Plaintiff Mediation Statement

Statement Of The Case

Under the law, an entity in control of a portion of a building while making repairs must use reasonable care to keep the surrounding area safe. This protects persons in the general vicinity of that area of the building being repaired, from being unreasonably exposed to danger. Visitors and occupants have the right to assume that the property is safe for their use, including land around that portion of the building being repaired, particularly where the contractors performing the renovations know that persons will be passing in the vicinity where they will be working.

Roofing work can be dangerous because tools or materials can fall to the ground quickly and without warning. Therefore, safety measures must be taken by the roofing contractor. This could include prohibiting throwing or dropping tools or materials from above, particularly if persons accessing the building are nearby.

Generally, an entity in control of a building under repair can be responsible for injuries suffered by passersby due to an object falling or thrown from the building, where the injury was due to the negligence of their employee. When employees of a contractor performing building repairs are using tools, and those tools under their control are thrown or fall from the area of the building under repair and cause injury, the entity performing the repairs is presumed to have been negligent, and thus responsible for the resulting injuries.

In this case, several employees of a roofing contractor were using a shovel to repair the roof of a 3 story building, which work area was under their exclusive management and control. Those employees knew that there were persons living in the apartment building on which they were working, and who would walk around that building from time to time. However, neither the roofing contractor himself nor his employees took any steps to prevent materials or tools from being thrown from the roof they were repairing. They did not warn passersby below when tools and materials were being released from the roof. Nor did they take basic protective measures such as carrying tools down from the roof rather than simply throwing them to the ground.

As a result, on August 10, 2010 an employee of Defendant threw a heavy four foot long shovel from the roof of the three story apartment building owned by LL. Plaintiff rented an apartment in that building. She had just finished mowing the lawn, so Defendant’s employees knew she was in the vicinity. The shovel was thrown from the roof without warning and without Defendant’s employees first checking to see if there was anyone below.

Plaintiff did not see the falling shovel until it struck her right wrist and forearm. As a result, Plaintiff, now age 24, suffered permanent injury to her dominant right hand and forearm resulting in nearly $35,000.00 in medical treatment costs to date, and over $500,000.00 in future treatment costs.

What The Defendants Did

LL owned a home with an attached three story apartment building in Dover, Vermont. In August of 2010, Plaintiff rented a second floor apartment in that building. She also was employed by the LL’s at their commercial bakery next door, working as an apprentice baker.

At the end of March 2010, the LL’s hired Defendant, a contractor, to perform roofing repairs on their property, pursuant to the contract and invoice. The work was to begin August 9th.

Plaintiff began work at the LLs’ bakery, at 4:00 a.m. on the morning of August 10, 2010. Late that morning, she finished work. This squarely contradicts Defendant’s claims that at 8:00 that same morning he spoke with Plaintiff at her apartment, telling her that they would be working in that area of the building, “setting up ladders and staging and tarps”. Defendant Deposition at 42. He further claimed that he told Plaintiff that the area “was going to be dangerous”. However, when asked to clarify, he replied,

A: Just that we were going to be working in that area, I mean we’re going to be working on the roof. Debris.

Q: Could you be more specific?

A: Roofing shingles, people going up and down ladders. I told her that we were going to be working there all day. Id. at 42.plus we had ladders and staging that we were going to be setting up, so that it was going to be really hard for her, if she was going to be there, to enter and exit the premises. Id. at 43.

Plaintiff was never told, however, to watch for tools being thrown from the roof, or to stay away from the building while it was being worked on. Moreover, she was at work in the bakery at the time Defendant claimed he had this conversation with her.

At 8:00 a.m. that morning, Defendant arrived on the jobsite with his employees ________ and ________. Defendant provided his employees with roofing shovels and tools for use on the project. Defendant Deposition at 44. Defendant left the project at 8:30 a.m. to visit another job. Id. His employees then began to work on the 3rd story roof deck, see Overhead Roof Photos (next pages).

Defendant has admitted that the shovel that eventually struck Plaintiff was being used at the time by one of his employees. Defendant Deposition at 50.

After Plaintiff finished working at LL’s Bakery, late that morning, she returned to her apartment, changed and began mowing the lawn around the LL’s house. She finished around noontime. It was sunny and hot. She walked behind the south east corner of the LL’s house toward a stream nearby.

Suddenly Plaintiff heard someone yell. She looked up in the direction of the yell, “saw a flash, and something hit me” diagonally across her right wrist and arm which she reflexively tried to raise to protect herself. There was barely a second, she remembered, between her hearing the yell and being struck on the right wrist and forearm by either the shaft or the handle of the shovel. She was standing well beyond the southeast corner of the house when she was hit, see attached aerial photos.

Shortly thereafter, Defendant ‘s two employees came down off the roof and spoke with Plaintiff. Although she did not know their names, employee ________ said to his co-worker, “what an idiot, you’re such an idiot, I can’t believe you threw it, didn’t you look?” Plaintiff Deposition at 30-31. At that point, Plaintiff felt nauseous and in shock. She walked to the river to immerse her already swelling right wrist in the cold water. Plaintiff went to her apartment and placed a bag of frozen vegetables on her right wrist to control the swelling.

Plaintiff’s friend ________ returned shortly thereafter. She found her sitting on her balcony with the same two men who Plaintiff told her had earlier been working on the roof. ________ remembered that the men were dressed in work clothes and said that they thought Plaintiff was inside the building, that they didn’t think to look down and double check if anyone had been standing on the ground below when after pulling roofing shingles off of the building, “we just threw the shovel down and as we threw it we realized she was down there and called out to her”.

