The plaintiff, age thirty-seven, had previously undergone three back surgeries, including a three-level lumbar fusion. He underwent a functional capacity evaluation (FCE) in July 2001, which was the final test before he would be allowed to return to work. The FCE was performed under the supervision of the defendant, an occupational therapist. It took about two and one-half hours to complete. During the FCE the defendant instructed the plaintiff to pull a sled with 170 pounds of weight on it. As the plaintiff pulled the sled, he claimed that he sustained a herniated disc at L2-3 which was diagnosed in December 2001. The plaintiff required a discectomy at L2-3 an the implantation of a spinal cord stimulator.

The plaintiff claimed that the defendant was negligent in instructing the plaintiff to pull too much weight and in failing to gradually increase the amount of weight during the evaluation.

The defendant claimed that the plaintiff only suffered a back strain during the exam and that his pre-existing injuries and spinal fusion accounted for all of his ongoing symptoms. The neurosurgeon who had performed the previous lumbar fusion settled for $1.7 million. The medical center and the occupational therapist were both named.  A $3,363,000 verdict was returned against the medical center and the occupational therapist. The verdict was not to be set-off by the prior settlement. Post-trial motions were pending.