CLAIRE MORGAN v. DAVID GARBER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4909-03T34909-03T3

CLAIRE MORGAN,

Plaintiff-Respondent,

v.

DAVID GARBER,

Defendant-Appellant.

___________________________________

 

Argued October 11, 2005 - Decided January 20, 2006

Before Judges Payne and Levy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11032-01.

Lawrence T. Quirk argued the cause for appellant (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Quirk, on the brief).

Glenn C. Slavin argued the cause for respondent (Slavin & Morse, attorneys; Darren C. Kayal, on the brief).

PER CURIAM

Following a jury trial, plaintiff Claire Morgan was awarded $250,000 for injuries suffered in an August 5, 2000 automobile accident. Defendant David Garber appeals the denial of his motion for a new trial, arguing, among other things, that the trial court erred in allowing plaintiff to testify to treatment not disclosed in discovery and by refusing to instruct the jury that plaintiff's expert was not an independent witness as had been represented by plaintiff's counsel during summation. We agree that these two rulings were errors requiring a new trial.

The accident occurred as defendant exited a gas station and attempted to cross two southbound lanes of traffic on Stelton Road in Piscataway in order to travel north on that road. Traffic prevented defendant's vehicle from proceeding across the lanes, and it was struck by plaintiff's vehicle. Plaintiff was transported by ambulance to the emergency room of Robert Wood Johnson University Hospital in New Brunswick, where she was x-rayed, prescribed medication, and given a neck brace.

Following the accident, she was treated in New Jersey at Comprehensive Medical Rehabilitation of Woodbridge, where she was seen by Dr. Betty Vekhnis and Dr. William Mullally, a board-certified neurologist. Dr. Mullally first evaluated plaintiff on August 31, 2000 and recommended physical therapy, which occurred on five occasions. He also examined plaintiff on October 11, 2000 and ordered an EMG, which was conducted on November 17, 2000. Dr. Mullally did not further treat plaintiff, but examined her and rendered a report dated January 13, 2003. He testified at trial that during treatment in New Jersey plaintiff complained of headaches and neck, radiating neck and low back pain.

Dr. Vekhnis, who was the first physician at Comprehensive Medical to examine plaintiff, ordered MRIs of the spine, which were conducted in May 2001 by Open MRI of Union County. The MRIs revealed a lumbar herniation at L5-S1 "with annular tears with encroachment upon the right and left S1 nerve roots," a thoracic bulge at T11-12, and cervical herniations at C5-6 and C6-7.

Plaintiff also was examined in New Jersey on January 20, 2003 by Dr. Steven Nehmer, a board-certified orthopedist, who rendered a report dated January 21, 2003. Dr. Nehmer did not treat plaintiff.

In early September 2000, because her boyfriend accepted employment in New York, plaintiff moved with him from her parents' home in Piscataway to Nanuet, New York. In November 2000, plaintiff's automobile insurer stopped paying personal injury protection (PIP) benefits and, as a result, she received no medical treatment from November 2000 until June 2002, when she prevailed in a lawsuit against the insurer, and her benefits were reinstated.

Plaintiff was then treated in New York by orthopedist Dr. Louis Starise on July 11, 2002 and once in October 2002. She was treated by neurologist Dr. Walter Nieves on five occasions in a five-week period in July and August 2002, and she received physical therapy at Sports Care Institute as recommended by Dr. Starise for a period of three months, ending in October 2002. Her treatment in New York addressed her continuing headaches, neck and low back pain. It also addressed complaints of nausea and dizziness, which had not been presented to her New Jersey doctors. Plaintiff's New York doctors, however, did not prepare expert reports and were not offered as witnesses at trial.

Plaintiff filed suit on November 29, 2001. She answered interrogatories on or about February 19, 2002, one of which asked: "If still being treated, [provide] the name and address of each doctor or health care provider rendering treatment, where and how often treatment is received and the nature of the treatment." Plaintiff replied, stating she "still requires medical treatment and her insurance company . . . has consented to allow her to be examined by doctors of her choosing and to cover the costs of any additional necessary treatment. The names and addresses of these doctors will be provided when available." However, plaintiff never served amended answers identifying the New York doctors who commenced treating her in June 2002.

Therefore, the day before trial, defendant moved in limine to exclude evidence of the New York treatment. Plaintiff's counsel opposed the motion, arguing that the jury was entitled to know that plaintiff's treatment had not ceased in September 2000 after five sessions. He contended plaintiff should be permitted to testify that she continued treatments after moving to New York, and that they were of the same type, quality and style as those she received in New Jersey. In exchange for being permitted to offer such testimony, he said he would not ask plaintiff what kind of treatments she received or what her doctors did or found.

