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Ray v. Rock

United States District Court, W.D. Virginia, Abingdon Division

November 28, 2017


          Robert T. Copeland, Copeland Law Firm, P.C., and Michael A. Bragg, Bragg Law, PLC, Abingdon, Virginia, for Plaintiff; James N. L. Humphreys, Hunter, Smith & Davis, LLP, Kingsport, Tennessee, for Defendant.


          James P. Jones United States District Judge.

         In this personal injury case arising out of a motorcycle accident, a jury found in favor of the plaintiff and awarded $4, 509 in damages. The plaintiff has moved for a new trial on the ground that the jury award is inadequate as a matter of law. For the reasons stated below, I will deny the motion.


         The evidence presented at trial persuaded the jury that defendant Jamie Stapleton Rock, while driving a minivan, had negligently turned in front of plaintiff John Bradley Ray, causing Ray's motorcycle to collide with the side of the minivan. The evidence pertaining to Ray's damages can be summarized as follows.

         Following the accident on August 25, 2014, Ray was transported by the ambulance to the emergency department at Bristol Regional Medical Center (“BRMC”). BRMC records of this visit show that Ray was diagnosed with a contusion of the chest wall and painful respiration. According to the records, he reported no loss of consciousness, dizziness, headaches, or altered mental status. An X ray showed no definite rib fracture.

         Several weeks before the accident Ray was seen at Associated Neurologists of Kingsport (“Neurologists”) in order to follow up on a diagnosis of optic neuritis. One of his close relatives has multiple sclerosis (“MS”), which puts Ray at greater risk of developing MS, and optic neuritis can sometimes be an early symptom of MS. Otakar Krcal, M.D., a neurologist, determined that Ray did not suffer from MS at that time.

         Ray returned to Neurologists on October 2, 2014, a little more than a month after the accident. He was seen by Nurse Practitioner Tracie Price. A record of this visit states that Ray reported that he had lost consciousness at the time of the accident, but he denied having memory problems. He reported experiencing headaches approximately four times per week since the accident, including severe headaches about two times per week. Price found that his cognition was normal and diagnosed him with post-concussive headaches.

         Ray first complained of memory loss to Neurologists in May of 2015. He wrote the complaint on an office intake form but did not discuss the problem with a medical practitioner at that time. On September 9, 2016, approximately two years after the accident, Ray first reported to Nurse Practitioner Price that he had short term memory problems and difficulty organizing his thoughts. Price performed a Montreal Cognitive Assessment that day, which showed mild cognitive decline. Ray underwent a magnetic resonance imaging scan (“MRI”) with contrast, and the results were within normal limits. Lab work revealed slightly elevated liver enzymes but otherwise normal results. According to Price, on March 1, 2017, Ray again complained of memory problems as well as trouble sleeping. He reported to her that he had to write notes to himself to remember what he was doing.

         Dr. Krcal testified that Ray was still being monitored for development of MS and that it was difficult to separate the treatment necessitated by the accident from the monitoring required for MS. Dr. Krcal stated that Ray was probably followed more closely than a typical patient with post-concussive syndrome.

         Dr. Krcal testified that Ray's headaches following the accident could have “possibly” resulted from post-concussive syndrome. Ray reported to the physician that his headaches had resolved by his second office visit following the accident. Dr. Krcal could not say with any certainty that Ray's memory problems were caused by the accident, largely because there was no baseline memory testing from before the accident that would provide a comparison. Dr. Krcal testified that he was not aware of anything else that would have caused Ray to suffer memory loss. According to Dr. Krcal, post-concussive memory loss does not usually worsen a year after an accident. Rather, most memory problems following a concussion resolve within the first few weeks or months, although they sometimes last longer.

         Ken Smith, M.D., a neurosurgeon, performed an independent medical examination of Ray at the request of the defense. Dr. Smith noted that the MRI taken approximately two years after the accident was normal. He acknowledged that Ray claimed memory loss, but he could not say that it was caused by the accident because there was no pre-accident data for comparison. Dr. Smith noticed that Ray exhibited a flat affect, meaning that he did not give much feedback in his interactions and was slow to respond. However, Dr. Smith could not say that the flat affect was caused by the accident. He testified that he could not reach an opinion to a reasonable degree of medical certainty based solely on anecdotal evidence.

         Kimberly Campbell, Ray's former girlfriend, lived with him at the time of the accident. She testified that he had appeared dazed when she saw him in the hospital and had complained that his head and side were hurting. He was unable to drive for about a week following the accident. He experienced painful breathing, which led to additional medical visits. Campbell testified that Ray had suffered from pneumonia and broken ribs, and his head hurt so bad that he underwent an MRI.

         Campbell stated that Ray's personality had changed after the accident. He used to be very punctual and outgoing, but after the accident, he was short-tempered, argumentative, and forgetful. He stopped caring about things and wanting to do things. He became disorganized and messy. Nevertheless, he still managed to pay his bills on time and was only late in paying two ...

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