Thursday, May 13, 2021

Defense Verdict Secured by Cummins Law in Lackawanna County Rear End Accident Case

Pleased to report that I secured a defense verdict in a rear end auto accident case yesterday in Lackawanna County.  

Negligence was admitted, causation was disputed.  The details follow:

Cholewka v. Restaino

Defense Verdict in a Rear End Accident Case

Date of Verdict: May 13, 2021

Court and Case No: C.P. Lackawanna, No. 2016-CV-3842

Judge: Margie Bisignani-Moyle

Type of Action: Third Party Auto Negligence

Injuries: Plaintiff alleged bilateral shoulder injuries.

Defense Counsel: Daniel E. Cummins of Cummins Law


This personal injury civil litigation trial was held with Covid-19 social distancing measures in place in the Lackawanna County Court of Common Pleas.

The jury selection took place in a ballroom at the Scranton Cultural Center. All of the participants wore masks at these proceedings and the jurors were spread out in the large room. Attorneys were permitted by the Court to take off their masks when asking questions of the jurors. Sheriff’s deputies carried a microphone on a long handle and held the microphone up to the jurors’ mouths when they answered questions.

Once the jury of 12, plus two alternates, was selected the trial moved to Judge Margie Bisignani-Moyle’s courtroom on the second floor of the Lackawanna County Courthouse. The jurors were spread out in the area that used to be the gallery of the courtroom. The witness testified from what was the jury box. The jurors could either look at the witness directly or also see the witness more close up from TV monitors in the courtroom. The witnesses were allowed to take off their masks when testifying and the attorneys were allowed to take off their masks when speaking.

There were six men and six women on the jury.  Most of the jurors appeared to range in age from 45-59.  Two of the jurors appeared to be in their 30s.

One of the out-of-town lay witnesses for the defense was not able to get out of work to attend the trial.  The court accomodated the request to allow for that witness to be presented via Zoom.  The digital trial presentation company, Exhibit A, who was retained by the defense at trial assisted with that Zoom presentation.

This third party personal injury litigation matter arose out of a minor low speed, low impact rear-end tap of a motor vehicle incident that occurred almost (7) years ago at approximately 11:57 a.m. on July 2, 2014 on Jefferson Avenue in Scranton, Lackawanna County, Pennsylvania.

The then 55 year old Full Tort Plaintiff, Ronald Cholewka, was a front seat restrained passenger in a 2014 Chrysler 300 driven by a Paul Phillips. The Plaintiff’s vehicle was on Jefferson Avenue in Scranton, Pennsylvania and was stopped at a red light at the intersection of Mulberry Street. The Plaintiff was being driven by a car service to a medical appointment relative to his prior history of over 30 years of treatment for neck and back pain complaints dating back to a 1988 motor vehicle accident. The Plaintiff’s pre-existing conditions had also been aggravated as a result of a prior 1995 accident as well. 

At the same time and place, the Defendant, Theresa Restaino, was stopped in her 1999 Buick LeSabre on Jefferson Avenue behind the vehicle in which the Plaintiff was located. When the light turned green, Ms. Restaino thought that the vehicle(s) ahead of the one in which the Plaintiff was located had started to move. The Defendant took her foot off her brake but did not apply the gas. The Defendant allowed her vehicle to roll forward and the front of her vehicle tapped the rear of the vehicle in which the Plaintiff was located.

The Defendant described the impact as minimal and confirmed that her airbag did not deploy. Ms. Restaino also confirmed that she did not see any damage to the front of her vehicle or the rear of the vehicle in which the Plaintiff was located. The Defendant also confirmed that she did not require any repairs to her vehicle after the accident. Moreover, Ms. Restaino was not injured and required no treatment.

At the time of the accident, two friends of the Defendant located in a vehicle to the rear of the Defendant as they were following the Defendant to a location at the time. Those two witnesses testified at trial that they saw the Defendant’s vehicle roll forward but that any contact was so subtle that they asked each other if the Defendant's vehicle had even contacted the vehicle ahead. Those witnesses testified that they got out of their vehicle and went up to the two involved vehicles and confirmed that neither vehicle had any visible damage.

Photographs confirmed that there was no visible damage to either vehicles.

The driver of the vehicle ahead described the impact as significant but admitted that there was no damages to the vehicles as a result. That witness, who was admittedly not injured in the accident, passed away prior to trial from unrelated conditions. His deposition was read to the jury at trial.

The Plaintiff never got out of the vehicle at the scene. He asserted that he felt a pop in his back from the impact which he described as significant. He alleged that he could not feel his legs and thought that he had been paralyzed. He was removed by an ambulance crew and transported to the local emergency room. He was eventually treated and released.

At trial, the Defendant accepted responsibility for causing the accident but challenged the issues of causation and disputed whether the Plaintiff had been injured at all.

This Plaintiff had an extensive prior medical history that includes unrelated, multiple surgeries to many parts of the Plaintiff’s body and extremities. The Plaintiff’s prior medical history was also positive for conditions of an insulin dependent diabetes and coronary artery disease.

The Plaintiff confirmed that he had been totally disabled since 1988 for his persistently painful and limiting neck, back, and knee conditions, which disability continued up to the time of the subject accident. It was the Plaintiff’s allegation at his deposition in this matter that his neck and mid-back conditions had quieted down in the years leading up to this subject 2014 accident. However, he admitted that he was still having significant issues with regards to his low back in terms of pain and limitations by the time this accident occurred.

As noted, after the accident, the Plaintiff remained in the vehicle until help arrived. He was eventually assisted by the ambulance crew, placed on a stretcher and transported to the nearby Community Medical Center emergency room, a few blocks away.

Following the accident, the Plaintiff continued with his same pre-accident treaters for his ongoing neck and back pain.