The trial court denied the motion, based upon its conclusion that defendant's counsel was not "completely surprised" by the information, because a reference to that treatment appeared in the January 2003 report of plaintiff's expert, Dr. Mullally, and because plaintiff's statement in arbitration in support of alleged economic losses listed the cost of physical therapy at Sports Care Institute and of treatment with Dr. Nieves. However, no identifying information regarding Dr. Nieves was supplied.

The court ruled that plaintiff could present evidence of plaintiff's New York treatment "because of the representation made that it was a continuation of the same type of treatment she received for her injuries from this accident" that had been disclosed. However, the court limited the testimony that could be offered regarding the neurological treatment to the fact that plaintiff had seen a neurologist once a week for five weeks in July and August 2002 without reference to the nature of her symptoms or treatment.

The matter was tried from February 24 to February 27, 2004. During direct examination of plaintiff on February 24, counsel asked a series of questions related to her symptoms. Plaintiff described migraine headaches accompanied by nausea, dizziness and extreme pain in her neck and lower back. She testified further she sporadically experienced loss of sensation in her arm, tingling in her fingers and shooting pain in her leg. She mentioned that over time her nausea subsided. This remark led to the following exchange:

[COUNSEL FOR PLAINTIFF]: Did the nausea sort of go away on its own or was there some medication or treatment that helped it?

[PLAINTIFF]: I was given treatment by my neurologist for the nausea and the headaches. He prescribed a few different medications for me because in the beginning when he first started treating me he wasn't really sure what would work. He was concerned. Some medication that he would give me he didn't want me to be, you know, a zombie all day long because I was working. I'm not sure what medication it was that he gave me that somehow helped it or subsided [sic] it.

[COUNSEL FOR DEFENDANT]: Excuse me, Your Honor, could we have a name -- I assume this is Dr. Mullally [plaintiff is] talking about --

[PLAINTIFF]: No, this is Dr. Nieves [the New York neurologist].

[COUNSEL FOR DEFENDANT]: -- objection, objection.

[THE COURT]: Wait please.

[COUNSEL FOR PLAINTIFF]: I --

[COUNSEL FOR DEFENDANT]: Objection.

[PLAINTIFF]: Sorry.

[THE COURT]: Sidebar.

Out of the presence of the jury, plaintiff was instructed not to discuss the specifics of treatment she received in New York. The jury, however, was not instructed to disregard respondent's testimony.

In further support of her case, plaintiff presented an expert witness, Dr. Natalio Damien, a radiologist who became director of Open MRI of Union County after MRI examinations of plaintiff had been conducted and read by Dr. Green, a former employee of that facility. Plaintiff named Dr. Damien as an expert in response to questions in discovery, his expert report was provided to defendant and he was qualified as an expert by plaintiff's counsel and accepted as such by the court at trial. During his summation, plaintiff's counsel described Dr. Damien as an independent witness and attempted to justify the reasonableness of that characterization. He told the jury:

Was he my expert? I submit to you that he wasn't. He was brought in to tell you what the original films showed as the director of that imaging center because [defendant's doctor] had submitted a report, essentially, criticizing the read of his company. And he came in to stand behind the read of his company, and that's why he was here. He was someone I had never met in my life until he showed up at the courthouse that day. And he was there because I called him and I said, Dr. Damien they're criticizing this report, will you stand behind it? He said I'll come in and testify about it, of course. And he did, and that's why he was here, as the independent person. Not for litigation, and not for trial, none of that. He was here because his company did the imaging and he stood behind his MRI.

Following the summation, defendant's counsel asked the trial judge, in her charge, to call attention to the remarks of plaintiff's counsel and to advise the jury that Dr. Damien was, in fact, plaintiff's expert and was not an independent witness. The judge declined, noting that she did not want to chastise plaintiff's counsel in front of the jury. Instead, the judge charged the jury as follows:

In this case three experts were called by the plaintiff. They were Dr. William Mullally, Dr. Steven Nehmer and Dr. Natalio Damien, and three experts were called by the defense, Dr. Alan Josephs, Dr. Frances DeLuca, and Dr. Robert Traflet. As I said these were experts that were called and testified about certain opinions. In examining each expert's opinion you may consider the person's reason for testifying, if any, you may also consider the qualifications of the individuals and the believability of the expert, including all the considerations that generally apply when you are deciding whether or not to believe any witnesses testimony. The weight of the expert's opinion depends upon the facts on which the expert bases his opinion. You as jurors must also decide whether the facts relied upon by the expert actually exist. Finally, you are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You may accept or reject all or part of an expert's opinion. It is for you the jury to resolve any conflicts in the testimony of the experts using the same guidelines in determining credibility that I already mentioned. The amount of an expert witness's fee is a matter that you may consider as possibly affecting the believability of an expert. However, there is nothing improper in an expert witness being paid a reasonable fee for his work and for his time in attending court.

