SUDEEP GANGULY v. EMANUELE VITABILE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0865-08T30865-08T3

SUDEEP GANGULY,

Plaintiff-Appellant,

v.

EMANUELE VITABILE and

GARY BURNS,

Defendants-Respondents,

and

ZACK PAINTING COMPANY,

ORLANDO MATOS, TRANS PORTE,

JEFFREY SWICK, and

IRINA HAYDON,

Defendants.

________________________________________________________________

 

Argued December 2, 2009 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1170-06.

Nicholas J. Leonardis argued the cause for appellant (Stathis & Leonardis, L.L.C., attorneys; Mr. Leonardis, on the brief).

Stephen J. Foley, Jr., argued the cause for respondent Emanuel Vitabile (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys; Mr. Foley, on the brief).

Respondent Gary Burns has not filed a brief.

PER CURIAM

In this verbal threshold case, the jury determined that plaintiff Sudeep Ganguly did not suffer a permanent injury as defined in N.J.S.A. 39:6A-8(a). As a result, no non-economic damages were awarded to plaintiff. He appeals from the trial court's denial of his motions for a directed verdict, for a new trial and for reconsideration. We affirm.

On September 9, 2004, a car driven by defendant Emanuele Vitabile struck the rear end of a car driven by plaintiff. Mr. Ganguly described feeling three impacts as his car bounced between Mr. Vitabile's vehicle and the car in front of him. One of the impacts was apparently related to a collision after the initial impact between the Vitabile vehicle and a truck driven by defendant Gary Burns that was owned by his employer, defendant Zack Painting Co. Plaintiff was extracted from his crumpled car and transported by ambulance to JFK Medical Center in Edison, New Jersey. Hospital records revealed that plaintiff reported only mild neck and back pain. He was treated and released.

Plaintiff saw his family physician, Dr. Subudin Natarajan, four days after the accident. He complained about neck and back pain, and told Dr. Natarajan that he hit his knees on the dashboard. Plaintiff also testified that he saw Dr. John Mandel, a chiropractor, who gave him a note to stay home from work.

On November 8, 2004, plaintiff went to see Dr. Gregory Charko, an orthopedic surgeon recommended by his lawyer. Dr. Charko testified that plaintiff had pain in his neck and back, and had a limited range of motion in both his neck and lower back. However, Dr. Charko found that he had no spinal fractures, his disc spaces were maintained and his ligaments maintained stability in his back. Dr. Charko testified that a Magnetic Resonance Image (MRI) taken in October 2004 revealed that plaintiff had a herniated disc at the L5-S1 level, two herniated discs in the neck and "a little bulging" of two discs at C3-4 and C4-5. He stated that these objective findings were consistent with plaintiff's complaints. Dr. Charko's findings upon examination of plaintiff's legs, hips, knees and ankles were unremarkable.

When plaintiff returned for a second visit on December 14, 2004, he told Dr. Charko about increasing pain across both knees. Dr. Charko's examination revealed

some tenderness across the front of his knee, what we call positive patella grind test . . . and he had some tenderness at the joint line on the inner aspect of the knee. The ligaments of the knee were stable, didn't look like he ruptured any ligaments on either knee.

Dr. Charko diagnosed the condition as "anterior knee pain syndrome," which could be caused by any number of problems with the knee, and could be either temporary or permanent. He recommended physical therapy. Dr. Charko stated that an MRI taken in January 2005 showed "some excess fluid in the knee." Plaintiff complained about knee pain in three more visits to Dr. Charko but on his April 25, 2005 visit he reported that physical therapy was somewhat helpful. In November 2005, plaintiff complained of escalating pain in his right knee. Dr. Charko administered a cortisone injection after plaintiff complained of renewed pain in January 2006. After the pain returned, Dr. Charko recommended removing plaintiff's "medial plica," a band "that comes around the inner side of the knee." Dr. Charko stated that this structure is unnecessary and is "present in anywhere from 50 to 80 percent of the population."

