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Clarke v. Piscopo

November 9, 2007

MILAGROS C. CLARKE, PLAINTIFF-APPELLANT,
v.
PETER A. PISCOPO, JR., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-000007-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: September 26, 2007

Before Judges Axelrad and Payne.

Plaintiff, Milagros Clarke, who was subject to the verbal tort threshold, was injured when defendant rear-ended the vehicle she was operating on June 19, 2002. Plaintiff filed suit, claiming she sustained temporary and permanent injuries to her neck, back, and shoulders as a result of the automobile accident. Defendant stipulated liability for the accident, and the case proceeded to trial on the issue of damages. The jury returned a $75,000 damage verdict in plaintiff's favor. Plaintiff moved for a new trial, claiming error in the trial court's denial of her request for: (1) a Puso charge*fn1 that, if the jury found a permanent injury, it should then consider all injuries, whether permanent or temporary, in calculating damages, and (2) modification of the jury interrogatory on damages to insert the word "all" before "injuries" The motion was denied. On appeal, plaintiff contends the lack of a Puso instruction and a misleading verdict sheet resulted in reversible error and a jury verdict that shocks the conscience and is a miscarriage of justice. We are not persuaded by these arguments and affirm.

At the trial in August 2006, forty-two-year-old plaintiff testified, and she presented the testimony of her sixteen-year-old daughter Melownie Bonnevil; chiropractor, Dr. James Galgano; and the videotape deposition testimony of orthopedic surgeon, Dr. Mark Reiner and neurosurgeon, Dr. Joan O'Shea. Defendant testified and presented Dr. Roy Friedenthal, an orthopedic surgeon, as his expert.

In his opening statement, plaintiff's counsel described the accident in which defendant, who was traveling about 30 mph, rear-ended plaintiff, causing her to be thrown forward in a whiplash motion. He disclosed that plaintiff had treated with a chiropractor from March to June 13, 2002, for spinal problems that he claimed were related to her job as a waitress, but asserted she was not experiencing any neck pains when she was discharged. He emphasized that plaintiff never experienced radiating pain down her arm prior to the accident. Counsel summarized plaintiff's medical treatment following the accident, including her complaints of cervical strain and shoulder pain to her family physician, Dr. Varner; the cervical spine MRI showing herniated discs at C3-4 and C4-5; the epidural injections to her neck by pain management specialist, Dr. Peter Arino; her visits to the chiropractor, Dr. O'Hay; and the arthroscopic surgeries to both shoulders performed by Dr. Reiner and the anterior cervical diskectomy fusion at C4-5 and C5-6 performed by Dr. O'Shea. Plaintiff's counsel claimed the accident caused nerve damage to plaintiff's neck, stressing that plaintiff had plates and screws in her neck and limited range of motion; and, as a result of plaintiff's various injuries, was in pain on a regular basis and her activities were severely limited. Plaintiff's counsel did not discuss verbal threshold requirements of permanency or differentiate between any of plaintiff's injuries as temporary or permanent.

Plaintiff testified about a prior automobile accident when she was about twenty years old that resulted in a "pinched nerve" and injuries to her lower spine at L-4 and L-5, causing excruciating, radiating leg pain. She did not experience any problems with her neck or shoulders, nor did she experience any radiating pain down either one of her arms at that time, or at any time prior to the subject accident. Plaintiff further testified she was physically active and in "great shape" before the accident. She acknowledged, however, that in March 2002, approximately three months before the accident, she began treating with Dr. Galgano, a chiropractor, because of lower back pain. She claimed she was discharged from his care six days before the accident.

Through cross-examination of plaintiff and Dr. Galgano, defense counsel addressed plaintiff's prior neck-related complaints and treatment. For example, plaintiff noted on the Patient Intake form completed at the time of the initial chiropractic visit that she had been experiencing neck pain, lower back pain, and tingling in her right leg since November 1996. In addition, Dr. Galgano testified with reference to his office notes of plaintiff's visits throughout the three-month treatment period, which document regular complaints of cervical pain and neck stiffness, though improving. Furthermore, contrary to plaintiff's testimony, Dr. Galgano testified that plaintiff had not been discharged from his care; rather, she had three appointments scheduled subsequent to the accident but failed to return for those appointments.

Dr. Reiner testified that when he first examined plaintiff on September 12, 2002, she reported that as a result of the accident she sustained injuries to her neck, back, and shoulders, and complained of pain in those areas and of radiating pain into her right arm and leg. According to Dr. Reiner, the August 2002 MRI of plaintiff's lumbar spine was normal, the MRI of her cervical spine showed two herniated discs between C3-4 and C4-5, and the MRI of her shoulder indicated a possible tearing to the labrum on the right and left side. The March 2004 MRI showed disc bulges to the cervical spine at levels C3-4, C4-5 and C5-6.

