JAMES A. LOURO v. MARY BARLOW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5489-04T25489-04T2

JAMES A. LOURO,

Plaintiff-Appellant,

v.

MARY BARLOW,

Defendant-Respondent.

_______________________________

 

Argued: May 31, 2006 - Decided June 30, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-1986-01.

William W. Graham argued the cause for appellant.

John C. Carton argued the cause for respondent (Carton Law Firm, attorneys; James D. Carton, III, on the brief).

PER CURIAM

Plaintiff James Louro appeals from various evidentiary rulings of the trial court following a jury verdict of no cause of action in favor of defendant Mary Barlow based on a finding that defendant's negligence was not a proximate cause of appellant's injuries. We affirm.

On May 14, 1999, defendant's vehicle backed into appellant's vehicle as he was pulling out of a parking lot; the parties differ as to the severity of the impact. At the time of the accident, plaintiff had a pre-existing low back condition known as spondylolisthesis. He had also been attacked by his brother's dog in l996, which caused injury to his hand, arm, upper back and neck. Following the dog bite incident plaintiff, who is a chiropractor, began treating with a colleague, Dr. Joseph Petrone, and continued treating with him following the motor vehicle accident, although the number of visits and extent of chiropractic treatment is uncertain.

Plaintiff had an MRI of the cervical and lumbar spine performed on May 24, 2000. He then consulted with Dr. John Tozzi, an orthopedic surgeon, on June 12, 2000 and thereafter underwent another MRI and EMG. On March 6, 2001, Dr. Tozzi's partner Dr. Michael Lospinuso performed spinal reconstruction surgery in an effort to stabilize plaintiff's spondylolisthesis condition. Following the surgery, plaintiff was examined by Dr. Robert Dennis, also an orthopedic surgeon, at the request of plaintiff's automobile carrier.

On April 27, 2001, plaintiff filed this personal injury action. At defendant's request, plaintiff was examined by Dr. Benjamin Mark, a neurologist, on October 22, 2001, and by Dr. Michael Gordon, an orthopedic surgeon, on January 15, 2005. Defense counsel named both doctors as expert witnesses and supplied their reports to plaintiff's counsel in pre-trial discovery. Based on the belief that portions of Dr. Gordon's report were favorable to plaintiff's position on causation regarding spondylolisthesis and radiculopathy and that defendant would not call Dr. Gordon as an expert witness, plaintiff subpoenaed the orthopedic surgeon to testify as a witness on his behalf.

At the commencement of trial, defendant moved in limine to quash the subpoena to preclude Dr. Gordon from testifying on plaintiff's behalf. That application was granted by the court, finding there were no exceptional circumstances under Rule 4:10-2(d)(3) to allow plaintiff to call Dr. Gordon as his witness. Plaintiff's counsel then made the following applications, which were denied by the court: (1) for permission to ask plaintiff for the names of all doctors who examined him at the request of defense counsel; (2) for permission for Dr. Lospinuso to comment on Dr. Gordon's opinion on causal relationship; (3) for permission to cross-examine Dr. Mark on the content of Dr. Gordon's report; and (4) for permission to comment and for an adverse inference charge if defendant failed to call Dr. Gordon as a witness.

At trial plaintiff testified, as did Dr. Lospinuso, Dr. Dennis and Dr. Petrone. On redirect of Dr. Petrone, the court denied plaintiff's request to introduce a report that had not been provided to defendant in discovery. Plaintiff's experts opined that the trauma of the motor vehicle accident disrupted plaintiff's spondylolisthesis and caused a herniated disc and radiculopathy in the L-5 area and caused the pre-existing spondylolisthesis to go from asymptomatic to symptomatic. They were also of the opinion that the subsequent lumbar spinal fusion surgery was necessary to reduce the symptoms caused by the automobile accident and to stabilize the pre-existing spondylolisthesis from advancing.

Dr. Mark testified on behalf of the defense. He related that plaintiff had some complaints of lower back discomfort following the motor vehicle accident. He was of the opinion, however, that there was nothing to suggest that plaintiff had an acute spondylolisthesis resulting from the motor vehicle accident, or that the accident contributed to plaintiff's eventual need for lumbosacral surgery.

The jury returned a verdict indicating that defendant's negligence was the cause of the accident but that the accident was not the cause of the injuries sustained by plaintiff. This appeal ensued.

