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Boruch v. Scharff


November 2, 2007


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

Per curiam.


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.


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 . . . ."


On appeal defendant raises four issues:






Prior to trial, plaintiff moved in limine to bar evidence of plaintiff's past medical history. Plaintiff argued that the evidence was not probative because it was unrelated to the TOS, which was the only injury plaintiff was claiming to be permanent. Plaintiff further contended that the evidence would be highly prejudicial. See N.J.R.E. 403. Both parties agreed that neither expert's opinion suggested that plaintiff's TOS could have resulted from her prior injuries. In granting plaintiff's motion, the trial judge reasoned that:

I think that if the experts reports are as they are represented here, and I have no reason to doubt [plaintiff's counsel's] analysis of them, that his position is sound, that there's a strong potential to weigh the injuries that she suffered in the past as having some minimizing factor regarding this injury, and without an expert there's no way to know that.

* * * I'm going to grant the motion based on that representation as to the expert's conclusions that there will be no reference to the prior back and neck injuries unless we can - - unless there is testimony that she suffered a prior Thoracic Outlet injury dealing with the brachial plexus.

At the outset, we note the prior injuries that were excluded, first as set forth in Dr. Tiedrich's report of his January 12, 2005 evaluation:

In 1986 the patient had a back injury.

In 1989 she had a slip and fall with back injury. In February 1997 she had a motor vehicle accident, which resulted in a C5-6, C6-7 herniation, L4-5 annular tear with a herniation, L5 radiculopathy, left side carpal tunnel syndrome and a left shoulder injury. In 1994 she had an L5,S1 laminotomy with foramenectomy.

In a report of Dr. Edward S. Rachlin dated January 28, 2005, he noted plaintiff's history as follows:

1989, the patient fell down injuring the low back. Pain radiated to the right leg.

Prior to 1997 MVA she experienced occasional low back pain and right leg pain with weather changes. 1997, MVA. The patient was driving rear-ended by hit and run. She sustained a whiplash injury, aggravated previous low back injury. She recovered quickly. She received chiropractic treatment with Dr.

Polizzi for nine or 12 months. At the end of 1998, she was 100% great. Once in awhile headaches. No neck or back pain. Prior to the accident of 3/12/02, she was coming along, going for chiropractic treatments once or twice a month.

The patient had L5-S1 laminectomy. She does not recall the year. Perhaps 1993.

A report of a State disability examination on August 18, 2003, summarized the prior history as: a herniated nucleus pupolsus and annular tear at L4-5 and degenerative disc disease, C5-6, C6-7 and a central herniated disc at C5-6 and C6-7. This is from MRI's in 1997.

The herniated disc was at L4-5. From the new MRI, she also has disc bulging L2-3, L3-4, L4-5 and retrolithesis L5 on S1.

Defendant argues that plaintiff's prior medical history was probative for several reasons. First, defendant points to plaintiff's answers to interrogatories. In response to a question asking for a description of the "nature, extent and duration of any and all injuries" resulting from the March 13, 2002 accident, plaintiff responded as follows:

Thoracic Outlet Syndrome demonstrated by clinical evaluation and objective testing including loss of radial pulse and scalene spasm.

C5-6 disc complex and C6-7 disc herniation indenting the thecal sac with right foraminal narrowing per MRI; C6-C7 cervical radilulopathy per needle EMG/NCV.

L2-L3, L3-L4, L4-L5 disc bulges; L5-S1 disc bulge and retrolisthesis with facet disease; bone lesion at S2 level.

Symptoms include post traumatic stress neurosis; cervicalgia/occipital headaches with nausea; episodes of incontinence; neck pain radiating into the upper extremities; numbness and weakness of the arms and shoulders; back pain radiating into both legs, buttocks and right foot; numbness and weakness of both hips and legs; loss of balance; pain stiffness, weakness and limitation of motion of head, neck, left arm, left shoulder, back, both legs, hips and buttocks and right foot.

