verdicts-and-settlements-article

Forbes v. Nickol

$117,000 Verdict

Date of Verdict: April 25.

Court and Case No.: C.P. Montgomery County, No. 2014-06490

Judge: Gary P. Gilman.

Type of Action: Motor vehicle.

Injuries: Head injuries.

Plaintiffs Counsel: James W. Sutton III, The Law Offices of James W. Sutton III, Feasterville.

Plaintiffs Experts: Lynn Jonas, vocational rehabilitation, Staten Island, New York;  Marc Duome, psychology/counseling, Langhorne; Dr. Brian Greenwald, physical medicine, Newark, New Jersey; Dr. David Leventer, ophthalmology; Springfield, New Jersey; Kristin Kucsma, economics, Livingston, New Jersey

Defense Counsel: Geoffrey S. Peterson, Bennett, Bricklin & Saltzburg, Blue Bell.

Defense Experts: Carl Regillo, retina, Philadelphia; Peter Badgio,  neuropsychiatry, Philadelphia; William Harris, economics, Philadelphia.

Comment: 

On Dec. 22, 2013, plaintiff Charles Forbes, 77, a musician, was driving on Newtown-Yardley Road, in Newtown. At the same time, another car was approaching from the opposite direction. When Forbes entered the intersection with Creamery Road, the other car made a left turn and struck the driver’s side front corner of his sedan. Forbes claimed multiple injuries. Forbes’ wife, plaintiff Shane Forbes, 66, a biofeedback specialist, was a passenger, and she also claimed multiple injuries.

The Forbeses sued the other driver, Natalie Nickol, alleging that she was negligent in the operation of a vehicle. They also sued the car’s owner, Lawrence Nickol, who was dismissed prior to trial.

Nickol stipulated to negligence, and the case was tried on the issues of causation and damages.

The Forbeses were driven by a friend to an emergency room. Shane Forbes was diagnosed with left-sided rib fractures and a nondisplaced sternum fracture, and was kept overnight. Charles Forbes was diagnosed with rib fractures and was discharged.

Following Shane Forbes’ discharge, her son arranged for a home health aide to provide care in the ensuing days. On Jan. 3, 2014, she presented to her primary care physician with continued complaints of chest pain, then followed up with her chiropractor.

On Feb. 26, she presented to an optometrist with complaints of floaters and spots in her left eye, and she was referred to a retina specialist. She saw a specialist, and, after denying any trauma to the eye, was diagnosed with posterior vitreous detachment, a condition in which the vitreous membrane separates from the retina, and with epiretinal membrane, in which tissue develops on the retina and interferes with vision. Her eye conditions were diagnosed as unrelated to the auto accident.

A week later, Forbes presented to another retina specialist, claiming that she had sustained left-eye trauma when she struck her face against the airbag during the accident. She was diagnosed with posterior vitreous detachment and epiretinal membrane, related to the accident. No further treatment was rendered for her eye.

Forbes complained of mental fogginess and mental fatigue to her chiropractor, who diagnosed post-concussion syndrome. In March, she presented to a neurologist, who confirmed her post-concussion syndrome, and Forbes stated that she had lost consciousness at the scene of the accident.

Forbes then started a course of treatment with a number of neurological and concussion specialists, who diagnosed her with mild traumatic brain injury and cognitive impairment, and in the ensuing years she treated with neuropsychologists and psychiatrists. Forbes had stopped treating at the time of trial. She and her husband sought to recover a total of approximately $52,000 in medical costs.

Shane Forbes’ expert in physical medicine causally related her injuries and treatment to the accident and determined that she had a permanent partial disability caused by her traumatic brain injury.

Since she was deemed partially disabled, Shane Forbes alleged that she could not complete her online doctorate degree in biofeedback. Her expert in vocational rehabilitation testified that Forbes’ impaired vision and cognitive impairments prevent her from focusing and completing basic tasks.

Her injuries allegedly affect her sleep, balance and concentration. Forbes’ expert in economics determined that she lost between $806,000 and $872,000 in future lost earnings.

Shane Forbes testified that every aspect of her life was affected by the accident, as her injuries prevent her from functioning as she had pre-accident. She continues to experience floaters and spots in her left eye, rib pain and difficulty with concentration and sleep. She sought damages past and future pain and suffering and damages for her claim for loss of consortium.

Charles Forbes claimed that his rib pain had resolved three weeks post-accident. However, in February 2015, more than a year after the accident, he presented to his primary care physician complaining of memory loss and concentration problems. A brain MRI was performed and was normal.

Months later, in November, Forbes presented to a neurologist, who referred him to a neuropsychologist. The neuropsychologist diagnosed post-concussion syndrome following a traumatic brain injury.

Forbes claimed that he did not strike his head during the accident. Additionally, concerns of dementia were raised by the specialist. Forbes underwent neuropsychological and cognitive testing; no further treatment was administered thereafter.

Forbes’ expert in neuropsychology causally related his cognitive deficits to the accident.

Forbes testified that he has difficulty remembering things. This was corroborated by family members.

Nickol’s counsel noted that Shane Forbes had given conflicting statements regarding her condition. When she was asked by the first retina specialist in February 2014 if she had suffered any eye trauma, she had said no, but then stated that she did suffer trauma when she was asked weeks later by a second retina specialist.

Additionally, she told the neurologist in March 2014 that she had lost consciousness at the scene of the accident, but this was not supported by the emergency medical technicians, emergency-room records or by her primary care physician, according to the defense.

Nickol’s retina-specialist expert testified that Shane Forbes had suffered no eye-related injury from the accident, that her vision was normal, and that posterior vitreous detachment and epiretinal membrane are normal for a person of her age.

Nickol’s expert in neuropsychiatry, who tested both Shane and Charles Forbes, testified that all of Shane’s tests were normal and that she demonstrated no signs of a cognitive impairment.

Nickol’s expert in economics determined that, even if she was unable to continue her career as a biofeedback specialist, any lost earnings would amount to $4,500.

Nickol’s expert in neuropsychiatry disputed that Charles Forbes had suffered a significant brain injury in the accident, given his 14-month delay in complaining of cognitive impairments.

Charles Forbes’ symptoms were most likely age-related and consistent with dementia, the expert concluded.

Nickol’s counsel noted that Forbes had returned to playing the cello in the orchestra a week after the accident.

The jury found that Nickol was liable for the collision. The Forbses were determined to receive a total of $117,000.

This report is based on information that was provided by plaintiffs and defense counsel.

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