06-367RESOLUTION
CITY OF SAINT PAUL, MINNESOTA
Council File # � ^ �
Green Sheet# 3030390
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Presented By
Referred To
Committee: Date
1 RESOLVED, that upon execution and delivery of a release in full to the City of St. Paul the
2 proper City officers are hereby authorized and directed to pay out of the Tort Liability Fund
3 Activity 09070-0511 to Tina Foss, and her attorney, John T. Buchman, the sum of $145,000.00
4 in full settlement of Tina Foss' claims for damages as alleged in the action entitled Tina Foss v.
5 Gary Sidebottom Rc the City of St. Paul, Ramsey County District Court File No. C6-OS-7795.
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Requested by Department of:
BY : ` i
Approved by os Date �—�' ��
By: �
Adopted by Conncil: nate _�.% /� �iJ`l/v
Adoption Certified by Council Secretaxy
Cit Attome
By'
J ues F. .Jerskey
.Y' ' 4
� Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet Green Sheet
DepaRmeMloffice/council: Date Initiated:
O!o-3�y
cA -��.� �,_,�R� Green Sheet NO: 3030390
CaMaet Person 8 Phone: ��etrt Serrt To Person Initial/Date
Jim Jerskey � 0 Attome
2 Assign 1 or'sOiS M o lASSistsut
Mus¢ �e on Council Agenda by (Date): Number 2 oanc' C' Council
t9-ApR-06 For
Routing 3 ' Clerk C' Cler
p� 4
5
6
Total � of Signature Pages _(Clip All Locations for Signature)
, Action Requested:
Approyzl cLf Resolution settling claim of Tina Foss e_ Gary Sidebottom & the City of St. Paul. �
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, Ree��simendaEions: Approve (A) or Reject (R): Personal Service Contracts Must Mswer the Following questions;
�. Planning Canmissiwi 1, Has this personffirm ever worked under a contract for this department? "��
CIB Committee Yes No �
�� `� CivB Servioe Commission 2. Has this personffirm ever been a city employee? � �� -
: "� � ' Yes No
3. Does this persoNfirm possess a skill no[ nortnally possessed by any
� � � cuvent city employee?
' — Yes No
Explain all yes answers on separete sheet and aNach to green sheet
lni4SaEleg Pso6lsm, lssues, Opportunity (Who, What, When, Where, Why):
The plainti� Tina Foss, a 35-year-old woman, was reaz-ended in a motor vehicle accident on 5/28/02 by a City-owned vehicle driven by
Pazks employee Gary Sidebottom. She eventuallyunderwent anterior/posterior lumbar spinal fusion. She has incucred medical expenses
. in excess of $157,000 and may need, addirional surgery. Foss also has ongoing wage loss and claims an impaired earning capacity.
' AdvantageslfApproved:
The lirigation is resolved on terms acceptable to the City of St. Paul.
DisasEvantages If Approved:
None.
Disati��Mapes If Nat Approved: � -
The iawsiiit will continue to trial where the Ciry fices the risk of a verdict in excess of its statutory limits.
- ""`�'�o9aYAeiYoom oi " 145000 CosURevenue Budgetetl: y �
. ' ' Transactiore .�!� - - . '
Funding Source: Tort Liability Fund ActivitY �dumber: �,ga� �r���!°�S C��"3�°
Financial information;
(ExPlain) APR � � 2Q06
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)ames 7erskey - Settlement of Foss v. Sidebottom & City of St. Paul
From: ]ames ]erskey �
To: Council_Members_& Aides �
Date: Friday, Ap�il 07, 2006 5:17 PM jf��
Subject: Settlement of Foss v. Sidebottom & City of St. Paul ��
CC: Choi, John; Mulholland, Ann; Villaume, Frank
Dear Council Members and Aides:
On April 5, 2006, the City Attorney's Office attended court-ordered mediation in the state
court case of Tina Foss v. Gary Sidebottom and City of St. Paul, a personal injury aetion
arising from a traffic accident involving a City-owned truck. The parties have reached a
ientative settlement in the amount of $145,000.00. The purpose of this memo is to provide
you with the factual background and the rationale for settlement, and to respond to any
questions you may have before the matter is brought on for Council approval on April 19,
2006.