In response to another question asking for a description of all injuries "claimed to be permanent with all present complaints," she certified:

Residuals for all above described injuries including, but not limited to post traumatic stress neurosis with headache; cervicalgia/occipital headaches with nausea; episodes of incontinence; neck pain radiating into the upper extremities; numbness and weakness of the arms and shoulders; back pain radiating into both legs, buttocks and right foot; numbness and weakness of both hips and legs; loss of balance; pain, stiffness, weakness and limitation of motion of head, neck, left arm, left shoulder, back, both legs, hips and buttocks and right foot; restrictions on all activities of daily living, difficulty sleeping due to pain.

Finally, in response to a question regarding prior injuries and whether they are claimed to have been exacerbated or aggravated, plaintiff said:

I did have prior low back and neck problems including low back surgery. I also treated periodically with my chiropractor for minor symptoms prior to this accident. I was never diagnosed with throacic outlet syndrome before this accident. My back and neck were feeling relatively fine before this accident. I will defer to the opinions of my doctors.

In seeking to preclude inquiry into plaintiff's prior injuries and treatment, her counsel represented to the judge that plaintiff's claim for permanent injury would be limited to the TOS. As defendant points out, however, plaintiff did not entirely abandon her non-TOS injuries but testified about her neck and back problem and the treatment she received for those conditions, although she testified that those problems had subsided, "quieted down," by the time of trial. Yet, in his final instructions the judge informed the jury that plaintiff also could be compensated for "temporary" injuries, as long as the jury concluded she had sustained some permanent injury.

Defendant also argues that the in limine ruling prevented her from confronting Dr. Tiedrich with the prior injuries and seeking to establish through cross-examination that some of the complaints attributed to TOS might have resulted from defendant's prior injuries/conditions. Plaintiff counters that without expert testimony linking plaintiff's prior injuries and symptomotology to the TOS, defendant could not be permitted to cross-examine in this area. Alternatively, she argues that even if the prior injuries had some probative value, the judge properly exercised his discretion in excluding the evidence under N.J.R.E. 403, that is, concluding that the probative value, if any, was outweighed by the potential for prejudice.

It is true that "N.J.R.E. 403 specifically allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. These decisions are reviewed under the abuse of discretion standard." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

Specifically, in regard to whether evidence of plaintiff's prior injuries is properly introduced on cross-examination, the Court has held that "[a] plaintiff may be cross-examined as to prior injuries to show that [her] present physical condition did not result solely from defendant's negligent act, but was caused, wholly or partially, by an earlier accident or pre-existing condition." Paxton v. Misiuk, 34 N.J. 453, 460 (1961). However, defendant "must show that the evidence has some 'logical relationship to the issue in the case.'" Allendorf v. Kaiserman Enterprises, 266 N.J. Super. 662, 672 (App. Div. 1993) (quoting Paxton, supra, 34 N.J. at 460).

In addition, Allendorf explained that "this logical relationship generally must be established by appropriate expert medical opinion." Ibid. The defendant must provide "competent proof from which it could be found that the [current] injury was . . . attributable to" a prior incident, rather than to just the current accident. Paxton, supra, 34 N.J. at 461. "[T]he general test of admissibility of such evidence is "'one of possibility, rather than probability.'" Allendorf, supra, 266 N.J. Super. at 673 (quoting Paxton, supra, 34 N.J. at 461). Therefore, in the present case, if defendant could show through expert testimony or otherwise that it was a "possibility" that plaintiff's diagnosis of TOS was in part due to her prior injuries, evidence of such prior injuries would be properly admitted on cross-examination.

