NIVEDITHA MARPAKA v. BHAILALBH M. PATEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NIVEDITHA MARPAKA, and

MARUTHISR MARPAKA, her

husband,

Plaintiffs-Appellants,

v.

BHAILALBH M. PATEL,

Defendant-Respondent.

________________________________

January 10, 2017

Submitted December 19, 2016 Decided

Before Judges Sabatino and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-437-13.

Bendit Weinstock, P.A., attorneys for appellants (K. Raja Bhattacharya, on the briefs).

Purcell, Mulcahy, Hawkins, Flanangan & Lawless, LLC, attorneys for respondent (Rita F. Barone, of counsel and on the brief; Danielle H. Bohlen, on the brief).

PER CURIAM

This is an appeal from a no-cause verdict in an automobile negligence case. Plaintiff1Niveditha Marpaka was involved in a motor vehicle accident on Route 27 in Franklin Township on March 19, 2011. Defendant Bhailabh M. Patel drove the vehicle that struck plaintiff's vehicle. Defendant's liability for negligently causing the accident was stipulated and, hence, the sole issues for trial concerned plaintiff's proof of damages.

Plaintiff is subject to the lawsuit limitation codified at N.J.S.A.39:6A-8(a), commonly known as the "verbal threshold." Because of that statutory requirement, plaintiff had the burden of proving by objective proof at trial that she sustained from the accident "a permanent injury within a reasonable degree of medical probability" in order to recover any non-economic damages. Ibid.; see also DiProspero v. Penn, 183 N.J.477, 480-81 (2005). For purposes of the verbal threshold, "[a]n 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.

Plaintiff contended that she had suffered permanent injuries to her neck, back, left upper arm, left wrist and thumb, and knees. Defendant disputed that contention, asserting that injuries to plaintiff's spine in particular were caused by degeneration that preceded the accident, and also that her injuries were not objectively shown to be severe or permanent. The parties presented competing expert testimony on these matters from orthopedic physicians who examined her, Dr. Beacon for plaintiff2and Dr. Robert J. Bercik for the defense.

During the course of Dr. Beacon's expert testimony for plaintiff, he was asked if he would render his opinions in accordance with a reasonable degree of medical certainty or probability. Although we lack a transcript with his exact words, Dr. Beacon apparently expressed his understanding of that "reasonable degree" concept to mean that there was a greater than fifty percent chance that the opinions he was rendering were correct.

Later on, during the defense case, Dr. Bercik was likewise asked about the concept of reasonable degree of medical certainty or probability. The transcript of his testimony reflects that he expressed that concept in the following manner

Q Now, doctor, we're going to go through your reports in this case and you're going to issue some opinions in this case at some point in time. I just want to get this out now. You can issue those opinions within a reasonable degree of medical certainty or probability?

A Yes.

Q And if they aren't, you'll tell us?

A Yes.

Q And Dr. Beacon, who is plaintiff's expert in this case, he gave a definition of reasonable degree of medical certainty, basically, indicating that he believed a greater than 50/50 chance of his opinions being probable is what I caught. What is your definition of within a reasonable degree of medical probability or certainty?

A My understanding is that, if you give an opinion, that more doctors would agree to that opinion than disagree with it, and so more doctors would be supportive of that opinion than against it, and so that's my understanding of what a reasonable degree of medical certainty is.

[(Emphasis added).]

After both sides rested, defense counsel moved to strike Dr. Beacon's expert testimony, contending that his expressed understanding of the concept of "reasonable degree of medical probability or certainty" did not comport with the requirements of law. Plaintiff argued that Dr. Beacon's understanding was proper, and cross-moved to strike Dr. Bercik's expert testimony because he instead allegedly misstated the concept. Both sides claimed that the respective opposing expert's stated definition did not comport with the meaning of "reasonable degree of medical probability" set forth in Schrantz v. Luancing, 218 N.J. Super. 434 (Law Div. 1986), a case in which the trial court struck a medical expert's testimony because that expert showed that he lacked a proper understanding of the concept.

The trial judge denied both the motion to strike Dr. Beacon's testimony and the cross-motion to strike Dr. Bercik's own opinions. As we observed in Eckert v. Rumsey Park Assocs., 294 N.J. Super. 46, 51 (App. Div. 1996) (quoting Aspiazu v. Orgera, 205 Conn. 623, 535 A.2d 338, 343 (Conn. 1987)), and as the trial judge in the present case noted, it is not necessary for a testifying expert to use the "'talismanic' or 'magical words' represented by the phrase 'reasonable degree of medical certainty.'" Instead, to admit the expert's testimony, a court only needs to be "persuaded that 'the doctor was reasonably confident of the relationship between the plaintiff's injury and [her] . . . diagnosis and treatment.'" Ibid. The judge also recognized that physicians generally form their opinions in medical terms, rather than legal terms, because they are "not trained as lawyers."

With specific reference to Dr. Beacon, the judge first noted that the expert had simply "volunteered" the definition of reasonable degree of medical certainty and had not been asked by counsel to define it. The judge further concluded that the meaning that Dr. Beacon ascribed to the concept was satisfactory, and that his expert opinion could appropriately be considered by the jury. Defendant has not cross-appealed that ruling.

As to Dr. Bercik, the trial judge likewise concluded that his expressed understanding of "reasonable degree of medical certainty or probability" was sufficient to enable the jury to consider his professional opinions. The judge stated that the jurors would need to decide which of the two testifying doctors was "more believable[.]"

