Matthew J. Vitucci obtained a defense verdict on a damages only trial where plaintiff sought over $3,000,000.00 from the jury. Plaintiff, Maribel Ortega aged 56, alleged she was stopped in traffic eastbound on McLean Avenue and within its intersection with the southbound portion of Central Park Avenue in Yonkers, New York when our client’s tractor trailer made a wide left turn from the right westbound lane to go south on Central Park Avenue and struck the plaintiff’s 2015 Honda SUV on the driver’s side. Our client admitted liability in causing the subject accident; therefore, the case proceeded to trial on the issue of damages only.
Plaintiff claimed to have sustained severe injuries as a result of the collision. Following a yearlong course of conservative care Plaintiff underwent an anterior discectomy and fusion at level C5-C6 of her cervical spine. Plaintiff claimed severe aftereffects following the surgery including an allegation that there was a lack of fusion of the bone graft in the spine leading to a catastrophic hardware failure which would require the removal of the fusion construct, and re-implantation of new hardware. Plaintiff produced experts who opined that she would also require a Lumbar discectomy and fusion, a total knee replacement for her right knee, and a left shoulder surgery. Plaintiff produced evidence at trial through a life care plan that her future medical care needs for allegedly necessary medical care totaled $2.7 million dollars.
In defense to the injury claims we offered the testimony of a neurosurgeon who that plaintiff merely suffered from the continued deterioration of a cervical disc that had been injured in a prior accident. The expert further opined that the hardware construct was stable and not in need of repair. He disputed that plaintiff had pathology in her lumbosacral spine that required treatment. He further saw no need for future care.
We produced the testimony of an Orthopedic surgeon who opined that plaintiff suffered from preexisting arthritic changes in her knee and shoulder and that imaging showed no traumatic cause for plaintiff’s complaints.
Upon the close of evidence plaintiff requested in summation that the jury give an award of over three million dollars. Following five hours of deliberation the jury issued a verdict in favor of the defense find that plaintiff failed to prove that that she sustained a serious injury from the accident pursuant to the New York State Insurance Law.
Our investigation into plaintiff’s prior accident history revealed that she sustained injuries to the same body parts allegedly injured in the subject accident. At the time of trial, we offered evidence which identified plaintiff’s prior medical treatment and complaints of residual pain which lasted for years after the prior accidents.
Despite our client’s admission of liability in causing the collision, we argued that the subject incident was nothing more than a “side-swipe” accident which did not cause the plaintiff to sustain a permanent serious injury within the meaning of New York Insurance Law §5102(d). In support of our position, we offered full testimony of a biomedical engineer who opined that the nature of the contact imparted an insubstantial force to cause injury.