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John K. Willyung v. Walter T. Decker

June 20, 2012


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1150-09.

Per curiam.


Argued May 15, 2012 --

Before Judges Baxter and Carchman.

Following a jury trial for damages for injuries resulting from an automobile accident, the jury concluded that plaintiff John F. Willyung suffered a permanent injury and awarded him damages of $4700. Plaintiff's subsequent motion for a new trial or, in the alternative, an additur, was denied. Plaintiff appeals, and we affirm.

These are the facts adduced at trial. On March 7, 2007, plaintiff, sixty-nine years old at the time of trial, was involved in a motor vehicle accident when his vehicle was struck by a vehicle operated by defendant Walter T. Decker. Plaintiff was preparing to make a right-hand turn into his driveway from the northbound lane of Five Points Road in Howell when defendant's vehicle, heading south on the same roadway, suddenly entered the northbound lane and collided with plaintiff's vehicle. Defendant stipulated liability.

The right fender, undercarriage and wheel of plaintiff's car were damaged, and according to plaintiff, the impact knocked him around in the car, leaving him in a state of shock. After the accident, plaintiff experienced numbness across his back and neck and felt "woozy." An ambulance transported him to the emergency room, where x-rays were taken; plaintiff received pain medication and "an orthopedic [sic]."

Subsequently, plaintiff sought treatment from a chiropractor to treat pain in his upper back and neck. He was treated by the chiropractor for approximately three months. Plaintiff also received physical therapy at Middletown/Holmdel Physical Therapy, which consisted of exercises and manipulations of his neck, arms and back. This treatment yielded temporary relief that would last a day.

Plaintiff also consulted a pain management specialist, who administered an epidural injection into plaintiff's neck and another into his upper back. The injection provided approximately seventy-five percent pain relief for approximately one month before the pain returned. Plaintiff described the pain on a scale of zero to ten, with ten being the most pain he had ever experienced, as being an eight for his neck and a seven for his mid back. Plaintiff also consulted a neurologist, an orthopedic surgeon, Dr. Cary Glastein, and another pain management specialist, Dr. Scott Woska. Plaintiff continued to experience pain in his mid-back and pain that would radiate down his arms; his hands were numb. Woska treated plaintiff for approximately one year, until March 2010. During this time, Woska performed three procedures, including two epidurals and a radio frequency procedure to burn nerve endings. Each of these treatments provided relief that lasted for approximately one month. Woska opined as to the permanency of pain in plaintiff's neck; however, other than plaintiff's self-serving testimony, no expert proffered an opinion that there was a permanent injury to plaintiff's back.

In early 2010,*fn1 plaintiff was diagnosed with and began treatment for non-Hodgkins lymphoma. During his treatment, plaintiff took morphine sulfate twice daily for four months. The morphine eliminated the pain related to the injuries sustained during the motor vehicle accident.

Before the accident, plaintiff was retired but remained active. He was a member of a health club, where he exercised on a daily basis; he also played racquetball five or six times a week for a few hours at a time, rode his bike and exerted himself in the upkeep of his home. Plaintiff was also actively involved in breeding Weimaraner dogs.

According to plaintiff, the accident had a profound impact on his lifestyle and activities, as he claimed that he "do[es] 20, 25 percent of what [he] used to do." His involvement with the Weimaraners consists of letting them out of the kennel and putting them back. Plaintiff no longer walks the dogs because of the pain in his neck, upper back and arms, although during cross-examination, plaintiff conceded that he continues to raise litters of puppies with the help of his son and his tenant.

Plaintiff performs physical therapy exercises at the health club, with lighter weights than he previously used; after he exercises, he requires recovery time of at least a day from pain in his neck and upper back. Plaintiff plays racquetball twice a week for thirty to forty-five minutes at a time because of pain. He requires assistance cooking and cleaning his home because of numbness in his hands,*fn2 and since the accident, he has had to double the frequency of visits from his cleaning service. Plaintiff continues to describe his pain as "seven-eight" in his neck, shoulders and arms and as "eight" in his mid-back. He takes Extra-Strength Tylenol, Tylenol PM and sleeping medication, to treat the pain and permit him to sleep.

From 2008 to 2010, plaintiff "didn't do anything" because of his cancer. During this time, he did not play racquetball or engage in physical therapy exercises. Plaintiff indicated that he continues to have a forty percent ...

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