another attorney also notes she continues to have headaches because of the 2012 accident and they persist "despite the fact that the neck pain has resolved." Another letter of the same date repeats the foregoing but it adds at the end headaches caused by the trauma of the 2012 accident and any impairment from the headaches must be determined by her neurologist.
An "Orthopedic Office Note" by Dr. Connair again throws into question her trial testimony that the headaches following the present January 30, 2014 accident were much worse than her headaches prior to this accident. The office note was written only thirteen days prior to the present accident and begins "She complains that her headaches are more intense. She is having one to two per week." This to Dr. Connair suggested tension type headaches but she was having no neck pain going along with the headaches.
Finally, it should be noted although a doctor’s testimony is not a prerequisite for a permanency claim, no permanency rating for her headache condition as a result of this accident was given by any of her treating doctors. Perhaps more to the point counsel did not give an estimation of life expectancy— a recognition it would seem of the chronic nature of her headache condition.
(c.)
Moving away from the headache claim, the plaintiff Ms. Milano also claimed this accident caused injury to her neck and shoulder. This resulted in pain and discomfort and limitation on her activities. She testified that the day after the accident she had symptoms in her neck, her back, and her left shoulder. She was prescribed medication by a healthcare facility the day after the accident. She saw Dr. Connair a month after the accident and at that time she testified she still had pain in her neck and shoulder. She described the shoulder pain as "pretty significant." Her shoulder pain made it difficult to do household chores or use her computer at work. After her visit with Dr. Connair she started physical therapy for her neck and shoulder pain and injury. She went for therapy for two months from March 12, 2014 to May 12, 2014 but said it did not help too much.
The "it didn’t help too much" reason for not continuing with physical therapy appears to be contradicted by the final May 12, 2014 report. There it is noted that palpitation of left acromioclavicular joint and ligament remain painful but it also says: (obviously based on what Ms. Milano told the therapist): "Decreased complaints of left shoulder c/4 dermatomal pain with increased pain free active range of motion— into both shoulder elevation and horizontal abduction." The report concludes that her next appointment was May 26, 2014 until she was seen in her orthopedic follow-up by Dr. Connair. She did not see Dr. Connair until August 20, 2014 and there is no mention in the doctor’s letter of the need for physical therapy— in fact the neck pain was gone and shoulder pain was mild and intermittent. Her visits with Dr. Connair continued after the first February visit. In May 2014 she told the doctor her shoulder pain has partially improved and as noted by August, the doctor said the neck pain was gone and the shoulder pain was mild and intermittent.
In a January 2015 visit with Dr. Hasbani she agreed with the statement in his report that by that time the shoulder pain was gone— this was about eleven months after this January 30, 2014 accident. In a July 15, 2015 report prepared by Dr. Connair he said the cervical and shoulder pain caused by the January 2014 accident had resolved. In closing argument, plaintiff’s counsel stated the neck pain after this accident lasted two months and the shoulder pain "was on the mend for the better part of seven months" and she was said to be fully recovered in a report written four months later. In any event Ms. Milano did not go for medical treatment or physical therapy for several years prior to trial.
II.
(a.)
Jason Rispoli was a passenger in the car driven by his then wife Stephanie Milano on January 30, 2014. He testified that as a result of the rear end collision, he was thrown forward and backward in his seat having been restrained by a seatbelt. Later that night he felt injury to his shoulder, the back of his neck up into his head. The court will first discuss Mr. Rispoli’s trial testimony, then will discuss the medical reports submitted into evidence. He went to the Yale New Haven Hospital the evening of the accident on January 30, 2014. He testified that apart from the body parts just referred to he did not have any back problems at that time but corrected this when his counsel referred to the hospital report indicating he had middle or upper back complaints also. The doctors suggested over the counter medication, heating pad, and rest, Mr. Rispoli however, went to work the next day. On February 3, 2014 he woke up and felt dizzy and vomited and went again to the Emergency Room. Apparently he also had a severe headache and a hearing problem according to his testimony. He testified that he had headaches several years before as a result of chemotherapy that were "pretty good ones" but after the chemo "the headaches were nothing." At the ER a painful injection was administered to his neck but it did not do much of anything. He went back to using a heating pad and taking Tylenol but it did not help.
