ARTHUR I. KASS v. MARGARET O'MAHONEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5949-05T35949-05T3

ARTHUR I. KASS,

Plaintiff-Appellant,

v.

MARGARET V. O'MAHONEY,

Defendant-Respondent.

_________________________________

 

Argued October 22, 2007 - Decided October 29, 2007

Before Judges Lintner and Graves.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth County, L-2072-04.

Michael Wiseberg argued the cause for appellant.

Joseph J. Garvey argued the cause for respondent (Garvey, Ballou & Van Dyke, attorneys; Robert A. Ballou, Jr., on the brief).

PER CURIAM

On May 8, 2002, while operating his motorcycle, plaintiff, Arthur Kass, was struck by a vehicle operated by defendant, Margaret O'Mahoney. Plaintiff filed a personal injury action. Following a trial on damages only, a jury returned a verdict of $10,000. Plaintiff appeals from the trial judge's order denying his motion for new trial or in the alternative for additur. We affirm.

We restate the relevant facts. Defendant's vehicle struck plaintiff on his right side while plaintiff was negotiating a right turn, knocking plaintiff to ground. At the scene, plaintiff was placed on a stretcher and transported via ambulance to Jersey Shore Medical Center where he complained of pain in his right knee, hip, and low back. The emergency room record listed plaintiff as "not employed." At trial, however, plaintiff testified that he was employed by Walt's Carpets as a carpet installer for which he was paid cash and did not report his income for tax purposes. According to plaintiff, he initially missed three weeks from work due to pain in his knee and low back.

Three weeks after the accident, plaintiff began treatment with Dr. John Hochberg, who saw plaintiff approximately fifty times. Plaintiff complained of continuing pain in his right knee, hip, and low back. Hochberg's testimony was presented via video tape. He initially observed "traumatized knee clicking strongly suggest[ing] some sort of internal derangement, that some of the tissues inside might not be moving perfectly, there might be some swelling, or tearing." He found that plaintiff "was tender in the patella femoral joint of the right knee . . . [and] had a lateral tilt to the patella." Hochberg diagnosed patella femoral syndrome and contusions to the knee, but was not sure if there was any tearing in the knee. He ordered physical therapy, as well as a strapping of the knee to keep the knee straight and reduce inflammation.

On October 8, 2002, plaintiff complained of "buckling and locking" of the knee, which Hochberg believed suggested a torn cartilage and weakened muscles or ligaments. Hochberg could pop plaintiff's kneecap out of its joint, which is not normal. An MRI was ordered and Hochberg testified that both he and the radiologist interpreted it as showing effusion, or fluid in the joint, which Hochberg maintained was indicative of trauma. According to Hochberg, both he and the radiologist also found damage to the undersurface of the kneecap, which Hochberg described as chondromalacia. The MRI also showed bruising to the kneecap. Hochberg also noticed synovitis, which he described as inflammation of the lining tissue of the knee. He could not determine when the synovitis occurred.

On March 4, 2003, Hochberg discussed therapy with plaintiff but "didn't think it would be of any use." Hochberg also told plaintiff that "surgery might not work but that it was his best chance and that with surgery [plaintiff] could actually get worse, get infected and bleed." Nonetheless, Hochberg believed that surgery was necessary and that plaintiff's condition "would have gotten worse without surgery."

On August 29, 2003, Hochberg performed arthroscopic surgery on plaintiff's right knee. He found damaged cartilage, which he believed was consistent with chondromalacia, and inflammation of the synovial tissue through the patella. Hochberg removed damaged tissue. Plaintiff, however, did not believe that the surgery improved the condition of his knee.

On reexamination of his knee in September 2003, Hochberg found that plaintiff "was doing well but in view of the severity [of his knee condition] that he would have arthritis in 10 to 15 years." Hochberg believed plaintiff could return to work in two to three weeks, however, plaintiff did not return to work for three months after the surgery. On May 2, 2004, Hochberg found crepitus, which is a "crackling" in the knee.

