FELIX ALMANZAR-FLORES v. WILLIAM H. O'NEILL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2212-10T3

FELIX ALMANZAR-FLORES,

Plaintiff-Respondent,

v.

WILLIAM H. O'NEILL,

Defendant-Appellant,

and

DONALD P. MILEY, BR TRUCKING CO.,

INC., HECTOR E. TOLEDO, and

MICHAEL N. ZANSKY,

Defendants.

________________________________________________________________

February 10, 2012

 

Argued September 13, 2011 - Decided

 

Before Judges Yannotti and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4392-08.

 

Robert D. Kretzer argued the cause for appellant (Lamb, Kretzer, Reinman, Roselle, attorneys; John T. Sullivan, on the brief).

 

Alon Solon argued the cause for respondent (Ginarte, O'Dwyer, Gonzalez, Gonzalez & Winograd, L.L.P., attorneys; Mr. Solon, of counsel and on the brief).

 

PER CURIAM

The jury in this verbal threshold case returned a verdict in favor of plaintiff, Felix Almanzar-Flores, awarding him $500,000 in damages for injuries sustained in a motor vehicle accident involving defendant William O'Neill and other vehicles. Defendant appeals from the judgment and the denial of his motion for a new trial or remittitur. We affirm.

The accident in question occurred in North Bergen on March 12, 2007. Plaintiff was driving southbound in the left lane of Westside Avenue when defendant's vehicle struck him on the side, forcing him over the yellow lines into a head-on collision with a third motor vehicle. The vehicle plaintiff struck then collided with another motor vehicle. Defendant's vehicle flipped over and struck a truck.

Plaintiff filed a lawsuit against defendant O'Neill and the remaining defendants. The lawsuit was bifurcated for trial. Defendant O'Neill was found 100% liable for the accident following the jury trial on liability. The evidence at the damages trial can be summarized as follows.

Plaintiff was taken to the hospital from the scene by paramedics. He was treated and released with medicine and a collar to wear around his neck. Thereafter, he sought treatment from a chiropractor, Dr. Valentin Diaz, had an MRI performed by a board certified radiologist, Dr. Michael D. Green, and was also treated by a board certified neurologist, Dr. Nalini Prasad. All three doctors testified at the trial.

On March 15, 2007, plaintiff went to see Dr. Diaz, with complaints of pain in his neck and back, including his lower back. Plaintiff also told Dr. Diaz he had difficulty sitting, standing and sleeping. Plaintiff informed Dr. Diaz that he had surgery on his lower back in 1991, prior to the car accident. As a result of his examination, Dr. Diaz found that plaintiff's posterior section of the spine "was very rigid, very tight[,]" his neck and shoulder muscles were very tender and his range of motion was limited.

Dr. Diaz began treating plaintiff three times a week with adjustments and manipulation.

Dr. Diaz sent plaintiff for an MRI exam, which was performed on May 25, 2007. Dr. Green reviewed plaintiff's MRI films and prepared a report in which he stated, in part:

Annulus bulging is present at the C5-C6 and C6-C7 levels with a superimposed left central disc herniation seen without a contour deformity of the cervical cord noted.

 

[(Emphasis added).]

 

In his testimony before the jury, Dr. Green stated his conclusion that plaintiff suffered a disc herniation in the cervical spine and also suffered from disc bulging in another area of the cervical spine.

The MRI reports prepared by Dr. Green were reviewed and relied upon by both Dr. Diaz and Dr. Prasad, the neurologist who later treated plaintiff. In his testimony, Dr. Diaz noted that the MRI reports prepared by Dr. Green indicated a disc herniation.

Dr. Prasad also testified regarding her review of the MRI report prepared by Dr. Green, which she noted, showed disc bulges and herniations. She testified that a herniation is a permanent injury.

Defense counsel objected to this portion of Dr. Prasad's testimony and asked for a limiting instruction that "the reliance on the finding of a radiologist is not evidence of a permanent injury." The trial court allowed plaintiff's counsel to withdraw his question, "Is there a way to fix a herniation?" but gave no limiting instruction.

Plaintiff's treating doctors also testified regarding their findings upon examining him.

