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Brady v. Tomory

June 26, 2007


On appeal from Superior Court of New Jersey, Law Division, Sussex County, L-708-04.

Per curiam.


Argued telephonically February 13, 2007

Before Judges Kestin and Payne.

Defendant, Peter T. Tomory, appeals from a post-verdict order granting a new trial in an action instituted by plaintiff Kathleen Brady and arising from an automobile collision occurring on January 17, 2003.

The matter was tried in July 2006. Following the three-day trial and lengthy deliberations, the jury returned a verdict finding defendant wholly liable for the accident, but additionally determining that plaintiff, who was subject to the limitation on lawsuit provisions of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, had not proven that she sustained the permanent injury required for recovery of monetary damages for pain and suffering. Plaintiff thereupon moved for a new trial, arguing that the jury's verdict, which plaintiff claimed was influenced by the disclosure of her history of alcoholism, constituted a miscarriage of justice. Accepting plaintiff's argument, the trial court granted the motion. We granted defendant's subsequent motion for interlocutory appeal and now reverse.


At trial, plaintiff claimed that she sustained a cervical disk herniation at the C5-C6 level as the result of the accident, and that her activities had been severely curtailed as the result of continuing pain arising from irritation of nerves caused by the herniation. The defense countered plaintiff's claim by arguing that plaintiff, who was seventy-three years of age at the time of trial, suffered from longstanding osteoarthritis, and that the herniation pre-dated the accident. The defense also claimed that plaintiff's physical limitations arose from a hip fracture sustained on February 10, 2004, which was stabilized by use of pins, and required a second surgery in March 2005. Additionally, plaintiff underwent a total left knee replacement on August 26, 2004. Evidence suggested that plaintiff also had osteoarthritis in the right knee.

At trial, evidence was produced demonstrating that an x-ray taken on the day of the accident showed a narrowing of the disc space at the C5-C6 level, accompanied by degenerative changes. Additionally, a CT scan of the neck, performed that day, showed diffuse degenerative changes throughout the cervical spine. On January 28, 2003, eleven days after the accident, plaintiff consulted with orthopedic physician Dr. Koss, who was then treating plaintiff for her knee complaints. Dr. Koss's record of that office visit disclosed a diagnosis of severe osteoarthritis and degenerative disk disease of the cervical spine with acute cervical strain. The record also stated that plaintiff had reported prior problems with her neck, but did not specify the nature of those problems.

Dr. Koss ordered physical therapy, which plaintiff attended on a somewhat irregular basis for twelve treatments in the period from February 14, 2003 until April 2003, when plaintiff discharged herself from treatment after refusing to perform some of the suggested therapy and expressing dissatisfaction with her progress. Plaintiff then returned to Dr. Koss, who referred her to Dr. Dwyer, an orthopedic physician specializing in treatment of the spine. Dr. Dwyer ordered an MRI of plaintiff's cervical spine, which disclosed a disk herniation at the C5-C6 level. Defense expert, Dr. Levine, described the MRI films to the jury, stating:

[T]hese are not the clearest MRI pictures, but you can get the gist of what's going on in this patient's neck and you see something sticking out right here and that's cervical 5-6. . . . And the disk at that level is smooshed down, if I can use that non-medical term. It's narrowed, it's crushed, and that takes years to form, along with these big, bony spurs forward, as well as back into the spinal canal towards the spinal cord. Here it's almost touching the spinal cord, but it doesn't indent the spinal cord.

This big thing protruding out at C5-6 is mostly bony spurs and inside is disk material. I described it on my review as a spur/disk protrusion. And that takes years to form. It takes years for this to narrow.*fn1

Dr. Dwyer treated plaintiff's neck with two epidural injections of cortisone, the second of which plaintiff described as "fabulous." Although she claimed that the pain recurred after five to seven months, she had not received a third epidural injection.*fn2

During cross-examination of plaintiff, defense counsel sought to prove that plaintiff's neck condition did not cause significant pain or physical restriction by demonstrating that she did not complain about the condition when giving a history of her physical complaints to the multiple doctors that treated her for unrelated conditions after the accident on January 17, 2003. Counsel's cross-examination was compromised by plaintiff's inability to hear the questions asked of her and her exceedingly poor memory of medical consultations occurring after the automobile accident.

Counsel commenced this aspect of his examination by reviewing with plaintiff a report by her family physician, Dr. McGraw, to her hip surgeon, Dr. Bash, medically clearing her for her second hip surgery in March 2005. In that report, Dr. McGraw described an extensive medical history of chronic obstructive pulmonary disease, coronary artery disease, myocardial infection, hypertension, increased cholesterol, and total knee replacement, but made no mention of neck complaints. That evidence was followed by a chronological inquiry into the post-accident medical histories given by plaintiff to her treating physicians, commencing with plaintiff's treatment by a cardiologist, Dr. Watson, on July 16, 2003, because of increasing shortness of breath. When asked, plaintiff stated that she did not recall a Dr. Watson, and she testified further:

Well, the only thing I could think of, I had ammonia [sic] and he probably was the doctor in the hospital checking me out. That's the only thing I could think of. Watson?

The following colloquy between defense counsel and plaintiff then ensued:

Q: Ms. Brady, I show you two reports, the first one dated July 16th, 2003. You see that? You see the patient's name Kathleen Brady?

A: Yes, I do. Well, she's . . . an assistant to McGraw.

Q: Okay. And do you remember Michelle Clarise (phonetic) referring you to this Dr. Richard ...

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