July 17, 2007
VILMA KALRA, PLAINTIFF-RESPONDENT,
SALVADOR J. GARCIA, DEFENDANT-APPELLANT, AND TOMAS M. BORDAS, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3698-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 20, 2007
Before Judges Kestin and Graves.
Plaintiff Vilma Kalra was injured in an automobile accident on August 12, 2002, when the car she was driving was struck from behind by a car driven by defendant Salvador Garcia. Prior to trial, defendant Tomas Bordas, the owner of the car Garcia was driving, was dismissed on the basis of lack of agency and Garcia stipulated to liability. The jury found plaintiff "sustained a permanent injury that was proximately caused by the accident on August 12, 2002," and it awarded plaintiff compensatory damages in the amount of $75,000. Defendant appeals from the judgment. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.
Following the accident, plaintiff was taken to the Robert Wood Johnson Hospital in New Brunswick where she was examined and x-rays were taken. The Emergency Room doctor gave her a prescription for pain, told her to stay home from work for three days, and told her to see her own doctor if the pain did not go away. After she was discharged from the hospital, plaintiff testified she had "a lot of pain in [her] neck, back, shoulders, and knees." Plaintiff's family doctor recommended she stay home for three weeks, and he referred her to Dr. Prem Rangala, an orthopedic surgeon.
When plaintiff was seen by Dr. Rangala on August 22, 2002, he noted she was experiencing "acute pain," and he was only able to perform a "very limited, gentle exam." Dr. Rangala recommended physical therapy, which plaintiff immediately began, however, during an office visit on September 23, 2002, plaintiff reported the pain in her neck had gotten worse and it was radiating down her right arm. On September 30, 2002, plaintiff complained of severe neck pain, and Dr. Rangana ordered an MRI, which was performed on October 4, 2002. According to Dr. Rangala, the MRI study "revealed a definite narrow spinal canal with superimposed disc disease at multiple levels. There were epidural defects due to disc herniation with spinal cord compression at multiple levels including C3-C7. There were also osteophytic ridges and osteophytes at multiple levels." Plaintiff continued her physical therapy treatments, and she was last seen by Dr. Rangala on April 10, 2003. In his report dated July 7, 2003, Dr. Rangala explained plaintiff's prognosis was "poor":
In spite of the long time since the motor vehicle accident of 08/12/2002, physical therapy and home exercise program, at the time of discharge on 04/10/2003[,] the patient was left with significant symptoms and abnormal findings in the cervical spine and left ankle.
It is my medical opinion that the patient has been left with a permanent injury to the cervical spine and left ankle. The present symptoms and abnormal findings in these two areas have a direct causal relationship to the motor vehicle accident of 08/12/2002.
The prognosis in this patient is poor.
During his video-taped deposition, which was viewed by the jury, Dr. Rangala testified plaintiff's MRI results revealed some disc degeneration and disc herniation, which were causing plaintiff's neck pain. Dr. Rangala also testified plaintiff's neck injuries were "permanent in nature," and the injuries resulted from the motor vehicle accident on August 12, 2002.
Defendant's expert, Dr. Robert Bercik, an orthopedic surgeon, agreed plaintiff's MRI showed disc herniations at C2-C3, C3-C4, C4-C5, C5-C6, and C6-C7, however, in Dr. Bercik's opinion, plaintiff's disc herniations were a function of the aging process and were not causally related to the accident:
Usually when you see disk herniations [at] multiple levels it's because of degeneration and not because of an injury. If you had an injury, you would usually see a disk herniation at one level, maybe two, but you usually would [not] see it at 3 or 4 or 5 which we really see in this case.
Based on his evaluation of plaintiff's MRI and review of her medical records, Dr. Bercik testified it was likely plaintiff "sustained a cervical sprain," which was "superimposed on a pre-existing spondylolysis":
Spondylolysis is arthritis of the spine. For different reasons, we don't call it arthritis in the spine, we call it spondylolysis but it's the same idea; degenerative changes of the spine. So I think that those changes that were on the MRI -- that MRI was done about seven to eight weeks after the motor vehicle accident. Those changes that we see on that MRI took years to develop. They didn't develop in a matter of a couple of weeks or months. And I think that those changes were there before the accident and I don't think they were effected by the accident.
Because plaintiff's claim for non-economic damages was subject to the "verbal threshold" of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, the trial judge instructed the jury plaintiff had "to prove by a preponderance of the evidence that she sustained a permanent injury within a reasonable degree of medical probability as a result of the accident." And, pursuant to N.J.S.A. 39:6A-8(a), the jury was told "an injury shall be considered permanent when the body part or organ or both has not healed to function normally and will not heal to function normally with further medical treatment." In addition, over defendant's objection, the court instructed the jury as follows:
Now, in this matter, if you find that this accident was a substantial factor in causing a herniated disk in the cervical or the neck area of the patient as claimed, if you decide that there is a herniation that was caused by this accident, then that is a permanent injury under the statute [and] she would be entitled to non-economic damages.
On appeal, defendant contends the trial court erred (1) "in charging the jury that a herniated disc is a permanent injury as a matter of law for purposes of AICRA," and (2) "in admitting into evidence photographs of the damage to plaintiff's vehicle." Based on our review of the record, we are satisfied there was neither error nor abuse of discretion by the trial court.
Defendant's expert did not dispute plaintiff had disc herniations, and he did not dispute a disc herniation is a permanent injury. Moreover, "the existence of a herniated disc [is] sufficient to satisfy the verbal threshold." Pardo v. Dominguez, 382 N.J. Super. 489, 494 (App. Div. 2006). Thus, the jury charge defendant objects to was proper, given the circumstances present in this case.
We also reject defendant's argument that the trial court erred in admitting photographic evidence depicting the damage caused to plaintiff's vehicle by the accident. Even when liability is conceded, photographic evidence showing vehicular damage may be relevant to the nature, extent, or seriousness of the injuries resulting from the accident. See, e.g., Gambrell v. Zengel, 110 N.J. Super. 377, 380 (App. Div. 1970) ("[I]t is a generally accepted rule that evidence of . . . the severity of the physical impact and the manner of the happening of the accident is admissible where there is an issue as to the seriousness of plaintiff's injuries. And this, too, despite admitted liability."). As the Court has recently explained: "Juries are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury." Brenman v. DeMello, 191 N.J. 18, 32 (2007).
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