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Joyce v. J.C. Penney Corporation

June 25, 2008

JOSEPHINE JOYCE, PLAINTIFF,
v.
J.C. PENNEY CORPORATION, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court are the parties' Motions for Summary Judgment, the Plaintiff's Motions for Miscellaneous Relief, and the parties' Motions to Strike the opposing side's motion for summary judgment. The Court notes that neither party has filed proper responses to the opposing side's Motion for Summary Judgment, see L.R. 56.1(b), resorting instead to filing motions to strike. As the Court indicated in its Order, dated February 28, 2008, Defendant's Motion to Strike Plaintiff's Motion for Summary Judgment is denied and construed as a response to Plaintiff's Motion for Summary Judgment. Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment is also denied.

For the following reasons, Plaintiff's Motion for Summary Judgment and other miscellaneous motions are denied, and Defendant's Motion for Summary Judgment is granted in part and denied in part.

I. BACKGROUND

The Plaintiff, Josephine Joyce (hereinafter, "Joyce") filed this action against J.C. Penney Corporation, Inc. (hereinafter, "J.C. Penney") for injuries suffered as a result of being hit with a cart while shopping in November 2003. She alleges that as a result of this incident, she sustained new injuries and aggravation of old injuries to her legs, lumbar spine (back), cervical spine (neck), arms, and fingers, and developed a cyst in her left knee and chicken pox or shingles on her eye. Joyce Dep. at 32:4-20, 66:29-24, 67:1-9. She seeks damages for pain and suffering, medical expenses, and inability to engage in various forms of physical activity, among other things. See Pl.'s Answers to Interrogatories dated October 17, 2006 and November 14, 2006.

The Court draws the following material facts from its review of the entire record, as well as the parties' submissions. In 1991 or 1992, Joyce was involved in a car accident in which she injured her sciatic nerve. Joyce Dep. at 30:5-16. An MRI from 1992 showed a bulging disc in her cervical spine at C4-C5. Shea Dep. at 24:14-15, 20-21.

In 1997, Joyce fell while working at Union Pacific Railroad and injured her lower back and left leg. Joyce Dep. at 16:3-9; Gafoor Dep. at 19:1-23. During a visit to her primary care physician, Dr. Mohammad Gafoor, on February 27, 1997, she complained of left leg pain, back pain, and low back tenderness. Gafoor Dep. at 19:6-7, 19-20, 20:23-24. Dr. Gafoor's impression was lower extremity and back pain. Id. Joyce continued to have pain in the left leg and back, accompanied by burning, numbness, and radiating pain in March, April, and May 1997. Id. at 21:4-12, 22:17-22, 24:5-15, 26:5-10. In October 1997, she reported left elbow pain in addition to continued back pain. Id. at 27:7-17. She has complained about problems in her back and legs since about 1997 and about her neck since September 2003. Id. at 121:1-11.

In 1998, Dr. Gafoor referred Joyce to a neurosurgeon and orthopedic doctor for an MRI because of pain, numbness, and weakness in her back and leg. Id. at 32:7-10, 12-14, 34:17-24. An MRI dated September 10, 1998 showed multi-level degenerative disc changes, including a mild disc bulge at L4-L5 and mild foraminal bilateral stenosis. Espinosa Dep. at 19:1-23. Joyce's diagnosis at that time was acute lumbosacral spine strain with degenerative lumbar disc disease and radiculopathy. Gafoor Dep. at 35:7-9, 36:3; Shea Dep. at 47:17-20. An x-ray film of Joyce's cervical spine dated September 25, 2003 showed arthritic changes at C5-C6 and mild reversal of the cervical lordosis. Espinosa Dep. at 20:1-22. On September 28, 1999, she was also diagnosed with spinal stenosis. Gafoor Dep. at 46:2-10, 47:6.

Dr. Gafoor referred Joyce to Dr. Paul Prinz, an orthopedic specialist, in March 2000. Prinz Dep. at 19:21-24. At that time, Joyce reported to Dr. Prinz that she fell at work several years prior and had significant left-sided lower back and leg pain. Id. at 20:6-9, 21-24. Dr. Prinz diagnosed her with a disk bulge at L4-L5 dating back to 1998 and spinal stenosis. Id. at 22:6-14.

