Shadle v. Morris

• Decision Date: 25 February 2013
• Docket Number: Case No. 2012CA00073
• Citation: 2013 Ohio 906
• Parties: THOMAS J. SHADLE, ET AL. Plaintiffs-Appellants v. ANTHONY M. MORRIS Defendant-Appellee
• Court: Ohio Court of Appeals

2013 Ohio 906

THOMAS J. SHADLE, ET AL. Plaintiffs-Appellants

v.ANTHONY M. MORRIS Defendant-Appellee

Case No. 2012CA00073

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

DATE OF JUDGMENT ENTRY: February 25, 2013

JUDGES:

Hon. Patricia A. Delaney, P.J.

Hon. W. Scott Gwin, J.

Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2011CV01826

JUDGMENT: AFFIRMED

APPEARANCES:

For Appellants:

MEGAN J. FRANTZ OLDHAM

For Appellee:

MATTHEW P. MULLEN

Delaney, P.J.

{¶1} Plaintiffs-Appellants Thomas and Kathleen Shadle appeal the trial court's decision to deny their motion for directed verdict and post-dispositive motion for a new trial or judgment notwithstanding the verdict in this personal injury action. Defendant-Appellee is Anthony M. Morris.

FACTS AND PROCEDURAL HISTORY

{¶2} On June 13, 2011, the Shadles filed a complaint against Morris in the Stark County Court of Common Pleas. The complaint alleged Morris negligently caused an automobile collision in which they were involved, proximately caused Thomas Shadle to suffer a herniated disc, and caused Kathleen Shadle loss of consortium.

{¶3} The matter went to a jury trial. At trial, the parties stipulated to Morris's negligence in causing the automobile accident. The matter in dispute was whether Morris's negligence was the proximate cause of Thomas Shadle's injury and resulting surgery. The following evidence was adduced at trial.

{¶4} On Friday, January 8, 2010, at approximately 2:40 p.m., the Shadles were exiting the parking lot of Belden Village Mall in their 2002 Honda Accord. It was a cold, snowy afternoon. Kathleen Shadle was driving and Thomas Shadle, then 54 years old, was in the passenger seat. He was wearing his seat belt.

{¶5} The Shadles were stopped at the red light at the intersection, waiting to turn right onto Everhard Road. Anthony Morris was driving his 2001 Hyundai Tiburon and stopped directly behind the Shadles' vehicle. When their vehicle pulled forward, Morris proceeded forward and then applied the brakes to stop, but slid in the snow and rear-ended the Shadles' vehicle. The Shadles described the impact as a hard jolt.Morris estimated he was driving at a speed of less than five miles per hour at the time of the accident and described the impact as a "bump".

{¶6} The parties exited their vehicles to observe the damage. Upon exiting the vehicles, Morris asked the Shadles if they were injured based on Morris's training as an emergency medical technician. The Shadles denied any injuries and they looked at the damage to the cars. There was not any observable damage to the cars. Morris asked if they would not call the police because he was late for work. The Shadles chose to call the police to make a report. The police arrived, a report was made, and the parties went on their way.

{¶7} While at the time of the accident Thomas Shadle did not feel he suffered any injury, he woke up on Saturday, January 9, 2010 with pain in his neck that radiated down his left arm causing numbness and tingling. Thomas Shadle decided not to visit the emergency room over the weekend but waited to make an appointment with OMNI Orthopedics on Monday.

{¶8} Thomas Shadle saw Dr. Daniel Dorfman of OMNI Orthopedics on Tuesday, January 12, 2010. Thomas Shadle described his pain as pain in his neck and upper back with some radiation into his left arm with a sense of tingling in the left arm. Dr. Dorfman prescribed pain medication and physical therapy. When the pain medication and physical therapy did not abate Thomas Shadle's discomfort, Dr. Dorfman ordered an MRI and an EMG nerve conduction test.

{¶9} Thomas Shadle worked as a self-employed IT consultant. At the time of the accident, he did not have any active contracts but was obtaining professional certifications, attending college to upgrade his computer skills and looking for workopportunities. Due to the tingling and numbness in his left arm, he did not feel he could comfortably work on the computer. He felt the electricity from the computer and other large appliances exacerbated the tingling in his arm. He was not able to assist his wife at home or participate in his regular activities.

{¶10} Thomas Shadle had the MRI done on February 8, 2010. The MRI showed he had a C7-T1 herniated disc with impingement of the left C8 nerve root, the nerve between the C7 and T1 vertebrae. The EMG nerve conduction test was performed on February 11, 2010 and showed left C8 radiculopathy, inflammation of the nerve. Based on the test results, Dr. Dorfman referred Thomas Shadle to Dr. Mark Cecil, an orthopedic surgeon with OMNI Orthopedics. Dr. Cecil recommended a a cervical discectomy and fusion of C7-T1 to relieve Thomas Shadle's symptoms.

