recover damages for personal injuries allegedly sustained in a motor vehicle accident. Defendantargued at trial that plaintiff had not sustained a serious injury and that because she had electedlimited tort could not recover pain and suffering damages.

During the course of discovery defendant retained two expert witnesses, a neuroradiologist toreview films of a lumbar MRI, and an orthopedic physician to perform an independent medicalexamination. The neuroradiologist opined in his report that all of the findings on the lumbarMRI predated the motor vehicle accident. However, the orthopedic physician who performed theindependent medical examination opined in his report that plaintiff had sustained herniatedlumbar discs as a result of the accident.

The trial deposition of the neuroradiologist was taken by defendant's counsel. During cross-examination, the neuroradiologist was asked whether he was aware that defendant had retained anorthopedic physician to perform an independent medical examination and, also, whether he was aware that the orthopedic physician had opined that the plaintiff sustained herniated lumbar discsas a result of the accident. The neuroradiologist responded that he was unaware that anindependent medical examination was even performed.

The orthopedic physician who performed the independent medical examination did not testify attrial and his report was not introduced into evidence. The only mention of the opinions of theorthopedic physician was in the previously described questions asked by plaintiff's counsel whenhe cross-examined the neuroradiologist. Counsel for defendant did not object to those questions.closing argument, defense counsel objected on the basis that the opinion had not been admittedinto evidence. The objection was overruled and plaintiff's attorney was permitted to rely uponthe opinions of the orthopedic physician in arguing that plaintiff sustained a serious injury thatincluded multiple herniated lumbar discs. The jury awarded pain and suffering damages in theamount of $445,000.

Bennett, Bricklin & Saltzburg LLP was retained to file a motion for post-trial relief, which wasdenied by the trial judge. On appeal to the Superior Court, it was argued that the trial judge erredin permitting plaintiff's counsel to rely upon the opinions of the orthopedic physician duringclosing argument. The gravamen of the argument was that counsel's questions to theneuroradiologist concerning the opinions of the orthopedic physician did not constitute evidence upon which the jury could rely in reaching a verdict. The law isclear that statements of counsel are not evidence. Only the answersof the witness are evidence and the neuroradiologist's answers werethat he did not know what the orthopedist had opined. TheSuperior Court agreed and ordered a new trial. After the juryverdict was reversed, defendant's insurance carrier agreed to settlethe claim for $50,000, the limit of liability insurance available tothe defendant.

Stevenson v. Sims et al., Philadelphia County CCP, August Term, 2004, No. 3181.

For more information, contact Michael Saltzburg, Esq., at 215-665-3340 or saltzburg@bbs-law.com.

Although juries in Philadelphia have a well-deserved reputation for being liberal in their monetary awards in personal injury actions,experience shows that those same juries will act quite differently ifthey become convinced that plaintiff sustained no significant injuryand are just trying to take advantage of the system. Two recentcases tried by members of our Special Investigation Team illustratethe point.

Haynes v. Lyles, Philadelphia County CCP, June Term 2006, No. 2439

Plaintiff instituted suit in Philadelphia County alleging injuries as aresult of a collision between a SEPTA bus in which he was apassenger and a minivan. When defendant attempted to maneuverher minivan between a light pole and the stopped bus, it becamewedged. The defense did not contest liability.

He treated with Roosevelt Medical Center for eight months. Atdischarge, diagnoses were acute cervical sprain and strain,cervical myositis, acute lumbosacral sprain and strain,lumbar myofascitis, herniated nucleus pulposus L5-S1 (per MRI),anxiety reaction, and post-traumatic syndrome.

On cross examination, plaintiff admitted that he was seen by aphysician on exactly one occasion in the first 25 days after theaccident. He was unable to explain his inconsistent testimonyabout when he first experienced pain after the accident, what types of therapy were administered to him, and the extent of hisalleged injuries.

Plaintiff's expert admitted on cross-examination that he had known the attorneys at the plaintiff's firm for over 20 years and that hisoffice had received correspondence from plaintiff's counsel four daysbefore the plaintiff appeared at his facility. Possible bias wasapparent to the jury.

Andrew Shaer, M.D., reviewed the MRI films on behalf of the defense. Dr. Shaer opined that the films revealed disc bulgesresulting from pre-existing degenerative changes. He did not believethat the films revealed any acute, accident-related changes.

Following 40 minutes of deliberation, the jury returned with a verdict in the amount of $1,500.

Nouv v. Curry,Philadelphia County CCP, May Term, 2006, No. 3003

Plaintiff testified that she was stopped behind a car which wasmaking a lefthand turn. Defendant attempted to go around herand sideswiped her vehicle. At trial, defendant admitted faultand neither party disputed the facts of the accident.

