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Agha v. Feiner


December 18, 2007


On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-10419-04.

Per curiam.


Argued November 13, 2007

Before Judges Weissbard, Gilroy and Baxter.

Defendants Valerie M. Feiner and Barbara A. DeLillo appeal a jury verdict in their damages only trial, in which the jury found in favor of plaintiff Mahmoud Agha. We reverse and direct the entry of judgment for defendants due to a violation of principles recently explicated in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), which are fully applicable to this case.

The pertinent facts are simply stated. On September 1, 2003, plaintiff was a passenger in a vehicle operated by his wife, Laura Sabagh, and owned by Jamil Sabagh. While Agha and Sabagh were stopped at a traffic light, a car driven by defendant Feiner, and owned by defendant DeLillo, struck the car driven by Sabagh in the rear. Agha and Sabagh allegedly sustained injuries from this accident and each filed suit.

Plaintiff filed his complaint on July 12, 2004, naming Feiner, DeLillo, Laura Sabagh and Jamil Sabagh as defendants. On January 14, 2005, Laura Sabagh filed her complaint against Feiner and DeLillo.

Sabagh and plaintiff's claims were consolidated; their injuries were both subject to the tort threshold under N.J.S.A. 39:6A-8(a).*fn1 Defendants admitted liability for causing the accident, but denied that the injuries sustained by plaintiff and Sabagh were proximately caused by the accident and further denied that such injuries were permanent.

Trial commenced on October 2, 2006. Although the record is unclear, it appears that plaintiff's claims against Laura Sabagh and Jamil Sabagh were somehow resolved because the trial litigated only the liability of DeLillo and Feiner. Plaintiff's witnesses included himself, Laura Sabagh, Dr. Thomas P. Ragukonis, and Dr. Adam Awari. The witnesses for defendants included Dr. Joseph Willner and Dr. Joseph Noble.

The jury returned a verdict in the amount of $80,000 in favor of plaintiff, but no cause as to Sabagh. Sabagh has not appealed.

Defendants present the following arguments for reversal of the jury verdict:





We find merit in Points II and III. Although we have no need to discuss Point IV, for the sake of completeness we note our conclusion that it is without merit and does not warrant further discussion. R. 2:11-3(e)(1)(E). Because of our disposition we need not address Point V alleging cumulative error.

Plaintiff testified that on September 2, 2003, the morning after the accident, he saw Dr. Adam Awari, a chiropractor, because he experienced pain in his knee, neck and back. Dr. Awari told plaintiff to obtain MRIs and x-rays; plaintiff subsequently obtained the MRIs, which were read by Dr. Rod Default, a radiologist, at Passaic Beth Israel Hospital MRI Imaging Center. Plaintiff sought treatment from Dr. Awari for approximately three months. His knee and neck improved, but his back did not. Plaintiff last visited Dr. Awari in December 2003.

For over two years, plaintiff did not receive any medical treatment. On July 21, 2006, plaintiff saw Dr. Thomas P. Ragukonis, a pain management specialist, who told plaintiff to have new MRIs done because the initial films were too old. Plaintiff did not obtain the new MRIs.*fn3

Prior to September 2, 2003, plaintiff had never seen a doctor for his back, nor had he been in any prior accidents. Plaintiff testified that he was experiencing pain that affected his daily life.

Dr. Ragukonis qualified as an expert in anesthesiology and pain management. His initial examination of plaintiff was on July 21, 2006. During that examination, Dr. Ragukonis had the following pertinent records of plaintiff: a lumbar spine x-ray report; chest x-ray report; MRI report of cervical spine; MRI report of lumbar spine; neurologic consultation by a Dr. Sabato with an EMG test; and an "evaluation of summary" by Dr. Awari.

Plaintiff's counsel asked Dr. Ragukonis, "what were the results of Mr. Agah's MRI of his lumbar spine?" At that point, defense counsel objected, arguing that defendants were entitled to a limiting instruction. At sidebar, defense counsel argued that the MRI report was only admissible as the basis for Dr. Ragukonis's opinion, and was not admissible as substantive proof of a herniated disc. The trial judge declined to give a limiting instruction, reasoning that N.J.R.E. 703 permitted the testimony. When the trial resumed, plaintiff's counsel continued his direct examination of Dr. Ragukonis:

Q: Dr. Ragukonis, what were the results of Mr. Agah's MRI, lumbar MRI?