He went to see his orthopedist Dr. Kramer, two weeks after the ER visit. At that time he had a little pain in the middle of his back but the major problems were the headaches and pain in the muscles below the neck. The Flexeril prescribed by the ER and Dr. Kramer did not help. The doctor recommended physical therapy so he commenced with this at Village Place. He went for physical therapy from mid-March to the end of June— It helped for 10 to 15 minutes but then the pain came right back.
Mr. Rispoli was asked about the physical symptoms he is continuing to experience. He said pain in his mid-back started to decrease but the pain in his upper back "lasted to this day." He has pain in the back of his head, headaches, and in the trapezius or muscles in the back of his neck. He has headaches almost daily. The neck pains last for hours and the headaches last for two hours. He gets two types of headaches, regular headaches which are 4 or 5 on a scale of ten, and migraines which are 8. The migraines only occurred after this accident. His neck pain "is always there." He used Flexeril for a number of months but it never really helped and he stopped taking it. He saw Doctor Kramer on April 14, 2014 but did not have an appointment with him again until April 2015. A higher dosage of Flexeril recommended by Doctor Kramer would make him drowsy, he works with chemicals and he cannot take a higher dose. His last visit with the doctor was in November 2015, some three years before trial but he did not go back to the doctor because he was not doing much to help him.
Interestingly he said "in the beginning" of his physical problems he lost two days of work but there is no lost wage claim— two days over a period of four years. Mr. Rispoli’s only claim for restrictions on life activities is that he cannot play softball with his child or any other sports. He used to go to concerts with her all the time but he cannot do much of that. His life expectancy is 33 years.
He was in a motor vehicle accident subsequent to this one but he described it as a "light" accident for which he did not go for medical help and never made a claim because of this subsequent accident.
(b)
The court will now review the medical reports to determine how they correlate with Mr. Rispoli’s trial testimony.
In some respects the medical and physical therapy reports support the plaintiff’s claims, in other respects they do not.
The first Yale ER report for the January 30, 2014 visit indicates he had mid back and shoulder pain on the first page. The pain is said to be constant but was described as mild. The "Review of Systems" section says negative for neck stiffness but "positive for neck pain." But the neck had normal range of motion and was supple. The indications were trauma and pain and tenderness. There is no mention of headaches. The February 3, 2014 ER visit says the patient complained of a severe headache radiating into the neck. Interestingly despite no mention of headaches in the first ER report this February 3rd report says headache began with accident but got more severe. More to the point the first page indicates "Pt with h/o migraine averaging one migraine per month that is usually relieved with rest." But at trial Mr. Rispoli indicated the migraines commenced with the accident and relief did not come with rest but the headaches last for two hours. The February 3, 2014 report says the headaches are associated with photophobia which is reaction to light. The "review of systems" sections say "negative for hearing loss, neck pain and neck stiffness but a section of the report states also that he received an injection to his neck area which in fact relieved his neck pain and stiffness. At other points it says the neck had normal range of motion and was supple. The report also says "Presentation classic for tension type headache secondary to muscle spasm after MVC" (MVC not defined). The assessment and plan section said the patient will be treated "for migrainous vs tension type headache."
The court will now try to review the Connecticut Orthopaedic Specialist report of Dr. Kramer. Mr. Rispoli visited him for the first time on February 17, 2014, two weeks after the accident. He said he had a new problem with neck pain since the January 30, 2014 accident and also noted upper back pain with no mention of headaches. He was prescribed Flexeril. A March 3, 2014 visit says "still with bothersome neck symptoms and cervical headaches but neck range of motion was ‘full.’ Flexeril was prescribed "for his 1-30-14 Ct Whiplash" on 2/17/14. An April 4, 2014 report says Mr. Rispoli reported improvement but he had residual neck pain and intermittent cervical headaches. Cervical motion had improved with diminished pain and tenderness. One year later an April 16, 2015 report refers to neck pain and headaches but says they were "fluctuating but present most days." The assessment was "sprains and strains of neck."
