Collision In Work Zone Of Paving Project

Type of Action — Negligence

Other Useful Information — This case arose from an automobile accident that occurred within the work zone of a paving project on Interstate 95. The lead contractor on the job, Virginia Paving, was responsible for breaking up and removing the old asphalt (millings) and repaving the northbound lanes of the highway.

The plaintiff was employed by J.E. Coleman, a subcontractor of Virginia Paving. His job was to transport fresh asphalt to the job site, where it would be dumped into a paving machine, and then pick up a load of millings to take back to the Virginia Paving plant for recycling.

The plaintiff, who drove trucks and also did minor mechanical repairs, received a call that another truck owned by his employer was broken down on the job site. He dumped his load of asphalt and then drove his truck to the location of the vehicle to see if he could get it started.

Most of the testimony placed both the broken-down truck and the plaintiff’s truck completely on the shoulder of I-95, although the individual defendant testified that the trucks were partially on the highway. Both trucks were facing north with the drivers’ sides of the vehicles opening out onto the shoulder.

The plaintiff walked around to the front, driver’s side of the broken-down truck, got down on his back and slid underneath the truck to check the starter. A co-employee, the driver of the broken-down truck, was standing next to him keeping a lookout for any vehicles in the vicinity.

While the plaintiff was underneath the truck, a sweeper truck owned by the corporate defendant and operated by one of its employees suddenly backed into the passenger’s side of the broken-down truck. The front wheel of the truck rolled up against the side of the plaintiff, and he immediately twisted his body and slid out from underneath the truck. It was the opinion of his treating physicians that the plaintiff’s disc herniation was most likely caused by his attempts to slide and twist out of the way of the truck’s wheel.

The issue of liability was hotly contested by the defense. The defendants argued that the plaintiff was not actually underneath the truck when the impact occurred, or, alternatively, that if he was under the truck the impact was very slight and not sufficient to move the broken-down truck.

The plaintiff’s primary injury was a herniated disc at the L5-S1 level of his lumbosacral spine with displacement of the right S1 nerve root. The plaintiff, who had no history of previous back problems, suffered from chronic and persistent low back pain and right-sided radiculopathy which failed to respond to conservative treatment. This treatment included the extended use of pain medication, physical therapy and multiple injections of steroids and anti-inflammatory medication.

The plaintiff was initially treated by Dr. Lucey, who referred him to Dr. Squillante after it became clear he was a surgical candidate. On June 3, 1998, Dr. Squillante performed a partial, right-sided L5-S1 diskectomy. This procedure provided the plaintiff some temporary relief, but his symptoms gradually recurred.

The plaintiff remained under the care of Dr. Squillante up through the date of trial. However, as was the case before his surgery, his symptoms persisted despite the daily use of medication, three more epidural steroidal injections and physical therapy.

Dr. Lucey and Dr. Squillante both testified that the plaintiff’s herniated disc was caused by the accident, and that the disc herniation was causing his chronic and persistent symptoms. Dr. Colopy testified that he had performed an EMG/NCS on the plaintiff at the request of Dr. Squillante, and that the findings of this procedure confirmed a right, L5-S1 radiculopathy.

The plaintiff was seen by Dr. Harold F. Young, chairman of the division of neurosurgery at MCV Hospital, for a second opinion. Dr. Young confirmed the opinions of both Dr. Lucey and Dr. Squillante, and he agreed that the plaintiff would likely need additional surgery in the future to alleviate his symptoms. Doctors Lucey, Squillante and Young all testified that the permanent injury and disability were a result of the accident.

The plaintiff was a very sincere individual who only had a 10th-grade education and had performed physical labor all of his life. In addition to driving commercial trucks, the evidence showed that he had worked milking cows on a dairy farm for many years to supplement his income. His employers from both the trucking company and the dairy farm were called to verify the lack of any pre-accident disability and to confirm the plaintiff’s reputation for being truthful and honest.

The plaintiff initially was out of work from the date of the accident until February 1998. He subsequently returned to work driving for a different trucking company, working until May of this year, when he was forced to stop working after aggravating his injuries when he was assigned to a more physically demanding job. The plaintiff remained out of work from the end of May up until the trial.

Mr. Melberg, a certified rehabilitation counselor, performed a vocational rehabilitation evaluation and testified that the plaintiff’s earning capacity had been reduced by approximately 50 percent. Melberg said that the plaintiff’s total loss of earning capacity projected out over his remaining work-life expectancy would be approximately $350,000.

Defense counsel obtained an orthopaedic IME from Dr. Robert O. Gordon and had the plaintiff’s records reviewed by Dr. Charles Citrin, a radiologist with a specialty in neuroradiology. Both Dr. Gordon and Dr. Citrin practice primarily in Washington D.C. and the Maryland suburbs. Dr. Gordon has a part-time office in Arlington, where he sees patients once a week.

In short, Dr. Gordon felt that the plaintiff’s problems were attributable to pre-accident degenerative conditions. It was his opinion that the plaintiff should only have been treated conservatively for approximately six months, and that any treatment thereafter, including his surgery, was unnecessary and unrelated to his accident. While Dr. Citrin admitted that there was a disc herniation at L5-S1, he described it as being a tiny herniation and likewise attributed the plaintiff’s problems to pre-existing degenerative conditions.

The testimony of the plaintiff’s physicians and Melberg was crucial. In addition, the plaintiff and his lay witnesses came across as honest, which was essential to the successful outcome in this case.

Type of Injuries — Chronic lumbar disc herniation at L5-S1 with radiculopathy into the left leg and some cross-over pain in the right leg

Name of Case — Talley v. Clean Sweep Professional Parking Lot Maintenance Inc. et al.

Court / Case No. — Spotsylvania Circuit Court / CL00-146

Special Damages — $39,471.68 in past medical bills; $63,403.75 in past lost wages; expected future medical bills of $40,000; and expected future loss of earnings and / or earning capacity of $356,500

Highest Offer — None

Damages Awarded / Settled — Awarded

Amount — $900,000

Plaintiff’s Attorney — Charles F. Purcell, Louisa

Insurance Carrier — Erie Insurance Group

Plaintiff’s Experts — Dr. John D. Lucey, Fredericksburg Orthopaedic Associates; Dr. Robert G. Squillante, Fredericksburg Orthopaedic Associates; Dr. Paul M. Colopy, Neurology Associates of Fredericksburg; Dr .James D. Sprinkle, Jr., Mary Washington Hospital Department of Radiology; Dr. Harold F. Young, MCV Division of Neurosurgery; and Peder K. Melberg, M.A., C.R.C., Vocational Resources, Glen Allen

Defendants’ Experts — Dr. Robert O. Gordon, Georgetown Medical Offices, and Dr. Charles Citrin, Washington Imaging Associates

[03-T-4]