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Tonsberg v. VIP Coach Lines Inc.

Decided: April 8, 1987.

ROBERT TONSBERG AND ELLEN TONSBERG, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
VIP COACH LINES, INC., BRIAN SMITH, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Michels, O'Brien and Landau. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

Plaintiffs appeal from the denial of their motion for a new trial based upon the alleged inadequacy of the damages awarded by the jury. We affirm.

Plaintiff Robert Tonsberg (plaintiff) sustained personal injuries while a passenger in a bus owned by defendant VIP Coach Lines, Inc. (VIP) and operated by defendant Brian Smith (Smith). When the bus swerved to avoid another vehicle driven by an unidentified motorist, plaintiff was thrown forward in the bus, thereby sustaining back injuries. Plaintiff Ellen Tonsberg sued per quod.

It was stipulated that VIP and Smith were liable to the extent of 80% and the phantom driver 20%. Defendant Kemper Insurance Company paid $15,000 to plaintiff on behalf of the phantom driver under an uninsured motorist provision. A trial as to damages only against defendants VIP and Smith resulted in a

jury verdict in favor of plaintiff of $10,205.99 and zero for Mrs. Tonsberg on her per quod claim.*fn1

On this appeal, plaintiffs make the following legal arguments:

I. THE COURT IMPROPERLY EXCLUDED TESTIMONY REGARDING A THERMOGRAM PERFORMED ON PLAINTIFF BY DR. GETSON AND REFUSED TO PERMIT THE OTHER TREATING PHYSICIANS TO COMMENT ON ITS RELIABILITY WHICH EXCLUSION SUBSTANTIALLY PREJUDICED PLAINTIFF'S CLAIM.

II. A MOTION FOR A NEW TRIAL IS APPROPRIATE AFTER A JURY VERDICT WHERE THE VERDICT WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE USE OF DR. WELLS' CONVICTION FOR THE PURPOSE OF ATTACKING PLAINTIFF'S CREDIBILITY WENT BEYOND THAT PERMITTED BY RULE 20 AND RULE 55 OF EVIDENCE.

IV. THE COMMENTS OF COUNSEL WERE SO CLEARLY IMPROPER AND PREJUDICIAL THAT A NEW TRIAL IS REQUIRED.

V. THE EXCLUSION OF PRIOR INCONSISTENT STATEMENTS BY DEFENDANT'S EXPERT, DR. THEODORE KUSHNER WAS NOT PROPER PURSUANT TO EVIDENCE RULE 22. PLAINTIFF'S ATTORNEY SHOULD HAVE BEEN PERMITTED TO SHOW THAT THE DOCTOR MADE INCONSISTENT FINDINGS OF PERMANENCY WHEN THE DOCTOR TESTIFIED AS A PLAINTIFF'S EXPERT TO ESTABLISH BIAS.

At a Rule 8 hearing, plaintiff offered the testimony of Dr. Philip Getson, a doctor of osteopathic medicine licensed in the State of New Jersey. This testimony was offered in support of the admission of a diagnosis of plaintiff's injuries based upon thermography and the admission of the resultant thermograms. In response to a question as to the acceptance of thermography in the relevant community, Dr. Getson testified:

I believe that the acceptance of thermography has grown dramatically in the past two years, that it is at present accepted by a moderate percentage of the medical community and I find that most of the people who are not utilizing the diagnostic tool at present are uninitiated into its purposes, goals and the part that it plays in the diagnostic armamentarium. [Emphasis supplied.]

At the conclusion of the Rule 8 hearing, the trial judge granted defendant's motion to exclude the proffered evidence. The judge based his decision on our opinion in Ferlise v. Eiler, 202 N.J. Super. 330 (App.Div.1985), where we concluded that a test or technique may be demonstrated to have a "sufficient scientific basis" in any one of three ways:

(1) expert testimony as to the general acceptance of the premise being advanced among those in the profession; (2) authoritative scientific and legal writing indicating that the premise enjoys general acceptance in the professional community; and (3) judicial opinions that indicate that the expert's premise has gained general acceptance. See State v. Kelly, supra, 97 N.J. [178] at 210; State v. Cavallo, supra, 88 N.J. [508] at 521. [Emphasis supplied.]

[202 N.J. Super. at 334.]

Since the degree of acceptance must be "general" and Dr. Getson testified to only a "moderate" degree of acceptance, the trial judge concluded there was not a sufficient scientific basis upon which to admit the proffered thermography testimony. The judge observed that another of plaintiff's expert witnesses, an orthopedist, had testified that "the jury was still out" [on thermography] and he really wasn't personally in a position to attest favorably on the subject matter. The trial judge concluded: "It [thermography] is not shown to be generally accepted in the medical community as a reliable diagnostic technique."

The determination of an expert's competency to testify and of the sufficiency, as distinguished from the weight of the testimony, is primarily for the discretion of the trial judge. An appellate court, however, will interfere where there has been a clear abuse of discretion. Fantini v. Alexander, 172 N.J. Super. 105, 109 (App.Div.1980).

We recognize that evidence based upon thermography was admitted in a personal injury action, after a Rule 8 hearing, in the same courthouse where the instant case was tried. The opinion of the trial court in that case is reported in Procida v. McLaughlin, 195 N.J. Super. 396 (Law Div.1984). In Ferlise v. Eiler, supra, we acknowledged the conclusion by the trial court in Procida, that a "thermogram is a diagnostic tool with a sufficient scientific basis to produce uniform and reasonably

reliable results." There, the expert testified that "thermography is accepted by a substantial segment of the medical profession." 195 N.J. Super. at 404.

We also recognize there was no Rule 8 hearing prior to receipt of the evidence in Ferlise v. Eiler. There, we concluded: "We are unable to say from the record before us that thermography per se is sufficiently reliable and accepted in the medical community as to permit the admission of thermograms in evidence." 202 N.J. Super. 334-335. We further observed that no evidence was offered "that the procedure has been generally accepted in the medical community as a reliable diagnostic technique." Id. at 335. [Emphasis supplied.] Recently our Supreme Court has reaffirmed acceptance of the rule announced in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), that "general acceptance in the field to which [the technique] belongs," is a crucial factor in finding that there is "sufficient scientific basis to produce uniform and reasonably reliable results." Windmere, Inc. v. International Ins. Co., 105 N.J. 373 (1987) (excluding voice-print evidence). In reliance upon our statement in Ferlise v. Eiler that the technique must be generally accepted, the trial judge here concluded that "moderate" acceptance was inadequate and disallowed the evidence. We do not find such conclusion to be an abuse of his discretion. Future use of thermography as a reasonably reliable scientific method, however, may not be precluded if more thorough proofs as to its reliability are introduced in other litigation. Cf. Windmere, Inc. v. International Ins. Co., supra.

Plaintiff's third point results from disclosure that one of his treating physicians had been convicted of mail fraud. In the course of cross-examining the treating physician as to his treatment of plaintiff, defense counsel asked him about the number of patients he sees per day. In the course of that cross-examination, the following testimony developed:

Q. Well, I guess it's not really that much because some of the time you were ...


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