$400,000 Recovery – Rear End Collision

This action stemmed from a rear end collision which the plaintiff claimed left her with debilitating thoracic outlet syndrome.  The defendant disputed the extent of injuries sustained by the plaintiff as a result of the accident.

The plaintiff was a 47-year old female passenger in a vehicle which was struck from behind by the defendant’s vehicle.  The plaintiff’s orthopedic surgeon testified that the plaintiff suffered thoracic outlet syndrome and fibromyalgia as a result of the accident.  The plaintiff’s physician testified that diagnostic procedures, involving positioning of the arm in different positions and measuring the pulse rate, confirmed the plaintiff’s injury.  The plaintiff complained of continuing radiating pain and restriction of motion.  Several surgeons reported that future surgery was indicated.

The plaintiff’s orthopedic surgeon was prepared to testify that the thoracic outlet is a tunnel or passage for all of the nerves (brachial plexus) that go into the arm after they leave the spinal cord at the neck.  According to the plaintiff’s expert, when the tissue about the nerves is torn, or the muscle itself around the nerves is injured, inflammation ensues and a thicker adherent tissue may form, binding down the nerves of the plexus and resulting in symptoms such as pain, discomfort and disability.

The plaintiff was employed as a surgical equipment sales representative at the time of the accident, a position which involved extensive driving.  The plaintiff has been employed in several different positions following the accident due to closure of one employer and other reasons unrelated to the accident.  She alleged that although she continued to work, her symptoms were greatly reduced during the periods when she was not working.  The plaintiff’s vocational expert opined that the plaintiff could not continue in the sales field much longer and the plaintiff claimed a diminished future earning capacity as a result of the accident.  Her economist projected potential future earnings loss of $700,000 to $800,000 over the remainder of the plaintiff’s work life.

The defendant’s neurosurgeon concurred that the plaintiff suffered from thoracic outlet syndrome.  However, the defendant’s expert opined that the plaintiff could be treated conservatively without the necessity for future surgery.  The defendant’s expert also opined that with time, the plaintiff’s symptoms would abate.  The defendant denied that the plaintiff sustained a diminished earning capacity as a result of the accident.

The case settled prior to trial for $400,000.

REFERENCE

Plaintiff’s orthopedic surgeon:  Scott Fried from East Norriton.  Plaintiff’s economicst:  Andrew Verzilli from Kintersville.  Plaintiff’s vocational expert:  Philip Spergel from Philadelphia.  Popek vs. Defendant, Case No. n/a; Judge not assigned, 6-19-01.

Attorney for plaintiff:  Anthony J. Baratta of Baratta & Russell,  P.C., in Huntingdon Valley.

COMMENTARY:

This action was settled two weeks prior to the scheduled trial.  Factors in the plaintiff’s favor included a client who was expected to make an excellent witness on her own behalf.  In addition, the nature of the rear end collision left little opportunity for a liability defense.  Furthermore, the defendant’s medical expert agreed with the diagnosis of thoracic outlet syndrome and conceded that the condition stemmed from the collision.  Accordingly, it was only the extent of the injury which was in dispute, rather than its existence.  The defendant also contested the permanency of the plaintiff’s injury and the necessity for future surgery.

A major trial issue would have centered on the plaintiff’s claim for future loss of earnings.  The defense maintained that the plaintiff was still working in the field of medical equipment sales and had not, therefore, sustained a diminished earning capacity.  However, the plaintiff asserted that she was working in constant pain and her physician, who specializes in hand and upper extremity surgery, was prepared to present a detailed explanation of the mechanics of thoracic outlet syndrome designed to help the jury understand the reasons for the plaintiff’s pain.  The plaintiff’s vocational expert opined that the plaintiff would not be able to continue in the sales field much longer due to the travel demands of the position.  The plaintiff’s economist reported a loss of future wages in the range of $700,000 to $800,000.