WILLIAM R. BONNER v. SHERRI A. SZELC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00764-12T4

WILLIAM R. BONNER and DEBBIE

BONNER,

Plaintiffs-Respondents,

v.

SHERRI A. SZELC,

Defendant-Appellant,

and

HIGH POINT INSURANCE COMPANY,

Defendant.

________________________________________

December 10, 2014

Submitted on February 12, 2014 Decided

Before Judges Waugh, Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4110-09.

Stahl & DeLaurentis, P.C., attorneys for appellant (Sharon K. Galpern, on the brief).

Thomas J. Gosse, attorney for respondents.

The opinion of the court was delivered by

NUGENT, J.A.D.

In this automobile negligence action, defendant Sherri Szelc appeals from Law Division orders that denied her motion for a new trial or remittitur and entered judgment against her in the amount of $212,876.58. She contends she is entitled to a new trial because the trial court committed three errors: it improperly struck the cross-examination of plaintiffs' medical expert on reports the expert had not seen before testifying; disallowed records of statements made by plaintiff William R. Bonner to be given to the jury during deliberations; and misinstructed the jury by charging on aggravation of a pre-existing injury and by omitting to tell the jury it could not consider an injury to William Bonner's thoracic spine when determining whether he had sustained a permanent injury. Defendant also contends that the jury verdict is excessive and that she is at least entitled to a substantial remittitur. Having considered defendant's arguments in light of the record and controlling law, we reject them and affirm the judgment.

Plaintiff William Bonner's personal injury action and his wife Debbie Bonner's per quod action arose on a December evening in 2007 when an automobile that William Bonner was driving through an intersection collided with an automobile that defendant was driving. During pre-trial proceedings, the parties stipulated that defendant was eighty percent liable for the accident and William Bonner was twenty percent liable for the accident. Consequently, the issues to be decided by the jury were whether William Bonner, who was subject to the limitation on lawsuit threshold, N.J.S.A. 39:6A-8(a), had sustained a permanent injury in the accident and, if so, the amount of damages that would fairly compensate him for his injuries and the amount of damages that would fairly compensate Debbie Bonner for her per quod claim.

To prove their damages, plaintiffs testified and presented the testimony of Dr. Laura Ross, an expert in orthopedics and orthopedic surgery, who had treated William Bonner.1 Dr. Ross testified that William Bonner sustained the following injuries in the accident: multi-level cervical disc bulges; upper extremity radiculitis, which she described as irritated nerves in his right arm; herniated discs in his thoracic spine at T1-2 and T2-3; bulging discs in his lumbar spine at L4-5 and L5-S1; and a tear of the medial meniscus in his right knee. The doctor opined that all of the injuries were permanent. Dr. Ross acknowledged that William Bonner "had problems" in his low back at the L4-5 and L5-S1 levels before the accident, explained that the accident "likely worsened it," and testified that he sustained "a permanent aggravation as a result of this automobile accident at the L4-5 and L5-S1 levels." In formulating her opinions, Dr. Ross relied upon, among other evidence, post-accident magnetic resonance imaging (MRI) studies of William Bonner's cervical spine, lumbar spine, and right knee.

William Bonner told the jury that he suffered pain on a daily basis in his neck and back and that his knee would give out occasionally. He also explained how his pain and discomfort, and the impairment from his knee injury, affected the activities he enjoyed, including fishing and playing sports with his children. In addition, he said his injuries impaired his ability to do household chores and physically maintain his home. He also described how his injuries affected his employment climbing high tension towers for PSE&G, and how his injuries and constant pain affected his relationship with his wife. Deborah Bonner testified and corroborated William Bonner's testimony.

Defendant presented two medical experts who disagreed with Dr. Ross. Todd M. Lipschultz, an expert in the field of orthopedics and orthopedic surgery, conducted an independent medical evaluation of William Bonner and reviewed the MRI studies of his cervical spine, lumbar spine, and right knee. He testified that none of the findings he noted on the MRI studies were caused by the accident. Dr. Lipschultz disagreed with Dr. Ross that the cervical MRI showed two herniated thoracic discs. He testified that "when I look at the MRI, no, I do not see any thoracic discs."

