ANTOINETTE P. SHEFFER v. LINDA M. SULLIVAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6601-06T26601-06T2

ANTOINETTE P. SHEFFER and

JAMES F. SHEFFER,

Plaintiffs-Respondents,

v.

LINDA M. SULLIVAN,

Defendant-Appellant.

_____________________________________

 

Argued November 12, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-0748-04.

Anthony Young argued the cause for appellant (Parker Young & Antinoff, L.L.C., attorneys; Jeanne A. Taylor, of counsel and on the brief).

Kenneth G. Andres, Jr. argued the cause for respondents (Andres & Berger, P.C., attorneys; Mr. Andres and Tommie Ann Gibney, of counsel and on the brief).

PER CURIAM

In this motor vehicle accident case, defendant Linda M. Sullivan appeals from the Amended Final Judgment dated July 20, 2007, in favor of plaintiffs Antoinette P. Sheffer and James F. Sheffer entered after a jury trial, and from the order of June 22, 2007, denying her motion for judgment n.o.v., new trial, or remittitur. We reverse, since the evidence did not support the aggravation charge, and this mistake was capable of producing an unjust result.

I

This lawsuit arises out of a motor vehicle accident that took place on October 15, 2002, when the car plaintiff Antoinette P. Sheffer was driving was struck in the rear by a vehicle being driven by defendant. Defendant admitted liability, and the case was tried to a jury on the issue of damages. Since plaintiff's claim was governed by the verbal threshold, in order to recover damages, plaintiff was required to prove with credible objective medical evidence that she sustained a permanent injury in the accident.

At the commencement of the trial, plaintiff contended that she sustained two permanent injuries in the accident, a herniated disc in her thoracic spine between the sixth and seventh thoracic vertebrae (T6-T7) and a lump on her shin. At trial, she presented the testimony of two orthopedic surgeons, Barry S. Gleimer, D.O., and I. David Weisband, D.O.

Dr. Gleimer testified by videotaped de bene esse deposition. He stated that plaintiff had a herniated disc in her thoracic spine at T6-T7 that was pushing into the thecal sac surrounding her spinal cord. In reaching this opinion, he relied in part on the magentic resonance imaging (MRI) report and films taken of plaintiff's spine. The MRI report stated that plaintiff had a moderate central disc protrusion pressing against the thecal sac. Dr. Gleimer testified that a disc protrusion and a disc herniation were the same thing. In his opinion, the disc herniation was caused by the accident and was likely to degenerate over time. Possible future treatment included an epidural and, if that was unsuccessful, surgery. According to Dr. Gleimer, surgery would be difficult because, due to the location of the herniation, the surgery would have to be done from the front, not the back, and hence would entail opening the chest cavity.

While acknowledging that plaintiff had preexisting arthritis, Dr. Gleimer opined that the disc herniation was caused by the accident and not the preexisting arthritis. He reached this conclusion in part because plaintiff had no complaints about her back prior to the accident, and her complaints of pain were in the area where the herniated disc was located. Dr. Gleimer also testified that plaintiff sustained a hematoma to her left shin that did not completely heal and may require some future surgery.

Dr. Weisband, a partner of Dr. Gleimer, who had conducted a medical examination of plaintiff and reviewed her medical records, including the MRI report and the films themselves, concluded that she had a moderate size central disc herniation at T6-T7 that was pressing on the thecal sac. When it compressed on the spinal cord, she would experience back pain. He also stated that these were permanent injuries. He expressed the opinion that the herniated disc was likely to get worse and explained the treatment options, consisting of an epidural and surgery. He also found that plaintiff had a nodule on her shin called a chronic hematoma caused by the accident.

The defense disputed that plaintiff had a herniated disc and attributed any back problems she did have to her preexisting degenerative back condition and not the accident. The defense's medical expert, Irving P. Ratner, M.D, an orthopedic surgeon, disputed the findings on the herniation by plaintiff's experts. He stated that a disc herniation and a disc protrusion were not the same thing in that they differ by degree - a protrusion is a small bump while a herniation is a larger piece of disc pushing through the wall. His review of the MRI films revealed only a protrusion; he did not find a disc herniation nor did he find any compression upon the spinal cord. While he found evidence of aging and degenerative changes in plaintiff's spine, he found no evidence of an acute disc herniation. In his opinion, plaintiff sustained no permanent injury from the motor vehicle accident. On cross-examination he acknowledged that the nodule on plaintiff's leg was permanent; he described it as the size of a lima bean. He also testified that he did not think that plaintiff was lying about her pain. He explained that degenerative disc disease is not the same as arthritis.

At the conclusion of the trial, relying in part on the testimony of the defense expert, plaintiff argued that the proofs also supported a claim for aggravation of her preexisting asymptomatic arthritic condition. Over the objections of the defense, the trial judge gave the jury the aggravation charge.

The jury found that plaintiff had sustained a permanent injury proximately caused by the accident. It awarded her the sum of $175,000 for her injuries and awarded her husband James F. Sheffer $25,000 on his per quod claim. Defendant's motion for a judgment notwithstanding the verdict and for a new trial was denied.

On appeal, defendant contends that the trial court erred in giving the jury an aggravation of a preexisting injury charge. Defendant also asserts evidentiary errors, contending that the testimony of two doctors for plaintiff was cumulative and that showing photographs of damage to the vehicle without adequate limiting instructions was in error. She further argues that these cumulative errors resulted in a verdict against the weight of the evidence and a new trial is required.

II

After a careful review of the record, we find that the medical proofs do not support a charge that plaintiff's preexisting arthritis was aggravated by this accident.

