XXIII/11-19 MOTOR VEHICLE - Broadside Lane Change

Plaintiff claimed driver crossed two lanes, caused collision.

Settlement: $650,000 Josephine T. v. Salvatore A. Mincone and Anthony S. Mincone, No. 4157/04
Court: Nassau Supreme
Judge: Michele M. Woodard
Date: 7/20/2005

Plaintiff Atty(s): Daniel P. Buttafuoco, Daniel P. Buttafuoco & Associates, Woodbury, NY.
Defense Atty(s): Jeffiey D. Present, Montfort, Healy, McGuire & Salley, Garden City, NY.

Facts & Allegations: On Jan. 12,2004, plaintiff Josephine T., 43, a part-time teacher's aide, was driving in the southbound left lane of South Oyster Bay Road, near its intersection with Old Country Road, in Plainview. As T. approached the intersection, her vehicle was struck in the front driver's side by a vehicle that was being operated by Anthony Mincone, who was attempting to cross two lanes of traffic into the northbound lane. T.'s vehicle then crossed into oncoming traffic and came to a complete stop after hitting a sign pole. She sustained injuries to her neck, back and knee.

T. sued Mincone and the owner of Mincone's vehicle, Salvatore Mincone. She alleged that Anthony Mincone was negligent in the operation of his vehicle and that Salvatore Mincone was vicariously liable for Anthony Mincone's actions.T. claimed that Anthony Mincone should have yielded the right of way. A non-party witness testified that Mincone exiting a parking lot and attempted to cross over the southbound lanes. The defendants claimed that T. admitted traveling about 40 mph as she approached the intersection's red light. They argued that she failed to reduce her rate of speed appropriately.

Injuries/Damages: Fracture, rib; fusion, cervical; physical therapy; soft- tissue injuries. T. was placed in an ambulance and transported to North Shore University Hospital, in Syosset, where she was treated for soft-tissue injuries to her left knee, chest pain, and four fractured ribs. Six weeks post-accident, she was diagnosed by her treating physiatrist with a disc herniation at C5-6. After 15 months of conservative treatment, she underwent fusion surgery to repair a disc protrusion at C6- 7. During the surgery, a ligament tear at C6- 7 was discovered. She was unable to return to work. T.'s expert physiatrist testified that her injuries were causally related to the accident, including the cervical tear . He opined that her original MRI films were of poor quality and did not show the herniation at C6-7. However, he testified that an additional MRI, taken about one year post-accident, confirmed the herniation. He claimed that she requires lifelong physical therapy. T.'s vocational-rehabilitation expert testified that she is unable to return to work as a teacher's aide.
T. sought recovery of her future medical costs, her future lost wages, and damages for her past and future pain and suffering. At the time of the accident, she was earning between $125 and $200 a week. The defendants contended that the first MRI, which was taken three months post-accident, failed to show any herniation at the level at which the surgery was performed and that the physiatrist's EMG test showed positive only at C5-6. They also claimed that there were no reported complaints of neck pain in the emergency room. The defendants' expert neurologist determined there was not a causally connected neurological injury at C6- 7 and no need for fusion surgery.

Result: In the trial's liability phase, the jury rendered a plaintiff's verdict. During the third day of the damages phase, the parties agreed to a settlement. The defendants' insurer agreed to pay $650,000 from its $1.3 million policy.

Demand: $1,000,000
Offer: $ 1,200,000/$300,000 high/low
Insurer: Government Employees Insurance Co. for both defendants

Plaintiff Expert(s): Ali E. Guy, M.D., physical medicine, New York, NY
Jeffrey D. Klein, M.D., orthopedic surgery, Brooklyn, NY (treating surgeon; did not testify)
Alan M. Leiken, Ph.D., economics, East Setauket, NY (did not testify)
Edmond A. Provder, vocational rehabilitation, New York, NY.

DefenseExpert(s): Sondra I. Pfeffer, M.D., diagnostic radiology, New York, NY
C.M. Shanna, M.D., neurology, New York, NY (did not testify)
Leon Sultan, M.D., orthopedic surgery, Franklin Square, NY (did not testify).