LYNN CALIMANO v. JOSEPH BRZYCHEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6101-08T1

LYNN CALIMANO,

Plaintiff-Appellant,

and

THOMAS CALIMANO,1

Plaintiff,

v.

JOSEPH BRZYCHEY,

Defendant-Respondent.

_______________________________________

September 8, 2010

Argued April 28, 2010 - Decided

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5675-06.

Matthew P. Pietrowski argued the cause for appellant(Levinson Axelrod, P.A., attorneys; Mr. Pietrowski, on the brief).

Kathleen S. Murphy argued the cause for respondent(Connell Foley, L.L.P., attorneys; Ms. Murphy, of counsel and on the brief).

PER CURIAM

Plaintiff, Lynn Calimano, appeals from a no cause jury verdict arising out of injuries she reportedly sustained following a motor vehicle accident. On appeal, plaintiff contends:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE OPINIONS OF NON-TESTIFYING DOCTORS AND THE CUM[]ULATIVE EFFECT OF THESE IMPROPER EVIDENTIARY RULINGS HAD A CLEAR CAPACITY TO RESULT IN AN UNJUST VERDICT.

POINT II

THE COURT'S REFUSAL TO ALLOW THE PLAINTIFF TO USE A DEMONSTRATIVE DIAGRAM OF HER SURGICAL PROCEDURE WAS IMPROPER AND RESULTED IN A MISCARRIAGE OF JUSTICE.

POINT III

THE TRIAL COURT'S REFUSAL TO MOLD THE JURY INSTRUCTION AS REQUESTED BY THE PLAINTIFF-APPELLANT WAS IMPROPER AND RESULTED IN A MISCARRIAGE OF JUSTICE.

POINT IV

THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF [THE] EVIDENCE AND RESULTED IN A MISCARRIAGE OF JUSTICE.

We have considered the points raised in light of the record, submissions and arguments of counsel, and we reject all of the arguments advanced and therefore affirm.

We recite only those facts from the record relevant to the issues before us. The accident occurred on December 7, 2004, when plaintiff was rear-ended by a van driven by defendant, Joseph Brzychey.2 Plaintiff claims that she injured her cervical spine as a result of the accident. This accident did not represent the first time plaintiff had sustained an injury to her cervical spine. In August 1997, plaintiff injured her neck in a roller coaster accident and, as a result, commenced treatment with a chiropractor. Then, in October 2002, plaintiff injured her neck while making her grandmother's bed when she "moved the wrong way." She underwent chiropractic treatment, but the treatment did not alleviate her pain. She then commenced treatment with a pain management physician, Dr. Shah Nagendra. She treated with Dr. Nagendra from November 2002 until approximately May 2004. At that time, she felt essentially symptom-free. Following the December 7 motor vehicle accident, plaintiff resumed treatment with Dr. Nagendra eleven days later, but she experienced no relief from the various treatment modalities he performed, including injections. She then consulted with a neurosurgeon, Dr. Jay Moore, who recommended surgery, specifically a laminectomy and foraminectomy, which plaintiff underwent on June 7, 2005. While plaintiff experienced some relief from the surgery, she never returned to what she characterized as a symptom-free physical condition she was experiencing for the six months immediately preceding the December 2004 accident.

Plaintiff commenced an action in Superior Court to recover damages for the injuries she sustained as a result of the accident. Defendant's negligence was stipulated and the matter proceeded to jury trial solely upon the issue of damages. At the outset of the trial, plaintiff's counsel raised various in limine motions,3 including one to "bar the defendant from offering evidence relating to the opinions of Dr. Shan Nagendra, a non-testifying treating physician, contained in his March 1, 2003 report." Additionally, plaintiff's counsel sought to bar the "opinions of Dr. Ira Kasoff, a non-testifying PIP [(Personal Injury Protection)] examining doctor, contained in his reports to the no-fault insurance carrier regarding his comparison of MRI films." The court declined to rule on the in limine motions until after it heard the testimony of plaintiff's expert, Dr. Douglas Jay Spiel, who was proffered and qualified as an expert in radiology and interventional pain medicine.

During the direct examination of Dr. Spiel, he testified extensively about the treatment plaintiff received from Dr. Nagendra. When asked whether he reviewed Dr. Nagendra's records, Dr. Spiel responded, "Yes." When later asked, "[a]nd all of the records that you reviewed, did you review and rely on those records in coming to your opinions in court[,]" he stated, "I'd say I relied on the exams, the records, as well as her presentation."

