BARBARA DEDEAR v. EVELYN SHELTON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2349-07T12349-07T1

BARBARA DEDEAR,

Plaintiff-Appellant,

v.

EVELYN SHELTON,

Defendant-Respondent,

and

CHARLES HOWELL, JR.,

Defendant.

_____________________________

 

Argued January 12, 2009 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Cumberland

County, L-1075-04.

Michael T. Novick argued the cause

for appellant (Milton W. Brown,

attorney; Mr. Novick, on the brief).

Marc L. Hurvitz argued the cause

for respondent (Hurvitz & Waldman,

L.L.C., attorneys; Mr. Hurvitz,

on the brief).

PER CURIAM

In this automobile accident case, plaintiff Barbara Dedear appeals from a $3,000 jury verdict in her favor, contending that the trial judge erred in failing to charge the jury on aggravation of a pre-existing condition. Because we conclude that the trial judge's determination on that issue was correct, we affirm the judgment entered November 13, 2007, and the January 4, 2008 order denying plaintiff's motion for a new trial.

I

There is no dispute that plaintiff was injured in the accident, which occurred on December 1, 2002. Defendant admitted liability and did not dispute that plaintiff suffered temporary sprain and strain injuries in the accident. Plaintiff's theory of the case, as articulated in her counsel's opening statement, was that the accident caused new injuries to plaintiff's lower back, in the form of "disc damage at L4-5 . . . and L5-S1." In 2005, plaintiff had lower back surgery to repair those discs. Plaintiff contended that the surgery was necessary because of the injuries she suffered in the accident. The defense's position was that the 2005 surgery was due to plaintiff's degenerative joint disease, which was unrelated to the accident. In particular, the defense relied on the fact that a 2002 MRI showed a disc bulge, whereas the 2005 MRI showed a herniated disc.

At the trial, the parties presented their expert witnesses through de bene esse videotaped depositions taken prior to trial. Consequently, neither party was in a reasonable position to respond to new medical theories raised at trial by the other party.

Plaintiff presented testimony from Dr. James Lowe, a neurosurgeon specializing in spinal surgery. He began treating plaintiff in April 2004. He testified to his review of plaintiff's previous medical history, which included fibromyalgia, and a 1992 auto accident which caused no lasting injury. Dr. Lowe reviewed an MRI done June 13, 2003. He testified that the MRI did not show a typical herniated disc in plaintiff's lower back, but rather showed that the discs at L5-S1 and L4-5 had subtle changes from normal, particularly in terms of height and color. However, he also testified that a discogram, which involved injecting contrast medium into plaintiff's spinal discs, showed tears in the discs at L4-5 and L5-S1, as well as eliciting pain in those locations.

According to Dr. Lowe, the damage to the discs, as shown on the MRI and the discogram, was caused by the 2002 accident. By contrast, an MRI taken about a year prior to the accident was "unremarkable." He also testified that plaintiff's symptoms (e.g., back pain and radiating leg pain) and her need for a laminectomy and fusion of her lower spine, which he performed, were due to the accident. He testified that the surgery was successful in returning plaintiff to "her pre-accident baseline." However, he also testified that the surgery itself, in fusing the lower spine, would permanently change its mechanics and increase the risk of future back problems. Dr. Lowe testified that he disagreed with the defense expert, Dr. Goldstein, who opined that plaintiff's surgery was for a condition that pre-existed the accident.

When asked if plaintiff had a pre-existing problem with her lower back, Dr. Lowe responded that there was "no MRI showing a problem, there is no EMG showing a problem, there is no discogram, CAT scan, myelogram, or xray." However, he admitted that even after the surgery, plaintiff still had subjective complaints of pain, which was "one of the classic symptoms of fibromyalgia." He also admitted that plaintiff's medical records from 2001 showed some low back problems, characterized as "lumbar strain" with no diagnosis of any problems with plaintiff's discs. Dr. Lowe did not testify that plaintiff's injuries from the accident aggravated any pre-existing condition. Rather, he testified that plaintiff suffered a new injury in the accident the damage to her lumbar discs as distinguished from her pre-existing and unrelated condition of fibromyalgia.

