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2019 WL 1398057 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
JOHN & JEAN LETARTE
v.
MASHANTUCKET PEQUOT GAMING ENTERPRISE
NO. MPTC-CV-PI-2016-151
|
MARCH 21, 2019

Attorneys and Law Firms
M. John Strafaci, Esq., for the Plaintiff
Edward W. Gasser, Esq., for the Defendant

 

MEMORANDUM OF DECISION
Thomas J. Londregan, Judge

 

I. BACKGROUND

On July 14, 2016, plaintiffs John and Jean LeTarte brought this negligence action against the Mashantucket Pequot Gaming Enterprise (“Gaming Enterprise”) for personal injuries they sustained while they were passengers in a Foxwoods Resort Casino shuttle bus.1

A trial was held on plaintiff John LeTarte’s claim against the Gaming Enterprise on December 5 and 13, 2018, at which Mr. and Mrs. LeTarte provided their accounts of the incident that gave rise to Mr. LeTarte’s claim. On December 26, 2018, the Court viewed the videotaped deposition testimony of Dr. John Keggi, plaintiff’s expert witness and treating orthopedic surgeon, and the videotaped deposition testimony of Dr. Michael Leslie, defendant’s expert witness, in the presence of the parties’ counsel.

 

II. FACTS

The plaintiffs John and Jean LeTarte, a married couple, were patrons of Foxwoods Resort Casino on July 27, 2015. That afternoon, the plaintiffs boarded one of the Gaming Enterprise’s shuttle buses to take them to their vehicle, which was parked in one of the defendant’s lots, so that they could drop off merchandise they had purchased from the Hard Rock Café and thereafter return to the casino. The plaintiffs were seated toward the back of the bus on the driver’s side. As the defendant’s driver was turning onto Trolley Line Boulevard, he took a sharp turn, which caused the bus to drive on the curb and over the median in the middle of the road. In doing so, the plaintiffs were thrown from their seats and onto the floor. Mrs. LeTarte, who was in the aisle seat, was thrown first and landed in the aisle. Mr. LeTarte, who had been holding her hand, was also thrown from his seat. His body landed on the floor between his seat and the seat in front of him. He also partially landed on his wife’s legs.

 

III. DISCUSSION

In order to prevail in a cause of action alleging negligence, a plaintiff has the burden of proving the following elements by a preponderance of the evidence: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach of said duty was the proximate cause of the plaintiff’s injuries; and (4) the plaintiff suffered actual damages. Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 33 (2002); Hazard v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 354, 357–58 (2016).

The parties are at issue over whether or not the bus accident was the proximate cause of the plaintiff’s injuries and, in fact, whether the plaintiff suffered the damages he now claims.

 

A. Pre-Accident Medical History
In 2005, the plaintiff underwent a hip replacement surgery performed by Dr. John Keggi of Orthopaedics New England. He had first visited Dr. Keggi’s office in October of 2004 after having experienced pain in his left hip in the five years prior. He was diagnosed as having degenerative disease of the left hip. After being involved in a motor vehicle accident, the pain in his hip reportedly worsened, and after a number of treatments, Dr. Keggi performed the hip replacement surgery on February 15, 2005. The surgery was successful and “resulted in significant improvement in his symptoms.”2 Def.’s Ex. E-2.

Approximately six years after the 2005 surgery the plaintiff noticed squeaking in his hip. There was no pain associated with the squeaking when it would occur, just the noise. The physician assistant to his orthopedic specialist advised him to treat it by staying hydrated and taking “fish oil.” Over time, the plaintiff developed weakness and some pain in his hip. During that time he was taking Percocet which was prescribed by his primary care physician. However, it was not prescribed solely for his hip, but also for chronic pain in both his chest area and his back. At his visit to the specialist on March 27, 2013, he reported occasional, but not significant pain. At his August 13 2014 visit, the squeak continued as well as the pain, and there was an added “clicking sound” that was audible. The plaintiff testified that he did not elect to have surgery prior to the accident because he could live with the squeaking, the pain, and the discomfort that he was experiencing, which he also attributed to the laborious nature of his profession as a carpenter.