We see no need to resolve whether defendant made a proper record on which to cross-examine Dr. Tiedrich about plaintiff's prior injuries in an effort to undermine his TOS diagnosis. On the one hand, defendant might well have elicited such concessions from the doctor on cross-examination. There is little doubt that a good faith basis existed for such a line of inquiry. On the other hand, the fact that defendant's expert did not find that plaintiff was suffering from TOS -- or any permanent injury -- did not preclude defendant from producing expert testimony, from Dr. Pollock or someone else, that some of plaintiff's TOS symptoms were possibly related to prior injuries. Defendant obviously did not do so.

Nevertheless, we are persuaded that the ruling in question was erroneous in that it precluded defendant from demonstrating that plaintiff's non-permanent back and neck problems did not result from the present accident. As noted, plaintiff made those other injuries part of her case and the judge permitted the jury to award damages for them. Under the circumstances, we see no basis to apply Rule 403. In addition, the prior injuries were a proper subject for impeachment in light of plaintiff's answers to interrogatories in which she claimed that those injuries were permanent. The answers to interrogatories were certified and, despite her belated effort to jettison those answers by limiting her present injury claim to TOS, we believe this was fair ground for impeachment.

To the extent that it appeared that the judge may have exercised his discretion under Rule 403, we conclude that the ruling constituted a misapplication of discretion. Any concern of prejudice could have been easily alleviated by an appropriate limiting instruction. Defendant was denied a significant avenue of inquiry and we cannot say that her defense was not thereby prejudiced.


At the same in limine motion, plaintiff sought to preclude defendant from using photographs showing the minimal damage to her vehicle. In granting that motion, the judge relied on our decision in Brenman v. Demello, 383 N.J. Super. 521 (App. Div. 2006), rev'd, 191 N.J. 18 (2007), in which we adopted a per se rule that photographs of minor damage to a plaintiff's vehicle should be excluded unless there was evidence, generally through expert testimony, causally linking the extent of damage to the cause or extent of the injuries at issue. Id. at 535-38. Since the trial in this case, and since the briefs were submitted, the Supreme Court reversed Brenman, holding as follows:

In the main, the fundamental relationship between the force of impact in an automobile accident and the existence or extent of any resulting injuries does not necessarily require "scientific, technical, or other specialized knowledge" in order to "assist the trier of fact to understand the evidence or to determine a fact in issue[.]" N.J.R.E. 702. Of course, a party opponent remains free to offer expert proof for the purpose of persuading the factfinder to overcome an absence of proportionality between the force of the impact and the cause and severity of the resulting injuries. Conversely, a party proponent may tender its own expert proofs to further support the proposition in its case-in-chief - - either that slight impact force results in no or slight injury, or that great impact force results in great injury - - or to rebut its opponent's assertions. Such expert proofs, however, address the weight to be given to photographs of impact, not their admissibility.

Finally, we acknowledge those cases outside the heartland of common knowledge where slight force causes great injury or where great force causes little injury. In order to account for those possibilities, where photographs of vehicle damage are admitted, the trial judge should remind the jury that some bad accidents result in little injury, that some minor accidents result in serious injury, and that, therefore, the level of damage to a vehicle is but one factor to be considered, along with all of the other evidence, in determining the level of plaintiff's injuries resulting from the accident. [Brenman v. Demello, 191 N.J. 18, 35-36 (2007) (footnote omitted).]

Plaintiff agrees that the trial judge exercised his discretion in excluding the photographs. However, our reading of the record leads us to conclude that the judge relied on our now overruled opinion in Brenman. Nevertheless, as the Court made clear in Brenman, there is still room for an exercise of judgment in the photo-admissibility context. Id. at 33-34.

As a result, on retrial the judge should conduct the appropriate analysis under Brenman and place findings and conclusions on the record. R. 1:7-4.


In light of our disposition, we see no need to address defendant's "time-unit" argument. At any new trial, defendant is presumably on notice that plaintiff may use that argument. Despite our conclusion that a new trial is required due to evidentiary error, we find defendant's against-the-weight-ofthe-evidence argument to be without merit. R. 2:11-3(e)(1)(A). Reversed and remanded for a new trial on damages.

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