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Ganguly v. Vitabile

December 18, 2009

SUDEEP GANGULY, PLAINTIFF-APPELLANT,
v.
EMANUELE VITABILE AND GARY BURNS, DEFENDANTS-RESPONDENTS, AND ZACK PAINTING COMPANY, ORLANDO MATOS, TRANS PORTE, JEFFREY SWICK, AND IRINA HAYDON, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1170-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 2, 2009

Before Judges Fisher and Espinosa.

In this verbal threshold case, the jury determined that plaintiff Sudeep Ganguly did not suffer a permanent injury as defined in N.J.S.A. 39:6A-8(a). As a result, no non-economic damages were awarded to plaintiff. He appeals from the trial court's denial of his motions for a directed verdict, for a new trial and for reconsideration. We affirm.

On September 9, 2004, a car driven by defendant Emanuele Vitabile struck the rear end of a car driven by plaintiff. Mr. Ganguly described feeling three impacts as his car bounced between Mr. Vitabile's vehicle and the car in front of him. One of the impacts was apparently related to a collision after the initial impact between the Vitabile vehicle and a truck driven by defendant Gary Burns that was owned by his employer, defendant Zack Painting Co.*fn1 Plaintiff was extracted from his crumpled car and transported by ambulance to JFK Medical Center in Edison, New Jersey. Hospital records revealed that plaintiff reported only mild neck and back pain. He was treated and released.

Plaintiff saw his family physician, Dr. Subudin Natarajan, four days after the accident. He complained about neck and back pain, and told Dr. Natarajan that he hit his knees on the dashboard. Plaintiff also testified that he saw Dr. John Mandel, a chiropractor, who gave him a note to stay home from work.

On November 8, 2004, plaintiff went to see Dr. Gregory Charko, an orthopedic surgeon recommended by his lawyer. Dr. Charko testified that plaintiff had pain in his neck and back, and had a limited range of motion in both his neck and lower back. However, Dr. Charko found that he had no spinal fractures, his disc spaces were maintained and his ligaments maintained stability in his back. Dr. Charko testified that a Magnetic Resonance Image (MRI) taken in October 2004 revealed that plaintiff had a herniated disc at the L5-S1 level, two herniated discs in the neck and "a little bulging" of two discs at C3-4 and C4-5. He stated that these objective findings were consistent with plaintiff's complaints. Dr. Charko's findings upon examination of plaintiff's legs, hips, knees and ankles were unremarkable.

When plaintiff returned for a second visit on December 14, 2004, he told Dr. Charko about increasing pain across both knees. Dr. Charko's examination revealed some tenderness across the front of his knee, what we call positive patella grind test . . . and he had some tenderness at the joint line on the inner aspect of the knee. The ligaments of the knee were stable, didn't look like he ruptured any ligaments on either knee.

Dr. Charko diagnosed the condition as "anterior knee pain syndrome," which could be caused by any number of problems*fn2 with the knee, and could be either temporary or permanent. He recommended physical therapy. Dr. Charko stated that an MRI taken in January 2005 showed "some excess fluid in the knee." Plaintiff complained about knee pain in three more visits to Dr. Charko but on his April 25, 2005 visit he reported that physical therapy was somewhat helpful. In November 2005, plaintiff complained of escalating pain in his right knee. Dr. Charko administered a cortisone injection after plaintiff complained of renewed pain in January 2006. After the pain returned, Dr. Charko recommended removing plaintiff's "medial plica," a band "that comes around the inner side of the knee." Dr. Charko stated that this structure is unnecessary and is "present in anywhere from 50 to 80 percent of the population."

Dr. Charko performed the surgery in March 2006, and found some damaged cartilage around the end of the thighbone and the under side of the kneecap. Dr. Charko said that in a June 2006 follow-up visit the plaintiff still had: some mild knee pain in the [front] of his knees with especially going down stairs.

Noted that with the additional therapy that the pain he had going up stairs as well as down had improved and it was mainly going down stairs now.

In his physical examination, Dr. Charko found that the plaintiff had a normal range of motion in his knee, the knee was stable, and was not swollen.

For more than a year and a half, plaintiff did not return to Dr. Charko. He returned in December 2007, after he was involved in a second car accident, ...


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