vehicle approaching and could have avoided the accident.
This argument must be rejected. Plaintiff conducted herself in a safe and cautious manner in coming to a full stop at the stop sign and in stopping her car when she saw the government vehicle approaching. There is no evidence that she was speeding, came to an incomplete stop or failed to look before proceeding through the intersection. Even if she had seen the government vehicle earlier in the chain of events, she could have reasonably assumed that it would have stopped at the stop sign.
Accordingly, I find that the plaintiff was not negligent, and that the only proximate cause of the motor vehicle accident was Agent Culhane's negligence.
2. LUMBAR AND CERVICAL STRAIN.
As to the lumbar and cervical strain, the witnesses at trial differed in their assessment of this condition. Clearly, the plaintiff did receive a whiplash type injury in the accident. This is confirmed in the emergency room records, which show cervical and lumbar muscular spasms. Dr. Sielski, the internist who treated the plaintiff from 1992 through the present, testified that the plaintiff continues to suffer to this day from chronic muscular and cervical and lumbar syndrome caused by the motor vehicle accident. He gave the opinion that this was a permanent injury and would preclude the plaintiff from returning to work. In contrast, a neurologist called by the defense, Dr. Margaret Paroski, testified that the plaintiff did sustain a lumbar and cervical whiplash injury as a result of the accident but that she had recovered as of June 19, 1992 (the date of Dr. Paroski's examination) without permanent injury. Although plaintiff continued to seek treatment to the current date, Dr. Paroski stated that this was not necessary and was not medically indicated. Dr. Collard, an orthopedist, confirmed this testimony.
I find that the defense position is more credible on this point. Dr. Sielski is not an orthopedist and did not seek out other specialists to assist him in treating this pain syndrome. According to both Dr. Collard and Dr. Paroski, the plaintiff's range of motion in her spine and neck were normal, which would not be expected if she had disabling back or neck pain. It is more likely, given the plaintiff's psychiatric diagnosis, that the pain she now reportedly suffers in her neck and back is merely another manifestation of her somatoform disorder. This does not mean the pain is not real to the plaintiff, only that its degree of severity, especially five years after the accident, is disproportionate compared to the initial physical injury.
Accordingly, I find that the plaintiff suffered a neck and back sprain as a result of the accident but that this condition, in and of itself, was not disabling as of June 1992.
Defense counsel argues that the plaintiff's somatoform disorder was triggered by other stressful events in her life, not by the motor vehicle accident. Specifically, the government points to Janice Stiller's therapy notes reflecting problems with plaintiff's son Alex, with her job and with working through memories of childhood sexual abuse.
This argument is not supported by the medical record. Every doctor who testified about plaintiff's psychiatric condition stated that the motor vehicle accident either caused the psychiatric deterioration or aggravated a pre-existing psychiatric condition. According to the psychiatrists' testimony, plaintiff had a pre-existing personality disorder and a predisposition toward depression, but was able to cope until the accident. They each identified the accident as the event that precipitated a chronic somatoform disorder or schizo-affective disorder which was totally disabling. This included Dr. Dickinson, the psychiatrist called by the defense.
The doctors testified that they associated this psychiatric reaction with the accident because plaintiff repeatedly verbalized her strongly held belief that she had suffered brain damage in the accident. In addition, plaintiff related feelings of extreme anxiety generated by the look on Agent Culhane's face prior to the accident and by his aggressive and accusing manner afterward.
The law is well-established that the defendant must take a plaintiff as he or she finds her and hence may be liable for damages for aggravation of a pre-existing illness or for precipitation of a latent condition. See, e.g. Tobin v. Steisel, 64 N.Y.2d 254, 485 N.Y.S.2d 730, 475 N.E.2d 101 (1985) (recovery allowed for psychological injuries precipitated by explosion), McCahill v. NY Transportation Co., 201 N.Y. 221, 94 N.E. 616 (1911) (wrongful death recovery allowed where injury to thigh and knee precipitated delirium tremors causing death), Evans v. S. J. Groves & Sons Co., 315 F.2d 335, 346-349 (2d Cir. 1962) (recovery allowed after thrombosis of sinuses triggered by blow to head), "A A" v. State, 43 Misc. 2d 1004, 252 N.Y.S.2d 800 (N.Y. Ct. Cl. 1964) (awarding damages where slight physical injury aggravated and exacerbated pre-existing condition producing schizophrenia); Steinhauser v. Hertz Corp., 421 F.2d 1169 (2d Cir. 1970) (new trial ordered where jury held that plaintiff could recover only if accident alone produced schizophrenia, as opposed to triggering schizophrenia), Bartolone v. Jeckovich, 103 A.D.2d 632, 481 N.Y.S.2d 545 (4th Dep't 1984) (recovery allowed for aggravation of pre-existing paranoid schizophrenic condition).
Given the strong medical evidence from both parties establishing causation, I find that plaintiff's emotional problems were caused by the accident.
All of the medical doctors agreed that the plaintiff was not malingering in that she was not intentionally exaggerating her symptoms. Rafael Javier, a clinical psychologist, ruled out malingering by using standardized psychological tests, including the Minnesota Multifaceted Personality Inventory. Dr. Mostert testified that plaintiff's functioning at home was inconsistent with malingering, and that the plaintiff was functioning at such a low level emotionally -- like a child -- that she was not capable of that type of deception. Dr. Paroski testified that the plaintiff was not consciously exaggerating her symptoms but rather unconsciously doing so, as in a conversion order or somatoform disorder. Dr. Dickinson also at no time suggested that the plaintiff was purposefully exaggerating her symptoms.
The government nevertheless argues that the plaintiff's interest in secondary gain and in getting attention caused her to exaggerate her physical and emotional maladies. I fail to understand the difference between this alleged lack of credibility and malingering. Having observed the plaintiff's demeanor at trial, and given the long period of time that has now elapsed since the accident, I find it unlikely that the plaintiff is attempting to deceive the court or her many health professionals by exaggerating her symptoms -- at least not on a conscious basis.
Accordingly, I reject the government's argument that the plaintiff exaggerated her symptoms in order to improve her position in this lawsuit.
5. LIKELIHOOD THAT DETERIORATION WAS UNAVOIDABLE.
In response to the plaintiff's claim that the auto accident was the precipatory cause of her psychological deterioration, the government argues that plaintiff should not be awarded any damages because she was likely to deteriorate in any event. The government cites Steinhauser v. Hertz Corp., supra, 421 F.2d at 1173, in which the court stated:
Although the fact that [the plaintiff] had latent psychiatric tendencies would not defeat recovery if the accident was a precipatory cause of schizophrenia, this may have a significant bearing on the amount of damages. The defendants are entitled to explore the probability that the [plaintiff] might have developed schizophrenia in any event. While the evidence does not demonstrate that [the plaintiff] already had the disease, it does suggest that she was a good prospect. Judge Hiscock said in McCahill v. N.Y. Transporation Co., [201 N.Y. 221, 94 N.E. 616 (1911)] 'it is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages but it is not a defense.'