Liability was stipulated by the defendant non-host driver in this case in which the plaintiff, in her 50s, was a passenger in her son’s car. The plaintiff contended that the defendant’s vehicle struck the host car when it was stopped in traffic. The plaintiff further contended that she suffered a severe lumbar herniation that required fusion surgery. The plaintiff maintained that the surgery was unsuccessful. The plaintiff currently is undergoing a pain management regimen which includes the administration of Methadone. She contended that she will permanently suffer particularly severe pain that will permanently require pain killing medication. The plaintiff also contended that she sustained a closed head injury that will permanently cause cognitive deficits involving a compromise of the plaintiff’s short term memory and concentration. As a result of these injuries, the plaintiff maintains that she will be unable to work. The plaintiff had been a clerical employee for a grocery store. The defendant driver, who denied that the accident caused the herniation, pointed to numerous chiropractic visits in the several year period preceding the accident.
The plaintiff contended that shortly after the accident, she developed severe radiating pain. The plaintiff’s orthopedic surgeon ordered an MRI, which the plaintiff maintained, showed a herniation at L5,S1 that was impinging. The plaintiff contended that despite conservative treatment over the next two years, her condition continued to deteriorate, and the plaintiff followed the advice of her orthopedic surgeon and underwent fusion surgery at this level. The plaintiff testified that the severe pain continued, and that within several months, it became apparent that the surgery was unsuccessful. The plaintiff contended that she then came under the care of the treating pain management specialist, who placed her on a regimen of medications which included Methadone. The plaintiff maintained that she will permanently require pain medication.
The plaintiff also contended that she suffered a closed head injury which caused cognitive deficits involving short term memory and concentration, and which the plaintiff maintained, were confirmed by a battery of neuropsychological tests. The plaintiff asserted that such deficits were permanent as well.
The defendant denied that the accident caused a herniation or need for fusion surgery. The defendant’s orthopedist maintained that it was likely that the plaintiff, who had undergone more than 100 chiropractic visits in the several year period preceding the accident, had suffered the natural progression of degenerative disc disease. The plaintiff who maintained that she had only engaged in such visits to treat everyday aches and pains and that such visits were not prompted by any trauma, also argued that prior to the recommendation for a lumbar fusion, the defendant’s orthopedist, who had been of the opinion that at most, the plaintiff had suffered temporary soft tissue injuries and had indicated that the MRI did not show any signs of degeneration or any other signs that he concluded would support the plaintiff’s claims of extensive pain at that time. The plaintiff argued that the defendant’s orthopedist’s conclusion, following the surgery, that a significant degree of degenerative disc disease was present, should be rejected.
The defendant also presented surveillance tapes. One of the tapes depicted the plaintiff watering her lawn. Another tape showed the plaintiff parking her car in a shopping center at approximately 9:00 a.m. The tape revealed that the plaintiff’s car was not moved until after 3:00 p.m. The defendant argued that when evaluating this evidence, the jury should question the plaintiff’s claims that she cannot work. The defendant also argued that irrespective of this question, the tape showed that the plaintiff is able to lead a more active lifestyle than claimed. The plaintiff countered that the taping did not contradict any claims of restriction that had been made by the plaintiff, who never indicated that she was unable to engage in such activities as watering her lawn or going shopping.
The jury awarded $700,000. The case subsequently settled for the verdict amount, with the plaintiff waving pre-judgment interest.
REFERENCE:
Plaintiff’s pain management specialist: Scott Metzger from Shrewsbury.
P.D. vs. Angrist, et al.; Docket no.: MON-L-6426-98, July 2004.
Attorneys for plaintiff: Charles A. Cerussi of Red Bank and Manhattan and Jonathan Marshall of Red Bank.
COMMENTARY:
The defendant had denied that the motor vehicle accident had caused a lumbar herniation or prompted the need for the lumbar fusion, which failed, pointing to a history of more than 100 chiropractic visits in the several year period preceding the collision. The plaintiff, who maintained that she had engaged in such visits for everyday aches and pains only, and that there was no recent trauma that prompted the chiropractic care, undermined the defendant’s position by pointing to a finding by the defendant’s orthopedist. This orthopedist testified that before the recommendation for surgery, that the plaintiff, whom he maintained had a most suffered temporary soft tissue injuries, had displayed no evidence of degenerative disc disease, arguing that in view of such an apparent contradiction, the defendant’s position should be rejected. Additionally, the plaintiff’s pain management specialist stressed that because of the filed lumbar fusion surgery, the plaintiff, whose prescriptions to treat the pain currently include Methadone, will require pain killing medication for the remainder of her life.
Finally, the defendant played surveillance tapes which depicted the plaintiff watering her lawn, and which also showed that the plaintiff, who parked her car at a shopping center at 9:00 a.m. and did not leave until 3:00 p.m., arguing that her contentions as to the extent of her restrictions should be significantly questioned. The plaintiff argued that the scenes on the tape did not contradict the plaintiff’s descriptions of her limitations and further endeavored to shift the focus of the tapes by arguing that the use by the defendant of this evidence reflected, as a practical matter, an acknowledgement that it did not have stronger proofs to dispute the plaintiff’s contentions.