Legal Authorities Supporting Liability

Defendant is liable in negligence because through its employees, it owed Plaintiff a duty of care, it breached that duty, Plaintiff suffered actual injury and Defendant’s breach proximately caused her injury. Zukatis v. Perry 165 Vt. 298, 300 (1996). Defendant was in exclusive control of the ________ apartment building roof as its employees were repairing it at the time Plaintiff was hurt. There was nobody else working on the roof or who had access to it. This control renders Defendant liable for injuries caused by dangerous or defective conditions, see Garafano v. Neshobe Beach Club Inc. 126 Vt. 566, 574-75 (1967); Grann v. Green Mountain Racing Corp. 150 Vt. 232, 234 (1988).

Since Defendant was exercising exclusive control of the roof, it was obligated to keep the roof and the grounds around it safe and, if necessary, to warn Plaintiff, who had the right to assume both that the property was safe for her to walk around, and that proper precautions had been taken to make that so. Dalury v. S-K-I Ltd 164 Vt. 329; also Cameron v. Abatiell 127 Vt. 111, 117 (1968) which held:

Thus, the Defendants had a reasonable opportunity to make the premises safe or to warn Plaintiff of any dangerous condition. It was within the reasonable foresight of the Defendants of what was likely to happen if the steps leading to the rear door became in disrepair. Id. at 117 (emphasis added);

see also Forcier v. Grand Union Stores, Inc. 128 Vt. 389, 393 (1970) (“…Foreseeable consequences may be significant in the determination of the scope of legal duty and whether duty of care had been violated (citation omitted) … (a)nd the circumstances and dangers are always to be taken into account in determining what is due care or evidence of it”).

Under these standards, Defendant ‘s employees certainly should have realized that shovels or tools falling from the LL’s third story roof could easily injure persons on the ground below. The threat of harm resulting from what could happen in that event defined what Defendant ‘s employees had to do to prevent bystanders from getting hurt, so that their failure to prevent shovels from being thrown from the roof – or even to first look to see if there was anyone below – was clearly negligent. Forcier v. Grand Union Stores Inc., supra

All Defendant’s employees needed to do to protect bystanders was to avoid throwing objects from the roof, or to at least look first. There were no areas around the perimeter of the building which had been roped off. There were no warnings given to keep clear of the building. Defendant’s deposition testimony that “we were going to be working in that area and it was going to be dangerous” was merely a thinly disguised after the fact attempt to justify his employees’ negligence. This was because when asked whether he had discussed with Plaintiff “about why it was going to be dangerous”, he vaguely replied “I mean, we’re going to be working on the roof. Debris … roofing shingles. People going up and down ladders”. Defendant Deposition at 42. Defendant’s alleged conversation with Plaintiff also never even took place because Defendant was only on the job site between 8:00 and 8:30 a.m. – while Plaintiff was still next door working in the bakery. Plaintiff had no reason to expect that a roofing shovel would be carelessly thrown from three stories above by an employee who was simply too lazy to bring the tool down himself. Also, Plaintiff had just finished mowing the lawn shortly before Defendant’s employees threw the shovel. This meant that Defendant’s employees knew someone was in the immediate area, from the noise of the mower.

Generally, someone in control of a building, or a portion of the building, can be responsible for injury from an object falling or thrown from the building, where the injury was due to the negligence of someone for whom he was responsible. See, Neal v. Twelfth and Grand Avenue Building Company 70 S.W. 2d, 136, 141 (Mo. App. 1934) (where a piece of wood fell from a building under construction, injuring the Plaintiff walking nearby, the accident was held to be foreseeable even though the wood was dropped or fell due to the act of an employee of an independent sub contractor who was performing inherently dangerous work); see also Tallarico v Autenreith 31 A.2d 906, 907, 146 ALR 520 (Pa. 1943), holding in a case involving repairs to the second floor of a building from which a board was thrown and struck the Plaintiff on the head, that where the fallen object is thrown on the street from within a building it is prima facie evidence of a willful or negligent act, but the Plaintiff must prove that the party charged with negligence either possessed or exercised control over the object causing the injury.

That burden is easily satisfied in the instant case. Plaintiff will introduce statements admissible under Rule 801(d)(2)(D) that Defendant’s employees acknowledged that without warning, they threw the shovel from the roof without even looking. Certainly, throwing or simply releasing a shovel from the roof of a third story building was dangerous, so that it was reasonably foreseeable to Defendant’s employees that doing so without warning or even looking to see if anyone was standing below, could cause injury. Cameron v. Abatiell, supra; Forcier v. Grand Union Stores Inc., supra (duty of care defined by foreseeable consequences of breach of that duty).

Defendant Is Presumptively Negligent Under The Theory Of Res Ipsa Loquitur

Through its employees, Defendant owed Plaintiff, as someone living on the property under repair, a duty of reasonable care to prevent roofing tools or materials from being thrown from the roof of that building. Clearly, had Defendant’s employees not thrown the roofing shovel from the roof of the LL’s house, or otherwise kept it from falling, Plaintiff would not have been hit by the shovel and injured. Further, based on Defendant’s discovery answers and deposition testimony, his company owned the shovel which was under the control and management of his employees at the time Plaintiff was injured. Lastly, Plaintiff’s injuries would not have resulted except for Defendant’s carelessness in throwing the shovel which caused her injuries.