A: He had a herniated disc at L5-S1.

Q: And where was that report generated from?

A: The interpreting doctor?

Q: The facility and or the doctor.

A: Passaic Beth Israel Hospital.

Q: And it was read by?

A: Rod Default, MD.

Q: Is he a radiologist?

A: Yes.

Q: And what do radiologists do?

A: Read films.

Q: That's what they do, they read films, correct?

A: Yes, sir.

Q: And you rely on radiologist's interpretation of films, correct?

A: I do.

Dr. Ragukonis explained the difference between objective and subjective medical evidence, testifying that an MRI, an EMG and a physical exam are objective tests. He testified that after considering the MRI report, the EMG report, and the physical exam of plaintiff, his impression was that plaintiff had back pain, neck pain, muscle pain, and a herniated disc in his back. According to Ragukonis, the herniated disc, was, to a reasonable degree of medical certainty, caused by the accident and was a permanent injury.

On cross-examination, Ragukonis testified that he did not read, review or see the MRI films, and would defer to a neuroradiologist's reading of an MRI.

On redirect, Dr. Ragukonis testified again about the MRI report as follows:

Q: [Defense counsel] also said [the MRI report] mentions desiccation, correct?

A: Correct.

Q: And desiccation is a drying out of the discs, correct?

A: It says mild desiccation, yes.

Q: Yeah. That's what it says, mild desiccation.

A: Yes.

Q: Does that mean it's just a little bit dried out?

A: I would imagine, yes.

Q: And that dried out area that's called mild desiccation, what level of the spine is it at?

A: L5-S1.

Q: Is that where the herniation is?

A: Yes.

Q: Does it say anything at this desiccation at any of the other levels of the lumbar spine?

A: It does not.

Q: Okay. Let's look at the MRI results of the cervical spine, that's the neck right above the lumbar. What does it say there with regard to intervertebral disc height? Can you read the final results?

A: I'm having trouble seeing. There are no focal disc herniations [that] are significant now at neural foramen.

Q: Would you go one sentence above that or the line above?

A: The intervertebral discs are and it appears like normal in height.

Q: So is there any signs of desiccation and drying out in those discs?

A: No, sir.

Dr. Awari, a licensed chiropractor,*fn4 testified that he relies on reports such as MRIs and EMGs from other physicians to determine his appropriate course of treatment. When he first sees a patient, Dr. Awari testified that he performs a physical examination and then an orthopedic evaluation to determine whether the injury is related to a disc injury, a nerve injury, or a muscle injury. Dr. Awari then treats the patient for a few weeks. If the patient does not improve, he sends the patient to get an MRI and further testing from a neurologist. In this case, Dr. Awari referred plaintiff to a neurologist, Dr. Sabato. The direct examination of Dr. Awari regarding the MRI was as follows:

Q: Mr. Agha was also sent for MRIs.

A: Yes.

Q: What parts of his body were MRIs performed?

A: They did an MRI of the cervical spine on it says here 10/14.

Q: Okay. What were the results?

A: The MRI is dated October 15th, so the MRI [was] done on 10/14 and it says that - -

[Defendants' counsel]: Objection.

[Plaintiff's counsel]: One second.

[Defendants' counsel]: 703, Judge.

Q: Doctor, in your practice you often rely on MRI reports that are read by radiologists, correct?

A: Yes.

Q: Because you can't read an MRI, right?

A: No.

Q: Okay. Now, where were the MRIs performed?

A: In Passaic Beth Israel Hospital.

Q: Okay.

A: Read by Dr. Default, Rod Default, M.D.

Q: And Dr. Default is a radiologist?

A: He's a radiologist working at the facility.

Q: What was his impression of the MRI of the cervical which is the neck?

A: The impression of the neck it was there is no focal disc herniation or abnormality seen in that neck area, no stenosis, no focal disc herniation and there is only strain of the neck [and] the lower back, no desiccation or any as well information, no disc injury.

Q: Now, what were the results of the lumbar spine?

A: The lumbar spine it says no compression deformity and also the curvature of the lumbar normal at L5-S1 that there is a broad base central herniation. Mild desiccation is seen on the same level of L5-S1 and the rest of the -- what was found unremarkable.

