Kegel v. United States, Civ. No. 2709.

• Decision Date: 19 September 1968
• Docket Number: Civ. No. 2709.
• Parties: Kenneth C. KEGEL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

289 F. Supp. 790

Kenneth C. KEGEL, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 2709.

United States District Court D. Montana, Havre-Glasgow Division.

September 19, 1968.

Habedank, Cumming & Best, Sidney, Mont., for plaintiff.

Moody Brickett, U. S. Atty., Butte, Mont., and Clifford E. Schleusner, Asst. U. S. Atty., Billings, Mont., for defendant.

ORDER AND MEMORANDUM OPINION

JAMESON, District Judge.

Plaintiff brought this action under the Federal Tort Claims Act for injuries sustained in an accident about 1 p. m. on December 7, 1966, when a 1966 Plymouth sedan, driven by Timothy A. Armstrong, an agent and employee of the United States Government, struck plaintiff's two-ton truck on U. S. Highway #2 where the highway enters Chinook, Montana. The case was tried before the court without a jury on April 3, 1968. Post trial briefs were filed, the last brief on July 29, 1968.

At the point of collision the road was icy, the weather was cold and clear, and visibility was unobstructed. Plaintiff was driving his truck in an easterly direction at a speed between 6 and 15 miles an hour. The Armstrong vehicle was traveling in the same direction some distance back of plaintiff's truck. Armstrong first observed the truck when he was between 300 and 450 feet away. When Armstrong saw a restricted speed sign and plaintiff's truck and also observed the icy condition of the highway, he slowed to 45 miles an hour. He skidded and was unable to stop on the icy highway or to turn from his course of travel, although he tried to turn both to the right and to the left. His car collided with the rear of plaintiff's truck.

While Armstrong testified that the road had been clear of ice until he reached the outskirts of Chinook, Kegel testified that there had been intermittent icy stretches at various points between Havre (some 20 miles distant) and Chinook. Kegel's testimony is the more probable, particularly in view of the admittedly severe icy condition on the approach to Chinook.

Both vehicles were driven off the highway. Plaintiff got out of his truck first and Armstrong was still in his car when plaintiff asked him if he were hurt. Armstrong's mouth was bleeding, but neither party appeared at that time to have been hurt.¹ Plaintiff walked to a grain elevator and called for a policeman. When the policeman arrived, plaintiff moved a 138 pound spare tire onto the truck.

Armstrong was traveling at an excessive rate of speed in view of the icy condition of the highway and did not have his vehicle under proper control. I have no difficulty in finding that Armstrong was negligent and that his negligence was the proximate cause of the collision.

While the issue of liability is easy to determine, the issues relating to the cause of plaintiff's subsequent disability and possible apportionment of damages are exceedingly complex and require a careful analysis of the evidence relating to plaintiff's symptoms, the medical testimony and the applicable rules of law.

Plaintiff seeks $150,000 general damages and $2214.94 special damages consisting of damage to his truck in the sum of $211.83, medical and hospital expenses $1823.63 and miscellaneous expenses $179.48. Plaintiff is a rancher near Turner, Montana. He has calculated general damages by three methods: "cost of hiring a replacement" method, "loss on the cattle feeding operation", and "increased expense of operation". The average of these three amounts is $127,799.00.² Plaintiff also asks $11,650 as compensation for his pain and suffering during 1967 and $18,984.05 for future pain and suffering.

Kegel testified that the evening after the accident he had a severe headache and a lump on his head and that he was sore in the shoulder area. Around the 17th or 18th of December, he began having back trouble. While he continued with his farm work, the condition became progressively worse. On January 25, 1967, he consulted Dr. Albert W. Axley of Havre. X-rays taken at that time showed a narrowing or degenerative disc at the L-5 area of plaintiff's back. Dr. Axley recommended that plaintiff see an orthopedic surgeon in Great Falls and warned plaintiff that if the back pain became worse or if plaintiff developed any paralysis or weakness in the leg, he should consider surgery.

The back pain became more severe. On January 31 plaintiff consulted Dr. J. L. Bloemendaal, an orthopedist in Great Falls, who diagnosed a herniated disc. A fusion was performed between the L-5 and S-1 vertebrae to eliminate motion and pain. Plaintiff was discharged from the hospital on February 17, 1967.

