NICOLE STUART v. RUSSELL A. YERMAL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5946-07T15946-07T1

NICOLE STUART,

Plaintiff-Respondent,

v.

RUSSELL A. YERMAL and

ALAN D. CAHILL,

Defendants-Appellants.

_______________________________

 

Argued May 26, 2009 - Decided

Before Judges Carchman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket L-378-05.

Adam Kenny argued the cause for appellants (Weiner Lesniak, L.L.P., attorneys; Mr. Kenny of counsel and on the briefs; William J. McGuire of counsel; Margaret A. Miller on the briefs).

Frank Peretore argued the cause for respondent (Peretore & Peretore, P.C., attorneys; Mr. Peretore and Fredda Katcoff, on the brief).

PER CURIAM

In this case, governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, a jury awarded plaintiff $300,000 for her alleged permanent injuries suffered as a result of an automobile accident on August 23, 2003. Defendant Russell Yermal, the driver of the vehicle in which plaintiff was a passenger, and defendant Alan Cahill, the vehicle's owner, appeal from the denial of their motion for a new trial.

On appeal, defendants contend that the trial judge improperly instructed the jury on Model Jury Charge 8.11F, Aggravation of the Preexisting Disability (Approved 1/97) (the aggravation charge) because there was no evidentiary basis for the charge, and because the charge improperly permitted plaintiff to change her claim from a "fresh injury" to a "pre-existing injury." Defendants also contend that the judge erred in applying Edwards v. Walsh, 397 N.J. Super. 567 (App. Div. 2007) to deny their motion for a new trial. We reverse.

The facts are straightforward. Yermal was traveling on Church Street in Franklin Borough when he failed to negotiate a left hand turn, struck a utility pole, crossed a lane of traffic, and struck another vehicle, causing his vehicle to flip over several times before landing upside down, impaled on a tombstone. Plaintiff was extricated from the vehicle and taken by ambulance to St. Claire's Hospital, where she was treated and released the same day.

According to plaintiff, she returned to the hospital the next day, complaining of lower back pain. She had x-rays, which revealed no fractures, and was released. She then went to her family physician, who told her "wait it out until the pain actually went away on its own." Plaintiff also treated for about a month with a chiropractor, Dr. Paul Marston, but treatment did not help and the pain grew worse over time. Plaintiff described the pain as severe in her lower back, at times radiating down her legs, with a tingling, numbing feeling. Sitting, walking, and other activities involving movement, exacerbated her condition.

Despite her symptoms, plaintiff received no treatment from approximately September 2003 to October 2004. In or about October 2004, plaintiff allegedly collapsed due to radiating pain in her back and down her leg, which occurred when she tried to pick up a towel to dry her hair. She went to the hospital, where x-rays revealed no fracture. Plaintiff then went to Dr. David Basch, who ordered an MRI, which revealed L4-5 and L5-S1 disc herniations. Dr. Basch referred plaintiff to a physical therapist, prescribed Celebrex for pain, prescribed a back brace that plaintiff still wore at the time of trial, and recommended cortisone injections. Plaintiff said that Dr. Basch informed her that she will need surgery.

Plaintiff filed a complaint on July 11, 2005, alleging that the accident was the sole cause of her injuries and that her injuries were permanent. She did not allege an aggravation of a pre-existing injury. In fact, she certified in her interrogatory answers that she was not seeking damages for aggravation of a pre-existing injury.

Through discovery, plaintiff served Dr. Marston's records, which revealed that he had treated plaintiff three times prior to the accident. The note for the May 7, 2003 visit indicates that plaintiff complained of pain in her left hip and lower back, secondary to pitching softball, and radiating pain in her left leg. Plaintiff admitted at her deposition that she saw Dr. Marston before the accident due to pain in her left hip, which she suffered while pitching in softball. She denied complaining of lower back pain before the accident.

Plaintiff's expert in orthopedic medicine, Arthur Tiger, M.D., examined plaintiff and stated in his report that "[p]rior to the accident, she never had any problems with her lower back." He noted that the MRI indicated that plaintiff suffered L4-5 and L5-S1 disc herniations. Dr. Tiger opined that the accident probably caused these herniations, as well as chronic lumbosacral strain syndrome with chronic myofascitis and clinical right sided lumber radiculopathy. He also opined that plaintiff's injuries were permanent.

Barry S. Levine, M.D., defendant's expert in general medicine and orthopedics, also examined plaintiff. Dr. Levine stated in his report that the MRI "show[ed] rather benign findings of disc bulges at L4-5 and L5-S1 and the possibility of a small herniation at L5-S1." However, he opined that "[t]hese findings are not posttraumatic, not related to [the] accident, and were most probably preexisting[.]"