An April 30, 2015 report talks of chronic cervical whiplash with persistence of cervical discomfort. But the headaches were said to be occasional. A May 21, 2015 report only talks of flare up neck problems during the day. Flexeril benefits him but can only be used at night. There is no mention of headaches. A June 18, 2015 report mentions fluctuating neck pain and cervical headaches. An October 9, 2015 report repeats the foregoing observation.
Specifically, as to back pain the February 17, 2014 report mentions neck pain and back pain. No reference to back pain is made in the March 3, 2014 and April 14, 2014 report which only mention neck pain. A year later on April 10, 2015 the report states Mr. Rispoli returned for follow up of his back pain; the same is true of the April 30, 2015 report and the May 21, 2015 report, also see the June 18, 2015 report which refers to "sprains and strains of lumbar." There is no further report until October 9, 2015 which says the chief complaint was "follow up neck pain." Interestingly the November 21, 2015 letter to Mr. Rispoli’s attorney, where the doctor gives Mr. Rispoli a 5% permanent partial disability for chronic cervical strain. Dr. Kramer says he reviewed his medical record and noted after the accident Mr. Rispoli "developed neck and lower back pain." Even at that the rest of the letter refers to cervical problems and a cervical disability rating— all of this as to a patient who at trial said of his present symptoms that he had pain in the back of his head, headaches, in his "traps." middle back pain which has decreased "but the pain the upper part lasted to this day" (trial date 12/4/2018) (emphasis by court).
On November 19, 2015 Dr. Kramer issued a letter to Mr. Rispoli’s attorney indicating he did a record review. He concluded Mr. Rispoli had reached maximum medical improvement. He said his diagnosis was persistent cervical whiplash from this auto accident. The doctor concluded the letter by saying "chronic cervical sprain producing a 5% PPI which in medical probability is directly causally related to the 1/30/14 MVA." No mention is made of upper back pain. There is no specific reference to headaches in this letter. As regards the permanency rating of the neck, estimates of permanency can be based primarily on subjective complaints of pain; but here more objective tests such as range of motion tests appear to show fairly good range of motion results for the cervical area. In regards to this letter and its conclusion, however, something must be noted— could it have been influenced by a comment in the February 3, 2014 visit of Mr. Rispoli to the Yale Emergency Facility. In the first January 3, 2014 Rispoli’s visit to the ER it says the speed of the vehicle that rear ended him was unknown. In the second February 3, 2014 ER visit there is a dramatic change; it says "estimated car speed of other vehicle was approximately 30 mph and patient was ambulatory at the scene." Dr. Kramer said he reviewed the medical records in his November 19, 2015 letter which would have included ER records. And the doctor in his February 17, 2014 report mentions cervical and thoracic films taken at the ER, referring apparently to x-rays. This information is in the January ER visit. Why would he not have reviewed the February 3, 2014 visit?
If he did read the February ER report he would have seen estimated speed of "30 mph." Query could that have influenced his causality assessment for these injuries or even their seriousness. The point is that a cursory exam of the photos showing damage to Rispoli’s car indicates damage to the driver’s side rear end of the car but if the other car was going 30 miles per hour at the time of impact it would seem to the court at least that the damage would have been much more severe and the effect of the impact on occupants of the car would also be severe.
Leaving the foregoing aside as mere speculation and accepting that the doctor’s permanency estimate had nothing to do with conjecture about speed of the at fault vehicle, the fact that Mr. Rispoli would give such a high estimate of speed could show a tendency to exaggerate which could also spill over into complaints of pain and suffering.
Another interesting aspect of the Connecticut Orthopaedic Specialist material should be mentioned. A check list appears at the end of Exhibit 24. It was filled out by Mr. Rispoli on March 11, 2014, a month and a half after the accident and is divided into ten sections in which the patient sets forth limitations— Section 1 Pain Intensity— The pain is moderate at the moment; Section 2 Personal Care— I can look after myself normally but it causes extra pain; Section 3 Lifting— Pain prevents me from lifting heavy weights but I can manage light weights if they are conveniently placed; Section 4 Reading— I cannot read as much as I want because of moderate pain in my neck; Section 5 Headaches— I have severe headaches that come frequently; Section 6 Concentration— I have a fair degree of difficulty in concentrating when I want to; Section 7 Work— I can do most of my usual work but no more; Section 8 Driving— I cannot drive my car as long as I want because of moderate pain in my neck; Section 9 Sleeping— My sleep is greatly disturbed (3-5 hours sleepless); Section 10 Recreation— I engage in only a few of my usual recreational activities because of pain in my neck.