Given these undisputed facts, an inference arises that Defendant was negligent as a matter of res ipsa loquitur. Cyr v. Green Mountain Power Corp. 145 Vt. 231, 235-36 (1984); see also Gentles v. Lanctot 145 Vt. 396, 398 (1985). Under this theory, once Plaintiff has satisfied each of the four requisite elements identified above, there is an inference that Defendant was negligent which must be rebutted by contrary evidence. This Defendant cannot do, as the facts outlined above are essentially undisputed. It does not matter whether the shovel was thrown or simply “released”, as defense counsel may argue, as it was clearly within the exclusive control and management of Defendant’s employees immediately before it struck Plaintiff.

There is no satisfactory explanation of what happened other than clear negligence by Defendant’s employees. There is also a complete lack of care by Defendant by simply throwing the shovel from the roof. Thus, as a matter of res ipsa loquitur, the jury could only find for Plaintiff. Cases on point include Tallarico v. Autenreith, supra (prima facie case of negligence when a fallen object is thrown from within a building although the plaintiff must establish that an employee of the contractor was in possession of or had control over the injurious object); see also Neuhoff v. Retlaw Realty Corp. 289 NY 293, 45 N.E. 2d 450 (1942) (where a tenant was struck by a falling paint pail from an apartment house, which had just had painting work done, and the facts supported an inference of ownership or control by Defendant of the pail which would not have fallen but for the lack of exercise and due care in handling or storing the paint pail, a prima facie case of negligence under the res ipsa doctrine arose).

Medical Causation And Harms

Plaintiff’s friend ________ ________ took her to the Brattleboro Memorial Hospital Emergency Room on the afternoon she was hurt as Plaintiff’s right arm and wrist hurt her so. Saying “it was the worst pain she had ever had”. At the Emergency Room, the examining physician found limited range of motion and ecchymosis and “very severe” tenderness in the right forearm and wrist, causing Plaintiff to “complain loudly and tear up”. She was discharged with her right hand in a splint and arm in a sling, prescribed percocet and ordered not to work until released by her doctor.

Nine days later, at Deerfield Valley Health Center, the attending physician noted diminished elbow range of motion, right hand and forearm bruising, and inability to make a fist. Her pain was described as “constant throbbing pain 9 out of 10”.

On September 15th, Plaintiff saw Dr. William Vranos, a Brattleboro orthopaedic surgeon. He noted “quite a bit of pain in the forearm area … little bit of reflex-type pain syndrome”. Dr. Vranos changed her splint, ordered her to stay out of work, and to start occupational therapy.

Beginning one week later, on September 22, 2010, Plaintiff began 11 months of occupational therapy at Brattleboro Memorial Hospital. At her initial assessment, she was still wearing the right thumb spica splint. She reported that her pain averaged level 5, went as high as level 9, and interfered with all aspects of daily life. She could not perform the pinch test with her right wrist due to pain. The treatment goals were to decrease edema and nerve irritation and to improve right handed range of motion, grasping and strength.

Highlights from her first two months of therapy included:

Date Symptoms/Findings

9/29/10 – Resting pain level 5 to 6 at radial wrist and distal radial fa increasing to level 9 with active range of motion.

10/05/10 – “Pain makes me nauseous”, pain level 7

10/18/10 – “Function remains significantly compromised”

10/20/10 – “… anxious to return to work … working hard …”/still unable to perform right wrist pinch test due to pain.

On October 21, 2010, Dr. Vranos noted, “still has quite a bit of discomfort and dysfunction”. He ordered her to remain out of work.

Plaintiff continued occupational therapy with the following notable entries from her records:

Date Symptoms/Findings

11/02/10 – Right hand level 6 pain

11/05/10 – “Really sore cause I painted yesterday”, pain level 8 right dorsal forearm.

11/09/10 – Right dorsal forearm level 6 pain, level 5 at rest.

11/23/10 – Concern over ongoing pain, can’t perform right wrist grip strength testing due to pain, ongoing pain, weakness and impairment with activities of daily living.

11/30/10 – (Dr. Vranos) radial and dorsal right wrist pain on exam, ordered to continue with therapy.

11/30/10 – “I need to get back to work”, continued significant pain with palpation at right dorsal and volar (surface of forearm which is on the same side as the palm), forearm and palm.

12/07/10 – Level 7 pain on the dorsal wrist and volar forearm, “it really hurts here …”. Assessment: greatest pain now appears to be right dorsal thumb and distal right radial wrist.

The defense makes much of the fact that Plaintiff missed 14 out of 34 occupational therapy palliative treatments between September 22, 2010 and January 11, 2011. Nevertheless, these treatments would not have eliminated her symptoms entirely, but only provided pain control, and promoted hand and wrist flexibility. Plaintiff was still able to make 20 out of 34 physical therapy visits during that time notwithstanding (a) winter weather, (b) child care difficulties, (c) housing difficulties which forced her to move during this treatment period, (d) work schedule, and (e) car problems, including not having enough money for gas which was problematic as she lived in a rural part of Windham County.

Plaintiff’s last 2010 appointment with her surgeon, Dr. Vranos, on December 16, yielded a diagnosis of right forearm crush injury with deQuervain’s Syndrome. This condition resulted from entrapment of the first extensor tendon and with swelling of inflamed tissue around the tendon causing right thumb pain. See Medical Illustration: deQuervain’s Syndrome (next page). Dr. Vranos ordered her to continue occupational therapy.

2011

Plaintiff doggedly continued with occupational therapy in 2011, completing 18 out of 24 treatment sessions even with the logistical difficulties explained above. Also, in November 2010 she became pregnant with her first child. Shortly after he was born, on September 13, 2011, Plaintiff again became pregnant. Since she breast fed both of her children, she could neither undergo surgery nor ingest pain killing medications or injections. During pregnancy, she also could not undergo an MRI. This substantially limited her treatment options, while child rearing responsibilities obviously interfered with her ability to sustain a regular course of treatment.

