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ARTICLE ID 168688

$________ - MOTOR VEHICLE NEGLIGENCE - REAR END COLLISION - BOX TRUCK STRUCK BY 15 PASSENGER VAN WHILE STOPPED AT TRAFFIC LIGHT - HERNIATION AT C5-6 WITH IMPINGEMENT - FUSION SURGERY - DELAYED UNION - ATTEMPTS TO USE ABSENCE OF SIGNIFICANT PROPERTY DAMAGE AND "ARTICULATED TOTAL BODY" COMPUTER PROGRAM TO SHOW LACK OF ADEQUATE FORCE TO CAUSE INJURIES.

Bronx County, NY

This action involved a 40-year-old driver who was struck in the rear by a 15 passenger van while stopped at a light. The plaintiff contended that he suffered a herniation at C5-6 with cord impingement, required surgery which entailed a fusion and bone graft and that he had a relatively poor result. The plaintiff maintained that he suffered a delayed union, and that although union was ultimately achieved, the pressure on the areas above and below the surgical site has resulted in the formation of arthritis. The plaintiff asserted that he will suffer permanent pain and the plaintiff, who worked as a maintenance man, contended that he will permanently be unable to work.

The plaintiff contended that his cervical area was subjected to extensive flexion-hypertension forces in the impact, and that he immediately felt radiating cervical pain. The plaintiff reported this pain at the emergency room and to his family physician. The plaintiff was referred to a neurologist and saw this physician approximately two weeks after the accident. The neurosurgeon conducted an MRI and noted a cervical protrusion and myelopathy reflecting some probable impingement on the C5-6 nerve root.

The plaintiff initially underwent approximately six weeks of conservative care and when such a course proved to be inadequate, he underwent a cervical fusion with the insertion of a bone graft. The plaintiff maintained that although he initially fared somewhat better after the surgery, he began developing severe spasms several months after the surgery. The plaintiff also contended that rather than the expected several-month period, he did not achieve union as to the graft for approximately one year.

The plaintiff further contended that because of the additional pressure placed on the levels adjacent to the fusion, he suffered extensive arthritis. The plaintiff contended that he will permanently suffer particularly severe pain which has continued unabated despite multiple pain medications and over ________ physical therapy visits in a three-year period. The plaintiff contended that because of the injuries, he is permanently unemployable. The plaintiff was earning approximately $________ per year.

The defendant denied that the subject accident caused the claimed injuries and pointed out that the vehicles sustained very little property damage. The plaintiff’s biomechanical engineer maintained that the property damage itself was not reflective of the degree of flexion-hyperextension forces that were sustained by the neck. The expert used both used medical illustrations and plaintiff’s counsel, as he was sitting in a seat, to demonstrate the manner in which the forces would initially compress the vertebrae and then cause the disc to herniate. He maintained that in view of the onset of symptoms immediately after the accident, it was clear that the cervical injuries were causally related to the accident.

The defendant presented a biomechanical engineer who related that he conducted an "Articulated total body" computer program and that based upon the results, there was an insufficient amount of force exerted to cause the claimed cervical injuries. The plaintiff denied that this conclusion should be accepted. The program entails the use of factors including the dimensions of the vehicles, the force of flexion and hyperextension exerted on the plaintiff’s seat and headrest and attempting to compare these forces with known injury levels, if possible. The plaintiff pointed out that with the exception of studies using cadavers, there is no research on the amount of force needed to cause the disc injuries suffered by the plaintiff. The defendant’s expert contended although he was unable to replicate specific known values, the use of simulated and approximate values utilized by the program was sufficient to establish the absence of sufficient force to cause the claimed injuries.

The plaintiff denied that the defendant’s position should be accepted, and contended that in view of the inability to specify the actual forces placed on the cervical discs, the defendant’s position should be rejected. The plaintiff also maintained that the jury should consider that in general, computer simulations in the auto industry must be validated by making comparisons to real world crash tests. The plaintiff pointed out that the defendant could not point to such comparisons.

The plaintiff also confronted the defendant’s expert with transcripts from testimony in other cases, including statements which the plaintiff maintained reflected that he acknowledged that other factors, such as the patient’s medical history, must be considered in addition to the biomechanics. The defendant had pointed out that the impact damage was slight. The plaintiff endeavored to cross-examine the expert from prior cases in which he testified for plaintiffs that accidents purportedly involving similar force were sufficiently severe to cause a traumatic brain injury. The defendant objected, arguing that such evidence was not relevant in the subject case which did not involve claimed brain damage. The Court sustained the objection.

The jury awarded $________, including $________ for past pain and suffering, $________ for past lost earnings, $________ for past medical expenses, $________ for future pain and suffering, $________ for future lost earnings $________ for future costs of medications, $________ for future costs of medical office visits, $________ for future physical therapy and $________ for future costs of MRI studies.

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