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HOGE BINDING ARBITRATION BRIEF |
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Gregory
Reeve-Wilson SB# 90828 Attorney for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA |
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JOHN
H. HOGE, |
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CASE NO. 727797 PLAINTIFF'S ARBITRATION Date: October 26, 1994
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TABLE OF CONTENTS INTRODUCTION.........................................Page
1 INTRODUCTION As a result of a rear end highway automobile accident, the plaintiff, Mr. Hoge, has a permanent ringing in his right ear. While the defense is asserting that there is a question of causation, the main issue in this arbitration concerns the amount of damages Mr. Hoge should be awarded for a life long ringing in his ear. FACTS Ms. Keene, the defendant in this case, described how she injured Mr. Hoge, the plaintiff, in the following manner: "My vehicle was behind plaintiff's vehicle. My vehicle was slowing from 40 m.p.h. and the plaintiff's vehicle was stopped. I hit my brakes and slowed to approximately 15 m.p.h.. The plaintiff's vehicle was stopped." After Ms. Keene's car hit the rear of Mr. Hoge's car at 15 m.p.h., Mr. Hoge was violently jerked backward in the seat of his car. He suffered a neck strain injury which caused a ringing in his ears. MEDICAL TREATMENT The day
after the accident, January 17, 1992, Mr. Hoge saw his chiropractor Dr.
Richard Kidd, complaining of neck pain . Dr. Kidd diagnosed Mr. Hoge with
cervical strain and started a brief series of adjustments to treat this
strain. Dr. Kidd treated Mr. Hoge conservatively with a total of nine
adjustments, for a total bill of $511.00. On June
17, 1992, Mr. Hoge saw Dr. Alan J. Nissen, M.D., F.A.C.S., of the California
Ear Institute. He told Dr. Nissen that he had a ringing in his ears since
his car accident and that this ringing disturbed his sleep and made it
difficult for him to concentrate at work. Dr. Nissen diagnosed Mr. Hoge
as having tinnitus as a result of the automobile accident and performed
an audiogram, which showed mild, high frequency sensorineural hearing
loss on the right side . Dr. Nissen stated: "I have discussed tinnitus
and its secondary result from the car accident and this mild hearing loss.
At the present time I recommend that we just follow it, as hopefully this
will resolve itself within six to nine months." Mr. Hoge's
tinnitus did not resolve and he saw Dr. Nissen for the last time on February
9, 1993. At that time, Dr. Nissen again told Mr. Hoge that there is no
treatment for tinnitus and that, since the tinnitus had not resolved in
a year, it was probably permanent: "Unfortunately, there is not much
we can do medically or surgically to resolve this situation but since
it has been there at least a year, I presume it is going to stay...".
(Dr. Nissen's total medical bill was $511.00) ISSUES Given the circumstances of this rear end collision, liability is clear. The issues to be decided at this arbitration hearing are: One, was this collision the cause of the ringing in Mr. Hoge's right ear; Two, what is the value of a permanent ringing in the ear? ARGUMENT
RE: CAUSATION Mr. Hoge's tinnitus is the result of the injury he received when his car was rearended by Ms. Keene's car at 15 mph. Mr. Hoge never had any ringing in his ears before this accident. He noticed a ringing in his ears soon after this accident. Both Mr. Hoge's chiropractor, Dr. Kidd and his ear specialist, Dr. Nissen, unequivocally state that, in their expert medical opinion, the accident of January 17, 1992 caused Mr. Hoge's tinnitus. Dr. Nissen: Dr. Nissen, MD, F.A.C.S. is a doctor who specializes in treatment of the ear, and a partner in the California Ear Institute in Palo Alto; in 1991, he was a Clinical Assistant Professor of Otolaryngology at Stanford. In his deposition, Dr. Nissen was asked by defense counsel for his opinion of the cause of Mr. Hoge's tinnitus: Q In your opinion, based on all the facts that you know, is it your opinion that John Hoge received tinnitus from this -- from the automobile accident January of '92 and can you say that with a reasonable medical certainty? A In my opinion, medical certainty being greater than 50%, I can say that. Dr. Kidd: Dr. Kidd, in his letter of October 17, 1994, states that it known that a whiplash injury can cause tinnitus: "The precise cause of tinnitus in these types of trauma (acceleration/deceleration trauma) are unknown, however findings show it to be the possible after effects of