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Kass v. O'Mahoney

October 29, 2007

ARTHUR I. KASS, PLAINTIFF-APPELLANT,
v.
MARGARET V. O'MAHONEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2072-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 22, 2007

Before Judges Lintner and Graves.

On May 8, 2002, while operating his motorcycle, plaintiff, Arthur Kass, was struck by a vehicle operated by defendant, Margaret O'Mahoney. Plaintiff filed a personal injury action.

Following a trial on damages only,*fn1 a jury returned a verdict of $10,000. Plaintiff appeals from the trial judge's order denying his motion for new trial or in the alternative for additur. We affirm.

We restate the relevant facts. Defendant's vehicle struck plaintiff on his right side while plaintiff was negotiating a right turn, knocking plaintiff to ground. At the scene, plaintiff was placed on a stretcher and transported via ambulance to Jersey Shore Medical Center where he complained of pain in his right knee, hip, and low back. The emergency room record listed plaintiff as "not employed." At trial, however, plaintiff testified that he was employed by Walt's Carpets as a carpet installer for which he was paid cash and did not report his income for tax purposes. According to plaintiff, he initially missed three weeks from work due to pain in his knee and low back.

Three weeks after the accident, plaintiff began treatment with Dr. John Hochberg, who saw plaintiff approximately fifty times. Plaintiff complained of continuing pain in his right knee, hip, and low back. Hochberg's testimony was presented via video tape. He initially observed "traumatized knee clicking strongly suggest[ing] some sort of internal derangement, that some of the tissues inside might not be moving perfectly, there might be some swelling, or tearing." He found that plaintiff "was tender in the patella femoral joint of the right knee . . . [and] had a lateral tilt to the patella." Hochberg diagnosed patella femoral syndrome and contusions to the knee, but was not sure if there was any tearing in the knee. He ordered physical therapy, as well as a strapping of the knee to keep the knee straight and reduce inflammation.

On October 8, 2002, plaintiff complained of "buckling and locking" of the knee, which Hochberg believed suggested a torn cartilage and weakened muscles or ligaments. Hochberg could pop plaintiff's kneecap out of its joint, which is not normal. An MRI was ordered and Hochberg testified that both he and the radiologist interpreted it as showing effusion, or fluid in the joint, which Hochberg maintained was indicative of trauma. According to Hochberg, both he and the radiologist also found damage to the undersurface of the kneecap, which Hochberg described as chondromalacia. The MRI also showed bruising to the kneecap. Hochberg also noticed synovitis, which he described as inflammation of the lining tissue of the knee. He could not determine when the synovitis occurred.

On March 4, 2003, Hochberg discussed therapy with plaintiff but "didn't think it would be of any use." Hochberg also told plaintiff that "surgery might not work but that it was his best chance and that with surgery [plaintiff] could actually get worse, get infected and bleed." Nonetheless, Hochberg believed that surgery was necessary and that plaintiff's condition "would have gotten worse without surgery."

On August 29, 2003, Hochberg performed arthroscopic surgery on plaintiff's right knee. He found damaged cartilage, which he believed was consistent with chondromalacia, and inflammation of the synovial tissue through the patella. Hochberg removed damaged tissue. Plaintiff, however, did not believe that the surgery improved the condition of his knee.

On reexamination of his knee in September 2003, Hochberg found that plaintiff "was doing well but in view of the severity [of his knee condition] that he would have arthritis in 10 to 15 years." Hochberg believed plaintiff could return to work in two to three weeks, however, plaintiff did not return to work for three months after the surgery. On May 2, 2004, Hochberg found crepitus, which is a "crackling" in the knee.

Hochberg characterized plaintiff's prognosis as "poor," noting that, even after the surgery, the knee is "never really a hundred percent." According to Hochberg, plaintiff has residual synovitis that will continue to "cause some pain and stiffness in the knee." He also explained that the damage to the articulating surface of the knee would become arthritic. He further referenced two scars resulting from the surgery. In Hochberg's opinion, "the knee injury was directly related to the accident between the motorcycle and the car." Hochberg based his opinion on plaintiff having "no history of prior trauma to the knee," the MRI findings being "consistent with acute trauma," and his findings during surgery being "consistent with a traumatic injury." He did not believe that plaintiff's knee or back injuries could have been caused by his job as a carpet installer, because carpet installers generally suffer injuries to a different part of the knee that develop over a longer time period than the five months plaintiff had worked as a carpet installer.

Plaintiff also consulted Hochberg for treatment of his low back. Hochberg referred plaintiff to Dr. Del Valle and Dr. Chadhury for pain management. Chadury gave plaintiff three epidural injections to his low back, each of which relieved plaintiff's low back pain for about a month, only to return after the effectiveness of the shot wore off. Hochberg was not satisfied with the progress and prescribed pain medication and ordered an MRI. On May 2, 2004, plaintiff told Hochberg that the pain in his back was "eight out of ten." Hochberg believed plaintiff was a candidate for nucleoplasty, a new procedure that he expected would alleviate plaintiff's back pain. Plaintiff also received treatment on his low back from a chiropractor, Dr. Herzog, who treated ...


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