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Frometa v. Diaz-Diaz

December 11, 2008

ADONNA FROMETA, PLAINTIFF,
v.
MARIO E. DIAZ-DIAZ AND ALL AMERICAN HAULERS AND RECYCLING, DEFENDANTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

On February 14, 2007, Plaintiff Adonna Frometa ("Frometa") was in the driver's seat of her sport utility vehicle, stopped at an intersection, when her vehicle was rear-ended by a sanitation truck driven by Defendant Mario E. Diaz-Diaz in the course of his employment with Defendant All American Haulers and Recycling. Frometa filed a personal injury lawsuit in New York State Supreme Court, Bronx County, and the case was removed to this Court on July 12, 2007. Defendants did not oppose Frometa's partial motion for summary judgment as to liability for the accident, and therefore the issues at trial were limited to whether the accident was a proximate cause of Frometa's injuries and, if so, the amount of damages.

On September 11, 2008, a jury found that Frometa had failed to prove that the February 14, 2007 vehicle accident proximately caused her injuries. Based on the jury's verdict, this Court issued a Judgment on September 22, 2008, dismissing Frometa's Complaint against Defendants Mario E. Diaz-Diaz and All American Haulers and Recycling ("Defendants"). Frometa now moves for judgment as a matter of law pursuant to Fed. R. Civ. P. 50 or, in the alternative, a new trial pursuant to Fed. R. Civ. P. 59. For the reasons set forth below, Frometa's motions are denied.

I. BACKGROUND

During the early morning hours of February 14, 2007, Frometa was in the driver's seat of her sport utility vehicle, which was fully stopped, when her vehicle was rear-ended by a sanitation truck driven by Defendant Diaz-Diaz in the course of his employment with Defendant All American Haulers and Recycling. (Trial Transcript ("Tr.") 182, Ex. 28 to Pl.'s Mot.) Frometa called 911, and an ambulance arrived and took her to Cabrini Medical Center in New York City for emergency care. (Tr. 182.) Although Frometa testified that she "blacked out" after the accident, the Emergency Medical Services ("EMS") report does not indicate that she lost consciousness. (Tr. 182, 216; EMS Report, Pl.'s Mot. Ex. 9.) The doctors at the hospital performed a computed axial tomography ("CAT") scan, administered medication and discharged Frometa with pain medications and instructions to follow up with a doctor for treatment. (Tr. 184.)

The evidence at trial showed that, according to Frometa's employment records, two days after the accident, on February 16, 2007, Frometa worked as a flight attendant during a flight from Colorado to New York at 4:32 a.m. (Tr. 218-19.) Because Frometa was involved in the accident in New York during the early morning hours of February 14, she must have flown from New York to Colorado on February 14 or 15, in order to work the flight attendant shift from Colorado to New York in the early morning of February 16. (See Tr. 218-19.) However, Frometa testified that she remained home on February 14 and 15 because she felt stiff. (Tr. 220.)

At trial, Frometa's employment records showed that later in the day on February 16, 2007, she worked for eight and a half hours as a flight attendant on flights within New York and from New York to Colorado. (Tr. 218-20.) The next day, on February 17, 2007, Frometa worked at her other job as a professional dancer. (Tr. 226.) On February 19, Frometa worked again as a flight attendant, on a flight from West Palm Beach, Florida to Aspen, Colorado. (Tr. 220-21.) Further, her employment records show that from February 17 to April 18, 2007, Frometa worked twenty days as a professional dancer. (Tr. 220-21.)

On February 23, 2007, Frometa visited Dr. Albert Villafuerte for pain in her neck and back, as well as tingling and numbness in her legs, and Dr. Villafuerte referred her to a neurologist and recommended that she obtain magnetic resonance imaging ("MRI") scans of her cervical and lumbar spine. (Tr. 185.) On March 10, 2007, MRI scans of Frometa's neck and back revealed herniated discs in both her cervical and lumbar spine and cerebrospional fluid impression in her cervical spine. (Pl.'s Mot. Ex. 2.) On March 27, 2007, Frometa saw Dr. Arden Kaisman, a pain management specialist, who recommended epidural steroid injections, which Frometa did not undergo due to her fear of needles. (Tr. 190.) Dr. Kaisman recommended that Frometa see Dr. Ramesh Babu, a board certified neurosurgeon and Assistant Professor of Clinical Neurosurgery at New York University School of Medicine. (Tr. 32-33, 190.)

