Ocean County

In this action, the plaintiff driver, in his late 30s, contended that as he was attempting to turn right onto a highway, the defendant, turning left onto the highway from the opposite direction, negligently failed to make observations of the plaintiff. The plaintiff contended that as a result, the defendant's right front corner collided with the left front comer of his car. The plaintiff maintained that he sustained cervical herniations at C5-C6 and C6-C7 which required two cervical fusion surgeries and which the plaintiff contended will leave him permanently unemployable.

The evidence revealed that the plaintiff was involved in a subsequent accident approximately one and a half years later and prior to the diagnosis of the herniations. The plaintiff contended, however, that his condition was not changed by the subsequent accident, that the cervical pain commenced shortly after the subject accident and progressed unabated until the ultimate diagnosis.

The defendant's physician had concluded that neither accident contributed to the disc pathology, which he contended was caused solely by a natural progression of degenerative disc disease. The plaintiff, who denied that this position should be accepted, also moved in limine for an order precluding any mention of the subsequent accident, arguing that the defendant, who had the burden of allocating the extent to which a subsequent accident contributed to the ultimate injuries could not, on the basis of the defense physician's findings, meet this burden. This motion was pending as of the time of the settlement.

The plaintiff related that as he was making the right tum onto the highway when he was suddenly struck by the defendant driver, who was turning left from the middle lane. The plaintiff contended that the defendant negligently attempted to avoid the line of cars waiting to turn left from the left turn lane by proceeding from the middle lane in which motorists were permitted to travel straight only. The plaintiff further contended that the defendant was so intent in observing the left turning traffic next to her that she failed to notice the plaintiff's car, thus causing the accident.

The defendant maintained that she was suddenly confronted with a vehicle which ran a red light at a high rate of speed on the highway and was unable to avoid the collision because of this sudden emergency. The plaintiff and an independent eyewitness, who was situated to left of the defendant, both would have denied any involvement of a phantom driver.

The plaintiff contended that he was diagnosed with soft tissue cervical sprains and strains shortly after the accident and underwent treatment with his family physician as well as physical therapy for some months before coming under the care of the treating orthopedist. The plaintiff's orthopedist would have maintained that the cervical pain continued to progress and if the Court would have permitted the introduction of evidence of the subsequent accident, the physician would have related that a complaint of radiculopathy was made prior to the subsequent accident. The plaintiff contended that the radiculopathy continued to progress and that he ultimately underwent an MRI approximately three years after the accident which confirmed the cervical herniations. The orthopedist related that shortly thereafter, the plaintiff underwent a decompression and fusion that utilized a graft taken from the iliac crest. The physician related that the fusion failed and that the plaintiff required a second surgery in which hardware and an allograft was placed. This surgery was performed approximately ten months after the first surgery. The plaintiff maintained he will permanently suffer very substantial cervical pain and restriction.

The defendant's orthopedist had concluded that the plaintiff's complaints stemmed from the natural progression of degenerative disc disease and denied that the plaintiff's claims should be accepted, especially in view of the lengthy period between the subject accident and initial MRI. The plaintiff countered that he had no prior symptoms or treatment. The plaintiff also contended that until the accident occurred, he had been extremely active with his 17-year-old twin boys and 12-year-old son, having played football, hockey and wrestling with them and the plaintiff would have produced the children and his wife to discuss the manner in which such activities ceased after the accident.

The plaintiff related that although he had graduated high school, he had difficulties obtaining his degree and also had difficulties obtaining reasonably lucrative jobsuntil several years before the first accident, when he obtained a dispatcher's position with a shipping company in New York City, commuting from his Monmouth County home. The plaintiff contended that after the first surgery, he could no longer continue in this position because of increased pain associated with sitting in front of a computer for lengthy periods and because of his difficulties with the lengthy commute. The plaintiff was earning in the mid $30,000 per year range at this job. The plaintiff s vocational expert contended that in view of the plaintiffs educational limitations and continuing pain, it is clear that he is, as a practical matter, permanently unemployable. The plaintiff's economist would have offered evidence of future lost income and benefits that ranged from $700,000 to $740,000, after reducing to present value. The defendant's vocational expert, however, would have contended that the plaintiff could perform any number of jobs. The plaintiff countered that the defense expert's testing reflected very significant limitations of a 4th grade reading level and a 6th grade math level, arguing that in view of such factors and the continuing pain, the defendant's position should be rejected.

The case settled prior to trial for $750,000.


Plaintiff's expert orthopedist: Robert Dennis from Neptune.

Plaintiff's employment expert: Steve Miller.

Zipfel vs. Fontana. Docket no. L-2434-98; Judge James P. Courtney, 8-22-0 l.

Attorney for plaintiff: Douglas Hanna of Hanna & Anderson in Wall.


The defendant had denied that the herniation, diagnosed three years after the accident, was related to the subject collision and the defendant's physician had concluded that the natural progression of extensive degenerative disease was the sole cause for the need for surgeries. The plaintiff was also involved in a subsequent accident approximately 18 months after the subject accident occurred and the plaintiff had moved in limine for an order precluding the introduction of this evidence, arguing that in view of the absence of any defense medical testimony attributing some of the injury to the subsequent accident, its potential prejudice to the plaintiff far outweighed any probative value. It should be noted that the plaintiff's motion was pending at the time the settlement was reached. Additionally, if this plaintiff motion was denied, the plaintiff would have emphasized that the plaintiff's orthopedist had begun treating before the second accident occurred and had observed no change in the plaintiff's condition following the second accident and the plaintiff would have argued that in view of this testimony, the onset of complaints shortly after the subject collision, and the absence of any prior symptoms or treatment, it was clear that the cause of the herniations was the subject accident.

On economic damages, the plaintiff would have argued that because of his educational limitations, he had great difficulties obtaining relatively lucrative employment until he began the dispatcher's job in New York City, arguing that in view of his inability to sit in front of a computer for lengthy periods and the inability to work in a physical capacity, it is clear that he is, as a practical matter, permanently unemployable. Finally, the defendant had contended that she was cut off by a phantom driver, forcing her into the plaintiff's car. The plaintiff, who denied that such a phantom driver was involved and that the accident occurred as the defendant attempted to turn left from the middle lane to avoid the line of traffic to her left, would have presented an independent eyewitness to support his version and the plaintiff would have argued that the defendant's contentions should clearly be rejected.