Q: Other than the herniation at L5-S1 and the desiccation mentioned at L5-S1 is there any other mention of degeneration?

A: No, the rest of the disc in the lumbar region shows normal findings.

Q: So in other words, an MRI is objective?

A: Yes.

Q: And what were the findings specifically with regard to the lumbar spine?

A: It says impression here on the lumbar?

Q: What was the exact finding with regard to the L5- S1 disc in this case?

A: Small center broad base herniation at L5-S1 with mild desiccation.

Q: And what type of herniation does Mr. Agha have?

A: He has a focal disc herniation.

Q: Right-sided, left-sided?

A: Let me look at the MRI. So it says central based, so that's not right, left. It's just like in the center, yes.

Q: Let's look at the MRI report.

A: Yes.

At this point, defense counsel again requested a limiting instruction, arguing that the MRI report could not be admitted as substantive evidence: "[The jury] can't be lead [sic] to believe that [the report] is a proof of a herniat[ed] disc. It's the proof of the case, it's the only issue in this case." The judge denied the request. Plaintiff's counsel then resumed his direct examination.

Q: Doctor, let's look at the MRI report of Passaic Beth Israel Hospital.

Q: Now, the second line actually the second line, the second half, well, we're talking about the lumbar MRI here.

A: Uh-huh.

Q: Could you read for me where it begins, "At L5- S1," please?

Defense counsel objected again for the record, arguing that the testimony was hearsay. The testimony continued:

A: Can I read?

Q: Yes.

A: At L5 there is a small growth base disc central herniation. Mild desiccation at this disc level. Dr. Awari then testified that when he forms a diagnosis, he relies on the "physical examination, the reports, and the testing." He testified that to a reasonable degree of certainty, the herniated disc at L5-S1 was a permanent injury.

On cross-examination, Dr. Awari testified that he does not read the MRI films, and would defer to a neuroradiologist's opinion of the films. Dr. Awari further testified that if a patient does not have a diagnosis of herniation, then there is no permanent injury to a disc.

At the conclusion of plaintiff's proofs, defense counsel moved for an involuntary dismissal. R. 4:37-2(b). Counsel argued that the only evidence plaintiff provided of his alleged disc herniation was the MRI report, which was not independently admissible and could not be admitted for the purposes of proving a disc herniation. Thus, according to defense counsel, there was no objective medical evidence of a permanent injury.

The trial judge denied defendants' motion because he found that Dr. Ragukonis and Dr. Awari "set forth all of the basis of [their] opinion that Mr. Agha had sustained a herniated disc at L5-S1 which . . . [was] permanent and proximately caused by this automobile accident of September 1, 2003."

On this appeal, defendants continue to argue that the trial judge erred when he permitted plaintiff's experts to testify about the MRI reports, which were inadmissible hearsay. Defendants argue that although the experts were allowed to base their opinion on the reports, they should not have been allowed to testify about whether the films showed a disc herniation, or, in other words, whether the films established the truth of the matter asserted. Because the trial judge allowed plaintiff's medical witnesses to base their expert opinions on the MRI reports, defendants contend that the trial court should have given a limiting instruction to the jury that the testimony, and the report on which it was based, were not substantive evidence.

Defendants further argue that because the MRI reports, which were inadmissible hearsay, were the only substantive proof of a permanent injury, and the radiologist who prepared the report did not testify, plaintiff failed to provide objective medical evidence of a permanent injury. Thus, the trial court should have granted defendants' motion for involuntary dismissal. Because of these errors, defendants request that the judgment in favor of plaintiff be vacated and a judgment in favor of defendants entered. We agree.

The standard of review for evidence rulings is generally abuse of discretion. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). The trial court, however, is not entitled to such deference when its determination is so "wide of the mark" that a manifest denial of justice resulted. Ibid.

Under N.J.R.E. 703, expert witnesses may base their opinion on facts or data that are not otherwise admissible in evidence, so long as the facts or data are of the type reasonably relied upon by experts in the field. N.J.R.E. 703 does not, however, provide an independent basis for admitting otherwise inadmissible hearsay. Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996). Such evidence is not admissible substantively as establishing the truth of the statement. Ibid. In other words, expert testimony should not be used as "a vehicle for the wholesale [introduction] of otherwise inadmissible evidence." Brun v. Cardoso, supra 390 N.J. Super. at 422 (citation and internal quotation omitted). If an expert does rely on hearsay to form the basis of his opinion, the judge must give a limiting instruction to the jury. N.J.R.E. 105; see also State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd on other grounds, 177 N.J. 229 (2003).