In July 2003, Joyce reported right shoulder blade pain in addition to continued back pain and leg weakness. Gafoor Dep. at 63:3-9. In September 2003, Joyce reported deep aching in her right little finger, neck, back, and leg pain, but no shoulder pain. Id. at 63:18-24, 64:1-10. X-rays of her right hand showed arthritis. Id. at 65:4-7. Dr. Gafoor's impression of Joyce's condition remained the same during numerous visits through October 2003. Id. at 47-66. On October 30, 2003, she reported back pain radiating across, tingling of the feet, finger pain, and no neck pain. Id. at 65:20-22.

On November 1, 2003, while shopping at the J.C. Penney store in Yorktown Mall, Joyce was struck from behind in the left ankle with a rack. Joyce Dep. at 33:3-7, 35:1-7, 37:16-19; 47:13-24, 48:1, 50:3-5. She felt a shock, grabbed hold of a clothing ring in front of her, jerked, swerved, and fell down on her left knee. Id. at 48:3-11. She felt stiff but did not feel the need to seek medical attention right away, and she continued shopping. Id. at 56-59. Her ankle felt slightly sore when she got home. Id. at 59:12-17. The next day, she sought treatment at Gottlieb Hospital because she felt dizzy and had pain in her legs and back. Id. at 59:18-23, 60:1-2, 22-24.

Joyce was hospitalized from November 2 to November 4, 2003 for a possible Transient Ischemic Attack ("TIA"). Gafoor Dep. at 74:10-18. Dr. Donald Lussky, a neuromuscular specialist who saw Joyce at Gottlieb on November 3, 2003, stated that her possible TIA and associated numbness and tingling in her left arm and leg were not anatomically related to the foot injury at J.C. Penney. Lussky Dep. at 8:11-16. An EKG, CT scan of her head, and x-rays of her left foot and chest were normal. Gafoor Dep. at 73: 3-15. Her neurological examination was normal. Lussky Dep. at 7:13-16. Dr. Gafoor examined Joyce on November 2, 2003, and found some tenderness in the left lumbar area and on forward bending. Gafoor Dep. at 66:22-24, 67:1-2, 71:11-13. He also documented a left foot injury based on the history she provided, and he testified that it was possible she had a soft tissue injury to her left foot. Id. at 75:12-24, 76:1-24, 77:1-24, 78:1-3. When asked whether Joyce's complaints of pain in the left leg and hip were the same as complaints she had made before, Dr. Gafoor stated, "I cannot . . . assess at that time . . . It's very hard to say the same pain or new pain or different pain." Id. at 69:10-16. Dr. Gafoor's impression during her next visit on November 13, 2003 was that she had a left ankle sprain. Id. at 79:13. Her left ankle ligament was tender, and her range of movements was painful. Id. at 79:9-11. Dr. Gafoor suggested that she use an Ace wrap and prescribed medication for her ankle. Id. at 79:13-15.

On June 10, 2004, Dr. Gafoor referred Joyce to an ophthalmologist, Dr. Timothy McCarthy, for Herpes Zoster Ophthalmicus (what Joyce refers to as chicken pox or shingles) of the left eye. Id. 84:4-8, 85:1-17. Dr. McCarthy could not give an opinion that this problem was caused by the J.C. Penney incident, and he thought that it was "very unlikely" and "very, very remote." McCarthy Dep. at 22:13-24, 23:1-10.

On July 15, 2004, Joyce saw Dr. Nikola Ivancevic, a podiatrist, for her ankle pain. Dr. Ivancevic diagnosed Joyce with anterior talofibular and calcaneofibular tendonitis on the left ankle, and he recommended that she ice, rest, pad, and elevate it. Ivancevic Dep. at 12:12-16, 13:10-12, 24:11-24. On her next visit on October 4, 2004, he found that she still had some tendonitis but that the ankle was resolving. Id. at 27:21-24, 28:1. Dr. Ivancevic could not give an opinion to a reasonable degree of medical certainty as to what ...


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