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Latoya C. Williams v. Daniele A. Restaino

November 21, 2012


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3527-08.

Per curiam.


Argued November 30, 2011

Before Judges Graves, J. N. Harris, and Koblitz.

Following a four-day trial, a jury awarded plaintiff Latoya Williams $1.2 million in compensatory damages for injuries she sustained in a motor vehicle accident. Defendant Daniele Restaino appeals from an order denying her motion for a new trial or, in the alternative, remittitur. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The accident occurred at approximately 12:46 a.m., on Sunday, July 23, 2006. Plaintiff testified she had "just passed the Union tollbooth" on the Garden State Parkway when she was struck from behind by a vehicle driven by defendant. Plaintiff described "a heavy impact," which caused her vehicle to go "around in circles" until it struck "some type of steel pole" located "on the right side of the Parkway." When the State Police arrived plaintiff declined medical assistance. Plaintiff's car sustained extensive damage and could not be driven.

Plaintiff testified she stayed in bed on Sunday because she "felt pain." On Monday, the pain was worse and plaintiff went to the emergency room at Mountainside Hospital. At the hospital, plaintiff complained of stiffness and pain in her lower back, neck, and shoulders, and radiating pain into her right leg. Plaintiff received an injection for the pain and was told to follow up with Dr. Robert Firetto, a chiropractic physician, if the pain and stiffness persisted.

On July 31, 2006, plaintiff went to see Dr. Firetto.*fn1 Dr. Firetto testified that plaintiff complained of low back pain radiating into her right leg, neck pain, headaches, dizziness, nausea, nightmares, and upper back pain radiating into both shoulders. He stated that her intake form, which requested information concerning past and present health issues, indicated no prior history of neck or back-related problems. Dr. Firetto testified that the initial visit consisted of orthopedic and neurological examinations, and a series of range of motion tests. Dr. Firetto diagnosed plaintiff with "a cervical sprain/strain," which he described as "an overstretching of the muscles, ligaments, and tendons in the neck." He gave plaintiff a back brace and started her on a treatment plan of three visits per week for four weeks. Treatment consisted of "chiropractic manipulation or mobilization, traction, decompression, electric muscle stimulation, infrared heat, ultrasound, therapeutic exercise, and deep muscle massage."

After the initial four-week course of treatment, plaintiff was still experiencing neck pain that radiated into her shoulders and upper arms, and low back pain that radiated into her right leg. Following his examination of plaintiff on September 11, 2006, Dr. Firetto recommended she undergo a cervical MRI.

The cervical MRI was conducted on September 26, 2006. Dr. Firetto testified the MRI showed "a disc herniation at the C7-T1 area." He explained that whiplash-type injuries often occur in that area "because when you're restrained in your seat with a shoulder belt, and your hips are restrained, the only thing that gets to whip forward and backwards is your neck." Dr. Firetto testified that the automobile accident caused the herniation, and that the MRI results were consistent with his own findings.

In addition, due to plaintiff's low back pain, Dr. Firetto referred plaintiff for a lumbar MRI, which was conducted on October 27, 2006. According to Dr. Firetto, the lumbar MRI showed "a broad-base posterior disc herniation at L4-L5, and at L5-S1, [plaintiff] also had a broad-based disc herniation." Dr. Firetto also ordered an EMG that confirmed "a bilateral L5-S1 lumbar nerve root irritation."

Plaintiff was treated by Dr. Firetto approximately forty-nine times between July 31, 2006 and January 9, 2007. He concluded that plaintiff sustained permanent injuries as a result of the automobile accident, and that plaintiff's "prognosis was not good." According to Dr. Firetto, plaintiff "will have recurrent symptomatology of pain and limitation in range of motion in the future," and she will be "predisposed to arthritic changes in the future."

After plaintiff was discharged from Dr. Firetto's care, she continued to experience pain, and she testified that she saw other doctors, including Dr. Vonroth and Dr. Vizzone. Plaintiff was also referred to Dr. Allen Glushakow, a board-certified orthopedic surgeon.

Following his initial examination of plaintiff and his review of her treatment records, Dr. Glushakow recommended another lumbar MRI, which was conducted on May 16, 2008. Dr. Glushakow acknowledged that the radiologist that performed the second lumbar MRI did not find any herniations. Nevertheless, after personally ...

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