Medical records are generally admissible under the business records exception to the hearsay rule. Brun, supra, 390 N.J. Super. at 421. This exception, however, is limited by the "'degree of complexity of the procedures utilized in formulating the conclusions expressed in the [expert's] report.'" Ibid. (quoting State v. Matulewicz, 101 N.J. 27, 30 (1985)). Medical records containing findings as to complex procedures should not be admitted under the business records exception unless opposing counsel has the opportunity to cross-examine the author of the report. Ibid. An MRI is considered such a complex medical procedure; therefore, it is not admissible under the business records exception or any other hearsay exception. Id. at 422. "[O]n objection, interpretation of an MRI may be made only by a physician qualified to read such films, and . . . the MRI report [cannot] be bootstrapped into evidence." Id. at 421. Before introducing an MRI into evidence, opposing counsel must be assured the opportunity to cross-examine the author of the report. Ibid.

In Brun, the plaintiff was injured in a car accident. Id. at 412. The next day, the plaintiff saw a chiropractor who treated the plaintiff for five months and then sent her to get an MRI. Ibid. A radiologist administered the MRI and opined in his report that the plaintiff had a herniation in her back.

Ibid. The plaintiff also saw a neurologist, who performed an EMG test and found evidence of "nerve root irritation." Ibid.

To prove that she had a "permanent injury," as required by N.J.S.A. 39:6A-8(a), the plaintiff named her chiropractor as an expert witness. Id. at 413. The defendants moved in limine to bar part of the chiropractor's testimony that concerned the alleged disc herniation and its causal relationship to the accident. Id. at 414-15. Due to a series of events not relevant to this case, the plaintiff could not secure as a witness the radiologist who authored the MRI report, and the testimony of the radiologist that she did name was ultimately excluded by the court. Because of these events and the resulting prejudice, the trial court dismissed the case. Id. at 419.

We held that once the radiologist's testimony was excluded, the case was over because "an interpretation of an MRI may only be made by a physician qualified to read such films, and . . . the MRI report could not be bootstrapped into evidence through [the chiropractor's] testimony." Id. at 421. "[A]dmitting [the radiologist's] MRI report without calling him as a witness would deprive defendants of the ability to cross-examine the author of the report on the central issue of the case, namely plaintiff's herniation . . . . In those circumstances, [the radiologist's] MRI report was, on objection, inadmissible hearsay." Id. at 422.

We further held that the chiropractor's opinion of the plaintiff's injuries would have been substantially reliant on the radiologist's interpretation of the MRI films. Id. at 424. We concluded that:

Allowing the chiropractor to testify as to the plaintiff's herniation would have been to permit the admission of the non-admissible hearsay of a non-testifying expert. This attempted circumvention of the Evidence Rules was properly denied by the trial judge. To repeat, this determination is not because the witness was a chiropractor. The same result would have [been] obtained if the witness were a medical doctor unqualified to interpret an MRI. [Ibid.]

Before applying the facts of Brun to this case, we address plaintiff's argument that Brun is inapplicable because it was decided after this trial. We disagree. Even though Brun was decided after this case, decisions in the civil context are generally applied retroactively unless they state a new rule of substantive law. Reuter v. Borough Council of Fort Lee, 167 N.J. 38, 42 (2001). A decision is a "new rule of law" for retroactivity purposes when there is a "sudden and generally unanticipated repudiation of a long-standing practice." Ibid. Brun, however, did not state a new rule; rather, it relied on precedent to conclude that MRI reports that are otherwise inadmissible, cannot be bootstrapped into evidence through expert testimony. Brun, supra, 390 N.J. Super. at 421-22. The application of the law to the facts in Brun may have been novel; however, the principles of law were not. Brun relied heavily on Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276 (App. Div.), certif. denied, 141 N.J. 95 (1995), as well as Matulewicz, supra to reach its conclusion. Brun, supra, 390 N.J. Super. at 421-22.

