DOROTHY LAMB v. ALLSTATE INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

DOROTHY LAMB,

Plaintiff-Appellant,

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Respondent,

and

CITY OF EAST ORANGE POLICE

DEPARTMENT,

Defendant.

July 23, 2013

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No.

L-5830-09.

Sherri Davis Fowler argued the cause for appellant (Bendit Weinstock, P.A., attorneys; Ms. Fowler, on the brief).

Kenneth N. Lipstein argued the cause for respondent (Frederic J. Regenye, on the brief).

Law Office of Jeffrey Randolph, LLC, attorneys for amicus curie The Association of New Jersey Chiropractors (Jeffrey P. Randolph, on the brief).

Seigel Capozzi Law Firm, attorneys for amicus curia The New Jersey Association for Justice (Edward P. Capozzi, on the brief).

PER CURIAM

In this automobile negligence case, plaintiff Dorothy Lamb appeals from the March 30, 2012 Law Division order granting defendant Allstate Insurance Company's motion for a directed verdict at the end of plaintiff's case. Plaintiff's claim for non-economic damages was subject to the "verbal threshold" provision set forth in N.J.S.A.39:6A-8, of the Automobile Insurance Cost Reduction Act, N.J.S.A.39:6A-1 to -35. Plaintiff contends that the trial judge erred in prohibiting her treating physician, a chiropractor, from testifying as to his interpretation of plaintiff's MRI films, even though his report gave no indication that he personally interpreted plaintiff's MRIs. Because we conclude that the judge's ruling on this issue did not constitute a mistaken exercise of discretion, we affirm the judgment of no cause of action entered by the trial court.

I

The subject accident occurred in Newark on July 28, 2008, when plaintiff's vehicle was rear-ended by an individual driving a stolen car.1 While plaintiff accompanied her two children to the hospital following the accident, she was not examined or treated. The following day, plaintiff did go to the hospital with neck and back complaints. One week later, she began treatment with a chiropractor, Dr. Stephen Levine, D.C. She informed Dr. Levine that she had a stiff neck, and sharp pains in her lower back that sometimes ran down part of her leg. Plaintiff received treatment from Dr. Levine three days per week from August through December 2008.

Dr. Levine prepared a report dated December 15, 2008. His report summarized a radiologist's report of the MRI studies of plaintiff's spine completed at Orange Community MRI on August 7, 2008. The finding of the cervical MRI was: "Loss of lordosis and bulging annulus at C7-T1" and the finding of the lumbar MRI was: "herniated disc at L4-L5 to the right side and bulging annulus at L3-L4." Dr. Levine's report stated that the MRI "reports have been reviewed and attached[,]" but provided no indication that he personally reviewed the MRI films and made a diagnosis based on such review.

During a pre-trial colloquy on March 5, 2012, the trial judge asked plaintiff's counsel who would read the MRI films at trial. Plaintiff's counsel indicated that she planned for Dr. Levine to interpret the MRIs. At that point, the judge gave plaintiff's counsel a chance to request an adjournment:

THE COURT: And you're sure you don't want to go across the hall and ask for an adjournment because you don't have a radiologist.

[PLAINTIFF'S COUNSEL:] Well, Your Honor Dr. Levine has testified before Judge Dumont in November 2011. I spoke to him. He has this class . . . [A]s far as he's concerned he's qualified to read [MRIs].

THE COURT: Counsel . . . I just want the record clear that I've given you the options. You have turned them down. We'll go from there. . . .

Because plaintiff's counsel wanted the judge to hear from Dr. Levine as to his qualifications, the judge decided to proceed with the trial and address Dr. Levine's qualifications to read MRI films at a N.J.R.E. 104 hearing, prior to his testimony before the jury. At the onset of the hearing, the judge questioned Dr. Levine regarding his report:

[THE COURT:] Doctor, before we even go there I've read your report. It doesn't say anything about you interpret[ing] these [MRIs] independently in this case. Did you independently interpret these [MRIs] or did you rely on the reports?

[DR. LEVINE:] I independently interpreted the [MRIs].