Plaintiff’s occupational therapy notes for January and February 2011 included the following:

Date Symptoms/Findings

1/05/11 – “It’s been like shooting pain” relating to right radial forearm and hand. “Even when I’m resting it always hurts…” Pain level at right radial hand and wrist level 6 – 7.

1/24/11 – Continues to complain of dysfunction and radiating pain.

1/31/11 – “My arm feels funny … I know it’s better but sometimes it shoots pain (likely because of scar tissue).

2/07/11 – Aching noted in thenar eminence (soft tissue pad near thumb). Progress Report: Painful composite flexion and on end ranges of wrist and fingers. Strength remains compromised through discomfort with grasping.

2/21/11 – Complains of diffuse pain in wrist after holding friend’s baby, pain demonstrated at some tight end ranges.

On February 28, 2011, Dr. Vranos noted that Plaintiff reported persisting pain in the radial aspect of the right wrist. He injected steroids into the first dorsal extensor compartment of the wrist. The next day, Dr. Vranos noticed persisting pain in the radial aspect of the wrist. On exam he found “she is very tender over the first dorsal extensor compartment and she has pain with Finkelstein’s Maneuver as well”. This was a significant finding, as the Finkelstein’s test[1] is a widely used tool to diagnosis deQuervain’s Tenosynovitis in people suffering wrist pain. On April 12, Dr. Vranos noted that the steroid injection given March 1st only helped “for a very short period of time”. His diagnosis was deQuervain’s Tenosynovitis. Since she was pregnant no further treatment could be provided until her baby was delivered later that year.

Plaintiff ‘s final visit with Dr. Vranos was on June 11th. He noted “significant” continued pain complaints at her right first dorsal extensor compartments. On exam, he found tenderness in that region, pain with Finkelstein’s Maneuver “consistent with deQuervain’s Tenosynovitis” and also “mild discomfort with Tinel’s Testing[2] at the elbow”. He confirmed his earlier diagnosis of deQuervain’s Tenosynovitis and added “probably a bit of cubital tunnel syndrome”, or entrapment of the ulnar nerve of the elbow resulting from trauma to any portion of that nerve.

Plaintiff continued with occupational therapy on a regular basis until her discharge on September 9, 2011. On June 22, her pain in her right radial wrist and right dorsal thumb were level 8. The therapist noted she was reluctant to move her right hand and that her pain was similar to Complex Regional Pain Syndrome. On July 18, soft tissue wasting was seen. While on July 25, Plaintiff persisted in her complaints of pain and impaired (right hand) use.

Most importantly, on August 1, the following symptoms supporting an eventual diagnosis of Complex Regional Pain Syndrome (hereafter “CRPS”) appeared:

Appears to have subcutaneous wasting, loss of hair growth and loss of perspiration in region of cutaneous radial nerve innervation.[3]

One year after being injured, on August 8, 2011, Plaintiff filled out a “Quick Dash” patient questionnaire. She reported that she was either unable to perform a variety of normal daily tasks or could do so only with severe difficulty, including opening a jar, performing household chores, and using a knife to cut food. She reported that her injuries “extremely” interfered with her normal social activities, that she was “very limited” in her work or other daily activities, and that her pain was “extreme”. She also reported that she had “severe difficulty” in sleeping because of her right hand and arm pain. Her August 11 discharge summary noted her “frustration over continued pain in her right wrist and forearm” although she “remains motivated”. Significantly, on July 27 soft tissue atrophy over the first dorsal compartment region in the hand was noted.

On October 4 Plaintiff began treating at the Cheshire, New Hampshire branch of Dartmouth-Hitchcock Medical Center. Physician’s Assistant Linda Groiss found that Plaintiff could not make a clenched fist with her right hand, that flexion/extension caused pain along the radial or thumb side of the right hand, and that there was a difference in sensation between the right thumb and the left. Again the Finkelstein’s test was positive. Plaintiff ‘s diagnosis was deQuervain’s Syndrome and neuropathic pain secondary to her contusion. Two weeks later, she was noted to have a “strongly positive Finkelstein’s”(test). A referral for an MRI was made as well as for physical therapy and possible injection after Plaintiff completed breast feeding. An MRI of the right wrist joint on October 27 found a band like signal abnormality extending through the trapezoid (a small wedge shaped bone articulating between the right thumb and second finger).

On October 11, Dr. Rauwerdink of the Cheshire Pain Clinic claimed not to find any signs of CRPS, even while noting tenderness to light touch and pressure over the dorsum of the right wrist, aggravated with any type of movement. On November 9, Ms. Groiss prescribed splinting, ice, and a home exercise program.

2012

There was a four month gap in treatment until March 6, 2012 when Plaintiff began another course of occupational therapy, at Grace Cottage Clinic in Townsend. This was due to the same complications that caused her to miss numerous physical therapy appointments in the last four months of 2010. However, Plaintiff attended 13 out of 14 therapy sessions at Grace Cottage between March 6 and May 14, 2012. This confirms her motivation to aggressively pursue treatment, notwithstanding difficulties posed by problems with child care, housing, and transportation. Her symptoms largely were unchanged even with therapy, highlighted by the following notations:

Date Symptoms/Findings

3/06/12 – (initial evaluation) Challenged by holding a nursing baby, driving, not holding coffee cup in right hand or using utensils. Pain ranges between level 6 and level 9.

3/28/12 – Pain level 9 in area of extensor tendons

4/10/12 – “Increased time and still increased pain with activities such as changing babies diapers”

4/12/12 – Raked yesterday for 10 minutes, level 8 pain in right shoulder and arm.