 

B. Post-Accident Medical History
The plaintiff maintains that, after the accident, there was more severe pain in his hip, weakness in his leg, and the squeaking was worse. He did not seek surgery immediately following the accident. Instead, he participated in physical therapy in September of 2015 until November 2015. There was no improvement. Experiencing no relief from his persistent pain and squeaking in his hip, he stopped working in November of 2015 and had revision surgery on March 21, 2016.

 

C. Liability
The defendant does not contest the facts as to how the accident occurred and that the bus did drive up on the curb and over the median in the middle of the road. What the defendant contests about its liability is that such action was not the cause of the plaintiff’s injuries. The defendant’s position is that the revision hip surgery that was performed after the accident was needed before the accident occurred. The defendant maintains that the plaintiff’s symptoms changed little following the accident, and therefore, there was really no new injury. The plaintiff, on the other hand, alleges that after his initial replacement surgery in 2005 he was essentially pain free in his hip for about six years. While he had some symptoms and discomfort before the accident, this was a substantial change in the level of his pain after the accident.

The plaintiff in a cause of action for negligence “must establish not only that the defendant was negligent in some fashion, but also that the defendant’s negligence was the proximate cause of the plaintiff’s loss.” Simeonidis v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 85, 87 (quoting Cooper v. Mashantucket Pequot Gaming Enterprise, 5 Mash.App. 59, 65 (2011)). “Once liability is established, the Gaming Enterprise must take the [p]laintiff as it finds [him or] her.” Id. (citing Nakashian v. Mashantucket Pequot Gaming Enterprise, 4 Mash.Rep. 399, 401–02 (2006); Chiodo v. Mashantucket Pequot Gaming Enterprise, 3 Mash.Rep. 407, 412–13 (2001)). This convention is otherwise known as the “eggshell plaintiff” rule, which “makes the defendant responsible for all damages that the defendant legally caused even if the plaintiff was more susceptible to injury because of a preexisting condition or injury.” Id. at 88 (quoting Rua v. Kirby, 125 Conn.App. 514 (2010)). Mashantucket law accepts the following distinction between a preexisting condition and a preexisting injury: “[G]enerally, a plaintiff with a preexisting condition who is subsequently injured is entitled to full recovery. A plaintiff who suffers from a preexisting disability that is made worse by an injury, however, can recover only to the extent of the aggravation of the injury.” Id. (quoting Tuite v. Stop and Shop Companies, Inc., 45 Conn.App. 305, 310 n. 2 (1997)).

The defendant asserts that the plaintiff had planned to undergo a hip replacement revision prior to the shuttle bus accident. As evidence of this, the defendant cites to the plaintiff’s medical records after the hip replacement surgery but prior to the accident. The plaintiff first complained of a squeaking sound to his primary care physician and to Dr. Keggi’s office in 2011. The plaintiff did not visit Dr. Keggi’s office again until February 27, 2013 with more complaints of squeaking. At his follow-up appointment to discuss radiographs the office had ordered, the plaintiff reportedly stated that he would think about his options, including the revision surgery. The plaintiff also called Dr. Keggi’s office on a few occasions to request information about the model number of his Stryker implant and billing information from his 2005 surgery. On December 1, 2014, the plaintiff visited his primary care physician, who indicated in the office visit notes that the plaintiff’s plan was to remove the hardware and that he was in the process of suing the manufacturer. This appears to have been the last doctor’s visit at which the plaintiff discussed anything related to his hip replacement. The plaintiff, at trial, denied he made a decision in 2014 to remove the hardware.

