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Monthly Archives: March 2010

GPS evidence not enough to void speeding ticket

 

 

Lawyers tend to have lead feet when it comes to driving. That comes as no surprise.

Why do we speed?

For one thing, our hectic schedules always seem to have us running five minutes late.

Then there’s that natural arrogance that our time is more valuable than the time of ordinary mortals.

Laying in wait on the side of the road – more than ready to disabuse us of such exalted notions – is a familiar nemesis: the traffic cop.

Now, global positioning systems provide lawyers and their clients with a new weapon to challenge the speeding ticket.

But a recent decision illustrates the current limitations on GPS evidence in rebutting a police officer’s determination of a driver’s speed.

At 2:52 pm on March 17, 2009, a trooper pilot for the Ohio State Highway Patrol clocked Jason Barnes travelling 84 miles per hour in a 65 mph zone while conducting aerial speed enforcement over I-75 in Auglaize County.

The trooper pilot communicated that information to a trooper on the ground who pulled Barnes over and issued a speeding ticket.

Barnes thought he had a good basis for challenging the trooper pilot’s determination of his speed.

You see, Barnes works for a company that, like an increasing number of employers, uses a global positioning system that allows it to track its employees’ movements during the work day.

The company that Barnes works for has Verizon Wireless cellular phone service. The Verizon GPS records his location and his speeds while traveling for his employer. The employer receives an alert if Barnes drives in excess of the posted speed limit.

When Barnes challenged his ticket at trial, he produced records from his employer’s GPS provider which purported to show that his rate of speed was not in excess of the posted speed limit as testified to by the trooper pilot.

The GPS documents show his speeds for the date in question as follows: 2:46 p.m. – 57 mph; 2:48 p.m. – 50 mph; 2:50 p.m. – 44 mph; and 2:52 p.m. (the time of the trooper’s reading) – 50 mph.

On the surface, this appeared to be pretty convincing evidence rebutting the state’s evidence that Barnes was speeding.

But the trial court didn’t see it that way and ordered Barnes to pay a fine of $35 and assessed two points on his driver’s license.

Last month the Ohio Court of Appeals upheld the traffic penalty in a decision that illustrates just how problematic GPS evidence can be.

First, the court questioned whether the GPS data was sufficiently precise to rebut a trooper’s speed reading at a particular moment in time.

“Barnes testified that the GPS provided the average of his speed over a two-minute time frame,” the court said. “In other words, the GPS did not give his specific speed at a specific time, but an average speed over two minutes.”

And because Barnes had primarily used documents downloaded from the Internet to make his case, the court questioned the reliability of that evidence.

The court observed that “Barnes presented no evidence from a person with personal knowledge regarding how the GPS calculates speed, whether there is any type of calibration of the equipment used to detect speed, whether the methods employed by his particular company to detect speed are scientifically reliable, or the accuracy of the GPS’ speed detection.”

So Barnes’ high hopes that his GPS evidence would get his speeding conviction overturned ultimately amounted to naught.  

“Given all of the evidence, we find that the credible evidence clearly supports the trial court’s judgment that Barnes was traveling in excess of sixty-five miles per hour on Interstate 75, a freeway, on March 17, 2009, in Auglaize County, Ohio,” the court concluded. (Ohio v. Barnes)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

‘Old fart’ loses age discrimination case

How can office talk about replacing the “old, gray-haired fart” not add up to a pretty strong age discrimination case when the object of scorn is later fired? 

Try the boorish behavior of the old, gray-haired fart himself.

 

Sex harassment, senior style

Wayne Jackson is in the home stretch of life. In 2007, Jackson had reached the ripe old age of 69 and was wrapping up nearly twenty years as a manager at Cal-Western Packaging Corporation in Houston, Texas. 

With retirement staring Jackson in the face, you’d think he’d be smart enough to steer clear of trouble.

Instead, Jackson started looking for trouble. At least that’s the picture that his coworkers painted.