5/01/12 – Lots of pain in right upper extremity and right thumb.

5/04/12 – Can use fork but can’t drink with right (hand).

5/07/12 – Strength and grip not tested because of pain.

After a nearly four month hiatus, Plaintiff returned to Grace Cottage for 4 more therapy sessions. On September 5, the therapist noted Plaintiff was pregnant with her second child and that her right arm pain, particularly the right wrist and shoulder, her right sided pain ranged between level 6 and 9 in intensity. The therapist’s assessment was traumatic injury possibly becoming debilitating, chronic pain. She reported Plaintiff being unable to get her one year old in and out of his car seat, and that her goal wasto drive with both hands and to be able to take care of her children”. Her rehabilitation potential was rated as “fair”. She was noted to be positive for deQuervain’s on the right.

Plaintiff’s last therapy treatment at Grace Cottage was on October 16, 2012. Significantly, the therapist recorded “sweating of right hand times 3 days”. This was a significant positive finding supporting the diagnosis of CRPS. Plaintiff then began treating at Sojourns Health Clinic in nearby Westminster. She did so because she wanted to pursue alternative natural based treatment and also to establish a relationship with a primary care physician.

On her initial visit at Sojourns, on November 6, Doctor of Naturopathy Suzanne Booth found pain and swelling in the right wrist which appeared to be a compartment-like syndrome with decreased blood flow. Physical therapy was prescribed. Plaintiff had multiple treatments at Sojourns through the remainder of 2012, including injections, physical therapy, and massage. She was diagnosed as suffering CRPS.

2013

Plaintiff continued regular treatments at Sojourns between January 8 and June 19. Continued right thumb and hand pain were noted, notwithstanding a variety of treatments which included injections at the base of the right thumb, using a TENS Unit and physical therapy. On February 14, Plaintiff noted that “the past five days have been the worst it’s been in a long time”. On February 28 she reported that her right thumb was totally numb and that she had pain along the ulnar side of her right hand. With activity, her pain increased from level 5 to level 7-8. The February 28 office note related her thumb numbness to CRPS. On March 22, Dr. Booth noted that her right thumb “has been bad for weeks”.

Dr. Booth referred Plaintiff to Dartmouth-Hitchcock Medical Center in Lebanon, New Hampshire for further diagnosis and treatment. Nerve conduction and EMG studies of the right ulnar radial nerve performed on July 9, 2013 were normal. However, as Plaintiff’s medical expert, Dr. Robert Block, will testify, CRPS symptoms do not appear on electro diagnostic studies because Plaintiff suffered a (peripheral) radial sensory nerve injury, which would not appear on a nerve conduction study. Most significantly however, on that same day, Dr. Keller, DHMC neurologist, recorded that Plaintiff complained of pain along her right forearm, palm and wrist that varied in location and quality “… hot and sweaty … swelling and patchy erythema (redness) … rashes … pain limits use of hand”. He noted more sweating over the right hand. His diagnosis was that Plaintiff’s symptoms were consistent with Complex Regional Pain Syndrome. These symptoms and findings were confirmed on September 13 by Dr. Beasley at the DHMC Pain Clinic. Plaintiff told the doctor that her pain symptoms in the right wrist and hand included:

  • Intermittent right hand numbness in the thumb or the fifth finger;
  • Her hand and wrist changing colors;
  • Intermittent rashes on the right wrist, which will occasionally swell and give her a “sinking feeling” in the right wrist snuff box region[4].

Dr. Beasley noted Plaintiff’s treatments included OT, multiple injections, myofascial release techniques, hot and cold contrast baths. He also observed that she had “some depression and frustration associated with this injury… “. Upon examination, Dr. Beasley found significant allodynia (abnormal pain response to light touch), mild diffuse edema and significant decreased range of motion by at least 75% in all right wrist planes of motion. As stated, he confirmed the CRPS type 1 diagnosis, previously known as Reflex Sympathetic Dystrophy (RSD) of the right upper extremity. See Medical Illustration: “Mechanism of R.S.D.”, next page. He recommended a variety of treatments with a spinal cord stimulator as the final option.

Plaintiff returned to the Cheshire Medical Center on December 11. P.A.C. Linda Groiss recorded that her right hand sometimes swells, that the right palm was much more sweaty than the left, and that her hand color would change. On exam, Ms. Groiss saw that Plaintiff held her right hand “in a guarded fashion” and that her right palm was indeed sweaty in comparison to the left. Ms. Groiss agreed with the CRPS diagnosis, caused by the injury. She fitted Plaintiff with a new wrist brace. As Plaintiff was still breastfeeding, oral and injectable pain medication therapy was put on hold until her second child was weaned.

On March 3, after Plaintiff finished breastfeeding baby ________ (born 3/26/13) she could not even lift him off of her. She was in such great pain that she called her mother, who brought her to the Brattleboro Memorial Hospital Emergency Room. Pain, tenderness and limited range of motion were found in the right wrist and Plaintiff was described as “anxious”. After waiting several hours to be seen, she was discharged with Tylenol and ice, notwithstanding her level 8 pain.

2014 – 2015

Once she stopped breastfeeding ________, in March 2014, Plaintiff resumed treatment. However, on March 24 she slipped in her icy driveway and fell on her left wrist and arm. There were no fractures and her right hand and wrist were not involved, which is confirmed by her left wrist treatment records. Plaintiff thus had to wear a cast on her left hand and a splint on her right. She was forced to use her right hand more to compensate, with a resulting increase in pain. Eventually the left wrist healed without complications.