Approximately two years and four months after the accident, the Plaintiff visited an orthopedic surgeon for treatment of left shoulder complaints. At that visit, the Plaintiff advised that doctor that his shoulder complaints had begun a few weeks before that visit. The Plaintiff also confirmed that he had not had any recent injuries.

Although the Plaintiff alleged in his Complaint that he was making claims for neck and back injuries, and did not mention any shoulder injuries in his Complaint, at trial, he stipulated to the granting of the Defendant’s non-suit motion on his neck and back claims as he wanted to instead pursue a claim for shoulder injuries.

After he rested his case at trial, the Plaintiff was allowed to amend his Complaint over the Defendant’s objection to instead state that he was pursuing a claim for bilateral shoulder injuries that required multiple surgical procedures which did not resolve his complaints. The Plaintiff’s theory was that he had sustained a left shoulder injury in the subject car accident but that his shoulder pain had been masked by his neck pain. The Plaintiff also asserted that his right shoulder problems, which had allegedly developed from overuse due to his left arm being in a sling from his surgeries, was also related back to the car accident.

The court denied the defense’s motion for a non-suit on the Plaintiff’s claims of shoulder injuries and allowed the case to proceed.  The court noted that the defense had defended against the Plaintiff's claims of shoulder injuries during the Plaintiff's case-in-chief and was, therefore, not prejudiced by the allowance of this amendment.

The Plaintiff relied upon the office notes of his shoulder surgeon as well as upon the reports of a PIP IME doctor, both of whom had opined in multiple records that the Plaintiff’s shoulder complaints were due to the subject accident. Rather than calling those out-of-state doctors as experts at trial, Plaintiff’s counsel retained a local physiatrist, Dr. Michael Wolk, to testify for the Plaintiff.

The defense confirmed on cross-examination of the Plaintiff’s medical expert that the Plaintiff’s surgeon, the PIP IME doctor, and the Plaintiff’s expert were all advised by the Plaintiff that the subject accident involved a high speed rear end accident. The defense also confirmed that the Plaintiff’s expert had not been provided with all of the medical records and also had not been provided with any films to review. It was additionally confirmed that the Plaintiff’s expert was not provided with any photographs of the vehicles to review or any of the deposition transcripts of the parties or witnesses.

The defense also asserted at trial that the Plaintiff regularly treated with his many pre-accident doctors following this accident and, for two and half years, never mentioned his shoulders as being problematic. With respect to the Plaintiff’s theory that his left shoulder pain being masked by his neck pain, the defense showed through the records that the Plaintiff’s primary complaints of pain were not only to the right side of his body but were also down in the mid-back area.

The defense called orthopedic surgeon, Dr. Thomas Allardyce, as an expert witness. Dr. Allardyce had issued an IME report in which he opined that the Plaintiff had sustained a soft tissue back injury as a result of the accident. The defense medical expert also opined that the Plaintiff’s alleged shoulder injuries and treatment were not related to the incident. The defense expert also confirmed that right-sided mid-back pain would not mask left shoulder pain or prevent a person from realizing that they had a left shoulder injury.

At trial, neither the Plaintiff’s expert nor the defense expert were questioned with respect to whether the subject accident impacted the Plaintiff’s neck and back condition. Rather, the Plaintiff’s expert limited his opinion to confirming that the Plaintiff’s shoulder complaints and concluded that they were related to the accident. The Plaintiff’s expert also testified that, due to the Plaintiff’s ongoing shoulder problems, the Plaintiff would require ongoing treatment into the future that would cost over $875,000.00.

The defense purposely avoided having the the IME doctor testify as to his IME opinion that the Plaintiff had sustained a minor soft tissue injury to his mid-back as a result of the incident.  Plaintiff's counsel did not bring this out on cross-examination.  Rather, the defense focused the questioning of the defense expert on that expert's opinion that the Plaintiff's shoulder injuries were not related to this accident.

The defense medical expert expanded upon his opinion that the Plaintiff’s shoulder complaints, treatments and surgeries were not related to the subject accident. The defense expert additionally opined that the Plaintiff’s bilateral shoulder conditions instead involved degenerative joint disease and degenerative rotator cuff tears that were all unrelated to the subect accident.

At trial, it was the defense assertion that this matter arose out of a tap incident from seven years ago.  The defense theory was that this matter involved a fender bender incident as a result of which neither fender was bent and no one was injured.  

The defense also asserted that it defied common sense to assert that the Plaintiff's shoulder complaints, which did not appear in the records until a first note that was from two years and four months after the accident, were related to this minor incident.

In terms of the Plaintiff's argument that the Plaintiff was an Eggshell Plaintiff, the defense argued in closing argument that even Humpty Dumpty sat on a high wall and had a great fall.  Analogizing to this case involving a tap of an incident and an over 2 year gap in any complaints by the Plaintiff, it would have been as if Humpty Dumpty were sitting on the ground and rolled onto his side and was attempting to assert that two cracks on his shoulders that had appeared two years after the fact related back to the time he had rolled onto his side two years before.

The Defendant was covered by an automobile insurance liability policy providing liability limits of $100,000 per person, $300,000 per occurrence.

Over the years prior to trial, the Plaintiff continually demanded the policy limits. On the eve of trial, the Plaintiff demanded $75,000. The defense had a long-standingin offer of $20,000 to settle on the table.

At trial, liability was admitted. The jury deliberated for only 35 minutes before returning its verdict in favor of the Defendant after finding that the Defendant’s negligence was not a factual cause of the Plaintiff’s alleged injuries.

The defense retained Exhibit A to assist with a visually compelling powerpoint presentation to drive the defense theory home to the jury.  I thank Leah Kane, JP Cardoni, and Joe Cardoni for their excellent work and highly recommend their services for digital trial presentations and videotaped trial depositions.

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