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Muniz v. O'Connor

October 12, 2007

ELSA MUNIZ, PLAINTIFF-APPELLANT,
v.
KENNETH P. O'CONNOR, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-1769-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 1, 2007

Before Judges S.L. Reisner, Gilroy and Baxter.

Plaintiff Elsa Muniz appeals from a September 8, 2006 trial court order dismissing her personal injury complaint against defendant Kenneth P. O'Connor, based on a jury verdict of no cause for action. She also appeals from an order of the same date denying her motion for a new trial. We affirm.

I.

Plaintiff contended she was injured in an automobile accident on October 8, 2002. She alleged that the 2002 accident exacerbated the symptoms of a pre-existing herniated disc in her neck and caused additional problems in her neck and shoulder. She also asserted that the 2002 accident caused her to develop temporomandibular joint problems (TMJ) and vision problems.

Defendant conceded liability and the trial was held on damages only. The jury returned a verdict that plaintiff did not prove that she sustained a permanent injury in the accident, thus defeating her right to recover damages for pain and suffering. See N.J.S.A. 39:6A-8a. On this appeal, plaintiff contends that the jury's verdict was against the weight of the evidence, and that the trial court erred in refusing to submit to the jury the issue of her claim for lost wages.

These are the most pertinent facts presented at trial. Plaintiff testified that in November 2000 she injured her back and neck in an auto accident. By October 2002, she had recovered to the point that she only had occasional neck and low back pain. On October 28, 2002, her car was hit from the rear, with a strong impact and was also pushed into the car in front of her. She thereafter received medical treatment for back pain for a year, including injections in her back and neck. She also began treatment for TMJ within three weeks after the accident and had surgery to treat that condition. In addition, she was treated for double vision and other vision problems.

Plaintiff testified that, on her doctor's recommendation, she was not able to return to work after the 2002 accident and eventually lost her job due to absenteeism. She testified that, due to her vision problems, she was not able to function as a bank teller. Her vision did not recover sufficiently to allow her to work again until September 2004, and then it took her another year to actually find another job as a bank teller. According to plaintiff, at the time of the accident she was employed as a head teller at a bank earning $11.30 per hour. She did not present evidence as to her net earnings.

On cross-examination, plaintiff admitted that after the 2000 accident she reported symptoms similar to those from which she claimed to be suffering after the 2002 accident. She also admitted that on March 15, 2004, she filled out a questionnaire at her doctor's office in which she reported that various symptoms she complained about earlier, including TMJ pain, eye pain, dizziness, and headaches, were "gone."

Dr. Weiss, an orthopedic disability specialist, testified that plaintiff had significant pre-existing osteoarthritis in her neck. He testified, based on a review of plaintiff's medical records and two examinations of plaintiff, that the 2002 accident caused plaintiff to have "chronic post traumatic cervical strain and sprain" and that the accident aggravated her pre-existing neck and shoulder problems. He testified that these conditions were permanent in the sense that further treatment would not improve them. He did not testify specifically that her neck and shoulder would not heal to function normally. He admitted that he had not reviewed records from plaintiff's primary care doctor, and, therefore, did not know that she was receiving pain medication for neck complaints a month prior to the 2002 accident.

Dr. Klemons, a dentist, began treating plaintiff for TMJ problems in December 2002. He testified in considerable detail that plaintiff's TMJ problems were due to injuries caused by the 2002 accident. He testified that he gave plaintiff numerous injections to relieve pain, and performed surgery when the injections were not entirely effective. The surgery was successful and he was "able to discharge her [from treatment] on March 15, 2004." He agreed on cross-examination that plaintiff indicated at that time that almost all of her symptoms were "gone." He testified that she would probably experience "arthritic breakdown" of the cartilage and bone over time, the pain could come back, and she would remain more vulnerable to injury than someone who did not have her condition. However, as of the trial on August 3, 2006, he had not treated plaintiff since March 2004.

Dr. Einhorn, an optometrist, testified that he evaluated and treated plaintiff after Dr. Klemons referred her to him. He testified that her vision problems, including double vision, were caused by the 2002 accident. He "was not comfortable letting her drive" because of her double vision. He also recommended that it "was probably not appropriate" for her to work as a head teller as of May 29, 2003, due to her vision problems. He never finished her therapy, but thought her long term prognosis was ...


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