Dr. Charko performed the surgery in March 2006, and found some damaged cartilage around the end of the thighbone and the under side of the kneecap. Dr. Charko said that in a June 2006 follow-up visit the plaintiff still had:

some mild knee pain in the [front] of his knees with especially going down stairs. Noted that with the additional therapy that the pain he had going up stairs as well as down had improved and it was mainly going down stairs now.

In his physical examination, Dr. Charko found that the plaintiff had a normal range of motion in his knee, the knee was stable, and was not swollen.

For more than a year and a half, plaintiff did not return to Dr. Charko. He returned in December 2007, after he was involved in a second car accident, complaining primarily about pain in his left knee.

On February 8, 2006, plaintiff filed the complaint in this case along with the certification of his physician, Dr. Charko, as required by N.J.S.A. 39:6A-8(a). Dr. Charko's certification set forth his expert opinion that plaintiff had

sustained permanent injury including cervical disc herniation C6-C7 and C5-C6; lumbar disc herniation L5-S1; lumbar disc bulging L3-L4; chronic neuropathic denervation C5-C6 and C6-C7; bilateral neuropathic denervation L4-L5 and L5-S1, that will have permanency residual sequelae.

The certification did not report a permanent knee injury. Nonetheless, Dr. Charko later testified that plaintiff suffered a permanent injury to his right knee that was causally related to the accident.

Dr. Edward Decter, the orthopedic surgeon called by defendant Vitabile, testified that photographs from plaintiff's surgery depicted some pre-surgical arthritis of the patella and medial femoral condyle, and a band of tissue rubbing beneath the kneecap. While he could not determine whether the accident caused the damage, he opined that if there were no prior injury to the knee, he would conclude that the accident caused the injury. Dr. Decter's examination of plaintiff revealed that the knee had healed well at the incision site, had normal muscle contour and alignment, and a full range of motion. He found that all of the knee's ligaments were intact and that plaintiff did not have any tenderness in his ligaments. He concluded that the knee examination was "normal."

Dr. Decter also examined plaintiff's back and neck and reviewed the MRIs from November 2004. He disagreed with Dr. Charko and concluded that the MRIs showed no cervical or lumbar herniations. Based on these studies and the physical exam he conducted, Dr. Decter testified that, while plaintiff may have sustained temporary soft-tissue injuries, he saw no evidence of any permanent injury or limitations in his spine.

The trial court ruled on motions for directed verdicts, finding that Mr. Vitabile was negligent and a proximate cause of the accident and that plaintiff was not negligent. In addition, the court dismissed plaintiff's claims against Zack Painting Co., which were based on vicarious liability, because it found Mr. Burns was not the company's agent at the time of the accident. Finally, the court denied plaintiff's motion for a directed a verdict that he had suffered a permanent injury.

The jury was instructed that the court had determined as a matter of law that defendant was negligent and a proximate cause of the accident. The jury found that Mr. Burns was not negligent in the operation of his vehicle and allocated all fault to Mr. Vitabile. However, the jury concluded that plaintiff did not suffer a permanent injury and awarded plaintiff economic damages of $3,856, the amount of tuition he paid for one semester of courses at Katherine Gibbs College.

The trial court denied plaintiff's motion for a new trial or additur as well as a motion for reconsideration.

The following issues are presented on appeal:

POINT I

THE LOWER COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR DIRECTED VERDICT SINCE THERE WAS NO GENUINE ISSUE OF FACT AS TO THE APPELLANT'S PERMANENT INJURIES AS A DIRECT RESULT OF THE MOTOR VEHICLE ACCIDENT.

POINT II

THE APPELLANT MET HIS BURDEN OF PROOF THAT HIS INJURIES WERE PERMANENT IN NATURE AND HE WAS ENTITLED TO APPROPRIATE DAMAGES.

