On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-642-03.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 26, 2007
Before Judges Wefing, Parker and R. B. Coleman.
Defendant Kevin B. Walsh appeals from a judgment entered on July 10, 2006 after a jury found in favor of plaintiffs*fn1 and awarded them a total of $289,216.71. Defendant also appeals from an order entered on August 23, 2006 denying his motion for a new trial or remittitur and granting plaintiffs' cross-motion for an additional $1,250 in costs and fees. Defendant had conceded liability and the matter was tried on the issues of proximate cause, verbal threshold and damages.
This action arises out of an automobile accident that occurred on November 20, 2001. Plaintiff Linda C. Edwards was taken to the emergency room after the accident, where she complained of pain in the left ankle and lower back, an abrasion to the right wrist and bruises. All of those injuries apparently resolved after the accident.
Plaintiff claimed that she also sustained a neck injury in the accident but did not complain of it in the emergency room. She testified that she began to feel pain in her neck the day after the accident. That day she went to see Dr. Purcell, who prescribed a muscle relaxant. Dr. Purcell sent plaintiff to an orthopedic surgeon, Dr. Rudman. Dr. Rudman prescribed physical therapy, which plaintiff did for a total of twelve weeks beginning in December 2001.
On April 26, 2002, plaintiff had an MRI of the cervical spine, which showed a paracentral disc herniation in contact with the spinal cord. Plaintiff then saw Richard Nachwalter, M.D., who testified at trial by videotaped de bene esse deposition. Dr. Nachwalter acknowledged the C5-6 herniation and diagnosed cervical whiplash. He indicated that the C5-6 herniation was asymptomatic before the accident, and noted that an X-ray taken on October 30, 2002 showed degenerative disc disease at C4-5, 5-6 and 6-7. Dr. Nachwalter saw plaintiff again on November 4, 2002, at which time she was still complaining of persistent neck pain. This time, he diagnosed cervical whiplash and cervical spondylosis. He did not refer to the herniation in that report because plaintiff had "no radicular symptoms," that is, pain or numbness radiating down the arms.
In April 2004, plaintiff had another MRI*fn2 of the cervical spine which showed a "[l]arge right paracentral disc protrusion C5-6 causing displacement of [the] right side of the cervical cord." Plaintiff continued to see Dr. Rudman and Dr. Nachwalter but began complaining of discomfort radiating down her right arm, along with a dead feeling in her arm, as well as the persistent neck pain. Dr. Nachwalter last saw plaintiff on June 17, 2004, at which time she was still complaining of persistent neck pain with numbness and tingling in her right arm. He diagnosed her with cervical disc herniation at C5-6 and cervical whiplash caused by the accident. He stated that her prognosis was good.
Plaintiff also called Arthur Tiger, M.D., an orthopedic surgeon, to testify as an expert on her behalf. Dr. Tiger first saw plaintiff on November 18, 2002 and diagnosed her with a disc herniation at C5-6 and right-sided radiculopathy. He saw plaintiff again on October 29, 2004 and December 30, 2005. He reviewed the April 2004 MRI and testified that it showed "a significant disc herniation [at C5-6] which indents or pushes into the [spinal] cord." He indicated that "when a disc herniates, it can worsen with time, and this is what happened." In Dr. Tiger's opinion, the herniation was caused by the accident. Dr. Tiger disagreed with Dr. Nachwalter's opinion that the herniation at C5-6 was asymptomatic from the date of the accident until January or February 2004. Dr. Tiger also disagreed with Dr. Nachwalter's finding there was degenerative disc disease in plaintiff's cervical spine and testified that, even if there was, it had nothing to do with the C5-6 herniation.
Defendant called Francis DeLuca, M.D., an orthopedic surgeon, to testify as an expert. Dr. DeLuca agreed with both of plaintiff's experts that there was a disc herniation at C5-6. In his opinion, however, it was not a result of the accident but was degenerative in nature.
The jury found in plaintiff's favor and defendant appeals, arguing that (1) the trial court erred in denying defendant's motion for a directed verdict; (2) the jury award was against the weight of the evidence in light of the divided and contradictory medical evidence; and (3) the trial court erred in charging the jury with aggravation of a pre-existing injury.
We have carefully considered defendant's arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(B) ...