ROBERT L RAY v. PATRICIA F DANIELSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5621-14T1

ROBERT L. RAY,

Plaintiff-Appellant,

v.

PATRICIA F. DANIELSON,

Defendant-Respondent.

__________________________________

November 1, 2016

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-410-12.

Joseph Chaiken & Associates, and Jerry Lyons (Joseph Chaiken & Associates) of the Pennsylvania Bar, admitted pro hac vice, attorneys for appellant (Lee S. Bender, of counsel; Mr. Lyons, on the brief).

John J. Gentile, attorney for respondent.

PER CURIAM

In this verbal threshold case, plaintiff appeals from a July 20, 2015 order dismissing plaintiff's complaint with prejudice. We reverse and remand for trial.

Plaintiff alleges he sustained injuries to his cervical and lumbar spine as a result of a motor vehicle accident. Plaintiff filed this lawsuit seeking damages for those injuries. Defendant maintained that plaintiff's injuries were degenerative and existed before the accident.

Dr. Alan Wasserman, a radiologist, conducted MRI tests of plaintiff's neck and back. The MRI of the neck reflected disc herniations at C3/C4, C4/C5, C5/C6, and C6/C7. The MRI of the low back showed a disc bulge at L3/L4, a disc herniation at L4/L5, thecal sac impingement and spinal canal stenosis at L4/L5, and a disc herniation at L5/S1. The MRI reports did not address whether these injuries were caused by the accident.

Dr. Paul Kosmorsky, an electromyography (EMG) specialist, conducted an EMG of plaintiff's lower and upper extremities. Based on those tests, the doctor diagnosed plaintiff with left S1 radiculopathy and left C6 radiculopathy. Like the MRI reports, the EMG report did not address whether plaintiff's condition was caused by the accident. Dr. Kosmorsky testified at a de bene esse deposition about the content of the EMG report.

Plaintiff sought treatment with Dr. Mary Ann Ferguson, a chiropractor. Dr. Ferguson testified during her de bene esse deposition that plaintiff's neck and back injuries were caused by the accident. She explained that her diagnoses, treatment plan, and opinions were based on her examination of plaintiff, her independent findings, plaintiff's history, and the MRI and EMG test results.

Defendant filed a motion in limine to bar the testimony of Dr. Kosmorsky. Plaintiff intended to also produce Dr. Lisa Marie Sheppard, a radiologist, to testify at trial as to the content of the MRI reports. At the motion in limine hearing, defendant argued primarily that the court should bar testimony from these two doctors because the MRI and EMG reports failed to address causation.

The judge granted defendant's motion concluding that plaintiff failed to comply with Rule 4:17-4(e). After the judge barred the testimony of Dr. Kosmorsky and Dr. Sheppard, plaintiff's sole expert witness was his chiropractor. The judge dismissed plaintiff's complaint with prejudice concluding the chiropractor was unable to independently establish plaintiff sustained a permanent injury caused by the accident.

On appeal, plaintiff argues he proffered sufficient evidence demonstrating he sustained a permanent injury as a result of the accident. He contends the MRI and EMG reports, and the combined testimony from the radiologist, EMG specialist, and the chiropractor, showed that he overcame the verbal threshold. Plaintiff maintains further that his chiropractor did not simply adopt the contents of the MRI and EMG reports, something plaintiff concedes would be inappropriate under our case law.

As noted, the judge dismissed the complaint based on his evidentiary rulings. An appellate court will review an evidentiary ruling for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). We conclude that the judge's ruling amounted to a mistaken exercise of discretion.

In a personal injury verbal threshold case, plaintiff must prove duty, breach, proximate causation, and damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citation omitted). As to causation, a plaintiff must produce an expert opinion whose findings are based on "objective clinical evidence." DiProspero v. Penn, 183 N.J. 477, 489 (2005) (quoting N.J.S.A. 39:6A-8(a)). In a verbal threshold case, plaintiff must show that he sustained a permanent injury. Under the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1 to -35, "[a]n 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." N.J.S.A. 39:6A-8(a). Disc herniations have been found to meet the verbal threshold. Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006).