Three months of chiropractic treatment were unsuccessful in improving plaintiff's condition. Dr. Diaz referred plaintiff to Dr. Prasad, who saw plaintiff on June 12, June 26, September 12 and October 17, 2007.

On his first visit, plaintiff "complained of neck pain and stiffness, and also pain in both scapular regions[,] . . . low back pain, and weakness of the legs, and then tingling in the feet, and he mentioned that the pain was aggravated by standing for long periods of time." In her initial examination, Dr. Prasad found that plaintiff's cranial nerves were normal but there was tenderness in the cervical and lumbar spine. Additionally, "there were trigger points in the lumbar para spinal muscles[,]" the range of motion "for the neck, cervical spine, and the lumbar spine was reduced by 30 percent[,]" and his straight leg test was "mildly abnormal[.]" Dr. Prasad prescribed plaintiff medications including anti-inflammatories and muscle relaxers.

On plaintiff's second visit, on June 26, 2007, Dr. Prasad performed the same tests on plaintiff that she conducted at the first visit, and found "[t]here was no change in his exam." The doctor also advised plaintiff to continue taking the prescribed anti-inflammatory medication and follow up with physical therapy. Dr. Prasad provided a guarded prognosis at that time. She testified, "[B]ecause of the presence of disc herniation . . . I gave it as a permanent injury because disc herniations do not heal normally to the full extent."

Defense counsel sought to strike this response because the doctor's report did not state that plaintiff suffered a permanent injury. The court declined, finding that although Dr. Prasad's report did not specifically use the phrase "permanent injury," it would be reasonable for the jury to draw an inference of permanency from portions of the doctor's report.

Plaintiff visited Dr. Prasad again on September 12, 2007. On this date, plaintiff "still had complaints of neck . . . and back pain, and stiffness in the neck . . . and pain in both scapular regions." After performing another round of examinations, Dr. Prasad found there was still tenderness "in the cervical and lumbar spine, . . . his range of motion was still reduced by 30 percent, . . . the lower back exam with the straight-leg-raising was still limited by 60 degrees[,]" and the motor exam revealed "a mild weakness of the shoulder reduction." Dr. Prasad's prognosis did not change after this visit. She again recommended physical therapy and advised plaintiff to use Lodine patches to help with the pain in his right side.

Dr. Prasad last saw plaintiff on October 17, 2007. Plaintiff presented complaints similar to those in his previous three visits and also complained of being unable to turn his head to the right side. Dr. Prasad conducted the same examinations as in previous visits, with the same results except that plaintiff's range of motion on the lumbar spine was within normal limits. Dr. Prasad again recommended physical therapy, muscle relaxers and Lodine patches.

In his February 2008 report, Dr. Diaz stated that he had last seen plaintiff on October 18, 2007. Dr. Diaz testified that plaintiff still complained of neck pain, increased pain upon rotation of the neck to the right, intermittent low back pain, and pain in his left posterior thigh, with an increase of pain at the end of the workday. Dr. Diaz performed tests which revealed "pain probably caused by the disc herniation," and restricted ranges of motion and degrees of mobility. Dr. Diaz gave a guarded prognosis and, in his report and testimony, the doctor indicated plaintiff suffered a permanent injury. Dr. Diaz also testified he believed the injuries were related to the March 12, 2007 accident.

In addition to the medical testimony, plaintiff and his son testified as to the impact of plaintiff's injuries on his life. Plaintiff testified that the pain he suffered in his neck limited his ability to do the following activities: playing with his grandchildren; moving furniture; cleaning the house and kitchen, including the refrigerator and stove; bringing groceries upstairs; lowering the air conditioning units from the windows; putting curtains down; shoveling snow; picking up the leaves in autumn; organizing the garage; and other things. When he tried to do these things, "the pain in [his] neck [was] unbearable" and he would be unable to sleep that night. Plaintiff's son, Richard Almanzar, testified that prior to the accident his father was able to do everything around the house, including "heavy lifting[,]" but he had now become his father's "handyman[.]"

