Weil v. Whelan

Defense Verdict

Date of Verdict: May 2.

Court and Case No.: C.P. Montgomery, No. 2016-03981.

Judge: Garrett D. Page.

Type of Action: Motor vehicle.

Injuries: Neck injuries.

Plaintiffs Counsel: Peter J. McNamara, Law Offices of Peter J. McNamara, Philadelphia.

Plaintiffs Expert: Dr. Barry Ruht, orthopedic surgery, Allentown.

Defense Counsel: Katherine Frechette, Bennett, Bricklin & Saltzburg, Blue Bell.

Defense Experts: Stephen Fedder, neurosurgery, Wynnewood.

Comment:

On April 4, 2014, plaintiff Sharon Weil, 51, a part-time restaurant employee, was driving on Route 309 in Quakertown. After she stopped at a red light at Route 663, her sport utility vehicle was rear-ended by a sedan. She claimed permanent neck injuries.

Weil sued the other driver, Lynn Whelan, alleging that she was negligent.

Whelan stipulated to liability, and the case was tried on the issues of whether Weil's injuries constituted a serious impairment of a bodily function, and damages.

The next day, Weil, experiencing pain to her neck and her right, dominant arm, presented to an emergency room. She was examined and released after CT scans of her head and neck were negative.

A few days later, Weil had continuing pain in her neck and pain in her left arm, rather than her right arm. She followed up with an orthopedist and was diagnosed with herniations at cervical intervertebral discs C5-6 and C6-7, and with left-sided radiculopathy stemming from C5-6.

Weil had two cervical epidural injections of a steroid-based painkiller. She consulted with an orthopedic surgeon and two neurosurgeons in the ensuing months; however, treatment did not alleviate her neck pain and the numbness and tingling in her left arm.

In August, Weil underwent a two-level cervical fusion and discectomy in which a plate and a Polyetheretherketone cage were implanted. She was given a neck brace, which she wore through the end of October. She declined physical therapy out of fear that it would inadvertently cause paralysis. She also treated with a bone stimulator for a couple of months and continued to follow up with her surgeon through May 2015. Weil continued to take pain medication at the time of trial.

Weil's expert in orthopedic surgery causally related her injuries and treatment to the accident and opined that she suffered a permanent injury as well an aggravation of degenerative disc disease in her neck.

At the time of the accident, Weil received Social Security disability benefits for a prior low-back injury and worked part-time at a restaurant preparing food. She claimed that she was unable to return to her part-time job and sought to recover approximately $127,500 in future lost earnings. She earned $7,500 a year and planned to work until age 68, and had a life expectancy to 84 years.

Weil testified that her ongoing neck pain and left-arm pain prevents her from gardening and fishing, as she has difficulty bending over because of her neck. She stated that she has trouble picking up her grandchildren.

Weil recounted how in the weeks following surgery she relied on her boyfriend and siblings to help her with activities of daily living, including dressing and cooking. She said that a surgical scar on her neck bothers her, as her grandchild has commented on it, which makes her self-conscious. She sought damages for past and future pain and suffering, disfigurement and embarrassment.

Whelan's counsel cited photographs of the vehicles to argue that Weil's sport utility vehicle sustained minimal damage in the collision. Counsel also cited Weil's medical records, specifically for 2001, 2004 and 2009, in which Weil had complained of pain to her neck and left arm. Despite this, Weil denied that she had prior neck issues of any consequence.

Whelan's expert in neurosurgery testified that Weil's herniations were pre-existing and that her surgery was reasonable to address her degenerative cervical condition only. The expert conceded that she had suffered cervical strain and sprain from the accident.

According to Whelan's counsel, when Weil had applied for disability benefits for her low back, an independent medical examination had determined that, at most, she could lift two to three pounds. Whelan's counsel thereby questioned Weil's part-time vocational ability, given her restrictions.

Whelan's counsel further questioned the validity of Weil's lost-wage claim, since she had already been receiving Social Security disability benefits and there was no wage and salary verification that accurately reflected what time she had missed from her part-time job due to the accident. Moreover, counsel argued, Weil had been released back to work from her treating orthopedic surgeon approximately three months after her surgery, but she did not return to work.

The jury determined that Weil did not suffer a serious impairment of a bodily function. She received zero damages.

—This report first appeared in VerdictSearch, an ALM publication