Hospital. She admitted to emergency room personnel that shewas not jolted around inside the vehicle and was “withoutphysical complaint, but stated that she was upset but feeling muchimproved from her numbness that she was experiencing earlier.”The report also stated that “no evidence of injury was found.”

Plaintiff underwent eight months of chiropractic treatment. An orthopedic consultation resulted in a diagnosis of post-traumaticcervical, thoracic and lumbosacral strain, and left cervical andlumbar radiculopathy with a possible herniated nucleus pulposus.

In closing remarks, the defense argued that there was notsufficient evidence to prove a causal relationship between thedefendant's negligence and the alleged injuries sustained by theplaintiff. The fact that the plaintiff admitted that she was notjolted around inside the vehicle; that the ambulance crewacknowledged the accident involved very low velocities and no G forces were applied; and that no evidence of physical injury was observed in the emergency room were significant pieces of evidence.

Following a half hour of deliberation, the jury returned a verdictin the amount of $300.

For more information, contact Charles Lanzalotti, Esq., at 215-665-3365 or lanzalotti@bbs-law.com and James Blumenthal,Esq., at 215-665-3390 or blumenthal@bbs-law.com.

entered against Blockbuster a year prior. Apparently, the managerfailed to follow protocol and never turned over the legal paperworkto Blockbuster's legal department. After filing an emergency motionand having the default judgment vacated at oral argument, counselwas able to conduct discovery and defend the case.

This matter arose out of a physical altercation that occurred betweenthe plaintiff, Benjamin Masucci, and co-defendant, Emil Luciano,outside a Blockbuster Video store on April 13, 2003. Masucci's legwas broken in the altercation, resulting in surgery and the insertionof a rod and pins. Masucci and Luciano were dating sisters and hadknown each other for several years. The men encountered oneanother at a Blockbuster store where Masucci accused Luciano ofspreading the rumor to the sisters' mother that Masucci had stolenseveral vehicles. It was undisputed that a verbal altercation betweenthe men began inside the store. Luciano then left the store, andMasucci remained in the store for approximately fifteen to twentyminutes looking for his video. Masucci then exited the store througha door into a vestibule area and then through another door to theoutside, where allegedly Luciano punched him in the face. Plaintiffclaimed he never saw Luciano between the time Luciano left thestore and when Luciano punched him.

Masucci admitted that while he was in the store he was not fearfulfor his safety, did not ask any Blockbuster employee to call thepolice, and did not speak with any Blockbuster employee about theverbal altercation. Additionally, Masucci admitted that he did not request that a Blockbuster employee accompany him outside and didnot request that Blockbuster fill out an incident report.

Masucci's theories of liability against Blockbuster were thatBlockbuster should have (1) employed security personnel; (2) calledthe police when the verbal altercation occurred inside the store;and/or, (3) accompanied plaintiff outside the store. Blockbusteracknowledged that a proprietor of a business owes the patron a dutyof ensuring a reasonably safe premises. However, Blockbusterdisputed that an actual duty was owed to this plaintiff under thecircumstances of the case. Specifically, Blockbuster argued that thephysical fight between plaintiff and co-defendant outside its premiseswas not reasonably foreseeable. Therefore, Blockbuster owed noduty to plaintiff.

After extensive briefing and oral argument, Judge Michael BrooksFisher agreed with Blockbuster and entered summary judgment,dismissing plaintiff's complaint with prejudice.

Masucci v. Blockbuster, Inc., Superior Court of NJ, Cumberland County, L-347-05.

For more information, contact Beth Carter, Esq., at 215-665-3311 or carter@bbs-law.com.

Defendant pulled out of a driveway onto the roadway almost directlyin front of the plaintiff's vehicle. Defendant testified that there werevehicles parked on the roadway that limited her visibility. Plaintiffactivated her brakes but could not avoid an impact.Plaintiff was taken from the scene via ambulance to Lankenau Hospital where she complained of head, neck, and left wrist pain. Shortly there after, she started treatment with her family physician for left wristand neck pain. Plaintiff's pre-accident history was significant forbilateral scleraderma of her hands and arms, as well as her neck.

Scleraderma is an auto-immune disease with symptoms that includetightening, hardening, and/or thickening of whatever organ is affected.According to the medical records, this pre-existing condition causedplaintiff to have difficulty dressing, cooking, brushing her hair, and attimes looking after her special needs child and grandchild.

Plaintiff ultimately sought treatment with hand specialist Bong Lee,M.D. According to Dr. Lee, plaintiff sustained a fracture of her leftlunate bone, as well as bilateral osteonecrosis of her lunate bones, asa result of this accident. He diagnosed plaintiff with bilateral Kienbock's disease that was causally related to the accident at issue.

