Virginia Lawyers Weekly VA Lawyers Weekly
A truck driver who suffered aggravation of a rare pre-existing brain condition settled his claim against a defendant driver’s employer for $2.5 million dollars after mediation, his lawyer reports.
Robert B. Guntharp of Winchester said his firm took over the complex case after the client’s prior counsel took a nonsuit and withdrew. The claim was met with denial of the medical damages and the defense of contributory negligence. After a workers’ comp claim was denied, the first attorney concluded the case was not worth pursuing, according to Guntharp. “He just totally walked away from it,” Guntharp said.
A Verdict & Settlement Report in the case appears on page 6. The parties and insurance carrier are confidential by agreement.
The plaintiff was a delivery truck driver whose truck broke down on U.S. Route 50 in Loudoun County in September 2005. He managed to get the truck to the side of the roadway, just past the entrance to the defendant’s business.
While he waited for help, the plaintiff was told to take inventory of the items he was transporting. He was walking about in the back of his truck when a large flat bed truck pulled out of the defendant’s property, turned right, and ran into the back of the plaintiff’s vehicle. The plaintiff tumbled over his truck’s console, with his head hitting the windshield.
Before the accident, the plaintiff had a rare condition called Chiari Malformations – structural defects in the cerebellum, the part of the brain that controls balance. The condition was mostly asymptomatic before the accident and the plaintiff had no idea he had the brain defect.
As described by Guntharp, Chiari Malformation, when symptomatic, is characterized by herniation of the cerebellum through the large opening in the base of the skull into the spinal canal. The herniated tissue blocks the circulation of cerebrospinal fluid in the central nervous system and can lead to the formation of a fluid-filled cavity within the spinal cord.
After the accident, the plaintiff declined hospital treatment. One doctor initially misdiagnosed the plaintiff’s condition as mere soft tissue injuries. He was referred for an MRI by a chiropractor after neurological symptoms persisted.
The MRI showed the accident had aggravated the plaintiff’s brain anomaly. The impact induced closing of his smaller than normal spinal fluid spaces, thereby blocking the circulation of spinal fluid. He began experiencing severe headaches, facial numbness, ringing in his ears, difficulty swallowing, gagging, blurred vision, confusion, problems with speech, low back pain, and weakness and pain in his arms and legs.
In addition to aggravation of his brain lesion, the plaintiff also sustained herniated discs at L4-5 and L5-S1 and developed post-traumatic lumbar disc disease at those levels.
Upon reading the MRI, a doctor directed the plaintiff to immediately report to the emergency room. His boss had to call him off the road, according to Guntharp. Emergency surgery at the University of Virginia was unsuccessful, with pain symptoms returning in a week.
The plaintiff underwent three more surgeries at the Chiari Institute in New York. His medical bills were more than $477,000. Total damages, including future medicals and future lost earnings, were $2.6 million.
The suit was filed in Loudoun County Circuit Court. The defendant’s carrier offered nothing.
Guntharp said the defendant tried to blame the plaintiff for parking where he did, failing to report his breakdown to the defendant’s business, and failing to post a reflective triangle, even though the breakdown happened in broad daylight.
The defendant also claimed it was not responsible for the pre-existing condition, according to Guntharp. A defense neurologist opined that the symptoms were unrelated to the accident.
The case was mediated in July with by retired Richmond Circuit Judge Robert L. Harris Sr. and settled for $2.5 million.
Guntharp said it was gratifying to be able to provide financial security for someone who was close to destitute. Before the settlement, he said, the plaintiff’s wife had left him, he was living on charity from relatives and a church, and he was on the verge of losing his home.
“At least in terms of financial security, he’s now in good shape,” Guntharp said.