Hochberg characterized plaintiff's prognosis as "poor," noting that, even after the surgery, the knee is "never really a hundred percent." According to Hochberg, plaintiff has residual synovitis that will continue to "cause some pain and stiffness in the knee." He also explained that the damage to the articulating surface of the knee would become arthritic. He further referenced two scars resulting from the surgery. In Hochberg's opinion, "the knee injury was directly related to the accident between the motorcycle and the car." Hochberg based his opinion on plaintiff having "no history of prior trauma to the knee," the MRI findings being "consistent with acute trauma," and his findings during surgery being "consistent with a traumatic injury." He did not believe that plaintiff's knee or back injuries could have been caused by his job as a carpet installer, because carpet installers generally suffer injuries to a different part of the knee that develop over a longer time period than the five months plaintiff had worked as a carpet installer.

Plaintiff also consulted Hochberg for treatment of his low back. Hochberg referred plaintiff to Dr. Del Valle and Dr. Chadhury for pain management. Chadury gave plaintiff three epidural injections to his low back, each of which relieved plaintiff's low back pain for about a month, only to return after the effectiveness of the shot wore off. Hochberg was not satisfied with the progress and prescribed pain medication and ordered an MRI. On May 2, 2004, plaintiff told Hochberg that the pain in his back was "eight out of ten." Hochberg believed plaintiff was a candidate for nucleoplasty, a new procedure that he expected would alleviate plaintiff's back pain. Plaintiff also received treatment on his low back from a chiropractor, Dr. Herzog, who treated plaintiff two to three times per week, adjusting plaintiff's low back. However, plaintiff felt that the chiropractic treatment did not provide him with any relief for the pain in his low back.

MRI films of plaintiff's back, ordered by Hochberg, showed swelling or asymmetry, which both Hochberg and the radiologist interpreted as disc bulging at L3-4 and L4-5. Hochberg opined that plaintiff's "back injury is related to the accident . . . [because he has] to relate it to something, it just didn't suddenly appear at 25 years-old or something like that." According to Hochberg, a bulging disc is not a normal finding in a twenty-five-year-old, and therefore it is a sign of injury.

Dr. Francis DeLuca, an orthopedic surgeon, examined plaintiff at defendant's request on June 1, 2005. DeLuca reviewed plaintiff's hospital records, the records and report of Hochberg dated October 8, 2002, MRI reports for plaintiff's right knee and low back, MRI films, and Herzog's records.

DeLuca observed plaintiff, who he believed appeared comfortable and was able to walk normally. DeLuca also noticed that plaintiff was able to "partially undress, do deep knee bends, do squats, [and] get on and off the examining table." DeLuca characterized his examination of plaintiff's low back as a "normal exam." DeLuca found no spasm or tenderness, and determined that plaintiff had a full range of motion in all arcs. Plaintiff had a normal curve in his back and tests performed for nerve function in plaintiff's legs, were "normal." According to DeLuca's examinations on plaintiff's right hip and right knee, both were "normal," and all ligaments were "stable."

Reviewing plaintiff's MRI films, DeLuca found "some mild degeneration" at two levels, L3-4 and L4-5, as well as "some bulging of one of the discs." DeLuca maintained that bulges and disc degeneration are both commonly seen together in MRI studies, even in young people. DeLuca stated that disc bulging is not related to trauma or injury, but rather related to degeneration. DeLuca explained that when a disc degenerates, it weakens and dries out. As a result of the degeneration, the disc bulges.

In support of his opinion that plaintiff's disc bulges were not caused by the accident, and over plaintiff's objection that there was nothing in the doctor's report indicating percentages concerning fifteen-year-olds, DeLuca testified that "25 percent of 15 year olds that never had any back complaints or injuries have combinations of bulges and [disc] degeneration as seen on MRI." During the colloquy on the plaintiff's objection, DeLuca indicated that "it's a very common finding and we see it all the time." The judge overruled plaintiff's objection, allowing DeLuca's testimony as to his common knowledge. On cross-examination, DeLuca referenced a seven- or eight-year-old study in the Journal of Radiology as indicating that fifteen-year-old children suffer from disc bulges. He also stated that "[t]wo thirds of the normal population, people that never had any back complaints or injury or anything, if you do MRIs on them you'll see bulges . . . [and] degeneration." DeLuca further supported his conclusion by noting that he has taken courses on MRIs, been trained to read his own MRIs, has read MRIs for over twenty years, and currently reads ten to fifteen MRIs per week in his office. As he is required to evaluate and treat patients, he "can't rely on the opinions of others" regarding MRI results.

