Defense: Plaintiff's injuries not consistent with trauma
|Verbal Threshold, Motor Vehicle - Rear-ender, Motor Vehicle - Passenger|
|Lawrence Primmer and Gail Primmer v. Anthony Chiacchio and Mark Chiacchio / William Montferret and Loraine Montferret v. Anthony Chiacchio and Mark J. Chiacchio, No. OCN-L-4664-09; OCN-L-4801-09|
|Ocean County Superior Court, NJ|
|Craig L. Wellerson
- Michael J. Deem; R.C. Shea & Associates; Toms River, NJ, for William Montferret, Loraine Montferret
- Edward B. Kasselman; Bathgate, Wegener & Wolf, P.C.; Lakewood, NJ, for Gail Primmer, Lawrence Primmer
- Robert J. Ritacco; Leyden, Capotorto, Ritacco & Corrigan, PC; Toms River, NJ, for Anthony Chiacchio, Mark J. Chiacchio
- NJM for both defendants
On Dec. 31, 2007, plaintiff Lawrence Primmer, 59, a plumber for Ocean County, was a passenger in a car being driven by co-plaintiff William Montferret, 53, an electrician supervisor for Ocean County. The men claimed that as they were traveling southbound on Vaughn Avenue in Toms River, a rear-end accident occurred when an automobile being driven by Anthony Chiacchio (with the permissive use of owner Mark Chiacchio) struck the back of Montferret's vehicle.
Primmer and Montferret separately sued both Chiacchios for negligence. The two actions subsequently were consolidated.
The owner defendant achieved summary-judgment dismissal of the vicarious-liability claims against him, and the matter then proceeded as to the claims against the driver defendant only. Prior to trial, Primmer's claim (along with a family member's derivative claim) was voluntarily dismissed on verbal-threshold grounds, and the litigation proceeded to trial as to Montferret's claims.
Montferret initially presented to an orthopedic surgeon two weeks after the accident, with complaints of shoulder and neck pain. He was referred to another orthopedic specialist, who diagnosed him with disc protrusions at C5-T1 and C5-6, and with a partial tear of the rotator cuff with impingement syndrome, for which Montferret was recommended arthroscopic surgery.
Montferret declined the surgery, and treated conservatively with his orthopedic surgeon and with a pain management physician, who performed cervical epidural injections. He also underwent physical therapy.
Montferret's spouse joined in the action, asserting a per quod loss-of-consortium claim.
The defense interposed the verbal tort threshold as a bar to Montferret's recovering damages for whatever injuries he may have suffered during the underlying accident.
The defense's orthopedic surgery expert contended that Montferret's complained-of shoulder tear was degenerative in nature, and that the results of an examination of Montferret's cervical discs were inconsistent with traumatically induced injury.
At the conclusion of the jury trial with respect to Montferret's claims, the jury found that Chiacchio had been 100 percent liable for the accident, but returned a defense verdict of no cause of action based on its finding that Montferret had failed to prove permanent bodily injury sufficiently serious to satisfy the requirements of the verbal tort threshold.
This report is based on information that was provided by defense counsel and by plaintiffs' counsel for the Primmers. Plaintiffs' counsel for the Montferrets declined to contribute.