On appeal from the Superior Court of New Jersey, Law Division, Mercer County.
Michels and Wallace, JJ. The opinion of the court was delivered by Michels, P.J.A.D.
This is a protracted personal injury automobile negligence action. Plaintiff John Spedick presently appeals from a judgment of the Law Division which was entered in favor of defendant Emma Murphy on a molded jury verdict that had concluded that there existed no cause for action. He also appeals from a post-judgment order denying his motion for a new trial as to damages only.
Plaintiff, a forty-six-year-old podiatrist, instituted this action against defendant to recover damages for personal injuries he allegedly sustained as a result of an automobile accident that occurred on Quakerbridge Road in West Windsor, New Jersey on August 30, 1985. The proofs in this lengthy trial established that plaintiff was operating a 1972 nine-passenger Buick station wagon, which he characterized as a "big heavy car." Plaintiff stopped for a traffic light on Quakerbridge Road at its intersection with Clarksville Road. According to plaintiff, he heard a loud noise and felt movement in the rear of his automobile. He then felt a "sharp pain in his back -- upper back, or lower neck, some pain anyway, sharp." He testified that then "everything went out, or white, or grey or like white grey," and the next thing he remembered was that "some guy was banging on [his] window." The investigating police officer testified that when he arrived on the scene, plaintiff was complaining of neck pain, but never indicated that he had lost consciousness, because had plaintiff done so he would have called for an ambulance.
Defendant, who was operating a 1980 Oldsmobile, testified that she also was travelling on Quakerbridge Road, and as she approached the intersection where plaintiff's automobile was stopped, she applied her brakes. Before her automobile came to a complete stop, the traffic light turned green and she struck the rear of plaintiff's automobile. The front bumper of defendant's automobile struck the trailer hitch on plaintiff's automobile. When she struck the rear of plaintiff's automobile, her daughter, who was riding in the passenger seat, was thrown forward against the windshield, cracking it with her head. The parties drove their automobiles off of the roadway. Other than the cracked windshield, defendant's automobile suffered only "scrapes on the front bumper."
Later that day, plaintiff's wife took him to the emergency room at Hamilton Hospital. Plaintiff complained of dizziness and neck and shoulder pain. He also said that his "left arm was hanging down . . . [and not] working very well." X-rays indicated that plaintiff's skull and cervical spine were normal, save for degenerative arthritic changes on the left side at levels C5-6 and C6-7. Plaintiff denied having any blurred vision. The physician examining him found that he was stable, and diagnosed a probable concussion and cervical sprain. He was discharged the very same day.
Dr. Francis Pizzi, a board-certified neurological surgeon, first saw plaintiff on September 3, 1985. Plaintiff told Dr. Pizzi that he had been "stunned" by the accident, but that he had not lost consciousness. Plaintiff complained of pain between his shoulder blades, and discomfort in moving his left arm. Although he had a full range of motion in his neck, plaintiff had neck discomfort upon forcible extension, and tenderness in his neck and back muscles. Dr. Pizzi diagnosed plaintiff to be suffering from the residuals of a flexion-extension injury, along with a concussion of the inner ear structure, and he felt that these problems were the cause of the dizziness of which plaintiff complained. Dr. Pizzi examined plaintiff again on October 1, 1985, at which time plaintiff complained of
double vision, but no neck pain or memory problems. At that examination, Dr. Pizzi recommended that plaintiff see an ophthalmologist, and concluded that as of that date plaintiff had no injuries of a neurosurgical nature.
On September 9, 1985, plaintiff presented to Dr. Sporn, an orthopedist, complaining of left shoulder pain. Dr. Sporn diagnosed plaintiff to be suffering from tendinitis and a contusion of the shoulder. However, an arthrogram was negative regarding ligament damage and rotator cuff tear.
Subsequently, on September 30, 1985, Dr. John Vester, a boardcertified neurologist, examined plaintiff because of plaintiff's complaints of double vision. Plaintiff told the doctor that he was seeing double in "every range" or, in other words, in every area of vision tested. According to Dr. Vester, this complaint was "difficult to explain," inasmuch as it was not a "typical pattern[ ] after [a] head or neck trauma." Dr. Vester was of the opinion that plaintiff had probably suffered a "flexion-extension [injury,]" which would likely "quiet down" in time. He attributed any double vision that plaintiff was having to an eye inflammation from the initial accident, a hemorrhage, or a reaction to an antibiotic. Shortly thereafter, plaintiff saw an ophthalmologist at Wills Eye Hospital in October of 1985. This doctor tested plaintiff's optic nerve, and found it to be normal.
In January of 1986, approximately half a year after the accident, plaintiff saw Dr. Charuk, a neuropsychologist, who recommended biofeedback therapy. However, plaintiff discontinued such therapy after only two visits. One of the psychological tests which Dr. Charuk administered to plaintiff was the Halsted/Retan battery, which gauges brain damage. The tests results revealed that plaintiff scored "well within the normal range."
In January of 1987, almost one-and-one-half years after the accident, plaintiff presented to Dr. John Gordon, a clinical psychologist specializing in neuropsychology. Dr. Charuk had recommended Dr. Gordon to plaintiff almost a year earlier. Like Dr. Charuk, Dr. Gordon administered various psychological tests,
including the Halsted/Retan battery. While Dr. Gordon found plaintiff to be above average in intellect and communication ability, he concluded that plaintiff was having difficulty remembering new information and performing tasks which required attention or concentration. Dr. Gordon's diagnosis was that plaintiff had suffered organic brain syndrome as the result of a head injury. According to Dr. Gordon, such injuries cannot be identified by medical experts or diagnosed with traditional techniques. Over a period of five years Dr. Gordon treated plaintiff with respect to his problems in a manner that Dr. Gordon described as "working together as one person."