When a plaintiff contends that a preexisting medical condition was aggravated by an accident, the plaintiff must present a comparative medical analysis segregating the aggravation from the preexisting injury. O'Brien (Newark) Cogeneration, Inc. v. Automatic Sprinkler Corp. of Am., 361 N.J. Super. 264, 274-75 (App. Div. 2003) (cited with approval in Davidson v. Slater, 189 N.J. 166, 185-86 (2007)), certif. denied sub nom., O'Brien (Newark) Cogeneration, Inc. v. Hawker-Siddeley, Inc., 178 N.J. 452 (2004).

Certainly, the record contains proofs that plaintiff had a preexisting arthritic condition in her spine that had been asymptomatic. Plaintiff testified that she had no problems with her thoracic spine before the accident. The experts for plaintiff testified that plaintiff did have preexisting arthritis or degenerative changes in her spine. There was also evidence that the arthritic or degenerative condition made plaintiff more susceptible to a herniation. However, no expert gave a medical opinion that her preexisting arthritic condition was aggravated by the accident.

In an attempt to find a medical foundation for this aggravation theory, plaintiff points to the following testimony of Dr. Gleimer regarding his first examination of plaintiff two weeks after the accident and before the MRI had been obtained:

Q. Did you form a diagnosis as to the injuries that Mrs. Sheffer suffered as a result of the collision?

A. Yes, I did.

Q. Will you tell the jury what your official medical diagnosis was?

A. Yes. That she had a cervical and thoracic muscle and ligament stretch injury, which I termed strain and sprain. She had sustained a contusion to her lower legs and had developed what we call hematomas, which are accumulation of blood pooling in the tissues from the impact. I indicated to rule out a thoracic disc injury or occult compression fracture, because she had significant pain in her midback area, her thoracic spine, and also indicated that she may have sustained exacerbation of some arthritis in her back that was, I believe, preexisting, the arthritis, anyway.

(emphasis added)

Notably, here the Doctor does not make a finding that plaintiff's preexisting arthritis was aggravated by the accident. Rather, he states that it "may" have been. He thereafter obtained MRI's of plaintiff's spine and made a diagnosis of a herniated disc and a hematoma. He did not later testify that plaintiff's arthritis was aggravated by the accident. Indeed, on redirect, he testified to the contrary, as follows:

Q. Counsel for the defendant also asked you a bunch of questions about arthritis. Does that have anything to do with the injuries that Mrs. Sheffer suffered in this motor vehicle collision?

A. No. Her herniated disc is a traumatic event. It is not an arthritic event. And what we're seeing here is a traumatic herniation.

Plaintiff's other expert, Dr. Weisband, provided no testimony that plaintiff's preexisting arthritis was aggravated by the accident.

We note that in Edwards v. Walsh, 397 N.J. Super. 567, 572 (App. Div. 2007), the charge of aggravation of a preexisting injury was given to the jury based on evidence provided by defendant rather than plaintiff. However, in this case before us, the testimony of defendant's medical expert does not support an aggravation charge; he never testified that within a reasonable degree of medical probability plaintiff's preexisting arthritis was aggravated by the accident.

Among its other purposes, a charge to the jury must set forth a correct statement of the applicable law. Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 576 (App. Div. 2008). 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 error in a jury charge, we must 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 the jury could have come to a different result had it been correctly instructed." Finderne Mgmt. Co., Inc. v. Barrett, supra, 402 N.J. Super. at 576. A material error in the charge is presumptively reversible error. Ibid.

By submitting the aggravation charge to the jury, the trial court allowed the jury to award damages for an aggravation of a preexisting condition, despite the absence of sufficient evidence to support such a claim. As a result, the charge was clearly capable of producing an unjust result, and constituted reversible error.

Plaintiff argues that the jury's finding of a permanent injury required by AICRA is unassailable, since the jury must have found that either the hematoma or the herniated disc were a permanent injury. However, in the verbal threshold portion of the jury charge, the trial judge stated that plaintiff "alleges she suffered a permanent injury to her leg and back as a result of the motor vehicle accident." The reference to the back could be interpreted to include her preexisting arthritic condition, which the testimony revealed was in her back. As noted above, the record contains no adequate proof that plaintiff sustained an aggravation of her preexisting condition.

For all of these reasons, we reverse and remand for a new trial.

III

Since the case may be retried, we briefly address the remaining evidentiary disputes.

We find no reversible error in the trial court's decision to allow the plaintiff to present the testimony of two orthopedic surgeons. Whether to allow a second orthopedic surgeon to testify or to bar the testimony as cumulative, fell within the discretion of the trial court under N.J.R.E. 403, and we find no error here.

Defendant also argues that the admission of photographs showing damage to the vehicle in a damages only trial without an appropriate limiting instruction was prejudicial error. We note that after this case was tried, the Supreme Court discussed the appropriate jury instructions that must be given when photographs are used to show a correlation between damage to the vehicle and injuries. Brenman v. Demello, 191 N.J. 18, 36 (2007). On remand, the trial court must, of course, comply with the Brenman opinion and any subsequent case law when providing instructions on this point.

Reversed and remanded for a new trial.

 

Plaintiff's claim was governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for noneconomic loss unless the claim meets one of the six statutory categories. Ibid. One of those statutory categories is a "permanent injury," defined as an injury that occurs "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." Ibid. In addition, in order to pass the verbal threshold, the claim must be supported by a physician certification that "shall be based on and refer to objective clinical evidence." Ibid. This language has been interpreted as incorporating into the claim the requirement that a finding of a qualifying injury be supported by "credible, objective medical evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005).

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A-6601-06T2

February 19, 2009