KATHERINE UNDERHILL v. AYSHA HAMOUDA

NOT FOR PUBLICATION WITHOUT THE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

KATHERINE UNDERHILL,

Plaintiff-Appellant,

v.

AYSHA HAMOUDA,

Defendant-Respondent,

and

GREGG NOLAN,

Defendant.

January 3, 2017

Argued December 1, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0052-12.

Joseph F. Trinity argued the cause for appellant (Trinity & Farsiou, LLC, attorneys; Mr. Trinity, on the briefs).

Todd C. Landis argued the cause for respondent (Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Mr. Landis, on the brief).

PER CURIAM

A jury found defendant Aysha Hamouda's negligence was not the proximate cause of plaintiff Katherine Underhill's back injury. During the trial, the court allowed defendant's expert to testify "natural degeneration" caused plaintiff's back problems. Plaintiff argues the court should not have allowed the expert's testimony because he had not reviewed plaintiff's medical records since he examined plaintiff five months after the accident. Plaintiff also argues the record does not support the jury's verdict. We discern no trial court error, either in allowing defendant's expert to testify or in denying plaintiff's motion for a new trial. We affirm.

I.

On March 1, 2010, plaintiff stopped her car because a school bus had stopped to allow children to board in front of her. Defendant saw plaintiff's stopped car when defendant was only fifteen or sixteen feet away. Defendant "press[ed] hard on the brake," but she still crashed into the back of plaintiff's car. The trial court admitted photographs of the scene into evidence. Plaintiff's car seat dislodged from the force of the collision. The record does not state plaintiff's or defendant's airbag deployed. Plaintiff requested an ambulance take her and her seventeen-year-old daughter to the hospital. Plaintiff "felt a little whiplash" and "back, neck and chest pain." The hospital prescribed muscle relaxers and painkillers and then discharged her.

On August 22, 2012, defendant's expert physically examined plaintiff and reviewed her relevant records. He reviewed additional relevant records on August 22, 2013. The records included (1) plaintiff's answers to interrogatories, stating she underwent "chiropractic treatment for a pulled muscle in the back beginning either in December of 2009 or January of 2010," (2) the March 1, 2010 police report, (3) plaintiff's records from the emergency room on March 1, 2010, including x-rays and a doctor's primary evaluation, (4) x-rays from August 9, 2010, (5) an MRI from August 27, 2010, (6) x-rays from June 23, 2011, and (7) records from Kessler Rehabilitation, dated October 16, 2012.

Defendant's expert concluded plaintiff's back problems were "degenerative in nature primarily, and while the motor vehicle accident may have a component in their progression, [the records are] consistent with axial back pain without specific radicular component or finding consistent with a lumbar radiculopathy secondary to disc herniation." He further determined, "[Plaintiff's] examination is not consistent with lumbar radicular pattern and while the disc herniations, I feel, are part of this injury, the finding of examination was consistent with a pre-existing degenerative spine and a hyperextension strain." His prognosis was "[h]er complaints will remain ongoing as noted and the examination will remain ongoing consistent with her degenerative condition."

Before jury selection, plaintiff moved to preclude defendant's expert from testifying about the cause of her back problems. Plaintiff's counsel argued defendant's expert had not reviewed plaintiff's medical records after October 16, 2012, so "[h]e has no idea with respect to the progression of what he thinks is degeneration since 2010, maybe [2011], there may have been some records there, until 2015. So, by definition he can't do the [comparative Polk1] analysis."

Defense counsel argued Polk held, "When a plaintiff alleges aggravation of pre-existing injuries as the animating theory of the claim, then a plaintiff must produce competent comparative evidence to forward the causation element of the tort element." "[I]t's a plaintiff burden for a plaintiff expert." The expert "can certainly testify within the four corners of his reports to . . . what records he reviewed, his examination of the plaintiff, and his opinions at the time that he issued his reports."

The next day, the court denied plaintiff's motion. The court said plaintiff could cross-examine defendant's expert "on the various tests that he did not review and did not comment on." The court explained, "[I]t's very clear from his report that he offered an opinion and wrote two reports based upon the objective medical data that was made available to him and that he chose to review prior to issuing his first report of August 22, 2012." The court also noted defendant's expert

compared the degenerative disc findings that were in the objective medical reports which [plaintiff's expert] also concedes existed, . . . with whatever post[-]accident causative findings there were, and it is a little unclear what [defendant's expert] finds were post[-]accident findings, and he concludes that her complaints are pretty much related to the degenerative disc condition that pre-existed.

The court therefore concluded defendant's expert "did a comparative analysis."

Before the testimony of defendant's expert, plaintiff moved for a directed verdict on defendant's liability because she did not "expect [him] to testify regarding liability." The trial court reserved the motion.

