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Fea v. Shull

November 13, 2007

ALICE FEA, PLAINTIFF-RESPONDENT,
v.
CYNTHIA SHULL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-247-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued October 25, 2007

Before Judges Parker, R. B. Coleman and Lyons.

Defendant Cynthia Shull appeals a judgment entered against her following a jury verdict finding plaintiff Alice Fea had suffered a permanent injury pursuant to N.J.S.A. 39:6A-8 and awarding damages of $190,000. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On April 1, 2003, plaintiff was driving towards Shop-Rite in Flemington on Route 31 when she was hit from behind by defendant. Following the accident, neither police nor an ambulance was called to the scene. Plaintiff drove away from the scene and proceeded to Shop-Rite to do her shopping. She did not go to the emergency room. On the night of the accident, plaintiff called her primary care physician but was unable to reach him. She eventually saw the doctor two days later. At that time, she complained of pain and stiffness in her lower back going into her left leg and numbness in her left leg.

Plaintiff's primary care physician referred her to Dr. Patrick Collalto, a board certified orthopedist, for treatment. Dr. Collalto diagnosed plaintiff with a pinched nerve and recommended an MRI. The doctor reviewed the MRI films and testified that the MRI showed a left lateral disc herniation at either L2-3 or L3-4. Dr. Collalto testified that the disc injury is a permanent injury. He referred plaintiff for chiropractic therapy in lieu of physical therapy. In addition, Dr. Collalto suggested plaintiff consider steroid injections as a treatment option. Plaintiff, however, did not avail herself of that treatment option.

In January 2004, plaintiff filed this action along with her husband, who filed a per quod claim seeking damages for personal injuries allegedly suffered by plaintiff arising out of the motor vehicle accident.*fn1 Following the close of discovery in this matter, plaintiff moved for summary judgment on the issue of liability, which was granted. The matter was then tried before a jury on the issue of damages.

Prior to the beginning of trial, plaintiff moved, in limine, to bar several items of evidence from the jury's consideration. She moved to bar any reference by defendant to the circumstances of the accident, such as traffic conditions, speed, severity of impact, and property damage to the respective vehicles. The trial judge held that absent some "opening of the door" by plaintiff's testimony, the circumstances of the accident and impact were not relevant and the evidence would not be permitted.

Following the close of plaintiff's case, defendant moved for a directed verdict on the issue of plaintiff's satisfaction of her burden of proof under N.J.S.A. 39:6A-8. Defendant argued that plaintiff's medical expert, Dr. Collalto, had opined that further medical treatment in the form of a steroid injection could have returned plaintiff to normal function and, therefore, plaintiff failed to establish the injury was permanent as defined by N.J.S.A. 39:6A-8. The trial judge denied the motion, finding that there was sufficient evidence in the record for the jury to infer that the treatment may have provided some reduction in pain, but would not guarantee that the herniation would heal.

The matter was then tried to conclusion. The jury found plaintiff sustained a "permanent injury" within the meaning of N.J.S.A. 39:6A-8 and awarded plaintiff the sum of $190,000 in damages. Defendant filed a motion for judgment notwithstanding the verdict, a new trial, or in the alternative, a remittitur. The court denied the motion in all respects, and this appeal ensued.

On appeal, defendant presents the following arguments for our consideration:

POINT I

A NEW TRIAL SHOULD BE GRANTED DUE TO THE TRIAL COURT'S PROHIBITION OF QUESTIONING AND EVIDENCE CONCERNING THE ...


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