PAUL A. CARUSO v. BETHANY J. GROHS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4548-04T54548-04T5

PAUL A. CARUSO,

Plaintiff-Appellant,

v.

BETHANY J. GROHS,

Defendant-Respondent.

__________________________________

 

Submitted March 13, 2006 - Decided March 30, 2006

Before Judges Lintner and Holston, Jr.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

L-3026-01.

Shebell & Shebell, attorneys for appellant (Danielle S. Chandonnet, on the brief).

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys for respondent (Pamela T. Bain, on the brief).

PER CURIAM

On December 20, 2000, plaintiff, Paul Caruso, was stopped at a red light on Central Avenue in Westfield when his vehicle was struck in the rear by a vehicle operated by defendant, Bethany Grohs. According to Grohs, a phantom hit-and-run vehicle struck her vehicle from behind, causing it to collide with plaintiff's car. Plaintiff filed a complaint alleging that he sustained injuries to his left shoulder and neck as a result of the December 20 accident. On March 28, 2003, plaintiff was again involved in a collision in which his vehicle was struck from behind by a vehicle operated by Nancy Ullrich. Plaintiff sued Ullrich, alleging aggravation of the injuries sustained in the December 20 accident.

The two complaints were consolidated and the matters were tried before a jury over a three-day period beginning February 2 and ending on February 7, 2005. Ullrich admitted liability for the happening of the March 28 accident. The jury rejected Grohs' claim that she had been struck by the operator of an unidentified hit-and-run motor vehicle and found her responsible for the December 20 accident. It also found, however, that plaintiff's injuries were not proximately caused by either of the two accidents.

Plaintiff moved for a new trial against Grohs and Ullrich. At oral argument on the motion, plaintiff conceded that there were questions of fact presented by the defense experts' testimony as to whether his injuries were permanent, whether they were aggravated by the second accident, and whether the left shoulder injury was caused by the December 20 accident. Plaintiff argued, however, that the verdict of no damages was clearly and convincingly a miscarriage of justice because the defendants' doctors conceded that plaintiff had suffered temporary soft tissue strain and sprain of the neck, albeit temporary in nature.

Although the judge agreed that Grohs' medical expert, Dr. Douglas Chalmers, rendered an opinion that plaintiff suffered a temporary soft tissue strain to the neck, he concluded that the jury verdict did not constitute a miscarriage of justice because it was free to accept or reject all or part of any expert's opinion. Our complete review of the entire trial transcript leads us to conclude that the verdict of no damages was neither against the weight of the evidence nor did it represent a miscarriage of justice. Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969); R. 2:10-1.

We recite only those facts relevant to the disposition of this appeal. At the time of the trial, plaintiff, a retired kindergarten teacher, was sixty-one years old. He had a previous history of injury to his lower back as a result of an automobile accident in 1971, for which he underwent a lumbar laminectomy. In 1996, he fell at work, re-injuring his lower back. Plaintiff retired following the 1996 accident because he could no longer bend at the waist to assist his students. He was placed on Social Security disability in 1999.

Although plaintiff characterized the force resulting from the December 20 rear-end collision as "a severe jolt [that] discombobulated [him]," it was conceded by counsel that the damage to his vehicle was "very little," consisting of only "some rubber damage to the back of his bumper," which plaintiff did not repair. Grohs characterized the impact as "a very slight tap" and testified that there was no visible damage to either vehicle.

Following the accident, plaintiff was taken by ambulance to Overlook Hospital. According to plaintiff, he had pain in his neck and left shoulder. At the hospital, he was x-rayed, given a cervical collar, pain medication, and told to see his doctor. After going to Silverton Medical Center where he saw Dr. Gross, he then came under the care of Seaview Orthopedic and Medical Associates (Seaview). Plaintiff's treating orthopedic physician at Seaview, Dr. Steven Berkowitz, testified that his initial impression was that plaintiff had an impingement syndrome of his left shoulder, a cervical sprain-strain, and post-laminectomy syndrome of the lower back. An MRI of the shoulder revealed a partial tear of the supraspinatus tendon, one of the four rotator cuff tendons. Dr. Berkowitz opined that the rotator cuff tear was not a result of degenerative changes, but was traumatically induced by the December 20 accident. Plaintiff's neck was treated by a physiatrist, Dr. Freeman, an associate at Seaview, who administered epidural injections and physical therapy. An MRI of plaintiff's neck on April 2, 2003, revealed degenerative disc changes in the cervical spine, posterior ridging at C3-4, and some arthritic changes in the joints. An MRI of plaintiff's shoulder taken on the same date showed the partial tear of the supraspinatus tendon as well as a tear of the infraspinatus tendon. Dr. Berkowitz concluded that the second accident caused plaintiff to "suffer[] additional harm" because "[h]e now had two rotator cuff tears" and "aggravat[ed] his cervical spine problem." Dr. Berkowitz testified that the rotator cuff tears were permanent. Other than his initial impression of cervical strain and sprain and the MRI showing of degenerative disc disease, Dr. Berkowitz's testimony failed to provide any further diagnosis respecting plaintiff's alleged cervical injury.

