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NEBINSKI v. AMERICAN TRADING & PROD. CORP.

February 4, 1970

Louis NEBINSKI
v.
AMERICAN TRADING & PRODUCTION CORP.


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 Presently before us is defendant's Motion for the Appointment of an Impartial Medical Expert. After a hearing, we have concluded, acting under Local Rule 27, *fn1" that this is an appropriate case for this Court to appoint an impartial expert.

 The defendant's doctor, on the other hand, finds degenerative hypertrophic changes in the cervical spine and attributes the narrowing, visible on the x-rays between C-5 and C-6 and between C-6 and C-7, to such degenerative changes. He states that these changes are consistent with the normal aging process of the cervical spine in a man the plaintiff's age and concludes that there is no evidence of any disabling symptoms.

 The plaintiff has demanded $85,000 in settlement of this case and treats it as one of total disability for a man 46 years of age. The defendant, on the other hand, contends in substance that the injury was a minor one, that it caused no serious disability, and that the plaintiff is not now disabled from performing his normal duties.

 No definitive diagnostic studies have been performed on the plaintiff. An electromyography was performed at the plaintiff's doctor's suggestion, and the results of these studies were inconclusive for any nerve involvement in the plaintiff's neck. No cervical myelogram has been performed. The plaintiff's doctor has twice suggested surgery, but no surgery has been performed.

 Thus we have a sharp dispute between two qualified orthopedists, one of whom claims that the x-rays and the clinical picture are consistent with one, and possibly two, ruptured intervertebral discs in the plaintiff's cervical spine; the other claiming in substance that these very same x-rays and clinical signs show no evidence of any disabling injury.

 This is typical of the type of medical dispute which confronts this Court time and again in negligence cases, which comprise the largest portion of its backlog. We would be blind not to realize that the disputing doctors here almost always appear on behalf of the same side. This Court has had both doctors before it on numerous occasions. We have read countless reports by the plaintiff's doctor in which he finds a serious injury, even though the medical evidence of that injury is not clearcut. In the very same cases, this Court has read countless reports of the defendant's doctor finding that the very same medical evidence does not indicate that the plaintiff suffered from any serious injury at all. As a result of fifteen years' experience as a litigator and almost three years as a trial judge, we have concluded that very often regular professional witnesses tend to become advocates of the clients who retain them. This leaves the Court and the jury in an impossible position to ascertain the real truth.

 The matter presently before us is typical of those cases to which we have referred. In these circumstances, then, we find that if it is appropriate for the Court to appoint an impartial medical expert in any case, it is appropriate to appoint one in this case. The medical expert whom we will appoint, Dr. John Sbarbaro, is personally known to the Court to be a highly qualified orthopedic physician in whose skill, judgment, and integrity the Court reposes great confidence. He has not made it a practice to appear as a professional witness for either plaintiffs or defendants. In the Court's opinion, a report from Dr. Sbarbaro, after he has received all of the x-rays and all of the preceding medical reports and has examined the plaintiff, would be of material aid to the just determination of the case.

 Such a result is quite possible in the case at bar. If Dr. Sbarbaro writes a report concluding that the plaintiff is indeed totally disabled by reason of the presence of one or more ruptured intervertebral cervical discs, the defendant will have to evaluate this case totally differently and come to grips with what would appear to be a very serious case of total disability. If, on the other hand, Dr. Sbarbaro concludes that there is no evidence of any presently disabling symptoms the plaintiff will have to reevaluate his position. This, of course, will depend almost entirely on the cogency and persuasiveness of the report that is filed by the independent medical expert.

 Thus, the use of the independent medical expert very often materially aids in the just determination of the cases by making it possible for counsel, often with the aid of the Court, to come together and make an amicable disposition of the case that might otherwise take a week or more to try.

 With respect to the question of whether the independent medical expert will be designated as such to the jury if the case is called to trial, the Court reserves judgment. We may conclude that the doctor is simply to be called as an expert by either party without reference to the method by which he was appointed to examine the plaintiff. That will depend upon the nature of the report itself and upon the actual situation at ...


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