Karen Hopper was one of those coworkers.

In May 2007, Hopper, emailed her supervisor, Cal-Western Controller Jim Rosetti, claiming that that Jackson had been engaging in behavior that made her “uncomfortable.”

Hopper alleged that Jackson had asked to see her breasts and had commented that her boyfriend must like “big boobs.” She claimed that that every time she saw Jackson he tried to touch her and that, on one occasion, he had actually cornered her and asked her to raise her shirt.

Rosetti took the allegations seriously and reported them to Chief Operating Officer Jimmy Phelps.

Phelps commenced an internal investigation and interviewed several employees who corroborated the allegations. An attorney hired to conduct an external investigation further confirmed the harassment allegations through employee interviews.

Needless to say, Cal-Western fired Jackson for breaching the company’s sexual harassment policy.

Knowing the way of the world, we might suspect that Cal-Western all along was fishing for a legitimate reason to give good old Wayne Jackson the boot. The problem was how to get that object accomplished without getting sued for age discrimination.

Unfortunately for Jackson, assuming his coworkers’ allegations of sexual harassment were true, he had just given his bosses more than enough legal grounds for dismissal.

The sexual harassment accusations didn’t stop Jackson from suing under the Age Discrimination in Employment Act.

On the face of it, Jackson seemed to have a case. He could certainly check off all the boxes for prima facie age discrimination.

Jackson was sixty-nine years old when he was terminated and Cal-Western replaced him with a 42-year-old. There was no dispute that Jackson was qualified for his managerial position.

And there appeared to be direct evidence of age discrimination.

Jackson alleged that Phelps — the Cal-Western COO –had told employee Donnie Sheets that Jackson was an “old, gray-haired fart” and that Sheets would be in charge when Jackson retired.

The problem for Jackson was that Phelps made the alleged comment in 2006 and Jackson wasn’t fired until June 2007.

 

ADEA case gets the boot

Last week, the 5th Circuit zeroed in on the timeline in affirming a summary judgment for Cal-Western on Jackson’s ADEA claim.

The court explained that “Jackson has provided no evidence that the comment was proximate in time to his firing or related to the employment decision at issue. Jackson maintains that Sheets told him of Phelps’s comment on a visit to Memphis in the summer of 2006, but it is unclear when Phelps actually made the comment….

“Still, even assuming that the comment was made soon before Sheets reported it to Jackson, it was made about a year before Jackson’s June 2007 termination. The comment appears wholly unrelated to Jackson’s termination, and Jackson has not presented any evidence to show otherwise.”

Dismissing Jackson’s key evidence of age discrimination as a “stray comment,” the court returned to the heart of the matter: Cal-Western had a strong case that Jackson sexually harassed coworkers.

Of course, Jackson denied the allegations of sexual harassment, claiming that they were merely a pretext for getting rid of him.

But the 5th Circuit concluded that Jackson’s denials were insufficient to get his case before a jury.

“Jackson’s self-serving statements that he did not commit sexual harassment are insufficient to create a triable issue of fact as to whether Cal-Western’s explanation is false,” the court said.

That pretty much summed up the matter.

“The overwhelming evidence shows that Jackson was fired for violation of Cal-Western’s sexual harassment policy, and Jackson’s only evidence to the contrary comes from his own assertions,” the court said. “Without more, we simply cannot conclude that there is a triable issue of fact as to whether Cal-Western discriminated against Jackson based on age.” (Jackson v. Cal-Western Packaging Corporation)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Neighbors from Hell get their comeuppance

 

 

There’s always some trepidation when new neighbors move in next door. You’re never quite sure what you’re going to get.

Are you going to be dealing with Good Neighbor Sam or American Psycho?

Me? I’m not that particular. Just keep the music down and otherwise leave me the heck alone.

A friendly wave as you’re out to get the paper in the morning is good enough for me. I don’t need any new best buddies.

