XV/48-17 MOTOR VEHICLE CENTER LINE TMJ AND HERNIATED AND BULGING LUMBAR DISCS DIRECTED VERDICT ON PERMANENCY OF TMJ

Suzanne and Nicholas D. v. Herbert Zundel 001772/94 5-day trial Verdict 4/9/98 Nassau Supreme

Judge: Joseph A. DeMaro

Verdict: $360,000 for Suzanne D. (6/0). Breakdown: $150,000 for past pain and suffering; $100,000 for future pain and suffering; $ 60,000 for future medical and chiropractic care; $50,000 for future dental expenses. $10,000 for Nicholas D. (6/0). Breakdown: $5,000 for past loss of services; $5,000 for future loss of services.

The case settled for $275,000 ($100,000 policy) 2 weeks after trial. Jury: 2 male, 4 female.

Pltf. Atty: James V. Mattone of Daniel P. Buttafuoco, Mineola.

Deft. Atty: Eileen s. Lobelson of Frank V. Merlino, Garden City.

Facts: On 12/4/93 at 12:30 PM, Pltf., a 26-year-old computer programmer, was involved in a car accident at the intersection of County Line Rd. and Old Sunrise Hwy. in Nassau County. It was raining at the time. Pltf. claimed that she was driving on County Line Rd. when Deft.'s vehicle swerved out of control, crossed the double- yellow line, and struck her vehicle head-on. Deft. claimed that he could not remember the accident, but would have contended that an eyewitness told police that he had been cut off by another vehicle making a left turn, and that he lost control of his car due to the rainy conditions. This eyewitness was not produced at trial, and her statement was not in evidence and was not before the jury.

Injuries: temporomandibular joint dysfunction; herniated lumbar disc at L4-5, pressing on the thecal sac; bulging lumbar disc at L5- S 1; displaced meniscus. Pltf. contended that she had been very athletic before the accident, and that she had been taking professional bowling lessons and had planned to attempt a professional bowling career. She claimed that she could no longer bowl because of her injuries. There was testimony that Pltf. had chiropractic treatment 1 year before the accident, and that she had prior lockjaw. The court granted a directed verdict as to permanency for the TMJ because Deft. failed to produce a doctor to contradict Pltf. s expert s testimony that this type of injury is permanent.

Demonstrative evidence: MRls; three-dimensional skeleton and spine; photographs of car; medical records. Offer: $60,000; demand: $100, 000 (policy); amount asked of jury: $450,000. Jury deliberation: 2 hours. Carrier: Allstate.

Pltf. Experts: Dr. Jay Goldman, dentist and TMJ specialist, Woodbury; Dr. Mitchell Goldstein, orth. surg.,Valley Stream.
Deft. Expert: Dr. John Killian, orth. surg., Garden City.