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Sthol v. Zglobicki

January 24, 2008

JOHN STOHL AND MARY STOHL, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
ALFRED F. ZGLOBICKI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2228-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 15, 2007

Before Judges Axelrad, Sapp-Peterson and Messano.

In this motor vehicle accident case, following a jury verdict in favor of plaintiff John Stohl*fn1 in the amount of $750,000 and his wife Mary on her per quod claim in the amount of $250,000, defendant*fn2 appeals several of the trial court rulings and denial of his motion for a new trial. More particularly, defendant argues: (1) the jury verdict is against the weight of the evidence and constitutes a miscarriage of justice under the law; (2) the court erred in failing to strike or otherwise cure plaintiffs' counsel's comments during opening and closing arguments suggesting a correlation between the damage to the vehicles and plaintiff's injuries; and (3) the court erred in denying defendant's motion for a new trial pursuant to Rule 4:49-1, and declining to view the post-trial surveillance videos of plaintiff and denying defendant's motion to vacate judgment pursuant to Rule 4:50-1(b) and (c). We reject each of these arguments and affirm.

Plaintiffs filed a personal injury suit for damages resulting from an August 19, 2002 motor vehicle accident. On the morning of trial, defendant conceded liability and chose to defend the case solely on the issue of the "Limitation of Lawsuit Threshold." Plaintiffs testified as to the events on the day of the collision, the injuries suffered by plaintiff and the effects those injuries had on him and his family. Both parties presented testimony of board certified physicians who examined plaintiff and reviewed the records of his injuries and treatment following the collision. Plaintiffs' expert Dr. Martin Riss opined there was substantial objective evidence that plaintiff had suffered a permanent injury as a result of the accident. The defense expert Dr. Michael Gordon, however, disputed causation of plaintiff's medical conditions and opined those related to the accident were not permanent.

The following facts were developed at trial on November 14 and 15, 2006. While thirty-six-year-old plaintiff was driving his 1987 Nissan Pulsar NX sports car near the intersection of Leesville and Freehold Roads in Jackson Township on August 19, 2002, he was broadsided on the driver's side by defendant, who drove his Mercury Grand Marquis through a stop sign and blinking red light. Plaintiff was launched into the door and towards the open "T" tops of his car. The force of the impact pushed plaintiff's car across the intersection and into a pole on the opposite side of the road, totaling the vehicle. Emergency personnel removed plaintiff from his vehicle and transported him to the Kimball Medical Center emergency room. Plaintiff was treated for neck, lower back, and left shoulder pain. X-rays were negative for fracture.

The next day plaintiff began treating with Dr. Mark Feldman, an orthopedic surgeon, complaining of numbness in his neck and left shoulder, no feeling in the "little fingers" of his left hand, and back pain. He treated with Dr. Feldman through January 2003, during which he was supplied a lumbar spine brace and prescribed pain killers, sleeping pills, and anti-inflammatory medications (Percoset, Valium, Lidocaine patches, OxyContin, and Vioxx). Plaintiff then pursued a two-month period of aggressive physical therapy and continued medication with another orthopedic surgeon, Dr. Aldo Iulo, which resulted in no improvement to his cervical, lumbar, and left shoulder conditions. From July 2003 until the winter of 2004, plaintiff was under the care of Dr. John Petrillo, an orthopedic surgeon, who provided him with more therapy, medications, and epidural injections. In June 2004, plaintiff sought treatment with Dr. Jeffrey Petersohn, a pain care specialist, who provided him with more injections, therapy, and medication.