But what happens when you get one of those neighbors, the type who can take any real or imagined slight and turn it into a 2010 version of the Hatfields and McCoys?

That’s who Doug and Susan Estes found themselves pitted against when the Gertzes moved in next store.

Yep, before they knew what had hit them, the Estes found themselves staring across their yard at a regular Fort Apache, complete with loudspeakers and surveillance cameras peaking into the interior of their own home.

 

Up goes the ‘spite’ fence

Hebron, Indiana. Sounds like a pretty peaceful place. Doug and Susan had their normal troubles raising a son and two daughters, but all in all things were pretty good in Hebron.

And then the calendar flipped to 2003. That’s the year David and Nichelle Gertz moved in next door.

It didn’t take long for troubles to arise with the new neighbors.

In 2004, the two families disputed the location of the property line. Surveys resolved that dispute, but the stage was set for things to turn ugly.

The Gertzes didn’t like the fact that construction debris from an addition that the Esteses were building ended up blowing onto their property.

The Gertzes also objected to the wanderings of the Esteses’ three cats. So the Gertzes collected up the cats and took them to animal control.

And in an ultimate “we’ll show them” move, the Gertzes built a fence around their property.

This was no ordinary fence, mind you. It was a 720-foot long, eight-foot high wooden fence that stood a mere eight inches from the property line.

What’s more, the fence had some nasty features. Thousands of nail points protruded from the side of the fence facing Doug and Susan’s property.

Sounds like the sort of booby trap the Viet Cong would come up with.

Just in case Doug and Susan didn’t get the message, the Gertzes painted in orange and black the words “NO CLIMBING” and “NO TRESPASSING” on the fence. 

Topping the fence off were two surveillance cameras. This brought to seven the total number of cameras on the Gertz property. 

One camera mounted on the top of the Gertzes’ chimney was capable of rotating 360 degrees and magnifying images 23 times. For family entertainment, the Gertzes could grab a bowl of popcorn and watch surveillance video on their television. 

The creepy thing about that was that the cameras were capable of viewing the interior of the Esteses’ home.

Then there were the loudspeakers. 

The Gertzes equipped their home with a public address system. 

Not only did the Gertzes use the loudspeaker system to blare loud music, they also allegedly broadcast personal swipes at their neighbors. According to Doug, Mrs. Gertz actually used the speaker system to make lewd comments to his daughters. 

You just have to wonder what gets in to people.

 

The sweet revenge of Doug and Susan

Doug and Susan had had enough. In 2005, they sued alleging that the fence violated the Indiana “spite fence” statute.

A sympathetic judge ordered the Gertzes to remove the fence, the public address system, and the surveillance cameras within thirty days. Moreover, the judge entered protective orders prohibiting each family from contacting, harassing, or annoying the other family.

This order led to two rounds of appeals.

In Round One, the Gertzes argued that the spite fence statute did not apply to them because they had obtained a permit to erect the fence.

The Indiana Court of Appeals nixed that argument in a 2008 decision.

For one thing, the Gertzes’ building permit was only for the construction of a seven-foot fence, so their eight-foot fence didn’t conform to whatever local authorization they had obtained.

But the more fundamental conclusion reached by be court was that a building permit is not a defense under the spite fence law.  

“The statute makes no reference to conformity with local ordinances. Indeed, in creating a cause of action where a fence is ‘maliciously erected . . . for the purpose of annoying the owners or occupants of adjoining property,’ the legislature made clear its motivation to address the intent of the builder, irrespective of other government regulation. The fact that the Porter County Department of Building and Planning issued a permit is inapposite.” (Gertz I)

Round Two likewise went to Doug and Susan.

In a decision filed Monday, the Indiana Court of Appeals said that the Gertzes could not avoid having to tear down their $16,000 wood fence by simply removing the top two feet of the fence.