Dr. Reiner performed arthroscopic surgery to repair the tear of the interior glenoid labrum of plaintiff's right shoulder on June 11, 2003, and performed the same procedure to her left shoulder on August 20, 2003. Dr. Reiner related that Dr. Arino gave plaintiff a series of epidural injections to her neck, and when she did not feel better, she was operated on by Dr. O'Shea in May 2004.

Dr. Reiner testified that during plaintiff's last visit in May 2005 she was still complaining of stiffness and soreness to her shoulders; stiffness, soreness, discomfort to her neck and back; she had 60% of normal movement to her cervical spine; she had a positive Tinel's*fn2 sign above her left elbow; she had a restricted movement in her back of 60% of normal with spasm and tenderness; her straight leg raised produced some back pain; and she had continued symptoms of neck, back and shoulder pain. He opined that she had permanent injuries to her cervical spine, neck, right and left shoulder, and low back or lumbar spine. Dr. Reiner acknowledged that plaintiff had some pre-existing problems with her neck and back, which were improving as of the date of the accident. He opined that the vast majority of plaintiff's problems were attributable to the accident and that her shoulder injuries were entirely caused by the accident. The expert concluded that the injuries to plaintiff's spine and shoulder were permanent based on the MRIs and residual effect of the surgeries. He further concluded that the symptomatic soft tissue injury to plaintiff's low back was permanent despite not having a herniated disc there.

Dr. O'Shea testified that she first examined plaintiff in February 2004 and diagnosed that she was suffering from herniated discs in her neck caused by the accident, that she had failed to obtain relief from conservative treatment (chiropractic, epidural injections, and time), and that surgery was necessary. Dr. O'Shea described in detail the interior cervical diskectomy and fusion procedure she performed on plaintiff's neck at the C4-5 and C5-6 levels in May 2004. She opined that the herniated discs at C3-4 and C4-5 and the need for surgery at C4-5 and C5-6 were the direct result of the motor vehicle accident, and that plaintiff suffered a permanent injury and loss of function of her neck because she could not move properly. Dr. O'Shea discharged plaintiff from her care in October 2005.

Defense counsel's opening statement and cross-examination of plaintiff's witnesses focused on plaintiff's pre-existing injuries to her neck and back, and her lack of candor to Dr. Reiner and Dr. O'Shea about her prior medical history and treatment. On cross-examination, both of plaintiff's experts acknowledged that she did not disclose her pre-accident chiropractic treatment for neck and back pain, headaches, and tingling in her leg, or that she had reported the problems as commencing in November of 1996. Nor had plaintiff informed either doctor of her involvement in an episode in a bar in December 2002, in which she was thrown against a wall and complained to her family doctor of tailbone pain. Both of plaintiff's experts, however, testified that their subsequent knowledge of plaintiff's pre-accident complaints and chiropractic treatment did not affect their opinions regarding the injuries plaintiff sustained in the accident.

Defendant's expert, Dr. Friedenthal, who evaluated plaintiff on August 25, 2004, testified that the bulk of plaintiff's injuries were pre-existing conditions not caused by the accident, and opined that plaintiff did not suffer any permanent residuals as a result of the accident. He referenced the emergency room records, which did not mention any shoulder pain or problems; Dr. Varner's June 24, 2002 notes as only recording plaintiff's complaints of right shoulder discomfort; and the fact that plaintiff subsequently treated with a different chiropractor, Dr. O'Hay, rather than returning to Dr. Galgano. Dr. Friedenthal noted no muscle atrophy in plaintiff's upper arms or legs; found no muscle spasm; and his neurological examination was normal, as were all reflexes. He further noted that plaintiff's ranges of motion in her various limbs and joints were inconsistent; she moved through wider ranges of motion while he was "casually observing" her than when he was actually testing her for her range of motion. The expert interpreted the 2002 cervical MRI film to reflect degenerative disc changes rather than herniation, and found mild degenerative disc changes to C4-5 and minimal degenerative disc changes to C5-6 in the 2004 films. Dr. Friedenthal also did not observe any localized acute changes or "traumatically caused damage" to plaintiff's spine on the MRIs that he reviewed; rather, he noted the abnormalities and changes were consistent with the wear and tear of degenerative disc changes.

Dr. Friedenthal also challenged the causal relationship of plaintiff's shoulder injury to the accident. In his opinion, the fact that during arthroscopic surgery Dr. Reiner found a small glenoid labral tear, which was actually a "fraying" in the inner surface, but no rotator cuff tear, was consistent with degenerative changes in the shoulder rather than a traumatic injury. His finding of similar conditions in both shoulders reinforced ...


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