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Gates v. Estate of Diabo

March 6, 2009

GORDON GATES, PLAINTIFF-APPELLANT,
v.
ESTATE OF VICTOR DIABO, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3832-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2009

Before Judges Lisa and Alvarez.

Plaintiff, Gordon Gates, appeals from an order denying his motion for a new trial or additur. The jury awarded plaintiff $5000, reduced by his fifty percent negligence, for a shoulder injury he sustained when he fell on the icy sidewalk on defendant's premises. Plaintiff argues that the judge erred because the verdict was unreasonable, against the weight of the evidence and shocking to the conscience, thus resulting in a miscarriage of justice under the law. We reject plaintiff's argument and affirm.

On the evening of February 4, 2005, plaintiff slipped on the snow and ice-covered sidewalk outside defendant's office in Hillside. Plaintiff landed on his left shoulder. He did not seek immediate medical attention but proceeded home. The next day he went to the emergency room at Newark Beth Israel Hospital. X-rays were negative for fracture. He was released with a prescription for pain medication and his arm was placed in a sling. Although he was instructed to return in two weeks, he did not.

Plaintiff's next medical evaluation of his shoulder occurred on March 1, 2005. On that date, he attended a previously-scheduled appointment at the University of Medicine and Dentistry of New Jersey (UMDNJ). Still wearing a sling, he told the attending physician about his fall and previous treatment at Beth Israel. Plaintiff was referred to the orthopedic department at UMDNJ, where he saw Dr. Robin Gehrmann, an orthopedic specialist.

Dr. Gehrmann observed a limited and painful range of motion and mildly diminished strength in plaintiff's left shoulder. X- rays revealed no fracture or dislocation, but did reveal a well-healed clavicle fracture in plaintiff's left shoulder from a previous injury many years earlier.

Dr. Gehrmann believed plaintiff had developed a frozen shoulder, or adhesive capsulitis. Dr. Gehrmann testified that an individual who develops a frozen shoulder has "painful limitations in their shoulder motion, usually related to . . . scar tissue forming in the joint or a thickening of the actual capsule that surrounds the joint itself." Dr. Gehrmann prescribed a physical therapy plan for plaintiff. Plaintiff attended physical therapy and did home exercises for about fourteen months, although the specific times and regularity of the program were not fully detailed.

Dr. Gehrmann or someone on his staff saw plaintiff from time to time for about eighteen months, with the last visit for this injury occurring on September 5, 2006. During the course of that treatment, Dr. Gehrmann administered two cortisone injections. He reported continuing increase in plaintiff's range of motion and decrease in pain over the course of treatment. For example, his office notes for December 13, 2005 reflected, "At this point we feel that adhesive capsulitis to resolving [sic] the patient is close to reaching full motion." Plaintiff next visited Dr. Gehrmann on February 14, 2006, and then on April 18, 2006, when plaintiff reported a dramatic improvement in his shoulder in terms of his range of motion and pain. On July 18, 2006, plaintiff reported and Dr. Gehrmann observed further increase in plaintiff's range of motion. When treatment was completed on September 5, 2006, plaintiff described a dull, but occasionally sharp and intermittent, pain.

Dr. Gehrmann testified at trial that it typically takes an individual about two years or more to recover from the effects of a frozen shoulder, and some people never fully recover. However, he fell short of opining that plaintiff suffered a permanent injury. He gave this direct testimony:

Q: The frozen shoulder, Doctor, you accounted in your report that a frozen shoulder could take years to improve, and sometimes it never improves; it that a fact?

A: It can -- correct. It can take years to improve. And, some people will, ah, be left with residual loss ...


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