This report was filled out by Mr. Rispoli shortly after the accident. The responses to personal care, lifting, reading, concentration, driving, and sleeping were not even mentioned at trial as being a problem after the accident and certainly not at the time of trial, five years after the accident. In any event the last visit Mr. Rispoli had at Dr. Kramer’s office was on October 9, 2015, three years before trial.
The court will finally review the Village Street Therapy reports. He started therapy on March 17, 2014 with his last session being on June 23, 2014— approximately three months. The treatments were for cervical and upper back pain with some sessions reporting pain on cervical movement. Headaches are first mentioned on March 26, 2014, the third session and again on April 14 after several more sessions. Headaches are referred to in three more April sessions with the April 30 session describing them as migraines. The May 12 session report talks of headaches and migraines. Two sessions were held in June 2014. The June 16 and 23 session refer to cervical and upper back problems as all the therapy session do but the last mention of headaches is in the June 11 session. It is true that the Village Street Therapy reports do refer consistently to upper back pain in addition to neck problems. But the last therapy session was on June 23, 2014— some seventeen months before trial. As to any upper back problem the court’s previous discussion of the reports issued by Dr. Kramer from April 30, 2015 to October 9, 2015 mention in some reports generic back pain but when it comes to specific issues (6/18/15) and low back pain, (11/21/15). In any event Mr. Rispoli did not go for physical therapy after June 23, 2014, four and a half years before the trial. Physical therapy was scheduled to take place on June 25, 2014; he did not go. Similarly, the October 9, 2015 report of Dr. Kramer said recheck 6 months— that never took place.
That raises another final point. The November 19, 2015 letter from Dr. Kramer to Mr. Rispoli’s lawyer said Rispoli had reached maximum medical improvement at the time of his last treatment visit on October 9, 2015 with no future treatment anticipated. But if that is so why did the October 9, 2015 letter say at its conclusion: "recheck in six months"?
CONCLUSION
Ms. Milano’s testimony concerning her claims of injury to her neck and shoulder are believable. There appeared to be no exaggeration and she admitted these injuries abated within several months of the accident. No excessive and unnecessary treatment was pursued.
For the reasons previously discussed the court has difficulty in arriving at a fair figure for her headaches. She appears to have a chronic condition that preceded this accident and suffered sometimes severe headaches as a result of another automobile accident in 2012. This accident may have exacerbated her headache condition but it is difficult to conclude that after a period of time they did not return to her previous pattern of pain and frequency that existed before this auto accident. There were no extensive claims of disruptive limitations in her daily life. When headaches came they could be debilitating but the neck and shoulder conditions while they lasted caused difficulty in doing household chores and problems when she used her computer at work. Also of course they caused a certain amount of pain.
Mr. Rispoli’s case presents more difficult problems in that for the reasons discussed there appeared to be a certain amount of exaggeration of symptoms. There are also frequent contradictions as to the location of any back pain. He also had a chronic history of migraine headaches. He only lost two days of work despite a claim of severe injury and in fact went to work the day after the accident. At the end of his medical treatment the headaches were said to be occasional and the neck problem fluctuating. The claim of interference with life activities by Mr. Rispoli is limited to interference with certain social activities. It is true that Mr. Rispoli has a life expectancy of 33 years but as to him and Ms. Milano the court must take account of its discussion of the medical and physical therapy reports which in many respects do not support their present claims. The court will enter the following judgment.
Judgment as to Ms. Milano
Economic Damages:
$ 6, 015.00
Non-Economic Damages:
$ 15, 000.00
Total Damages:
$ 21, 015.00
Judgment as to Mr. Rispoli
Economic Damages:
$ 12, 311.88
Non-Economic Damages:
$ 25, 000.00
Total Damages:
$ 37, 811.88