Dailey v. Smith

$125,000 Verdict

Date of Verdict: April 24.

Court and Case No.: C.P. Bucks County No. 2013-07671.

Judge: Robert J. Mellon.

Type of Action: Motor vehicle.

Injuries: Back injuries.

Plaintiffs Counsel: Greg Prosmushkin, Law Offices of Greg Prosmushkin, Philadelphia; Sonia M. Silverstein, Law Offices of Sonia M. Silverstein, Philadelphia.

Plaintiffs Experts: Gary Young, vocational assessment, West Trenton; Todd Avery, driver performance/behavior, Ambler; Valerie Parisi, life care planning, Doylestown; Dr. Vincent Ferrara, pain management, Jenkintown.

Defense Counsel: Christopher M. Horn, Kane, Pugh, Knoell, Troy & Kramer, Norristown.

Defense Experts: Paul Shipkin, neurology, Warminster; Tamar Fleischer, life care planning, Bala Cynwyd.


On Oct. 25, 2011, plaintiff Robert Dailey, 49, an installer of surveillance cameras, was driving on the Pennsylvania Turnpike outside Philadelphia when his sport utility vehicle was rear-ended by a sedan. He claimed back injuries.

Dailey sued the driver, Robert Smith, alleging that he was negligent.

Dailey testified that he had been driving in the right lane when he noticed Smith, in the middle lane, driving erratically and reading a piece of paper. A short time later, Dailey entered the middle lane in front of Smith. After Dailey came to a stop, Smith’s car struck his SUV.

Dailey’s expert in driver performance/behavior testified about the importance of not being distracted while driving, and faulted Smith for reading a paper while driving and for not keeping his attention on the road.

Smith conceded that he was distracted but argued that Dailey, after seeing Smith driving erratically, could have taken measures to avoid the accident. These might include Dailey remaining in the right lane or getting in the middle lane behind Smith, rather than in front of him.

Following the accident, Dailey drove himself to an emergency room, where he was examined and released. A week later, Dailey, complaining of low-back pain, presented to a rehabilitation facility, where he was put on a course of physical therapy. He treated on two occasions. A month later he presented to another facility, where he treated with six months of physical therapy, including massage and exercise.

Dailey was referred to a pain-management specialist, who, through an MRI and EMG, diagnosed bulging at lumbar intervertebral disc L3-4, which allegedly later progressed into an annular tear, and radiculopathy stemming from that level, which later resolved. Dailey treated with a series of epidural and facet joint painkilling injections, over the course of nine months.

Due to lack of medical insurance, Dailey had to discontinue treatment for 14 months. In 2014, he resumed treatment with his pain-management specialist, who continued administering epidural and facet injections. He also underwent surgical implantation of a spinal stimulator and continued to receive periodic injections at the time of trial. He sought to recover approximately $74,000 in past medical costs.

Dailey’s pain-management specialist causally related his injuries and treatment to the accident and determined that he had suffered permanent injury to his lumbar spine. The physician recommended future injections, physical therapy and a possible lumbar fusion. Dailey sought to recover about $330,000 in future medical costs.

Dailey testified that his ongoing back pain limits him in his work capacity, and as a result, he has hired an assistant. He sought to recover $400,000 to $600,000 in future lost earning capacity. The figures were determined by his expert in vocational assessment.

Dailey stated that, in addition to his work restrictions, he has difficulty performing activities of daily living and is no longer an avid motorcyclist, as he once was. Dailey sought damages for past and future pain and suffering.

Smith’s counsel questioned the validity of Dailey’s injuries, since Dailey had substantial gaps in his treatment, and argued that Dailey could not prove his ongoing complaints after March 2014 were causally related to the accident. The defense maintained that, on cross-examination of Dailey’s expert in vocational assessment, it was revealed that the calculations did not take into account recent tax returns, which halved the expert’s estimates.

Smith’s expert in neurology, who examined Dailey, testified that any injury he had suffered was soft-tissue in nature, and that his MRI showed pre-existing, degenerative changes, which was the cause of his future care. The expert attributed Dailey’s condition to his morbid obesity and longtime smoking.

Smith’s expert in life-care planning agreed with Dailey’s life-care plan, except for the need for fusion; however, his future treatment was deemed as solely needed to address his pre-existing condition.

The parties negotiated a high/low stipulation: Damages could not exceed $1.5 million, but they had to equal or exceed $250,000.

The jury found that Smith was liable for the accident. Dailey was determined to receive $125,000, which was molded to $250,000 pursuant to the parties’ high-low agreement.

This report is based on information that was provided by plaintiff’s and defense counsel.

—This report first appeared on VerdictSearch, an ALM publication.