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Brenman v. Demello

March 8, 2006

RENA BRENMAN, MITCHELL D. BRENMAN, PLAINTIFFS-APPELLANTS,
v.
MICHAEL DEMELLO, STEPHANIE DEMELLO, AND ABC COMPANY, A FICTITIOUS AND UNKNOWN COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6163-02.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 23, 2006

Before Judges Cuff, Parrillo and Gilroy.

In this automobile negligence case, plaintiffs, Rena and Mitchell Brenman,*fn1 appeal from entry of judgment in favor of defendants, Michael Demello and Stephanie Demello, after a "no-cause" jury verdict, and from denial of their motion for a new trial. Plaintiffs' principal contention on appeal is that it was reversible error to admit photographs showing minimal damage to their vehicle without an accompanying instruction precluding use of this evidence to prove, without expert bio-mechanical foundation, that such a low impact collision could not cause the serious personal injury claimed by Rena. For reasons that follow, we reverse.

On October 10, 2001, forty-year old Rena Brenman (plaintiff) was driving her car on Ryders Lane in East Brunswick when she was rear-ended by a vehicle operated by Stephanie Demello (defendant) in "stop and go" traffic. According to plaintiff, her vehicle was pushed four or five feet forward into the right hand curb where there was another bump. Plaintiff, who was seatbelted, "jerked forward and backwards," and hit "[her] head and her neck, [her] shoulders and [her] back" on the seat. By all accounts, her car sustained minimal damage -- a dent on the driver's side portion of the rear bumper. There was some dispute, on the other hand, as to the damage sustained to defendant's vehicle. Plaintiff described the front of defendant's car as "smushed in all the way to the windshield," "like an accordion." According to defendant, there was damage to the headlight, grill and hood, and the car was towed away because it was leaking antifreeze from a punctured radiator and not because it was inoperable. In any event, defendant was given a summons for careless driving.

Plaintiff immediately complained of neck pain, although she did not visit the emergency room. Several days later, after being treated by her family physician for neck and shoulder pain, she consulted with an orthopedist, Dr. Lewis Zemsky, who prescribed pain medication and recommended physiotherapy and a cervical pillow. Two months later, in December 2001, plaintiff underwent an MRI, which confirmed a "cervical spondylosis with a ventral osteophytic ridge . . . at C3-4 without spinal cord compression or foraminal encroachment." Based on these results, plaintiff was referred to Dr. Kasoff, for a neurological consultation. A myelogram performed on March 22, 2002, established an impingement at C3-4, revealing "a disc ridge complex at the C3-4 level with a cut off of the two nerve roots at that level, that would be the two C4 nerve roots . . . . [it] was worse on the right than on the left . . . ."

Dr. Kasoff recommended an anterior cervical discectomy and fusion, and a second opinion from Dr. Kalko, a neurosurgeon, concurred with Dr. Kasoff's pathology and recommendation. Consequently, on August 20, 2002, plaintiff underwent an anterior cervical fusion, involving the removal of the discs at C3-4, C4-5, and C5-6.*fn2 In his post-operative report, Dr. Kalko, plaintiff's operating surgeon, found that plaintiff had indeed sustained a "herniated disc at these three different levels." Plaintiff was left with a permanent three-inch keloid scar on her neck.

Plaintiff continued seeing Dr. Kalko post-operatively. As of June 17, 2003, Dr. Kalko diagnosed plaintiff with cervical radiculopathy and concluded her injuries were both permanent and caused by the car accident. Complaining of pain radiating to both her arms, plaintiff was also examined, as late as July 30, 2004, by Dr. Ratzker, her trial expert. Although Dr. Ratzker acknowledged that osteophytes, or abnormal bone protrusions, may be degenerative in nature, he nevertheless concluded, similar to Dr. Kalko, that "there was a causal relationship between the accident and [plaintiff's] problem" based on the diagnostic studies and the "fact that [plaintiff] had not complained previously of these problems, neck pain, radiation to the head, radiation down the arms and began to suffer with these complaints immediately after the accident . . . ."

The origin of plaintiff's injuries was disputed by Dr. Eric Fremed, defendant's expert in neurology. He interpreted both the MRI and myelogram similar to Dr. Ratzker. However, Dr. Fremed opined that spondylosis was a degenerative condition and that the presence of osteophytes was also suggestive of the same. Although he concluded that the "need for surgery had nothing to do with the accident," Dr. Fremed acknowledged "that a trauma can aggravate [the] pre-existing condition."

Both Ratzker and Fremed agreed, however, that plaintiff had no cervical history prior to the accident. They also agreed that there was no correlation between the minimal impact nature of the collision and any injury plaintiff may have suffered therefrom. The following exchange occurred on redirect of Dr. Ratzker:

Q: . . . in your experience as a neurosurgeon is there any relationship between how much damage is done to the rear of a car and any injuries that may be sustained by the occupants of that vehicle?

A: No, not necessarily. The important point is how or what vector of force was delivered to the patient's spine --

A: In a typical rear-end collision like this typically the patient will be seated, the impact delivered to the patient is through the back of the seat, which means the body will start going forward first while the head lags, okay? Because the seat is pushing the thoracic area forward while nothing is behind the cervical. So the head will typically snap back and then kind of forward flex to catch up with the body, we call an extension flexion injury . . . . And that, again, totally depends on the momentum or the velocity of that seat against the patient's upper back. It doesn't have anything to do with what happened to the bumper or what not.

[Emphasis added.]

Dr. Fremed agreed with Dr. Ratzker, as reflected by the following exchange on his cross-examination:

Q: And isn't it true you never really look at the damage to somebody's vehicle, you look and see what happened to the ...


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