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Plaintiff’s obesity complicates settlement of traffic case – $1,500,000 Settlement

This case arose out of a motor vehicle collision that occurred on Temple Avenue in Prince George County on Aug. 3, 2007. The road has four lanes and a grass median. The plaintiff, Teresa McKay, was driving her Nissan Sentra in the left southbound lane when the defendant, who was driving a 15-passenger work van and was traveling slightly ahead of the plaintiff in the right lane, suddenly swerved from the right lane into the left lane. It appeared to the plaintiff as though the defendant was attempting to turn into a cut in the median at the time of the collision. Plaintiff’s vehicle sustained significant property damage.

The collision was investigated by Sgt. J. F. Crowder of the Prince George County Police Department. According to Crowder, the defendant told him at the crash scene that he got a cramp in his leg, jerked the steering wheel to the left and struck the car operated by the plaintiff.

During his deposition, the defendant denied making such a statement. The driver asserted that he moved safely into the travel lane and slowed to make a left turn into the median. A witness in the defendant’s van testified unequivocally to the driver’s version of being in the left-hand lane for a significant period of time, slowing down to turn and being struck by the plaintiff. The defendant admitted in his deposition that he had missed his turn shortly before the accident and was attempting to make a U-turn when the collision occurred.

The van that the defendant was driving at the time of the collision had pre-existing property damage, and it was difficult to determine where the van was hit during the collision.

Plaintiff was transported from the scene via ambulance to VCU Medical Center where she underwent surgery to repair a right posterior comminuted acetabular fracture. The surgery required the installation of two metal plates with screws. In addition to the acetabular fracture, plaintiff also sustained a fracture to her left hand and multiple rib fractures. She also underwent surgical debridement for a right hip infection that developed from the trauma. Plaintiff was hospitalized at VCU Medical Center for slightly less than 30 days.

According to one of the plaintiff’s orthopedic experts, the plaintiff would likely need two hip replacements due to the damage done to the hip joint. Plaintiff had not been back to work at the time the mediation occurred. For approximately a year before the accident she had worked at McDonald’s cooking French fries, making $180 a week.

Although the plaintiff currently needs the first hip replacement, she has not been able to undergo the surgery because of her significant obesity. She will need to undergo gastric bypass surgery to reduce her weight to allow the surgery to proceed, and she will need to lose weight on her own before she can undergo the gastric bypass surgery.

The defense had retained Dr. Terry Whipple, an orthopedic surgeon, as an expert witness. Whipple confirmed that the plaintiff needed a total hip replacement, although he did not agree that she needed a second future hip replacement. The defense contested liability, challenged the plaintiff’s future medical costs and disputed the plaintiff’s future lost wage claim. Moreover, the defense claimed that the plaintiff failed to mitigate her damages for years after the accident by making little or no effort to lose weight in order to undergo hip surgery.


Type of action: Negligence – motor vehicle collision
Injuries alleged: Right posterior comminuted ascetabular fracture requiring open reduction internal fixation surgery that included installation of hardware to repair the fracture. Additional injuries included a comminuted fracture of the left third middle finger and multiple rib fractures. Additional surgery involved debridement of the right hip due to infected hematoma caused by the trauma.
Name of case: Teresa A. McKay v. J & J Logging Inc., Jerry L. Hargrove and Joseph A. Ross
Court: Prince George County Circuit Court
Case No.: CL09-163
Name of judge: Samuel E. Campbell
Special damages: Past medical expenses $248,197 and projected future medical expenses of $148,430. Past lost wages of $25,740 and projected loss of earning capacity of $163,080.
Verdict or Settlement: Settled at mediation with Harley W. Duane III of Richmond
Amount: $1,500,000
Date: May 19, 2010
Plaintiff’s attorneys: Walter H. Emroch and Thomas J. McNally, Richmond

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