Waring v. Johnson

• Decision Date: 12 June 2000
• Docket Number: No. 3193.,3193.
• Citation: 341 S.C. 248,533 S.E.2d 906
• Parties: Lea WARING, Respondent, v. Darrell JOHNSON, III, Appellant.
• Court: South Carolina Court of Appeals

341 S.C. 248

533 S.E.2d 906

Lea WARING, Respondent, v. Darrell JOHNSON, III, Appellant.

No. 3193.

Court of Appeals of South Carolina.

Heard May 10, 2000.

Decided June 12, 2000.

Rehearing Denied September 2, 2000.

Matthew H. Henrikson and Wendy J. Keefer, both of Barnwell, Whaley, Patterson & Helms, of Charleston, for Appellant.

Paul H. Infinger, of Dukes, Williams, Infinger & Ruff, of Beaufort, for Respondent.

ANDERSON, Judge:

In this tort action, Darrell Johnson, III, appeals from the trial court's grant of a new trial nisi additur to Lea Waring. We affirm.

FACTS/PROCEDURAL BACKGROUND

On August 19, 1992, at about 1:30 p.m., Waring and Johnson were involved in an automobile accident on Highway 17, at that time a two lane highway, near an area called Pocataligo. Waring, who was sixty-four years old at the time, was a passenger in a motor home which Johnson struck from behind in his truck.

Waring testified she and her then-husband (the couple is now divorced) were in the second day of a one month trip when they were forced to slow down because a car ahead of them was driving with a flat tire. They were waiting for oncoming traffic to clear so they could pass when they were suddenly, and without warning, struck from behind. The front left side of the truck crashed into the right rear portion of the motor home with such an impact that a stove or refrigerator which was installed inside the motor home flew over the top of the truck. The highway patrolman who responded to the scene stated that when he arrived, debris from the motor home was scattered two hundred feet up and down the highway.

The highway on which Waring and Johnson were traveling was straight and had no visual obstructions. According to Johnson, it was raining hard at the time of the accident and, although he had slowed to 45 miles per hour, the rain on the road made it impossible for him to avoid striking the motor home. Waring, however, did not recall it raining very hard. Waring declared she had no difficulty seeing the slowed vehicles ahead and her husband had no difficulty in slowing down while waiting for an opportunity to pass.

The next morning, Waring felt stiff and took Ibuprofen. She and her husband canceled their plans to drive to Maine. Instead, they returned to their home in Florida on Saturday, four days after the accident. By that date, Waring was in agony, in pain throughout her body. She could not bear to ride in the vehicle without Ibuprofen. Waring found and took some Darvocet she had in a first aid kit.

On Monday morning, Waring called to make an appointment with her doctor, Dr. Robert Diaz, an orthopedic surgeon. She could not get an appointment until August 28, 1992. In the interim period, Waring suffered from neck and back pain so severe she could not bend over and could only "lay around and groan." Dr. Diaz recalled Waring suffered from muscle spasms in her neck and lumbar spine. He opined the spasms were caused by the accident. Dr. Diaz prescribed muscle relaxers and anti-inflammatory medicine and sent Waring to physical therapy.

When Dr. Diaz saw Waring less than two weeks later, on September 9, he noticed mild muscle spasm in her upper shoulder. Her lumbar spine spasm had become moderate to marked with a loss in her range of motion. At her next visit on September 18, Waring had improved with physical therapy but was still suffering pain in her shoulder. She experienced even more improvement by her next visit on September 30, although she still had spasms in her lumbar spine and upper shoulders. By early November, Waring had improved to the point that she was able to swim and fish. Yet, she still experienced tightness in her neck while sitting and reading. At a visit approximately three weeks later, she reported she was no longer improving with physical therapy and medicine. Additionally, she complained of neck pain and occasional arm pain while reaching. An examination revealed her range of motion in her neck and lumbar spine was restricted. As of her December 4, 1992 visit, Waring's main symptoms involved her neck, but she had less spasms and her range of motion was good. Dr. Diaz advised Waring to increase her activities and perform exercises at home.