POINT III

THE LOWER COURT IMPROPERLY DENIED THE APPELLANT'S POST-TRIAL MOTIONS SINCE THE APPELLANT MET HIS BURDEN OF PROOF THAT THE JURY'S VERDICT WAS UNREASONABLE AND MUST BE VACATED.

Plaintiff argues that the court should have granted his motion for a directed verdict because his expert opined that plaintiff sustained a permanent injury to his right knee and defendant's expert offered no opinion as to its permanency. As a result, he argues that the evidence presented no dispute for the court to submit to the jury. We disagree.

The standard for a directed verdict is the same as that governing a motion for involuntary dismissal under Rule 4:37-2(b). Pressler, Current N.J. Court Rules, comment 1 on R. 4:40 (2010). "[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied." Potente v. County of Hudson, 187 N.J. 103, 111 (2006); see also Riley v. Keenan, 406 N.J. Super. 281, 298 (App. Div.), certif. denied, 200 N.J. 207 (2009). A review of the evidence here shows that plaintiff's motion was properly denied.

Plaintiff's claim was subject to the verbal threshold provision of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a). As a result, under the facts of this case, plaintiff was unable to recover damages for non-economic loss unless he proved that he suffered a "permanent injury." As defined in the statute, this requires proof that

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.]

While it is true that plaintiff presented expert testimony that could support a jury determination that he suffered a permanent injury, Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006), the jury was not required to reach that conclusion. Ames v. Gopal, 404 N.J. Super. 82, 86 (App. Div. 2008), certif. denied, 198 N.J. 316 (2009).

A jury "need not give controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd, 130 N.J. 484 (1993). "The jury may adopt so much of it as appears sound, reject all of it, or adopt all of it." Ibid.; see also Amaru v. Stratton, 209 N.J. Super. 1 (App. Div. 1985); Model Jury Charge (Civil) 1.13 (Apr. 1995). To direct a verdict, the testimony must be uncontradicted, and there must be "no other ground for hesitating to accept it as the truth . . . ." Alves v. Rosenberg, 400 N.J. Super. 553, 556 (2008) (emphasis added).

The evidence here did provide grounds for the jury to hesitate to accept Dr. Charko's opinion of permanency as the truth. Although Dr. Decter did not explicitly testify as to "permanency," he did testify that plaintiff's knee examination was normal. Dr. Decter's opinion finds support in testimony from Dr. Charko that, prior to the second accident, plaintiff had a normal range of motion in his right knee, that it was stable and not swollen, and overall was "reasonably normal." Plaintiff admitted at trial that, six months after his knee surgery, he felt "completely okay" and he had "no problem with [his] knee at that time." Although plaintiff represented that the knee pain returned, he failed to seek additional treatment from Dr. Charko until after the second accident.

Plaintiff's delay in reporting his knee pain also provided cause to question whether he suffered a permanent knee injury. See Amaru, supra, 209 N.J. Super. at 20 (delayed reports of an injury are a valid reason for a jury to doubt that the collision caused the injury). He claimed that he did not mention knee pain at the hospital because of intense back pain. However, the medical records reported that he only experienced mild neck and back pain. Moreover, the certification of Dr. Charko filed on February 8, 2006 did not mention any permanent knee injury.

In sum, the state of the evidence permitted the jury to reject Dr. Charko's opinion and conclude that the injury to plaintiff's right knee was not permanent because the knee "healed to function normally" after his accident with defendant. N.J.S.A. 39:6A-8(a). Therefore, the motion for a directed verdict was properly denied.

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

The initial pleadings also named Orlando Matos, Trans Porte, Jeffrey Swick and Irina Haydon as defendants. The record before this court does not disclose the disposition of these claims. However, these parties did not participate in the trial and are not parties to this appeal.

Dr. Charko admitted that a previous trauma could have caused the injury.

(continued)

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2

A-0865-08T3

December 18, 2009