On appeal from Superior Court of New Jersey, Law Division, Bergen County, L-10419-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
POINT II:*fn2 DEFENDANT'S MOTION FOR AN INVOLUNTARY DISMISSAL PURSUANT TO R. 4:37-2(b) WAS IMPROPERLY DENIED AT THE CLOSE OF RESPONDENT'S CASE BASED UPON THE TRIAL COURT'S ERROR IN REFUSING TO GIVE THE JURY A LIMITING INSTRUCTION PURSUANT TO N.J.R.E. 105.
POINT III: MULTIPLE EGREGIOUS AND PREJUDICIAL STATEMENTS BY RESPONDENT'S COUNSEL IN HIS OPENING AND SUMMATION MANDATE A REVERSAL AND NEW TRIAL.
POINT IV: THE TRIAL COURT ERRED BY PERMITTING THE CROSS-EXAMINATION OF A DEFENSE MEDICAL EXPERT WITH FOUR PRIOR REPORTS CONCERNING DIFFERENT INDIVIDUALS, WITH DIFFERENT FINDINGS, DIFFERENT DIAGNOSES AND DIFFERENT MRI FILMS.
POINT V: THE CUMULATIVE EFFECT OF THESE ERRORS WARRANT A NEW TRIAL.
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 what do radiologists do?
Q: That's what they do, they read films, correct?
Q: And you rely on radiologist's interpretation of films, correct?
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?
Q: And desiccation is a drying out of the ...