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Ostrowski v. Cape Transit Corp.

August 02, 2004

JOHN G. OSTROWSKI AND DOLORES OSTROWSKI, PLAINTIFFS-RESPONDENTS,
v.
CAPE TRANSIT CORP. AND TED M. LIVELY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3690-99.

Before Judges Skillman, Wells and C.S. Fisher.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 23, 2004

In this personal injury case, the primary issue on appeal is whether defendants' presentation of expert medical opinion testimony that plaintiff was faking his symptoms of a serious brain injury constituted an attack on his character for truthfulness which plaintiff could rebut with evidence concerning his character for truthfulness. We conclude that defendants' evidence constituted an attack on plaintiff's character for truthfulness which plaintiff was properly permitted to rebut by evidence that he is a truthful person.

Plaintiff, John G. Ostrowski, suffered personal injuries on November 18, 1997, when a truck he was driving in the course of his employment was hit in the rear by a bus. The bus driver testified that the accident occurred as a result of his brakes failing, and he estimated his speed at the time of impact as 20 to 30 m.p.h. As a result, plaintiff's head slammed into his windshield, causing it to break.

Plaintiff and his wife, Dolores Ostrowski, brought this action against the bus driver, Ted M. Lively, and his employer, Cape Transit Corp. Defendants conceded liability, and the case was tried before a jury solely as to damages.

The parties' witnesses presented dramatically different views regarding the seriousness of the injuries plaintiff suffered in the accident. Plaintiff's witnesses testified that he suffered a serious brain injury, as a result of which he is no longer able to work and requires substantial assistance in carrying out normal life functions. Defendants' witnesses testified that plaintiff suffered a mild concussion, which did not cause any permanent consequences, and that he is now able to work and enjoy his other activities in the same manner as before the accident.

One of plaintiff's primary activities was playing a saxophone in the Avalon String Band, which marches in Philadelphia's New Year's Day Mummers Parade. Plaintiff's witnesses testified that he had been one of the best musicians and lead performers before the accident, but even though he has remained in the band since the accident, his skills have diminished significantly and he now plays only a secondary role.

Defendants conducted surveillance videotaping of plaintiff, which purported to show that plaintiff was still an active member of the band. Plaintiff countered with testimony by other band members, who compared videotape footage of plaintiff's performances before the accident with the footage defendants had obtained by their surveillance videotaping.

Plaintiff's claim that he suffered a serious brain injury in the accident was supported by the testimony of four treating doctors, all of whom concluded that plaintiff suffers from serious cognitive and emotional problems as a result of the accident and that his condition is permanent.

Plaintiff's primary care physician, Dr. Kenneth Winokur, testified that he has seen plaintiff more than one hundred times since the accident. Approximately a month and a half after the accident, plaintiff had blurred vision in his right eye. Plaintiff also had"some right facial asymmetry" and appeared to have"neurocognitive defects." In addition, he"exhibited depression." Based on these preliminary observations and diagnoses, Dr. Winokur referred plaintiff to an ophthalmologist, neurologist and psychiatrist. He also sent plaintiff for treatment at the Magee Rehabilitation Center, which has a closed head injury rehabilitation unit. Dr. Winokur concluded that plaintiff has depression, impotence and neurocognitive deficits. Dr. Winokur also concluded that plaintiff can no longer work or drive a motor vehicle.

Dr. Timothy J. Michals, a psychiatrist who examined plaintiff sixty times, testified that plaintiff has serious deficits in short-term memory and judgment. Dr. Michals concluded that plaintiff should not drive a motor vehicle and cannot work. He also expressed the opinion that plaintiff needs someone with him at all times. Although plaintiff's MRIs and CAT scans did not reveal any injury, Dr. Michals testified that such tests frequently do not show brain injuries.

Dr. Thomas Swirsky-Sacchetti, a clinical psychologist who specializes in neuropsychology, conducted ten hours of neuropsychological testing of plaintiff and concluded that he was suffering from"a moderately severe post-concussion syndrome" and was clinically depressed with a high level of anxiety about his future. Plaintiff also exhibited"deficits in verbal and nonverbal memory, motor sequencing, visual-spacial reasoning, and complex problem solving." Dr. Swirsky-Sacchetti concluded, based on the severity of plaintiff's psychological deficits and the amount of time that had elapsed since the accident, that plaintiff's problems are permanent. On cross-examination, Dr. Swirsky-Sacchetti conceded that the psychological tests he performed depended on the credibility of plaintiff's answers to his questions.

Dr. Michael Saulino, who specializes in physical medicine and rehabilitation, examined and treated plaintiff at the Magee Rehabilitation Hospital. He concluded that plaintiff suffered a"traumatic brain injury to the left front part of his brain" in the 1997 motor vehicle accident. Dr. Saulino also found a mild physical weakness and impairment of coordination on the right side of plaintiff's body, particularly his arm and leg. He expressed the opinion that plaintiff should not drive a motor vehicle because he would pose a risk to himself and others, and that he cannot return to gainful employment. Dr. Saulino testified that plaintiff should be supervised"in any environment or situation that is complex, that is confusing, that is unfamiliar."

Plaintiff also presented testimony by ten lay witnesses to support his claim that he suffered a brain injury in the accident that has had a serious adverse affect upon his capacity to engage in his former activities, especially playing in the Avalon String Band. Most of those witnesses were band members.

The testimony of Jacob P. Hart is illustrative of this group of witnesses' testimony. Hart described plaintiff as"the driving force" in the band before his accident. He was the band's"ultimate administrator," who dealt with the costume maker, booking agents and food services. Musically, plaintiff's talent was second only to a band member who is a professional saxophonist. Plaintiff was so skilled playing and dancing that he was front and center in the New Year's Day parade, which is where the band's most talented members are positioned. Moreover, plaintiff was the"life of the party" and one of the funniest people Hart had ever met.

However, after the 1997 accident, plaintiff lost his"zest for life, the humor, the up-front personality." He was no longer"deeply involved in all of the intricacies of running the band." Musically, plaintiff could still play but not the way he had in the past. Plaintiff also struggled with the dancing and was no longer lined up in the front. Instead, he was relegated to the"duck line," which is in the back. People in the duck line do not have to learn all the steps the people in the front perform because they are not seen on television.

The band's director testified that plaintiff had wanted to resign after the accident, but other band members asked him to stay in the band, not because of his ability, but as something they"owe[d]" him for his past dedication. When plaintiff was inducted into the Mummers Hall of Fame, another band member had to deliver his speech because plaintiff was unable to do it himself.

Plaintiff also presented the testimony of the president of Dubin Paper Company, which employed him as a truck driver from 1980 until the accident, and two of his co-workers. They described plaintiff as capable, efficient and hardworking. However, there was a radical change in plaintiff's capacities and demeanor after the accident. While he had been outgoing and friendly before the accident, he became withdrawn and was unable to return to his work. In addition, according to the president,"[h]is speech had completely changed. It was slurred. His movements were somewhat disorganized." One of his co-workers testified that plaintiff would become easily confused:

He'd be talking about something, he would - then he'd go off, he wouldn't remember, you know, what we were talking about. You'd have to ...


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