During the testimony of defendant's expert, defense counsel asked, "[D]oes the MRI in front of us indicate what you would expect to see from a trauma or from a natural degeneration?" The expert said, "I think it represents in this case natural degeneration . . . ." Defense counsel later asked, "As far as the degeneration, would you expect degeneration to show up five months after a traumatic event?" He replied, "Not not to this degree, no. And not to the degree of [the] X-ray." Defense counsel then asked, "Doctor, based upon the history you got from [plaintiff], the diagnostic testing you reviewed, and your examination of [plaintiff], did you come to any conclusions and opinions?" He replied, "I felt it was mostly degenerative without a significant traumatic component."

Plaintiff's counsel then objected when defense counsel asked, "I want you to just assume for a moment that there was testimony in this case that [plaintiff] may require a surgical intervention at some point in the future. Based upon the records you reviewed and your examination of [plaintiff], would you have any opinions on that?" Plaintiff's counsel repeated his arguments against the testimony of defendant's expert, adding

And that's not fair to me, for him to be able to get an opinion that there is no surgery needed on an incomplete record.

. . . .

It is completely unfair. I should have that answer I should have that answer six months ago. I should have been able to prepare a response to that. I have no idea what he is going to say. That is not fair. It is surprise.

The trial court overruled the objection, concluding "the issue comes down to whether or not the question that has been posed by [defense counsel] is beyond the four corners of the doctor's report. And as phrased, it is." The court nonetheless held,

[I]t's a fair conclusion from the statement in his report to ask him the question of whether he has an opinion, again based upon what he reviewed and the reports that he considered, whether or not . . . it's likely that she will need surgery, or however you want to phrase a an appropriate question . . . .

The court explained, "At trial an expert's opinion may be confined to the opinions given in the report but the logical predicates for and the conclusions from statements made in the report are not foreclosed."

Defense counsel then asked the expert, "Now, doctor, based upon your examination of [plaintiff], and based upon the medical documentation and the diagnostics that you reviewed, do you have any opinions as to whether or not [plaintiff] is likely to need any sort of surgical intervention in the future?" He replied, "I could see it potentially in the future related to the degenerative 4-5 spondylolisthesis. I don't see it related to the motor vehicle accident." Defense counsel then asked, "And as we discussed, doctor, the degeneration was something that would have preexisted March of 2010, correct?" The expert said, "Yes, sir."

Later that day, the trial court granted plaintiff's motion for a directed verdict on defendant's liability. The court clarified its earlier ruling. It said, "[T]hese facts are different and distinguishable from both [Davidson] and the [Polk] case because . . . this was one of these cases where there wasn't any pre-existing medical evidence. There were no prior pre-accident MRI's to interpret or X-rays that I recall hearing about."

I think . . . both doctors . . . did their best to determine what type of injury or condition preexisted the accident, and what was related to the accident, and they did that by using their medical knowledge and expertise to study the objective tests that were performed. And they draw . . . somewhat different conclusions but they each drew conclusions and formed opinions based upon their comparison of what they believe to have been pre-accident injury or conditions such as degeneration and/or . . . arthritis as opposed to disc herniation or other trauma that they . . . associated with the accident.

The jury subsequently found defendant's negligence was not the proximate cause of plaintiff's back problems. The trial court consequently issued a "judgment of 'no cause' for defendant." Plaintiff filed a motion for a new trial on damages, which the trial court denied. Plaintiff now appeals, challenging the court's admission of the expert's testimony on the cause of her back problems and the sufficiency of the evidence supporting the jury's verdict.

II.

Rule 4:49-1 requires a "trial judge [to] grant [a] motion [for a new trial] 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." "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (citation omitted), certif. denied, 186 N.J. 242 (2006). That rigorous "standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence" or "based upon a contention that the judge's initial trial rulings resulted in prejudice to a party." Hill v. N.J. Dep't of Corr. Comm'r Fauver, 342 N.J. Super. 273, 302 (App. Div. 2001) (citation omitted), certif. denied, 171 N.J. 338 (2002). "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict." Boryszewski, supra, 380 N.J. Super. at 391 (citation omitted).

The decision whether to grant a motion for a new trial is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (citation omitted).

The admissibility of expert testimony is also committed to the sound discretion of the trial court. Townsend v. Pierre, 221 N.J. 36, 52 (2015) (citing State v. Berry, 140 N.J. 280, 293 (1995)). A trial court's grant or denial of a motion to preclude expert testimony is entitled to deference on appellate review. Ibid. (citations omitted). We are instructed to "apply [a] deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Id. at 53 (second alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).

N.J.R.E. 702 and 703 frame our analysis for determining the admissibility of expert testimony. N.J.R.E. 702 identifies when expert testimony is permissible and requires the experts to be qualified in their respective fields. N.J.R.E. 703 addresses the foundation for expert testimony. Expert opinions must "be grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting Polzo, supra, 196 N.J. at 583). Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs "that experts 'be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net opinion rule is "a prohibition against speculative testimony." Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998)).

