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Olga E. Salgado v. Ed Shults of Warren

June 9, 2011

OLGA E. SALGADO, PLAINTIFF,
v.
ED SHULTS OF WARREN, INC., DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District Judge.

MEMORANDUM OPINION

Pending before the Court is the Plaintiff‟s renewed motion for judgment notwithstanding the verdict or in the alternative for a new trial. ECF No. 65; FED. R. CIV. P. 50(b); FED. R. CIV. P. 59(a). In this case, the Plaintiff contended that she suffered serious injuries when she was struck by a vehicle operated by an employee of Ed Shults of Warren, Inc. ("Ed Shults") while standing in its parking lot. The case was tried to a jury between September 1, 2010 and September 7, 2010. Special Interrogatories were submitted to the jury. The jury concluded that the Plaintiff had proven by a preponderance of the evidence that Ed Shults, by virtue of the conduct of its agent, was negligent, but further concluded that the Plaintiff had failed to prove that the Defendant‟s negligence was a "factual cause in bringing about her injury."

For the reasons that follow, the Court will deny the motion for judgment as a matter of law and grant the Plaintiff‟s motion for a new trial.

I. TRIAL RECORD

Plaintiff Olga E. Salgado ("Salgado"), a citizen and domiciliary of New York, was employed by Enterprise Rent-A-Car ("Enterprise") from January 5, 2004, through January 2, 2008. ECF No. 72-1 at 48; ECF No. 73 at 19. As an Enterprise employee, Salgado was required to travel to different destinations in order to accommodate the needs of individuals who needed to rent vehicles. ECF No. 72-1 at 48-49. Defendant Ed Shults of Warren, Inc. ("Ed Shults"), is a business entity located in Warren, Pennsylvania. ECF No. 1 at ¶ 1. Ed Shults engages in the business of repairing damaged vehicles.

At around 4:00 P.M. on July 26, 2005, Salgado traveled to the business premises of Ed Shults in order to deliver a Ford Expedition to a customer whose own vehicle was being serviced by Ed Shults personnel. ECF No. 72-2 at 1-3. She parked the Ford Expedition next to Ed Shults‟ service entrance and entered its office. ECF No. 72-2 at 5-7. The customer informed Salgado that she needed to retrieve some of her personal belongings from her vehicle. Salgado followed the customer outside for the purpose of familiarizing her with the features of the Ford Expedition vehicle. ECF No. 72-2 at 7. Salgado stood behind a parked Oldsmobile Bravada as she waited for the customer to move her belongings into the Ford Expedition. Id. The Oldsmobile Bravada was missing an outside mirror on the driver‟s side. Tr. at 81. Samuel Baughman ("Baughman"), a mechanic employed by Ed Shults, was instructed to put a new outside mirror on the driver‟s side of the Oldsmobile Bravada. ECF No. 72-1 at 31. Baughman entered the Bravada, placed it in reverse, and began to back up in order to move it to an area where the missing mirror could be replaced. Id. As he was so doing, the rear end of the Bravada struck Salgado on the buttocks and knocked her to the ground. ECF No. 72-1 at 32; ECF No. 72-2 at 11. Baughman stopped moving the vehicle once he realized that Salgado had been hit. ECF No. 72-1 at 32.

Ed Shults personnel raised Salgado to her feet and placed her in a wheelchair. ECF No. 72-2 at 11. Salgado was later moved into the office. Shortly thereafter, an ambulance arrived and transported Salgado to Warren General Hospital. ECF No. 72-2 at 11-12. Her neck was immobilized by a collar during the trip to the hospital. ECF No. 72-2 at 12. Salgado was released from the hospital later that day, after undergoing a series of x-rays and computed tomography ("CT") scans. Id. She was provided with medications to ease her pain and instructed to seek follow-up care with her primary care physician. ECF No. 72-2 at 12-13. Salgado did not return to work until October 2005. ECF No. 72-2 at 15. She received medical treatment from Dr. Randall Swanson, an orthopedic surgeon, during the intervening period of time.*fn1 Id.

Subsequent treatment failed to fully alleviate Salgado‟s pain. Salgado‟s chiropractor referred her to Dr. James Egnatchik, a neurosurgeon. ECF No. 72-2 at 18. Dr. Egnatchik first examined Salgado in March 2006. ECF No. 73-2 at 13. Salgado complained of pain in her lower back that was radiating into her left leg. ECF No. 73-2 at 15. She attributed this pain to injuries resulting from the accident. ECF No. 73-2 at 14-15. A magnetic resonance imaging ("MRI") scan revealed that Salgado had an osteophyte (i.e., a bone spur) pressing against a nerve in her back. ECF No. 73-2 at 17.