Plaintiff was also treated and examined by numerous other physicians. For instance, on March 20, 1990, plaintiff was examined by Dr. Allen Zechowy, a board-certified neurologist to whom he had been referred by Dr. Gordon. Dr. Zechowy was of the opinion that plaintiff had sustained a brain injury, causing cognitive defects in attention, concentration and memory, as well as orthopedic and neurological injuries to his neck and upper extremities as a result of the accident. Dr. Zechowy was also of the opinion that plaintiff was permanently disabled due to his injuries, and thus, could no longer function in his chosen profession of podiatry.
Between February of 1987 and December of 1988, plaintiff was examined six times by Dr. John Esterhai, a board-certified orthopedic surgeon, who diagnosed plaintiff as having sustained a post-traumatic cervical radiculopathy -- irritation of the nerves in the neck -- and shoulder impingement syndrome. Dr. Esterhai was also of the opinion that plaintiff could no longer engage in his professional occupation. However, Dr. Esterhai acknowledged that from 1988 forward, plaintiff was able to bench press, swim and walk regularly without experiencing any left shoulder or arm pain.
Dr. Thomas Kay, a neuropsychologist, examined plaintiff in 1991 and diagnosed him as having a minor traumatic brain injury. Dr. Kay was of the opinion that plaintiff's inability to maintain proper
alertness and remain organized in dealing with individual patients and business records would interfere with his ability to carry out his podiatry practice. With respect to this practice, plaintiff testified that in 1986, the year after the accident, he treated patients on 2,669 occasions at his office. While plaintiff maintained that his left shoulder was causing him pain and that he was having cognitive problems, he did not seek any medical assistance, with the exception of two visits to a neuropsychologist, for the entire period from October 1985 to January 1987. Later on, plaintiff claims to have developed problems remembering patients' names, and to have cut his practice back to only "simple" cases. The number of operations that he performed on patients declined steadily from twenty-eight in 1984, to fourteen in 1985, to seven in 1986, to only one in 1987. Plaintiff finally stopped taking new patients and, in July of 1989, closed his practice entirely.
Plaintiff was also examined and evaluated by several physicians at the behest of defendant. Dr. Thomas Urbaniak, a boardcertified orthopedist, who examined plaintiff on July 1, 1987, was of the opinion that because no shoulder impingement had shown up on the MRI performed eighteen months after the accident, plaintiff had not suffered a permanent orthopedic injury to his left shoulder. He also was of the opinion that plaintiff's neck, cervical spine and right arm showed no objective signs of injury. Dr. Urbaniak concluded that plaintiff's full range of motion would allow him to perform his duties as a podiatrist, although he recognized that the EMG reports of some of the other doctors appeared to indicate that plaintiff had some type of nerve root problems relating to C7 on the left side, and that plaintiff might experience pain therefrom for the rest of his life.
Dr. Walter Scheuerman, a board-certified neurosurgeon, examined plaintiff on April 6, 1988. Dr. Scheuerman reviewed the medical reports of several doctors involved, and also made an independent evaluation of plaintiff. Dr. Scheuerman was of the opinion that plaintiff had a full range of motion in his shoulder and back, and that he had suffered no nerve injury. Dr. Scheuerman
also was of the opinion that plaintiff had no neurological injury to the brain, even though he conceded that plaintiff had complained of pain in his shoulder and short-term memory loss.
Similarly, Dr. Harold Byron, a psychiatrist, examined plaintiff on March 20, 1989 and found that, although plaintiff may have suffered a concussion at the time of the accident, he had no lasting impairment of his cortical function and no permanent injury to his brain function. Dr. Byron was of the opinion that plaintiff could continue to perform in the podiatry profession.
On April 12, 1990, Dr. Edward Murphy, the Director of Rehabilitational Psychology at Sacred Heart Hospital, examined plaintiff and found, primarily as a result of his administration of the Halsted/Retan battery, that plaintiff had no closed head injury with any permanent cognitive deficit. Dr. Murphy was of the opinion that from a neuropsychological perspective, plaintiff had not lost his ability to work in his profession. According to Dr. Murphy, any residuals that plaintiff was suffering from were emotional and not organic in nature. Dr. Murphy described plaintiff to be suffering from a post-traumatic disorder where he showed neurological symptoms based on problems he had dealing emotionally with people telling him he should not continue to work, as well as other anxieties and depressions.
Finally, Dr. Ralph Retan, who developed the Halsted/Retan battery, reviewed the neuropsychological test data garnered by Drs. Charuk, Gordon and Murphy, and concluded that plaintiff was not suffering from the residuals of any brain injury. According to Dr. Retan, to the extent that other doctors had drawn different Conclusions from the same test results, he was satisfied that they had over-interpreted the test results. Further, Dr. Retan was of the opinion that plaintiff could work in his chosen profession, and he pointed to a comparison between plaintiff and a test group of 156 high-level scientists, physicians and executives where he concluded that plaintiff was functioning at almost exactly the same level as the test group.
On March 20, 1992, at the Conclusion of the proofs, the jury found, in response to a special interrogatory, that plaintiff had not sustained any damages. The trial court immediately molded the jury verdict, and thereupon entered judgment in favor of defendant for no cause for action. On March 27, 1992, plaintiff filed a motion for a new trial as to damages only with the trial court. He claimed that the jury verdict of "no damages" was clearly against the weight of the evidence, and constituted a clear and convincing miscarriage of Justice under the law. Although the motion was filed with the trial court on March 27, 1992, defendant was not served with the motion papers ...