MARTA HERMOSI v. MEGAN AZZARO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2313-07T32313-07T3

MARTA HERMOSI and

SERGIO HERMOSI, Her Husband,

Plaintiffs-Appellants,

v.

MEGAN AZZARO and JOHN AZZARO,

Defendants-Respondents.

________________________________________________________________

 

Argued November 12, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8848-05.

Sasha C. Rodrigues argued the cause for appellants (Koulikourdis and Associates, attorneys; Ms. Rodrigues and Peter J. Koulikourdis, on the brief).

Kenneth R. Foreman argued the cause for respondents (Harwood Lloyd, LLC, attorneys; Mr. Foreman, of counsel; Paul E. Kiel, on the brief).

PER CURIAM

Plaintiffs Marta and Sergio Hermosi appeal from a judgment entered on November 23, 2007 after a jury found no cause for action. They also appeal from an order entered on December 7, 2007 denying their motion for a new trial.

This appeal arises out of a rear-end collision on October 15, 2004, in which defendant's vehicle hit plaintiff's vehicle. Plaintiff claimed orthopedic and neurological injuries stemming from the accident. Plaintiff was subject to the tort limitation, commonly referred to as the verbal threshold, in order to proceed with her claim. N.J.S.A. 39:6A-8a.

Dr. Michael Amoroso, a radiologist, testified as an expert on plaintiff's behalf. Interpreting plaintiff's MRIs, Dr. Amoroso testified that plaintiff had a central superior disc herniation in the cervical spine at C2/C3 and disc bulges at C3/C4, C4/C5 and C6/C7. He testified that herniation is caused by "[s]ome traumatic force." He further indicated that a herniation is a permanent condition "[e]xcept for rare instances." He noted that plaintiff's lumbar spine MRI showed disc desiccation and acknowledged that the desiccation could have resulted from degenerative changes rather than trauma. He also acknowledged that plaintiff's MRI showed no nerve root or spinal cord impingement.

Dr. Wayne Poller, a chiropractor, testified as an expert on plaintiff's behalf. He noted that plaintiff began treating with him approximately one week after the accident. She complained of pain, stiffness in her back, neck and shoulders and discomfort elsewhere in her body. She exhibited pain on palpation at C4/5, C5/6 and L5. Dr. Poller took X-rays, which showed "hypomobile subluxation at C5/6/7, some disc narrowing at C5/6/7, and . . . subluxations at C7/6, C5/4, and malpositions at C6/7 and C4/3." In his reading of plaintiff's MRIs, Dr. Poller found a bulging disc at L5/S1.

Dr. Roger A. Berg, defendant's radiological expert, found no herniations or subluxations in plaintiff's cervical MRI and that "all the vertebral bodies were in a normal alignment." He found no indication of nerve root impingement and testified within a reasonable degree of medical certainty that the changes in plaintiff's cervical spine shown in the MRI were chronic and degenerative rather than caused by the accident. Indeed, Dr. Berg stated that it would be unusual for a person of plaintiff's age, forty-four, to have no degenerative changes. According to Dr. Berg, plaintiff's MRI of the lumbar spine showed no disc bulge at L5/S1 and that the L5/S1 disc was "absolutely normal."

Similarly, Dr. Robert Goldstone, a certified orthopedic surgeon testifying on behalf of defendant, reviewed plaintiff's MRIs and opined that plaintiff did not suffer from symptomatic disc disease or radiculopathy. He also indicated that there was no evidence of nerve root impingement, nor did he see any evidence of permanent injury.

At the conclusion of the testimony, plaintiff requested the court to instruct the jury "that a herniated disc is a permanent injury as a matter of law." Plaintiff argued that if the jury found that the herniated disc was proximately caused by the accident, they should then proceed to damages. Defendants objected and argued that the question of whether plaintiff suffered a permanent injury was an issue of fact for the jury to resolve.

The trial judge denied plaintiff's request and read Model Civil Charge 5.33B on the limitation on lawsuit option (verbal threshold). This charge required the jury to determine (1) whether defendants' negligence was the proximate cause of plaintiff's injuries; and (2) whether plaintiff's injuries were permanent. The court defined "permanent injury" as follows:

[An] injury shall be considered permanent when the body part has not healed to function normally, and will not heal to function normally with further medical treatment. Plaintiff must prove this claim through objective, credible, medical evidence. Objective proof means that the injury must be verified by physical examination or medical testing, and cannot be based solely on the plaintiff's subjective complaints.

The jury was presented with a verdict sheet that included three questions:

1. Has plaintiff proven that she has sustained a permanent injury that was proximately caused by the automobile accident?

YES _____ or NO_____

Number of Jurors Voting ________

If you answered yes, proceed to question number 2. If you answered no, cease deliberations and return your verdict.

2. What amount of money will fairly and reasonably compensate plaintiff for any permanent injury she sustained which was proximately caused by the automobile accident?

$ _________ Number of Jurors Voting _____

3. What amount of money will fairly and reasonably compensate plaintiff, Sergio Hermosi, for his per quod claim?

$ __________ Number of Jurors Voting _____

Return your verdict.

The jurors unanimously answered "No" to question number one.

On November 6, 2007, plaintiff moved for a new trial. That motion was heard on November 23, 2007, and denied by the court.

Plaintiff appealed and argues (1) the trial court erred in denying her motion for a new trial because the court did not read the requested jury charge on permanent injury; and (2) the trial court erred in refusing to charge the jury in accordance with Pardo v. Dominguez, 382 N.J. Super. 489 (App. Div. 2006).

