In the case of Karen C. Golden v. John Berchtold, Jr. and Hudson Valley Custom Stone, plaintiff was a front seat passenger in a Pontiac sedan that was rear-ended by a landscaping truck carrying approximately a half-ton of marble slabs.  The 54 year old plaintiff primarily alleged injuries to her neck in the form of herniated discs at C4-5 and C5-6, and she also alleged multiple bulging lumbar discs and a fractured tooth from striking the dashboard.  Plaintiff, an executive assistant earning approximately $90,000 per year, returned to work about 3 months after the accident but was ultimately unable to continue due to her neck pain.  She stopped working about 1 year after the accident and ultimately underwent a significant, multi-layer cervical fusion from C4 to C6.  At trial, plaintiff called the surgeon that performed her fusion, another medical expert who testified about her limitations and permanency, and an economist who projected future lost earnings and reduced Social Security Retirement benefits of between $540,867 and $1,647,987, depending on how long she would have worked had the accident not happened.

At her pre-trial deposition, the plaintiff denied suffering from any significant neck pain prior to the accident.  Although she had been involved in a prior MVA just 12 days earlier, plaintiff contended that she only injured her chest in that accident.  Hospital records from the first MVA essentially supported this claim, and a report by plaintiff’s primary care physician generated after that first MVA and prior to the second MVA show that she specifically denied neck pain.

Jury selection commenced on September 14, 2015, and trial began the next day.  The defense strategy was to make the conclusions of the medical experts dependent upon plaintiff’s denial of prior neck pain, and then attack that denial using other evidence.  Mr. Lofrese brought out evidence of prior chiropractic care rendered several years before the accident as well as some chiropractic care rendered just prior to the accident, the details of which were never fully revealed since the records had been lost by the provider. He also called a biomedical expert to testify that the plaintiff could not have struck the dashboard in the accident as she claims, that the forces generated in the subject accident were not sufficient to have caused an injury to her cervical or lumbar spines, and that the first MVA was 4 times more forceful than the second.  Mr. Lofrese also called a radiologist and a neurosurgeon, both of whom testified that the plaintiff had degenerative conditions in her cervical and lumbar spines, and that her cervical surgery was caused by non-traumatic conditions.  Mr. Lofrese’s cross examination of plaintiff’s surgeon resulted in a concession on the stand at trial that plaintiff’s herniated cervical discs could have predated the accident and that she might have needed fusion even in the absence of an accident.  Mr. Lofrese argued to the jury that the plaintiff failed to satisfy her burden of poof that the accident in question was a proximate cause of her injuries.

The jury was given the case at approximately 12:30 PM on September 23, 2015, returning a defense verdict at approximately 4:15 PM.  In its verdict, the jury found that the plaintiff did not sustain a causally-related threshold “serious injury” under New York’s No-Fault law.