Boehmer v. Boggiano, 51651
| Decision Date | 13 February 1967 |
| Docket Number | No. 51651,No. 2,51651,2 |
| Citation | 412 S.W.2d 103 |
| Parties | Evelyn BOEHMER, Appellant, v. John BOGGIANO, Respondent |
| Court | Missouri Supreme Court |
Max C. Nelson, Harold I. Elbert, Susman, Willer, Rimmel & Elbert, St. Louis, for appellant.
John J. Cole, Fred Leicht, Jr., Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.
This is a suit for personal injuries allegedly suffered in a rear end collision. Plaintiff recovered a verdict of $3,000 on her $100,000 claim and has appealed, asserting specific errors and also that the verdict is totally inadequate. Since there is no contention that the evidence was not sufficient to make a submissible issue of negligence, we shall not recite the facts of the collision in any detail. It occurred in St. Louis County on March 8, 1962, at the junction of Highway 40 and Lindbergh Boulevard plaintiff's husband, with whom she was riding, was waiting to enter Lindbergh from the ramp of a cloverleaf. The ramp ran slightly downhill. Defendant's car, also moving on the ramp, concededly struck the Boehmer car from the rear, but there was a vast divergence in the evidence of the parties as to the nature and extent of the impact. Defendant says that his car merely rolled five or six feet from a stop and struck the other car lightly at about five miles an hour; plaintiff and her husband testified that there was a 'tremendous jolt' or a 'horrible jolt' which knocked the car forward a foot or two. Plaintiff testified that her head was jolted completely back, that she felt a 'horrible pop' and that she then went completely forward. The damage to the Boehmer car was relatively slight, consisting of a 'pushing in' of the bumper guard, a little damage to the pan underneath, the glass of a taillight broken and its rim dented.
Plaintiff testified: that she felt a 'funny sensation' in her neck all the way home; that severe pain developed in her head and neck; that she tried to work the next day, but became nauseated and had to quit; that she went to a chiropractor, then home and to bed; that she continued in such pain for months; that she was unable to sleep in bed, but tried to sleep on the floor; that within a week or so she went to her family doctor who sent her to Dr. Earp, an orthopedist, and that she went to him about four times; that Xrays were taken and that at his suggestion she wore a neck collar which was very uncomfortable; that pain continued in her neck, head, right arm and both shoulders; in June, 1962, she went to Dr. William H. Grundmann, who also specialized in orthopedics. He was suggested by a woman who talked with plaintiff in a grocery store, after noticing that she was wearing a neck collar; at about the same time a girl at her place of employment suggested the name of an attorney and plaintiff called him. The attorney apparently recommended Dr. Grundmann, also. This doctor again took Xrays, administered heat treatments, gave her shots and medication and at times she felt that she was improving. In July, 1962, she was referred to Dr. Jacques Paul Schaerer, a neurologist. This reference was suggested either by Dr. Grundmann or the attorney, or both. Plaintiff went to Dr. Schaerer on one visit; he examined her and told her to continue her conservative treatments with Dr. Grundmann. This she did until September, thinking that at times that she was better, and doing a little of her housework, but with difficulty, in September Dr. Schaerer examined her again, noted her various complaints, and recommended that she undergo a test known as a 'discogram' to determine whether she had ruptured cervical discs. During the latter part of September this test was performed. It consisted of the administration of a local anaesthetic, the insertion of a needle into the gelatinous center of the disc, the injection of a dye by means of a smaller needle inserted through the first one, and the prompt taking of Xrays to see whether the dye had leaked out into or through the outer ring or annulus of the disc. In this case the tests were of the two discs between cervical vertebrae four and five and between five and six. The doctor testified that the dye had leaked at both sites to the right and rear and that severe pain was caused, substantially identical to her prior complaints of pain. In this doctor's opinion the test was positive for two ruptured discs, and he testified that it was the most accurate means of diagnosing that condition. The positive diagnosis, in his opinion, resulted from a combination of two elements, namely, the extravasation of the dye, and the creation of severe pain by the test in substantially the same place and of the same type as the prior pain. He indicated that the pain was caused by the contact of the dye with nerve endings in the peripheral areas of the disc. Without going into any considerable detail on the subject, these two discs were later removed by Dr. Schaerer in two separate operations and