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Hambro v. Clapa

May 27, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6258-06.

Per curiam.


Submitted March 5, 2009

Before Judges Carchman and Sabatino.

Plaintiffs Lee Hambro and Doreen Hambro*fn1 appeal from a jury verdict and entry of judgment finding no cause for action on plaintiff's claim for personal injuries suffered as a result of an automobile accident. The judgment was based on the jury's negative answer to Question #1 of the verdict sheet, inquiring whether plaintiff "suffer[ed] a permanent injury proximately caused by his August 24, 2005 motor vehicle accident . . . ." We affirm.

We briefly set forth the facts relevant to the issues on appeal. On Wednesday, August 24, 2005, at approximately 4:30 p.m., plaintiff was driving on Route 40 on his way to pick up his son from day care. As plaintiff was stopped in a line of traffic, he was struck from behind by another vehicle. Plaintiff described the accident at trial:

Well, I was -- I was standing there. Next thing I know I heard errr (phonetic), bang. I mean I didn't even get a chance to hear a skid so I could kind of hold up. As my head went back I looked up in the mirror and I --I saw his car veer off and I was trying to move my head back to see where I was headed because I thought I had hit the car in front of me and -- because he -- it seemed like we slid forever and it was the largest bang you've ever heard, like a cannon going off in the car.

Following the accident an EMT "jumped inside the car and was holding [plaintiff's] head." Shortly thereafter, defendant overheard a conversation between plaintiff and the EMT regarding whether plaintiff needed an ambulance. Defendant stated that when the EMT asked plaintiff if he needed an ambulance, he initially said "no"; however when the EMT said defendant's insurance "would cover it," an ambulance was then called. The ambulance took plaintiff to the emergency room at Atlantic City Medical Center in Pomona, New Jersey.

At trial, plaintiff described the extend of his pain upon arrival at the hospital:

My neck, my head. I had a really good headache. My hands were numb. My back hurt. My leg was hurt. I had pain down my legs, mainly my left leg and -- and just numbness in my hands right here.

Plaintiff was x-rayed, prescribed medicine for the pain and discharged. Over the next few days, however, plaintiff complained of headaches and "tightening up." Plaintiff returned to work the following Monday, five days after the accident.

Plaintiff then embarked on an extended course of treatments. He first treated with a chiropractor, Dr. Barry Rizzo, who had treated him previously for another back injury. Dr. Rizzo sent plaintiff for an MRI and referred him to see Dr. Andrew Glass. Dr. Rizzo also recommended physical therapy, which did not provide relief. Plaintiff then underwent a series of diagnostic procedures including an MRI, EMG testing and a myelogram.

Plaintiff sought treatment from Dr. Bruce Hairston, for pain management. Dr. Hairston ordered "SI injections," cortisone injections and acupuncture. Plaintiff also treated with Dr. Jeffrey Petersohn who ordered some "rhizotomies" done on plaintiff. This procedure required plaintiff to be placed under anesthesia while the doctor would "burn out the first branch of [] nerves."

Plaintiff continued to suffer from headaches, neck pain and back pain every day thereafter as well as problems with his memory. Plaintiff saw Dr. Robert Pasahow, a psychologist, for about six months to treat his memory difficulties.

At trial, plaintiff complained that he still has a burning feeling in his neck, suffered from numbness in his hands and problems with his left leg. Plaintiff claimed that he has to limit his lifting and cannot carry any does not do any heavy lifting, which has reduced his productivity at work. Plaintiff also asserted that because of the pain, he cannot participate in certain sporting activities with his son. He claimed that he had difficulty driving along his normal route where the accident took place. Plaintiff was also forced to hire someone to perform lawn and pool service instead of him performing these activities himself.

Plaintiff is a musician; however, he can no longer play his instrument, the drums, because of the pain. Plaintiff complained that, although he is 44 years of age, he feels like he is in his "late 80s, 90s." Plaintiff stated, regarding intimacy with his wife, that "there's no real relation there." Plaintiff stated that home exercises and swimming seem to aggravate his pain. He also claimed that he is not able to drive long distances because after sitting in the car for more than a few hours it feels like a ...

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