THOMAS DECAMILLO v. ALLSTATE NEW JERSEY INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5282-07T35282-07T3

THOMAS DECAMILLO,

Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY INSURANCE

COMPANY,

Defendant-Respondent.

_______________________________________

 

Argued October 20, 2009 - Decided

Before Judges Parrillo and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1018-05.

Phillip B. Linder argued the cause for appellant.

Kenneth N. Lipstein argued the cause for respondent.

PER CURIAM

In this personal injury automobile negligence action, plaintiff Thomas DeCamillo appeals from a judgment incorporating a jury verdict denying him recovery for non-economic damages, and from court orders denying his motion for judgment at trial, for judgment notwithstanding the verdict, and for a new trial. We affirm.

Plaintiff was involved in an automobile accident on May 29, 2003. He complained of pain in his lower back, shoulders, knees and neck, and sought treatment. Because he was subject to the lawsuit threshold, in order to sustain his damages claim, other than lost wages, it was necessary for him to prove a permanent injury by objective medical evidence. N.J.S.A. 39:6A-8(a). To this end, at the ensuing trial, plaintiff presented Dr. Nazra Haidri, a specialist in neurology and electromyography, who, although not plaintiff's treating physician, examined him at counsel's request.

As a result of his medical examination, Dr. Haidri found that plaintiff walked slowly due to pain and that his left shoulder movements were painful. Dr. Haidri also noted tenderness in plaintiff's neck muscles, "spasm of his lumbar paravertebral muscle," and "tenderness to percussion over his lumbar spine or low back."

In addition to his physical examination, Dr. Haidri also reviewed reports of an MRI and electromyography (EMG) test performed on plaintiff. According to Dr. Haidri, the MRI of plaintiff's lumber spine revealed a "right lateral disc protrusion . . . at L5-S1 and a small central disk [sic] protrusion at T12-L1." Dr. Haidri further explained that disc protrusions occur when the cushions between the vertebrae protrude after "there's damage to the outer tough part" of the disc. In this regard, the MRI report indicated a loss of signal from the L5-S1 and L2-L3 discs consistent with disc desiccation. Desiccation signifies a drying out of the disc, a degenerative condition which can be due to aging as well as trauma.

Dr. Haidri also noted that the EMG indicated "acute left L4-L5 radiculopathy," which he described as "a disease of the nerve root" "spinal nerves [that] come out between vertebrae." Although he said that radiculopathy can be acutely caused by trauma, Dr. Haidri also acknowledged other causes, such as diabetes, Lyme disease, Reye Syndrome, cancer, and other ailments.

Dr. Haidri diagnosed plaintiff with post-concussion syndrome, traumatic headaches, cervical and lumbar sprain, left shoulder injury, symptoms consistent with bilateral lumbar radiculopathy, and left knee injury. The expert opined that plaintiff's disc protrusions and radiculopathy were permanent "once the disk [sic] is damaged, that is permanent damage . . ." and caused by the May 29, 2003 car accident. He based the latter conclusion, in part, on the fact that plaintiff's past medical history was devoid of any such injury. According to Dr. Haidri, "[plaintiff] was completely healthy before the accident. He had no previous back injuries, he had no previous back pain. . . . So on the basis of the history and the tests, and the exam, it's my opinion that those protruded disks [sic] are related to the accident."

The defense presented Dr. Angelo Lopano, an orthopedic surgeon, who offered opposing expert opinions as to both permanency and causation. His physical examination of plaintiff, who walked well without a limp, revealed no tenderness or spasm in the cervical spine, dorsal/lumbar spine or neck, which had "very good motion," and tested normal; and no heat, redness, tenderness, fusion, or muscle atrophy in either the knees or shoulders, with both enjoying good range of motion.

