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Holland v. Wagenblast

January 14, 2008

KAREN D. HOLLAND, PLAINTIFF-RESPONDENT,
v.
DONALD WAGENBLAST, DEFENDANT-APPELLANT, AND DONNA M. WAGENBLAST,*FN1 DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-1295-03.

The opinion of the court was delivered by: Curiam

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 26, 2007

Before Judges Axelrad, Payne and Sapp-Peterson.

Following a six-day trial, a jury awarded plaintiff, Karen D. Holland, damages after it found she sustained permanent injuries within the meaning of the verbal threshold statute, N.J.S.A. 39:6A-8(a), arising out of a motor vehicle accident with defendant, Donald Wagenblast. Defendant moved for a new trial or, in the alternative, remittitur and/or molding of the verdict. The trial judge denied the motion but agreed that defendant was entitled to a set-off against Social Security disability benefits plaintiff had been receiving. On appeal, defendant argues (1) the trial judge erred in admitting into evidence multiple medical records from plaintiff's non-testifying treating physicians that contained complex medical diagnoses; (2) plaintiff failed to establish and differentiate between the injuries she attributed to defendant's negligence and those stemming from an earlier accident; (3) his new trial motion should have been granted because the verdict was against the weight of the evidence; and (4) the jury's verdict must be reduced in accordance with the "collateral source" provisions of N.J.S.A. 2A:15-97. We reject each of these arguments and affirm.

The following facts were developed at trial. On July 8, 2001, plaintiff was rear-ended by defendant as she slowed her vehicle while approaching a traffic signal on Route 15 in Rockaway Township. The impact caused her vehicle to flip and roll. Emergency personnel removed plaintiff from her vehicle using the "jaws of life." She was transported to Morristown Memorial Hospital where she was admitted with a diagnosis of concussive syndrome and hypoglycemia. Plaintiff remained hospitalized for three days, during which she underwent diagnostic testing, including CAT scans of her cervical spine and brain, as well as X-rays of her chest and pelvis. The results of the diagnostic testing were normal. She was discharged with instructions to follow up with her treating physician. Thereafter, plaintiff treated with a number of medical professionals and also received treatment at the Traumatic Brain Injury Unit of Jamaica Hospital in New York. At the time of trial, she was still under the care of a psychiatrist.

Plaintiff testified about difficulty communicating and "an anger problem" she has experienced since the accident. She indicated that she lacks full function of her shoulder, is unable to reach high or lift objects, and has problems when the weather is bad. She has difficulty recalling certain things and makes it through her day with the use of post-it notes placed around her house that remind her of daily chores. She utilizes a voice recorder to remind her about appointments, a palm pilot to process information, and a laptop computer. She remains unable to tie her own shoes or maintain employment as an actress because she can not remember her lines. Plaintiff also testified that as a result of her memory difficulties, she is no longer able to care for her daughter and had her institutionalized at the Upstate (New York) Home for Children and Adults where she remains.

The jury learned that prior to the July 2001 accident, plaintiff had been involved in a 1992 rear-end motor vehicle accident. Plaintiff testified that as a result of this accident, she suffered from a "very bad memory problem," speech problems, chronic headaches, depression, blackouts, and back pain. She treated with a psychologist, psychiatrist, and a neurologist. In early 1993, the Social Security Administration determined that she was permanently disabled, and plaintiff retired from her position as a full-time corrections officer later that year. At the urging of her psychologist, plaintiff attended Adelphi University, where, in 1996, she earned a Master's Degree in Early Childhood Special Education, with a concentration in Early Intervention. Plaintiff moved to Maryland to teach special-needs children. She then became a resource teacher, assisting regular classroom teachers in working with special-needs students. In 1998, plaintiff remarried and moved to New York where she continued teaching. Two years later, plaintiff ended her teaching career in order to pursue an acting career, which she discontinued following the 2001 accident.