The Gertzes’ theory was that, because the fence is now six feet tall, it no longer qualifies as a “spite fence” under state law.

But the court would have none of it.

“[T]he trial court’s order that they remove the fence was not based solely upon the height of the fence,” the court explained. “The Gertzes have failed to show that they are entitled to the extraordinary remedy of modification of the trial court’s judgment. As a result, the Gertzes must comply with the trial court’s original order and remove the fence.” (Gertz II)

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Text message punctures murderer’s defense

 

With the explosion of text messaging in society, you’d think that by now the courts would have provided attorneys with some fairly clear guidance on getting text messages introduced as evidence. 

Surprisingly, the case law is relatively sparse. 

So let’s all applaud this week’s effort by the Arizona Court of Appeals to shed some light on the subject in a murder case involving a defendant who pleaded that his girlfriend’s death was an accident.

 

The murder of C

Marcus Ladale Damper. Now there’s a guy in a world of trouble.

What we know is that C – Damper’s live-in girlfriend – was killed in the late morning of January 21, 2008, as she lay in bed in the couple’s Glendale, Ariz., apartment. She died from a gunshot to the head fired from a distance of approximately two to three feet.

According to Damper, it was all a horrendous accident.

He claims that he  picked up a .45-caliber pistol from atop his stereo in order to show C just how he planned to defend himself should violence break out at a Martin Luther King, Jr. Day event the two planned to attend.

Apparently there was the potential for violence because of bad blood between the happy couple and others expected to attend the event. Damper wanted C to know that he could take care of himself.

Naturally, Damper thought the gun wasn’t loaded.

Easy mistake to make.

After all, we’re only talking about a machine that spews death at the pull of a trigger.

Why not just assume it’s unloaded until proven otherwise?

Unfortunately for C, there was a bullet in the chamber.

Bang! The gun “accidentally” goes off and C has a hole in her head. Things happen.

Now, when “things” happen, you and I are inclined to grab a phone and call 911 so that those who had the misfortune of being around at the time can get some medical attention.

But Damper was apparently just too stunned by the tragic accident, so he took off, only to turn himself in to police five days later.

To Damper’s surprise, police didn’t accept at face value his explanation that C’s death had been accidental.

 

C’s last text message

Apart from the fleeing-the-scene-without-calling-for-help part, there were certain other parts of Damper’s story that just didn’t seem to add up.

For one thing, in addition to the lead in C’s head, a forensic pathologist for the state  testified that Damper’s girlfriend suffered recent bruising to her neck and exhibited “hemorrhages in the membranes over the inside of the eyelids and eyeballs” consistent with “compression of the neck by an external force, maybe a hand or fingertips.”

That evidence fit neatly with an allegation that Damper and C had been involved in a prior domestic violence incident.  

And then there was C’s last text message to a friend.

Throughout the morning of the shooting, C had been exchanging text messages with B.

At 11:21 am, shortly before C’s time of death, B received a last message from C.

The message, a mixture of Spanish and texting lingo, was later deciphered as C saying, “Can you come over? Me and Marcus are fighting and I have no gas.”

Taken with the other evidence, it wasn’t exactly a great leap for a jury to come to the conclusion that C’s death wasn’t exactly accidental.

Putting two and two together, the jury found Damper guilty of second-degree murder. Eighteen years in prison was what the trial judge decided fit the crime.

 

Text message inadmissible?

Since C’s text message played a large part in unraveling Damper’s story, it was the focus of his attempt to get his conviction overturned.

On appeal, Damper waged a three-pronged attack on the admission of the text message at trial.

The Arizona Court of Appeals on Wednesday rejected each of Damper’s arguments.

Damper first contended that the admission of the text message violated his right to confront witnesses under the Sixth Amendment.

According to Damper, in light of the previous domestic violence incident, the text message was testimonial and inadmissible under Crawford v. Washington because it was intended as a record of the argument C and Damper had the morning of the shooting.

