On appeal from Superior Court of New Jersey, Law Division, Essex County, L-7818-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued telephonically December 6, 2007
Before Judges Payne and Messano.
Plaintiff Damon Williams, a passenger in an automobile owned by defendant Clarine Browner,*fn1 and driven by defendant Andrew Barnes, that was involved in an accident with a car driven by defendant Chima Amadi, appeals from an order entering judgment in defendants' favor upon a jury's determination that plaintiff failed to prove that he had sustained a permanent injury as the result of the accident, as required by N.J.S.A. 39:6A-8a, governing claimants subject to the limitation on lawsuit threshold. Because liability was stipulated by Barnes and Amadi, the existence of such a permanent injury and its cause were the only issues tried.
On appeal, plaintiff claims that the trial judge erred (1) in instructing the jury on permanent injury with reference to the "back" not the "disc" that was allegedly herniated as a result of the accident; (2) in using the phrase "serious impact" when instructing the jury on damages; (3) in prohibiting the plaintiff from testifying about his post-accident chiropractic treatments without any expert testimony regarding the reasonableness and necessity of those treatments; and (4) in allowing introduction of evidence of two subsequent accidents that plaintiff had failed to disclose in responses to discovery requests. We affirm.
Williams alleges that he sustained a herniated L3,4 disc in the motor vehicle accident at issue, which occurred on January 14, 2003. At a charge conference held before closing arguments, the trial judge agreed that she would give the instruction defining permanent injury that is set forth in what is now Model Civil Jury Charge 5.33B(C),*fn2 which provides:
In this case, the plaintiff alleges that he suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.
Plaintiff must prove this claim through objective, credible medical evidence.
Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff's subjective complaints. Credible evidence is evidence you find to be believable.
Following closing arguments, which included an argument by plaintiff's counsel that focused on evidence that plaintiff had a herniated disc that was acknowledged by all medical experts to exist,*fn3 the judge gave the standard instruction on permanent injury, denominating on three occasions "the back" as the injured body part or organ. The judge instructed:
An injury is considered permanent when the body part or organ has not healed to function normally and will not heal to function normally with further medical treatment. Okay? So, the definition of permanent injury is an injury to a particular body part or organ - in this case, it's the back - the plaintiff claims that he had a permanent injury to his back and an injury is considered permanent when the back has not healed to function normally or will not heal to function normally with further medical treatment.*fn4
Despite the lack of any objection to the charge on permanency at trial, plaintiff's counsel now claims that the judge should not have used the term "back" when referring to the bodily part or organ at issue. Further, counsel argues that he framed his closing in reliance on the court's assurance that the standard charge would be given verbatim and that plaintiff was prejudiced by the unwarranted modification of the charge, which "advise[d] the jury that plaintiff could only prove a permanent injury if he proved that his entire back had not and would not heal to ...