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Dolywa v. Anderson

Superior Court of New Jersey, Appellate Division

August 20, 2013

MARIA DOLYWA and BRUCE DOLYWA, Plaintiffs-Appellants,
EUGENE ANDERSON and TRI-STATE TOP SOIL, INC., Defendants-Respondents.


Argued October 17, 2012

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-548-08.

John V. McDermott, Jr., argued the cause for appellants (Law Offices of John V. McDermott, Jr., attorneys; Mr. McDermott and Cynthia M. Collins, on the brief).

Jill B. Flynn argued the cause for respondents (Zirulnik, Sherlock & DeMille, attorneys; Ms. Flynn, on the brief).

Before Judges Fuentes, Ashrafi, and Hayden.


On July 3, 2007, plaintiff Maria Dolywa was involved in an automobile accident when a thirty-four ton dump truck, driven by defendant Eugene Anderson and owned by defendant TriState Top Soil, Inc., hit the car in which she was driving. As a result, plaintiff[1] sued defendants, claiming injury to her neck, shoulder, back, and head. At trial, the judge entered a directed verdict on the issue of liability. The jury found that plaintiff did not "prove by a preponderance of the evidence that she sustained personal injury or injuries proximately caused by the accident." Plaintiff moved for a new trial and the judge denied the motion. This appeal followed. We affirm.

The evidence showed that plaintiff was sitting in her stationary 1997 Cadillac Eldorado, which weighed 3800 pounds, when she was hit from behind on the rear passenger side by defendants' loaded dump truck, which weighed 69, 000 pounds. Plaintiff's insurance company deemed her car "totaled."

Immediately after the accident, plaintiff got out of her car and went to a nearby store to call the police, who came to the scene. Plaintiff told the police that she was not injured, then moved her car off the road and waited at the accident site for over an hour until her husband arrived. He took her to Saint Clare's Hospital, where she reported that she was suffering from "an excruciating headache, " neck pain and blurry vision, but was released from the hospital later that day. Plaintiff then went back to the accident site and drove her car to her home, about two miles away.

Plaintiff testified that she spent the next two days at home with nausea, vision problems and mounting pain in her neck, back, shoulders, and hip. Three days after the accident, plaintiff followed up with her primary care physician, Dr. Kathleen Saradarian, who diagnosed a concussion and prescribed pain medication and an anti-inflammatory. Over the next several years, plaintiff saw Dr. Saradarian twenty-four times for treatment related to issues she attributed to the accident.

Approximately two weeks after the accident, plaintiff went to see an orthopedist, Dr. David Basch. He prescribed physical therapy and a narcotic pain medication. During her third visit to Dr. Basch some months after the accident, Dr. Basch diagnosed a disk herniation at the C6-7 vertebra. Although plaintiff and Dr. Basch discussed surgery on multiple occasions, as of the time of trial, she had not undergone any surgery. Plaintiff also saw a second orthopedist regarding the possibility of spinal surgery.

Plaintiff also consulted a neurologist, who performed a brain scan and prescribed topical pain patches and antidepressants. Plaintiff testified that the neurologist had diagnosed the "pinching" in her extremities as caused by pressure in her lumbar and cervical spinal disks. She consulted a second neurologist, who was also unable to treat her. She saw a pain management specialist but turned down his proposed epidural injections. Plaintiff also consulted an "eye doctor" about her "blurred vision."

At trial, plaintiff summarized her injuries as follows: "Throbbing headaches, pain in my neck. I don't have full range of motion in my neck. I can turn to the right, not fully to the left. And I still can't put my head back to look up." She described her pain in her neck and back as "severe at times, " which kept her awake so that she slept only three or four hours a night. Plaintiff indicated that she experienced ongoing muscle spasms, including a physical protrusion on her back, approximately two inches in diameter and protruding outward approximately three-quarters of an inch. Plaintiff and her husband testified regarding the deleterious effects the pain and physical limitations had on her daily life. Plaintiff testified that she was still employed and able to drive.

Christopher Kappelmeier, a high school physics teacher and an adjunct college professor with a master's degree in engineering, testified as plaintiff's expert in the field of physics. The trial court barred him from testifying on the subject of biomechanics. Kappelmeier testified regarding the physics involved in a loaded dump truck colliding with a stationary car and, in particular, the specific effects of defendants' truck colliding with plaintiff's car. He explained in detail the substantial force to which ...

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