United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
L. ALONSO, United States District Judge
March 27, 2015, plaintiff, Marcell Leak, filed this
negligence action against defendants for injuries he suffered
when Duane Wadsworth's truck collided with Leak's
truck. On April 24, 2015, defendants, Wadsworth and his
employer, Eagle Ridge Transportation, Inc., removed the case
from the Circuit Court of Cook County. The case proceeded to
a bench trial that the Court conducted from November 14 to
16, 2016. The Court heard the parties' opening and
closing arguments and testimony from several
witnesses and admitted a number of exhibits into
evidence. The parties submitted proposed findings of fact and
conclusions of law after trial. Plaintiff asks the Court to
award him: (1) $170, 479.35 for medical expenses; (2) $175,
000 for pain and suffering; (3) $125, 000 for loss of a
normal life; and (4) $72, 095.50 in lost wages, for a total
of $542, 574.85. Defendant counters that plaintiff has not
proven by a preponderance of the evidence that the May 7,
2013 accident caused his injuries. After considering the
evidence and for the reasons set forth below pursuant to
Federal Rule of Civil Procedure 52(a), the Court enters
judgment in favor of plaintiff and against defendant in the
amount of $222, 025.83.
7, 2013 Collision
case arises from a collision that occurred on the evening of
May 7, 2013, at a Pilot truck stop in Bloomington, Illinois.
(Leak Trial Testimony at 5 ll. 4-10, 23-24.) At the time,
Leak was a truck driver for Schneider National and had
stopped in Bloomington to take his federally-mandated
ten-hour break. (Id. at 3 ll. 5-8, 6 ll. 1-8.) After
eating dinner and talking to his wife on the phone, Leak went
to sleep in his truck. (Id. at 6 ll. 17-21.)
Leak's truck was parked in the last slot in the row;
there was a truck parked immediately to the left, but no
truck on the right. (Id. at 7 l. 17-8 l. 5.)
Wadsworth, a driver for Eagle Ridge, pulled into the Pilot
truck stop later that evening to take his mandated break and,
while looking for a parking spot, altered course, causing his
truck's trailer to drag across Leak's
trailer. (Wadsworth Trial Testimony at 4 ll. 10-16,
6 ll. 4, 7-16, 7 l. 17-8 l. 23.) As soon as Wadsworth
realized his truck had made contact with another truck, he
backed up. (Id. at 10 ll. 11-12.) While backing up,
Wadsworth's trailer caused Leak's truck to move
sideways about eighteen inches, causing it to come into
contact with the mirror of the truck next to it.
(Id. at 11 ll. 10-14.)
Wadsworth's truck collided with Leak's, Leak was
awoken by a loud bang and found the cabin of his truck
shaking. (Leak Trial Testimony at 8 ll. 22-23.) He
immediately got out of bed and fell backwards because the
truck was still shaking. (Id. at 9 ll. 5-6.) Leak
got up and made his way to the front of the truck, looked out
the driver's window, and saw that another trailer had hit
his truck. (Id. at ll. 9-22.) When Wadsworth put his
truck in reverse and dragged Leak's truck, Leak lost his
balance and fell backwards again. (Id. at 10 ll.
9-17.) Leak got up and “felt a sharp pain” in his
back and got out of the truck to assess the damage.
(Id. at 11 ll. 2- 10.) Leak then went back to his
truck and called emergency personnel. (Id. at 14 ll.
2-3.) An EMT arrived ten to fifteen minutes later and asked
whether Leak wanted to go to the hospital. (Id. at
ll. 6-17.) Leak told the EMT that he had hit his head and
“had a sharp pain” in his back and wanted to be
seen by a doctor. (Id. at ll. 12-20.) Leak was taken
to BroMenn Advocate Medical Center, where he received a CT
scan. (Id. at l. 22-15 l. 6.) When the CT scan came
back clear, Leak was discharged. (Id. at 15 ll.
6-15.) Wadsworth testified that the day of the accident, Leak
did not speak to him and that the next day, he observed Leak
bending or squatting while looking under the trailer as it
was being towed away. (Wadsworth Trial Testimony at 11 ll.
15-18, 12 ll. 12-24.)
was the City of Bloomington paramedic who was dispatched to
the Pilot truck stop on the day of the collision. (Czapar
Dep. at 11 ll. 7-9, 16 ll. 8-21.) Czapar noted that when he
arrived on the scene, Leak was “standing up, walking
around . . . [and] did not appear to be . . . injured.”