Like Dr. Haidri, Dr. Lopano also reviewed the MRI films. The MRI of plaintiff's knee, taken two weeks after the car accident, showed no fracture, dislocation, or disruption of the soft tissue, and the images were consistent with soft tissue injury, a conclusion confirmed by Dr. Lopano's examination of plaintiff's left knee about ten months after the MRI, which indicated, as noted, good motion with no instability and no significant injury.

Dr. Lopano's review of the MRI of plaintiff's lumbar spine revealed a disc protrusion at L5-S1, consistent with the radiologist's report, which noted a disc protrusion at L5-S1 and a minimal disc protrusion at T12-L1. Further elaborating, Dr. Lopano explained that in reviewing images of plaintiff's lumbar spine, he found disc degenerative changes consistent with disc desiccation (or dehydration) particularly at L5-S1 with a protrusion at that level. According to Dr. Lopano, discs dry up with age and as the discs get drier they become thinner resulting in bulging. As the disc gets drier and thinner, it becomes a protrusion. Disc protrusions are particularly prevalent in individuals over forty and obese, like plaintiff. In fact, about six weeks after the accident, plaintiff was 100 to 110 pounds overweight.

In Dr. Lopano's opinion, the disc desiccation had to have begun prior to the car accident, as it develops over a period of four to six years. Nevertheless, Dr. Lopano could not opine to a reasonable degree of medical certainty that the actual protrusions of plaintiff's discs were present prior to the car accident. And while Dr. Lopano also acknowledged that obesity may predispose an individual to a back injury, he stated that obese persons more commonly suffer from spinal abnormalities, even absent a traumatic accident. As to whether a protrusion is a permanent injury, Dr. Lopano said that although the condition often is, it is not always or necessarily so.

Dr. Lopano rendered a diagnosis of pre-existing obesity, and an accident related soft tissue contusion to the cervical spine, neck, left shoulder, and left knee, which had clinically resolved, and lumbar sprain which remained unresolved at the time of the examination. Dr. Lopano attributed the latter to plaintiff's obesity, which, in his opinion, had delayed plaintiff's healing process. However, the expert anticipated that the "lumbar sprain" would eventually heal, and consequently concluded that plaintiff did not suffer a permanent injury. Regarding plaintiff's lower back specifically, Dr. Lopano concluded:

no significant irregularity; i.e., no significant findings of sciatica or permanent injury and the MRI which I reviewed did not demonstrate anything significant in that regard and the radiologist report did not demonstrate any significant irregularity. The radiologist describe[d] it . . . as a protrusion which is how I read it. . . . [M]y anticipation would be that if I saw the individual in a year, that he would get better.

At the close of evidence, plaintiff moved for the equivalent of judgment at trial, Rule 4:40-1, which was denied. Following deliberations, the jury returned a verdict awarding plaintiff the full extent of his claimed economic damages 21.5 weeks of lost wages but denying him damages for pain and suffering for not satisfying the lawsuit threshold. Plaintiff then moved post-trial for judgment notwithstanding the verdict, Rule 4:40-2, or in the alternative, for a new trial, Rule 4:49-1. The trial judge denied both motions, concluding:

it's very difficult under the law to overturn a jury verdict . . . you as a judge have got to say to yourself ["]you know what the jury did was just flat out wrong and just such an injustice that the parties are entitled to a new trial or one party is entitled to a verdict or a judgment.["] Unless I find that, there would be no real solid basis for me to grant your motion in this case or return a decision.

This appeal follows.

Motions for judgment at trial, Rule 4:40-1, and motions for judgment notwithstanding the verdict, Rule 4:40-2, are governed by the same standard as that of motions for involuntary dismissal, Rule 4:37-2(b), namely, whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment" in favor of the non-movant. R. 4:37-2(b); Dolson v. Anastasia, 55 N.J. 2, 5 (1969); Pressler, Current N.J. Court Rules, comment 1 on R. 4:40 (2010). In making this determination, "the court must accept as true all the evidence which supports" the party opposing the motion and "must accord that party the benefit of all legitimate inferences which can be deduced therefrom." Pressler, supra, comment 1 on R. 4:40 (citing Dolson, supra, 55 N.J. at 5-6). Therefore, "if reasonable minds could differ, the motion must be denied." Ibid.