Experts are often key witnesses in automobile accident cases because the plaintiff bears the burden of showing the defendant's negligence was the proximate cause of the plaintiff's injuries. "[T]he issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. 'There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury,' and the resulting injury." Davidson v. Slater, 189 N.J. 166, 185 (2007) (citations omitted).

In Polk, we affirmed the trial court's dismissal of the plaintiff's claim because plaintiff "offered no objective medical basis whatsoever to substantiate plaintiff's complaints nor to causally connect these complaints to the accident rather than to plaintiff's serious preexisting prior medical condition." Polk, supra, 268 N.J. Super. at 576. We explained

A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

[Id. at 575.]

The New Jersey Supreme Court in Davidson addressed "whether Polk's comparative-evidence requirement is still relevant post-AICRA." Davidson, supra, 189 N.J. at 184. It reviewed the evidentiary burdens of a plaintiff who had a history of prior injuries but did not plead aggravation in seeking damages for injuries allegedly caused by a single recent automobile collision. The trial court had dismissed plaintiff's complaint on summary judgment, holding that the plaintiff was required to distinguish between the prior injuries and those caused by the new accident. Id. at 169. The Court held the trial court erred

When a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, then plaintiff must produce comparative evidence to move forward with the causation element of that tort action. When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration. AICRA does not impose on plaintiff any special requirement for a comparative-medical analysis in respect of causation in order to vault the verbal threshold.

[Id. at 170.]

The Court grounded its holding in "basic tort principles of causation and burden allocation as between plaintiffs and defendants." Ibid. The need for a comparative Polk analysis depends "on traditional principles of causation and burden allocation applicable to tort cases generally." Id. at 184. The Court recognized that when a plaintiff does not provide a comparative analysis, the plaintiff may be caught flat-footed if a defendant offers evidence "no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury." Id. at 188. "When this defense is raised, the [plaintiff] has the burden of proving that the [injury] at issue is causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury independent of that pre-existing injury or condition." Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (App. Div. 2004).

In this case, defendant's expert based his opinion on his physical examination of plaintiff and numerous other relevant records, as N.J.R.E. 703 explicitly permits. The net opinion rule, therefore, did not forbid the trial court from allowing him to testify. Townsend, supra, 221 N.J. at 53-54. Plaintiff argues defendant's expert did not rely on evidence to inform his opinion because

when cross-examined as to how he could possibly render a cause-and-effect opinion when relying on a single point in time, without having reviewed the available subsequent medical record, [defendant's expert] pointed not to any treatment record or imaging study, not to any "fact or data" contemplated by [N.J.R.E.] 703, not to anything that could be fairly cross-examined, but to his "35 years of experience."

Plaintiff's argument nonetheless admits defendant's expert relied on his physical examination of plaintiff and other relevant records, specifically her X-rays, showing "natural degeneration," not recent trauma. Plaintiff correctly emphasizes the expert's facts and data were limited to "a single point in time," but the expert could properly testify to his opinion based on the evidence from that point in time.

The jury considered whether plaintiff proved "a proximate causal relation between defendant's negligence, if found by the jury, and the resulting injury." Davidson, supra, 189 N.J. at 185 (citations omitted). The Davidson court clearly stated plaintiff must prove proximate cause. Id. at 170. In this case, defendant's expert testified plaintiff's back problems were not consistent with a traumatic injury following a car accident. A jury could reasonably infer plaintiff's current back problems were not a result of the accident if, five months after the accident, her back problems were also unrelated to the accident.

Plaintiff argues the trial court should have required defendant's expert to review more recent medical records, but he never purported to base his opinion on more recent records. Moreover, defendant raised the proximate cause defense, requiring plaintiff to prove "the [injury] at issue is causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury independent of that pre-existing injury or condition." Bowe, supra, 367 N.J. Super. at 138. The expert's testimony contradicted this aspect of plaintiff's claim when he observed her back problems were degenerative, not traumatic, five months after the accident. To the extent Polk or Bowe were relevant to this case, they required plaintiff prove proximate cause to prevail, and defendant disprove it to succeed. Davidson, supra, 189 N.J. at 184 (discussing Polk, supra, 268 N.J. Super 568); Bowe, supra, 367 N.J. Super. at 138.

Although plaintiff argues the record does not support the jury's verdict, the jury clearly found defendant's expert more credible than plaintiff's expert. Given that finding, the jury reasonably found defendant's negligence was not the proximate cause of plaintiff's back problems. If plaintiff's back problems were not traumatic five months after the accident, they would not become traumatic afterwards. We affirm the trial court because the plaintiff has failed to "clearly and convincingly" show "a miscarriage of justice under the law." R. 4:49-1(a).

Affirmed.

1 Polk v. Daconceicao, 268 N.J. Super 568, 575 (App. Div. 1993).