(Id. at 26 ll. 1-3.) While Leak indicated that he
wanted to be taken to the hospital, he did not tell Czapar
that he was having head, neck, or back pain. (Id. at
27 ll. 9-16.) According to Czapar, Leak walked unassisted to
the ambulance. (Id. at 33 ll. 8-21.)
days after the accident, Leak's aunt referred him to the
Injury Care Network because he told her he was experiencing
back pain. (Leak Trial Testimony at 16 ll. 2-17.) The Injury
Care Network connected Leak with Charles Bodem, a
chiropractor whom he first saw on May 9, 2013. (Id.
at ll. 2-3; Bodem Dep. at 12 ll. 20-22.) Bodem's notes
from that appointment indicate that “[w]hen the patient
got up to find out what was going on [during the truck
collision], he lost his balance and fell backward and landed
on his back striking his head on the ground. And then he felt
immediate onset of head, neck and lower back pain.”
(Bodem Dep. at 13 ll. 10-14.) Bodem's notes do not
indicate that Leak fell twice, and he did not recall Leak so
stating. (Id. at 59 ll. 4-7.) Bodem testified that
his examination revealed that Leak had “moderate to
severe difficulty with his postural transition . . . and
reduced active range of motion in his neck . . . and lower
back[.]” (Id. at 14 ll. 13-22.) Bodem also
noted that Leak had pain in his neck and both sides of his
lower back along with muscle spasms in his lower back.
(Id. at 15 l. 20-16 l. 1.) Based on Leak's
history and Bodem's examination, Bodem diagnosed Leak
with cervicalgia,  lumbar radiculitis,  inflammation in
the nerve in the lumbar spine, lumbalgia,  and a head
injury. (Id. at 16 ll. 12-14.) That day Leak was
treated with electric stem and cold packs to reduce inflammation.
(Id. at 18 ll. 3-5, 14-15.) Bodem also recommended
that Leak have an MRI of his lumbar spine and make six
chiropractic visits,  and he referred him to a pain-management
doctor. (Id. at 17 ll. 1-5.) Finally, Bodem
“took [Leak] off of work for two weeks.”
(Id. at 19 ll. 22-23.)
returned for a follow-up appointment the next day and had
electrical stimulation of the lower back, chiropractic
manipulation, kinesio taping and was also shown lower back and
neck exercises. (Id. at 19 ll. 13-16, 21 at ll.
3-5.) Bodem re-examined Leak on May 20, 2013, and reported
that the intensity of Leak's pain had lessened and his
ability to move had improved. (Id. at 23 l. 13-24 l.
6.) Bodem's diagnoses remained the same, and he
recommended that Leak continue with another month of
chiropractic visits and remain off work. (Id. at 24
ll. 9-15, 25 at ll. 11-13.) Bodem examined Leak again on June
18, 2013, and reported that Leak's pain was reduced and
his mobility had improved. (Id. at 27 ll. 4-20.)
Leak experienced the worst pain in his lower
back. (Id. at l. 24.) Bodem
recommended an additional month of chiropractic visits and
that he remain off work. (Id. at 31 ll. 1-11.) At a
third examination on July 24, 2013, Leak's pain and range
of motion had again improved. (Id. at ll. 12-21.)
Bodem kept Leak off work for another month and recommended
continued chiropractic visits. (Id. at 35 at ll.
11-15, 22, 36 ll. 3-5.)
visit on July 29, Leak reported an increase in lower back
pain. (Id. at 36 l. 22-37 l. 4.) Both Leak and Bodem
attributed the pain to an increase in the intensity of the
chiropractic exercises in which Leak was engaging, and Bodem
lessened the intensity of the exercises. (Id. at 37
ll. 5-15.) At Leak's August 29th visit, Bodem referred
Leak for a Needle EMG and at an exam in September, Leak
reported his back pain as the same intensity as the July 29
visit. (Id. at ll. 23-24, 40 l. 14.) Bodem testified
that he believed Leak's injuries, pain, need to stay off
work, and the course of treatment he recommended were caused
by the accident on May 7, 2013. (Id. at 45 ll. 18-47
l. 24.) Bodem discharged Leak from his care on September 5,
2013. (Id. at 73 ll. 3-6.)
first saw Leak on May 15, 2013 at the Chicago Pain Orthopedic
Institute upon a referral from Charles Bodem. (Vargas Dep. at
14 ll. 16-22, 53 ll. 19-23.) At that appointment, Leak
reported that he had fallen off the cab bed, hitting his head
and lower back when another truck collided with his.
(Id. at 16 ll. 5-13.) He also complained of sharp,
shooting lower back pain that radiated to his upper legs, as
well as non-radiating neck pain. (Id. at 18 ll.
