ELSA MUNIZ v. KENNETH P. O'CONNOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0939-06T20939-06T2

ELSA MUNIZ,

Plaintiff-Appellant,

v.

KENNETH P. O'CONNOR,

Defendant-Respondent.

______________________________

 

Argued October 1, 2007 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-1769-04.

Howard H. Sims argued the cause for appellant (Spevack & Cannan, attorneys;

Mr. Sims, on the brief).

Jodi Anne Hudson argued the cause for respondent (Connell Foley, attorneys; Ms. Hudson, of counsel and on the brief).

PER CURIAM

Plaintiff Elsa Muniz appeals from a September 8, 2006 trial court order dismissing her personal injury complaint against defendant Kenneth P. O'Connor, based on a jury verdict of no cause for action. She also appeals from an order of the same date denying her motion for a new trial. We affirm.

I

Plaintiff contended she was injured in an automobile accident on October 8, 2002. She alleged that the 2002 accident exacerbated the symptoms of a pre-existing herniated disc in her neck and caused additional problems in her neck and shoulder. She also asserted that the 2002 accident caused her to develop temporomandibular joint problems (TMJ) and vision problems.

Defendant conceded liability and the trial was held on damages only. The jury returned a verdict that plaintiff did not prove that she sustained a permanent injury in the accident, thus defeating her right to recover damages for pain and suffering. See N.J.S.A. 39:6A-8a. On this appeal, plaintiff contends that the jury's verdict was against the weight of the evidence, and that the trial court erred in refusing to submit to the jury the issue of her claim for lost wages.

These are the most pertinent facts presented at trial. Plaintiff testified that in November 2000 she injured her back and neck in an auto accident. By October 2002, she had recovered to the point that she only had occasional neck and low back pain. On October 28, 2002, her car was hit from the rear, with a strong impact and was also pushed into the car in front of her. She thereafter received medical treatment for back pain for a year, including injections in her back and neck. She also began treatment for TMJ within three weeks after the accident and had surgery to treat that condition. In addition, she was treated for double vision and other vision problems.

Plaintiff testified that, on her doctor's recommendation, she was not able to return to work after the 2002 accident and eventually lost her job due to absenteeism. She testified that, due to her vision problems, she was not able to function as a bank teller. Her vision did not recover sufficiently to allow her to work again until September 2004, and then it took her another year to actually find another job as a bank teller. According to plaintiff, at the time of the accident she was employed as a head teller at a bank earning $11.30 per hour. She did not present evidence as to her net earnings.

On cross-examination, plaintiff admitted that after the 2000 accident she reported symptoms similar to those from which she claimed to be suffering after the 2002 accident. She also admitted that on March 15, 2004, she filled out a questionnaire at her doctor's office in which she reported that various symptoms she complained about earlier, including TMJ pain, eye pain, dizziness, and headaches, were "gone."

Dr. Weiss, an orthopedic disability specialist, testified that plaintiff had significant pre-existing osteoarthritis in her neck. He testified, based on a review of plaintiff's medical records and two examinations of plaintiff, that the 2002 accident caused plaintiff to have "chronic post traumatic cervical strain and sprain" and that the accident aggravated her pre-existing neck and shoulder problems. He testified that these conditions were permanent in the sense that further treatment would not improve them. He did not testify specifically that her neck and shoulder would not heal to function normally. He admitted that he had not reviewed records from plaintiff's primary care doctor, and, therefore, did not know that she was receiving pain medication for neck complaints a month prior to the 2002 accident.

Dr. Klemons, a dentist, began treating plaintiff for TMJ problems in December 2002. He testified in considerable detail that plaintiff's TMJ problems were due to injuries caused by the 2002 accident. He testified that he gave plaintiff numerous injections to relieve pain, and performed surgery when the injections were not entirely effective. The surgery was successful and he was "able to discharge her [from treatment] on March 15, 2004." He agreed on cross-examination that plaintiff indicated at that time that almost all of her symptoms were "gone." He testified that she would probably experience "arthritic breakdown" of the cartilage and bone over time, the pain could come back, and she would remain more vulnerable to injury than someone who did not have her condition. However, as of the trial on August 3, 2006, he had not treated plaintiff since March 2004.

Dr. Einhorn, an optometrist, testified that he evaluated and treated plaintiff after Dr. Klemons referred her to him. He testified that her vision problems, including double vision, were caused by the 2002 accident. He "was not comfortable letting her drive" because of her double vision. He also recommended that it "was probably not appropriate" for her to work as a head teller as of May 29, 2003, due to her vision problems. He never finished her therapy, but thought her long term prognosis was "good." He did not know that plaintiff had worn glasses since she was very young and had also had eye therapy when she was a child.

