Bowman v. Nguyen

Defense Verdict

Date of Verdict: Nov. 13.

Court and Case No.: C.P. Chester No. 2016-11938-TT.

Judge: Jacqueline C. Cody.

Type of Action: Motor vehicle.

Injuries: Head, neck injuries.

Plaintiffs Counsel: Charles P. Maloney IV, Goldberg, Goldberg & Janoski, West Chester.

Plaintiffs Experts: John W. Dieckman, vocational rehabilitation; Broomall; Michael M. Cohen neurology, Bala Cynwyd; Vincent J. Distefano, orthopedic surgery, Devon. Defense Counsel: James D. Palmer, Palmer & Barr, Willow Grove.

Defense Experts: David L. Gushue, biomechanics of injury; Penns Park; Lucas Z. Margolies neurology, Broomall.

Comment:

On Jan. 2, 2015, plaintiff Gary Bowman, 56, was stopped at a red light on Paoli Pike, at its intersection with Reservoir Road, in West Chester. His sport utility vehicle was rear-ended by a sedan. Bowman claimed a traumatic brain injury.

Bowman sued the driver, Linda Nguyen, alleging that she was negligent in the operation of a vehicle. Bowman also sued the owner of Nguyen's car, Sean Nguyen.

Linda Nguyen died during the course of litigation, due to unrelated causes. Nguyen's estate stipulated to negligence, and the case was tried on the issues of causation and damages.

Four days after the accident, Bowman presented to his primary care physician with complaints of neck pain. He was referred to physical therapy, which he treated in the ensuing months. His treatment consisted of massage and exercise. Bowman underwent an MRI and was diagnosed with a cervical strain and sprain and an aggravation of pre-existing cervical spondylosis, which allegedly had been asymptomatic.

Bowman alleged that a week after the accident, he began experiencing headaches, ringing in his ears, double vision, fatigue, memory loss and difficulty concentrating. Bowman did not strike his head during the accident. He came under the care of a concussion specialist, who diagnosed him with a concussion, post-concussion syndrome and a traumatic brain injury.

For approximately nine months, Bowman, in addition to his physical therapy, treated with vestibular, occupational, ocular and occupational therapies. He also treated with an otolaryngologist for his tinnitus, and an ophthalmologist for his double vision. Bowman was fitted with prism glasses. Bowman further treated with an orthopedic surgeon and a pain-management specialist, who administered facet injections to his cervical spine. He received three injections in 2015, three in 2016 and one injection in 2017. No further treatment was administered.

Bowman's expert in neurology causally related his injuries and treatment to the accident. According to the expert, since Bowman continues to experience symptoms related to his traumatic brain injury, he will likely do so indefinitely. The expert recommended additional exams, imaging studies and therapy.

Bowman's expert in orthopedic surgery attributed his neck injuries to the accident, and determined that he suffered a permanent injury to his cervical spine.

At the time of the accident, Bowman had taken an early retirement from his prior career and was taking courses to become a project manager, in which he would potentially earn about $110,000 per year. Bowman alleged that his injuries from the accident forced him to forego a career in project management, since he allegedly was physically unable to sit through the certification exam. Instead, he took up a job working as a salesperson at a bike store, earning roughly $32,000 a year. Bowman's expert in vocational rehabilitation calculated loss of future earnings at approximately $912,000 to $1.3 million, which was based on retirement ages of 70 to 75.

Bowman testified that he continues to suffer from neck and brain-related issues, which have forced him to give up his very active lifestyle. Bowman biked multiple times a week, and would bike up to 20 miles every Sunday. He ran a half marathon, and was also an avid swimmer.

Bowman, his wife, family members and friends all testified that he is no longer the same person he was pre-accident. Prior to the accident, he was outgoing and the life of the party, but now Bowman is more withdrawn and not as social. His wife testified that he is not as engaging. Bowman testified that, in addition to his ongoing neck pain and cognitive deficits, specifically memory loss and trouble concentrating, he has difficulty sleeping. He sought damages for past and future pain and suffering. The loss of consortium claim was dismissed prior to trial.

The defense's expert in biomechanics performed an analysis of the accident and concluded that the 5-to-7-mph collision could not have generated sufficient forces to result in neck and brain injuries.

The defense's expert in neurology, who examined Bowman, testified that he suffered no injuries from the accident. According to the expert, if Bowman had suffered a traumatic brain injury as a result of the accident, his concussion-like symptoms would have manifested immediately, instead of a week later. One explanation for Bowman's neurological symptoms is possible sleep apnea. Bowman had been suffering from sleep disturbances following the accident, and was referred to a test for sleep apnea, which was never conducted. The expert explained that sleep apnea, due to the lack of oxygen to the brain, can mimic concussion-like symptoms, like the ones Bowman experienced.

The defense maintained that Bowman did not sustain any lost earnings. The defense noted that Bowman did not even attempt to take his certification exam, and that he admittedly enjoyed his job as a bike salesperson. The defense faulted the plaintiff's expert in vocational rehabilitation's assessment, since the expert did not perform a vocational test to see what other jobs Bowman is capable of performing.

The defense further questioned the severity of Bowman's injuries since he ran a half marathon following the accident. During cross-examination, Bowman's expert in vocational rehabilitation admitted that he did not observe Bowman having any visible cognitive deficits during his testimony at trial.

The jury rendered a defense verdict. It determined that Nguyen's negligence was not a factual cause of injury to Bowman.

This report is based on information that was provided by plaintiffs and defense counsel.

—This report first appeared in VerdictSearch, an ALM publication.