Throughout Dr. Spiel's direct testimony, he read portions of Dr. Nagendra's records to the jury, including a "History of Present Illness" contained in a November 16, 2002 Pain Management Consultation, as well as Dr. Nagendra's diagnosis of cervical myofascial pain with radiculopathy, Dr. Nagendra's December 18, 2004 post-accident examination, and the doctor's report from plaintiff's "follow-up visit on 4/29/06." Dr. Spiel referenced and explained the various procedures Dr. Nagendra performed throughout the course of his treatment, specifically "cervical epidural injection," "radiofrequency lesioning," and "Botox injections."

Additionally, Dr. Spiel testified about the full examination Dr. Nagendra conducted on plaintiff on December 18, 2004, eleven days following the accident, and the doctor's impression that plaintiff suffered from "post-traumatic headaches, cervical spasmodic torticollis, cervical myofascial pain with possible cervical radiculopathy, lumbosacral myofascial pain."

Although the court had indicated that it wanted to hear from Dr. Spiel before ruling on plaintiff's counsel's in limine motion, at the conclusion of Dr. Spiel's direct examination, plaintiff's counsel did not seek a ruling from the court as to whether Dr. Spiel could be questioned about Dr. Nagendra's March 1, 2003 report. Cross-examination proceeded and defense counsel confronted Dr. Spiel with the March 1, 2003 report in which Dr. Nagendra described plaintiff's complaints at that time, and the MRI test results that revealed "disk herniation at C 3/4 and disk bulge[s] at [C] 4/5, 5/6 and 6/7[.]"

In addition to confronting Dr. Spiel with Dr. Nagendra's March 1, 2003 report, defense counsel also questioned Dr. Spiel about the findings of a neurosurgeon, Dr. Ira Kasoff, who authored a report dated May 17, 2005. Dr. Spiel testified that he had not previously seen the report, but indicated that if the report "was provided to me I would look at it, sure." When confronted with Dr. Kasoff's opinion that there essentially had been no change in the post-accident MRI studies from the prior MRI studies going back to 2002, Dr. Spiel testified that he disagreed with this opinion.

Over objection from plaintiff's counsel, the references to Dr. Nagendra's March 1, 2003 report continued during the direct examination of defendant's expert, Dr. Robert Bercik, who expressed the opinion that there were no changes in plaintiff's injuries based upon his review of plaintiff's medical records, including the 2001 and 2004 MRI films. He indicated that he agreed with Dr. Nagendra's March 1, 2003 report, as well as the opinion expressed by Dr. Kasoff.

At the close of the testimonial evidence, plaintiff's counsel sought to exclude Dr. Nagendra's March 1, 2003 report and any corresponding testimony. Counsel argued that the report "suggests legal and medical conclusions. Those conclusions or statements are not made for the purpose of medical treatment, not made for the purpose of diagnosing medical treatment, not made to discuss findings on an examination, [and] not made to record complaints of a patient to a doctor." Citing State v. Alexander, 7 N.J. 585, 598 (1951), cert. denied, 343 U.S. 908, 72 S. Ct. 638, 96 L. Ed. 2d 1326 (1952), counsel added, "it's an opinion of a non-testifying doctor[] that Dr. Bercik doesn't even rely on." Counsel also argued that the opinion in Dr. Nagendra's report was not given within a reasonable degree of medical probability. She moved for a mistrial on the basis that Dr. Nagendra's report was mentioned in defendant's opening and elicited through the testimony of plaintiff and both parties' medical experts, but neither party called Dr. Nagendra to present his opinion.

Plaintiff's counsel also argued that the introduction of Dr. Kasoff's report was improper. She explained that it was a PIP independent medical examination (IME) scheduled by the insurance company and Dr. Kasoff only "saw [plaintiff] for about four minutes or so . . . [and] looked at the films for less than two minutes in the sunlight." Plaintiff's counsel argued defense counsel improperly asked Dr. Spiel to focus on Dr. Kasoff's opinion, which went to the ultimate issue in this case. She explained "[h]is opinion is now before the jury. Again, it can't be cross[-]examined. And it's an opinion given by an insurance company doctor that was ignored by the insurance company who hired him . . . ." Counsel requested a curative instruction to the jury explaining that Dr. Kasoff "was hired for the purpose of determining whether surgery was necessary. His opinion was ignored by the people who hired him and the surgery was paid for by her [automobile] insurance company."

The court found that the testimony regarding Dr. Nagendra's report was admissible on the basis that Dr. Spiel stated on direct examination that he had "relied on all of the records" in reaching his ultimate conclusion and "testified on direct as to other findings of Dr. Nag[e]ndra that he found were helpful to the cause." The court concluded that the testimony about the report would stand, the court would not declare a mistrial on that basis, and it would not give a curative instruction. Regarding the IME report, the court explained that it had been prepared to exclude the testimony until Dr. Spiel opened the door by stating it would have been helpful to him to review a report from a neurosurgeon. Based upon this ruling, the court declined to give a curative instruction.

