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Smith v. Schalk

May 27, 2003

GAIL SMITH, PLAINTIFF-RESPONDENT,
v.
JACQUELIN SCHALK, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L- 9686-98.

Before Judges A.A. Rodríguez, Wells and Payne.

The opinion of the court was delivered by: Wells, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 24, 2003

Defendant, Jacquelin Schalk, appeals from the denial of her motion for a new trial following a judgment against her in the amount of $341,129 in favor of plaintiff, Gail Smith. Smith had filed suit against Schalk after an automobile collision on November 17, 1998, in which Smith alleged Schalk was negligent and proximately caused Smith to suffer personal injuries. Smith filed suit in December 1998.

Because the dispositive point on appeal in this case involves the trial judge's decision to permit Smith to admit certain medical information emerging on the eve of trial, we need only outline the state of that information as it developed between the accident and the start of trial on October 16, 2001.

In January 1999, about two months after the accident, Smith had MRI examinations of her neck and low back. The significant findings as to her neck were:

No degenerative disc space narrowing was seen.

. . . . There was no herniated nucleus pulposus (HNP) or focal posterior bulging of the annuli at any level.

. . . . There was no central canal stenosis, lateral recess stenosis or foraminal stenosis. Signal within the cervical spinal cord itself was unremarkable. The marrow elements showed no evidence of occult fracture or edema. There was no cerebellar tonsillar ectopia. The pre-vertebral soft tissues appeared unremarkable.

Impression No herniated disc. Those for her low back were:

A rudimentary S1-2 disc space was present, possibly due to a partly transitional S1 segment. For purposes of this report, the lowest fully formed disc space was referred to as L5-S1.

The thecal sac capacious. There was no spinal stenosis. No degenerative disc space narrow-ing was seen. There was no foraminal steno-sis. The facet articulations were intact, with a mild amount of hypertrophy at L4-5 and L5-S1.

At L5-S1, there was posterior bulging of the annulus fibrosis with impression upon the spinal canal, more just to the left of the midline.

. . . . Impression Bulging annulus at L5-S1. We note that Smith treated for her injuries until September 1999, and all the other medical examinations, conducted by both Smith's physicians and a defense physician, rested upon the January 1999 MRI results; clinical examinations; Smith's medical history; and the history of the accident itself.

The case was listed for trial for the first time in April 2000. Smith's medical examination with Dr. Orlando Ricciardello, the defense physician, was also conducted in that month. The trial was not reached in April or on two more listings in 2000. It was not listed again until May 2001, at which point, counsel exchanged pretrial information, each listing their respective proposed witnesses. Schalk's pretrial memo noted an anticipated "motion to limit testimony by plaintiff and plaintiff's medical experts to symptoms and complaints listed in answers ...


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