Date of Verdict: August 9.

Court and Case No.: C.P. Montgomery No. 2011-08559.

Mediator: Allan H. Gordon, Kolsby, Gordon, Robin, Shore & Bezar, Philadelphia.

Type of Action: Motor vehicle.

Injuries: Loss of consortium; spasm; radiculopathy; discectomy; arthrodesis.

Plaintiffs Counsel: Alvin F. de Levie, Law Offices of Alvin F. de Levie, Philadelphia.

Defense Counsel: Ryan M. Cohen, Campbell, Lipski & Dochney, Philadelphia.

Plaintiffs Experts: Dr. Leonard A. Bruno, neurosurgery, Huntingdon Valley, Pa.; David L. Hopkins, economics, King of Prussia, Pa.

Defense Expert: Dr. Stephen L. Fedder, neurosurgery, Wynnewood, Pa.

Comment: On September 16, 2010, plaintiff Karen Fishgold, 49, employed in the retail sales industry at the time, was stopped for a red light on York Road in Hatboro when the rear of her vehicle was struck by the front of a vehicle owned by Dear Garden Associates and being operated by Charles Benson, an employee of Land Rover of Willow Grove.

The impact reportedly caused Fishgold's rear window to explode and pushed her vehicle into the rear of the car in front of her. Fishgold claimed that she suffered an aggravation of pre-existing conditions — including radiculopathy and cervical-disc herniations — as a result of the collision.

Fishgold sued Dear Garden Associates, Benson and Land Rover of Willow Grove.

The defendants were represented by the same counsel during the litigation. The defense stipulated to negligence prior to the parties' submitting to mediation, which focused on causation- and damages-related issues.

Following the accident, Fishgold was taken by ambulance to an emergency room, where she was examined and released. She subsequently followed up with her family physician, who noted that she appeared to be suffering from cervical spasms, cervical radiculopathy and a burning sensation in both trapezius muscles. (Just before the subject accident, Fishgold had been diagnosed with cervical radiculopathy and herniations at C4-5 and C5-6.)

Fishgold claimed that her pre-existing symptoms had worsened following the accident; she was put on a course of physical therapy, with which she treated for about six months. Fishgold claimed the physical therapy did not relieve her symptoms. During that time, she consulted with a neurosurgeon, who ordered MRIs and electromyographies, which reportedly showed new changes in her cervical spine, particularly in the discs that were previously diagnosed as being herniated.

On December 9, 2010, the neurosurgeon performed an anterior cervical discectomy at levels C4 through C6, involving arthrodesis and fixation of a trabeculated metal spacer and a plate. Fishgold continued with physical therapy but claimed her symptoms continued. A post-surgical EMG confirmed persistent C6 radiculopathy on the right side, for which Fishgold was prescribed various pain medications. In addition, she underwent several epidural injections to her cervical spine. Fishgold continued with follow-up visits with her neurosurgeon, who eventually discharged her with pain medication. She was not treating at the time of mediation.

In his report, Fishgold's treating surgeon concluded that she had suffered during the subject accident an injury that resulted in cervical radiculopathy, in particular, at the C6 nerve-root distribution point on the right side. According to the physician, Fishgold had underlying, pre-existing chronic disc disease at C4-5 and C5-6, which was identified on a pre-accident MRI. Her subsequent post-accident MRI revealed an increase in the disc herniations, especially at the C5-6 level, according to the physician.

The surgeon concluded that the accident had caused Fishgold's fresh injuries and had necessitated the eventual surgical intervention. The doctor opined that Fishgold had a limited prognosis, and that while her recovery was satisfactory, she likely will continue to have acute and chronic neck pain and spasms, requiring treatment with physical therapy, medications and occasional injections.

Fishgold claimed she had not worked since the subject accident and is totally disabled. Her expert in economics concluded that Fishgold's total disability resulted in a loss of income that, factoring in an expected retirement age of 60, and a 2.5 percent allowance for productivity, amounted to $698,064.

Fishgold's attorney argued that her injuries as a result of the collision were sufficiently serious to pierce the limited-tort threshold.

According to Fishgold, her husband suffers from multiple sclerosis and her injuries have diminished the quality and quantity of the care that she is able to render to him. She further claimed that she experiences frequent, if not constant, pain and discomfort. She sought to recover unspecified amounts of noneconomic damages, for past and future pain and suffering, while her husband had a consortium-loss claim.

In his report, the defense's expert in neurosurgery — who examined Fishgold and analyzed an EMG dated shortly before the subject accident — concluded that Fishgold was suffering from right-side carpal tunnel syndrome and chronic radiculopathy. The expert opined that the pre-accident EMG was consistent with a pre-accident MRI from July 2010, and he further concluded that there was no appreciable change between the pre-accident and post-accident MRIs.

According to the defense expert, the positive findings reflected on the post-accident MRI are evidence of injuries that typically take years to develop and thus would have been entirely unrelated to the motor vehicle accident in question. The expert maintained that the EMG findings from shortly before the subject accident demonstrated a chronic process and chronic radiculopathy. The expert concluded that any injuries incurred by Fishgold during the subject collision did not amount to a serious impairment of bodily function, and that her pre-accident treatment records demonstrated progression in the neck and upper-extremity pain she was experiencing. The only injuries that Fishgold might have suffered during the subject accident were cervical sprains and strains that required no more than a few months of treatment, it was argued.

The mediation took place following Fishgold's deposition.

The parties agreed to settle the case for $450,000, to be paid out of Land Rover of Willow Grove's $500,000 policy.

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