Plaintiff testified at trial that prior to the accident she was an avid softball player for many years, a snowboarder, and an archer; however, she gave up these activities due to her injuries from the accident. She stated that she had never experienced low back pain radiating to her legs. However, she admitted treating with Dr. Marston prior to the accident for "tenderness" and "being sore[,]" which she attributed to softball pitching. She denied that prior to the accident she had an accident in which she injured her back.

On cross-examination, plaintiff admitted that Dr. Marston had treated her for lower back pain prior to the accident; however, she denied any problem with her back before the accident that the accident worsened. Later during cross-examination, plaintiff once again stated that any previous back problems she had did not involve the pain that she experienced from the injuries she sustained in the accident.

Dr. Tiger testified that Dr. Marston treated plaintiff for low back pain, but never diagnosed her with disc herniations prior to the accident. Dr. Tiger also testified that nothing in the chiropractor's records reflected a pre-existing back injury. The doctor opined that plaintiff suffered two herniated discs in her lower back, that the accident caused the injury, and that the injury is permanent, chronic, and progressive.

Dr. Levine testified that Dr. Marston's records indicated that plaintiff had pre-existing back and lower extremity complaints and low back pain. He opined that the MRI showed L4-5, L5-S1 disc bulges and possibly a small disc bulge at S1, and that these findings would not cause any symptoms and that the bulges were not caused by the accident and were probably pre-existing. The doctor concluded that plaintiff had no objective evidence of any residual from the accident. He never opined that plaintiff suffered an aggravation of a pre-existing injury.

Plaintiff's attorney requested the aggravation charge to which defense counsel objected. Overruling the objection, the judge charged the jury as follows:

Now in this case Plaintiff claims that her injuries came from this accident and that they were caused by this accident . . . proximately caused as I've defined that for you. In this case there may have been evidence presented that the Plaintiff, prior to the accident involved, had some type of prior injury or condition. I'll refer to this condition as a pre-existing injury.

There are different rules for awarding damages, depending on whether the pre-existing injury was or was not causing Plaintiff any harm or symptoms at the time of this accident. Obviously the Defendant is not responsible for any pre-existing injury of the Plaintiff. As a result, you may not award any money in this case for damages attributed solely to any pre-existing injury or condition.

I'll now explain to you what . . . happens if the Plaintiff was experiencing symptoms of the pre-existing condition at the time of the accident. And I'll remind you in this case, the Plaintiff, as I recall the testimony, has testified that at the time of the event she had no symptoms. She was asymptomatic, that means that she was not complaining about anything regarding any portion of her back or other portion of her body.

If the injuries sustained in this accident aggravated or made some pre-existing injury more severe, then the Plaintiff may recover for any damages sustained due to any aggravation or worsening of a pre-existing injury, only to . . . the extent of . . . that aggravation and provided that that aggravation of a pre-existing condition is permanent, as I've explained that [to] you and defined that for you under the law. The Plaintiff is entitled to damages only for that portion of her injuries attributable to the accident.

If you find that the . . . Plaintiff had a pre-existing injury and that that condition was not causing any symptoms or harm at the time of the accident, but that the pre-existing condition combined with injuries incurred in the accident to cause her damage, then the Plaintiff is entitled to recover for the full extent of damages that she sustained.

Defendants filed a motion for a new trial, contending that the judge erred in giving the aggravation charge. Relying on Edwards, supra, the judge denied the motion, finding that defendants had put the pre-existing injury issue before the jury. We disagree.

First, we emphasize that in Edwards, we commented in dicta, but did not hold, that even though the plaintiff provided no evidence of an aggravation of a pre-existing injury, the aggravation charge was proper because defendant had put the aggravation issue before the jury. Edwards, supra, 397 N.J. Super. at 572. Here, plaintiff placed the issue before the jury by presenting evidence on her direct examination of prior treatment for a back problem, and by denying having suffered a pre-existing back injury. Also, her expert testified on direct examination about plaintiff's prior chiropractic treatment for low back pain and that she had no pre-existing back injury. More importantly, no expert opined within a reasonable degree of medical probability that plaintiff suffered a pre-existing, asymptomatic condition that the accident aggravated. Accordingly, Edwards is inapplicable in this case, and the aggravation charge was not proper.

A proper jury charge is a prerequisite for a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). "Jury instructions should correctly state the applicable law in clear and understandable language." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The charge also must be based on the evidence. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000). In evaluating an erroneous jury charge, we consider whether the error "is clearly capable of producing an unjust result." R. 2:10-2; Pressler, Current N.J. Court Rules, comment 3.3.2 on R. 2:10-2 (2009). We will reverse a verdict due to an error in the charge only if "it led the jury to a result that it would have otherwise not reached." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2009).

By giving the aggravation charge, the judge allowed the jury to award damages not supported by the evidence. Accordingly, the charge produced an unjust result, constituting reversible error.

 
Reversed and remanded for a new trial.

Alternatively, defendants sought remittitur. Because defendants do not address this issue in their merits brief, it is deemed waived. Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008).

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A-5946-07T1

July 27, 2009