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Hisenaj v. Kuehner

August 3, 2006


On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-657-00.

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



Argued October 18, 2005

Before Judges Coburn, Collester and Lisa.

We consider in this appeal, as we did in Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002), the propriety of allowing biomechanical engineering testimony that a low-impact rear-end collision cannot cause a herniated disc. In Suanez, we found such testimony scientifically unreliable because the expert relied exclusively on scientific literature, and he could identify no specific literature except with respect to tests performed on cadavers or military personnel under controlled conditions quite dissimilar from an automobile accident. Id. at 200. We further found a lack of scientific reliability because there was no evidence that those who performed the tests upon which the expert relied, or others in the scientific community, concluded that the tests provided a reliable foundation for drawing any conclusions regarding the physiological effects of a low-impact collision on a middle-aged woman, such as the plaintiff in that case. Id. at 200-01. We therefore held that admission of the expert testimony was reversible error. Id. at 203.

In this case, plaintiff was also a middle-aged woman, forty years old at the time of the accident, and she suffered from asymptomatic degenerative disc disease. She claimed that as a result of the accident she suffered three herniated cervical discs and one herniated lumbar disc,*fn1 for which she underwent two extensive surgical procedures, four to five years after the accident. Plaintiff presented four medical experts who testified that she suffered herniated discs caused by the accident. She claimed she suffered "permanent consequential limitation of use of a body organ or member" as well as "significant limitation of use of a body function or system," under the provisions of the verbal threshold in effect at the time of the accident on March 2, 1998. See N.J.S.A. 39:6A-8(a); Oswin v. Shaw, 129 N.J. 290, 315 (1992).

The defense proffered the testimony of a biomechanical expert, Harold Alexander, who would testify that the low-impact collision could not have caused plaintiff's herniated discs, or any serious injury. The defense theory was that some of the herniations identified by plaintiff's medical experts did not exist, that her surgeries were unwarranted, and that, to the extent she had any herniations or suffered from any significant disc pathology after the accident, it was a result of her continuing disc degeneration, and not caused by the accident.

After conducting a hearing pursuant to N.J.R.E. 104, the trial judge distinguished the situation from Suanez and allowed Alexander to testify before the jury. The judge was satisfied that Alexander based his opinion on seventeen identified scientific studies, conducted over a thirty-four-year period, using live volunteers consisting of 151 men and 52 women of varying ages, none of whom suffered chronic injuries after being subjected to rear-end impacts similar in magnitude to that involved in this accident. The judge was further persuaded because, unlike the expert in Suanez, Alexander also relied on his own medical research in addition to the scientific literature. The jury rejected plaintiff's claim of permanent injury caused by the accident.

We hold that Alexander did not provide a reliable scientific basis to support his opinion. Alexander's trial testimony had the clear capacity to influence the verdict. Accordingly, we reverse and remand for a new trial.

The trial was as to damages only.*fn2 Although the jury found that plaintiff did not suffer permanent consequential limitation of use of a body organ or member caused by the accident, it found that she suffered significant limitation of use of a body function or system caused by the accident, for which it awarded her $50,000. The jury essentially determined that plaintiff failed to prove that the accident caused her to suffer herniated discs and necessitated her surgeries. The jury apparently found that the accident caused plaintiff's pre-existing disc disease to become symptomatic and painful for a time, but it did not cause any herniations or other permanent injuries.

When the accident happened, plaintiff was alone in her car, stopped at a stop sign, waiting to make a left turn. Her car was slightly angled to the left and her head was turned about forty-five degrees to the left.*fn3 Defendant was traveling in the same direction as plaintiff. When defendant saw plaintiff's stopped car, she was unable to stop her car in time to avoid a collision. She struck plaintiff's car in the rear. According to defendant's accident reconstruction expert, defendant's vehicle was traveling less than eight miles per hour at impact, and the change in velocity (Delta V) to plaintiff's vehicle was less than five miles per hour. The reconstructionist compared the severity of such an impact to that experienced in a bumper car amusement ride.

Plaintiff did not obtain medical treatment immediately after the accident. She drove herself home from the accident scene. She began a course of chiropractic treatment two days later. For approximately thirteen months she underwent conservative treatment by several physicians, including an orthopedist and neurologist. Her treatment included physical therapy, use of a TENS unit, acupuncture, and medications. Cervical and lumbar MRIs were performed on March 10, 1998. The radiologist who performed the MRIs reported that plaintiff's neck showed mild degenerative disc disease at C3-4 through C5-6, along with a "mild posterior protrusion of disc material centrally located mildly impressing on the thecal sac consistent with either a herniation or a bulge." The radiologist found that "at L4-5, there is degenerative disc disease with spondylitic ridging and a posterior disc bulge." Further MRIs were performed on September 23, 1998, and the radiologist reported similar findings.

On October 12, 1998, plaintiff underwent a medical exam by an orthopedic surgeon described by the parties as an independent examiner. Based upon his examination and his review of the MRI performed on March 10, 1998, he concluded that plaintiff's L4-5 disc was herniated and three levels of discs in her cervical spine were "out of place." After examining plaintiff again on February 8, 1999, the examiner reported identical findings. He recommended surgical removal and replacement of the L4-5 disc. He found that plaintiff's injuries were caused by the accident and were permanent. He noted that plaintiff's pre-existing degenerative disc disease was age-appropriate and asymptomatic before the accident.

The neurologist and orthopedist who treated plaintiff during this period, as well as the independent medical examiner, testified at trial. Based upon plaintiff's history, their clinical findings, and the MRIs and other diagnostic test results, they ...

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