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DeVirgilio v. Westbrook

March 31, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-926-05.

Per curiam.


Argued March 5, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

After a two-day trial in this automobile negligence case, a jury determined that plaintiff, Francine DeVirgilio, was not entitled to any monetary damages. The jury reached that determination as to damages after separately finding that: (1) the defendant motorist, Roy L. Westbrook, was negligent and had proximately caused the collision and plaintiff's bodily injury; and (2) plaintiff had sustained a permanent injury that would not heal "to function normally with further medical treatment," thereby surmounting the limitation-on-lawsuit threshold provisions of the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-1.1 to -35.

Following the verdict, plaintiff moved for a new trial, or, in the alternative, to have the court apply an additur and award her money damages. The trial judge denied the motions and, consistent with the verdict, entered final judgment for defendant.

Plaintiff now appeals. She argues that because the jury found defendant was liable for the accident and had caused her permanent injuries, it is a manifest injustice to not award her monetary damages for pain and suffering. We reject this contention, and affirm the judgment.


More than a decade ago, plaintiff and defendant began living together in Hazlet Township. Plaintiff, who at the time of trial was in her mid-fifties, is a state-licensed beautician. Since receiving her license in 1970, she has worked as a beautician at various salons. At the time of the subject accident, she was employed at two salons, LA Hair and Riverside Salon.

On July 22, 2003, plaintiff and defendant were traveling in defendant's PT Cruiser sedan in Middletown Township. Defendant was at the wheel of the PT Cruiser, and plaintiff was in the front passenger seat, wearing a seat belt. While going an estimated thirty miles per hour, the PT Cruiser struck the rear of another vehicle stopped at a traffic light. The impact caused airbags in the PT Cruiser to deploy. After getting out of the car, plaintiff felt pain as she reached back into the car to retrieve her pocketbook. She asked to be driven to a hospital but declined an ambulance.

Immediately police were dispatched to the accident scene. When they arrived, they promptly drove defendant to his home so that he could retrieve another vehicle in which to transport plaintiff to an emergency room.

After arriving at the hospital, plaintiff was admitted and placed under the care of a Dr. Murugesan.*fn1 She was discharged three days later. Following her discharge, plaintiff continued to see Dr. Murugesan. After conducting a magnetic resonance imaging ("MRI") examination, Dr. Murugesan recommended that plaintiff be examined by an orthopedic physician.

Consequently, plaintiff was referred to the Shore Orthopedic Group, where she was seen by an orthopedic surgeon in the practice, Cary Glastein, M.D. After examining plaintiff, Dr. Glastein prescribed a regimen of physical therapy. Because the physical therapy did not abate plaintiff's continuing neck pain, Dr. Glastein referred plaintiff to Scott Woska, M.D., a colleague in his practice group who specializes in interventional pain management. Dr. Woska is board-certified in physical medicine, rehabilitation and pain management.

Dr. Woska found that plaintiff had sustained disc herniations in her cervical spine at C3-4 and C6-7, along with a disc bulge at C4-5 and a "ridge disk complex" at C5-6.*fn2 He then performed an electromyography ("EMG") study, which reinforced his opinion that plaintiff had, in fact, sustained multiple cervical herniations, causing her to experience radiating pain in both arms.

Between March 22 and June 14, 2004, Dr. Woska saw plaintiff four times. In addition to prescribing oral pain medications for her, Dr. Woska recommended that plaintiff get a cervical epidural steroid injection. Plaintiff declined the injection because she has severe allergies to iodine and shellfish. Her objection persisted despite being assured that a different type of injection would produce no allergic reaction. However, plaintiff did obtain acupuncture treatment at some unspecified time after her final visit with Dr. Woska.

On February 17, 2005, plaintiff filed a personal injury action in the Law Division against defendant. The complaint alleged, among other things, that because of defendant's negligent operation of the motor vehicle, "plaintiff was caused to sustain various severe personal injuries, both temporary and permanent in nature." Because plaintiff, by virtue of her insurance policy, is admittedly subject to the lawsuit limitation provisions under AICRA, her complaint was accompanied by a certification of permanency from Dr. Woska, in compliance with N.J.S.A. 39:6A-8.

Following a period of discovery, defendant filed a motion for summary judgment, alleging that plaintiff's injuries were insufficient to vault the AICRA threshold limitations. After hearing oral argument, the motion judge denied defendant's application.*fn3 Consequently, the court reserved for a jury the questions of permanency, causation and other medical issues raised by the competing lay and expert proofs.

Trial commenced before a different Law Division judge on June 30, 2008. After jury selection and opening statements from counsel, the jury heard testimony from plaintiff, defendant, and defendant's expert medical witness, Michael Gordon, M.D. The jury also was presented the de bene esse deposition of plaintiff's medical expert, Dr. Woska.

In addition to describing the happening of the accident, plaintiff testified about the changes in her physical condition following its occurrence in July 2003. She asserted that before the accident, she was able to cut her patrons' hair without any difficulty, and that, in general, she was pain-free. She stated that she used to maintain a garden with flowers and vegetables. After the accident, however, plaintiff experienced what she termed as "[t]otal changes."

In particular, plaintiff asserted that due to her injuries, she is no longer able to work at LA Hair. She remained employed at Riverside Salon, but claimed that after the accident, she could no longer "do the shampoos . . . sweep the hair, fill the bottles, fold the towels," and that she "would drop [her] scissor[s] . . . [.]" Plaintiff recalled that prior to the accident, she would work from "eight o'clock in the morning . . . till six [p.m.]." By comparison, as of the time of trial in the summer of 2008, she could no longer work the same hours and she still has difficulty holding scissors. Even so, plaintiff asserted no economic claims for lost wages, restricting her damages claims to an award for pain and suffering.

Plaintiff contended that she can no longer garden. In addition, her recreational trips with defendant to Atlantic City have ceased.

On cross-examination, plaintiff did not dispute that she had not received additional treatment from May 2005 through the time of trial in July 2008. She admitted that she was able to resume some gardening activity. She also ...

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