Lebon v. B. L. & M. Bottling Co., Inc.

• Decision Date: 13 June 1975
• Docket Number: No. 73-178-A,73-178-A
• Court: Rhode Island Supreme Court
• Parties: Lillian LEBON et al. v. B.L. & M. BOTTLING COMPANY, INC., et al. ppeal.

Page 272

339 A.2d 272

114 R.I. 750

Lillian LEBON et al. v. B.L. & M. BOTTLING COMPANY, INC., et al.

No. 73-178-Appeal.

Supreme Court of Rhode Island.

June 13, 1975.

[114 R.I. 755] Lovett & Linder, Ltd., Stephen G. Linder, Providence, for plaintiffs.

Gunning, LaFazia, Gnys & Selya, Raymond A. LaFazia, Providence, for defendants.

OPINION

JOSLIN, Justice.

This civil action was brought by a wife and her husband to recover damages for injuries allegedly sustained when an automobile operated by the husband, in which his wife was a passenger, stopped at a traffic light and was struck in the rear by a truck owned by the corporate defendant and driven by the individual defendant. The case was tried in the Superior Court in May 1973, and the jury returned verdicts of $12,000 for the wife and $2,000 for the husband. A new trial was then granted on the issue of damages only, unless the wife remitted all of her award in excess of $6,000, and the husband all of his in excess of $1,239. The plaintiffs appealed.

The question before us is whether the trial justice erred in finding that the jury's verdicts were not fully supported by the evidence and were based largely on sympathy for plaintiffs. That issue can be resolved readily by viewing those findings in light of this record and the principles recently reviewed in Wood v. Paolino, 112 R.I. 753, 315 A.2d 744 (1974).

The Wife's Case

The collision occurred on December 22, 1969. Thereafter and continuing until trial, the wife, who had a history of back difficulties, complained of pains in the head, neck, shoulders, lower back, and left-side sciatic region. On the advice of her doctors she received numerous physiotherapeutic treatments to her back and neck, wore a cervical collar, underwent cervical trachintherapy sessions, and frequently took muscle relaxants and pain medication. In addition, she was hospitalized for a myelogram performed in an attempt to pinpoint the source of her difficulties.

The wife's principal attending physician was Dr. Augustine Eddy, an orthopedic surgeon. He thought that as a direct result of the accident she sustained a cervical sprain superimposed on an arthritic spine, and his opinion was that her immediate injuries would have improved more quickly had she not had that preexisting condition. Following Dr. Eddy's recommendation that she be seen by a neurosurgeon, she consulted Dr. Federico L. Catucci in March 1970. He diagnosed her condition as 'residuals of neck strain with cervical radiculitis' and advised continued physiotherapy and the use of a cervical traction kit for 15 to 20 minutes at a time, three to four times a day. While his prognosis was generally favorable, he indicated that the time of recovery could not reliably be anticipated.

The wife was still using the traction unit prescribed by Dr. Catucci when she consulted Dr. Melvin Gelch, another neurosurgeon, in November 1970. After examination, his diagnosis was 'postconcussion syndrome to tentative herniation of disc on L-4 and 5 on lumbar spine.' He recommended that she use hydrocollator boards in order to control spasms and keep the disc in place. After further examinations in December 1970 and February 1971, during which he observed that she could barely lift her legs from the table, Dr. Gelch determined that 'she was a candidate for surgery, that she had a herniated disc.' He then hospitalized her on February 2, 1971, and a lumbar myelogram and lumbar puncture were performed. Although the myelogram was normal, the 'refluoroscopy with dye' was in his opinion suspicious.

Following a further examination in March 1971, Dr. Gelch concluded that a lumbar laminectomy and exploration would be in order if she did not improve by the summer. She elected, however, not to undergo surgery and was not seen professionally again by Dr. Gelch. At trial he testified that there was a reasonable medical certainty that she suffered from 'cervical strain, cervical muscle strain and active osteoarthritis' and 'herniated lumbar disc suspect,' and that these conditions were the result of the automobile accident.

Based upon this record, the trial justice concluded that a causal connection between the accident and the disc injury existed 'in the realm of possibility only,' that the cervical strain alone was directly attributable to the accident,...