DeLuca did not find any disc herniations, nerve compressions, fractures, or dislocations, however, he noted that the MRI films of plaintiff's low back revealed evidence of a contusion or bone bruise. DeLuca conceded that a bone bruise is "indicative of being hit or struck." Although bone bruises generally heal within three to six weeks, plaintiff's MRI, which was taken approximately thirty weeks after the accident, still showed a bone bruise. DeLuca also explained that while, clinically, a bone bruise goes away in two to six weeks, it may still be visible on an MRI for a longer time.

DeLuca disagreed with Hochberg's diagnosis of plaintiff's knee, noting that the MRI taken prior to plaintiff's knee operation showed neither synovitis nor chondromalacia. According to DeLuca, the MRI of plaintiff's right knee also showed a bone bruise, which he described as a contusion. DeLuca believed that the surgery performed by Hochberg on plaintiff's knee "wasn't necessary" because there is nothing that can be done for a bone bruise, which he explained heals by itself. Although the radiologist who read the MRI of plaintiff's right knee found joint effusion, DeLuca found no such evidence on the MRI film.

DeLuca concluded that there was no need for plaintiff to receive any further treatment. He also opined that plaintiff "received excessive over-treatment, a lot of which was not necessary." He opined that the degeneration and bulging in plaintiff's back preexisted the accident and were unrelated to the accident. At the time of his evaluation, he found that plaintiff had "a normal exam in his back, neurologic [function], lower extremities . . . right knee and . . . right hip . . . [and] no evidence of any injury."

Plaintiff testified that he continues to receive treatment for both his right knee and low back. Dr. Charles Rizzo referred plaintiff to physical therapy for his knee and Dr. Cary Glastein recommended physical therapy for plaintiff's low back. At the time of trial, plaintiff was scheduled for an additional four weeks of physical therapy for his knee. Plaintiff also testified that he had no complaints regarding his right knee, low back, or right hip prior to the accident. According to plaintiff at the time of his testimony, nearly four years after the accident, he rated, on a scale of one to ten, the pain in his right knee as "seven" and the pain in his low back as "six." His right knee also "locks up" once per day, causing him "terrible pain" and requiring him to straighten his knee out for a long period of time and then "pop it out of place." He also has difficulty climbing steps.

According to plaintiff, he is unable to box at the Police Athletic League, run two to three times a week, and participate in martial arts as he did prior to the accident. He claimed that he experiences difficulty engaging in sexual relations. He uses a special tool to enable him to perform his duties at work and experiences pain doing household chores, such as mowing the lawn and carrying groceries, as well as when he sits too long. He, however, continues to ride the motorcycle he was riding at the time of the accident, though he wears a back brace to limit back pain.

On appeal, plaintiff asserts that a new trial or additur was appropriate because unreliable scientific evidence without a proper foundation was admitted. He points out that defendant's expert's testimony concerning the study involving teenagers and his opinion that disc bulges are degenerative was permitted despite the lack of a proper foundation. He also asserts that the damages awarded by the jury were against the weight of the evidence, as the award was manifestly inadequate and disproportionate to his injuries.

The general principles are well settled. A motion for a new trial is addressed to the discretion of the trial judge. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). Pursuant to R. 4:49-1(a), the trial judge may order a new trial when, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Our standard of review is essentially the same as for the trial judge. Lindenmuth v. Holden, 296 N.J. Super. 42, 49 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997). That standard is equally applicable in assessing whether a jury damage verdict is against the weight of the evidence. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 499-500 (2001).

When reviewing a motion for additur, like that for remittitur, the trial judge should not interfere with the jury verdict unless it "clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a); Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). Thus, the trial judge should only intercede in a jury's damage verdict if the verdict is clearly against the weight of the evidence. Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994).

We will "overturn a jury verdict 'only if that verdict is so far contrary to the weight of the evidence as to give rise to the inescapable conclusion of mistake, passion, prejudice or partiality.'" Mort v. Besser Co., 287 N.J. Super. 423, 430 (App. Div. 1996), certif. denied, 147 N.J. 577 (1997) (citations omitted). A verdict should not be overturned simply because the jury might have rationally decided otherwise or may have reached a different conclusion. McDonald v. Mianecki, 159 N.J. Super. 1, 25 (App. Div. 1978), aff'd, 79 N.J. 275 (1979); Barber v. Vaccaro, 32 N.J. Super. 573, 578 (App. Div. 1954), certif. denied, 17 N.J. 523 (1955).