However, he admitted that persons with scleraderma “can bepredisposed for the Kienbock's disease.” It should be noted that Dr.Lee never saw any of plaintiff's prior medical records.Defendant retained the services of Randall Culp, M.D., whoexamined the plaintiff. Dr. Culp testified that plaintiff likelysustained the left wrist fracture as a result of the accident but wasadamant that the bilateral Kienbock's disease could not have beencaused by this accident. Dr. Culp testified to the associationbetween scleraderma and Kienbock's disease, and he produced twoarticles reflecting this, one of which he authored.

Prior to trial, plaintiff filed motions in limine objecting to Dr.Culp's testimony and a Frye motion to exclude portions of Dr.Culp's testimony. Specifically, plaintiff objected to Dr. Culp's testimony regarding the connection between scleraderma andKienbock's disease. After reviewing the deposition transcripts of eachdoctor and hearing oral argument, Judge Gerald Corso allowed Dr.Culp's testimony to be heard by the jury. A two-day trial followed withthe jury finding in favor of plaintiff and awarding $25,000.

Plaintiff filed an appeal to the Superior Court of Pennsylvania,contending that Judge Corso improperly denied her Frye motion todisallow Dr. Culp's testimony. The court found that Judge Corsoproperly had allowed Dr. Culp's testimony given his unquestioned expertise in the field of hand surgery, his examination of all plaintiff's records, and his physical examination.

Grigger v. Ratowsky, Montgomery County CCP, No. 04-05060

For more information, contact Kevin Blake, Esq., at 267-654-1104 or blake@bbs-law.com.

Plaintiff, age 62, an employee of Pennsylvania Gasoline Retailers Association, sued his employer'slandlord, Doris Scalzo (deceased at the time of the arbitration). Plaintiff claimed that he slipped andfell on a patch of ice in the parking lot of the office building where he worked as he was walkingfrom his office to his car. The property was managed by Scalzo's daughter, and snow removal wasdone by Scalzo's employees.

Plaintiff sustained a broken femur requiring open reduction and internal fixation with multiplescrews and a plate resulting in a leg length discrepancy and continuing pain in the leg and hip,unsteady gait, and difficulty walking distances. Plaintiff presented the videotaped testimony of histreating orthopedist, Gary W. Muller, M.D., who gave graphic testimony using plaintiff's x-raysdepicting the plate and screws. Defendant did not present any medical testimony, conceding theinjuries, related treatment, and residuals.

It had snowed on the Sunday before the fall, which happened on a Tuesday at about 9:30 a.m.Plaintiff claimed that Scalzo's employees, who were salting the lot at the time of the fall, should havesalted earlier in the day because they knew that plaintiff and his co-workers arrived before 9:30 a.m. Plaintiff's other theory was that defendant's employees did not do a reasonable job the day beforewhen they cleaned snow and ice from the lot.

The defense argued that plaintiff was contributorily negligent because he wore dress shoes to workthat day rather than rubber-soled shoes or boots even though there was still residual snow and ice onthe ground both in the neighborhood where the fall occurred and where plaintiff lived. Also,plaintiff admitted that he had seen patches of ice earlier that day while walking from his car to hisoffice, which he could have avoided in walking back to his car.

The defense also argued that the employees had done a reasonable job the day before the fall andthat they could not get to this lot earlier because they had to check other commercial and residentialproperties closer to Scalzo's office. The defense presented the testimony of the employee who wassalting at the time of the fall; his supervisor who helped clear the lot with him the day before andwho also checked to make sure it was ice free the day before; and Scalzo's daughter, the propertymanager, who explained why her employees were not at the site earlier in the day.

The parties agreed to binding high-low arbitration with parameters of $0 and $250,000. After athree-hour hearing at which the plaintiff and his wife also testified, the arbitrator, Edward Edelstein,entered an award in favor of the defendant.

Roda v. Scalzo,Philadelphia County CCP, December Term, 2005, No. 1730.

For more information, contact Victoria Komarnicki, Esq., at 215-665-3303 or komarnicki@bbs-law.com.

the perfect candidate to prep the sixth grade classmates of his daughter,Annalisa, as they prepared for the public presentation of their winningmock trial. Lanzalotti, a trial lawyer with Bennett, Bricklin andSaltzburg, volunteered his time with Lori Bathurst's class at ChestnutMiddle School to help authenticate the students' performance at theLaw Center of New Jersey in New Brunswick. The class was one of tenin the state granted the opportunity to perform their original mock trial after winning an honorablemention in the Law Fair Mock Trial Contest sponsored by the New Jersey State Bar Foundation. He'spictured here with the students as they prepare for their winning performance.

As reported in the Gloucester Co. Times.