The jury rendered its verdict on February 27, 2004, and judgment was entered on March 9, 2004. Defendant moved for a new trial, asserting, among other things, that the trial judge erred in denying his motion to preclude plaintiff's testimony about the New York treatment and in failing to instruct the jury that plaintiff's counsel was wrong in characterizing Dr. Damien as an independent witness. The trial judge denied the motion and issued an oral opinion on April 30, 2004. We reverse.

I.

R. 4:17-7 requires:

Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

Plaintiff clearly failed to comply with this rule. At the time plaintiff answered defendant's interrogatory that asked for the names of treating physicians, the nature of treatment and how often it was being rendered, she acknowledged that she still required treatment and would provide the names and addresses of treating doctors when the information became available. Although that information started to become available in June 2002 when she began treatment in New York, plaintiff never provided the promised information.

Had plaintiff sought to present her New York doctors as expert witnesses, it would have been within the court's discretion to exclude their testimony pursuant to R. 4:23-5(b). However, the trial court, in declining to grant a new trial, concluded that "there was no violation" of that rule because no medical reports were admitted into evidence and neither of the New York doctors testified. The problem with that rationale is that plaintiff herself was permitted to testify to information about treatment that her New York doctors would have been precluded from providing.

Although the court, in its ruling on the new trial motion, stated that it had not allowed plaintiff "to testify as to the details of the nature of the treatment," plaintiff did testify that she had been treated by her neurologist for nausea and headaches, that he had prescribed a few different medications because he was not sure what would work, that "[h]e was concerned" and did not want to give her medication that would cause her to become "a zombie all day long. . . ."

Thus, plaintiff was able to present to the jury evidence of a continuation of treatment into June 2002 without having to produce expert testimony that the New York treatment was even related to the injuries sustained in the accident. Furthermore, plaintiff was permitted to testify as to her nausea and dizziness, symptoms that were not present at the outset of her New Jersey treatment. In fact, she did not report these conditions to Dr. Mullally until her follow-up with him in January 2003. We conclude that plaintiff's testimony was unfair to defendant and likely to lead to a miscarriage of justice because defendant was not given an opportunity to cross-examine plaintiff's New York doctors on the relationship between their treatments and the injuries sustained in the accident. See Smith v. Schalk, 360 N.J. Super. 337, 346 (App. Div. 2003).

II.

We also conclude that the likelihood of a miscarriage of justice was enhanced by the court's refusal to explicitly instruct the jury that plaintiff's counsel's characterization of plaintiff's expert witness as independent was incorrect. Plaintiff's counsel first told the jury that Dr. Damien wasn't even his expert. The doctor, according to the attorney, was an "independent person" whose only motivation for testifying was to defend his company's interpretation of an MRI. This clearly was not true.

The doctor was engaged by plaintiff for the purpose of testifying on plaintiff's behalf. The characterization of the doctor as independent gave plaintiff an unfair advantage. Although the trial judge attempted to neutralize counsel's remarks with her charge on expert testimony, portions of the charge could have been counterproductive to that effort. For instance, the court correctly instructed the jurors they were not bound by expert testimony, and could accept or reject all or any portion of it based upon their determinations on the credibility of the experts. The jurors, following that instruction, could very well have determined that an independent expert was more credible than one hired by one of the parties.

In this case, an error enhancing the credibility of an expert may result in unfairness because of the natural perception that an expert holds opinions that are authoritative. Also, in this case, the opinions of Dr. Damien were contested by Dr. Traflet. The fact that Dr. Damien was characterized as independent may have given an unfair advantage to plaintiff when the jury considered the credibility of the opinions of the two experts.

In light of the above determinations, the judgment for plaintiff will be reversed and the case remanded for a new trial. Because the matter is to be retried, we add that we find no error in the court's use of Model Jury Charge (Civil), 5.20C, "Left Hand Turn" (2004). See McGowan v. Barry, 210 N.J. Super. 469 (App. Div. 1986). Furthermore, the court's refusal to issue a jury instruction mirroring the language of N.J.S.A. 39:4-90 was appropriate. That statute governs conduct at an intersection, a location different from the one at which this accident occurred. Finally, we leave to the trial judge the decision whether to exclude testimony concerning treatment in New York or to permit it after providing an opportunity to defendant for further discovery on the issue.

 
Reversed and remanded.

The complaint in this case named respondent's automobile insurer, New Jersey Manufacturer's Insurance Company, as a defendant. Respondent's claims against her insurer are not before this court.

There was no testimony concerning whether a fee had been paid by plaintiff to Dr. Damien. However, plaintiff's counsel, during argument on what instruction should be given to the jury, represented that none had been paid.

(continued)

(continued)

14

A-4909-03T3

January 20, 2006

 


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