Plaintiff also presented testimony from Dr. Gregory Maslow, an orthopedic surgeon. He first examined plaintiff in June 2003. She complained of low back pain, and pain and numbness in her left leg. He testified to an EMG nerve conduction study done in April 2003, showing radiculopathy at the S1 nerve, which corresponded to plaintiff's radiating leg pain. He concluded that this condition was caused by the 2002 accident. Because plaintiff's symptoms continued to worsen, he ordered an MRI in 2003, which "did not show a disc rupture." He then ordered a discography in December 2003. This test showed abnormalities in the L4-5 and L5-S1 discs, including tears in the annulus or outer coating of those two discs, although there was no actual "rupture." According to Dr. Maslow, the annular tears and the radiculopathy were caused by the 2002 accident and were not pre-existing conditions. Plaintiff's eventual surgery was necessitated by the injuries suffered in the accident.

Significantly, when plaintiff's counsel asked specifically whether it was "possible" that plaintiff might have had "things wrong in her back that were not causing her pain that became painful after the car accident," Dr. Maslow responded "that's possible." However, when plaintiff's counsel asked if it was "probable," Dr. Maslow replied "I have stated that in my opinion, within reasonable medical probability, the abnormalities, which include the annular fissures, and the lumbar radiculopathy occurred as a result of this accident."

Defendant presented Dr. Gary Goldstein, an orthopedic surgeon, who performed an independent medical examination (IME) of plaintiff. According to Dr. Goldstein, when he examined plaintiff she told him that before the accident, her fibromyalgia was causing "pain in every joint of her body" including her low back. He testified that fibromyalgia was "an unusual condition and its manifestation is pain." It was widely considered to be a "collagen vascular disease" like "rheumatory arthritis, scleroderma or lupus."

According to Dr. Goldstein, plaintiff had "discogenic syndrome predating the accident" and to the extent that condition required surgery, "she was, by some criteria, a surgical candidate the day, week or month before the accident conceptually." He testified that plaintiff sustained a sprain in the accident but that she had no long-term injury attributable to the accident. He opined that plaintiff had no "traumatically induced" herniation caused by the accident. He relied in part on plaintiff's history of low back pain in 2001, which he concluded was the same "discogenic" back problem for which Dr. Lowe operated on her. He pointed out that plaintiff was taking high doses of narcotic painkillers shortly before the accident.

Dr. Goldstein opined that the sprain plaintiff sustained in the accident caused her back pain to temporarily worsen. However, right after the accident, her rheumatologist actually decreased her dosage of Oxycontin, which was "hardly consistent with an acute, abrupt disc herniation" sustained in the accident. Plaintiff had "multiple medical diseases that can produce . . . back pain." Based on x-rays of plaintiff's spine showing bone spurs at L4-5 and L5-S1, he also opined that any changes in her discs had developed over a long period of time. He disagreed with the diagnosis of radiculopathy, and testified that plaintiff's back pain could have been produced by the bone spurs, a degenerative condition. According to Dr. Goldstein, the 2003 discogram was normal. He also testified that the facet joints removed in the surgery "were arthritic before."

In summary, Dr. Goldstein opined that plaintiff's pain was due to her pre-existing conditions and there was no "new injury" caused by the accident. He testified that the problems with the L4-5 and L5-S1 discs were degenerative and longstanding. They were not caused by the accident. If she needed back surgery, it was not due to the accident. He also testified that one of plaintiff's treating doctors, Dr. Soloway, had opined that plaintiff's post-accident symptoms were unrelated to her fibromyalgia; in other words, even plaintiff's doctor did not opine that the accident aggravated plaintiff's pre-existing fibromyalgia. On cross-examination, Dr. Goldstein answered "true" when asked whether a car accident can cause an "asymptomatic disc to become symptomatic and hurt." However, he did not testify that this happened to plaintiff. In fact, he testified that she had no such injury from the accident. He testified that Dr. Lowe's decision to operate on plaintiff was equally consistent with plaintiff having "pre-existing symptomatology that she decided to get operated on."