Additionally, Dr. Lipschultz had studied an MRI of William Bonner's lumbar spine that pre-dated the automobile accident. According to Dr. Lipschultz, that study revealed a herniated lumbar disc at L4-5 and a bulging disc at L5-S1. He explained that the pre-accident MRI was actually worse than the lumbar MRI that post-dated the automobile accident. According to Dr. Lipschultz, William Bonner's lumbar discs "seem [] to have gotten better, which can happen." He testified that William Bonner had sustained no permanent injury to his neck, back, or right knee. According to the doctor, the accident aggravated pre-existing conditions in Bonner's neck and back, but those injuries were not permanent.

Defendant's other witness, Todd Siegal, an expert in the fields of diagnostic radiology and neuroradiology, also reviewed the MRI studies of William Bonner's cervical spine, lumbar spine, and right knee. He concluded, as had Dr. Lipschultz, that the findings revealed in the MRI studies were degenerative, not caused by the accident. He also concluded that William Bonner had not sustained a permanent injury as a result of the accident.

The jury returned a verdict for plaintiffs, awarding William Bonner $4000 to compensate him for lost wages and $235,000 to compensate him for past and future pain, suffering, disability, impairment, and loss of enjoyment of life due to the injuries he sustained in the automobile accident. The jury awarded Deborah Bonner $10,000 to compensate her for the loss of her husband's services and consortium.

Defendant filed a motion for a new trial or remittitur, which the court denied in a written opinion. The court molded the jury verdict to conform to the parties' liability stipulation, added pre-judgment interest, and filed an order entering judgment against defendant in the amount of $212,876.58. Defendant appealed from both the order denying her motion for new trial or remittitur and from the order entering judgment.

We first address defendant's arguments that the trial court committed three errors that require us to reverse the judgment and remand the case for a new trial. In her first argument, defendant claims that the court improperly struck the cross-examination of Dr. Ross on reports that she had not relied upon when she formulated her opinions.

A trial court's "[e]videntiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). If an evidentiary ruling was erroneous, we will not reverse the judgment unless the error was clearly capable of producing an unjust result. Manata v. Pereira, 436 N.J. Super. 330, 343-44 (App. Div. 2014). Here, we conclude that the trial court did not abuse its discretion when it struck defendant's cross-examination of plaintiffs' medical expert on reports she had not read.

Plaintiffs presented the testimony of Dr. Ross by way of the doctor's "videotaped de bene esse deposition" presumably conducted as provided for in Rule 4:14-9, which addresses audiovisual recording of a deposition for discovery or for use at trial. During the videotaped deposition, defendant cross-examined the doctor on three reports of medical examinations William Bonner had undergone to maintain his commercial driver's license (CDL). The examinations took place eight months, thirteen months, and four years after the automobile accident. Immediately before each examination, William Bonner filled out a questionnaire that was one section of a "Medical Examination Report." In the first CDL medical questionnaire, he checked the "yes" box next to "chronic low back pain." He checked the "no" box on the second report and the "yes" box on the third report. The reports contained conclusions that Bonner had no impairments to his arms and legs and no limitation of motion or tenderness in the spine. On cross-examination, Dr. Ross testified that she had neither seen nor reviewed the CDL medical examination reports before arriving at the conclusion she reached concerning William Bonner's medical condition, nor had she seen the reports before giving her videotaped deposition. Defendant examined Dr. Ross about the content of the reports in an effort to demonstrate that the reports contradicted her opinions.

In a pre-trial motion, the trial court struck the cross-examination concerning the CDL medical reports on the basis that hearsay evidence not relied upon by an expert may not be used to cross-examine that expert about her opinions, whether for substantive or impeachment purposes. The court also struck the cross-examination on the basis that the CDL reports were confusing and misleading.

Defendant argues that the court's ruling was erroneous. She asserts that "the examination records of the CDL examiner regarding examination of the spine and leg would fall within the ambit of [N.J.R.E.] 703," which provides that the "facts or data . . . upon which an expert bases an opinion . . . may be those perceived by or made known to the expert at or before the hearing." That rule further provides that "[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." N.J.R.E. 703.

