LeTarte v. Mashantucket Pequot Gaming Enterprise, (2019)

• Decision Date: 21 March 2019
• Docket Number: MPTC-CV-PI-2016-151
• Citation: LeTarte v. Mashantucket Pequot Gaming Enterprise (Mashantucket Pequot Tribal Ct. 2019)
• Court: Mashantucket Pequot Tribal Court
• Parties: John & Jean Letarte v. Mashantucket Pequot Gaming Enterprise

John & Jean Letarte v. Mashantucket Pequot Gaming Enterprise

No. MPTC-CV-PI-2016-151

Mashantucket Pequot Tribal Court

March 21, 2019

M John Strafaci, Esq., for the Plaintiff

Edward W. Gasser, Esq., for the Defendant

MEMORANDUM OF DECISION

THOMAS J. LONDREGAN, JUDGE

I.BACKGROUND

On July 14, 2016, plaintiffs John and Jean LeTarte brought this negligence action against the Mashantucket Pequot Gaming Enterprise(“Gaming Enterprise”) for personal injuries they sustained while they were passengers in a Foxwoods Resort Casino shuttle bus.^[1]

A trial was held on plaintiffJohn LeTarte's claim against the Gaming Enterprise on December 5 and 13, 2018, at which Mr and Mrs. LeTarte provided their accounts of the incident that gave rise to Mr. LeTarte's claim.On December 26, 2018, the Court viewed the videotaped deposition testimony of Dr. John Keggi, plaintiff's expert witness and treating orthopedic surgeon, and the videotaped deposition testimony of Dr. Michael Leslie, defendant's expert witness, in the presence of the parties' counsel.

II.FACTS

The plaintiffs John and Jean LeTarte, a married couple, were patrons of Foxwoods Resort Casino on July 27, 2015.That afternoon, the plaintiffs boarded one of the Gaming Enterprise's shuttle buses to take them to their vehicle, which was parked in one of the defendant's lots, so that they could drop off merchandise they had purchased from the Hard Rock Café and thereafter return to the casino.The plaintiffs were seated toward the back of the bus on the driver's side.As the defendant's driver was turning onto Trolley Line Boulevard, he took a sharp turn, which caused the bus to drive on the curb and over the median in the middle of the road.In doing so, the plaintiffs were thrown from their seats and onto the floor.Mrs. LeTarte, who was in the aisle seat, was thrown first and landed in the aisle.Mr. LeTarte, who had been holding her hand, was also thrown from his seat.His body landed on the floor between his seat and the seat in front of him.He also partially landed on his wife's legs.

III.DISCUSSION

In order to prevail ina cause of action alleging negligence, a plaintiff has the burden of proving the following elements by a preponderance of the evidence: (1)the defendant owed a duty to the plaintiff; (2)the defendant breached that duty; (3) the breach of said duty was the proximate cause of the plaintiff's injuries; and (4)the plaintiff suffered actual damages.Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33(2002);Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep.354, 357-58(2016).

The parties are at issue over whether or not the bus accident was the proximate cause of the plaintiff's injuries and, in fact, whether the plaintiff suffered the damages he now claims.

1.Pre-Accident Medical History

In 2005, the plaintiff underwent a hip replacement surgery performed by Dr. John Keggi of Orthopaedics New England.He had first visited Dr. Keggi's office in October of 2004 after having experienced pain in his left hip in the five years prior.He was diagnosed as having degenerative disease of the left hip.After being involved in a motor vehicle accident, the pain in his hip reportedly worsened, and after a number of treatments, Dr. Keggi performed the hip replacement surgery on February 15, 2005.The surgery was successful and “resulted in significant improvement in his symptoms.”^[2]Def.'s Ex. E-2.

Approximately six years after the 2005 surgery the plaintiff noticed squeaking in his hip.There was no pain associated with the squeaking when it would occur, just the noise.The physician assistant to his orthopedic specialist advised him to treat it by staying hydrated and taking “fish oil.”Over time, the plaintiff developed weakness and some pain in his hip.During that time he was taking Percocet which was prescribed by his primary care physician.However, it was not prescribed solely for his hip, but also for chronic pain in both his chest area and his back.At his visit to the specialist on March 27, 2013, he reported occasional, but not significant pain.At his August 13 2014 visit, the squeak continued as well as the pain, and there was an added “clicking sound” that was audible.The plaintiff testified that he did not elect to have surgery prior to the accident because he could live with the squeaking, the pain, and the discomfort that he was experiencing, which he also attributed to the laborious nature of his profession as a carpenter.