Dr. Cohen, a chiropractor, treated plaintiff after the 2000 accident, for headaches, neck, mid-back and low back pain, and numbness and tingling in her arms. He also treated her for a year following the second accident. He agreed that an MRI done after the first accident revealed a herniated disc in her neck. He testified that he had not rendered any treatment to plaintiff since November 2003.

The defense presented testimony from Dr. Bercik, an orthopedic surgeon. He examined plaintiff's neck, back and shoulder areas in January 2005. At that time, she told him that she had no problems with her neck or shoulders prior to the second accident. The examination of the neck and back was normal. He found a slight tenderness in the shoulder. He also reviewed records from plaintiff's treating doctor which indicated that in August 2002 she was treated for arthritis of the cervical spine. He also reviewed the hospital records of her examination immediately after the accident, which reported contusions and muscle strains but no head trauma. He testified that an MRI taken just after the accident showed degenerative changes. He concluded that plaintiff suffered a cervical sprain and a lumbar sprain in the 2002 accident, that there was no permanent injury, and that her prognosis was good.

Dr. Bercik agreed that an injury to the facet joints of the spine would be different than a herniated disc and could be caused by an auto accident. However, he opined that plaintiff did not have "a facet syndrome," although she had "arthritic changes in the facets that were shown by X-rays . . . before the accident." However, he believed that the pain she experienced from the accident was from sprained ligaments otherwise known as a "cervical sprain." He testified that he did not find that plaintiff had a permanent impairment of her shoulder even if she had pain. He also testified that some of plaintiff's medical records indicated that she had a cervical sprain two years before the 2002 accident.

Dr. Geron, an oral and maxillofacial surgeon, testified for the defense concerning the issue of TMJ. Because plaintiff did not complain of jaw pain until a week after the 2002 accident, he opined that "would not be consistent forensically with a bone injury" incurred in the accident. He testified that a jaw injury would manifest itself immediately. He also testified that plaintiff's claim that two weeks after the accident her jaw locked open, and she treated it herself, was not consistent with his medical experience; that condition requires medical intervention. He also explained that the type of treatment plaintiff received for her jaw problems would not be appropriate to treat the symptoms of which she complained. He opined that plaintiff's reported symptoms were consistent with migraine headaches, which are not caused by trauma. He also explained in detail why what he observed during the examination was inconsistent with the TMJ problems plaintiff claimed to have, including her ability to open her mouth very wide with no reported pain, and the absence of limitations in her diet. He also noted that plaintiff could open her mouth to forty millimeters when he was not making an issue of how wide she could open her mouth, but when he specifically asked her to open as wide as possible, she purported to only be able to open her mouth twenty-five millimeters. He concluded that the TMJ examination was "normal." He also concluded that plaintiff did not suffer any permanent injury to her jaw in the accident.

Finally, the defense presented testimony from Dr. Lichtig, an ophthalmologist, who had examined plaintiff prior to trial. He disagreed with Dr. Einhorn's diagnosis and treatment for "convergence insufficiency." In fact, he concluded based on her history, that plaintiff had had crossed eyes since childhood; this is "exactly the opposite of the findings described by Dr. Einhorn." He concluded that the lenses Dr. Einhorn prescribed would have made plaintiff's actual condition worse. He also found no evidence of double vision, and he testified that he was able to prescribe plaintiff a new set of lenses that corrected her vision to normal.

At the close of the evidence, Judge LeBlon ruled that plaintiff's claim for wage loss would not be submitted to the jury because plaintiff had not submitted proof "such that a jury could decide that issue without simply speculating on the start and end date of that, and if any wage loss were [found] to predict the amount of the money that might have been lost without speculating."

II

Having reviewed the entire record, we conclude that Judge LeBlon's ruling concerning plaintiff's wage loss claim was eminently correct. Plaintiff did not present any evidence as to her net earnings, as required by Caldwell v. Haynes, 136 N.J. 432, 437-38 (1994). Further, she presented no medical testimony as to the length of time during which she was allegedly unable to work. Submitting the wage loss issue to the jury would have required speculation. Judge LeBlon properly declined to charge the jury on that issue.

We likewise find no merit in plaintiff's argument that the verdict was against the weight of the evidence. The jury was not required to accept the testimony of plaintiff's expert witnesses, and defendant presented ample evidence to rebut that testimony. It was the jury's prerogative to decide which experts were more credible. Thus, Judge LeBlon properly denied plaintiff's motion for a new trial. See Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

Affirmed.

 

During Dr. Bercik's cross-examination, the judge sustained an objection to questions concerning a report done by Dr. Wasserstrom, because Dr. Bercik had not relied on that report in formulating his opinion and defendant was not intending to call Dr. Wasserstrom as a witness. The judge concluded that the report was hearsay and not admissible under N.J.R.E. 703.

(continued)

(continued)

10

A-0939-06T2

October 12, 2007