Dr. Babu reviewed the MRI films and determined that Frometa had suffered herniations in her cervical and lumbar spine, which compressed the nerve roots between several vertebrae. (Tr. 35-38.) Dr. Babu recommended surgery to remove the herniated discs and on May 17, 2007, performed hemilaminotomy and microdiscectomy, i.e., spine surgery, on Frometa's lower back. (Tr. 38, 190-91, 197-98.) The surgery was partially successful as it helped Frometa regain feeling in her legs. (Tr. 198.) However, because Frometa reported that she continued to feel pain, Dr. Babu determined that she required further care. (See Tr. 50.)

Meanwhile, on March 29, 2007, Frometa had also seen Dr. R. C. Krishna, a board certified neurologist and Diplomat of the American Board of Psychiatry and Neurology, who reviewed the MRI films and explained that the herniation in Frometa's cervical spine was abutting the thecal sac. (Tr. 134-35, 139-41.) He also testified that the herniation in her lumbar spine evidenced edema, which signified recent trauma. (Tr. 143.) Dr. Krishna performed two electromyography ("EMG") scans, on March 29, 2007 and May 8, 2008, both of which revealed radiculopathy. (Tr. 147, 149.) Dr. Krishna determined that Frometa's future treatment should include a spinal fusion at the cervical and lumbar spine as well as a regime of pain medications. (Tr. 151-52.)

Finally, Dr. Davy, a board certified physician in anesthesiology and pain management, also testified at trial. After he examined Frometa on April 20, 2007, he diagnosed her with post-traumatic cervical and lumbar disc pathology with radiculopathy and facet syndrome. (Tr. 73-74.) He recommended spinal injections, including steroid injections, and, if these did not alleviate her pain, percutaneous discectomy. (Tr. 74.) After a series of facet point and steroid injections failed to ameliorate Frometa's pain, Dr. Davy recommended that Frometa undergo surgery to remove a portion of the herniated disc from her neck. (Tr. 91-93.) Consequently, on December 13, 2007, Frometa underwent percutaneous discectomy of her cervical spine. (Tr. 91-93.) Dr. Davy testified that while Frometa's pain was reduced for a week and a half thereafter, she reported that the surgery ultimately did not assuage her pain. (Tr. 93.)

Dr. Davy then recommended that Frometa have neurostimulators installed in her spinal cord as a method of pain management. (Tr. 81-85.) Dr. Davy installed temporary "trial" stimulators in her spine, but as these were not successful in decreasing her pain by more than half, he determined that the trial was unsuccessful and removed them. (Tr. 86.) Dr. Davy testified that Frometa's future treatment could include implantation of an intra-thecal drug delivery system and spinal fusion surgery. (Tr. 86-87.)

Frometa testified that, while she had been active and athletic throughout her life, the injuries from the February 14, 2007 accident force her to rely on her aunt for her basic daily needs. (Tr. 208-09.) She testified that she has been unable to continue in her jobs as a flight attendant and dancer and has not worked since April 2007. (Tr. 191-92, 211.)

Plaintiff's Complaint alleged that Defendants' negligence caused her to sustain "serious injuries" as defined in Section 5102(d) of the New York Insurance Law and to sustain economic loss greater than basic economic loss pursuant to Section 5012 of that statute.

Defendants did not oppose Frometa's partial motion for summary judgment as to liability for the car accident. Therefore, the issues at trial were whether the accident was a proximate cause of Frometa's injuries and, if so, the amount of damages. After deliberating for approximately an afternoon and morning, the jury found unanimously that the accident ...


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