Dr. Chalmers, board certified in orthopedic surgery, testified essentially that the impingement syndrome to plaintiff's rotator cuff was neither caused nor aggravated by either accident, but preexisted both. He did not have the Overlook Hospital records but had correspondence from Dr. Freeman. He testified that Dr. Freeman's impression was that plaintiff sustained "cervical and thoracic sprains and strains with possible cervical radiculopathy relating to the neck and upper chest areas." MRI studies of plaintiff's neck ordered by plaintiff's family physician in May 2001 established "long standing degenerative changes" in plaintiff's neck at levels C3-4, C4-5 and minimally at C5-6. When asked whether he had an opinion to a reasonable degree of medical probability as to the injuries sustained by plaintiff, Dr. Chalmers stated the following:

I felt that with regard to this incident that he sustained possible soft tissue strain, and a strain is simply a pulling without tearing of tissues, of a temporary nature involving the cervical region and left shoulder regions. And based on what I described as the absolute paucity of damage sustained to the involved motor vehicle, it was unlikely in my opinion that he sustained any significant injuries as a result of that accident.

. . . .

There was no evidence of any structural damage on the MRI that we looked at together, and that any injuries that he may have sustained to the neck were superimposed as well on preexistent multi-level degenerative changes. . . . Long-standing arthritic changes unrelated to this incident. (emphasis added).

Dr. Chalmers also opined that the MRI of the cervical region taken after the March 2003 accident showed no change over the earlier MRI.

Dr. Steven Robbins, also board certified in orthopedic surgery, testified on behalf of Ullrich. He concluded that plaintiff did not sustain any additional injury as a result of the second accident. Respecting any alleged injury to plaintiff's neck as a result of the second accident, Dr. Robbins stated, "it's my opinion and it remains my opinion that [plaintiff] may have sustained temporary soft tissue injuries, but they're superimposed on ongoing active preexistent pathology . . . ." (emphasis added).

On appeal, plaintiff places heavy reliance on Chamberlain v. Sturma, 94 N.J. Super. 1 (App. Div. 1966), aff'd o.b., 48 N.J. 556 (1967), in which we reversed a jury verdict of no cause for action on damages. Although the specific testimony is not reviewed, the panel in Chamberlain concluded that the jury could not have reasonably found no damages because "defendants' only medical witness acknowledged that plaintiff sustained a back injury which was causally related to the incident." Id. at 4. In his appellate brief, plaintiff contends that the jury verdict was against the weight of the evidence because Dr. Chalmers "claimed that at most, [p]laintiff sustained soft tissue injuries superimposed on his preexisting degenerative changes." We disagree.

Contrary to plaintiff's assertion, neither defense medical witness testified that plaintiff more likely than not sustained soft tissue injury. Indeed, both Dr. Chalmers and Dr. Robbins were equivocal respecting Dr. Berkowitz's testimony and Dr. Freeman's report concerning cervical strain and sprain, saying only that plaintiff "may" have sustained a temporary soft tissue injury. Moreover, Dr. Chalmers used the word "possible" when giving his opinion as to whether plaintiff sustained soft tissue injury to his neck as a result of the December 20 accident.

In Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985), we recognized that a "jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary." Here, there was significant evidence calling into question the credibility of plaintiff's expert witness's testimony as well as that given by plaintiff. The jury could reasonably find that the impact was so insignificant that no additional injury beyond plaintiff's preexisting condition was sustained. Moreover, Dr. Chalmers never conceded that plaintiff sustained soft tissue injury but merely described it as a possibility that such an injury may have been sustained. Dr. Chalmers' use of the qualifying words "may" and "possible" permitted the jury to reasonably conclude that such injuries may not have been sustained to a reasonable decree of medical certainty. Accordingly, we are satisfied on this record that the verdict was not against the weight of the evidence and did not represent a miscarriage of justice. Dolson, supra, 55 N.J. at 6-8; R. 2:10-1.

Affirmed.

 

The treatment received by plaintiff at Overlook Hospital is found in plaintiff's testimony. The emergency room record was neither placed into evidence nor included in the appendix on appeal.

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9

A-4548-04T5

March 30, 2006