MICHAEL YANKANICH v. ALLSTATE INSURANCE COMPANY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2964-07T22964-07T2

MICHAEL YANKANICH and

JACQUELINE YANKANICH, h/w,

Plaintiffs-Appellants,

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Respondent.

________________________________________________________________

 

Argued October 29, 2008 - Decided

Before Judges Fisher and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1353-06.

John D. Borbi argued the cause for appellants (Bafundo, Porter, Borbi & Clancy, LLC, attorneys; Mr. Borbi, on the brief).

Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

A jury found that plaintiff Michael Yankanich failed to sustain any permanent injuries that were proximately caused by the automobile collision at issue. Plaintiff appeals from the trial judge's refusal to instruct the jury that if it found plaintiff sustained a herniated disc as a result of the automobile collision in question, then plaintiff satisfied the permanency requirement of the verbal threshold statute. We affirm.

I.

On February 14, 2003, plaintiff's vehicle was struck by a vehicle operated by Daffodel Alinogan. After plaintiff settled with Alinogan for her policy limits, he commenced an underinsured motorist action against his own automobile insurance carrier, defendant Allstate Insurance Company. The trial involved only plaintiff and Allstate.

Immediately after the accident, plaintiff began to experience soreness and a burning sensation in his neck accompanied by numbness and tingling in his hands and arms. Plaintiff was treated for a year by an orthopedic surgeon, Barry Gleimer, D.O., who then referred him to Joan O'Shea, M.D., a neurosurgeon. O'Shea testified that she limits her practice to the care and treatment of spinal problems and operates on disc herniations, fractures of the spine and tumors. She explained that as a neurosurgeon, she is trained to read MRI films and other diagnostic tests, adding that her decision about whether to operate on a patient is based in substantial part upon her assessment of the MRI films. O'Shea testified that her examination of plaintiff and her review of the MRI films led her to conclude that plaintiff had sustained herniated discs at C3-4, C5-6 and C6-7. She also found some degenerative changes in plaintiff's neck.

O'Shea also reviewed the MRI films of plaintiff's lower back and concluded that his low back and leg pain were attributable to a disc herniation at L1-2. She opined that the three herniated discs in plaintiff's neck and the herniated disc in his lower back all resulted from the accident in question. She testified that an MRI is an objective test that a patient cannot fake. When asked whether the disc herniations were a permanent injury, O'Shea answered yes, commenting "[t]hey're not gonna go away."

On cross-examination, O'Shea acknowledged that the MRI films of plaintiff's neck showed disc degeneration at every level except one. O'Shea conceded that the degeneration was not caused by the accident. She also remarked that the MRI films showed degeneration in plaintiff's low back. O'Shea admitted that the radiologist who originally read both the lumbar and cervical MRI's did not diagnose the existence of a herniated disc in either area, but simply stated that he "could not exclude" the possibility of a cervical disc herniation.

O'Shea also acknowledged that when she examined plaintiff during his initial office visit, he exhibited normal motor strength, normal sensation in his arms and legs, normal reflexes, normal gait and normal straight-leg raising. Although she maintained that plaintiff did exhibit "a little" limitation in his range of motion in his neck and lower back, she conceded that a range of motion test "can be faked."

During plaintiff's second, and last, visit to O'Shea in November 2006, she conducted another physical examination and concluded that plaintiff's condition had "improved" since his earlier visit in 2004. Further, O'Shea acknowledged that a disc herniation is not always a permanent injury because in "rare instances when we have a free fragmented disc, [the disc material] will absorb with time." She insisted, however, that the situation where a "free fragmented disc" can be absorbed with time "was not the case in this patient." Thus, she opined there was no possibility that plaintiff's disc herniations would resolve or abate without treatment.

O'Shea also testified on cross-examination that "[t]he pain from the disc herniation can go away" and the "natural history of a disc herniation is that many people will get better. That will happen almost immediately." She commented that if, as was the case here, the patient does not immediately improve, then the surgeon will prescribe an epidural injection or recommend surgery, neither of which plaintiff pursued because of a fear of complications. She concluded her cross-examination by agreeing that "some people can function normally even with a herniation . . . ."

Defendant presented the testimony of its medical expert, Roy B. Friedenthal, M.D. who examined plaintiff four months after plaintiff's last visit to O'Shea. During that examination, plaintiff reported to Friedenthal that his lower back pain and radicular symptoms had fully resolved about three months earlier, although he continued to complain of stiffness and a "burning type of pain" in his neck.