I.

A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in admitting or excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

The purpose of the rule is to permit more latitude in the admission of expert opinion testimony. See Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 284 (1990). The latitude accorded to an expert testifying pursuant to this rule permits disclosure to the jury of "all the materials, including films, test results, hospital records, and other experts' reports, on which [the expert] relied" in formulating the expert opinion. Agha v. Feiner, 198 N.J. 50, 62 (2009).

To the extent N.J.R.E. 703 allows an expert to put before the jury the hearsay opinions of non-testifying experts in order to explain the underlying facts upon which an expert opinion is based, N.J.R.E. 705 permits a party to challenge an expert's opinion on cross-examination by confronting the witness with otherwise inadmissible hearsay opinions of non-testifying experts provided the expert has testified that there was reliance upon the opinion of the non-testifying in formulating the expert opinion. State v. Farthing, 331 N.J. Super. 58, 79-80 (App. Div.), certif. denied, 165 N.J. 530 (2000).

This is precisely what occurred here. Dr. Spiel testified that he relied upon all of the records he reviewed in formulating his opinion, including those of Dr. Nagendra. He provided extensive testimony related to Dr. Nagendra's findings and opinions related to the doctor's treatment of plaintiff prior to and subsequent to her accident. Thus, defense counsel properly confronted Dr. Spiel with the March 1, 2003 report, the lone report amongst the treatment records of Dr. Nagendra that plaintiff sought to preclude. In essence, plaintiff sought the selective use of only those reports of Dr. Nagendra that were favorable to her position and to prevent the jury from consideration of a report plaintiff apparently found unfavorable to her position. Because Dr. Spiel, on direct, unequivocally testified that he relied upon Dr. Nagendra's records in formulating his opinion, the court did not abuse its discretion in permitting defense counsel to confront Dr. Spiel with Dr. Nagendra's March 1, 2003 report.

Turning to Dr. Kasoff's report, Dr. Spiel testified that he had not seen or relied upon Dr. Kasoff's opinion in formulating his opinion. We agree that Dr. Kasoff's opinion, as a non-testifying witness, should not have been presented before the jury. We do not, however, conclude that permitting the jury to hear that Dr. Kasoff found no change between the pre- and post-accident MRI's, an opinion with which Dr. Spiel testified he disagreed, resulted in a miscarriage of justice. Dr. Kasoff's opinion would have been separately admissible as an opinion confirming the opinion Dr. Bercik reached regarding the MRI studies. See Blanks v. Murphy, 268 N.J. Super. 152, 163-64 (App. Div. 1993) (noting that "[t]here is no material distinction between an expert's relying on hearsay data to formulate an opinion and his relying on the same data to confirm an opinion which he has already reached").

Finally, citing Aqha, plaintiff advances the additional argument that "no limiting instructions regarding the jury's use of the evidence was provided." The Court in Aqha reiterated that consistent with our court rules, upon request, a limiting instruction should be given where evidence admitted for one purpose is inadmissible for another purpose. Aqha, supra, 198 N.J. at 63; see also N.J.R.E. 105 ("When evidence is admitted . . . for one purpose but is not admissible . . . for another purpose, the judge, upon request, shall restrict the evidence to its proper scope and shall instruct the jury accordingly[.]" In a footnote, the Court urges that "[e]ven in the absence of a request, the judge should give a limiting instruction sua sponte where it is necessary to avoid an unjust result." Id. at 64 n.7. Even though plaintiff presented substantial hearsay evidence from non-testifying witnesses, in particular, Dr. Nagendra, on balance, we cannot conclude that the court's failure to give a limiting instruction related to the hearsay evidence contained in Dr. Nagendra's March 1, 2003 report and Dr. Kasoff's May 17, 2005 report led to an unjust result.

II.

The remaining arguments advanced by plaintiff in Points II through IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

A.

Plaintiff claims the court's ruling disallowing the use of demonstrative evidence to explain her surgery was unduly prejudicial. A visual aid is a model, diagram or chart used by a witness to illustrate his or her testimony and facilitate jury understanding. Macaluso v. Pleskin, 329 N.J. Super. 346, 350 (App. Div.), certif. denied, 165 N.J. 138 (2000). There is nothing inherently improper in the use of demonstrative evidence. State v. Scherzer, 301 N.J. Super. 363, 434 (App. Div.), certif. denied, 151 N.J. 466 (1997). A party is permitted to use demonstrative evidence when it will aid the jury in understanding the case. Cross v. Robert E. Lamb, Inc., 60 N.J. Super. 53, 74 (App. Div.), certif. denied, 32 N.J. 350 (1960).