CNS injury, as well as sympathetic nervous system injury." Dr. Kidd concludes: "Therefore it would be my opinion that the auto accident of 1/17/92 is the sole cause of his (Mr. Hoge's) tinnitus symptomatology." Both Dr. and Dr. Kidd relate Mr. Hoge's tinnitus to the accident based on their experiences with similar cases. Dr. Nissen testified at his deposition that: "I see a lot of patients with tinnitus and a lot of them are due to trauma of some type, including whiplash; and its a fairly common complaint with any kind of head trauma, and I include whiplash in that category of head trauma." Dr. Kidd wrote, in his letter of October 17, 1994, that tinnitus due to whiplash "has been seen in numerous other cases by this office." Defendant's argument: One of the defenses chief arguments that the accident of January 1992 was not the cause of Mr. Hoge's tinnitus is based on the fact that, while Mr. Hoge saw his chiropractor the day after his accident on January 17, 1992, he did not report the ringing in his ears to the chiropractor until February 4, 1992. At Dr. Nissen's deposition, defense counsel asked the doctor about the significance of this time gap several different times. On the first occasion, Dr. Nissen said that Mr. Hoge's failure to report the ringing in his ears would only be significant if Dr. Kidd asked Mr. Hoge if he had a ringing in his ears and he denied it. On the second occasion,
defense counsel was more direct. He asks: A I assume that if he had all these chiropractic problems, he was having some pain and discomfort and maybe couldn't sleep because of the pain or discomfort...And if the pain and discomfort went away and he still can't sleep, well now the ringing here and that's bothering me too. Dr. Kidd's opinion is the same as Dr. Nissen's. Dr. Kidd states, in his letter of October 17, 1994, that: "In my opinion there is no significance to the fact that Mr. Hoge did not report his tinnitus symptoms until approximately two weeks after the initial visit to this office. This is certainly within the accepted time frame for occurrence and reporting of symptoms presented in these types of injuries and has been seen in numerous other cases by this office." IME's opinion: Defense counsel states: "As you can see from Dr. Nickel's report, he concludes that the tinnitus problem is not related to the subject accident." (Defendant's arbitration brief, page 2, lines 7 to 8). This is not correct;
no where in his six page report does Dr. Nickel conclude that Mr. Hoge's
'tinnitus problem is not related to the subject accident.' On page 4 of
his report, Dr. Nickel takes one paragraph to discuss the cause of Mr.
Hoge's tinnitus, but he comes to no conclusion at all. In the paragraph above, Dr. Nickel is reviewing his test findings and posing questions about what they mean. He never comes to any conclusion. When I read this paragraph to Dr. Nissen at his deposition, Dr. Nissen said: "He posed a good question...That's the way I look at that. A question..." I then went on to ask if Dr. Nickel's questions altered Dr. Nissen's opinion that the automobile accident was the cause of Mr. Hoge's tinnitus. Dr. Nissen said 'no' the questions did not change his opinion. The closest Dr. Nickel
comes to stating any conclusion is in the last two sentences in this paragraph.
If I infer that, when Dr. Nickel states: "I find it very hard to
explain how whiplash could cause a unilateral hearing loss, and at only
one frequency.", he really means that, since he can't explain how
whiplash causes unilateral hearing loss, then it must not cause it. This
is an error for two reasons. Second, when an argument asserts that, 'if I do not understand how A causes B, so A must not cause B', the reasoner has committed the logical error of argumentum ad ignorantiam. As Copi points out in his Introduction to Logic "our ignorance of how to prove or disprove a proposition clearly does not establish either the truth or the falsehood of that proposition." In the last sentence of the paragraph above, Dr. Nickel himself attempts to classify plaintiff's argument as a logical fallacy: "post hoc, ergo propter hoc reasoning is very tenuous to any causal relationship to the alleged injury.". He is simply wrong. The 'post hoc' fallacy
is committed when the reasoner draws an obviously wrong conclusion based
solely on temporal succession. The example Copi uses is: "we should
reject the savage's claim that beating his drums is the cause of the sun's
reappearance after an eclipse, even though he can offer as evidence the
fact that every time he beat his drums during an eclipse, the sun reappeared."
