Lisa Alloggio v. Federal Insurance Company: A woman who claims she suffered a brain injury following a rear-end collision in Pennsylvania sought $3.2 million from a Middletown jury but was awarded only $58,000 after the defense successfully argued that her physical pain actually was caused by longstanding emotional issues.
Lisa Alloggio, 55, of Missoula, Mont., was a passenger in a company car owned by HYPACK Inc. of Middletown on July 13, 2007. The driver, Michael Kalmbach, worked for the Middletown company and had met Allogio on the Internet; this was the third time they had gotten together.
At about rush hour that evening, a pickup driven by a Pennsylvania man, Timothy Smith, rear-ended Kalmbach’s company car, a Buick Lacrosse, just outside Philadelphia. Matthew G. Conway, of Conway Stoughton in West Hartford, the lawyer representing HYPACK’s insurance company — Federal Insurance Company — said Smith was going only about 10 to 15 mph in the heavy traffic when his Ford F-150 rear-ended Kalmbach’s Buick, which was pushed into another car.
Alloggio did not hit her head in the collision but was taken to a local hospital, treated for a neck strain and released.
Kalmbach and Alloggio spent the rest of the weekend together before she flew back to Montana. A week to 10 days later, Alloggio went to the emergency room after she began feeling disoriented and developed headaches, memory loss and stuttering problems.
Alloggio’s condition did not improve, but Kalmbach invited her to live with him in Connecticut, and she accepted. The couple has lived together ever since, said Conway.
Alloggio continued to receive treatment for her symptoms and amassed $170,000 in medical bills. She’s been treated by neurologists, pain specialists, physical therapists, psychologists and neuropsychologists, but has shown little improvement. The majority of her medical providers diagnosed her with post-concussive syndrome. Conway said Alloggio had all sorts of conventional tests, such as MRIs, CT scans and nerve tests, none of which showed an obvious injury.
Her lawyer, Stewart M. Casper, of Casper & de Toledo in Stamford, referred Alloggio to Dr. Ruben Gur, a neuroimaging specialist at the University of Pennsylvania. Gur uses what’s called Diffuse Tensor Imaging, which essentially doubles the resolution of a standard MRI. Gur claims test results showed Alloggio had “sustained white matter abnormalities” to her brain, which is indicative of a brain injury.
Gur opined that Alloggio had suffered a mild traumatic brain injury in the July 2007 accident.
Casper settled a claim on Alloggio’s behalf with the negligent Pennsylvania driver’s insurance company, Progressive, for the $100,000 policy limit. Next, Casper filed a lawsuit against HYPACK’s carrier, Federal Insurance, for underinsured motorist coverage. The case was filed in Superior Court in Middletown, the home of HYPACK, which provides services to companies that do underwater work.
Conway said Casper’s initial settlement demand was $900,000, which was the full amount available from the $1 million underinsured motorist policy limit minus the $100,000 from the prior settlement. Conway, in turn, offered $350,000.
Conway said that Casper’s last demand prior to the start of trial in June was $600,000 and Conway’s last offer was $400,000. With no agreement, the case proceeded to trial before Judge Julia L. Aurigemma.
The plaintiffs presented seven witnesses, including Dr. Gur and a biomechanical engineer from the University of North Dakota, Mariusz Ziejewski, who testified that it’s possible for a passenger to suffer a mild traumatic brain injury while riding in a car that is rear-ended by another vehicle traveling only 15 mph.
Conway said he refuted Gur’s testimony by noting how this sort of enhanced imaging hasn’t been sufficiently tested for use as objective evidence of a brain injury. “The problem with the science is it is a new science,” said Conway. “The doctor had to acknowledge white matter abnormalities can be caused by a number of things, stress, hypertension, vascular diseases, aging.”
Conway also argued that, according to the American Congress of Rehabilitation Medicine, it’s unlikely that Allogio had sustained a mild traumatic brain injury if she did not experience immediate loss of consciousness or post-traumatic amnesia from the crash.
Conway hired a neuropsychologist and psychologist, both from Connecticut, who opined that Alloggio did not suffer from a mild traumatic brain injury but instead had what’s called Somatoform Disorder.
The disorder is caused by channeling emotional pain internally, which manifests itself in chronic physical pain. Conway said a review of Alloggio’s medical records revealed struggles with prescription painkiller abuse. “This woman had a very troubled childhood,” said Conway. “She was abandoned by her parents, was a ward of the state, doesn’t know if her mother’s alive or dead. [She] was married and divorced at a young age, left home and left school, was into drugs…”
Conway said the woman attended the University of Hawaii for a couple years, but did not finish. He called her job history “checkered.”
“She was masking lifelong emotional pain from her troubled life with narcotic drugs and through the chronic pain complaints she would treat for, often at the ER,” said Conway.
Testimony lasted for nearly five weeks and then the jury deliberated for just under four hours. Casper asked the jury for $3.2 million, which included past and future medical expenses, potential loss of earnings from not working, and pain and suffering.
Conway, meanwhile, asked the jury to award between $15,000 and $50,000. The smaller amount would be whether jurors wanted to compensate the woman for damages based on the weekend after the crash in Pennsylvania. The high end was if they wanted to compensate her for a three-month period after the crash. That’s the amount of time it takes, according to most doctors, for 90 percent of mild traumatic brain injuries to resolve themselves, Conway said.
In the end, the jury awarded $58,000, which included $23,000 in past medical expenses and $30,000 for pain and suffering.
Unbeknownst to the jury was that $100,000 — the amount of the initial settlement — would be deducted from any amount awarded. Because the jury award was less than $100,000, the woman received nothing from the trial.
“I think the jury got it right,” said Conway. “[Casper] spent a lot of money and called a lot of doctors in, but I think … the doctors and [medical] records sort of spoke for themselves for pre-existing narcotic drug addiction and chronic pain syndrome. The jury concluded she didn’t have a traumatic brain injury.”
Casper, meanwhile, said the jury foreman told him after the trial that the week to 10-day gap in medical treatment after Alloggio returned to Montana was a key factor. Casper said Alloggio had no health insurance and that may have been why she delayed seeking treatment.
“She was devastated by the outcome,” said Casper, noting that the initial $100,000 settlement covered only a few outstanding medical bills.
Casper credited the defense for a job well done, noting that he’s procured significant awards in many similar cases. “I learned from this case, including perhaps which cases to take and which cases not to take,” said Casper. “I can think of better ways to have spent my July in retrospect, but it is what it is.”•