Notes in medical records that are prepared by a third party may be used for impeachment purposes; however, the Court has the ultimate decision on the weight to be given to third party statements, and in this case, the credibility of the plaintiff.
... [I]n order for statements in medical records to be utilized as a prior inconsistent statement against a witness when the medical provided who recorded the witness’[s] statements in the medical records is not present at trial, the trial court must be able to reasonably infer from the face of the records that the witness was the actual source of the statements at issue if the witness denies having made the statement.
Barone v. Law, 242 Ga.App. 102, 105 (Ga.App. 2000). In the instant case, the plaintiff has denied making such a statement. If the statement of a decision to have the surgery was made in 2014 and if it was in the plaintiff’s own handwriting as part of an intake sheet, a court would give more weight to it for impeachment purposes as an inconsistent statement. If the third party portrayed the statement in quotes attributed to the plaintiff that also would be more persuasive for impeachment purposes. Here, the statement is part of a narrative prepared by a third party taken in the course of an office visit for a medical ailment unrelated to the plaintiff’s hip.

The plaintiff testified that prior to the shuttle bus accident on July 14, 2016, he was not ready to undergo revision surgery, despite the fact that he was a candidate for surgery when certain symptoms manifested. The plaintiff testified that the only reason that he would have seriously considered revision surgery prior to the shuttle bus accident was if Stryker, the company that manufactured his ceramic hip implant, had issued a recall on the model that Dr. Keggi had used in his original hip replacement. After the bus accident, the plaintiff stated that his Percocet usage increased from an as-needed basis to taking two or three tablets per day. Still, the plaintiff continued to defer surgery and opted to participate in physical therapy, despite being a candidate for revision, in part because he was reluctant to undergo surgery for personal reasons.

Mrs. LeTarte, the plaintiff’s wife, testified that in the three years prior to the accident, she noticed that the plaintiff would be more sore after performing specific types of jobs, but that the condition of his hip did not affect his ability to work at that time. After the accident, Mrs. LeTarte noticed that the plaintiff began to return home from work much earlier than he had previously, and testified that they no longer engaged in physical activities that they used to as a couple. Mrs. LeTarte also testified that she encouraged the plaintiff to undergo surgery because she observed his lack of physical ability and was concerned that he would not be able to continue working in his profession.

At his deposition, Dr. John Keggi, the plaintiff’s surgeon, testified that he believed that the July 27, 2015 incident accelerated the plaintiff’s need for surgery. When Dr. Keggi performed the revision surgery on the plaintiff, he found that the first hip replacement had resulted in fibrous union (instead of a bony ingrowth onto the cup component of the implant), which make the components loose. Per his testimony, a bony ingrowth is ideal as opposed to a fibrous union because a fibrous union will allow for micro-motion; however, Dr. Keggi testified that patients can tolerate a fibrous ingrowth without the need for revision surgery. Dr. Keggi provided his opinion that the bus accident exacerbated the plaintiff’s symptoms to the point he could no longer tolerate the pain because, until the accident, he had been “successfully deferring” revision surgery. Pl.’s Ex. 6 at 26. Furthermore, Dr. Keggi testified his patients frequently ask about recalled implants, which they are made aware of primarily through television ads, and did not indicate that the plaintiff’s concern was unusual.

The defendant’s expert witness Dr. Michael Leslie indicated that, in his opinion, the shuttle bus accident was not a factor in bringing about the plaintiff’s need for the revision surgery. Dr. Leslie performed a review of the plaintiff’s records, but did not conduct his own examination of the patient. Dr. Leslie noted that his opinion was based on the plaintiff’s records which indicated that he had been experiencing pain in the hip area prior to the accident and subsequent to the revision surgery. Dr. Leslie believed the plaintiff’s pain was serious in nature, given that the plaintiff was prescribed the narcotic pain management medication, Percocet. He testified that, if the medication was being used to treat pain in the hip area at all, even if it was not the sole or primary reason that the plaintiff was using the medication, then the pain the plaintiff experienced prior to the accident was the primary reason for the plaintiff’s need for a revision. However, if there was no hip pain contributing to his symptoms when the plaintiff did take Percocet, Dr. Leslie stated that his use of pain medication would not be relevant.

 

D. Findings
Given the totality of the circumstances and upon careful consideration of all of the evidence and a review of the exhibits, and having afforded appropriate weight and credibility to the testimony of the witnesses, the Court finds that the plaintiff did suffer injuries as a result of the bus accident of 2015. The Court puts more weight on the actual findings of Dr. Keggi after his personal examination of the plaintiff than on the record review of Dr. Leslie.

