Note: The recoveries in these cases are not necessarily indicative of recoveries in similar cases in the future, since each case must be decided on its own facts and circumstances.
Mr. Kilduff and Mr. Carr represented a street sweeper who was rear-ended by the driver of a Ford Expedition and experienced a herniated disc and right knee osteophytosis. Following the accident, the plaintiff did not seek immediate medical attention, but went two days later to his primary care physician who initially suspected he had sustained right knee and lumbar strain/sprains. Within two weeks, the plaintiff began experiencing radiating right leg pain. He underwent two surgical procedures: a microdiscectomy and a posterior lumbar fusion. However, his pain continued. His pain management physician concluded that his condition could improve only with a spinal cord stimulator.
The defense attempted to develop the theory that the plaintiff had actually injured his back in a subsequent on-the-job accident following the automobile accident. They filed a motion seeking to exclude the testimony of his physician concerning the placement of a spinal cord stimulator. They also sought to exclude testimony concerning loss of earning capacity and the costs of the spinal cord stimulator, and they questioned the plaintiff's candidacy for the procedure. They also suggested that the injury was due to plantar fasciitis of the right foot.
The court refused to limit the doctor's testimony and ruled that testimony concerning the costs of the device and procedure would be admissible once a proper foundation was established. The court took the motion concerning loss of earnings capacity under advisement. Following the hearing, settlement negotiations resumed and the case was settled two days before trial.
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