Following the hearing, the judge issued an oral decision barring Dr. Levine from testifying about his interpretation of plaintiff's MRIs. The judge found that Dr. Levine was unqualified to read and interpret MRIs. Additionally, the judge noted:

I also find it very questionable . . . that [Dr. Levine] ever independently interpreted the [MRIs] or advised anyone what his opinions were in that regard. His report couldn't be clearer. He summarizes the reports and says they are attached.

He never says I've independently reviewed these [MRIs] You know I agree with the radiologist for the following reason or I disagree with the radiologist for the following reason. And so that combined with the Court's view that Dr. Levine is not qualified as an expert to independently review these [MRIs] and opine that the causation of whatever condition is there and in fact whether the condition is consistent with a pathology such as degenerative disease.

Plaintiff's counsel immediately moved for reconsideration, which the judge denied, noting:

[T]he report[] of Dr. Levine does not give notice that he interpreted these [MRI] films. Indeed, the very reference to the [MRI] part of the report says that the Plaintiff was sent for [MRIs]. It then repeats what's said in the reports and then says these reports are attached.

There is not the slightest indication that he independently reviewed those [MRI] films to come to any conclusions.

The judge then permitted Dr. Levine to testify before the jury, but made clear he could not mention the MRIs. Following Dr. Levine's testimony, the judge heard defendant's motion for a directed verdict. The judge issued an oral decision granting defendant's motion, finding that without the MRIs, plaintiff was unable to vault the verbal threshold.2 Specifically, the judge found that after she determined Dr. Levine could not testify regarding the MRIs, "there's pretty much nothing left" in his report. The judge found that although the report contains objective evidence of degeneration, it contains no objective evidence of permanent injury.

This appeal followed. The Association of New Jersey Chiropractors (ANJC) and the New Jersey Association for Justice (NJAJ) separately filed amicus curiae briefs in support of plaintiff's appeal. Plaintiff does not dispute that without testimony interpreting plaintiff's MRIs, there was insufficient evidence to prove the permanency of her injuries, thereby warranting a directed verdict in favor of defendant. Thus, the sole issue on appeal is whether Dr. Levine should have been permitted to testify regarding his interpretation of plaintiff's MRIs.

II

Plaintiff's claims are subject to the "verbal threshold" which, pursuant to N.J.S.A. 39:6A-8(a) of the Automobile Insurance Cost Reduction Act (AICRA), allows a person, who is subject to the verbal threshold, to maintain an action for non-economic loss only if that person,

as a result of bodily injury arising out of the ownership, operation, maintenance or use of [an] automobile in this State . . . has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

The statute further provides; "An injury shall be 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." Ibid. To vault the threshold, a plaintiff must show, by expert opinion based on "objective clinical evidence," that she has suffered an injury enumerated in N.J.S.A. 39:6A-8(a). Davidson v. Slater, 189 N.J. 166, 181 (2007). The necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Ibid. (quoting N.J.S.A. 39:6A-8(a)).

In Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006), we ruled an MRI report may not be admitted into evidence under N.J.R.E. 703 without the testimony of a qualified physician to read the films. The plaintiff in Brun claimed injury to her back following a rear-end automobile accident. Id. at 412. She had cervical and lumbar MRIs completed, which were reviewed by a radiologist, who prepared a report, noting a disc bulge and herniation. Ibid. At trial, the defense moved to bar the plaintiff's treating physician, a chiropractor, from testifying about the MRI findings after it became evident that the plaintiff's neurologist would not testify. Id. at 414-15. The court ruled that a radiologist who was qualified to interpret the MRI films would first have to be called as a witness to testify. Id. at 415.

We agreed that the non-testifying expert's opinion, i.e., the MRI report, was inadmissible hearsay, because admitting the report without calling the author as a witness would deprive the defendants of their ability to cross-examine him on the central issue of the case, namely whether there was a herniation. Id. at 422. Nor did we view the report as substantively admissible under N.J.R.E. 703, noting 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 [the treating physician's] testimony." Id. at 421.