On January 6, 1993, Dr. Diaz examined Waring when she experienced a recurrence of lower back discomfort brought on by lifting a holiday turkey on December 22, 1992. She noticed the pain immediately and it remained until her visit to the doctor. Dr. Diaz checked Waring's lumbar spine and reported the highest spasm and pain ratings to date. Her range of motion was minimal. Dr. Diaz ordered an MRI and a bone scan. Waring's bone scan was normal, but her MRI showed extensive degenerative disc disease and spinal stenosis, which is a narrowing of the spinal canal. According to Dr. Diaz, the cause of Waring's back complaints on that date "was a continuing problem from her motor vehicle accident that had probably aggravated an already present spinal stenosis." In addition, she suffered neck complaints which the doctor attributed to cervical strain caused by the accident. Dr. Diaz stated he did not believe Waring was malingering or faking her symptoms.

In January, Waring began experiencing more severe back problems, which affected her control over her legs, bowel, and bladder. Because of her increasing difficulties and Dr. Diaz's reluctance to engage in any different course of treatment, Waring decided to see a neurosurgeon. She spoke to one of her neighbors, who recommended she seek the assistance of Dr. Glenn Kindt, a neurosurgeon in Denver, Colorado, who had performed back surgery on Waring's neighbor. Dr. Kindt saw Waring four times: (1) on September 14, 1993, for her initial evaluation in which he reviewed her MRIs and recommended surgery; (2) on September 20, 1993, when he performed a laminectomy¹ for stenosis and discectomy² for a herniated disc on Waring; (3) at the follow-up visit on September 28, 1993; and (4) approximately two years later on August 21, 1995, when Waring continued to experience burning sensations down her right leg after standing for longer than two hours.

When asked the role Waring's accident played in her symptoms, Dr. Kindt was hesitant to give an opinion of the role of any accident in Waring's condition. However, he stated that if she had been in an accident and if her symptoms began at that time, he was quite certain the symptoms were related to the accident. Dr. Kindt explained that, while an accident could not have created the stenosis which required surgery, it could have aggravated it. When presented with hypothetical questions matching Waring's history, Dr. Kindt opined her stenosis was in fact aggravated by the accident and that her herniated disc could have been caused by the accident.

Sometime in 1994, after her surgery and return to Florida, Waring began experiencing muscle spasms which would sometimes last several days. In May of 1994, she visited the Carolina Spine Institute in Charleston, South Carolina, where she saw Dr. Steven Poletti for an independent medical evaluation of lower back pain.

In 1995, Waring moved to Seattle, Washington. On April 16, 1996, she began seeing Dr. Andrew Friedman, a doctor of physical medicine and rehabilitation. At that point, she could not engage in her prior hobbies such as fishing or swimming. Her main complaint was back pain. Dr. Friedman prescribed Darvocet and arranged for Waring to receive physical therapy to reduce her muscular contractures. In August of 1996, Waring returned to Dr. Friedman for a check-up because she had "new symptoms radiating down her leg." Her foot was becoming increasingly numb. One month later, Dr. Friedman gave her a steroid injection to reduce inflammation. He opined Waring's 1992 accident most probably caused or contributed to her back and leg pain. Dr. Friedman explained that Waring had a pre-existing degenerative arthritic condition which the accident probably accelerated or aggravated. He stated Waring's pain would be permanent and would require a variety of treatments over the remainder of her life, including medication, physical therapy, epidural steroid injections and, possibly, surgery.

In October of 1997, Waring returned to the Carolina Spine Institute where she was treated by several doctors. Her primary complaints were back pain, leg pain, numbness on the top of her foot, pain in her right foot, and an inability to move her toes. Waring received epidural steroid injections and selective nerve root injections to ease the pain. Dr. John Johnson, who treated her at the institute, testified Waring's 1992 accident was the initial cause of her back pain and, although she had pre-existing conditions, the accident clearly aggravated them, causing her cascading pain requiring surgery and years of treatment. Dr. Johnson asserted that, based on the treatment Waring received in the past, he would be "very surprised if there's anything that can be done for her" to make her better. He did, however, refer Waring to a chronic pain specialist.

In addition to the pain and surgery she endured, Waring's lifestyle was changed by the accident. Prior to this wreck, Waring enjoyed traveling long distances, camping, competitive salt water sport fishing, golfing, boating, swimming, and gardening. Since the accident, Waring has been unable to return to most of these activities.

Waring filed this action against Johnson and his father in 1995 seeking recovery for personal injuries suffered as a result of the accident. Johnson's father was subsequently dismissed as a party. At the conclusion of the trial, the court instructed the jury with regard to the law of aggravation of a pre-existing injury and the law of damages, including past and future medical expenses, as well as physical and mental pain and suffering. The jury returned a verdict of $23,237.28, the exact amount of Waring's medical bills. Waring moved for a new trial nisi additur or, in the alternative, a new...