On December 13, 1999, then 40 year old Terry Olmstead was employed as a shift manager by Pizza Hut of America, Inc.’s franchisee in Chittenango, New York (near Syracuse). While working in the kitchen near a metal work table, Ms. Olmstead received a severe electrical shock when she touched the table surface.
Treated at an urgent care center and a hospital that day and the next, Ms. Olmstead claimed that the shock caused all kinds of pain and disability, especially neck pain, and that as a result she was unable to work for the next month. She returned for three weeks but was unable to continue, left her position and then claimed permanent disability.
Here is a portion of her Bill of Particulars in the ensuing lawsuit, Olmstead v. Pizza Hut of America, Inc. (Supreme Court, Madison County; Index # 1930-02). Various injuries were set forth in the bill of particulars but by the time of trial the main injury claims were:
- cervical spinal cord and nerve root sprain, strain and pain
- complex regional pain syndrome (RSD)
Plaintiff’s attorneys had difficulty identifying the party responsible for the allegedly defective electrical installation and delayed filing suit until December 13, 2002, one day before the statute of limitations was to expire. In 2006, the electrical contractor they sued obtained an appellate court dismissal of the suit against it.
Pizza Hut remained the only defendant but for the second time the case was delayed for several more years because Pizza Hut did not comply with court orders requiring it to disclose information and produce for deposition a witness who had knowledge of the electrical system and its installation.
Pizza Hut could not find anyone to testify as to whether the ground fault circuit interrupter (GFCI) was defective. Modern electrical systems require GFCIs in the form of either outlets or breakers in order to protect people from electrocution.
In April 2009, an appellate court upheld the trial judge’s order granting plaintiff’s motion to sanction Pizza Hut for its willful failure to comply with discovery demands. Thus, liability against Pizza Hut was established and the trial would address damages only.
Finally, in August 2009, the damages only trial was held. After extensive medical testimony, including three physicians for the plaintiff and two for the defendant, the jury found that Ms. Olmstead was entitled to a mere $2,500 for her pain and suffering (all past).
Plaintiff appealed, claiming that the damages award was grossly inadequate for a case involving complex regional pain syndrome (RSD, or reflex sympathetic dystrophy).
RSD is a chronic, painful and progressive neurological condition that affects the skin, muscles, bones and joints. Its pathophysiology is controversial and there are no widely accepted diagnostic tests for it. Nonetheless, when jurors are convinced that a plaintiff suffers greatly from causally connected RSD, very significant pain and suffering verdicts are rendered and upheld on appeal (for example: $3,100,000 – wrist, $3,500,000 – hip and $950,000 – ankle).
The appellate court, though, in Olmstead v. Pizza Hut of America, Inc. (3d Dept. 2011), upheld the jury’s mere $2,500 pain and suffering verdict noting that:
- there was sharply conflicting medical evidence as to the plaintiff’s injury and the cause of her current complaints
- plaintiff had significant preexisting injuries
- plaintiff was dishonest about her prior condition and her current limitations
There’s more, a lot more, to what caused the jury to award such a small amount for pain and suffering and the appellate court to sustain it. Here are the missing details:
- In 1989, ten years before this incident, plaintiff sustained traumatic neck pain, headaches, face tingling and numbness and tingling in her arm when she was thrown into a swimming pool on her head. She was treated for these conditions by several doctors that year and the next.
- Plaintiff did not disclose details of the prior accident and treatment to her treating and testifying neurologist in this case (other than to tell him that her symptoms had not lasted very long).
- Six months before the current accident, plaintiff treated with a doctor for tingling on her face for two weeks along with neck pain and headaches.
- At trial, plaintiff was caught in a very serious lie with respect to her bowling activities – she testified that she used to bowl before this incident but that she last bowled in December 1999 because of her new injuries. In fact, she had been bowling regularly since 2003.
- Plaintiff’s main argument on appeal was that the trial judge should not have allowed the jury to consider the defense that plaintiff’s preexisting injuries were the cause of any current or future complaints of pain or disability. Plaintiff contended that the preclusion order partially striking defendant’s answer barred any defense related to preexisting injuries.The bulk of plaintiff’s brief on appeal was devoted to this losing position.
- Plaintiff’s main treating and testifying doctor was Pieter Kark. She treated with him from March 2000 through October 2003. By the time of trial, Dr. Kark admitted that he lost his license to practice medicine due to findings of professional misconduct (here is the latest of three orders issued against Kark by the New York State Board for Professional Misconduct). Kark also admitted at the trial that he had not practiced since November 2004.