On March 24, Dr. Suzanne Booth at Sojourns noted Plaintiff had level 9 right arm pain. Acupuncture was prescribed. On April 4, Linda Groiss at Cheshire Medical Center, noted positive Finkelstein’s Sign, and “when testing for mid carpal instability, it is so uncomfortable I nearly cannot get a true assessment if there is a catch-up clunk or not”. Ms. Groiss injected Plaintiff ‘s right wrist with Cortisone, which provided only a very limited benefit.

Dr. Paul Bettinger from DHMC saw Plaintiff at the Cheshire Clinic April 29. He noted that treatment with Neurontin did not work because of side effects. Significantly, on exam, Dr. Bettinger found “diffuse sweating … about the right hand, particularly when compared to the left” as well as diffuse tenderness throughout the right wrist and hand. “Tinel Sign does not produce tingling, but produces diffuse pain throughout the hand and wrist”. He confirmed the diagnosis of right handed CRPS/RSD and recommended that she receive a stellate ganglion block injection.

This treatment was provided by Dr. Stephen Lordon at the DHMC Pain Management Clinic on June 14. Plaintiff received a steroid injection at C6 but without pain relief. Interestingly, her right hand temperature increased 5.5 degrees following the injection. At Dr. Bettinger’s request, Dr. Lance Warhold from DHMC saw Plaintiff July 14. She described to him the same right hand symptoms of excessive sweating, color changes, burning pain, and thumb coolness. On exam, Dr. Warhold noted abnormal sensitivity to light touch throughout the right hand. However, his examination was curtailed because of pain. He confirmed the diagnosis of right hand CRPS and concurred with Dr. Beasley’s treatment recommendations.

Plaintiff followed up with Dr. Beasley on August 15, four years after she was struck. On exam, Dr. Beasley noted mild right hand swelling and that the right palm was slightly more moist than the left. Those finding, of course, confirm the CRPS diagnosis. Plaintiff returned to Dr. Beasley, who she had seen 11 months earlier at the DHMC Pain Clinic, on August 15. Confirming the CRPS diagnosis, he started her on Cymbalta for pain relief. He also indicated the need for “a spinal cord stimulator trial soon”.

On January 5, 2015 Plaintiff returned to Dr. Lordon at DHMC to schedule insertion of the spinal cord stimulator. On examination, Dr. Lordon found the same symptoms as on previous examinations. On that same day Plaintiff is believed to have seen Dr. Lordon and a psychiatrist, Dr. Seville, as a psychiatric evaluation had to be performed in order to proceed with insertion of the spinal cord stimulator. Dr. Seville opined that “There was no evidence that Plaintiff’s pain was of a psychological origin“, and cleared her for the spinal cord stimulator trial.

On February 20, Plaintiff was scheduled for the procedure at DHMC. However, Dr. Lordon discovered that she was again pregnant so there was a postponement. Plaintiff had a miscarriage shortly thereafter. Presently, she is awaiting scheduling for application of the stimulator for a trial period to gauge its effectiveness. The treating doctors generally appear to concur that all other treatment options have been exhausted, including surgery.

Permanent Impairment

On December 26, 2014, Dr. Robert Block of Southwestern Vermont (formerly Taconic) Orthopaedics in Bennington examined Plaintiff at counsel’s request. His report is attached at Tab 9. Dr. Block has been an orthopaedic surgeon for 37 years.

Dr. Block observed that Plaintiff was “distraught” that she is unable to play with her children in a natural way due to pain with gripping, pushing, and pulling. On examination, Dr. Block chiefly noted that the Finkelstein’s Test was painful, her right hand grip strength and pinch strength were decreased, as was the sensation of the radial digital branch of the thumb (see Medical Illustration attached at Tab 6). There was also tenderness at the first extensor compartment and distal third of the radius in the right wrist/forearm region. He also found unequal hand temperature with the right palm warmer and showing increased perspiration, which other doctors had noted and which supports the CRPS diagnosis.

Dr. Block will testify that Plaintiff received a direct blow to the right radial dorsal wrist, injuring the dorsal radial nerve and the first extensor compartment. See Medical Illustration after Page 12. “As is very common after this nerve injury, particularly in view of the lack of early aggressive treatment of the pain, she has developed Complex Regional Pain Syndrome”.

Dr. Block did not believe that Plaintiff was at a Medical End Result as she had not had the full course of RSD treatment, including the trial of spinal cord stimulation. However, he testified that she will always have some permanent impairment given the passage of time, that she will never be fully pain free but could possibly live a normal life. Given her current condition and symptoms, Dr. Block believed that based upon the AMA Guides, her chronic pain incapacity translates to a right upper extremity impairment of 4% based upon pain, diminished sensation and decreased use of her right hand.

The defense has not identified its own medical expert.

It is expected the defense will argue that Plaintiff’s lack of early aggressive treatment is the reason for her present symptoms. This is because Plaintiff was either pregnant or nursing her two children between November of 2010 and March of 2014. Notwithstanding that Plaintiff has essentially exhausted all other treatment options save for the spinal stimulator, and that she has incurred roughly $35,000.00 in treatment costs due to Plaintiff’s negligence, his counsel will argue that her present condition is due to the lack of aggressive early treatment. However, Plaintiff did not simply stop treating during her pregnancy and nursing period. She aggressively pursued physical therapy, pain management and alternative therapies at Sojourns Community Clinic. She simply avoided invasive (surgical) treatment as well as pain killing or steroidal medication by mouth or intravenously as she did not want to harm her children whether in utero or through her breast milk.

