Connecticut Law Tribune
July 11, 2011
Injured Knees Help Driver Win $180,000 Verdict
Jury rejects defense argument of degenerative condition
By CHRISTIAN NOLAN
Dorothy Anselmo v. Anthony D’Erocle, et al.: A 72-year-old East Lyme woman who injured her knee after a car crash was awarded $180,000 by a jury last month, though she’ll net something less than that.
Dorothy Anselmo was traveling towards East Lyme on Flanders Road from Niantic around noontime on Aug. 5, 2008. The road is four lanes wide, two each way. According to Anselmo’s lawyer, Kelly E. Reardon, of The Reardon Law Firm P.C. in New London, Anthony D’Erocle, 28, of Cromwell, attempted a left turn out of a Burger King but collided with Anselmo’s oncoming vehicle.
Reardon explained that a driver in the right lane closer to D’Erocle let him inch out to make the left turn but did not see Anselmo in the left passing lane when he made his turn. Reardon said D’Erocle admitted the accident was his fault.
Upon impact, Anselmo’s airbag deployed, and her vehicle was pushed across the center line and ended up in the other two lanes of oncoming traffic. “Fortunately there were no cars coming,” said Reardon.
Reardon said both of Anselmo’s knees slammed against the dashboard, with the right knee getting the worst of it. She was taken by ambulance to the hospital where – because of all the swelling and bruising – x-rays could not initially determine whether her knees were fractured. It was later determined that they were just bruised.
Reardon said it took three to four months for the bruises to heal. Anselmo also sustained a bruised chest where her seatbelt was from the collision.
After the accident, Reardon said Anselmo had some physical therapy and had injections in her knees for the pain. Her doctor says she’ll need surgery on both knees at some point in the future. Besides her knee troubles, Reardon said, Anselmo is healthy for her age.
Reardon said Anselmo already had pre-existing osteoarthritis in both knees as well as a meniscus tear in her left knee. Anselmo argued that the accident aggravated her pre-existing knee problems, especially her right knee, which she claims was pain-free prior to the crash.
Reardon said before the accident, Anselmo was more active and always compensated for her left knee problems with her right knee. “Her life has changed since the accident,” said Reardon. “She used to love to garden and play with the grandkids. Now she can’t get down on her knees at all.”
Anselmo filed her lawsuit against D’Erocle and her own insurance company, Allstate, to recover underinsured motorist benefits.
In January, after depositions of both drivers in the accident were taken, Reardon was able to reach an agreement with D’Erocle’s insurer, Geico, for the policy limit of $50,000 to settle the claim against him.
The case then proceeded to trial against just Allstate for additional money from Anselmo’s own underinsured motorist benefits. Her policy limit was $100,000.
Allstate, according to Reardon, had no intention of settling and offered zero dollars, believing the already-paid $50,000 was sufficient. Allstate’s lawyer, Elizabeth Fitzsimmons, of the Law Offices of Mark S. Gilcreast, declined comment for this article when reached at her Hartford office.
Prior to trial, Allstate acknowledged that D’Erocle was responsible for the crash so the trial was essentially over damages. The trial took place from June 7 to June 9 in New London before Superior Court Judge Robert A. Martin.
An orthopedic surgeon served as a defense expert witness. Dr. Dennis Ogiela, of Danbury, who never examined Anselmo but looked at her medical records, opined that all of her knee problems were attributable to her degenerative knee condition, not the accident itself.
But the plaintiff’s orthopedic surgeon, Dr. Mark Blechner, of Waterford, took the opposite view.
“Our expert took the position that it was all a result of the accident; that she had a prior left knee problem but it wouldn’t have progressed the way it did without the impact on the dash board,” said Reardon.
Reardon also believes that it did not help the defense that Dr. Ogiela’s deposition testimony about the extent of the plaintiff’s knee problems differed from his trial testimony.
The jury, after deliberating for about two hours, awarded Anselmo $180,000 — $145,000 for non-economic damages and $35,000 for her past and future medical expenses.
But the injured woman will not get $180,000 from Allstate. First off, her underinsured motorist policy had a $100,000 limit. Second, she had already received $50,000 from Geico. Factoring in other costs, including expert witness fees, Anselmo will likely receive a total of about $120,000 from the two insurers.