The court responded that “[w]hether it was an urgent cry for help or a more casual request to a friend, nothing in the message or its context suggests C intended or believed it might later be used in a prosecution or at a trial.”

It also rejected the broader notion that text messages are by nature testimonial.

“Like any other form of communication, a text message may be testimonial or non-testimonial, depending upon the circumstances and purpose for which it is made,” the court explained. “Because the content and circumstances of the text at issue here demonstrate C did not send it for ‘the purpose of establishing or proving some fact,’ the message was non-testimonial.”

Next, the court found without merit Damper’s claim that the text message was inadmissible hearsay, deciding that it fell within the present-sense impression exception to the rule.

The court observed that the “text message at issue described an event, an argument between C and Damper, perceived by the purported speaker, C, as evidenced by the statement, ‘Me and Marcus are fighting.’ Additionally, the speaker’s use of the present tense, ‘are fighting,’ suggests she sent the message either during her fight with Damper or shortly thereafter.”

Lastly, the court made short-shrift of Damper’s argument that the text message could not be authenticated and lacked sufficient foundation because the State did not prove it was C who sent the message.

The court noted that C’s cell phone was found on the bed beside her body and there was no evidence that anyone other than C used the phone that morning.

Bolstering the conclusion that C was the sender of the message was B’s testimony.  

The court recounted that at trial “B testified she and C often communicated with text messages. She explained that she had saved C’s cell-phone number in her own cell phone, denominated by a nickname, and that when the text message at issue arrived the morning of the shooting, her phone displayed that nickname as the sender of the message.” (Arizona v. Damper

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Phantom McDonald’s employee sets the standard of care

Here’s one for personal injury attorneys. 

The good news is that you have a statement to the effect that a standard of care has been breached.

What’s even better is that the statement was made by an employee for the defendant at the time of your client’s accident. 

The bad news is that you only have your client’s say so that that employee ever existed, let alone made the statement. 

What are the odds that you could get the case resurrected after a federal judge tossed you out on your tuckus? 

 

Attack of the McChicken 

Today’s tale of agony-of-defeat turning to thrill-of-victory begins with a fried chicken sandwich. 

The date: August 8, 2005 

The time: 1:30 am 

The place: The Daniel Boone Truck Stop, Duffield, Virginia 

Frank Sutton with his family and a friend pulled into the truck stop to gas up and grab a bite to eat. 

Great! There’s a McDonald’s! May not be the healthiest fare, but at 1:30 in the morning, who gives a flip? 

And there’s the added comfort of always knowing what to expect from a McDonald’s, whether you’re in Duffield, Virginia, or North Pole, Alaska. 

Sutton ordered a fried chicken sandwich, but he certainly didn’t get what he expected. 

According to Sutton, when he bit into his fried chicken sandwich, instead of being treated to that oh-so-wonderfully-familiar McDonald’s fried-food taste, he was assaulted by a burst of hot grease. 

Bill Giffon, Sutton’s friend, later testified that “grease flew all over his mouth.” 

Thinking quickly, Sutton’s wife took ice from her drink and began to treat the burned areas, but the damage had been done. Blisters appeared almost immediately. 

After tending to the burns, Sutton said that he approached McDonald’s employees to report what had happened, and this is where we come to the mysterious employee at the heart of Sutton’s personal injury case. 

According to Sutton, when he reported his injuries, one of the female employees who had taken his order responded, “This is what happens to the sandwiches when they aren’t drained completely.” 

Sutton sued McDonald’s for $2 million in federal court, claiming that the burns never healed completely. Sutton alleges that heat and sunlight still irritate his burns, hindering his ability to continue his occupation of refurbishing and assembling outdoor amusement rides. 

McDonald’s itself temporarily avoided liability because of some murkiness in its relationship with Roth LLC – the restaurant chain’s franchisee at the Daniel Boone Truck Stop. 