{¶11} Dr. Cecil performed the surgery on March 5, 2010. After the surgery, Thomas Shadle felt relief from the pain, numbness, and tingling he felt prior to the surgery. Thomas Shadle incurred medical bills approximately in the amount of $38,000.00.

{¶12} About five months after the surgery, Thomas Shadle found employment as an IT consultant in Minnesota and at the time of trial, he had moved to California to become a data base administrator for Kaiser Permanente.

{¶13} Dr. Cecil testified at trial by videotape deposition as plaintiff's medical expert. Dr. Cecil is board certified in orthopedic surgery and is a clinical instructor at the Northeastern Ohio University College of Medicine. Dr. Cecil testified that pain, numbness, and tingling in the arm were classic symptoms of a herniated disc putting pressure on a nerve. Dr. Cecil testified to a reasonable degree of medical probabilitythe collision proximately caused Thomas Shadle's herniated disc and resulting surgery. In order to make that determination, Dr. Cecil considered four factors. First, it did not appear to Dr. Cecil from his records that Thomas Shadle complained of arm pain, numbness, tingling, and neck pain symptoms before the injury. Second, he believed the 5 mph or less impact of Morris's vehicle was enough to cause the injury. Third, Dr. Cecil was of the opinion the disc herniation was an acute injury in that it likely occurred six weeks before the EMG nerve conduction test. Fourth, while Thomas Shadle had degenerative conditions within his neck, Dr. Cecil believed the disc herniation was relatively new. This disc degeneration was worn at levels typical for Thomas Shadle's age. The disc herniation was a soft disc herniation that indicated to Dr. Cecil it was a new injury.

{¶14} On cross-examination, Dr. Cecil testified to the degenerative disc disease. Dr. Cecil described degenerative disc disease as a normal consequence of aging and was extensive because Shadle had multiple levels involved, but was consistent with his age. In cross-examining Dr. Cecil, defense counsel referred to Shadle's medical chart. The cervical films of Shadle showed extensive spondylosis, meaning degenerative change within the spine. Shadle also had "osteophytic spurring," which are bony projections that occur around the discs as the discs wear out. Dr. Cecil testified those things could be independent pain generators. Dr. Cecil stated that Thomas Shadle told him he never had neck pain before the accident. Later, Dr. Cecil testified Shadle indicated he never had a tremendous component of neck pain in the past. Dr. Cecil's records did not show that Shadle had previous arm tingling or numbness before the accident.

{¶15} Thomas Shadle's MRI showed "spondylitic protrusions" at C3-4, which Dr. Cecil interpreted as disc protrusions or degeneration:

Q. It means the disk is flattening out and bulging, right?

A. That would be a good description.

Q. And this jelly doughnut concept that you brought up on direct, disks flatten out, and eventually a lot of times, that can lead to a disk herniation with or without trauma. Would you agree with that?

A. It can.

(Videotaped Deposition of Mark Cecil, M.D., p. 30.)

{¶16} Defense counsel questioned Dr. Cecil as to his conclusion of the time the injury occurred:

Q. And with an MRI film, you can't look at that and tell how long a disk herniation has been there. Is that true?

A. You can generally tell. In other words, you can separate acute from chronic. You can do that. Can you tell specifically in terms of days? No, you can't tell that.

Q. How about months?

A. I think you can get a general idea. Again, as I said, you know, you can say, you know, three months generally. But, again, you got to correlate this as well with symptoms.

Q. I assume -

A. Because there are a lot of herniated disks that don't - aren't symptomatic.

Q. That's true. And I assume then that - that you certainly could tell on an - an MRI if it's been years?

A. You could have a good - a pretty good idea, yes.

Q. I - you may not remember this, but I had deposed you back in 2004 in a case where you were testifying for the plaintiff. And I asked you that very same question. I - I just want to show you this. (Indicating.) MS. FRANTZ OLDHAM: Objection

* * *

Q. And I want to show you a question that I ask you: "And would it be fair to say that when you're looking at an MRI you can't really tell how long the herniated disk has been there, whether or not it hurts for the most part, or what caused it. Would that be a fair statement?" And could you look at your response?

A. I got to read it a little bit in context here, but I'll - my response is, and then I'll - let's see: "Yeah, I don't think - I don't think you can specifically. You can tell generally. In other words, if something has been there long term, chronically, versus something that's relative new, but in terms of pinning it down to months or years I would say that's a fair statement." That's pretty much what I just told you.

Q. You had just told me that you can tell months, like three months or so, but here you said months or years you can't; is that right?

***A. Three months. I think that's very consistent to what I was - I - I think that there's absolutely nothing in what I said

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