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Boruch v. Scharff

November 2, 2007

COLLEEN BORUCH AND ROBERT BORUCH, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
ROSE SCHARFF AND BETTE ANN MARINO, EXECUTRIX OF THE ESTATE OF ROSE SCHARFF, DEFENDANTS/THIRD-PARTY PLAINTIFFS, AND KHATUNA KVIRIKASHVILI-DIAZ, DEFENDANT/THIRD-PARTY PLAINTIFF-APPELLANT,
v.
JASON MESZAROS AND WAYNE MESZAROS, THIRD-PARTY DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-299-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 17, 2007

Before Judges Weissbard and Baxter.

Defendant Khatuna Kvirikashvili-Diaz appeals from a jury verdict awarding plaintiffs Colleen Boruch and Robert Boruch a total of $180,000 in damages flowing from injuries sustained by Colleen in an automobile accident. We conclude that two of the issues raised by defendant are meritorious, thereby requiring a new trial.

I.

On March 13, 2002, between 1:00 p.m. and 2:00 p.m., plaintiff*fn1 was driving her automobile on Bordentown Avenue, which has a single lane each way, in South Amboy, New Jersey. She stopped in her lane and waited to make a left-hand turn until oncoming traffic passed. As she was waiting to turn, she looked in her rearview mirror and noticed another car approaching her, but not slowing down. The other car, driven by defendant, struck the rear of plaintiff's car and pushed her into the oncoming lane. Plaintiff had her seatbelt on and she was not struck by any oncoming traffic. Police were called and plaintiff was taken from the scene in an ambulance to Raritan Bay Medical Center in Perth Amboy. Plaintiff's vehicle only sustained slight damage to the bumper and the rear-door hatch.

Upon arriving at the emergency room, plaintiff complained of a headache, nausea, dizziness, and pain in her neck and back. X-rays of her neck and lower back were taken at that time. The x-rays revealed "no fracture or interruption of the neural arches," but "slight longstanding narrowing at the levels of the C5-C6." The treating doctors gave plaintiff a neck brace and Tylenol for the pain and subsequently released her. She was then picked up and driven home by her husband. After arriving home, because her neck and back were bothering her, plaintiff called a chiropractor, Dr. Edward Palluzzi. When asked how she got Palluzzi's name, plaintiff explained that she was referred to him by her son's girlfriend. Plaintiff did not acknowledge, nor was she asked about, the fact that she had been treated by Palluzzi since 1997. Plaintiff did state that she chose to go to a chiropractor rather than another type of doctor because "it was bone things. Things like that, cervical. And I thought it would be the best place to go."

During the first two or three weeks after the accident, while being treated by Dr. Palluzzi, plaintiff explained to him that she was experiencing pain in her neck, shoulders, and arms, mostly on her left side. Based on these continued complaints, Palluzzi recommended that she "have an MRI, CAT Scan and an EMG," and referred her to a neurologist, Dr. Gautum Seghal. On April 23, 2002, Seghal conducted an EMG test on plaintiff's left side only. Seghal found that "[t]he upper left side EMG study was abnormal. There was evidence of C6-C7 Cervical Radiculopathy."

On May 28, 2002, plaintiff visited Dr. Sharon C. Worosilo, a pain management doctor, who, after examining plaintiff, determined that since chiropractic care seemed to be working, plaintiff should continue undergoing such treatment. Worosilo also recommended that plaintiff "try a short course of physical therapy."

Later, on September 11, 2002, plaintiff was referred by a friend to an orthopedic surgeon, Dr. Cary D. Glastein. Glastein examined plaintiff and determined that she suffered from "cervical and lumbar disc pathology after a motor vehicle accident, [which was] [q]uite symptomatic." As a result, Glastein recommended that plaintiff discontinue chiropractic care, and begin physical therapy. Plaintiff visited Glastein six more times from October 2002 to June 2003. He prescribed a different treatment each time.

About a year and a half after the accident, plaintiff testified that she had less pain in her neck, back and left arm, but continued to experience pain in her right arm. In the summer of 2003, "out of the clear blue," she began to feel numbness in her right arm down to three of her fingers, "like [she] smashed [her] funny bone, when [she] didn't." As a result, plaintiff was referred to Dr. Franklin J. Frasco, a vascular doctor, whom she first visited on August 4, 2003. Frasco diagnosed defendant as having thoracic outlet syndrome (TOS) of the right upper extremity and recommended physical therapy, home exercises, non-steroidal anti-inflammatories and muscle relaxants.

Plaintiff followed up with Dr. Frasco on November 5, 2003, at which time Frasco recommended continued use of anti-inflammatory drugs. Plaintiff saw Frasco a third time on December 22, 2003. He suggested following through with one of three options: "expectant care, alternative therapies or surgical intervention." Because the surgery was quite invasive, plaintiff declined to proceed with that alternative. She did not see Frasco after rejecting the surgical option in December 2003.

Plaintiff testified at trial that she continues to receive treatment through her chiropractor and gets massages from family members. She explained that her neck, lower back and left upper extremity cause her little pain, but that her right upper extremity, where the TOS was diagnosed, causes her significant problems. Because of the injuries suffered in the accident, she not only experiences physical problems, but also claims that she has trouble performing daily activities including sleeping through the night, cooking, food shopping, folding laundry, and anything involving lifting heavy objects. Despite her injuries, she testified that she still works out at the gym once or twice a week and is able to swim two or three times per month.

None of plaintiff's treating physicians testified at the damages-only trial in April 2006.*fn2 Plaintiff's medical expert, Dr. Alan Tiedrich, examined her on January 12, 2005, in preparation of litigation. After reviewing her medical history and performing his examination, Teidrich diagnosed plaintiff with right-side TOS. He testified that such condition is a direct result of the March 13, 2002 accident. Although Teidrich reviewed plaintiff's medical history, that history was not admitted as evidence, as it had been specifically excluded by the judge, a ruling discussed hereafter. Teidrich did explain, however, that "[he] think[s] it is clear that there's no evidence that the patient ever had these problems [TOS] prior to this accident," and that this injury will not heal, even with further medical treatment.

Defendant's expert, Dr. Jeffrey Pollock, testified that he examined plaintiff on January 6, 2005. Contrary to Tiedrich's assessment, Pollock opined in his January 14, 2005 report that plaintiff's "clinical exam does not confirm the presence of thoracic outlet syndrome," and "there is nothing in the history here to suggest thoracic outlet syndrome as suggested by Dr. Frasco." He testified that plaintiff displayed no evidence "of any neurological dysfunction . . . ."

II.

On appeal defendant raises ...


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