Jones v. “Anonymous, Inc.”, Suffolk Superior Court C.A.
Type of Action: Amusement Ride Accident
Injuries alleged: Herniated intervertebral disc at the C6-7 level; fractured right wrist; a 4-5 cm forehead laceration with permanent scar, myofascial pain syndrome; traumatic injury to lumbar spine; recurrent headaches; post traumatic stress disorder and depression.
Result: $185,000 Settlement
Date of Settlement: July 20, 2000
Case Summary:
The plaintiff, a (then) thirty-three year old woman, was injured while a passenger inside a “Gravitron” amusement ride which spins at high speed as the passengers rise to the ceiling. The plaintiff became trapped, upside down and backwards behind a portion of the ride, and spun around in this position. Following receipt of paper discovery, plaintiff’s counsel noticed depositions of the defendant and its employees. At this point defendant stipulated to liability. Accordingly, the only issue remaining was the extent of plaintiff’s injuries. Plaintiff alleged that her injuries included a herniated disc at the C6-7 level, myofascial pain syndrome, recurrent headaches, and a traumatic injury to her lumbar spine.
Although plaintiff indisputably sustained a fractured wrist and permanent forehead scar from this accident, the severity and cause of her soft tissue injuries were vigorously contested. Plaintiff’s numerous treaters disagreed as to her diagnosis. Although an MRI was interpreted as showing a herniated disc at the C6-7 level, other treaters described it as a mere “bulge”. One x-ray was interpreted as showing a compression fracture of the C6 vertebrae, while other cervical x-rays were not interpreted as showing such a fracture. Plaintiff’s treatment included epidural and trigger point injections; extensive physical therapy; and counseling for depression and post-traumatic stress disorder. Her medical expenses totaled over $34,453.50.
The largest item of economic damages was plaintiff’s lost earning capacity. Plaintiff worked in medical billing until shortly before the accident, when she was terminated, allegedly for tardiness (which she disputed). At the time of her accident she had a job interview scheduled. She was unable to pursue this or other employment for approximately thirteen months following the accident. She returned to work at another position in medical billing for approximately six months at which point she was forced to cease work under doctor’s orders. Plaintiff’s expert orthopedist concluded that as of the present she has a 10% whole person impairment with prolonged sitting or use of a computer exacerbating her neck symptoms. Because of these limitations, plaintiff’s vocational expert and the Massachusetts Rehabilitation Commission concluded that plaintiff could not return to her previous occupation in medical billing and suggested human services as an appropriate substitute career path. Plaintiff’s vocational expert further opined that plaintiff would be likely to earn substantially less in this new career and would lose 5.1 years from her work life as a result of her injuries.
Defendant’s expert neurosurgeon was prepared to testify that plaintiff’s symptoms were due to degenerative disc disease rather than her accident. He claimed there was no disc herniation or objective evidence confirming plaintiff’s symptoms. He further opined that plaintiff’s disability, due to the accident, if any, terminated at the time she first returned to work thirteen months after the accident. It was anticipated that defendant would also support its position with selected entries from certain treaters, and a report from a physician who examined plaintiff for the Social Security Administration and concluded she was “disabled out of proportion to objective findings”.
In response, plaintiff anticipated introducing evidence that both her primary care physician and the Commonwealth of Massachusetts Disability Evaluation Service believed her to be disabled as a result of this accident.
An extensive all day mediation session was held, but the case did not settle. Accordingly, the parties continued to litigate this case and received a Pre-Trial Conference and a Trial date. Plaintiff’s counsel deposed the defendant on the Gravitron’s general characteristics and videotaped it in operation so it could be shown to the jury. Plaintiff also forwarded a copy of her expert economist’s report to defense counsel. After plaintiff sent a Ch. 93A letter to defendant’s insurer, the case settled, six weeks after the mediation, for a figure recommended at the mediation.