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Vergara v. Reilly

August 1, 2007


On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2352-02.

Per curiam.


Argued February 6, 2007

Before Judges Kestin and Graves.

Plaintiff Juan Vergara sustained lower back and neck injuries on May 9, 2001, when the automobile he was driving was struck from behind by an automobile driven by defendant Michael Ryerson. At the time of the accident, plaintiff was subject to the "verbal threshold" of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Liability was stipulated, and the jury, on May 24, 2005, answered "yes" to the first two questions on the jury verdict sheet: (1) "Has the plaintiff, Juan Vergara, sustained a permanent injury proximately caused by the accident?"; and (2) "Has the permanent injury sustained by the plaintiff, Juan Vergara, had a serious impact on his life?" The jury awarded damages in the amount of $30,000 for "pain and suffering, disability, loss of enjoyment of life and impairment." Plaintiff appeals from an order that granted his motion for a new trial but denied his request to limit the new trial to damages, or, in the alternative, for an additur. We now reverse and remand for a new trial on damages. Because we have been provided with abbreviated transcripts of both trials, our understanding of the nature and extent of plaintiff's injuries comes from a certification submitted by plaintiff's attorney in support of plaintiff's motion for a new trial. That certification includes the following:

3. The trial proofs clearly indicated that plaintiff's first medical treatment was obtained from Dr. Charles K. Gleason, a chiropractor, with the initial visit being May 11, 2001. At that time, plaintiff complained of severe neck and back pain, with pain radiating to his extremities. On May 12, 2001, a cervical MRI was performed at the request of Dr. Charles Gleason which showed disc bulges at C4-C5 and C5-C6. A lumbar MRI study, performed on that same date, showed a disc bulge at L4-L5 and a central and right disc herniation at L5-S1. There were no indications of any degenerative changes on any of the MRI reports.

4. Based on those reports and Dr. Gleason's clinical findings, a course of conservative chiropractic therapy was initiated which began on or about May 11 2001 and continued through approximately August 13, 2001 for approximately forty-siX (46) visits.

5. Dr. Gleason completed disability papers for plaintiff and it was stipulated that plaintiff was disabled four (4) months after the accident from approximately April 12, 2001 [sic] through September 4, 2001. At the time of trial, Dr. Gleason testified that plaintiff's injuries were causally related to the accident and were permanent in nature.

6. While plaintiff was being treated by Dr. Gleason, as aforesaid, Dr. Gleason referred plaintiff to the offices of Angela Adams, M.D. and Arthur Rothman, M.D., neurologists, for various NCV and EMG studies which indicated that plaintiff was experiencing C5-C6 and S1 radiculopathies. Dr. Rothman also recommended a series of epidural injections in the cervical and lumbar spines.

7. The trial testimony also proved that plaintiff was treated by Dr. Solomon Halioua of the Saddle Brook Pain Center and that plaintiff underwent six (6) epidural injection procedures to his cervical and lumbar spines on August 8, 2001, August 14, 2001, August 21, 2001, August 28, 2001, September 4, 2001 and September 12, 2001. During those six (6) epidural procedures, at which time plaintiff was under general anesthesia, Dr. Halioua performed forty-siX (46) trigger-point injections on various parts of plaintiff's body.

8. Thereafter, since the epidurals were not immediately effective, Dr. Halioua recommended that plaintiff receive physical therapy at Healthsouth Physical Therapy in Saddle Brook, N.J. Plaintiff attended physical therapy treatments for his neck and back from October 8, 2001 through December 3, 2001 for approximately eighteen (18) visits.

9. The trial testimony also indicated that after the aforesaid epidurals and physical therapy sessions had completed, plaintiff was feeling better for approximately ten (10) months to a year and was able to return to most of his normal activities. However, plaintiff became worse in approximately November, 2002, at which point, plaintiff consulted with William L. Klempner, M.D., a neurosurgeon. Again, Dr. Klempner diagnosed plaintiff with left lower extremity radiculopathy and clearly causally related all of plaintiff's lumbar injuries to the subject automobile accident.

10. On October 10, 2003, Dr. Klempner performed a spinal fusion and disketomy on plaintiff at Valley Hospital. Specifically, Dr. Klempner testified at the time of trial that he removed plaintiff's damaged discs at L4-L5 and L5-S1 and inserted four (4) bone growth cages and various hardware into plaintiff's back during the aforesaid approximate eight (8) hour operation.

Thereafter, Dr. Klempner prepared the necessary papers which resulted in plaintiff's disability for a period of approximately six ...

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