On cross-examination he agreed that Dr. Lowe's initial diagnosis was "consistent with the theory" that plaintiff had no symptoms in her low back before the accident and needed surgery as a result of the accident. But Dr. Goldstein did not agree with Dr. Lowe's diagnosis. He testified that plaintiff's medical records from the months after the accident were inconsistent with the theory that her radiculopathy was caused by the accident. He also testified that plaintiff's doctors did a poor job of documenting the locations of her pain, in that they were giving her huge doses of narcotic pain relievers prior to the accident, without stating in their notes what pain in which body part the drugs were intended to relieve. He also testified that instead of giving her all of the narcotics, plaintiff's doctors should have ordered the discogram and other diagnostic tests long before the accident, given plaintiff's history of back pain. At no point in his de bene esse deposition did Dr. Goldstein testify that the accident aggravated a pre-existing condition.

According to plaintiff's trial testimony, prior to the accident, she had osteoarthritis of her knees, asthma, and fibromyalgia. The latter caused soft tissue, muscle and tendon pain but did not cause low back pain. After the accident, her main complaint was low back pain, which progressed to pain going down her legs. She testified that the surgery relieved the worst of her pain, however, she still had some residual back pain of a type that she did not have prior to the accident.

On cross-examination, she admitted that she had complained of low back pain on occasion prior to the accident, and she admitted that prior to the accident she was regularly taking several different types of painkillers, including Oxycontin, to treat her fibromyalgia. She claimed that her fibromyalgia symptoms became worse after the accident because "stress causes more pain in fibromyalgia." However, no doctor confirmed this assertion. She testified that by the time of the trial, her fibromyalgia pain had returned to "what it was" before the accident.

During the charge conference on October 31, 2007, plaintiff's counsel asked the judge to include Model Civil Charge 6.11G, concerning aggravation of a pre-existing condition which was asymtomatic at the time of the accident. Defense counsel objected that plaintiff did not try the case on that theory and there was no expert medical testimony to support it. The court agreed with the defense, stating:

First of all . . . this case was really basically tried from the beginning on an issue that there's a separate injury - that she had other problems --- other body parts there were difficulties with, but this was a separate body part . . . and, this is a new problem and that she didn't really have any significant problem there before . . . . And, as a result of this collision, she had to go through the surgery. . . and - at this late date, at the very end of the case, after everything that's transpired, with no advance notice to the Court, and I didn't hear anything in your opening that alerted me to this possibility. And, the only thing that you've touched upon is . . . . [testimony that] there's a theory. I don't believe that is sufficient to meet the standard. It's not like there's a doctor saying to a reasonable degree of medical probability that there was an aggravation. There's a doctor, in a hypothetical way, conceding it's a possibility. And, that's certainly not enough to rely upon. . . .

II

On this appeal, as in the trial court, plaintiff contends that the trial judge erred in refusing "to charge the jury with 6.11G (aggravation of a pre-existing condition)." See Model Jury Charge (Civil), 6.11G "Aggravation of a Pre-existing Illness" (1997). Having reviewed the entire trial record, we conclude that this contention is without sufficient merit to warrant extended discussion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated by the trial judge. We add the following comments.

Plaintiff's reliance on Edwards v. Walsh, 397 N.J. Super. 567 (App. Div. 2007), is misplaced. In Edwards, we found that defense counsel raised the issue of aggravation of a pre-existing injury, when he cross-examined plaintiff's medical experts. Id. at 572. That did not happen here. Unlike Edwards, in this case there simply was no medical testimony to support the requested charge. None of the doctors who testified offered an opinion that plaintiff suffered from a pre-existing, asymptomatic condition that was aggravated by the accident. Plaintiff's evidence was that she suffered a new injury, in the form of tears to the annulus at L4-5 and L5-S1, which eventually caused her to need surgery. Defendant's evidence was that, apart from temporary sprains and strains, plaintiff suffered no new injury in the accident, and that her persistent pain, and the need for surgery, was caused by her pre-existing degenerative spinal condition. Plaintiff's arguments to the contrary are based on a misreading of Dr. Goldstein's testimony.

Further, the introduction of an entirely new theory of medical causation at the very end of the case would have constituted unfair surprise. Both sides had videotaped their experts and, consequently, defendant was in no position to respond to this new theory. We find no error in the trial judge's decision not to give the requested jury charge.

Affirmed.

 

The Model Civil Jury Charges were renumbered in October 1997; this charge is now Model Jury Charge (Civil), 8.11F "Aggravation of the Preexisting Disability" (1997).

(continued)

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A-2349-07T1

January 30, 2009