On May 28, 2002, Sidebottom, a Parks employee, was driving a Ford F-250 pickup
eastbound on 7th Street when he stopped for the light at the intersection of Johnson
Parkway. The vehicle ahead of him was driven by the Plaintiff, Tina Foss. Just as the light
turned green and tra�c resumed eastbound, Sidebottom momentarily looked down to
sneeze. By the time he looked back up, traffic had unexpectedly stopped and it was too late
for him to avoid striking Ms. Foss' vehicle.
Ms. Foss complained of low back pain, left leg pain, neck pain, upper back pain along with
right wrist pain. She consulted with a family physician and began treating with a chiropractor.
An MRI taken 60 days after the accident revealed herniating discs at two locations in the
lower back and three-level degenerative disc disease in her lumbar spine. Significantly, the
MRI showed nerve impingement that had not been detected prior to the accident.
In September, 2004, Ms. Foss underwent an anterior/posterior lumbar spinal fusion. This
surgery entailed an incision in the abdomen through which a disc was removed and a bone
graft was placed in its stead. A separate incision was then made in Ms. Foss' back to screw a
pfate into her spine to keep it stable foflowing the graft. The procedure commonly causes a
large amount of trauma to the muscles, a long hospital stay, and a fair amount of blood loss.
She has not yet been released by her doctor to return to work. Her chiropractor and surgeon
are of the opinion that she suffered permanent injury as a result of the accident on May 28,
2002. Her medical costs to date are $154,908.83. Ms. Foss' surgeon has indicated she will
continue to incur medical costs, and may require additional back surgery at a cost of
$26,000.00.
Ms. Foss also retained a bio-mechanical engineer, who rendered an opinion that, although
the impact occurred at a low speed (causing $724.00 in damage to Foss' vehicle), the force of
impact was sufficient to give rise to the injuries described by the doctors.
At the time of the accident, the Plaintiff was 31 years of age with a life expectancy of 48
years. She was employed full-time as a medical transcriber/scheduler for Health Partners.
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She was also earning approximately $29,000 per year. Foliowing the accident, she worked
reduced hours. Records indicafe there are approximately $22,000.00 in lost wages. A
vocational rehabilitation expert opined that Ms. Foss has suffered diminished employment
potential and a reduced eaming capacity. He projected future wage loss ranging from
$59,436.00 to $191,540.00.
Ms. Foss' medical and disability carriers have asserted subrogation cfaims for benefits paid.
The City Attorney's Office retained experts who have provided opinions that dispute the
conclus+ons offered by Ms. Foss' experts. Fo� instance, an orthopedic surgeon performed an
independent medical evaluation on Ms. Foss. He noted preexisting degenerative disc
disease and concluded that the current medical condition preexisted the accident. A
mechanical engineer retained by the City ran a computer simulation based on the facts
described by the parties at their depositions. The simulation indicated that the stresses
existing at the time of impact were below the thresholds for predicting injury to an ordinary
person. A vocational rehabilitation expert opined that Ms. Foss could be gainfully employed
and that she would not necessarily experience any additional wage loss.
However, none of the City's experts were able to rule out the possibility that this particular
accident exacerbated the preexisting condition to the point that it ultimately necessitated the
back surgery and the related wage loss. This is significant because, under Minnesota law, a
jury could be instructed to find against the City if the greater weight of evidence showed that
the accident aggravated the preexisting condition in any way. This law stems from the
"eggshell skull rule" - a legal doctrine used in tort law holding an individual liable for all
consequences resulting from his or fier activities that lead to the injury of another person,
even if the victim suffers unusual damages due to a preexisting vulnerability or medical
condition.
Prior to mediation, our office conferred with outside consulYants and concluded that a
settlement for $150,000.00 would be in the City's best interest. Following a day-long
mediation, the case settled for $145,000.00, inclusive of past and future subrogation claims.
Our office recommends Council approval.
If I can answer any questions for you, please don't hesitate to contact me.
James F,X. Jerskey
Senior Assistant Saint Pauf City Attorney
Litigation Section
15 W. Kellogg BLVD, Suite 750
Saint Paul, MN 55102
iames.L rskey(c'ilci.st�aul. m n.us
651-266-8757 (direct)
651-266-8787 (fax)
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