MILLS JUSTICE SUPERIOR COURT
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...