AMBER J. DREA v. MARQUES T. BOWE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6501-06T36501-06T3

AMBER J. DREA,

Plaintiff-Respondent/

Cross-Respondent,

v.

MARQUES T. BOWE, SHARON A.

BOWE, individually, jointly,

severally, and/or in the

alternative,

Defendants-Respondents/

Cross-Appellants.

____________________________________

AAA MID-ATLANTIC INSURANCE

COMPANY OF NEW JERSEY,

Defendant/Intervenor-Appellant/

Cross-Respondent.

_____________________________________

 

Argued September 29, 2008 - Decided

Before Judges Winkelstein and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-8421-04.

Susan L. Moreinis argued the cause for intervenor-appellant/cross-respondent.

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

George G. Horiates argued the cause for respondent/cross-respondent.

PER CURIAM

In this verbal threshold case, defendants Marques T. Bowe and Sharon A. Bowe and defendant-intervenor AAA Mid-Atlantic Insurance Company of New Jersey appeal from the jury verdict in favor of plaintiff Amber Drea. Defendants and defendant-intervenor contend that the trial court erred in allowing plaintiff's treating chiropractor to testify to a Magnetic Resonance Imaging (MRI) report he received in the course of treating plaintiff indicating that plaintiff had two bulging discs and in allowing him to testify on the issue of permanency. Defendants also maintain that the trial court erroneously entered a judgment that exceeded the limitation on damages in the "stip-cap" agreement reached by the parties before trial.

We hold that the trial court erred when it allowed the chiropractor to testify to the MRI, and to the extent the chiropractor's permanency opinion rested on the MRI, it was inadmissible. On remand, the chiropractor may testify to permanency provided a proper foundation is laid for that opinion. Further, we conclude that the "stip-cap" agreement should have been enforced. We reverse and remand for a new trial in accordance with this opinion.

I

This lawsuit arises out of a motor vehicle accident that took place on March 26, 2003, when plaintiff's vehicle was hit in the rear by a vehicle driven by defendant Marques T. Bowe. Defendant-intervenor, plaintiff's underinsured motorist carrier, intervened in the case pursuant to Zirger v. Gen. Accident Ins. Co., 144 N.J. 327 (1996).

Prior to trial, the parties reached a "stip-cap" agreement in which defendants conceded liability in exchange for a limitation on plaintiff's recovery in damages. Plaintiff agreed to a $100,000 cap on her damages. Under the agreement, defendants would not be responsible for more than $50,000 in damages, which was the limit of their liability insurance, and defendant-intervenor could not be liable for more than $50,000 in damages, which fell within its coverage limitations. Plaintiff's recovery could not exceed $100,000 in total. Notably, no party waived the right to appeal from a damages verdict as part of this agreement nor did the parties have any discussions regarding waiver of the right to appeal. The case then went to trial on the issue of damages only.

Plaintiff's claim was governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for non-economic loss unless the claim meets one of the six statutory categories. Ibid. One of those statutory categories is a "permanent injury," defined as an injury that occurs "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." Ibid. In addition, in order to pass the verbal threshold, the claim must be supported by a physician's certification that "shall be based on and refer to objective clinical evidence." Ibid. This statutory language has been interpreted as incorporating into the claim the requirement that a finding of a qualifying injury be supported by "objective credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). Thus, to recover damages, plaintiff was required to prove with objective, credible evidence that she sustained a permanent injury.

At trial, plaintiff's treating chiropractor, Dr. Anthony Calzaretto, testified about plaintiff's injuries and treatment. Licensed as a chiropractor in New Jersey, Dr. Calzaretto was qualified by the court to testify as an expert in the field of chiropractic care. Over the objections of the defense, he was permitted to testify that he had reviewed plaintiff's MRI report showing bulging discs at C4-C5 and C5-C6. Plaintiff's counsel indicated that he was not asking the chiropractor to review the MRI films themselves but only to testify to the reports he relied upon. On cross-examination, when asked if he had personally reviewed the MRI films, Dr. Calzaretto could not say definitively whether or not he had reviewed the films themselves, as well as the report, although it was his policy to do so. He testified that plaintiff's loss of curvature in her lumbar and cervical spine and the two disc bulges at C4-C5 and C5-C6 constituted objective clinical findings indicating a permanent injury caused by the accident.

The jury found that plaintiff had sustained a permanent injury proximately caused by the accident and supported by objective credible medical evidence and awarded her $250,000 in damages. A judgment was entered in favor of plaintiff in that amount. Defendant-intervenor joined in defendants' motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. That motion was denied by the trial court, and this appeal followed.

On appeal, defendants and defendant-intervenor maintain that the trial court erred in allowing the chiropractor to testify to the MRI results and to testify on the issue of permanency. Defendants also maintain that the trial court failed to mold the verdict in accordance with the pretrial "stip-cap" agreement they had reached with plaintiff in which they agreed to stipulate to liability in exchange for a $50,000 limitation on his liability for damages. Plaintiff contends that at trial the defense waived its right to challenge the chiropractor's testimony when it agreed to go forward with the case after the trial court indicated that the case would be mistried.

II

We first address whether defendants' objections to Dr. Calzaretto's testimony about the MRI were waived at trial.

During the testimony of Dr. Calzaretto, two issues were raised by the defense, namely, Dr. Calzaretto's testimony about the MRI studies and the failure of plaintiff to provide in discovery all of plaintiff's treatment information. The trial court initially was going to declare a mistrial based on plaintiff's failure to provide the discovery. The defense then waived its objections on the discovery issue, but continued to press its objections to the chiropractor's testimony about the MRI. After further discussions on and off the record, the trial court ruled that Dr. Calzaretto could testify to the MRI report. As a result of this ruling, the issue of a mistrial in order to allow plaintiff to obtain a radiologist to read the reports became moot.