During her closing argument, defense counsel returned to this subject. She suggested that Dr. Bercik's understanding of the concept of "reasonable degree of medical probability" was more persuasive than how Dr. Beacon explained the concept

The other issue is how Dr. Beacon frames his opinion. Again, your memory of how -- of what happened here controls. But I heard Dr. Beacon say that when he was asked whether or not his opinions would be within a reasonable degree of medical probability, he turned and he said, yes, and he said, that means that there's a greater than 50/50 chance that what I'm saying is probable. I'm not so sure I like those odds, but you can take that for what it is.

But what Dr. Bercik said was that more physicians than not would agree with what I have to say here. That's a medical opinion. That's an expert medical opinion, sort of like four out of five dentists in the commercials that we see, not that there's a greater than 50/50 chance of what he's saying to be true. That -- I think [Dr. Beacon] was equating it with plaintiff's burden of proof.

[(Emphasis added).]

The jury returned a verdict for defendant, finding that plaintiff had not met her burden of proving that her injuries from the accident vaulted the verbal threshold. This appeal ensued.

Plaintiff makes two related arguments in her briefs: (1) the trial court erred in declining to strike the defense expert Dr. Bercik's testimony because he misunderstood and misstated the "reasonable degree of medical certainty or probability" standard in rendering his opinions; and (2) defense counsel's remarks during her closing argument on this topic were inappropriate and unduly prejudicial, thereby entitling plaintiff to a new trial. We disagree.

The concept of "reasonable degree of medical probability or certainty" is not defined in Title39, nor in any Rule of Court. As the Law Division judge who authored Schrantz described it after consulting case law from other jurisdictions, "[r]easonable medical probability or certainty refers to the general consensus of recognized medical thought and opinionconcerning the probabilities of conditions in the future based on present conditions." Schrantz, supra, 218 N.J. Super. at 439 (emphasis added) (citing Boose v. Digate, 107 Ill. App. 2d 418, 246 N.E.2d 50 (Ill. App. Ct. 1969)). A critical aspect of the concept is that the medical opinion testimony must be "couched" in terms of "probability" rather than mere "possibility." Johnesee v. Stop & Shop Cos., Inc., 174 N.J. Super. 426, 431 (App. Div. 1980). "[O]pinions as to possibility are inadmissible." Ibid.(citing Gribbin v. Fox, 130 N.J.L. 357, 359 (Sup. Ct. 1943) aff'd, 131 N.J.L. 187 (E. & A. 1944); In re Quackenbush, 156 N.J. Super. 282, 287 (Cty. Ct. 1978).

In Schrantz, the court rejected a medical expert's opinion testimony because he confused the concept of "reasonable degree of medical probability" with the concept of "accepted standards of medical practice" in treating a patient. Schrantz, supra, 218 N.J. Super. at 439. That is not the case here with respect to Dr. Bercik. He couched his understanding of "reasonable degree of medical probability" in terms of the likely consensus of doctors in the field, rather than relating the concept to substantive "standards of care" for medical treatment.

We discern no reversible error, nor any manifest injustice, in the trial court's allowance of the expert's testimony, given his phrasing of the concept. As the judge rightly noted, the concept does not require particular "magical words" that must always be invoked. See Eckert, supra, 294 N.J. Super. at 51. Nor did Dr. Bercik impermissibly express his opinions in terms of medical "possibilities" instead of "probabilities." He alluded to what he perceived to be the more accepted view within his profession rather than to a minority view. That is consistent with the "consensus" concept noted in Schrantz. We need not endorse the formulation of either expert in this case as a model, but are satisfied that neither misstated the basic notion.

We also reject plaintiff's second argument that the defense counsel in summation unduly prejudiced the jurors by arguing that Dr. Bercik's expression of the "reasonable probability" concept was superior to Dr. Beacon's formulation. Although we are unpersuaded that there is any meaningful difference in how the respective experts described the standard, we do not think counsel's remark was so prejudicial that it "clearly and convincingly appears that there was a miscarriage of justice under the law." SeeR. 4:49-1(a); see also Bender v. Adelson, 187 N.J.411, 431 (2006).

There is no contention by appellant or indication in the record supplied to us that plaintiff's counsel objected to this portion of the summation. Such inaction creates a presumption that the comment was not sufficiently prejudicial to warrant judicial intervention. Risko v. Thompson Muller Auto Grp., Inc., 206 N.J.506, 523 (2011). Moreover, even if an objection had been made, the court had the discretion to reject it and instead let the jurors evaluate the case, having been generally instructed to treat the remarks of counsel as mere argument and not evidence.

Lastly, we disagree with plaintiff's argument that Dr. Bercik's allusion to what "more doctors" would agree to than would disagree violates the embedded hearsay prohibitions in N.J.R.E.808 and this court's opinion in James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015). Unlike the non-testifying radiologist in James, no other doctors who treated or examined plaintiff were referenced in Dr. Bercik's generic comment. This is not akin to the situation in James, where counsel improperly attempted in summation to misuse the specific hearsay opinion of a non-testifying treating doctor essentially as a "tie-breaker." James, supra, 440 N.J. Super. at 77-78.

Affirmed.

1 Although the complaint asserts a per quod claim by the husband, Maruthisr Marpaka, for simplicity we shall use the term "plaintiff" in the singular to refer to his wife Niveditha Marpaka, who was physically injured in the car accident.

2 The parties have supplied this court, pursuant to an order, only with abbreviated transcripts from the trial proceedings. The supplied transcripts do not include Dr. Beacon's testimony, and do not identify his first name.