15-23.) Vargas's impression was that Leak had
lumbrosacral and cervical facet pain syndrome.
(Id. at 22 ll. 11-13.) Vargas recommended a facet
joint injection to confirm the diagnosis. (Id. at
ll. 17-21.) Leak's complaints of pain remained the same
when he next visited Vargas on June 13, and Vargas again
recommended diagnostic facet joint injections. (Id.
at 23 ll. 14-21.) Leak finally received the facet joint
injection on July 2, 2013. (Id. at 25 ll. 18-23.)
When Vargas saw Leak for a follow-up appointment on July 25,
Leak reported that he had experienced substantial relief for
approximately ten days after the injection. (Id. at
26 ll. 19-20, 27 ll. 2-9.) Vargas stated that this report
confirmed his diagnosis, and he then recommended that a
medical branch nerve block be administered in two phases.
(Id. at 28 ll. 14-22.) Leak received the first
medical branch block on August 6 and the second on September
5. (Id. at 29 ll. 16-20, 30 ll. 6-11.) The first
branch block decreased Leak's pain for approximately ten
days. (Id. at 31 ll. 3-8.) The second branch block,
which used a different numbing agent, also decreased
Leak's pain and lasted approximately two days.
(Id. at ll. 9-16.) Based on those results, Vargas
recommended that Leak undergo radiofrequency
ablation. (Id. at ll. 20-22.) At a visit
on October 25, Leak remained the same, and on November 5 and
26, he underwent the radiofrequency ablation. (Id.
at 32 ll. 12-17, 33 ll. 8-10, 34 ll. 6-8.)
saw Leak next on January 8, 2014, when he reported that a few
days after the ablation, he had experienced “clear and
sustained” improvement in his back pain. (Id.
at 34 ll. 16-24.) Leak further reported that four weeks prior
to the visit, most of his initial back pain symptoms had
returned because of a near fall. (Id. at 35 ll.
6-10.) Vargas noted that Leak complained of lower back pain
shooting into his extremities that was not present at
previous visits. (Id. at 35 l. 23-36 l. 15.) Vargas
attributed the shooting pain to the near fall and recommended
that Leak meet with a neurologist. (Id. at 36 l.
16-37 l. 1.) Leak had an MRI on January 14, which revealed
disc protrusion that had not been present on prior MRIs.
(Id. at 37 ll. 9-11, 83 ll. 6-17.) At a visit on
January 30, Vargas performed a diagnostic lumbar
discogram.(Id. at 38 ll. 5-7.) At a
follow-up visit on February 14, Leak again complained of back
pain shooting into his extremities, and Vargas repeated his
recommendation of neurological treatment. (Id. at 39
ll. 16-24.) Dr. Dickson, a neurosurgeon, evaluated Leak on
March 12 and recommended a laminectomy of a specific
disc, which Leak opted not to undergo. (Id. at 40
ll. 12-16.) Leak saw Vargas again on April 11 and for the
last time on June 13 and continued to report back pain
shooting into his extremities. (Id. at 40 l. 7, 41
ll. 2-5.) According to Vargas, Leak's pain and injuries
were caused by the May 7, 2013 collision. (Id. at 41
l. 17-42 l. 4.)
first saw Andersson on August 27, 2013, for an independent
medical evaluation at the request of Leak's employer.
(Andersson Jan. 2016 Dep. at 10 ll. 4-8, 11 ll. 2-3, 54 ll.
1-10.) Andersson reviewed Leak's May 2013 MRIs and
concluded that they were normal for a twenty-six year old.
(Id. at 13 ll. 10-24.) Andersson also testified that
based on the MRIs, he found no abnormalities in Leak's
facet joints, and he did not agree with the conclusion that
Leak needed facet joint injections. (Id. at 22 ll.
8-18.) Andersson's examination of Leak revealed almost
normal flexion, but he could not fully extend his back.
(Id. at 26 ll. 3-13.) Part of Andersson's
evaluation noted that “[Leak] still complains of low
back pain and has a mild decreased range of motion, but his
MRI scans are completely normal.” (Id. at 28
ll. 5-7.) Andersson concluded that the injections were
unnecessary,  but that Leak should have received
physical therapy. (Id. at 29 ll. 7-10.) Andersson
further testified that the treatment Leak sought after the
accident was not unreasonable. (Id. at 60-64.)
saw Leak again on February 18, 2014. (Id. at 33 ll.
18-21.) At that examination Leak complained of lower back and
leg pain, a progression that surprised Andersson.
