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Brun v. Cardoso

November 9, 2006


On appeal from Superior Court of New Jersey, Law Division, Union County, L-2102-03.

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



Telephonically argued September 26, 2006

Before Judges Kestin*fn1, Weissbard and Payne.

Once again we face the competing demands of "Best Practices"*fn2 and the core principle of the judicial system to provide a fair trial on the merits to the litigants for whose benefit the system was designed and is maintained. We are also required to address the circumstances under which a report by a non-testifying witness interpreting a Magnetic Resonance Imaging (MRI) test is admissible pursuant to the business records exception, N.J.R.E. 803(c)(6), and N.J.R.E. 705. In the case under review, plaintiff Marie Brun appeals from the dismissal at trial of her personal injury claim against defendants John and Celine Cordoso. While it cannot be gainsaid that some of the blame for the events leading to the dismissal must be placed on plaintiff's counsel, we conclude that the trial judge failed to consider and employ alternate remedies that would have salvaged plaintiff's case while avoiding prejudice to defendants; as a result, we reverse.

On June 12, 2001, plaintiff had stopped her automobile at the intersection of Morris Avenue and Union Street in Union Township when she was struck from behind by a car operated by defendant John Cardoso and owned by defendant Celina Cardoso.

At the scene of the accident, plaintiff complained to the responding police officer of lower back pain. However, she refused treatment saying that she would see her own doctor after picking up her children from school. A few hours after the accident, plaintiff was taken by her husband to Saint Barnabas Hospital in Livingston to be treated for the back pain.

At Saint Barnabas, plaintiff was given an x-ray, prescribed pain medication, and told to follow up with her private doctor the next day. The following day, she went to see a chiropractor, Dr. Michael A. Corey. Dr. Corey embarked on a five-month course of treatment involving hot and cold compression, electrical stimulation, massages, and physical therapy. Because of continuing complaints about her back, plaintiff was sent by Dr. Corey for an MRI.

The MRI was administered at Union Imaging Center. In a report, dated July 27, 2001, Dr. Steven Meyerson, a radiologist, opined that the MRI revealed a diffuse disc bulge at L4-L5 with a small annular tear without evidence of neural compression, and an L5-S1 right paracentral herniation mildly indenting the thecal sac and abutting the right S1 nerve root and possibly mildly displacing it posteriorly.

In addition to seeing Dr. Corey, plaintiff was also examined and treated by Dr. Enrique Hernandez, a neurologist, on August 9, 2001. Dr. Hernandez performed an EMG test and found evidence of left S1 nerve root irritation. In a report dated June 2, 2003, he diagnosed a "contusion sprain to the cervical region" and a "contusion injury to the lumbar spine area with left S1 nerve root dysfunction with persistent pain, spasm and loss of mobility."

Although plaintiff had not been involved in any accidents prior to June 12, 2001, she was involved in another accident on December 27, 2001, which also required a hospital visit and a four-month course of treatment with Dr. Corey for back pain.*fn3

Plaintiff, who had elected the verbal threshold option on her motor vehicle insurance, alleged a type 6 "permanent injury." N.J.S.A. 39:6A-8a. A permanent injury is defined as a failure of a body part or organ to heal to function normally, and the part "will not heal to function normally with further medical treatment." Ibid. To prove the required injury, plaintiff named Dr. Corey, Dr. Hernandez, and Union Imaging Center as potential expert witnesses in her Form A interrogatory answers. See R. 4:17-1(b). In a report dated February 2, 2004, Dr. Corey opined as follows:


The patient has sustained acute sprains-strains to the cervical and lumbar spine as well as shoulder injuries and radiation of pain concomitant [to] permanent disc damage. We have concluded from the examination and x-rays taken that Ms. Brun suffers from a severe traumatic cervical and lumbar sprain with resultant radiculopathy.

These injuries are accompanied by ligaments instability, myositis and localized evidence of nerve root irritation. Ligament and muscle tissue appear myositic and displayed chronic spasm.

Ms. Brun has been diagnosed with acute cervical and lumbar strain sprain with post concussion syndrome. These injures are of a permanent nature because the soft tissue injuries heal with scar tissue, which is neither as elastic or resilient as its undamaged counterparts. Also, there is a possibility of future need for disc herniation surgery. However, conservative treatment i.e. exercise programs and chiropractic care was currently opted ...

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