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Costantin v. Fadel

Superior Court of Maine, Cumberland

February 3, 2017




         Jury-waived trial on plaintiff's complaint was held on January 4, 2017. Plaintiff appeared with her attorney. Defendant did not appear; her attorney did appear and stated he was unable to contact his client. Defendant's sister, Hind Fadhil, testified at trial that defendant was in Iraq on the day of the trial. No further explanation about defendant's absence was offered and no motion to continue was filed or made orally at trial.

         Plaintiff seeks damages for past medical expenses, past and future pain and suffering, emotional distress, loss of enjoyment of life, and permanent injury. For the following reasons, judgment is entered in favor of plaintiff and against defendant. Facts

         Plaintiff and defendant are friends. Plaintiff lives in South Portland and defendant lives with her parents in Portland. Defendant visits plaintiff and sometimes stays with her.

         On June 1, 2013, plaintiff, then 41, was a passenger in the front passenger seat of an Infinity motor vehicle operated by defendant. The two were en route to Chicago from Portland for a vacation and a visit with plaintiff's family. Plaintiff was wearing a seat belt and was asleep at the time the motor vehicle collided with a deer near Buffalo.

          The motor vehicle was traveling 67 or 68 miles per hour in a 65 mile per hour zone. According to defendant's signed, authenticated statement and her deposition testimony, defendant saw a deer standing in the road at least one hundred feet from defendant's position. She believed the deer would run away so she continued driving and did not slow down. When she realized the deer was not moving, she slammed on her brakes but hit the deer with significant impact. Ten seconds elapsed from her first sight of the deer until impact. (Pl.'s Ex. 1; Pl.'s Ex. 7 6, 8, 10, 13-14.) The headlights and the entire front section of the car were damaged. Contrary to the advice of the police, defendant continued driving the car to Chicago, where it was repaired.

         Plaintiff awakened at impact and heard defendant screaming. Plaintiff's back hit the car door. Defendant saw plaintiff's whole body moving and bouncing to the front and back. (Pl.'s Ex. 7 15.) Defendant called the police and the two waited in the car for the police to arrive, approximately ten minutes later.

         Defendant apologized to plaintiff. Defendant stated she was unable to do anything in the ten seconds between when she saw the deer and the impact. Plaintiff was fearful and in pain as a result of the accident. Plaintiff was tired and in slight pain when they reached Chicago but the pain worsened. She did nothing while in Chicago. She did not seek medical attention in Chicago because she receives free care in Portland and that was not available in Chicago. The parties shortened their trip and returned to Portland.

         During the return trip, plaintiff had back pain and did not feel well. Her family members had given her pain medicine. Many stops were made on the trip home. She sought treatment a day or two after her return to Portland. She had back and leg pain with the back pain identified as a nine on a scale of one to ten with ten being the most severe pain.

          Plaintiff was seen at Maine Medical Center on June 18, 2013 and several times thereafter. She complained of low back pain and was prescribed medicine. (Pl.'s Ex. 3.) She had two physical therapy sessions. (Pl.'s Ex. 3.) An MRI on November 20, 2013 revealed noncompressive disc bulge at L4-5. (Pl.'s Ex. 4.) She last saw Dr. Binnette at Orthopedic Associates on May 22, 2015. (Pl.'s Ex. 5.) He prescribed medicine, which did not help with the pain. She was advised that nicotine has been shown to age discs of the lumbar spine prematurely and was advised to cease use of nicotine products. (Pl.'s Ex. 5.) She continues to smoke and is not interested in stopping. She has not seen a doctor since May 2015 because the treatment did not help and she could not afford the expenses.

         Since the accident of 2013, plaintiff is always tired. She used to run, work out, and play volleyball; she no longer engages in these activities. (Cf. Pl.'s Ex. 5 1.) She cannot sleep for more than five hours and sleeps in a sitting position. The pain and inability to exercise has made plaintiff sad and upset.

         Plaintiff has not had a day with no back pain since the accident. On the day of trial, she identified her pain as a seven, which is the least pain she has had in her back and leg since the accident. The back pain consistently expands to her leg as well. Her pain increases if she lies down, sits down, or walks for too long a period.

         In 2011, plaintiff fell down at work and had back pain, which resolved after a few days. (Pl.'s Ex. 6 1.) She suffered back pain and a shoulder injury as a result of a previous car accident in 2012. She was prescribed pain medicine and attended physical therapy for her shoulder. Plaintiff recalled she had no leg pain and very slight intermittent back pain before the accident, although the Maine Medical Center records show she was diagnosed with disc problems with radiculopathy. (Pl.'s Ex. 6 1.) Dr. Lawrence Leonard questioned this diagnosis. Plaintiff agreed she had back pain in 2011 and 2012. (Pl.'s Ex. 6 1.) The back pain resulting from the 2012 accident decreased and resolved, although the shoulder pain persisted. Plaintiff never sought treatment for lower back pain until after the traumatic injury to her back in 2013. She had no back pain when she left Portland for Chicago in June 2013.

         When she first arrived in America, plaintiff worked as a house painter and farmer, physical work she could not now perform. She currently works as a personal care worker for United Health Care, as she did before the accident, because she needs a job. She previously was able to buy groceries, lift things, and walk with patients for a period of time but can no longer do those things. She ...

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