After performing a full physical examination and reviewing plaintiff's medical records, which included the MRI films, Friedenthal concluded that plaintiff had not sustained a permanent injury caused by the accident. He opined that plaintiff's "complaints of pain were perfectly consistent with the degree of underlying degenerative arthritis. . . . [N]one of his [symptoms and complaints] went beyond what I would expect from the underlying disease . . . that was there at the time of this accident." He explained, "It was identified nine weeks later on the MRI scan. It didn't develop in that nine weeks. This is bony change. Bony change takes years to develop."

Ultimately, Friedenthal concluded that "all of [plaintiff's] complaints were consistent with underlying and pre-existing, at least degenerative change, perhaps other things as well. But none were consistent with injury changes." During a charge conference on January 11, 2008, plaintiff requested a jury charge based upon the holding in Pardo v Dominguez, 382 N.J. Super. 489, 494 (App. Div. 2006), and the unpublished opinion in Kalra v. Garcia, No. A-4198-05 (App. Div. July 17, 2007). Plaintiff requested the following jury charge be given to the jury:

Under the Verbal law, the plaintiff . . . must prove he sustained a permanent injury as I previously instructed you. However, if you find that plaintiff . . . suffered a herniated disc or disc(s) as a result of the accident of February 14, 2003[,] then he has in fact sustained a permanent injury under the law, and is entitled to a recovery for all injuries sustained as a result of the accident.

Defendant objected to the requested charge, asserting that its expert, Friedenthal, disputed plaintiff's claim that there were any herniations shown on the MRI. Judge Suter denied plaintiff's request for charge. The judge reasoned:

I don't read the Pardo case or this . . . unreported case . . . as requiring an instruction on that issue in all cases. In those two cases, it appears that the issue of herniation and the issue of a herniated disc being a permanent injury was not disputed . . . .

. . . .

Here, we've got a contest between the two doctors. . . .

. . . .

In that type of context, I don't believe that the Pardo case or [the unreported] case instructs me that I must include the charge that the plaintiff's attorney has provided to me. . . . I'm very wary . . . of beginning to make a list of what is a permanent injury . . . . Particularly when the experts themselves dispute it.

So I'm going to decline and exercise my discretion. And I think . . . that's not what those cases call for, and I don't think it's appropriate in this case.

On January 14, 2008, the jury returned a verdict of no cause finding plaintiff did not sustain a permanent injury that was proximately caused by the motor vehicle accident in question. Plaintiff appeals, raising solely the judge's refusal to issue the requested charge.

II.

Appropriate and proper jury instructions are essential for a fair trial. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591 (1966). Indeed, failure to provide proper jury instructions may constitute reversible error. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). "As a general rule, an appellate court will not disturb a jury's verdict based on a trial court's instructional error 'where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect.'" Ibid. (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). No party is entitled to have the jury charged in his or her own words. All that is necessary is the charge as a whole be accurate. Kaplan v. Haines, 96 N.J. Super. 242, 251 (App. Div. 1967), aff'd, 51 N.J. 404 (1968).

Plaintiff argues that "the court's lack of explanation to the jury concerning the law should they find plaintiff sustained a herniated disc could have resulted in the jury taking a wrong turn in its deliberation." Consequently, he argues, "the jury should have been instructed that a herniation satisfies the permanency requirements. The jury in this matter was provided with an incomplete potentially misleading jury charge which constitutes reversible error."

Defendant, in turn, argues that because the requested charge was not supported by the evidence and because the requested charge would have improperly infringed on the jury's province to resolve a genuine factual dispute, the judge correctly declined to give the charge. Defendant also maintains that "[c]ontrary to plaintiff's contention, the disputed instruction is not required under Pardo, and any argument that it is [required], represents a gross over-reading of that decision."

Because plaintiff elected the "limitation on lawsuit option" under the Automobile Insurance Cost Reduction Act (AICRA) (frequently called the "verbal threshold"), he was required to prove by objective medical evidence that he sustained a permanent injury. N.J.S.A. 39:6A-8a. In Pardo, supra, the plaintiff filed a personal injury action alleging that a motor vehicle accident had caused a herniated disc and a bulging disc, each of which were diagnosed through the use of an MRI. 382 N.J. Super. at 490. The defendant's expert agreed that the plaintiff had sustained a herniated disc in her lumbar spine as a result of the accident. Id. at 491.