Dr. Thomas E. Helbig testified on behalf of defendant as an expert in the field of orthopedics and orthopedic surgery. Dr. Helbig testified that he performs independent medical examinations every Monday morning and one Monday evening each month, a total of approximately twenty to thirty examinations each month, for a company called CFO. In the prior year, he earned approximately $120,000 from his work for CFO. All the testimony so provided was on behalf of defendants and defense attorneys. In his examination of plaintiff, Dr. Helbig observed that plaintiff had full range of motion in his neck but it was tender and painful. Dr. Helbig concluded that plaintiff suffered a "cervical sprain and lumbosacral sprain" from the accident; both were temporary injuries. Although he agreed that a disc herniation was a permanent injury, Dr. Helbig disagreed with Dr. Green's assessment that plaintiff had suffered a disc herniation in the cervical spine. Dr. Helbig opined, instead, that plaintiff suffered from disc bulges and degenerative disc disease.

The jury in the damages trial returned a verdict awarding plaintiff $500,000 without costs. Defendant filed a motion for a new trial or remittitur, which was denied.

In this appeal, defendant argues that the judgment against him should be reversed because the trial court erred in: permitting Dr. Diaz and Dr. Prasad to testify regarding the findings in the MRI reports without giving a limiting instruction; permitting Dr. Prasad to testify that plaintiff sustained a permanent injury;1 in not granting his motion for a directed verdict at the close of plaintiff's case; and in permitting Dr. Diaz and Dr. Prasad to testify regarding the aggravation of a prior injury without having performed a Polk2 analysis. In the alternative, defendant argues for remittitur.

After carefully reviewing the record and these issues in light of the applicable legal principles, we are satisfied these arguments lack merit.

I

Plaintiff's claims are subject to the "verbal threshold" which, pursuant to N.J.S.A. 39:6A-8(a) of the Automobile Insurance Cost Reduction Act (AICRA), allows him to maintain an action for noneconomic loss only if he

has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

 

[Ibid. (Emphasis added).]

The statute further provides, "An 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." Ibid. To vault the threshold, a plaintiff must show, by expert opinion based on "'objective clinical evidence,'" that he has suffered an injury enumerated in N.J.S.A. 39:6A-8(a). Davidson v. Slater, 189 N.J. 166, 181 (2007) (quoting N.J.S.A. 39:6A-8(a)). The necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Ibid. (quoting N.J.S.A. 39:6A8(a)).

The thrust of defendant's appeal is that plaintiff failed to meet this standard and that he was prejudiced by certain evidentiary rulings.

A.

Defendant argues that it was error to permit Dr. Diaz and Dr. Prasad to discuss the conclusions in Dr. Green's report they relied upon in forming their own conclusions. We disagree.

Pursuant to N.J.R.E. 703, an expert may testify regarding the facts or data upon which he or she bases an opinion "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject[;] the facts or data need not be admissible in evidence." The effect is to broaden the latitude of the expert testimony, permitting the testifying expert "to detail for the trier of fact all of the materials, including films, test results, hospital records, and other experts' reports, on which he relied in deriving his opinion, so long as they are of a type reasonably relied upon by experts in his field." Agha v. Feiner 198 N.J. 50, 62 (2009). However, the rule is not to be used "as a conduit through which the jury may be provided the results of contested out-of-court expert reports." Id. at 62 (emphasis added); see also Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006).

As the Supreme Court explained, it is in those circumstances, where the use of N.J.R.E. 703 results in laying the opinion of a non-testifying expert before the jury, that a limiting instruction is required:

That is why our court rules provide that where an expert references the report of a non-testifying expert to explain the basis of his or her own opinion, it is incumbent upon the trial judge, upon request, to instruct the jury regarding its limited use.

 

[Agha, supra, 198 N.J. at 63 (emphasis added).]

 

The circumstances identified by the Supreme Court as giving rise to the requirement that a limiting instruction be given were not present here. It is undisputed that Dr. Green, a board certified radiologist, was suitably qualified to testify regarding the MRI results and that his opinion regarding the MRI results was properly admissible pursuant to N.J.R.E. 702. Because he testified and was subject to cross-examination regarding his opinions, N.J.R.E. 703 was not used as a conduit for the introduction of inadmissible hearsay. Therefore, the portions of the testimony provided by Dr. Diaz and Dr. Prasad in which they noted their reliance upon the conclusions in Dr. Green's MRI report were appropriately "'anchored to the reason for [N.J.R.E. 703's] existence[.]'" Agha, supra, 198 N.J. at 63 (quoting Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999)). Under these circumstances, where their testimony was not employed to bootstrap Dr. Green's opinions into evidence without his testimony, no limiting instruction was required.