"The 'initial factfinder's judgment is entitled to considerable respect and should be overturned only after the reviewing judge has carefully scrutinized the record and determined that to uphold the judgment would result in a manifest denial of justice.'" Lindenmuth, supra, 296 N.J. Super. at 49 (quoting Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div.), certif. denied, 142 N.J. 574 (1995)).

Assessing the jury award, the judge made the following pertinent remarks:

[T]he testimony of Dr. DeLuca was predominantly based upon his examination of the plaintiff. In his testimony he stated that it was common to see bulges in young people unrelated to trauma. And I find that that testimony was permissible.

. . . .

And in this case . . . the plaintiff testified that he was a carpet installer prior to the accident, that he was a carpet installer after the accident. He testified as to his injury. The jury made the decision. Also, Dr. DeLuca testified that . . . the knee surgery that he had wasn't even necessary.

. . . .

The jury balanced the testimony of Dr. Hochberg. His opinion was that the knee would not be the same [as it was] prior to the accident because of damage, and that he had synovitis. And that the knee would be arthritic. The jury did not accept that testimony. They accepted the testimony of Dr. DeLuca.

Dr. Hochberg said that a bulging disc is not normal in a 25 year old. He didn't have any scientific evidence to say that either. He did not rely on any scientific treatises. That was his opinion. Dr. DeLuca had a different opinion and said that it is common.

So, therefore I find that the jury made a determination, and that a new trial is not necessary. And that goes to the additur also. So, I find that an additur could not be granted in this case either. I'll note that . . . [t]here were certain things that the plaintiff testified to. When he went to the emergency room he said he was unemployed, here he said he was employed.

So, there were various things the jury could have decided finding a $10,000 verdict rather than anything more. So, I don't think it's my, it is not my point to grant a new trial here, neither should an additur be determined. So, therefore, I will deny the motion.

We agree with the judge's findings. The jury in this case had sufficient basis to render its verdict and the record demonstrates neither "clear error nor mistake" by the jury in reaching its determination. "There are three ways a party offering the results of scientific evidence can demonstrate its reliability: '(1) the testimony of knowledgeable experts; (2) authoritative scientific literature; and (3) persuasive judicial decisions.'" Suanez v. Egeland, 353 N.J. Super. 191, 195-96 (App. Div. 2002) (quoting Windmere, Inc. v. Int'l Ins. Co., 105 N.J. 373, 379 (1987)). An expert may testify as to his opinion where it is "based upon his general education, training, and reading of medical literature." Kimmel v. Dayrit, 301 N.J. Super. 334, 357 (App. Div. 1997), aff'd as modified on other grounds, 154 N.J. 337 (1998). "Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002).

Here, the judge aptly pointed out, plaintiff's expert testified, without objection, that his opinions were based upon his experience and medical knowledge. Indeed, both DeLuca and Hochberg testified concerning their medical training and experience as orthopedic surgeons with DeLuca being Board Certified. They were qualified as medical experts in the field of orthopedic surgery. Neither party objected to either doctor's qualifications as an expert. DeLuca's opinion was based upon his medical knowledge as a qualified orthopedic surgeon. There was no error in permitting DeLuca's testimony, over plaintiff's objection, and, thus, no miscarriage of justice to warrant our intervention.

Likewise unpersuasive is plaintiff's claim that the verdict was against the weight of the evidence. To be sure, the record contains evidence in favor of plaintiff as well as in favor of defendant. Consequently, it was the jury's role to determine the credibility of the witnesses and decide whether plaintiff had proven, by a preponderance of the credible evidence, the nature and extent of his injuries were causally related to the accident. The reliability of each doctor's opinion based upon his training, education, and medical experience was determined the jury and found to be substantially in favor of defendant. "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." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). The jury had the right to accept some part of Dr. Hochberg's testimony and reject other parts in determining that there was some permanent injury. Contrary to plaintiff's contention, the jury conclusion that plaintiff suffered some minimal permanent injury as a result of the accident was not against the weight of the evidence.

Affirmed.

Liability was stipulated.

At oral argument on appeal, plaintiff argued, for the first time, that DeLuca's testimony regarding plaintiff's bulging disc condition was beyond his report. However, DeLuca's report is not included in the appellate appendix nor is the argument made in plaintiff's appellate brief. We, therefore, decline to consider the argument.

(continued)

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A-5949-05T3

October 29, 2007