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Gargiulo v. Walden5/7/1998
Judgment: AFFIRMED
Plaintiff-appellant SusanGargiulo appeals from a jury verdict and judgment in her favor on the grounds that the personal injury award of $4,035.25 was inadequate as a matter of law; the trial court erred in failing to grant a new trial and in failing to submit interrogatories to the jury. We find no error and affirm.
On June 2, 1992, plaintiff was involved in a rear end collision with the defendant. Defendant admitted at trial that he failed to maintain an assured clear distance and struck the rear of the plaintiff's vehicle which was stopped at an intersection. However, defendant never conceded at trial that his negligence was the direct and proximate cause of plaintiff's injuries. At trial, conflicting testimony was presented as to whether or not the plaintiff suffered serious and substantial injury to her neck as a result of the accident. Plaintiff contended that neck surgery and carpel tunnel surgery resulted from the collision. Defendant disputed whether or not these surgeries were necessitated by the accident.
Plaintiff testified that she was about 5/ months pregnant at the time of the accident. She was sent to the hospital after the accident as she was having signs of premature labor. She was given an IV and kept overnight for observation. At that time she was also experiencing extreme pain in her neck, shoulders and arms.
She admitted that she had suffered from numbness in her arms prior to the accident, but that her family physician had suspected it was pregnancy related as it began with her pregnancy and was not constant. Plaintiff claimed that the numbness she suffered after the accident was different then the numbness she suffered prior to the accident. She stated that in 1986 she suffered a lower back soft tissue injury on a Nautilus machine during a physical education class at Tri-C. She also previously suffered from stiff necks when she worked as a telemarketer, but claimed the condition stopped once she was issued a head set.
Plaintiff alleged that due to the pain and injury she suffered from the accident, she saw 21 different doctors for treatment on approximately 122 separate occasions and incurred $40,000 in medical expenses.
On cross examination, the plaintiff admitted that she filed a lawsuit back in 1986 for the injuries sustained on the Nautilus machine. She did not recall any injury to her neck or back as a result of this incident, although her complaint alleged she suffered permanent injury to her back, neck and shoulders. She also testified that although she was in a head-on collision in the early 1970's, she only suffered injuries requiring stitches and no injury to her neck. She admitted that Dr. Poolos, the neurosurgeon who eventually performed her carpal tunnel surgery, did not recommend neck surgery, but instead recommended conservative treatment. She also admitted that Dr. Shaffron, another neurosurgeon, also recommended against surgery.
Dr. Mann, the plaintiff's neurologist, testified that the plaintiff was referred to him by her family physician. He examined her on October 22, 1993 and found she had limited ability to rotate her head and could not tilt her head. Based on these observations he suspected a disk injury. Several years went by, however, until he could find any objective evidence of the disk injury. He therefore recommended more conservative therapy. Later, an MRI taken in October 1995 showed a minimal bulge in her cervical disk area. He claimed that since conservative treatment was not helping her, surgery was necessary. He therefore referred her to a neurosurgeon. Dr. Mann stated that it was his opinion that the disk herniation was caused by the accid
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