B.

Defendant next argues that the trial court erred in permitting Dr. Prasad to testify that plaintiff suffered a permanent injury because her report did not contain such a statement. Again, we disagree.

An "expert's testimony at trial may be confined to the matters of opinion reflected in that report, . . . [h]owever, the logical predicates for and conclusions from statements made in the report are not foreclosed." Congiusti v. Ingersoll-Rand Co., Inc., 306 N.J. Super. 126, 131 (App. Div. 1997) (quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.) (internal quotation marks omitted), certif. denied, 108 N.J. 219 (1987)). The decision to exclude expert testimony on the ground that it was not covered in the written report provided in discovery lies within the discretion of the trial court. Ibid. Generally, however, the testimony should not be excluded where there is "'(1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.'" Id. at 131-32 (quoting Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990)).

In her report, Dr. Prasad did not use the term, "permanent injury" to describe plaintiff's injury. However, her July 2007 report did include the following:

TEST RESULTS

MRI of the cervical and lumbar spine done on 05-25-07. MRI of the cervical showed annulus bulging at the C5-C6 and C6-C7 levels with a superimposed left central disc herniation at the C5-C6 space.

 

. . . .

 

DIAGNOSIS

After reviewing the history and examining the patient, the diagnosis for this patient is as follows:

 

1. Cervical sprain 847.0

 

2. Cervical disc herniation at C5-C6 839.06

 

3. Cervical disc bulges at C5-C6, C6-C7 839.08

 

4. Lumbo-sacral sprain 846.0

 

5. S/P Lumbar cervical surgery in 1993

 

6. Lumbar myofascitis 723.4

 

. . . .

 

PROGNOSIS

The prognosis for this patient is guarded; this patient continues to have residual pain and restriction of movement of the neck and low back, aggravated in inclement weather.

 

In all medical probability the injuries sustained during the 03-12-07 motor vehicle accident aggravated his pre-existing lumbar spine condition and caused cervical disc herniation. To a reasonable degree of medical certainty, this patient, as a result of this accident, has sustained sufficient injuries as to result in limitation in use of his back and neck, restricting activities of daily living.

 

[(Emphasis added).]

 

Clearly, then, Dr. Prasad's report stated her conclusion that plaintiff suffered a cervical disc herniation. We have previously stated that proof of a disc herniation satisfies the verbal threshold within the context of a summary judgment motion. See Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006). Indeed, defendant's expert acknowledged that a disc herniation is a permanent injury. Therefore, there is no merit to the argument that defendant was surprised that Dr. Prasad would describe the disc herniation as a permanent injury. Moreover, Dr. Diaz's report did state that plaintiff suffered a permanent injury. As the record fails to reveal any evidence of an effort to mislead, legitimate surprise or prejudice, the trial court did not err in permitting this testimony.

C.

Defendant made a motion in limine to exclude any testimony regarding the exacerbation of a prior lumbar injury because no Polk analysis had been performed. In Davidson, the Supreme Court clarified what circumstances make a Polk analysis mandatory:

When aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly "permanent" as a result of the subject accident.

 

[Davidson, supra, 189 N.J. at 185 (emphasis added).]

Although the issue of a pre-existing injury may be raised after pleading, the application and purpose of the Polk analysis remain the same. The analysis is germane to the plaintiff's obligation to vault the verbal threshold. As Davidson instructs, the physician's diagnosis must be isolated as to the claimed permanent injury.

Defendant argues that a Polk analysis was required here because plaintiff had surgery in 1991 to address an injury to his lumbar spine, and both Dr. Prasad and Dr. Diaz stated the accident exacerbated the previously asymptomatic lumbar region. However, neither the pleadings nor the evidence identified that exacerbation as the permanent injury here. Plaintiff did not plead that the aggravation of a pre-existing injury satisfied the verbal threshold. He consistently argued and offered proof that the verbal threshold was satisfied by proof of a cervical disc herniation. Both Dr. Prasad and Dr. Diaz identified the cervical disc herniation as the permanent injury caused by the accident. There was no pre-existing injury to the cervical region to be exacerbated.

