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Carolyn Watts v. Michele J. Procopio

September 18, 2012

CAROLYN WATTS, PLAINTIFF-APPELLANT, AND DAVID WATTS, PLAINTIFF,
v.
MICHELE J. PROCOPIO, DEFENDANT-RESPONDENT, AND LEONARD PROCOPIO, DEFENDANT.*FN1
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2622-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2012

Before Judges Payne and Hayden.

On January 16, 2008, plaintiff, Carolyn Watts, was involved in a head-on motor vehicle collision with defendant, Michele J. Procopio, as the result of which plaintiff claimed injury to her a finger, her right wrist and her neck and right shoulder. At trial, Procopio's liability was admitted, and the jury found plaintiff to have been injured, but in a case to which the verbal threshold was inapplicable, it awarded zero damages. Plaintiff moved for a new trial or additur, and her motion was denied. This appeal from the denial of plaintiff's new trial motion followed. We affirm.

I.

At trial, plaintiff testified that, on the day of the accident, she was driving a conversion van at a curve on the roadway when she saw defendant's vehicle approaching on the wrong side of the road. Although plaintiff sought to avoid defendant's vehicle by turning off the road into a driveway, she was not successful. Defendant's vehicle hit hers, knocking off the wheel on the driver's side of the van and causing other significant damage. The van was totaled. A passing motorist was able to open the driver's side door sufficiently for plaintiff to get out. After the police came, plaintiff declined medical assistance. A neighbor drove plaintiff home. It was established that, because plaintiff's car was going to be towed and could not be locked, before leaving the accident site, plaintiff unloaded multiple Christmas gifts from the rear of the van and transferred them into the neighbor's car so that they could later be returned.

Thereafter, plaintiff informed her husband of what had occurred. He returned home from work and took plaintiff to Monmouth Medical Center, where she presented at the emergency department with complaints of pain in the right wrist, left hand and head that she stated had commenced at the accident scene. X-rays and a CT scan of the head were performed. Plaintiff was instructed to follow up with an orthopedist, and she was discharged with splints on both wrists.

Following her discharge, plaintiff, a hand therapist, contacted Christopher D. Johnson, M.D., an orthopedic hand surgeon with whom she had no business relationship. Dr. Johnson replaced the splints with "better" ones, prescribed over-the-counter anti-inflammatory drugs and scheduled a follow-up appointment in six to eight weeks.

By the time of the second appointment, plaintiff's complaints regarding her left hand had resolved, but those regarding the right hand had not. As a result, Dr. Johnson ordered an MRI of plaintiff's right arm and wrist. According to plaintiff, following review of the MRI, the doctor diagnosed a torn ligament and recommended surgery. Plaintiff testified that, instead, she self-treated. However, after experiencing continuing complaints, she scheduled an appointment with Joseph

T. Barmakian, M.D., a hand specialist that she had known professionally for "years," who maintained an office in the building in which plaintiff practiced and referred patients to her. Dr. Barmakian reviewed plaintiff's MRI and performed an evaluation, concluding that plaintiff could either have surgery or live with her condition.

Plaintiff testified additionally that she was seen by physiatrist Dr. Swick for unresolved pain in her right shoulder. Physical therapy for one month was authorized, but plaintiff's insurer declined to authorize any additional treatment. At the time of trial, plaintiff's complaints of pain in the left hand had "pretty much resolved." Similarly, her right shoulder and upper back were "okay," particularly in comparison to her right wrist. In that connection, plaintiff testified that her wrist clicks around and it's a little unstable. There's not a lot of strength in my hand. And when it clicks a lot, then it hurts.

If I use it a lot one day I'll wake up with a lot of pain the next day. If I just leave it still, then it has a little bit of a dull ache but it's not terrible. But it's always there. And if I use it, then I pay for it.

Plaintiff, who was forty-one years of age at the time of the accident, claimed that her wrist injury affected her ability to give certain physical therapy treatments, her ability to perform household chores, and her ability to engage in sports such as biking and water skiing and to exercise at the gym. She had ...


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