The record is clear that the defense's objections to the chiropractor's testimony were preserved. On May 23, 2007, before Dr. Calzaretto was allowed to provide the testimony on the MRI, the trial court and counsel had this colloquoy:

The Court: Now with respect to the other motion that the Court ruled upon yesterday, that is the motion with respect to challenging - the doctor, the chiropractor's testimony regarding the radiology reports, I believe that was it, of which the Court denied that motion, but the record is preserved that counsel maintains their objection to the doctor chiropractor who testified with respect to the radiology reports. Is that correct?

Ms. Tilghman [counsel for defendant Bowe]: That is correct, Your Honor.

Mr. Benedetti [counsel for defendant- intervenor]: That is correct.

The Court: Is that correct, Counsel?

Mr. Horiates [counsel for plaintiff]: That is correct.

Thus, the record indicates that the defense did not waive its objection to the chiropractor's testimony about the MRI studies.

III

We next address whether the trial court abused its discretion when it allowed Dr. Calzaretto to testify to the findings in the MRI report about plaintiff. Under New Jersey law, a chiropractor may not perform an MRI test. N.J.A.C. 13:44E-1.1(c)(4). Further, we find no proofs in the record that Dr. Calzaretto had any specialized training and experience qualifying him to read MRI films. On voire dire, he acknowledged that he did not have any specialty in reading MRI films nor was he an expert in radiology. Based on the record, Dr. Calzaretto did not have the qualifications to testify to his interpretation of the MRI films.

However, Dr. Calzaretto had the report from the radiologist who read the MRI films and found the two herniations. Dr. Calzaretto claimed that he relied on this report in formulating his opinion. The defense contends that the trial court erred when it allowed Dr. Calzaretto to testify about the findings in this report and to reply upon it when reaching his opinion that plaintiff sustained two disc bulges in the accident.

We agree. In Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), a verbal threshold case, we upheld a trial court ruling prohibiting a chiropractor from testifying to an MRI report. The Brun court stated that "on objection, interpretation 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 Dr. Corey's [the chiropractor's] testimony." Id. at 421. The Brun court found that the MRI report was inadmissible as a business record under N.J.R.E. 803(c)(6), due to the complexity of MRI interpretations, and it also rejected plaintiff's N.J.R.E. 703 argument. Id. at 421-24.

This ruling in Brun is consistent with the earlier case of Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div.), certif. denied, 141 N.J. 95 (1995). In that case, we determined that material in otherwise admissible hospital records regarding the diagnosis of a pathological fracture and the cause of the fractures was properly redacted because it concerned "a complex diagnosis involving the critical issue in dispute as opposed to an uncontested diagnosis or insignificant issue." Id. at 284. We further explained that "medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Id. at 282-83. For similar reasons, the experts could not refer to the redacted material under N.J.R.E. 703. Id. at 284-85.

Since this error in the evidentiary ruling went to a critical issue in the case and was "clearly capable of producing an unjust result," R. 2:10-2, we reverse.

IV

We note that the defense also contends that the trial court erred in allowing Dr. Calzaretto to testify to his opinion on permanency, on the basis that the certificate of permanency he submitted was a net opinion. Since this issue may be raised on retrial, we address it here. The certificate of permanency was provided in order to comply with the requirement of N.J.S.A. 39:6A-8(a). At trial, the certificate itself was not admitted into evidence. Rather, Dr. Calzaretto was permitted to testify that plaintiff sustained a permanent injury, and he provided a factual basis for that opinion, noting plaintiff's age in his discussion of permanency as well as the loss of curvature in plaintiff's lumbar and cervical spine and the two bulging discs in the cervical spine. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (stating that "[a]s construed by applicable case law, N.J.R.E. 703 requires that an expert's opinion be based on facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial"). On retrial, Dr. Calzaretto may testify to permanency provided a proper foundation is laid for that opinion.

V

Finally, we address plaintiff's position that she is entitled to the full verdict despite the "stip-cap" agreement because defendant took this appeal. We find this position untenable. Plaintiff concedes that she agreed to limit her damages to $100,000. Plaintiff also acknowledges that no agreement was reached waiving the right to appeal and indeed, the question of appeal was not discussed. The "stip-cap" agreement thus did not provide that any party waived the right to appeal. Further, during the trial, when the dispute arose concerning the admissibility of the chiropractor's testimony about the MRI, defense counsel expressly stated that it was an appealable issue and plaintiff's counsel did not object which suggests that everyone understood the damage trial was subject to appeal.

Absent an agreement waiving the right to appeal, plaintiff provides no rationale for depriving defendants of the agreed limitation on damages because they appealed the verdict. She merely states that the appeal "went against the spirit of the 'stip-cap' agreement." Further, if the appeal somehow negates the agreement, plaintiff does not explain why only part of the agreement is negated, that is why the limitation on damages is negated and not also the stipulation on liability. Plaintiff seeks to keep her benefit in the bargain while depriving defendants of the agreement's protection. Thus, this appeal did not vitiate plaintiff's agreement to the "stip-cap."

Reversed and remanded for retrial in accordance with this opinion.

 

While the defense also objected to testimony about the x-rays, that issue has not been raised in this appeal, and so the x-rays are not addressed in this opinion.

(continued)

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12

A-6501-06T3

November 6, 2008