Two medical experts testified on plaintiff's behalf: Dr. Jonathan Fellus, a board certified neurologist, and Dr. Richard Schenk, a board certified orthopedic surgeon. Both doctors reviewed numerous medical records from both the 1992 and 2001 accidents. Based upon his examination of plaintiff and a review of plaintiff's medical records, Dr. Fellus concluded that she made a "functional recovery" from her 1992 injury after treatment, with plaintiff being "able to cope and get around the problems" despite "still [having] underlying damage." He testified that "absolutely everything in the records was . . . . consistent with and supported the fact that [plaintiff] had traumatic brain injury as a result of the motor vehicle collision in July of 2001." In his opinion, plaintiff was no longer in a position to maintain gainful and competitive employment. When asked if plaintiff's 2001 injury was permanent, Dr. Fellus responded,

The opinion is . . . that the brain can try and recover as best it can up to a year, a year and a half, maybe two years, depending on how old you are at the time of your injury, and then much beyond two years, three years, certainly things become plateaued out and that is more or less where you're going to be with perhaps a very slight ups and downs depending on circumstances or maybe some medication or strategies. But by and large, by two to three years, that is where the brain's natural recovery has definitely ended. And really, most of the recovery occurs in the first six to 12 months. And so whatever problems you're left with at that point are the problems that you will struggle with for many, many years to come.

Dr. Schenk, who specializes in orthopedic trauma and adult reconstruction, testified that he examined plaintiff in April 2004, took a history, and conducted multiple range of motion tests. He found a positive impingement sign, indicative of a supraspinatus tendon injury. He noted that initially plaintiff's doctors prescribed a conservative course of treatment for plaintiff's shoulder, consisting of physical therapy and cortisone shots. However, when the treatment did not produce relief, plaintiff underwent arthroscopic surgery, which revealed a partial tear in the supraspinatus tendon and a tear in the labrum tendon. Dr. Schenk opined, based upon his own physical examination and review of plaintiff's prior medical records, that plaintiff's shoulder was permanently injured as a result of the 2001 accident, and her complaints were consistent with a post-traumatic injury that developed into arthritis, which he opined would worsen over time.

Plaintiff also produced Dr. Matityahu Marcus, an economist, who testified as to plaintiff's economic losses stemming from the accident. Defense counsel objected to Dr. Marcus' testimony, arguing that the opinion was a net opinion based solely upon a conversation with plaintiff in which she indicated that if her acting career did not go well, she would hope to return to teaching. Defendant argued that as a result of that conversation, Dr. Marcus projected a loss of income of $462,000, based upon plaintiff's last employment as a teacher, although plaintiff had not worked as a teacher since 2000 and was collecting two disability pensions unrelated to her teaching position that "collectively total about what she made as a teacher." Further, defendant urged that Dr. Marcus could not project future earnings based upon plaintiff's prior teaching employment. The court reserved ruling on the objection until she had the opportunity to hear his testimony and read his report.*fn2

Dr. Marcus testified that his opinion was based upon his interview with plaintiff, from whom he obtained information about her education, past employment, and past and future career decisions. He calculated plaintiff's lost wages, making concessions for the time plaintiff was pursuing her acting career, and assumed a return to teaching in October 2004 but for the July 2001 motor vehicle accident. Based upon plaintiff's undergraduate and advanced degrees, as well as her previous experience, Dr. Marcus projected an annual net teaching salary of $34,700 per year. Using a statistical table, he found the average age of retirement for plaintiff, based on her skill level and occupation, and adjusted it for the present value of the future wages. Plaintiff advised him of her need for "help around the house." In addition, at trial, he was asked to "assume" there was a need for home health care, even though it was not being provided at that time. Consequently, Dr. Marcus did not calculate the cost of a home health aide for plaintiff, but did find that in the Moorestown, New Jersey area, home health aides made approximately $18.50 an hour. Ultimately, Dr. Marcus opined that plaintiff incurred a loss of income, past and future, of $463,650.