ARGUMENT RE: DAMAGES At Dr. Nissen's deposition, defense counsel asked: "Do you expect John Hoge to fully recover?" Dr. Nissen answered: "If it hasn't resolved in a year's period of time, my experience is it will not resolve." sThe principal issue in this case concerns how much Mr. Hoge should be compensated for having a life long ringing in his ear. This ringing causes Mr. Hoge problems with his sleep and it disrupts his concentration at work. The independent medical examiner stated: "It is therefore my medical opinion that his tinnitus is considered to be on the level of an annoyance." This is correct. The
question here is, what are reasonable damages for a life long annoyance
that disturbs a person's sleep and disrupts their concentration at work? As an Apple project manager, Mr. Hoge spends at least four hours of an eight hour day working at his computer terminal or quietly thinking or concentrating. At night, Mr. Hoge is most bothered by the ringing in the hour before he goes to sleep. This adds up to five hours a day that Mr. Hoge would pay at least $1.00 not to be annoyed by tinnitus. If we take this amount Mr. Hoge would be willing to pay not to have the ringing in his ears as the 'reasonable value', and multiply this times the estimated number of days left in Mr. Hoge's life, we arrive at a reasonable value for this life long annoyance. Mr. Hoge is now 28.
According to the life expectancy table in B.A.J.I. , Mr. Hoge can expect
to live 46.3 more years. CONCLUSION $84,497.50 seems unreasonably high for an annoying ringing in one ear, even if it is life long. In an effort to be reasonable, Mr. Hoge requests that the arbitrator award him $50,000.00 in damages. Given the calculations above, this reduces Mr. Hoge's damages from $1.00 per hour to $.59 per hour, or from $5.00 per day to $2.95 per day.
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Respectfully submitted Date: October 25, 1994 |
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Exhibit A, defendant's interrogatory answer 20.8, is attached to show that defendant's car ran into the rear of plaintiff's car while she was slowing from a speed of 40 mph and that she hit the plaintiff's car while she was going approximately 15 mph. Exhibit B, medical report, records and bills of Dr. Kidd, are attached to show first report of and the cause of Mr. Hoge's tinnitus. Exhibit C, Dr. Nissen's report of June 17, 1992, is attached to show that Dr. Nissen found that Mr. Hoge had tinnitus and mild hearing loss as a result of the car accident and that "there is not a lot we can do about this tinnitus." Also attached are hearing test results. Exhibit D, Dr. Nissen's report of November 13, 1992, is attached to show, as with D above, that "there is no known treatment that I know of." Dr. Nissen's bills are also attached to this exhibit. Exhibit E, Dr. Nissen's report of February 9, 1993, is attached to show that, in February of 1993, over one year from the date of the accident, Mr. Hoge was still experiencing a ringing in his ears which kept him awake at night. It also shows that Dr. Nissen has had experience with tinnitus caused by a whiplash accident. It concludes, as D and E above, that there is no cure for tinnitus and that "since it has been there for at least a year, I presume it is going to stay." Exhibit F, Dr. Nissen's deposition. Exhibit G, Independent Medical Examination, is attached to show Dr. Nickel's failure to come to a conclusion re the cause of the tinnitus and for the opinion that: "It is therefore my medical opinion that his tinnitus is considered to be on the level of an annoyance." (at page 4, first sentence of third paragraph). Exhibit H, B.A.J.I.
life expectancy table is attached to show Mr. Hoge's life expectancy. |
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