Plaintiff underwent surgery performed by a neurosurgeon, which Dr. Spiel is not. He acknowledged that although he has seen surgeries, he has never observed the particular surgery performed upon plaintiff. We find no abuse of discretion in the court's ruling disallowing the use of the demonstrative diagram of plaintiff's surgery.

B.

Plaintiff contends the court erred when it declined to explain to the jury that a "substantial cause does not have to be the only cause," just a "substantial contributing factor to the harm suffered." The court gave the standard charge, stating "you must find that this accident was a substantial factor in bringing about the resulting injuries. By substantial, I mean that the cause is not remote, trivial, or inconsequential." We are satisfied the court properly clarified that a substantial cause need only be "a" cause and not "the" cause. Camp v. Jiffy Lube #114, 309 N.J. Super. 305, 309-11 (App. Div.), certif. denied, 156 N.J. 386 (1998). Since the court did use the term "a substantial factor" and explained that the cause must not be trivial, the charge was accurate. Ibid. No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate. State v. Thompson, 59 N.J. 396, 411 (1971).

Plaintiff also argues that the court erred in failing to give a jury instruction explaining that defendant's death was unrelated to the trial and should not be considered in their deliberations or verdict. Instead, the court charged the jury that their oath as jurors

requires you to decide this case fairly and impartially, without sympathy, passion, bias, or prejudice. . . .

Sympathy is an emotion that is normal from a human being. No one can be critical of you for feeling some degree of sympathy in this matter. However, that sympathy must play no part in your thinking and in the decision that you reach in the jury room.

The court explained to counsel during its charge conference that it did not want to highlight defendant's death. We conclude that the court did not err in declining to give the requested instruction.

C.

At the hearing on plaintiff's motion for a new trial, counsel argued that the March 2003 report of Dr. Nagendra should not have been considered at trial because of the strict hearsay rules and the fact that it was not a business record as in Nowacki v. Community Medical Center, 279 N.J. Super. 276, 282-83 (App. Div.), certif. denied, 141 N.J. 95 (1995). Counsel also relied on N.J.R.E. 808, stating that "interpretations of MRIs and disk pathologies" are "complex diagnoses . . . and a physician cannot, even if he relies on that documentation, set forth the impressions or diagnoses, or causation of those documents." The court interjected that plaintiff's expert, Dr. Spiel, had "opened the door" to the introduction of Dr. Nagendra's report. Counsel also referred to Dr. Kasoff's report as "multiple levels of hearsay" because it was "a report containing the impressions of an MRI that he relays in a litigation report. . . . an out-of-court report" by a non-testifying doctor who could not be cross-examined.

The court incorporated its rulings made at trial into its decision to deny plaintiff's motion for a new trial, specifically regarding the jury charges and the plaintiff's demonstrative evidence. The court found that Dr. Spiel had stated at trial that he had "relied on all of the records" of Dr. Nagendra. Regarding the report of Dr. Kasoff, the court noted how Dr. Spiel, to the surprise of plaintiff's counsel and the court, allowed himself to be questioned on Dr. Kasoff's report.

In ruling on a motion for a new trial, the trial judge considers "not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility," particularly those generally considered by the jury. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). "The standard governing an appellate tribunal's review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge." Id. at 7.

"The trial court's ruling on [] a motion [for a new trial] shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. In determining whether a miscarriage of justice has occurred, we defer to the trial court the "intangibles" of the case, including credibility and the general feel of the case, but make our own independent determination of whether a miscarriage of justice has occurred. Kimmel v. Dayrit, 301 N.J. Super. 334, 355 (App. Div.), aff'd in part and modified in part, 151 N.J. 465 (1997).

Here, irrespective of the admission of Dr. Nagendra's opinion of the condition of plaintiff's cervical spine in 2003 and Dr. Kasoff's opinion that the pre- and post-accident MRI studies were essentially the same, there was substantial evidence placed before the jury related to prior injuries to her cervical spine. Although plaintiff testified that the injury to her cervical spine was a "new" injury, her own expert expressed the opinion that the accident could have "worsened the pathology within her neck."

As the trial court instructed the jury in its charge, plaintiff was not entitled to an award of "any money in this case for damages attributable solely to any pre-existing condition." The jury, based upon the evidence before it, could have reasonably concluded that any "new" injury plaintiff sustained from the accident was not permanent or, alternatively, that all of the claimed injuries related to her cervical spine pre-existed the December 7, 2004 accident. Consequently, no miscarriage of justice occurred in the verdict reached by the jury.

Affirmed.

1 Thomas Calimano's per quod claim was waived after the filing of the complaint.

2 Also referred to as John throughout the appellate record.

3 No transcript of the in limine motions has been included as part of the record on appeal. According to defense counsel's colloquy with the court during plaintiff's motion for a mistrial, these motions were argued "in conference" and "at sidebar."