Counsel for Defendant also claims that Plaintiff’s deQuervain’s Tenosynovitis resulted not from being struck with the shovel but because of constantly holding her children during nursing. The flaw in this argument is that once Plaintiff stopped nursing in March 2014, her symptoms remained. Likewise, her right hand, wrist, and forearm were painful before she began holding ________ to nurse. Considering the demographics of the likely Windham County Jury pool, these defense arguments could easily backfire.

Plaintiff did attend 38 out of 58 therapy sessions at Brattleboro Memorial Hospital between September 22, 2010 and August 8, 2011, 17 out of 18 sessions at Grace Cottage Hospital between March 6 and October 16, 2012, and 29 treatment sessions of various modalities at Sojourns between November 6, 2012 and June 19, 2013, for a total of 84 sessions. Not included are treatments at Dartmouth-Hitchcock and with Dr. Vranos.

Further, Plaintiff sought out treatment during these periods notwithstanding pregnancy, child care difficulties, winter weather, and transportation issues (including at least one missed session because she had no money for gas). Other treatment delays were caused by difficulties with health insurance and Medicaid. Plaintiff did try acupuncture, home physical therapy and a variety of non-traditional therapy/treatment modalities at Sojourns Clinic. Dr. Block opined that even if the spinal cord stimulator were successful, Plaintiff would never be pain free.

In summary, it is sheer speculation for the defense to say that if Plaintiff had received earlier more aggressive treatment than she did, her CRPS would have disappeared. Likewise, there is absolutely no basis for the defense claim that even if the spinal cord stimulation therapy were successful – which would require Plaintiff to wear a battery pack outside of her body after the surgical implant – she would be completely pain free and without any residual permanent impairment. Plaintiff has certainly shown diligence and good faith in pursuing medical treatment, even while pregnant. This is not a situation where she refused or deliberately delayed all treatment, but simply chose to avoid to avoid certain types of treatment because of her pregnancy and nursing.

It is well settled that it is the Defendant’s responsibility to prove that Plaintiff failed to properly mitigate her damages by not obtaining more aggressive treatment at an earlier stage, or because of pregnancy and nursing. Cartin v. Continental Homes of New Hampshire 134 Vt. 362, 267 (1976). There must be “concrete evidence” of an ability to mitigate, and not “merely arguing the possibility”. Id. Plaintiff used reasonable effort to pursue treatment. That is all that was necessary. See Christiansen v. Hollings 112 P. 2d. 723, 730 (Cal. Ct. App. 1941) (reasonable diligence in obtaining medical care is a fact specific inquiry; “there is no hard and fast rule that the injured party must seek medical care of a particular type”.)

In summary, there is clear medical causation for Plaintiff’s Complex Regional Pain Syndrome. The consistency of symptoms supporting this diagnosis, including radial nerve damage in the right wrist, wrist swelling, skin discoloration, and an elevated hand temperature causing right hand sweating, amply support Dr. Block’s opinions. The jury will easily find both causation and permanence based upon the available medical proof – and not the speculation offered by the defense.

Future Medical Expenses

As per the June 8, 2015 report of April Pettengill, BSN, RN, the future care costs of the spinal stimulation implant, including surgery, are $514,713.10.

Lost Earnings

Although Plaintiff’s injuries have plainly interfered with her ability to pursue her original career choice as a baker, based upon her intervening pregnancies and other factors, she will not be making a claim for past, present or future lost earnings.

Medical Liens

Plaintiff presently owes Vermont Medicaid $4,693.24 and Brattleboro Memorial Hospital $3,801.00.

Against those amounts, she has Med Pay benefits in escrow of $4,793.00.

What Plaintiff_Has Become Since Getting Hurt

Plaintiff’s ability to use her dominant right hand and forearm has been seriously compromised due to the Defendant. Every conceivable activity involving her right hand and forearm ranging from child care, housekeeping, food shopping, and personal hygiene, can only be done with significant pain. This has made her more dependent on her left hand.

Her medical records confirm her frustration and distress in being unable to naturally play with her children, pick up and carry them, bathe them properly, or to perform such mundane tasks as buckling them in their car seats. She has spent an enormous amount of time and energy driving to and from numerous medical appointments over the past 5 years, obtaining treatment, and performing home exercises and therapy. Her best friend ________ will testify that Plaintiff cannot lift either of her children with her right arm without either putting him down or switching the child to her left arm. In fact she will use her right arm to “hook” ________ or ________ under her right elbow and then transfer him to her left arm. ________ reports that Plaintiff will also ask her to lift or carry her children for her, and that she expresses her frustration over this. She also notes that Plaintiff seems in constant pain, judging from her body movements and her expressions.

Plaintiff finds that the constant right hand, wrist, and forearm pain in combination with her maternal duties grinds her down. However, she doggedly performs home exercises several times daily, including stretching with a large rubber band, and rubbing a small hard ball with cleats on a hard surface. She also performs yoga with ________ but as ________ notes, Plaintiff has to stop early because of the pain.

Her inability to fully use her right hand and forearm mean that she can’t do dishes and that her house is not as clean as before she was hurt. As her medical records and patient questionnaires confirm, her sleep is constantly interrupted on a nightly basis due to pain. This obviously leaves her even more tired the next day.

Plaintiff’s range of pleasure activities have also been severely curtailed, notwithstanding the demands of motherhood. She always had a large vegetable garden but cannot now do the digging and the planting. She can no longer box or play sports. She even has a hard time playing baseball with her children.

Plaintiff tried returning to work at LL’s Bakery, one day per week. She could not do baking and did everything with her left hand. She found that at a work day’s end her pain would be at level 9.