the vertebrae in each instance fused, i.e., four and five and five and six; one operation was performed in October, 1962, and the other in July, 1963. However, another discogram was performed before the last operation, confirming the rupture of the disc, according to the doctor. The doctor testified that from his observation during surgery, as well as by the tests, the discs were defective. Upon a hypothetical question he testified that, in his opinion, the collision caused the conditions for which he operated. On cross-examination he further testified: that the Xrays prior to the operations showed nothing abnormal, but that these are merely aids in diagnosing a disc injury; that the absence of neurological symptoms did not rule out such an injury; that he was familiar with the studies and experiments of Dr. Earl P. Holt, Jr., and with an article written by him in which he concluded that discography (or the use of the discogram) was an invalid or fallacious test; that he did not agree with those findings and conclusions; that the matter had been discussed or debatted between them at a medical meeting; that he did not approve of the techniques used by Dr. Holt in his experiments, giving his reasons. The cross-examination of Dr. Schaerer on those matters was extensive. References will be made later to the objections made to this line of testimony. On redirect examination, plaintiff's counsel established that discography was used by neurologists in perhaps a dozen cities of the United States, and that both neurologists and orthopedists in St. Louis had referred disc cases to the witness; also, that he uses the myelogram as a diagnostic test where there are positive neurological findings, but that there were none here. Dr. Schaerer was born in Switzerland and had received his original medical education there; he had performed residencies in hospitals in the United States, was a member of the staffs of several St. Louis hospitals, belonged to the usual medical societies and was a diplomate of the American Board of Neurosurgery.
The testimony of Dr. Grundmann may be referred to briefly. He first saw plaintiff on June 7, 1962; he detailed her various complaints involving chiefly pain in the head, neck and right shoulder with limitation of motion in the neck and shoulder; she was then wearing a neck collar. He determined that she had a possible disc involvement, and he administered heat, medication and traction, but the traction seemed to aggravate the pain and he stopped it; he also found certain distinctive areas of numbness in portions of her forearm, right palm and fingers which, to him, indicated interference with a nerve. In answer to a hypothetical question he stated that, in his opinion, the collision caused the conditions which he found. He further testified that, while slight trauma is not very likely to injure a disc, such an injury often depends upon the person's condition; that in certain instances almost any jar can cause it, even bending over.
Plaintiff testified further that after the first disc operation some of her pain cleared up and she could sleep in bed but that the pain returned later; that after the second operation most of her pain left, but that she still had occasional pain in her right side and neck, especially upon physical activity. Prior to the accident she was employed regularly in a book bindery, and there was evidence that her annual earnings for a period of five years (1957--1961) varied from $2,890.59 to $3,286.10. She had not worked at this occupation since the accident, but had resumed light housework. She testified that she had suffered some physical ailments and operations prior to the accident, including a peptic ulcer, a partial hysterectomy and appendectomy, a Caesarean section, and occasional colds and flu, but that she was in good health on March 8, 1962. The history taken upon a hospital admittance in June, 1952, when she was twenty-four years old, showed various physical complications, some of which occurred in relatively early years. We need not detail these. She had continued with therapy and rehabilitation treatments after her last disc operation and the doctor who so treated her, testified that she still had pain and discomfort in her neck and right shoulder, with restriction of motion and other symptoms which, in his opinion, came from pressure on nerve roots in the cervical area at and below her fusions; that her condition in March, 1965, was not as good as in October-November, 1964.
The defendant's evidence consisted largely of medical testimony. As we noted previously, the objections of plaintiff's counsel will be considered later, and separately. Dr. George E. Roulhac, a qualified neurological surgeon, examined plaintiff on December 13, 1963, after her last operation. She then complained of pain in her neck and right shoulder and of occasional pain in her right arm. The doctor made various tests and testified that he found no reason...
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