On appeal, plaintiff argues that the trial court erred in quashing the subpoena and prohibiting plaintiff from: (1) calling Dr. Gordon as his expert; (2) introducing any testimony or evidence regarding the defense medical examination conducted by Dr. Gordon; and (3) commenting on Dr. Gordon's non-production by the defense. Plaintiff also challenges the trial court's ruling precluding him from introducing Dr. Petrone's January 28, 2002 report on redirect examination, which he contended was pivotal to plaintiff's case and Dr. Petrone's credibility and warranted a new trial. Defendant does not cross-appeal but asserts in her responsive brief that we erred in granting plaintiff leave to file this appeal out of time.

By order of August 24, 2005, we granted plaintiff's motion to file the notice of appeal nunc pro tunc pursuant to Rule 2:4-4(a), which grants this court the authority to extend the forty-five day time period within which to file an appeal by thirty days upon a showing of good cause. We discern no basis to revisit this decision, and will thus dispose of the appeal on its merits.

We are satisfied the trial judge correctly quashed the subpoena issued by plaintiff to Dr. Gordon. In Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 299 n.7 (2006), our Supreme Court recently reaffirmed the New Jersey rule that expert testimony may not be compelled. Plaintiff made no representation to the trial court that he had retained and was in a position to produce Dr. Gordon as a witness without a subpoena.

Nor do we discern any error in the trial judge's discretionary rulings precluding plaintiff from introducing any testimony regarding his defense medical examination by Dr. Gordon, from questioning any of the other doctors regarding statements contained in Dr. Gordon's report or from commenting on Dr. Gordon's non-production by the defense. We are also satisfied that a Clawans adverse inference charge would not have been appropriate under the circumstances of this case.

In Fitzgerald the Court addressed whether a limitation should be placed on a party who has properly retained and called his adversary's prior expert, the so-called "Red-Rover" witness, regarding inquiry as to the expert's original retention. Considering, in part, that it is the expert's opinion and not his retention that should be the focus of the jury, the Court held that the circumstances of the testifying witness' original retention ordinarily may not be disclosed to the jury. Id. at 302-06. In adopting this approach, the Court stated:

Although we recognize the probative value of this evidence, we also note the unfair prejudice such information may impose on an adverse party . . . . In such cases, the change of sides has nothing whatsoever to do with the adverse party or, indeed, the merits of the case. Yet, as the courts that have refused to allow inquiry regarding the original retention have uniformly observed, the mere change of sides has a powerful negative effect on the jury's evaluation of the party, or the attorney, who originally retained the witness. . . .

Indeed, such prejudice is often the very purpose for which the proffer is made. . . . Even where a party is not so overt in its attempts to prejudice the adversary, there is a substantial risk that the jury will unfairly assume that the expert changed sides because the original hiring party did something wrong, whether that is the truth or not.

. . . .

In the final analysis, it is the credentials of the expert and the opinion that he renders that should be the critical path to the jury's acceptance or rejection of his view.

[Id. at 304-05.]

For similar reasons we believe it would be equally inappropriate to allow plaintiff to elicit evidence that he was examined by an expert who has not been called by defendant to testify or that an adverse inference may be drawn by the non-production of that witness. Such evidence may be quite misleading because a party may have a variety of reasons for not calling an expert witness other than that the witness would not have aided his case, including the cost of presenting the testimony of multiple witnesses.

It would be particularly misleading in this case to allow reference to or comment on Dr. Gordon's April 15, 2002 report, where the expert's potentially adverse opinion on causality upon which plaintiff seeks to rely is clearly qualified as being dependant on reviewing further records:

I would appreciate all of Dr. Lospinuso's records, all of Dr. Petrone's records for Dr. James Louro, the records of Dr. Joseph Louro for Dr. James Louro, Dr. Charles Kalko's records and Dr. Pecoraro's records and Dr. Schenker's records with the EMGs.

. . . .

CAUSALITY:

In all medical probability, the cervical strain and protrusion of the disc at C6-C7 were causally related to Dr. Louro's motor vehicle accident on May 14, 1999, based on the history given to me by Dr. Louro. Also, the lumbar spine spondylolisthesis was caused to become symptomatic by this motor vehicle accident.

It is very hard to discuss the causality and give a true impression without review of all the additional records I have requested.

. . . .

There was advanced spondylolisthesis at L4-L5 . . . Certainly, by his history, the spondylolisthesis was caused to become symptomatic and Dr. Louro developed a radiculopathy from this motor vehicle accident. However, it is very difficult to comment further without review of additional records.

. . . .

ADDENDUM:

Subsequent to the preparation of this report, I received the additional records:

A report from Joseph Petrone, D.C. is dated January 5, 2002 in relationship to the dog attack of October 28, 1996. . . . I would appreciate all of Dr. Petrone's records.