Beginning in the summer of 2014, Plaintiff began looking for work through Vermont Vocational Rehabilitation. Obviously, her limited ability to use her right hand and forearm deter prospective employers. She does occasional light housekeeping work to make ends meet. Since January 2015, Plaintiff works 6 hours every Friday night at the Newfane Creamery Deli and Restaurant. She does this even though she must rely more on her left hand, for example, to pick up and carry heavy trays of dishes. Obviously such work aggravates her right hand and wrist pain greatly making it harder to get a decent night’s rest afterward. She has recently taken classes in financial fitness.

Pursuing this interest, she has enrolled in the Gaia School of Healing and Earth Education in Westminster, a non-degree program which she began in April. This is a 2 year program funded by a loan she obtained through VSAC. She is presently studying “Sacred Plant Medicine and Herbalism” during Saturdays and Sundays every 3 weeks from April through December 2015. Plaintiff is sufficiently motivated to use what she has learned from her injuries and combine that with her interest in herbs and non-traditional medicine to create her own career.

She wants to create, manufacture and distribute healing products such as teas, tinctures, and sacred medicinal herbs for healing, with a goal to open her own herbal apothecary.

As her best friend ________ will testify:

” Plaintiff is still one of the most positive people I know. She is very

independent and persistent … she understands that her right hand and wrist

will probably always hurt her. I can see this makes her sad”. As she has said

“I can’t change it, I can only try to make it better”.

What Plaintiff Was Like Before She Was Hurt

At the time she was hit by the Defendant’s shovel, Plaintiff was a healthy and active 19 year old woman with abundant energy and no upper body pain.

Plaintiff had recently begun working as a baker’s apprentice at ________ Bakery, owned by her landlords. She began work July 30, 2010, opening the bakery at 4:00 a.m., baking and waiting on customers. The week before she was hurt she had worked 31 hours and the LL’s were in the process of increasing her hours to 35 hours per week. Plaintiff enjoyed being a baker and wanted to pursue that career. Before working at ________, she helped her mother clean houses and also worked 6 months in a warehouse unloading tractor trailers.

Before getting hurt, Plaintiff was involved in a wide range of activities including:

  • Horseback Riding;
  • Yoga;
  • Cardio Kick Boxing, 6 days per week;
  • Using a punching bag several hours per week in addition to kick boxing;
  • Going 4 wheeling 2 to 3 times per month, 8 to 9 months per year;
  • Snowmobiling once weekly during the winter;
  • Doing gymnastics with her younger sister;
  • Playing basketball twice per week;
  • Performing woodworking between 1 and 3 days per week as a hobby with her old high school woodworking teacher (she was completing a coffee table at the time she was hurt and could not finish that project).

Certainly Plaintiff could not continue with the majority of these activities because of the demands of being a mother to two very young boys. Nevertheless, these activities show her diverse interests and that she lived a vigorous and healthy life. She could have resumed these various pursuits as her children got older, or even shared these activities with them. Unfortunately, the Defendant has taken those options away from her.

SUMMARY AND DEMAND

Plaintiff’s life expectancy is 57.5 years, according to the 2012 Statistical Abstract of the United States. It has been 4 years and 10 months since Plaintiff was hit by the shovel on August 10, 2010. This means that she has suffered and will continue to endure a total of 62.3 years of daily pain, disability, and disruption of every aspect of her life.

The cause of Plaintiff’s injuries and her symptoms have been thoroughly detailed over nearly 5 years of treatment records dating back to the day she was hurt. There have also been consistent objective signs of injury that have been confirmed by standardized medical testing by a variety of providers. The CRPS diagnosis is fully grounded upon involuntary right hand and wrist changes including swelling, skin discoloration and increased hand temperature causing her right palm to sweat. These symptoms have been noted by numerous treatment providers.

The defense arguments that Plaintiff’s damages should be mitigated because of a failure to pursue all available treatment options is unsupported by the law of the case and her treatment history. A Windham County Jury will not look favorably upon defense arguments that notwithstanding Plaintiff incurring nearly $35,000.00 in treatment expenses, she was at fault for not pursuing injections or oral pain killing medications because she was pregnant or nursing.

Based upon these factors, the full value of Plaintiff’s case is:

1) Past Medical Expenses……………………………….……………………. $ 34,605.39

2) Cost of Future Medical Care……………………………………………… $514,713.10

3) Pain, Suffering and Permanent Disability:

a) $7.00 per day x 365 = $2,555.00 x 62.3 years ……………………. $159,176.50

4) Lost Enjoyment of Life:

a) $5.00 per day x 365 = $1,825.00 x 62.3 years………………………. $113,697.50

____________________________________________________________________________

TOTAL CASE VALUE …………………….……………………………… $822,192.49

 

DATED at Manchester Center, County of Bennington, State of Vermont this _____ day of June, 2015.

By:

Bradley D. Myerson, Esquire

Attorney for Plaintiff

[1] The test is performed by grasping the thumb and ulnar deviates the hand sharply. If sharp pain occurs along the distal radius, or top of the forearm close to the wrist, deQuervain’s Tenosynovitis is likely.

[2] Tinel’s testing detects irritated nerves on the inner aspect of the wrist by tapping over the nerve to [re]produce parasthesia.

[3] The radial nerve is a motor and sensory nerve distributed to the skin of the arm, forearm, hand and fingers. The skin area affected is on the outer or hairy side of the limb, and extends into the thumb. Damage to this nerve explains Plaintiff ‘s thumb pain, tingling and numbness. See Medical Illustration: “Radial Side Wrist Anatomy”, below.

[4] The snuff box area is below the dorsal area of the thumb where it joins the wrist.

Medical Illustrations

wristanatomy_mediation

rsd_mediation

syndrome_mediation