In Davidson, supra, the defendant sought "to burden [the plaintiff] with an initial obligation to produce comparative-analysis evidence excluding all other injuries from being the cause of the permanent injury on which the verbal threshold action is based." 189 N.J. at 186. The Supreme Court explicitly rejected that argument, stating:

Aside from the circumstance of medically segregating a claimed aggravation of a pre-existing injury from the fresh injury to a body part, a plaintiff need not produce affirmative medical evidence segregating what plaintiff considers to be non-causes of the alleged injury in order to avoid a directed verdict under N.J.S.A. 39:6A-8(a)'s express standards.

 

[Id. at 187.]

Here, the verbal threshold was vaulted by evidence that the plaintiff suffered a cervical disc herniation as a result of the accident. Once that threshold was satisfied, testimony regarding the full scope of injuries suffered by plaintiff was properly admitted and no Polk analysis was required.

II

Defendant also argues that the trial court should have granted his motion for a directed verdict because of the alleged deficiencies in plaintiff's proof of a permanent injury, and that, if a new trial were not required, the court should have ordered remittitur because the sum awarded by the jury was so excessive as to constitute a miscarriage of justice. These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

Our review of the court's denial of a motion for a directed verdict is subject to the same standard applied by the trial court, as set forth in R. 4:37-2(b). Luczak v. Twp. of Evesham, 311 N.J. Super. 103, 108 (App. Div. 1998). Rule 4:37-2(b) provides that "if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor[,]" the motion for a directed verdict should be denied. We are satisfied the testimony presented by plaintiff, his son, and his experts was sufficient to support a judgment in his favor.

Remittitur is "an extraordinary remedy" which should not be employed unless the jury award "is so clearly disproportionate to the injury and its sequels . . . that it may be said to shock the conscience of the court." Pressler and Verniero, Current N.J. Court Rules, comment 3.2 on R. 4:49-1 (2012) (citations omitted). The Supreme Court has recently reviewed the principles applicable to the analysis of requests for remittitur, noting the following "essential" propositions:

First, the jury is the bedrock of our system of justice. . . . The jury's views of the facts and the credibility of the witnesses as expressed in its verdict are entitled to deference from both the trial and appellate courts.

 

Second, remittitur is intended to be used in limited circumstances and is reserved for the unusual case that meets the "shocking" criteria. . . .

 

Third, remittitur serves the specific function of creating an efficient mechanism to address an award of damages that is excessive without requiring the parties to endure the time, expense and uncertainty of a new trial. It is not an opportunity for either the trial or the appellate court to impose its view of the case on the parties, nor is it a chance for those courts to interfere with an award that is merely generous, albeit sustainable. . . .

 

Fourth, the decision to order a remittitur must spring from an overriding sense of injustice, a shock to the court's conscience, a certain and abiding belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable and appropriate.

 

[He v. Miller, 207 N.J. 230, 251-252 (2011) (internal citation omitted).]

 

Although the standard we apply is "substantially similar to that used at the trial level," we "must afford due deference to the trial court's feel of the case, with regard to the assessment of intangibles[.]" Id. at 255 (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008) (internal quotation marks omitted)).

The trial judge reviewed her own trial notes and listened to sound recordings of relevant testimony before ruling. She noted how the accident had placed limitations on plaintiff affecting things "that many of us take for granted":

Being able to go grocery shopping and bringing the bags in ourselves. Being able to clean our kitchen. . . . Being able to get under the sink and fix the pipe. Being able to clean the snow, now having to call our son who's our neighbor, to do - - become basically your extra set of arms or legs.

 

The court noted that the limitations had "affected not only his life but his extended family's life[,]" and concluded,

[A]fter reviewing the evidence, having listened to what the jury listened to, I am not convinced that this is a case where the damages were so excessive as to constitute a miscarriage of justice.

 

Accordingly, the court denied the application for a remittitur. Giving the trial court's experience with the intangibles of the case appropriate deference, we are satisfied that the court did not err in denying the request for remittitur.

Affirmed.

1 Defendant also argued that it was error to permit Dr. Green to testify that plaintiff sustained a permanent injury. This appears to have been an error since the record does not include such a statement by Dr. Green.

2 Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).