N.J.R.E. 703 refers explicitly to the "facts or data in the particular case upon which an expert bases an opinion[.]" Here, Dr. Ross testified that she did not rely upon the CDL reports when she formulated her opinion. Thus, it is difficult to understand how the reports "fall within the ambit of [N.J.R.E.] 703" as defendant contends.

Defendant cites case law holding that expert witnesses are subject to searching cross-examination as to the basis of their opinions. See State v. Martini, 131 N.J. 176, 259 (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995). At the same time, defendant overlooks case law on the specific issue she raises here. See e.g., State v. Pennington, 119 N.J. 547 (1990) ("when an expert has not relied on hearsay evidence . . . it may not be employed on cross-examination"), overruled on other grounds by State v. Brunson, 132 N.J. 377 (1993); Villanova v. Zimmer, 431 N.J. Super. 301, 320 (App. Div. 2013) ("it is generally improper to cross-examine an expert about inadmissible hearsay documents upon which the expert has not relied in forming his opinion"); State v. Spencer, 319 N.J. Super. 284, 299 (App. Div. 1999) ("hearsay evidence not relied upon by an expert may not be employed on cross-examination"); Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 130 (App. Div. 1998) (same). The trial court can hardly have abused its discretion by rendering a ruling consistent with long-established case law.

Even if the judge committed error by striking defendant's cross-examination of plaintiff's medical expert about the CDL medical reports, the error was harmless. Defendant cross-examined William Bonner extensively on the CDL medical reports, including why he checked the "yes" and "no" boxes adjacent to "chronic low back pain." Consequently, the jury was well aware of the reports, William Bonner's "statements" in the reports, and his explanation as to what he believed he was communicating when he filled them out. In view of the information made known to the jury through the cross-examination of William Bonner, the court's striking of the cross-examination of Dr. Ross on the CDL reports can hardly be deemed to have caused an unjust result.

Defendant's two remaining arguments attributing error to the court's rulings are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The court did not abuse its discretion when it refused to submit three pages of the CDL medical reports to the jury. The court had permitted defendant to cross-examine William Bonner on the statements in the reports attributable to him, but refused to give those three pages to the jury because they also contained statements not attributable to William Bonner and because they were only part of a larger record that included hearsay evidence. We discern no basis for concluding that the court abused its discretion in so ruling.

Defendant also contends the court erred by instructing the jury on aggravation of a pre-existing injury. Defendant acknowledges that there was evidence of an aggravation to William Bonner's low back or lumbar spine, but asserts there was no evidence of a pre-existing injury to his neck or cervical spine. That is not the case.

Defendant's medical expert, Dr. Lipschultz, testified that William Bonner suffered a cervical sprain and strain and a lumbar sprain and strain in the accident, and that there was an aggravation of underlying pre-existing disc disease. Although Dr. Lipschultz testified that those injuries were not permanent, the jury was not required to accept or reject his testimony in its entirety. The jury could have concluded from Dr. Lipschultz's testimony that William Bonner sustained in the accident an aggravation of a pre-existing degenerative condition, and from Dr. Ross' testimony that the injuries and impairment to this cervical spine were permanent.

Defendant also contends there was "no testimony that [the injuries to William Bonner's thoracic spine are] . . . permanent[.]" When asked on direct examination whether "these neck injuries and the thoracic injuries are permanent," Dr. Ross replied, "yes, . . . they are permanent in nature." Consequently, defendant's argument that the court erred by not limiting the jury's consideration of permanency to William Bonner's cervical and lumbar injuries is without merit.

Lastly, we find no merit in defendant's argument that the verdict is excessive. Defendant does not explain her argument in the context of the evidence, but rather makes conclusory statements that the award is excessive and compares the jury's verdict to an arbitration award. Those arguments are unpersuasive.

When the jury deliberated, William Bonner's life expectancy was 30.3 years. According to his testimony and that of his expert, his conditions were permanent, he experienced chronic pain, and his ability to enjoy life had been significantly impaired. Having considered the verdict in the context of those facts, we disagree with defendant's conclusory assertion that the verdict shocks one's conscious.

Affirmed.

1 Dr. Ross is referred to in the transcript as Dr. Laura Ross and Dr. Laura Ross Adams. The parties refer to her in their briefs as Dr. Ross.