Things went from bad to worse for Sutton when he finally got his case against Roth to trial. 

For reasons unknown, Sutton never identified the Roth employee who allegedly made the statement concerning the unsafe preparation of chicken sandwiches. 

So Sutton could only testify as to what he heard the employee say. 

Roth moved to exclude its employee’s statement that “This is what happens to the sandwiches when they aren’t drained completely,” arguing it was inadmissible hearsay. 

District Judge Claude Hilton agreed to exclude that evidence on an alternative ground.

He concluded that the statement was inadmissible under Federal Rule of Evidence 801(d)(2)(C) because there was no evidence that Roth’s employee had authority to make binding admissions on Roth’s behalf. 

That took the heart out of Sutton’s case and Judge Hilton wouldn’t even let it go to the jury. 

At the close of Sutton’s case-in-chief, Judge Hilton granted judgment for Roth, concluding that Sutton failed to present any evidence of a standard of care for a products liability case under Virginia law. 

For good measure, the judge found that Sutton was contributorily negligent by failing to “exercise reasonable care to see that [he wasn't] eating something too hot.” 

 

4th Circuit to the rescue! 

In a recent unpublished decision, the 4th Circuit breathed new life in Sutton’s quest for damages. 

First, the court found that the disputed employee statement was admissible under Rule 801(d)(2)(D) because it constituted an admission by a party-opponent’s agent. 

“Here, the record reveals that the declarant was wearing a McDonald’s uniform, helped fill Sutton’s order, and responded to questions about McDonald’s while working at a McDonald’s restaurant. We hold that this is sufficient evidence of agency for Rule 801(d)(2)(D),” the court said. 

With the unknown employee’s statement back in the case, the court concluded that Sutton had presented sufficient evidence of a standard of care in the form of reasonable consumer expectation. 

First, the court explained, the employee’s statement constituted evidence of “actual industry practice.” 

Second, the court said that the reactions to Sutton’s injury by those who were with him at the time were evidence of what “reasonable purchasers” consider defective. 

“Sutton’s wife removed ice from her soda, put it in a napkin, and tried to put it on Sutton’s chin. Giffon described the incident by saying ‘grease flew all over his mouth.’ Sutton threw the sandwich down. The consumers did not expect Sutton’s fried chicken sandwich to contain a hot pocket of grease, and Roth’s employee’s statement serves as strong corroboration for the reasonableness of this expectation,” the court said. 

It concluded “[t]hese facts reveal ‘what society demand[s] or expect[s] from’ a fast-food, fried chicken sandwich. Under Virginia law, this constitutes evidence of a standard of care.” 

The court proceeded to drag McDonald’s back into the fray, instructing on remand that Sutton be granted more of an opportunity to show that the corporation was liable under an agency theory. (Sutton v. Roth

 

Spirited dissent 

Circuit Judge Andre Davis nearly choked on a Chicken McNugget when his colleagues on the panel granted Sutton a new trial. 

In a spirited dissent, Judge Davis bemoaned the fact that the “majority accepts Sutton’s meager proof, that the declarant ‘was wearing a McDonald’s uniform, helped fill Sutton’s order, and responded to questions about McDonald’s while working at a McDonald’s restaurant,’ as sufficient to satisfy the alleged statement’s admissibility under the rule.”

Judge Davis explained that Rule 801(d)(2)(D) “requires an affirmative showing of the declarant-employee’s area of authority. Here, the employee was unidentified. She could have been hired to clean the facility, work the cash register, take inventory, etc. Sutton presented no evidence regarding the identity of the worker who prepared the sandwich. Indeed, for all that appears, it is possible that the declarant was not even on duty that night.

“Thus, at best, it is unclear whether the unidentified employee had such duties as to empower her to speak about food preparation and to permit any such statement to be admitted against Roth under Rule 801(d)(2)(D).” 