Salgado returned to Dr. Egnatchik‟s office in September 2006. ECF No. 73-2 at 19. After conducting a discogram, Dr. Egnatchik determined that Salgado would be a good candidate for a foraminotomy. ECF No. 73-2 at 20. The procedure was performed on October 17, 2006. ECF No. 73-2 at 21. Dr. Egnatchik testified that the objective of the foraminotomy had been to decompress the osteophyte that had been pressing against a nerve in Salgado‟s lumbar spine. ECF No. 73-2 at 17. He further explained that Salgado‟s lumbar spine had been fractured and that the osteophyte had formed while the fracture was healing. ECF No. 73-2 at 17-18. A month after the surgery, Salgado reported that the pain in her leg had decreased by 50%. ECF No. 73-2 at 21. She did not work in the immediate aftermath of the surgery. Id.

On January 24, 2007, Dr. Egnatchik cleared Salgado to return to work on the condition that she not engage in any "car prepping." ECF No. 73-2 at 21-22. Salgado was told to return in three months for a follow-up appointment. ECF No. 73-2 at 22. When Salgado returned to Dr. Egnatchik‟s office on April 26, 2007, she was instructed to attend physical therapy sessions two to three times per week. ECF No. 73-2 at 22.

Salgado continued to receive treatment from Dr. Egnatchik. On July 20, 2007, she expressed the view that her physical therapy sessions had caused her condition to worsen. ECF No. 73-2 at 23. Although Salgado had prescriptions for Lortab and Flexeril, she was only taking them at night because taking them during the day would inhibit her ability to function at work. Id. An MRI scan was conducted to rule out infections. ECF No. 73-2 at 24. The scan revealed that Salgado had experienced degenerative changes. Id.

An epidural steroid injection was administered to Salgado‟s back in September 2007. ECF No. 73-2 at 24-25. The injection did not improve her condition. Id. On October 8, 2007, Salgado stated that her pain had actually increased in the immediate aftermath of the injection. ECF No. 73-2 at 25-26. Dr. Egnatchik recommended that Salgado stop working, and she followed his advice. ECF No. 72-2 at 24-26. Enterprise terminated Salgado‟s employment on January 2, 2008, because it could no longer hold her job open. ECF No. 73 at 19.

A discogram performed on Salgado in May 2008 revealed that she was suffering from annular tears in some of her discs and other abnormalities in her facet joints. ECF No. 73-2 at 27. At Dr. Egnatchik‟s direction, Salgado underwent a lumbar fusion and decompressive laminectomy on August 22, 2008. ECF No. 73-2 at 28. During the course of the surgery, Dr. Egnatchik discovered that the nerves on both sides of Salgado‟s spine were under pressure from a significant form of stenosis. Id. The laminectomy was designed to relieve that pressure. Id. Staples and stitches were removed from Salgado‟s skin on September 3, 2008. ECF No. 73-2 at 30. One week later, Salgado was able to ambulate with the assistance of a walker. Id. Salgado returned to Dr. Egnatchik‟s office for a follow-up appointment on November 10, 2008. ECF No. 73-2 at 31. Although Salgado continued to experience some pain in her lower back and left leg, she informed Dr. Egnatchik that the surgery had improved her condition. Id. She was given Valium to relax her muscles and Percocet to control her pain. Id. Dr. Egnatchik observed that Salgado‟s spinal bones were "maturing" and that no signs of "instrumentation failure" were present. Id. As of February 10, 2009, Salgado was still experiencing discomfort and stiffness in her back. Id. Nonetheless, she was able to walk without the assistance of a cane or crutch. ECF No. 73-2 at 31-32.

X-rays of Salgado‟s back taken on November 12, 2009, revealed that her recovery from surgery was proceeding in a normal manner, and that no evidence of "instrumentation failure" was present. ECF No. 73-2 at 32-33. Nevertheless, Salgado continued to complain of chronic pain in her lower back and "numbness and tingling" in her left leg. ECF No. 73-2 at 32-33. Dr. Egnatchik recommended that Salgado undergo another MRI scan. ECF No. 73-2 at 34.

The MRI scan recommended by Dr. Egnatchik was conducted in March 2010. ECF No. 73-2 at 34. The scan revealed that Salgado‚Äüs bones and screws were in place, and that no infections were present. ECF No. 73-2 at 34-35. At that time, Salgado asked Dr. Egnatchik for permission to return to work, as she had secured a position as a Spanish-speaking typist for the Chautauqua County Department of Social Services ("Department"). ECF No. 72-2 at 35-36. Dr. Egnatchik cleared Salgado to work, based on his understanding that she would be afforded an ...


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