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Pawlowski v. Marino

Decided: February 18, 1960.


Goldmann, Conford and Freund. The opinion of the court was delivered by Freund, J.A.D.


Plaintiff, Sabina Pawlowski, instituted this negligence action to recover for personal injuries and property damages resulting from a motor vehicle collision in which her car was negligently rammed in the rear by a car driven by the defendant Nicholas F. Marino. A jury of the Law Division found the defendant to have been solely responsible for the accident and awarded a verdict of $20,000 to the plaintiff. The defendant moved for a new trial on the single ground that the verdict was excessive, against the weight of the evidence, and the result of passion, bias, prejudice, and sympathy. The trial judge denied the motion, and this appeal followed. Liability is not disputed; hence the main question presented concerns the excessiveness of the damages awarded.

Plaintiff, a 33-year-old single woman, operated a retail florist business from the home of Mrs. Helen Wasiolek, where plaintiff had also resided for nine years. She had been engaged in this business for a year and a half prior to the collision. On November 9, 1957 plaintiff was driving a wholesale florist salesman, one Parker, from his Camden shop to the Garden State Racetrack. Upon arriving in the vicinity of the track, she brought her car to a stop in the left lane preparatory to making a left turn to let Parker off at the track entrance. Her turn signal was in operation. Suddenly her car was struck a "terrific bang" from the rear by the Marino automobile. Plaintiff's head went forward and backward, and a number of bobby pins "flew out" of her hair. Her car was pushed forward for a distance of ten feet and her door sprung open. Parker was not injured, and plaintiff told him and the defendant that she was not hurt. Marino, a college student, admitted liability, the parties exchanged licenses and other information, and plaintiff drove off in due course. She returned to the Wasiolek home, felt "shaky

and nervous," rested for a while, and went on with what she "was supposed to do" that Saturday.

On Sunday, November 10, plaintiff began to feel a stiffness of the neck, headaches, and a swelling of the right hand. The headaches and stiffness of the neck are associated with what are commonly known as "whiplash" injuries. On Tuesday, November 12, she consulted Dr. Paul T. Milnamow and was treated by him on 23 occasions during a two-month period ending on January 17, 1958. Dr. Milnamow, whose work is "partially limited to general surgery," gave plaintiff "therapy treatment" and pills and ordered X-rays to be taken by a radiologist, Dr. Tropea. In this period, plaintiff also allegedly developed a condition of losing her balance, caused by a buckling of the right knee. This condition was not a separate ailment but was claimed to be "part and parcel" of the main injury to the neck.

Referring to his records, Dr. Milnamow testified:

"[M]ostly her complaints were to the back of her neck on the right side and extending down into the shoulder. Now, any other complaints I feel were minimal and I did not take particular note of them."

Dr. Tropea was not produced as a witness, and his X-ray report was not in Dr. Milnamow's file. The latter recalled, however, that the report was negative on any fractures in the cervical (neck) region, but that it did mention a subluxation of the fourth cervical vertebra. A subluxation is a dislocation or "slipping in and out of a vertebra." There are degrees of subluxation, varying from 1% to 99%, on a scale of "mild, moderate and severe." Dr. Milnamow explained the fact that none of his records mentioned a subluxation by emphasizing that it was a "very mild one," and "mild enough that I overlooked it." He testified he was not certain at that time that plaintiff had a subluxation of any degree. His prognosis in November 1957 was that plaintiff's disability would subside in nine weeks. On January 17, 1958 -- just over nine weeks after he first saw plaintiff -- he concluded treatment of the plaintiff. He also supplied her

with the names of some orthopedic specialists, none of whom plaintiff visited.

At the request of defendant's attorney, Dr. George W. Grenhart examined plaintiff on January 21, 1958. He testified that there was no muscle spasm present, which meant that "she was not having severe pain." He noted some tenderness over the region of the fourth cervical vertebra, but that there was no restriction of neck motion. His diagnosis was a whiplash injury.

From January to June 1958 plaintiff did not see another doctor, but was "hoping from day to day that this would go away." In June she sought attention from Dr. Anthony F. DePalma, a specialist in orthopedic surgery located in Philadelphia, whose deposition was introduced on plaintiff's case. Dr. DePalma found a presence of muscle spasm, and plaintiff experienced pain when pressure was applied to the lower cervical region. His diagnosis, based on his X-ray examination, was that she had a mild subluxation and sprain of the cervical spine. He advised plaintiff to restrict her activities, to wear a felt collar, and to start exercising the cervical spine by wearing a weight on her head. He described plaintiff's injury as painful and disabling. Dr. DePalma saw her on 13 visits. In November 1958, plaintiff's symptoms had diminished, she asked to take the collar off, and he advised her to take it off for short periods during the day. By March 6, 1959, the last visit, plaintiff had "improved considerably," had no muscle spasm and, in Dr. DePalma's judgment, ...

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