Plaintiff testified that he had no specific back trouble prior to December 17th or 18th, 1966. His wife testified that plaintiff had complained of "backaches now and then" but that he was never disabled from the pain. He had never consulted any physician, osteopath or chiropractor for any back condition prior to his visit to Dr. Axley on January 25, 1967. About a week or two before that, Mrs. Kegel became concerned and urged a checkup.

On August 29, 1967, Dr. Bloemendaal examined plaintiff and found that an area of tenderness was present at the top of the incision. Cortisone was injected to relieve the pain. On February 7, 1968, Dr. Bloemendaal again examined the plaintiff and found that he was "still having some discomfort," that there was an area that was questionable as to whether the fusion had solidified, but that surgery was not yet recommended. The doctor believed that plaintiff's condition would improve.

When plaintiff consulted Dr. Axley for a life insurance physical on November 1, 1967, the doctor noted that "he was apparently getting along adequately as far as I can understand he had a good result from this operative procedure."

Doctor Thomas C. Powers, an orthopedic surgeon of Great Falls, examined plaintiff on February 7, 1968, on behalf of the defendant. Dr. Powers testified that he believed the fusion after the operation was solid.

It will be noted that both Dr. Bloemendaal and Dr. Powers last examined Mr. Kegel approximately a year after the surgery and two months before the trial. Both anticipated further improvement— Dr. Powers over a period of at least six months and Dr. Bloemendaal "probably over the next year or two".

Both Dr. Bloemendaal and Dr. Powers are well qualified orthopedic surgeons. In analyzing their testimony it is important to distinguish between what is "possible" and what is "reasonably probable".

The doctors agree that it takes very little to herniate a disc. It may result from sneezing, twisting around, stepping off the edge of a curb, (Dr. Bloemendaal, Tr. pp. 38-39) or bending down to put on shoes and stockings (Dr. Powers, Tr. p. 13) and this could have happened in Mr. Kegel's case.³ The doctors agree also that the degeneration of the disc had probably been "going on for several years".⁴

Dr. Bloemendaal testified that some discs fuse on their own but this happens only occasionally. "Just playing the percentages I doubt Mr. Kegel would have fused on his own" (Tr. p. 35).

In response to leading questions both doctors recognized also that "many people will show degeneration of discs and have no symptoms or back trouble (Bloemendaal, p. 10, Powers p. 24). Their answers were not related specifically, however, to what might have been reasonably anticipated in Mr. Kegel's case in the absence of the accident.

In answer to a hypothetical question, Dr. Bloemendaal testified that in view of the fact that Kegel "had had no real major problem with his back prior to this, I would feel that an accident such as this triggered this degenerative disc, probably to cause the back and leg pain". (Tr. p. 32). Dr. Axley, also in answer to a hypothetical question, agreed that there "was some causal relationship unless there is some proof that something else intervened or something else added to the picture". (Dep. p. 17).⁵

On the other hand, Dr. Powers did not believe the "accident was the precipitating factor because (plaintiff's) acute symptoms started on January 24". He would have expected the back pain "immediately" or "at least within a couple of days". Dr. Powers distinguished between a "precipitating" factor and an "aggravating" factor, testifying in part:

"A * * * I think, however, that an injury of this nature can be an aggravating factor in the same way that his normal way of life in bending and twisting and lifting can be. It could be without this accident, instead of having acute disabling symptoms in the latter part of January, maybe they wouldn't have occurred until May or September or been a year or two later. In other words, I think this accident was another injury in his way of life, which the summation of which was ultimately to bring this to clinical manifestations where he was having acute symptoms. In other words, for a person with this type of finding in their back, they do not have to be in an automobile accident or have some severe injury, because the mere fact of bending and twisting in their normal way of life can be aggravating enough."

Dr. Powers estimated a 10% impairment following a successful fusion such as he found with Mr. Kegel. He would anticipate that his back would be better than it was prior to the accident.⁶

On the basis of the medical testimony, defendant contends that plaintiff has failed to sustain his burden of proving that the accident caused the herniation of the disc and that the testimony as a whole does not show more than a remote possibility that the accident was a cause of the herniation. On the other hand, plaintiff argues that under the medical testimony and particularly the opinions of Doctors Bloemendaal and Axley, plaintiff has shown that the accident was the precipitating cause of the herniation; that it is medically impossible to separate or segregate that portion of plaintiff's injuries which were attributable to the pre-existing condition from those attributable to the trauma in the accident; and that...