I also reviewed an evaluation by Benjamin Marks, M.D.

A review of these additional records does not change the opinions expressed in this report and, as indicated, I am unable to give further opinions without all of the requested records.

These opinions are rendered with a reasonable degree of medical certainty and are predicated upon the accuracy of the information given to me by Dr. James Louro and the records that I had available for my review. If additional information becomes available, I reserve the right to amend my report.

[Emphasis added.]

Moreover, as expressly stated in the report, the conclusions were also based in part on the history which plaintiff conveyed to Dr. Gordon. Some of this history was not entirely accurate. For example, plaintiff informed Dr. Gordon, as reflected in his report, that the day after the motor vehicle accident plaintiff developed "severe low back pain," "was leaning to one side" and was unable to straighten up, which required chiropractic treatment with adjustments by Dr. Petrone. That history is completely unsupported when viewed in light of Dr. Petrone's March 4, 2002 report and testimony on cross-examination that plaintiff only had symptoms "minor in nature in his low back and cervical region" the day following the accident.

If plaintiff had retained Dr. Gordon, he would have needed to provide him with the additional records and accurate medical history. Such information may have caused Dr. Gordon to modify his opinion of causality regarding spondylolisthesis or radiculopathy to one less favorable to plaintiff. If defendant had produced Dr. Gordon as a testifying witness and plaintiff had sought to cross-examine him as to causality, the provisional nature of Dr. Gordon's opinion on that issue would have been made clear to the jury. In the absence of either of these circumstances, it would have been misleading and unfairly prejudicial to defendant to have allowed plaintiff to have elicited testimony or evidence regarding portions of Dr. Gordon's report that were incomplete and taken out of context.

Plaintiff testified that after the automobile accident he continued to go to Dr. Petrone two or three times a week for back adjustment treatments for about a year. Dr. Petrone extended professional courtesy to plaintiff and did not bill for his treatment following the dog bite incident or motor vehicle accident. Dr. Petrone acknowledged that he did not maintain any records of treatment rendered to plaintiff. On direct examination he testified he had seen plaintiff various times over a period of two to six months following the automobile accident. The only documented evidence of specific visits, however, introduced in cross-examination, was Dr. Petrone's March 4, 2002 report to plaintiff, which referenced the chiropractic adjustment the day following the accident and stated further that "Dr. Louro came to my office a period of time later (4-6 weeks) to discuss his low back condition. At the conclusion of this discussion it was determined that Dr. Louro should seek the care of an orthopedic. Eventually Dr. Louro sought care at the Orthopedic Institute of Central Jersey." In redirect, plaintiff's counsel sought to introduce as a "prior consistent statement" a January 28, 2002 letter to him from Dr. Petrone which stated:

I treated Dr. Louro on a consistent basis from the time of his dog bite trauma until the time of his auto accident on 5/14/99. I then continued treating Dr. Louro for injuries sustained in the auto accident. Dr. Louro was seen on a 1-2x a week basis during this time. Conservatively speaking he [was] seen a total of 130-150 times between 10/28/96-5/13/99 . . . .

Over defendant's objection, the trial court excluded plaintiff's use of the letter as documentary or testimonial evidence because it had not been provided to defense counsel in discovery. We discern no abuse of discretion in this ruling. Regardless, even if the trial court had permitted plaintiff to present this letter, we cannot fathom how it could have been considered pivotal to plaintiff's case. As it was not a contemporaneous treatment record, and it did not indicate with any specificity what treatment was rendered to plaintiff or when, it would have provided only marginal benefit in rehabilitating Dr. Petrone. Therefore, its exclusion would certainly not warrant a new trial.

 
Affirmed.

Spondylolisthesis is defined as "forward displacement of a lumbar vertebra on the one below it and especially of the fifth lumbar vertebra on the sacrum producing pain by compression of nerve roots." Merriam-Webster's Medical Desk Dictionary 762 (1996).

State v. Clawans, 38 N.J. 162, 171 (1962).

Dr. Joseph Louro, a chiropractor, is plaintiff's brother, who plaintiff claimed treated him intermittently following the accident. Dr. Kalko is a neurosurgeon who performed a CT-myelogram on October 5, 2000. Dr. Pecoraro is a plastic surgeon who plaintiff saw following the dog bite incident. Dr. Schenker is a neurologist who performed an EMG of plaintiff's upper extremities following the dog bite incident.

(continued)

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A-5489-04T2

June 30, 2006