In Agha v. Feiner, 198 N.J. 50, 54 (2009), the Court reaffirmed that "testifying physicians could not establish the substance of the contested MRI" unless the expert was "qualified to interpret an MRI[.]" Similar to Brun, the only objective evidence of permanency was the MRI report of disc herniation, which the defense neuroradiologist disputed. Id. at 58. Over the defendants' objections, the plaintiff's treating physicians, a chiropractor who was not qualified to interpret an MRI and an anesthesiologist who, although capable, did not review the films, were permitted to testify, based on the MRI report, that the plaintiff suffered a disc herniation. Id. at 53. The defense's requests for a limiting instruction were denied, N.J.R.E. l05, as was their motion to dismiss for the plaintiff's failure to satisfy the permanency threshold, and the jury returned a verdict in the plaintiff's favor. Id. at 53-54.

We reversed, reasoning that the plaintiff had "'bootstrapped' the contested MRI report findings into evidence through the testimony of the treating physicians in violation of established law." Id. at 54. We noted that production of a qualified witness regarding the MRI was particularly important because the defense's expert was subjected to a thorough cross-examination regarding his conclusions while the plaintiff was able to present the MRI report to the jury "free from attack." Id. at 59. We reversed and remanded, with instructions to enter judgment in the defendant's favor on the basis the plaintiff failed to sustain his burden of proving permanency. Id. at 58.

The Supreme Court affirmed our evidentiary ruling but determined that a new trial was warranted, rather than dismissal, because the trial judge's rulings led the plaintiff to believe he did not have to call the author of the MRI as a witness. Id. at 54.

"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Thus, we are "not permitted to create anew the record on which the trial court's admissibility determination was based." Ibid.

Expert reports are governed by Rule 4:17-4(e), which provides, inter alia, "[t]he report shall contain a complete statement of [the expert's] opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness . . ." A trial court may limit an expert's testimony to the opinions expressed in his or her report. Velazquez v. Jiminez, 336 N.J. Super. 10, 45 (App. Div. 2000), aff d, 172 N.J. 240 (2002). However, the court should permit the expert to logically expound on the conclusions reached in the report. Ibid.

Although a trial judge is given wide discretion in determining the appropriate sanction for breach of the discovery rules, the sanction must be just and reasonable. A judge is strongly urged to suspend the sanction of exclusion when certain factors are present: (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from admission of the evidence.

[Id. at 45-46 (internal quotation marks and citations omitted).]

Here, only the first of the three factors was present, in that the record contains no evidence that plaintiff's counsel attempted to mislead either defense counsel or the court by having Dr. Levine testify regarding his interpretation of the MRIs. The second factor, however, was not present. The record shows that it was a surprise that Dr. Levine was going to testify regarding the MRIs. His report did not fairly place defendant on notice that he personally interpreted the MRIs. Finally, the third factor was not present. Although defendant had an expert, it did not have an expert prepared to attack Dr. Levine's credibility on reading and interpreting MRIs. Moreover, defense counsel indicated that she was unprepared to cross-examine Dr. Levine on his interpretation of plaintiff's MRIs. See Graham v. Gielchinsky, 126 N.J. 361, 367 (1991) ("advance knowledge through pretrial discovery of an expert witness's basis for his opinion is essential for effective cross-examination") (internal quotation marks and citation omitted).

Plaintiff argues that the trial judge did not bar Dr. Levine's testimony about the MRIs because it exceeded the scope of his expert report. We disagree, as the record directly contradicts plaintiff's argument. A close reading of the judge's oral decision reveals that she prohibited Dr. Levine from testifying as to his interpretation of plaintiff's MRIs for two reasons: the inadequacy of Dr. Levine's report and the resulting unfair surprise to the defense, as well as her finding that he was not qualified to interpret MRIs based upon his very limited training.

Because the record strongly supports the judge's determinations regarding the deficiencies in Dr. Levine's report, and the prejudice to the defense if Dr. Levine had been permitted to testify as to the results of the MRIs, we choose to affirm on that basis. We therefore decline to address whether the expert was qualified to read and interpret the MRIs.

Affirmed.

1 Plaintiff filed the subject claim under the uninsured motorist coverage of her own policy since the stolen status of the rear-ending vehicle rendered it uninsured. At trial, defendant stipulated liability.

2 N.J.S.A. 39:6A-8.