The plaintiff was involved in a significant chain reaction accident on Route 63 in Montgomery County. The defendant who was driving an SUV did not realize traffic ahead of her had stopped and her SUV struck a pick-up truck slamming it into the rear of the plaintiff’s Volvo and pushing it into a bread truck. All of the parties’ vehicles sustained significant damage and had to be towed from the accident scene. Plaintiff did not go to the ER, but sought treatment with her family physician two days later for neck and back pain and was then referred to a physiatrist. Plaintiff initially received physical therapy for approximately three months and underwent an MRI that showed a lumbar disc herniation. Plaintiff claimed she had to stop treatment because she had been diagnosed with breast cancer immediately after the accident occurred and underwent a double mastectomy. (The trial judge granted defendant’s motion in limine precluding plaintiff from telling the jury she had “breast cancer” and instead allowed plaintiff to testify that she was diagnosed with a “serious medical condition”). Plaintiff continued to receive physical therapy on and off over the following seven years due to severe flare-ups of pain and underwent an EMG that showed lumbar radiculopathy. Plaintiff’s expert testified that although plaintiff had degenerative changes in her lumbar spine, she never had a prior complaint of pain and the herniation was either caused or aggravated by the accident. Plaintiff’s expert also testified that plaintiff would continue to have back and neck pain for the rest of her life and that epidural injections and surgery were potential treatment options. Plaintiff’s counsel argued that his client did not have a single complaint of prior neck or back pain and no prior claims or lawsuits.
Although defendant admitted the accident was her fault, plaintiff called the driver of the pick-up truck to testify as to the severity of the impact. Plaintiff utilized numerous blow-up photos depicting significant damage to the vehicles involved. Plaintiff’s son, who lived with her during a two year period following the accident, testified regarding plaintiff’s limitations at home and her complaints of pain. The plaintiff who was employed as clinical researcher, missed three days of work immediately following the accident.
The defense argued that although plaintiff was shaken, she did not obtain any treatment from the ambulance that arrived on the scene following the accident. Plaintiff did not have any cuts, scrapes or bruises from the accident and did not seek emergency room treatment. Plaintiff responded very well to physical therapy and by the time she was discharged from treatment three months after the accident she was pain free. Plaintiff did not return for treatment until two years later when she had a severe flare-up of pain. Although plaintiff testified that she was dealing with a life threatening medical condition, the defendant argued that none of plaintiff’s medical records for that two year period documented a single complaint of neck or back pain. Additionally, the plaintiff’s first return to medical treatment coincided with the filing of the lawsuit. Plaintiff also did not take any prescription pain medication until years after the accident. Defendant’s orthopedic expert testified that plaintiff’s herniated disc was degenerative and not caused by the accident. Defendant’s orthopedist also testified that even if the accident would not have occurred, it was not unusual for a person in their fifties to have aches and pains in their neck and back as the plaintiff testified she did.
The jury took 15 minutes to deliberate and although they found factual cause, the verdict slip stated an award of “3 days of lost work”. The judge instructed the jury that they would have to award plaintiff the monetary stipulated wage loss of $520 and also award plaintiff pain and suffering because they had found the accident was a factual cause of plaintiff’s injuries. The 12 person jury deliberated another 15 minutes and awarded $1 for pain and suffering.