Both of plaintiff's arguments address essentially the same issue and focus on our decision in Pardo. There, the plaintiff appealed from an order granting summary judgment dismissing her complaint for failure to satisfy the verbal threshold, N.J.S.A. 39:6A-8a. Id. at 490. The plaintiff argued that "she satisfied the threshold because 'a herniated disc diagnosed through the use of an MRI, a bulging disc diagnosed through the use of MRI, and TMJ displacement diagnosed through MRI are all credible objective medical evidence of a permanent injury.'" Ibid. There was no dispute that the MRI of the plaintiff's lumbar spine revealed a herniation at L1/L2 and a bulge at C6/C7. Id. at 491. "We . . . conclude[d] that the finding of the herniated disc satisfies the threshold. Certainly, by definition, '[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.'" Id. at 492 (emphasis added) (quoting N.J.S.A. 39:6A-8a).

Here, plaintiff argues that Pardo mandates an instruction to the jury that "a herniated disc is a permanent injury as a matter of law" whenever there is objective medical evidence of a herniated or bulging disc. We disagree.

In Pardo, the plaintiff was appealing from a grant of summary judgment and there was no dispute between the parties as to what the MRI revealed. Id. at 491-92. Under those circumstances, we reversed the grant of summary judgment. Our decision in Pardo, however, cannot be extrapolated to mandate a jury charge that "a herniated disc is a permanent injury as a matter of law" in every case where there is some evidence of disc herniation.

In Ames v. Gopal, ___ N.J. Super. ___ (App. Div. 2008), we recently reversed a jury verdict in favor of plaintiff and ordered a new trial in a verbal threshold case in which there was undisputed evidence of a herniated disc and the trial court gave a jury instruction based on Pardo. There, defendant's expert testified that plaintiff's MRI showed a herniated disc, but he "drew a distinction between a permanent condition and a permanent injury . . . . This testimony presented a factual question which the jury had to resolve as to whether plaintiff had suffered a permanent injury under the [verbal threshold] statute." Slip op. at 6-7. We concluded that by instructing the jury that a herniated disc is a permanent injury, "[t]he trial court . . . took this question away from the jury." Slip op. at 7.

Here, there was a dispute as to whether plaintiff's MRIs indicated any bulging or herniated discs. Plaintiff's experts testified that they did and defendants' experts testified that they did not. In completing the verdict sheet, the jurors voted unanimously that plaintiff did not prove that she sustained a permanent injury that was proximately caused by the accident. Under these circumstances, we find no merit in plaintiff's argument that if the jury had been charged in accordance with Pardo, the verdict would have been different.

Plaintiff also relies on Kalra v. Garcia, an unpublished Appellate Division decision decided July 17, 2007. Rule 1:36-3, however, provides that "[n]o unpublished opinion shall constitute precedent or be binding upon any court." In Sciarrotta v. Global Spectrum, 194 N.J. 345, 353 n.5 (2008), the Supreme Court declined to consider appellant's argument based on an unpublished opinion. Accordingly, we will not consider Kalra in our decision here.

Plaintiff further argues that the trial court erred in denying her motion for a new trial based upon its failure to instruct the jury on the requested charge. As we have discussed above, we find no error in the trial court's refusal to instruct the jury that "a herniated disc is a permanent injury as a matter of law" based upon Pardo. The trial court gave the following instruction:

Now let me tell you about proximate cause. It is the duty of the plaintiff to establish by a preponderance of the evidence that the negligence of the defendant was a proximate cause of the injuries allegedly to have resulted from the defendant's negligence. The basic question for you to resolve is whether the plaintiff's permanent injury is so connected with the negligent actions or inactions of the defendant, that you decide it is reasonable in accordance with the instructions that I am now giving you, that the defendant should be held wholly responsible for the permanent injuries.

Let me further define proximate cause for you. By proximate cause I refer to a cause that in a natural and continuous sequence produces the resulting permanent injury, and without which the resulting permanent injury would not have occurred. A person who is negligent is held responsible for any permanent injury that results in the ordinary course of events from her negligence. This means that you must first find that the resulting permanent injury to the plaintiff would not have occurred but for the negligent conduct of the defendant. Second, you must find that the defendant's negligent conduct was a substantial factor in bringing about the resulting permanent injury. By substantial I mean that the cause is not remote, trivial, or inconsequential.

If you find that the defendant's negligence was a substantial factor in bringing about the permanent injury, th[e]n you should find that the defendant was a proximate cause of plaintiff's permanent injury.

Given the evidence presented at trial, that charge was appropriate and properly defined the issues for this jury.

If we were to accept plaintiff's argument, whenever a plaintiff presented objective medical evidence of a disc herniation, the court would be obligated to charge the jury that it was a permanent injury as a matter of law, leaving the jury to find only whether the injury was proximately caused by the defendant's negligence. That amounts to a directed verdict on the question of permanency. In a case, such as this, where the injury itself is disputed - defendant's experts saw no evidence of a herniated or bulging disc on plaintiff's MRIs - clearly, it would have been inappropriate for the trial court to charge the jury on permanency as requested by plaintiff.

 
We have carefully considered the record in light of plaintiff's arguments and the applicable law. We are satisfied that the trial court correctly charged the jury and properly denied plaintiff's motion for a new trial.

Affirmed.

When we refer to plaintiff in the singular, we are referring to Marta Hermosi. Sergio Hermosi, her husband, is named in the complaint on a per quod claim only.

Dr. Poller described "subluxation" as "a bone out of position in relation to the juxtaposition bone above and below."

(continued)

(continued)

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A-2313-07T3

December 15, 2008