Drs. Ivan Dressner and William Head testified on behalf of the defense. Dr. Dressner, a board certified neurologist, testified that he reviewed plaintiff's medical course from 1991 through the time of trial and that he personally examined plaintiff in November 2004. His initial observations revealed that plaintiff was well-groomed, without anxiety, with normal speech and intelligence. However, when he questioned plaintiff about her history, she became upset. In his opinion, based upon his experience and the medical literature, head trauma patients are at their worst at the time of the trauma, but the natural progression is that these patients become better over time, not worse. In reviewing plaintiff's three-day hospital admission immediately after the July 2001 accident, he noted that plaintiff's mental status was reportedly normal prior to discharge. He also testified that the hospital records revealed that plaintiff's Glaskow Coma Score, which was thirteen at the time of her admission, was a normal fifteen prior to her hospital discharge. Additionally, Dr. Dressner highlighted that two days post-accident, plaintiff was alert and oriented times three,*fn3 a normal finding, having no speech, language or stuttering problems. Finally, he noted that the two CAT scans of plaintiff's brain were normal. Dr. Dressner concluded that that these diagnostic results were inconsistent with a finding of a brain injury. To highlight his opinion that plaintiff had not sustained a traumatic brain injury as a result of the 2001 accident, Dr. Dressner pointed to a letter of recommendation plaintiff wrote for her home health aide in 2003, a three-page article written for the August 2006 edition of Exceptional Parent magazine, as well as plaintiff's testimony at trial and her recall ability during her lengthy deposition.

Dr. William Head, a board certified psychiatrist and neurologist, testified that he examined plaintiff for two hours on July 16, 2004, and concluded that plaintiff did not sustain any objective "psychiatric injuries" in terms of "cognitive impairment" as a result of the 2001 accident. He noted that plaintiff's objective testing, specifically CAT scans, MRIs and EEGs taken after the 2001 accident, were all normal, thus ruling out brain injury. He also expressed his opinion that plaintiff's neuropsychological testing was subjective and unreliable. He concurred with Dr. Dressner that plaintiff's writings and published article demonstrated that she was competent and without evidence of brain injury. He opined that her ability to communicate her feelings in writing evidenced "highly developed cognitive ability." Dr. Head also stated that from his review of plaintiff's deposition testimony, plaintiff did not manifest any impairment.

At the close of all the testimony, the court conducted a charge conference, during which defendant lodged objections to the admissibility of numerous documents. Defendant first objected to the introduction of a letter from the Social Security Administration dated May 26, 1999, which plaintiff proffered (1) as evidence outlining the circumstances under which plaintiff was permitted to work and (2) to rebut testimony from Dr. Head, who suggested that plaintiff defrauded Medicare. The court admitted the letter under N.J.R.E. 803(c)(8) as "a statement contained in a writing made by a public official[.]" Defendant also objected to documents he categorized as "the catch-all": (1) Cognitive Rehabilitation Services reports; (2) a note of Dr. Catherine Mindolovich, Ph.D., Jamaica Hospital Medical Center; (3) records from Dr. Kornbleuth; (4) reports from the Center for Cognition and Communication; (5) reports from Maimonides Medical Center; (6) reports from Dr. Hu of Rehabilitation Medicine Associates, P.C.; (7) office notes of Dr. Jonathan Silver; and (8) records from Dr. Richard Gasalberti. Defendant argued that the documents were hearsay, addressed fairly complex subject matter, and their exclusion was required under Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 283 (App. Div.), certif. denied, 141 N.J. 95 (1995), absent testimony from the doctor who rendered the particular diagnosis.

The court acknowledged that it did not "have every single piece of paper in front of [it]" but that "[m]aybe there's a reason why some come in and some don't." Plaintiff's counsel advised the court that he understood the court's ruling, would redact the objectionable portions of the records, and show them to defense counsel. In response, defense counsel told the court, "Judge, you've -- there are 60 odd pages. I don't have those, every one of those. I can't tell you I've reviewed them ...


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