Despite the undisputed evidence of a herniated disc, the trial judge granted the defendant's motion for summary judgment after finding that the plaintiff failed to demonstrate "objective credible evidence of a serious permanent injury." Ibid. We reversed the trial court's grant of summary judgment to defendant, id. at 494, reasoning that "there [was] no expert report suggesting that the disc . . . function[ed] normally or, in any event, that [the plaintiff's] herniated disc [could] 'heal' to so function." Id. at 492-93. For that reason, we held the undisputed finding of a herniated disc was sufficient to satisfy the requirements of the verbal threshold, and reversed the grant of summary judgment to defendant. Id. at 494.

Pardo, and the cases upon which its holding relied, are all distinguishable. There, we relied on Martin v. Chhabra, 374 N.J. Super. 387, 393 (App. Div. 2005); Bennett v. Lugo, 368 N.J. Super. 466, 477 (App. Div.), certif. denied, 180 N.J. 457 (2004); and Moreno v. Greenfield, 272 N.J. Super. 456, 462-63 (App. Div. 1994), in support of the conclusion that evidence of a herniated disc is a serious and permanent injury sufficient to withstand a defendant's summary judgment motion. Pardo, supra, 382 N.J. Super. at 493. However, neither Pardo nor any of the above cases presented the question that is involved here, i.e. whether a trial judge is required to instruct a jury that if it finds that a plaintiff has sustained a herniated disc, then the verbal threshold is satisfied so long as the herniation was caused by the accident. That difference is significant.

The denial of a defendant's summary judgment motion on the verbal threshold issue merely permits a plaintiff to get to a jury on the question of permanency. DiProspero v. Penn, 183 N.J. 477, 506 (2005). Once the motion is denied, the jury is responsible for deciding whether a plaintiff has satisfied AICRA's permanency requirement. Here, unlike Pardo and its predecessors, plaintiff would have the judge essentially take the issue of permanency from the jury by issuing a binding instruction that would require the jury to find that the injury was permanent solely because plaintiff sustained a herniated disc. Nothing in Pardo, or in the cases upon which we relied, suggest that the issue of permanency should be taken away from a jury in the manner that plaintiff argues here.

Because Pardo concerned only the type of evidence necessary to survive a summary judgment motion, the holding in Pardo cannot be read as establishing a blanket rule that the existence of a herniated disc requires a trial court to remove from the jury's consideration the issue of whether a herniated disc is a "permanent injury," as defined by N.J.S.A. 39:6A-8. Instead, Pardo and its predecessors merely hold that evidence of a herniated disc precludes summary judgment in favor of a defendant. Pardo, supra, 382 N.J. Super. at 494; Martin, supra, 374 N.J. Super. at 393; Bennett, supra, 368 N.J. Super. at 477; and Moreno, supra, 272 N.J. Super. at 462-63. Indeed, in Bennett we made it quite clear that the jury is entitled, but not required, to find the plaintiff satisfied the verbal threshold by evidence of a disc herniation. Id. at 477 ("[i]f a jury finds that the plaintiff's disc herniation has been caused by the current accident, the jury can likewise reasonably find that the injury is serious and permanent.") (emphasis added). Thus, each of the cases upon which plaintiff relies simply held that the existence of a herniated disc and a medical opinion that the injury was proximately caused by an automobile accident presented a factual issue for resolution at trial by a jury. None of these cases held that the plaintiff was entitled to the jury instruction that plaintiff seeks here.

Plaintiff also relies on the unreported decision in Kalra, supra, (slip op. at 4), which held that herniated discs found by a jury to have been proximately caused by an automobile accident must be considered a permanent injury as a matter of law. Defendant draws our attention to another unreported opinion, Diaz v. Gonzalez, No. A-0737-07 (App. Div. July 7, 2008) (slip op. at 4), which held otherwise. These decisions have no precedential value, Rule 1:36-3, and we decline to consider them.

Here, the evidence provided by both parties created divergent factual contentions for resolution by the jury. Plaintiff's expert, O'Shea, testified that plaintiff has suffered several injuries as a result of the accident and that these injuries were permanent. Defendant's expert, Friedenthal, sharply disagreed, opining that plaintiff had not suffered disc herniations in either the cervical or lumbar spines and that his symptoms were attributable solely to pre-existing degenerative change. Moreover, Friedenthal reported plaintiff's statement that his back pain had completely resolved three months after his last visit to O'Shea, and that plaintiff was left with only some limitation of motion in his neck, which plaintiff admitted having prior to the subject accident.

In short, we discern no error in the judge's charge to the jury. The issue of permanency was correctly presented to the jury for resolution.

Affirmed.

Plaintiff's wife, Jacqueline Yankanich, sued per quod. All references in this opinion to plaintiff shall signify Michael Yankanich.

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A-2964-07T2

November 26, 2008