2.Post-Accident Medical History

The plaintiff maintains that, after the accident, there was more severe pain in his hip, weakness in his leg, and the squeaking was worse.He did not seek surgery immediately following the accident.Instead, he participated in physical therapy in September of 2015 until November 2015.There was no improvement.Experiencing no relief from his persistent pain and squeaking in his hip, he stopped working in November of 2015 and had revision surgery on March 21, 2016.

3.Liability

The defendant does not contest the facts as to how the accident occurred and that the bus did drive up on the curb and over the median in the middle of the road.What the defendant contests about its liability is that such action was not the cause of the plaintiff's injuries.The defendant's position is that the revision hip surgery that was performed after the accident was needed before the accident occurred.The defendant maintains that the plaintiff's symptoms changed little following the accident, and therefore, there was really no new injury.The plaintiff, on the other hand, alleges that after his initial replacement surgery in 2005he was essentially pain free in his hip for about six years.While he had some symptoms and discomfort before the accident, this was a substantial change in the level of his pain after the accident.

The plaintiff in a cause of action for negligence “must establish not only that the defendant was negligent in some fashion, but also that the defendant's negligence was the proximate cause of the plaintiff's loss.”Simeonidis v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 85, 87(quotingCooper v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 59, 65(2011)).“Once liability is established, the Gaming Enterprise must take the [p]laintiff as it finds [him or] her.”Id.(citingNakashian v. Mashantucket Pequot Gaming Enterprise,4 Mash.Rep.399, 401-02(2006);Chiodo v. Mashantucket Pequot Gaming Enterprise,3 Mash.Rep. 407, 412-13(2001)).This convention is otherwise known as the “eggshell plaintiff” rule, which “makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury.”Id. at 88(quotingRua v. Kirby, 125Conn.App. 514(2010)).Mashantucket law accepts the following distinction between a preexisting condition and a preexisting injury: “[G]enerally, a plaintiff with a preexisting condition who is subsequently injured is entitled to full recovery.A plaintiff who suffers from a preexisting disability that is made worse by an injury, however, can recover only to the extent of the aggravation of the injury.”Id.(quotingTuite v. Stop and Shop Companies, Inc., 45 Conn.App.305, 310 n. 2(1997)).

The defendant asserts that the plaintiff had planned to undergo a hip replacement revision prior to the shuttle bus accident.As evidence of this, the defendant cites to the plaintiff's medical records after the hip replacement surgery but prior to the accident.The plaintiff first complained of a squeaking sound to his primary care physician and to Dr. Keggi's office in 2011.The plaintiff did not visit Dr. Keggi's office again until February 27, 2013 with more complaints of squeaking.At his follow-up appointment to discuss radiographs the office had ordered, the plaintiff reportedly stated that he would think about his options, including the revision surgery.The plaintiff also called Dr. Keggi's office on a few occasions to request information about the model number of his Stryker implant and billing information from his 2005 surgery.On December 1, 2014, the plaintiff visited his primary care physician, who indicated in the office visit notes that the plaintiff's plan was to remove the hardware and that he was in the process of suing the manufacturer.This appears to have been the last doctor's visit at which the plaintiff discussed anything related to his hip replacement.The plaintiff, at trial, denied he made a decision in 2014 to remove the hardware.

Notes in medical records that are prepared by a third party may be used for impeachment purposes; however, the Court has the ultimate decision on the weight to be given to third party statements, and in this case, the credibility of the plaintiff.

...[I]n order for statements in medical records to be utilized as a prior inconsistent statement against a witness when the medical provided who recorded the witness'[s] statements in the medical records is not present at trial, the trial court must be able to reasonably infer from the face of the records that the witness was the actual source of the statements at issue if the witness denies having made the statement.

Barone v. Law, 242 Ga.App. 102, 105(Ga.App.2000).In the instant case, the plaintiff has denied making such a statement.If the statement of a decision to have the surgery was made in 2014 and if it was in the plaintiff's own handwriting as part of an intake sheet, a court would give more weight to it for impeachment purposes as an inconsistent statement.If the third party portrayed the statement in quotes attributed to the plaintiff that also would be more persuasive for impeachment purposes.Here, the...