The operative facts in Brun are virtually identical to the facts in this case. Here, plaintiff named two expert witnesses: Dr. Awari, his anesthesiologist, and Dr. Ragukonis, his chiropractor. Neither witness was qualified to read MRI films, but both of them testified about whether plaintiff had a herniation. Defendants made repeated objections and requested a limiting instruction to no avail. This presented a classic case of bootstrapping otherwise inadmissible MRI reports into evidence.

Additionally, this case starkly presents the need for cross-examination of the doctor who read the MRI. Doctor Noble, who testified for the defense that plaintiff did not have a herniation, was subjected to a thorough, if not blistering, cross-examination as to his conclusions and his bias. As a result of the Brun violation, plaintiff's non-appearing "expert" as to the MRI, Dr. Default, had his opinion presented to the jury free from attack. Indeed, in summation, plaintiff's attorney specifically argued that Dr. Default had "no motive at all," "no motive other than to read these films." Under the circumstances, such a comment was not fair.

Defendants argue that because the MRI reports were inadmissible evidence, the jury should not have been allowed to consider them as substantive proof of the disc herniation. Without proof of a disc herniation, defendants claim that the plaintiff failed to introduce objective credible evidence of a permanent injury, Oswin v. Shaw, 129 N.J. 290, 318-319 (1992). We agree. Defense counsel made proper objections and made the appropriate motion. It would be manifestly unfair to deprive defendants of what should have been the correct ruling. We reject plaintiff's suggestion that a new trial is an appropriate remedy. The judge should have granted defendants' motion for an involuntary dismissal, pursuant to Rule 4:37-2(b).

Although we have concluded that the case should have been dismissed, in the event of further review, we address defendants' argument that statements made by plaintiff's counsel in both opening and summation prejudiced their case. We agree.

In opening, plaintiff's attorney said:

And the reason you're here is because even though the defendant stated this accident was their fault and even that my client suffered some injuries, we know the reason you're actually here is because they offered him zero. There was no settlement offer at all and that's why we're all here. (emphasis added).

Defendants objected to this statement. The trial court sustained the objection and instructed the jury to disregard the remark. As the trial judge realized, this comment was highly inappropriate. In addition to sustaining the objection, counsel should have been strongly admonished.

In summation, plaintiff's attorney said the following:

Look at this. Want to see something interesting? Do you see the shape of the disc, how it's like a lima bean in all these pictures. Now look at the - - look at the disc here. Does that look like a lima bean?

It's bulged out. There's your herniation, right there. It's a broad - - based herniation. He's - - you know, he's-I think he had everybody looking for this focal herniation. There is no focal herniation.

It's a broad-based herniation; and there it is. Look at the shape here; look at the shape there; look at the shape there.

That's no - - that's not normal. That's the injured disc right there. It's broad-based.

It's not focal. That is the difference here.

Counsel's interpretation of the MRI film for the jury was improper, notwithstanding the lack of objection. Counsel was not qualified to interpret the film, which was hardly self-explanatory.

Counsel continued:

[I]t all comes down to whether you believe a person who interpreted a film as his job or you believe a person who's getting paid by the defense and his job is to find no herniation. So it's all about credibility.

I find Dr. Default much more credible.

Defense counsel objected and moved to strike. The trial court sustained the objection and instructed the jury to "disregard the last comment of counsel regarding what he would do."

Nevertheless, counsel persisted in the same vein: if you find Dr. Default's report credible, I - - you know, personally, I find it a lot more credible.

Defense counsel objected again. The judge sustained the objection and said, "counsel cannot argue as to what counsel would do. It's limited to the evidence that was adduced during the course of the trial and any reasonable inferences therefrom."

In addition, counsel's repeated and relentless attack on Dr. Noble in opening and summation, because he was being paid for his testimony, arguably went far beyond an appropriate claim of bias. See Rodd v. Raritan Radiologic Assoc., 373 N.J. Super. 154, 171 (App. Div. 2004). We see no need to further burden this opinion with extensive quotations of counsel's remarks.

Based on the nature and extent of the quoted remarks, we would reverse and order a new trial on this ground alone, despite the trial judge's commendable efforts in striking some remarks from the record. See Haid v. Loderstedt, 45 N.J. Super. 547, 554 (App. Div. 1957).

Reversed and remanded with directions to enter judgment for defendants.

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