Therefore, plaintiff was obligated to produce testimony from a medical expert to prove "within a reasonable degree of medical probability" he sustained permanent injuries that were caused by the accident. Espinal v. Arias, 391 N.J. Super. 49, 58 (App. Div.) (citation omitted), certif. denied, 192 N.J.482 (2007). Here, plaintiff produced three witnesses who were prepared to testify at trial. Plaintiff concedes that "an expert 'must be suitably qualified and possessed of sufficient specialized knowledge to be able to express [an expert opinion] and to explain the basis of that opinion.'" Agha v. Feiner, 198 N.J. 50, 62 (2009) (alteration in original) (quoting State v. Moore, 122 N.J. 420, 458-59 (1991)). Plaintiff argues the radiologist and EMG specialist are qualified to opine about the results of the MRI and EMG objective testing.

Relying on Rule 4:17-4(e), the judge barred Dr. Kosmorsky and Dr. Sheppard from testifying at trial because the EMG and MRI reports omitted reference to whether plaintiff's injuries were caused by the accident. Plaintiff maintains that the reports simply reflect diagnoses. Rule 4:17-4(e), which governs expert reports, states in relevant part

The [expert] report shall contain a complete statement of that person's opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; and whether compensation has been or is to be paid for the report and testimony and, if so, the terms of the compensation.

It is well-settled that an expert testimony "'may be confined to the matters of opinion reflected in that report[.]'" 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.), certif. denied, 108 N.J. 219 (1987)). A trial judge may "preclude expert testimony on a subject not covered in the written reports furnished by an adversary[.]" Ibid. Here, the opinions from these doctors should have been limited to the contents of the MRI and EMG reports. In other words, they could testify to what the objective testing showed, but not to whether the injuries were caused by the accident.

This is not a situation where plaintiff attempted to prove permanency and causation solely through his chiropractor's interpretation of the MRI films or EMG studies. Instead, to establish he overcame the verbal threshold, plaintiff was prepared to produce expert opinion testimony at trial from a radiologist, an EMG specialist, and a chiropractor. Whether plaintiff would have succeeded at that attempt is for the jury to decide.

We are well aware of the case law addressing whether a chiropractor may proffer an opinion based on findings contained in an MRI report. In Brun v. Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006), the court found that MRI interpretations were complex and therefore did not fall under the business records exception to the hearsay rule, N.J.R.E. 803(c)(6). The court stressed that counsel must be able to cross-examine the author of the report. Id. at 422. The court held that "interpretation[s] of an MRI may be made only by a physician qualified to read such films, and that the MRI report could not be bootstrapped into evidence through [a chiropractor's] testimony." Id. at 421. Here, the radiologist was certainly qualified to opine about what the MRI films showed.

In Agha, the plaintiff produced an anesthesiologist and a chiropractor to support his contention that he had a permanent back injury. Agha, supra, 198 N.J. at 53. The defendant objected to both experts because the chiropractor was unable to read MRI films and the anesthesiologist did not review the films himself. Id. at 56-57. The Court explained that "[o]nly a physician who was qualified by education or training to interpret the films and, in fact, did so, could have brought the [MRI results] to the jury as a matter of substance." Id. at 67. Once again, the radiologist possessed the requisite training and experience to read the films.

In James, the Appellate Division reiterated the holdings in Brun and Agha and held that an attorney could not question "a testifying expert, where the manifest purpose of those questions is to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters." James v. Ruiz, 440 N.J. Super. 45, 51 (App. Div. 2015). Here, Dr. Ferguson did not attempt to rely on hearsay opinions. The radiologist and EMG specialist were prepared to testify about what the objective tests showed.

In her de bene esse deposition, Dr. Ferguson rendered an opinion that plaintiff's injuries were permanent and caused by the accident. She based those opinions on her independent examination findings, the plaintiff's history, and the MRI and EMG tests. She did not attempt to read the MRI films or summarily adopt the contents of the MRI or EMG studies.

Brun states that a chiropractor is not qualified to interpret complex reports, such as MRI studies, and therefore the qualified physician must interpret them. Brun, supra, 390 N.J. Super. at 421. That is exactly what plaintiff attempted to do by producing additional trial testimony from the radiologist, and the EMG specialist, not so much for them to testify about causation, but rather, for the radiologist and EMG doctor to explain the objective testing showed disc herniations, bulges, impingement on the spinal column, and radiculopathy. Thereafter, plaintiff was prepared to establish he sustained a permanent injury caused by the accident by relying on the opinion testimony from the chiropractor.

Reversed and remanded. We do not retain jurisdiction.