In a lawsuit threshold case such as this, to qualify for non-economic damages, a plaintiff must prove a permanent injury has been sustained as a result of a motor vehicle accident. Davidson v. Slater, 189 N.J. 166, 186 (2007). For present purposes, an injury is considered permanent "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." N.J.S.A. 39:6A-8(a). Such a finding must be based on credible objective medical evidence. DiProspero v. Penn, 183 N.J. 477, 489 (2005); Serrano v. Serrano, 183 N.J. 508, 518 (2005).

Plaintiff argues on appeal that there is "no evidence" that could support a "finding that plaintiff did not suffer a permanent injury as a result of this accident." He contends that, based upon the testimony of both medical experts, there were "only two alternatives for the jury," namely that plaintiff suffered a permanent injury either solely from the accident, "or in combination with a pre-existing latent condition," and therefore under both scenarios, the permanent injury resulted from the May 29, 2003 motor vehicle accident. Defendant, on the other hand, maintains that the evidence reasonably supports a third alternative, namely that "the protrusions were not caused by the accident and had no impact on the injury sustained by plaintiff, and that the low back injury was nothing more [than] a non-permanent lumbar sprain, as testified to by Dr. Lopano." We agree with defendant.

Here, Dr. Lopano offered, as an explanation for plaintiff's lower back protrusions, his expert opinion that the normal aging process causes disc desiccation, which in turn leads to protrusions that are exacerbated by an individual's excess weight. The fact that Dr. Lopano did not state within a reasonable degree of medical certainty that plaintiff's protrusions did in fact pre-date the accident, does not preclude the jury from considering the opinion in its assessment of plaintiff's contrary medical proofs and whether plaintiff has met his burden of proving that the protrusions were caused by the car accident. In point of fact, Dr. Lopano's testimony offered the jury a sound basis to question and discredit Dr. Haidri's opinion as to both causation and permanency. Thus, confronted with differing expert opinions, the jury was obviously free to reject that of plaintiff's expert. Because, based on the record proofs, reasonable minds could differ as to either causation, permanency or both, a rational jury could find that plaintiff failed to prove that the automobile accident caused him to suffer a permanent injury, thus barring him from an award of economic damages under N.J.S.A. 39:6A-8(a).

For this very same reason, the court properly denied plaintiff's motion for a new trial. Such a motion is governed by Rule 4:49-1, which states, "[t]he trial judge shall grant the motion if, 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." On appeal, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

We, of course, defer to the trial judge with respect to "intangibles" not conveyed by the written record, such as credibility, demeanor, and "feel of the case," but otherwise make our own determination of whether a miscarriage of justice occurred. Dolson, supra, 55 N.J. at 6-8; Baxter v. Fairmont Food Co., 74 N.J. 588, 597-600 (1977); Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Pressler, supra, comment 4 on R. 2:10-1. In making this determination, we "must accept as true the evidence supporting the jury's verdict and all permissible inferences therefrom." Pressler, supra, comment 4 on R. 2:10-1 (citing Bell Atlantic Network Services, Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999); Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006)); Dolson, supra, 55 N.J. at 5.

Thus, accepting as true the evidence supporting the jury's verdict, the clear impact of Dr. Lopano's testimony is that plaintiff's disc protrusions, which are common in individuals of plaintiff's age and weight, pre-dated the car accident, as they develop over a long period of time. Moreover, the lumbar sprain that may have resulted from the accident was, in Dr. Lopano's expert opinion, neither a permanent injury, nor related to the pre-existing protrusions. Thus, we conclude that the jury's use of such evidence to discredit that offered by plaintiff, and to conclude he came up short of satisfying his burden of proof, was not a miscarriage of justice under the law.

 
Affirmed.

(continued)

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A-5282-07T3

November 10, 2009