Pena v. Dunaway

$12,500 Verdict

Date of Verdict: Aug. 16.

Court and Case No.: C.P. Philadelphia No. 160200476.

Judge: Lisette Shirdan-Harris.

Type of Action: Motor vehicle.

Injuries: Neck, back and knee injuries.

Plaintiffs Counsel: Sam Reznik, Simon & Simon, Philadelphia.

Plaintiff Expert: Maxwell Stepanuk Jr., orthopedic surgery.

Defense Counsel: Lynn A. Zikoski, Hubshman, Flood, Bullock & Dorn, Plymouth Meeting.

Defense Expert: Sachin Dheer, radiology, Cherry Hill, New Jersey.

Comment:

On May 30, 2015, plaintiff Harold Pena, a baker in his late 40s, was driving on Castor Avenue, in Northeast Philadelphia. When he was at the intersection with Passmore Avenue, his SUV rear-ended a sedan. He claimed neck injuries.

Pena sued the sedan's driver, Cheryl Dunaway, alleging that she was negligent.

During court-mandated arbitration, Pena was determined to receive $17,500. Dunaway rejected the award, and the case went to trial.

At trial, Pena testified that he had been driving on Castor Avenue when Dunaway, who had been stopped to his left on Passmore Avenue, turned left directly in front of him. Pena attempted to avoid the collision by swerving to his right, and the driver's side front of his vehicle struck the passenger's side rear of Dunaway's sedan. Pena's counsel faulted Dunaway for turning when it was unsafe to do so.

Dunaway testified that she had been stopped and inched forward to make sure there was a clear distance before turning. After doing so, she turned left and was struck by Pena. Dunaway's counsel maintained that Pena's failure to see Dunaway make the turn and respond appropriately suggested that he was not being attentive to road conditions.

Later that evening, Pena presented to an emergency room with complaints of pain to his neck, back, left knee and left, non-dominant arm. He was examined and released.

About a week later, Pena presented to a rehabilitation facility, where he treated with physical therapy through January 2017. Treatment included exercise and massage. After an MRI and an EMG, he was diagnosed with bulging at cervical intervertebral disc C4-5, bilateral radiculopathy stemming from C4-5, right-sided radiculopathy stemming from C5-6 and left-sided radiculopathy stemming from C6-7. It was determined that Pena had osteophytes at C5-6 and C6-7, which had allegedly been aggravated by the accident.

Pena consulted with an orthopedic surgeon. In January 2017, he had medial branch block injections at C4-5 and C5-6. No further treatment was rendered.

Pena's expert in orthopedic surgery causally related his injuries and treatment to the accident. The expert opined that he had suffered a serious impairment of a bodily function, and that he would require future treatment, including more physical therapy, pain injections and medical exams. Pena sought to recover $5,000 to $60,000 in future medical costs.

Pena testified that he has chronic pain in his neck, radicular pain in his arms and he has difficulty bending, twisting and standing and sitting for long periods. He sought damages for past and future pain and suffering.

Dunaway's counsel questioned the credibility of Pena's alleged injuries, since he had gone months without treatment.

The defense's expert in radiology testified that Pena's C4-5 bulging was pre-existing and unrelated to the accident. The expert noted that Pena's MRI showed degenerative pathology in his cervical spine, including osteophytes.

According to Pena, he had multiple gaps in his treatment because he found it difficult treating with physical therapy while working as a baker, from 3 a.m. to noon. He said that, despite his pain and discomfort, he did not miss a day from work because he had to his support his family. His wife was unemployed, one daughter was in college and his other daughter was entering college.

The jury found that Dunaway's negligence caused injury to Pena but that Pena did not suffer a serious impairment of a bodily function. Pena was determined to receive $12,500, all for future medical expenses.

 

This report is based on information that was provided by plaintiffs counsel. Defense counsel did not respond to the reporter's phone calls.

—This report first appeared in VerdictSearch, an ALM publication