- Pat Murphy

patrick.murphy@lawyersusaonline.com

Rear-end accident victim gets a bump in damages

 

It’s pretty rare for a court to step in and actually raise a jury’s award of damages in a personal injury case. 

If anything, courts tend to find that juries are too generous, subjecting cases to the microscope to ensure that each element of a damage award is supported by the law and the evidence.

 

So Calogero Raimondo has to feel like something of a lottery winner after seeing her damages in a rear-end collision case raised nearly four times the amount a jury saw fit to award.

 

Her case highlights some of the angles for plaintiffs’ attorneys to pursue when a jury just doesn’t appreciate the chronic pain a client will have to deal with for the rest of her life.

 

Rear-end collision

 

Raimondo was a 34-year-old office assistant for AT&T when she suffered neck and back injuries in a September 2007 rear-end collision in Lafayette, Louisiana.

 

A state jury found the other driver, Kristin Hayes, liable. The only problem was damages.

 

Now, Raimondo’s injuries didn’t result in surgery.

 

And ultimately that may have been the reason the jury only awarded general damages in the amount of $17,500 — $10,000 for the physical injury, $7,000 for pain and suffering, and $500 for loss of enjoyment of life.

 

Of course, she received another $25,000 for past and future medical expenses, but still the jury’s award didn’t seem nearly enough.

 

An MRI established that Raimondo suffered disc injuries at levels L4-5 and  L5-S1 (lower back), as well as T6-7, and T8-9 (mid back), but the jury was apparently more impressed by the fact that tests revealed no nerve impingement or neurological deficits at those levels.

 

The jury also may have been swayed by the fact that Raimondo was able to reach maximum medical improvement through a regime of physical therapy, muscle relaxers and pain medications.

 

But her doctor testified that Raimondo would be dealing with pain for the rest of her life, so in that light the jury award seemed problematic.

 

‘Abusively low’ damages

 

Last month, the Louisiana Court of Appeals came down on the side of Raimondo, finding the jury’s award of $17,500 in general damages “abusively low” and increasing it to $65,000.

 

In turn, the court addressed: (1) the fact that Raimondo’s injuries had not resulted in surgery; (2) evidence that physical therapy had fully resolved her neck problems and helped her lingering back problems; and (3) how to place a value on the pain and suffering hat she would continue to endure.

 

The defendant, Hayes, at trial and on appeal had made much of the fact that Raimondo had not undergone surgery.

 

The Louisiana Court of Appeals saw this as something of a red herring, pointing out that Raimondo’s orthopedic surgeon — Dr. Louis Blanda — had recommended against epidural steroid injections or surgery in favor of more conservative treatment because she had preexisting asthma and was on blood anticoagulants.

 

The court remarked that “Hayes states in brief that Dr. Blanda found that surgery was not necessary in this case. This is not accurate. Dr. Blanda’s testimony … indicates that surgery was not appropriate due to her preexisting conditions. This is significantly different from what Hayes contends, i.e., that surgery was not necessary.”

 

The court also dismissed Hayes’ contention that physical therapy had been “successful” in treating Raimondo’s injuries.

 

“It is clear from [Dr. Blanda’s] testimony that even if physical therapy was successful, as was the case with Raimondo, she still would continue to have chronic pain,” the court said. “Thus, Hayes’ statement that Raimondo’s injuries were successfully treated via physical therapy does not fully encapsulate Raimondo’s situation regarding her mid and lower back pain.”

 

These side issues addressed, the court came to the nut of the matter: because of the accident, Raimondo lives with lingering pain.

 

“While Raimondo’s disc injuries did not include any neurological deficits, it is clear that she will continue to suffer chronic pain for the remainder of her life,” the court said. “Given that Raimondo was in her mid-thirties when this accident occurred, we find that the lowest amount reasonably within the discretion of the jury for her general damages is $65,000.” (Raimondo v. Hayes)

 

— Pat Murphy

patrick.murphy@lawyersusaonline.com

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