Cervical Fusion Lawsuit - Case Details Cervical Fusion Lawsuit - Case Details

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18-Wheeler Collision




Jury Verdict



Jury Verdict

Driver underwent two multilevel cervical fusions

Harris County


Rear-ender — Truck

Driver underwent two multilevel cervical fusions






Claudia Murray v. Houston Shutters, LLC and Mario A. Picado, No. 2013-01954


Harris County District Court, 125th, TX


Kyle Carter



Plaintiff Attorney(s)
Eric D. Nielsen, The Nielsen Law Firm PC, Houston, TX
Defense Attorney(s)
Karl D. Drews, Cooper, Jackson & Boanerges, Houston, TX (Justin Lee Johnson (settled))
Bruce C. Gaible, LeClairRyan, Houston, TX (Houston Shutters LLC, Mario A. Picado)
Shannon R. Ramirez, LeClairRyan, Houston, TX (Houston Shutters LLC, Mario A. Picado)
Facts & Allegations

On July 17, 2012, plaintiff Claudia Murray, 55, was in a vehicle stopped at a stoplight on Highway 105 in Montgomery County. Mario A. Picado, operating a truck in the course and scope of his employment with Houston Shutters LLC, rear-ended her. Murray claimed neck injuries. Murray sued Picado for negligently failing to keep a proper lookout, failing to control his speed, following too closely, and failing to brake or turn to avoid the collision.

She sued Houston Shutters on a theory of respondeat superior.

Picado and Houston Shutters stipulated that Picado’s negligence was a proximate cause of the accident, but they disputed the nature, extent and causation of Murray’s injuries.

In addition, Picado and Houston Shutters pointed out that, on Oct. 17, 2012, three months after her accident with Picado, Murray was rear-ended by Justin Lee Johnson. Picado and Houston Shutters argued that Johnson’s negligence was the sole proximate cause of Murray’s injuries, if any, on or after Oct. 17, and they designated him as a responsible third party. Murray then added Johnson as a defendant.

Plaintiff’s counsel argued that Picado alone was responsible for Murray’s injuries or, in the alternative, that he was at least 90 percent responsible.

In November 2014, while represented by her prior attorney, Murray settled with Johnson in mediation for $25,000. The case went to trial on Murray’s claims against Picado and Houston Shutters only.


aggravation of pre-existing condition; fusion, cervical, two-level; hardware implanted; neck; pins/rods/screws

Murray claimed that the Picado accident aggravated pre-existing, age-related degenerative conditions and a previously undiagnosed congenitally small spine.

Most of Murray’s treatment, including two multilevel cervical fusions with placement of steel rods, took place after the Johnson accident.

However, she claimed that she started searching for an orthopedic surgeon to operate on her before the Johnson accident.

Murray claimed that she may need surgery at the level just above or below her most recent surgery.

Her treating neurosurgeon and her retained epidemiology expert opined that the Picado accident was the only proximate cause of Murray’s injuries.

Murray’s paid or incurred medical bills were $225,820.97. In closing, plaintiff’s counsel argued for $220,000 for past medical bills; $250,000 for past physical pain and mental anguish; $250,000 for future physical pain and mental anguish; $250,000 for past physical impairment; $250,000 for future physical impairment; and $25,000 for combined past and future disfigurement. She also sought damages for future medical bills.

The defense argued that the Picado collision was so minor that it could not have caused injuries as severe as Murray was claiming, and that none of the treatment after Oct. 17 was related to the Picado accident.

Further, the bills for her treatment between the Picado and Johnson accidents were a little less than $35,000, and Murray did not have any surgery until after the Johnson accident. Also, the defense medical expert, a neurologist, opined that the surgeries were medically unnecessary.

Defense counsel suggested that the jury award $25,000 for past medical bills; $10,000 to $15,000 for past physical pain and mental anguish; $10,000 to $15,000 for future physical pain and mental anguish; $10,000 to $15,000 for past physical impairment; $10,000 to $15,000 for future physical impairment; and nothing for disfigurement or future medical bills.


The court filled in “yes” on the liability question for Picado. The jury found negligence on Johnson and comparative responsibility of 90 percent on Picado and 10 percent on Johnson. Murray’s damages were $470,000, the jury found.

Claudia Murray
$35,000 past medical cost
$50,000 future medical cost
$50,000 past physical impairment
$125,000 future physical impairment
$5,000 past disfigurement
$5,000 future disfigurement
$100,000 past physical pain and mental anguish
$100,000 future physical pain and mental anguish



$500,000 (day of trial; previously $25,000)


Travelers Property Casualty Corp. for both defendants

Trial Details
Trial Length: 4 days
Trial Deliberations: 4 hours
Jury Vote: 10-2

Murray moved for the jury to disregard the award of medical bills. Several jurors gave affidavits stating that the jury calculated the $35,000 past medical award by adding up the amounts that were still owed and that, if the jury had known of the medical insurers’ right of subrogation, it would have awarded $225,000 in past medical bills. However, the court denied the motion. Plaintiff’s counsel said that, fortunately, the medical insurers settled their subrogation right for part of the $25,000 settlement with Johnson. Picado and Houston Shutters are entitled to a credit for Murray’s $25,000 settlement with Johnson. After applying the credit and adding prejudgment interest of $24,026, the court entered judgment for $469,026.

Plaintiff Expert(s)
Michael D. Freeman, Ph.D., epidemiology, Portland, OR
Shashikant Patil, M.D., neurosurgery, Houston, TX (treater)
Defense Expert(s)
Warren Parker, M.D., neurology, Houston, TX

Editor’s Note: This report is based on information that was provided by plaintiff’s counsel. Picado/Houston Shutters’ counsel did not respond to the reporter’s phone calls. –John Schneider