The Court finds that the plaintiff’s first hip surgery in 2005 was successful and that he was relatively free from pain for about six years. The Court finds that from 2011 to 2015 there was a progression of symptoms as a result of the surgery, but the Court cannot ignore the fact that the plaintiff worked up to the time of the accident and stopped working after the accident. This fact belies the belief that the plaintiff had the same amount of pain in his left hip throughout the years prior to the accident.

The Court agrees with the proposition that whether one has revision surgery depends on the amount of pain that can be tolerated by the patient. Pain that really is debilitating to a patient warrants revision surgery. “Under the eggshell plaintiff rule, the Gaming Enterprise is liable for the proximate results of the Plaintiff’s injury at Foxwoods, even though the consequences are more serious that may have been due to the Plaintiff’s pre-existing disability.” Simeonidis, 6 Mash.Rep. at 90. Taking the medical records as a whole and the testimony of the plaintiff, the Court finds a definite increase in the amount of pain, squeaking and clicking after the accident than before the accident. The accident, therefore, was a substantial factor in the plaintiff needing hip revision surgery.

The Court puts little weight on the plaintiff’s inquiries as to whether or not his implant has been recalled by the manufacturer as evidence that he made a decision to have the revision surgery before the accident. It is reasonable for a person who has a product in his body to be concerned if there is a recall on the product and to constantly inquire about it.

 

IV. DAMAGES

Under the Mashantucket Pequot Tort Claims Law, “[t]he [C]ourt may enter an award for actual damages,” which are defined as “the ascertainable loss of money or property sustained as a result of an injury.” 4 M.P.T.L. ch. 1 §§ 1(g), 4(a). To calculate such a loss, “the [C]ourt ordinarily looks at two questions. First, what are the sums which the plaintiff would have received, but did not receive, as a result of the accident (e.g., lost wages)? Second, what are the sums which the plaintiff paid out but would not have paid out but for the accident (e.g., medical bills)?” Moore v. Mashantucket Pequot Gaming Enterprise, 4 Mash.App. 317 (2005).

The plaintiff incurred medical expenses of $81,482.60. The defendant did not contest these expenses as being causally related to the plaintiff’s revision surgery. The parties are at odds as to the amount of a lost wage claim. The plaintiff’s position is that he was earning at least $1,000 a week, had been out of work for twenty-eight (28) weeks, and therefore he is claiming $28,000 in lost wages. The defendant, on the other hand, claimed the plaintiff declared $25,000 in wages for 2015, the year of the accident, for eleven (11) months. This computes to $2,272 per month, and times seven months is $15,908. The Court will give more weight to the figures shown in Schedule C of the plaintiff’s 2015 tax return, the year in which the accident happened. The plaintiff has not proven by a preponderance of the evidence that his lost wage claim exceeded $15,000. Therefore, the Court finds lost wages in the amount of $15,000.

Non-economic damages may be 200% of the medical specials or actual damages. Between the medical expenses and lost wage claim, the medical specials or actual damages are $96,482. Non-economic damages may not exceed $192, 964 and with the $96,482 in economic damages, the plaintiff’s award could be $289,446. The pain and suffering that the plaintiff experienced from the date of the accident, July 27, 2015, to the time when he was back full time to work, August 2016, is a period of twelve (12) to thirteen (13) months. The Court notes that the plaintiff’s impairment rating is the same as it was before the accident when it was assessed after the 2005 hip replacement surgery. The plaintiff’s pain and associated “clicking” and “squeaking” have improved as a result of the surgery. The plaintiff has not proven by a preponderance of the evidence that he would have future pain and discomfort more than he experiences prior to the accident, or that he would be limited in his activities going forward beyond what his activities were prior to the accident. There is no medical support for future medical expenses or the need of future physical therapy. The Court will therefore award $30,000 for this time period of pain and suffering after the accident.

 

CONCLUSION

Judgment will enter for the plaintiff, John LeTarte, against the defendant, the Mashantucket Pequot Gaming Enterprise, in the amount of $126,482.

BY THE COURT,

All Citations
2019 WL 1398057