January 16, 2008
DAMON WILLIAMS, PLAINTIFF-APPELLANT,
CHIMA AMADI AND ANDREW E. BARNES, DEFENDANTS-RESPONDENTS, AND CLARINE BROWER, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 function normally"*fn5 and implied that counsel had misled the jury when he focused upon evidence of plaintiff's herniated disc in his closing argument.
We do not find the court's instruction to be susceptible to the interpretations accorded it by plaintiff or to have resulted in reversible error. We recognize that prejudice to a party arising from alteration of a charge upon which the party relied in presenting his case can occur and can result in reversal. See Blitz v. Hutchinson, 252 N.J. Super. 580, 594 (App. Div. 1991). However, in the present case, we do not discern any prejudice to the plaintiff as the result of the court's conformance of the charge to the proofs by use of the word "back," which, after all, is the structure in which the disc at issue was located. Nor do we find any support for plaintiff's claim that the judge's instruction required plaintiff to prove that his "entire" back would not heal. In arguing thus, the plaintiff is importing words and meaning to the instruction that are nonexistent.
In our view, the instruction on permanent injury given by the judge fairly set forth the standard articulated by the Legislature in N.J.S.A. 39:6A-8a. We do not find any error, and if such error existed, it certainly was not one capable of producing an unjust result, requiring reversal. R. 2:10-2; Das v. Thani, 171 N.J. 518, 525 (2002).
The trial judge prefaced her charge to the jury on plaintiff's claims with the following summary statement:
Now in this case, Ladies and Gentlemen, the plaintiff alleges that as a result of the accident, he sustained a permanent injury and he seeks an award of money damages for that permanent injury. The defendants deny any permanent injury. And with regard to any claim for money damages, if you find a permanent injury was proven to you by a preponderance of the evidence, they deny that the injury has had any sort of - I'll use the word, serious impact, for lack of a better word, in connection with your consideration of any money damages.
At a sidebar conducted at the close of jury instructions, plaintiff's counsel queried the judge's use of the term "serious impact" in connection with the "defendants' defenses." However, counsel's objection was overruled on the ground that the term had been used only in connection with the jury's consideration of the proper quantum of damages, once permanent injury had been found to exist.
On appeal, plaintiff argues that the judge's use of the term conflicts with the Supreme Court's decision in DiProspero v. Penn, 183 N.J. 477, 506 (2005), eliminating any requirement that plaintiff demonstrate a serious life impact as a part of his burden of proving that he has sustained a permanent injury. See also Serrano v. Serrano, 183 N.J. 508, 518 (2005). Again, we find no error in the judge's instruction, which accurately conveyed the positions of the parties and did not serve to increase plaintiff's burden of proof in a manner violative of DiProspero's holding. That "serious impact" has been eliminated as a requirement for establishing the existence of a compensable injury does not require its elimination from the jury's consideration in awarding damages. Although, in light of the freight now carried by the term "serious impact," as the result of DiProspero and the decisions it overruled, use of a different term might have been preferable, we have been provided with no evidence that the jury would react to the term as an attorney might, or that the jury was in any respect misled or misinstructed by the judge.
Plaintiff also claims error in the judge's determination to bar him from testifying that he had been treated by a chiropractor forty-one times after his accident, between March and December 2003. We disagree.
The judge barred the proffered testimony only after being informed that plaintiff's treating physician had not referred plaintiff to a chiropractor, but instead had recommended physical therapy; that the physician was unaware of the chiropractic treatments; that he had not reviewed the chiropractic records; and that he was not prepared to give an opinion as to the reasonableness or necessity of the treatment provided. The judge ruled that: "It doesn't matter how many times [plaintiff] went. Until somebody's coming in here to establish that chiropractic treatment [is] related to this injury, it's irrelevant." The chiropractor was not called to testify.
On appeal, plaintiff claims that he should have been able "to explain what type of treatment he received, how long the treatment lasted and the number of sessions he attended. All of this information is relevant to the issue of how [he] was feeling in the months after the accident - in other words, this information shows that from March to December 2003 plaintiff felt enough pain in his neck and back to take the time to attend 41 chiropractic sessions." Additionally, plaintiff claims that the "simplicity of this information" and the inferences to be drawn from it - that plaintiff went to the chiropractor because he was in pain - is such that expert testimony was unnecessary.
However, we have previously held that a claim of pain, allegedly related to injuries sustained in an accident, lacks foundation if it is not supported by medical testimony bearing on the issue of causation. Kelly v. Borwegen, 95 N.J. Super. 240, 241 (App. Div. 1967). As we said there:
". . . where a claimed disability is the natural result of the injuries sustained, the jury may, without expert opinion, find that the injuries caused such disability.
However, when an injury is such as to require skilled men to determine its cause and extent, the question is one of science, and must be established by skilled professional persons." [Id. at 243-44 (quoting 25A C.J.S. Damages § 162(5), p. 91).]
Here, plaintiff's subjective complaints of pain were not so inevitably associated with injuries allegedly sustained in the accident as to permit corroboration of his pain through plaintiff's testimony regarding treatment. Testimony, subject to cross-examination, from plaintiff's chiropractor or treating physician was required. See also Bardis v. First Trenton Ins. Co., No. A-1470-06T1 (App. Div. December 20, 2007) (slip op. at 19-20) (finding evidence of payment of PIP benefits, introduced either by stipulation or testimony of the claims examiner, was inadmissible, because through it, the jury would have heard a medical opinion of a lay witness).
Moreover, we note that the fact that plaintiff underwent forty-one chiropractic sessions was disclosed to the jury by plaintiff's attorney in his opening. Additionally, on cross-examination, plaintiff stated that, after the accident, he went to a chiropractor on his treating physician's advice. Thus, the evidence properly barred by the judge was, in fact, presented to the jury, albeit in abbreviated form. That plaintiff chose not to call his chiropractor cannot be grounds for permitting additional facts to be presented by plaintiff.
As a final matter, plaintiff objects to the fact that he was not informed until the day of trial that a Claims Indexing Bureau (CIB) search conducted by defendants just prior to trial had disclosed that plaintiff had been involved in two subsequent undisclosed accidents occurring on November 29, 2004 and December 24, 2005, and that the court permitted the use of this evidence to impeach plaintiff's credibility when, in discovery, he denied any subsequent accidents.*fn6 Plaintiff argues that defendants should have conducted their CIB search prior to the close of discovery and disclosed its result in amended answers to interrogatories pursuant to R. 4:17-7. Having failed to do so, the evidence should have been barred. Plaintiff argues that: "By allowing the defendants to offer such 'last minute' evidence, the trial court placed plaintiff at a competitive disadvantage in that he had not time to have his medical expert, Dr. Zafer Termanini, review and comment upon the significance of" those accidents, which plaintiff claimed to have been minor in nature and causally unrelated to any of the symptoms of which plaintiff complained at trial.
We do not, however, find any obligation on defendants' part to have informed plaintiff more promptly of a matter of which he already had full knowledge or to have conducted their CIB search prior to the close of the discovery period, thereby running the risk of failing to obtain the most current relevant evidence.
N.J.R.E. 607 permits the use of extrinsic evidence to impeach the credibility of a party or witness, regardless of whether it is independently relevant to the subject matter of the litigation. State v. Johnson, 216 N.J. Super. 588, 603 (App. Div.), certif. denied, 107 N.J. 647 (1987).
Anticipating the use of this evidence by defendants on cross-examination, plaintiff incorporated it into his case in chief. However, his anticipatory use of this previously undisclosed information does not affect its admissibility for the impeachment purposes for which defendants initially intended it.