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Leak v. Wadsworth

United States District Court, N.D. Illinois, Eastern Division

June 29, 2017

MARCELL LEAK, Plaintiff,
v.
DUANE A. WADSWORTH, individually, and as agent of EAGLE RIDGE TRANSPORTATION, INC., individually, Defendants.

          MEMORANDUM OPINION AND ORDER

          JORGE L. ALONSO, United States District Judge

         On 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[1] 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.

         FINDINGS OF FACT

         May 7, 2013 Collision

         This 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.[2] (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.)

         When 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.)

         Medical Treatment

         Paul Czapar

         Czapar 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.)

         Charles Bodem

         A few 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, [3] lumbar radiculitis, [4] inflammation in the nerve in the lumbar spine, lumbalgia, [5] and a head injury. (Id. at 16 ll. 12-14.) That day Leak was treated with electric stem[6] 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[7] and make six chiropractic visits, [8] 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.)

         Leak returned for a follow-up appointment the next day and had electrical stimulation of the lower back, chiropractic manipulation, kinesio taping[9] 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.[10] (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.)

         At a 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[11] 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.)

         Dr. Axel Vargas

         Vargas 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[12] 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.[13] (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.)

         Vargas 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.[14](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[15] 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.)

         Dr. Gunner Andersson

         Leak 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, [16] 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.)

         Andersson 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.[17] (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.)

         Dr. Sean Salehi

         Salehi saw Leak on May 27, 2014 for an initial consult as a referral from Dr. Vargas.[18](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.[19] (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.[20] (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.)

         2013 Slip

         Sometime 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.)

         Medical Bills

         Leak 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[21] (Pl.'s Ex. 8); (6) emergency room care and pain medication at Edward Hospital in Naperville in July 2013:[22] 1, 464 (Pl.'s Ex. 9); (7) physical therapy recommended by Dr. Andersson: $1, 917.07[23](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[24] (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) ...


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