(Id. at 34 ll. 2-11.) Leak reported his near fall to
Andersson, stating that his symptoms had increased and that
he was back to the level of pain that he had before the
radiofrequency ablation. (Id. at 37 ll. 15-18, 38
ll. 3-9; Andersson Oct. 2016 Dep. at 37 ll. 11-18.) Andersson
reviewed Leak's January 2014 MRI and noted the disc
protrusion, which he says indicated a mild degenerative
change. (Andersson Jan. 2016 Dep. at 38 ll. 13-24.) Andersson
testified that he did not think that the symptoms Leak was
having in February 2014 related to the May 2013 accident
because they were different from the symptoms he described at
the August 2013 exam. (Id. at 46 ll. 5-13;
Andersson Oct. 2016 Dep. at 41 l. 22-42 l. 1.) Andersson
further testified that Leak did not need surgery or any
additional treatment or medication and that he had likely
reached “maximum medical improvement” by October
2013 and was well enough to return to work. (Andersson Jan.
2016 Dep. at 48 ll. 5-24; Andersson Oct. 2016 Dep. at 42 ll.
11-18.) Andersson stated that he expected someone like Leak,
with a moderate lumbar cervical strain, to recover in six to
twelve weeks and that Leak appeared not to have responded
well to treatment. (Andersson Jan. 2016 Dep. at 82 ll. 2-23.)
saw Leak on May 27, 2014 for an initial consult as a referral
from Dr. Vargas.(Salehi Dep. at 9 ll. 12-14, 12 ll. 3-5.)
Salehi reviewed Leak's three MRIs and indicated that the
two taken on May 15, 2013 were normal and that the third,
taken on January 14, 2014 revealed a bulging disc.
(Id. at 23 l. 6-24 l. 11.) Salehi opined that it was
more likely than not that the disc bulge was caused by the
May 7 accident. (Id. at 26 l. 24-27 l. 2.)
Salehi also noted that at the time of his examination, Leak
weighed 309 pounds and had a BMI of 45.8 and that his weight
was a contributing factor to the disc bulge and his
pain. (Id. at 16 ll. 23-24, 28 ll.
10-22.) Salehi did not recommend that Leak undergo surgery,
and he did not see Leak again after the initial consult.
(Id. at 28 l. 23-29 l. 1, 39 ll. 10-12.)
after the ablations in November 2013, Leak slipped on wet or
icy ground. (Leak Trial Testimony at 22 ll. 9-13.) After the
slip, Leak testified that the pain “aggressively came
back” and that pain lasted three to four months.
(Id. at 23 ll. 9-10, 24 ll. 16-20.) After that
period of time, Leak testified that his pain returned to the
baseline level it had been before the slip. (Id. at
25 ll. 3-11.)
asserts that the following expenses were incurred during the
course of his treatment for the injuries he suffered as a
result of the May 7, 2013 collision: (1) ambulance services
from the Pilot truck stop to Advocate BroMenn Medical Center:
$603.25 (Pl.'s Ex. 4); (2) emergency room care and
testing at Advocate BroMenn Medical Center: $2, 432
(Pl.'s Ex. 5); (3) unknown services at Pinnacle Pain
Management in January 2015: $475 (Pl.'s Ex. 6); (4) two
MRIs on May 15, 2013: $4, 207 (Pl.'s Ex. 7); (5)
treatment by Charles Bodem: $18, 307.36 (Pl.'s
Ex. 8); (6) emergency room care and pain medication at Edward
Hospital in Naperville in July 2013: 1, 464 (Pl.'s Ex. 9);
(7) physical therapy recommended by Dr. Andersson: $1,
917.07(Pl.'s Ex. 10); (8) January 2014 MRI:
$1, 300 (Pl.'s Ex. 11); (9) January 2014 lumbar
discogram: $1, 715 (Pl.'s Ex. 12); (10) treatments
ordered by Dr. Vargas at Chicago Pain and Orthopedic
Institute: $17, 066.09 (Pl.'s Ex. 13); (11) pain
management treatment ordered by Dr. Vargas at Accredited
Ambulatory Care: $90, 719.83 (Pl.'s Ex. 14); (12) medical
transportation to procedures ordered by Dr. Vargas: $598
(Pl.'s Ex. 15); (13) anesthesia provided by Metro
Milwaukee Anesthesia: $8, 691.73 (Pl.'s Ex. 17); (14) hot
and cold therapy machine rental prescribed by Dr. Vargas: $7,
225 (Pl.'s Ex. 18); and (15) ...