Burns v. Combites, 122319 OKCIL, 116961

Docket Nº:116961
Opinion Judge:KEITH RAPP, JUDGE
Party Name:PAMELA BURNS, an individual, Plaintiff/Appellant, v. MAUREEN MARKS COMBITES, an individual, Defendant/Appellee.
Attorney:Noble K. McIntyre, Jordan Klingler, David L. Thomas, MCINTYRE LAW, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant Gerard F. Pignato, RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER, PLLC, Oklahoma City, Oklahoma, and Seth Killman, OFFICE OF MICHAEL H. GITHENS, Oklahoma City, Oklahoma, for De...
Judge Panel:BARNES, P.J., and WISEMAN, V.C.J., concur.
Case Date:December 23, 2019
Court:Court of Appeals of Oklahoma
 
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2020 OK CIV APP 11

PAMELA BURNS, an individual, Plaintiff/Appellant,

v.

MAUREEN MARKS COMBITES, an individual, Defendant/Appellee.

No. 116961

Court of Appeals of Oklahoma, Division IV

December 23, 2019

Mandate Issued: 03/11/2020

APPEAL FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA HONORABLE SCOTT F. BROCKMAN, TRIAL JUDGE

Noble K. McIntyre, Jordan Klingler, David L. Thomas, MCINTYRE LAW, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellant

Gerard F. Pignato, RYAN WHALEY COLDIRON JANTZEN PETERS & WEBBER, PLLC, Oklahoma City, Oklahoma, and Seth Killman, OFFICE OF MICHAEL H. GITHENS, Oklahoma City, Oklahoma, for Defendant/Appellee

KEITH RAPP, JUDGE

¶1 Trial court plaintiff, Pamela Burns, appeals the trial court's denial of her motion for new trial after the trial court entered judgment on a jury verdict in favor of Defendant, Maureen Marks Combites, and against Plaintiff.

BACKGROUND

¶2 Plaintiff and Defendant were involved in a motor vehicle accident in Norman, Oklahoma, on June 2, 2014. Plaintiff brought this negligence action against Defendant alleging she sustained personal injuries as a result of the motor vehicle accident and seeking damages.

¶3 In her Answer, Defendant admitted there was a motor vehicle accident, but denied Plaintiff's alleged injuries were caused or aggravated by the motor vehicle accident. Defendant alleged Plaintiff's injuries were pre-existing health problems.

¶4 The case proceeded to jury trial on January 29-30, 2018. The evidence and testimony at trial indicated that, on the date of the accident, Plaintiff was driving south in the far right lane of N.W. 24th Avenue, a four-lane road. Defendant was driving north in the left lane of N.W. 24th Avenue. After being waved through by a man in the left lane driving south, Defendant began a legal left turn into a parking lot. Plaintiff did not see Defendant and "T-boned" Defendant's vehicle on the passenger side.

¶5 Plaintiff testified that she told her son, who was with her at the time of the collision, her leg was hurting and she was worried about her neck because she had previously had neck surgery. Plaintiff stated she refused medical treatment and an ambulance at the scene. Plaintiff also testified she waited twenty-two days after the accident to seek medical treatment because she thought the pain would go away. The evidence at trial showed that Plaintiff initially said she did not think she was injured, but then specified she needed to have a "couple things checked out." 1

¶6 Defendant testified Plaintiff and Plaintiff's son told her they were "ok" after the accident. Defendant also stated no one called an ambulance because no one was injured. Defendant also testified Plaintiff made statements at the accident scene that made Defendant think she would be sued by Plaintiff.

¶7 The evidence at trial indicated Plaintiff had an extensive past medical history, including a neck fusion and removal of a synovial cyst to relieve symptoms to her back, hip, and pain radiating down her left leg.

¶8 In 2000 or 2001, Plaintiff was in a motor vehicle accident and broke her neck, which required neck fusion surgery. After complaints of back pain, hip pain and pain radiating into her left leg, Plaintiff had surgery by Dr. Barry to remove a synovial cyst in December 2012. The evidence at trial also showed Plaintiff saw Dr. Barry in February 2013 and August 2013 complaining about right-side radicular leg pain.

¶9 Plaintiff testified she sustained injuries to her back and right leg as a result of the present accident. Plaintiff stated the soreness to her neck and back from the accident subsided. Plaintiff testified that after the accident, she first sought medical treatment on June 24, 2014, with her primary care physician, Dr. Nagode. Plaintiff testified Dr. Nagode referred her for an MRI and to be seen by Dr. Barry, who previously performed the surgery to remove Plaintiff's cyst. Dr. Barry referred Plaintiff to Dr. Pitman for EMG testing, who determined she had nerve damage in her right leg. Plaintiff stated she then went to Accident Care and Treatment Center and had an MRI on her right hip in an attempt to determine the source of her pain. Plaintiff testified she saw Dr. Mitchell for pain management. Dr. Mitchell subsequently gave Plaintiff three lumbar epidural steroid injections that Plaintiff stated were not helpful. Dr. Mitchell referred Plaintiff to Qualls Stevens, D.O., in May 2015. After examination, Dr. Stevens recommended Plaintiff undergo an anterior lumbar fusion.

¶10 Plaintiff and Defendant presented conflicting medical testimony. Plaintiff's expert, Dr. Qualls Stevens, testified Dr. Mitchell referred Plaintiff to him for low back and right lower extremity pain. Dr. Stevens testified his diagnosis was "intractable...

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