Greenspan v. Shifrin

37 Pa. D. & C.4th 23, 1997 Pa. Dist. & Cnty. Dec. LEXIS 30
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedFebruary 12, 1997
Docketno. 2793
StatusPublished

This text of 37 Pa. D. & C.4th 23 (Greenspan v. Shifrin) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Greenspan v. Shifrin, 37 Pa. D. & C.4th 23, 1997 Pa. Dist. & Cnty. Dec. LEXIS 30 (Pa. Super. Ct. 1997).

Opinion

ACKERMAN, J.,

After a jury trial, the jury rendered a verdict in favor of the defendant, Nathan Shifrin, and against the plaintiffs, Donald Greenspan and Gayle Greenspan, his wife.

[25]*25The jury was directed to find that the defendant, Nathan Shifrin, was negligent under the facts of the case. However, the jury specifically found that the negligence of the defendant, Nathan Shifrin, was not a substantial factor in bringing “about harm (injuries) to the plaintiff.”

Plaintiffs filed post-trial motions seeking a new trial solely on the issue of plaintiffs’ damages, or in the alternative, requesting an entire new trial (other arguments raised in post-trial motions were not pursued in plaintiffs’ memorandum or during argument and are waived), essentially contending that:

(1) The evidence overwhelmingly demonstrates that defendant’s negligence was a substantial factor in causing plaintiff’s harm.

(2) Defense counsel’s cross-examination on the issue of plaintiffs’ claims to Donald Greenspan’s workers’ compensation insurance carrier requires the award of a new trial to the plaintiffs.

After hearing, argument and review of both parties’ memoranda, this court denied plaintiffs’ post-trial motions and entered judgment on the jury verdict; and an appeal ensued.

I. The Evidence Overwhelmingly Demonstrates That Defendant’s Negligence Was a Substantial Factor in Causing Plaintiff’s Harm

The totality of the testimony of defendant’s medical expert, Richard Katz M.D., in his videotape deposition illustrates that he did not concede that plaintiff suffered an injury.

“Q. Now assuming for the sake of argument that this test was indicated, at all, did the test itself find [26]*26anything wrong with Mr. Greenspan (indicating the MRI test in August 1992).

“A. The test shows what we call a degenerative change, some loss of water signal in the lower lumbar discs, some minimal bulging in that territory, which are the kind of — again, the word is unfortunate, because it suggests something horrible, it’s not, degenerative, which simply means wear and tear, loss of water content of a disc, some bony involvement, some ballooning of the disc, which is seen in a 50-year-old in probably 50-70 percent of the population.

“And the fact that it is nowhere near any nerve structures, indicates the absence of any relation to pain, because there is no mechanism of pain. There is no description either from the formal report, of what we call pathologic disc herniation, disc material pushing on nerve root structures. And clearly the film itself, as I reviewed the pictures, shows no disc herniation and no nerve root compression.

“So, it’s kind of wear and tear change we see in people in the sixth decade, people over 50 years old.” Video deposition of Richard Katz M.D., April 11,1996, pp. 23-24.

Dr. Soss, plaintiffs’ expert, also supported the above premise:

“Q. Would I be correct that there never was an MRI study of Mr. Greenspan’s spine before the accident of February 21, 1991?

“A. Not that I ordered.

“Q. Without an MRI showing what his spine looked like before February 21, 1991, you can’t say with certainty, even reasonable medical certainty, that he didn’t already have that small tiny bulging disc in his low back before the accident; isn’t that right?

[27]*27“A. That’s right.

“Q. You can’t say that he didn’t have any small bulging discs in his neck before the accident, can you?

“A. No, I can’t.

“Q. There is no scientific way of telling without a prior study is there?

“A. Not at all.” (N.T. 2.113)

With regard to the above statement, the jury had ample reason to assume that the plaintiff’s contention that the bulging disc was caused by the accident, was erroneous and that the plaintiff had the bulging disc from normal wear and tear. Therefore, the jury could easily conclude that the plaintiff’s complaints of pain did not arise from the accident at issue. If plaintiff’s counsel and physicians were attempting to say that this bulge was caused by the accident and that the bulge was the cause of his pain, the jury had ample evidence with which to disbelieve those contentions. Dr. Katz further testified at page 24 of his video deposition: “So there’s a very mild degenerative change, a wear and tear chronic type change. No disc herniation, no compression of nerve root structures, no entity in the films which would explain pain.” (emphasis added)

Dr. Katz repeatedly during his testimony refuted the causal connection between the findings of plaintiff’s physicians and the 1991 accident. See Dr. Katz’s testimony at pp. 30, 32 and 35-36. Finally, the plaintiff’s own attorney, in cross-examination of Dr. Katz, solicited the refutation of plaintiff’s own theory that there was an admission of an initial injury.

“Q. And you don’t deny even that he injured his neck and his back in this incident, isn’t that correct?

“A. No, the only reservation would be what do you mean by injury? He complained of pain. At no time [28]*28is there any indication of tissue injury, based on examination and imaging studies. But he certainly complained of pain afterwards, yes.” Videotape deposition of Dr. Katz, p. 77.

Based on Dr. Katz’s testimony combined with credibility of the plaintiff, the jury had every right to conclude that Mr. Greenspan’s complaints of pain had origin in events and/or motives other than the February 21, 1991 accident.

Plaintiffs’ memorandum of law relies largely on the recent case of Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995). A reading of the body of the Neison case shows that the facts of that case are completely different from the case at issue. For instance, Neison says:

“The accident caused Ms. Neison’s head to shatter the rear window of the car. . . . The impact produced trauma in the form of a large lump on the back of Neison’s head. ... As a result of the collision, the rear end of Ms. Neison’s car had been ‘wiped out’ and the car looked like ‘an accordion.’ . . . Her car was struck with such force that the glasses which Neison was wearing prior to the accident were found by a volunteer fireman on the trunk of the vehicle. . . . In fact, the force of the collision caused the trunk to crack and split. . . . The record also shows that Ms. Neison went immediately to the hospital for treatment of the head injury. . . . She returned two days later complaining of neck and shoulder pain, and was told that the pain was a natural result of the type of injury that she had sustained.” Id. at 521-22, 653 A.2d at 637. Without quoting the entire paragraph, it goes on to talk about testimony as to herniated disc and fibromyalgia, etc.

The defendant’s medical expert in Neison, Dr. Mitchell, unequivocably agreed that Neison had sus[29]*29tained “a sprained neck and shoulder blade sprain” and that healing “usually takes three to five months.” Id. at 519, 653 A.2d at 636.

In the instant case, the testimony was quite different. Photographs of the vehicles, exhibited to the jury, showed a very minor “fender bender” type accident. (N.T.

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Related

Rozanc v. Urbany
664 A.2d 619 (Superior Court of Pennsylvania, 1995)
Neison v. Hines
653 A.2d 634 (Supreme Court of Pennsylvania, 1995)
Fillmore v. Hill
665 A.2d 514 (Superior Court of Pennsylvania, 1995)
Surgent v. Stein
421 A.2d 445 (Superior Court of Pennsylvania, 1980)
Brodhead v. Brentwood Ornamental Iron Co.
255 A.2d 120 (Supreme Court of Pennsylvania, 1969)
Holland v. Zelnick
478 A.2d 885 (Supreme Court of Pennsylvania, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
37 Pa. D. & C.4th 23, 1997 Pa. Dist. & Cnty. Dec. LEXIS 30, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greenspan-v-shifrin-pactcomplphilad-1997.