Plaintiff described in detail the daily pain, numbness and weakness he experienced since the accident and recounted for the jury the numerous diagnostic tests and treatment he underwent, unsuccessfully, in an effort to resolve the injuries sustained in the automobile accident. For example, plaintiff explained that several of the medications gave him "really bad mood swings"; he was physically unable to work for six months, which resulted in money crises and arguments with his wife; he had to sleep in the other room because he and his wife were awakened several times a night by his jerking arm movement when it alternated numbness then tingling; and the symptoms and pain abated very little from the date of the accident. Plaintiff testified the injuries he sustained from the accident kept him from many of his former regular activities, such as archery/bow hunting, carpentry, motor biking, significant home redecorating and repairs, and yard work; he could no longer walk long distances or sit still very long; and his activities with his wife and ten-year-old daughter were severely limited. Plaintiff further explained his injuries prevented him from returning to his employment as a union floor installer. Fortunately, however, plaintiff was able to open his own floor covering business in which he dealt with clients and public relations instead of performing physical work, providing flooring to malls from New York to Maryland, and earned substantially more money. Accordingly, plaintiff made no wage loss claim.

Plaintiff's wife of eighteen years testified about how the accident impacted the parties' family life. Their activities were significantly curtailed, plaintiff was unable to make repairs and perform work around the home that he had previously enjoyed, he became short-tempered and his demeanor changed drastically, he was less patient with their daughter and less able to help her with her homework, their sleep was disrupted, and their marriage became strained. Mary also testified that prior to the accident plaintiff was an avid hunter but he had not gone hunting since the accident because it entailed alot of walking and tree climbing.

Dr. Riss testified he was retained by plaintiffs' counsel to review plaintiff's treatment records and he examined plaintiff on June 11, 2006 for the purpose of this litigation. Dr. Riss summarized plaintiff's medical treatment following the accident, detailing in particular the objective medical tests, and testified about the results of his examination. He noted that an MRI of plaintiff's lumbar spine performed on December 11, 2002 revealed a straightening of the normal lumbar lordosis, a right lateral annular tear with disc protrusion into the right neural foramen, creating moderate stenosis at L5-S1 and retrolisthesis (shifting of the spine) and straightening at the L5-S1 with a right lateral disc protrusion. Dr. Riss explained that plaintiff's complaints of pain, numbness, tingling, and pressure and findings of pain down nerve patterns reflected in Drs. Feldman and Iulo's records were consistent with the objective results of a protruding disc pressing on the nerve of his lower spine.

Dr. Riss then read and explained the report of the results of an EMG performed on plaintiff on March 11, 2003. He testified that the test was inconclusive, [as] the specialist found "[m]ild left C7 and/or C8 radiculopathy possible but cannot be confirmed on EMG testing due to the persistent and diffuse left cervical muscular spasm." Plaintiffs' expert explained that the specialist did not find an electrical defect or the existence of left carpal tunnel syndrome in the lower neck but made objective findings of left cervical muscular spasm with the possibility of left-sided thoracic outlet syndrome. According to Dr. Riss, plaintiff's complaints of pain and numbness traveling down his left arm and fourth and fifth fingers of his hand corresponded with radiculopathy at C7-8. The MRI of plaintiff's cervical spine performed on July 30, 2003 revealed mild left neuroforaminal stenosis, C5-6 disc bulges, left vertebral spurring and left neuroforaminal stenosis.

Dr. Riss recounted plaintiff's complaints to him approximately two years after the accident regarding pain in his neck, left shoulder and lower back; numbness of the fourth and fifth digits of his left hand; pins and needles down his left arm; and the pain in his back extending into the back of his left thigh and calf. Plaintiff also complained of difficulty sitting, standing, bending, lifting, and raising his left arm; an increasing inability to turn his neck; increased pain during cold weather; and muscle spasms in his neck and shoulder. Plaintiff had further explained to Dr. Riss that the pain would wake him up at night and he was stiff in the morning, and he had to use his TENS electrical unit three times a day on his neck, left shoulder and back for relief. Dr. Riss recounted that plaintiff also informed him that he "could no longer bow hunt, he couldn't apply any tension to his left shoulder, he couldn't take long walks [and] [e]verything he did, he only did for short periods of time [and] [h]e couldn't do things on a sustained basis."

Dr. Riss found tenderness to palpation and spasm in examining plaintiff's cervical spine. His examination disclosed a significant restriction in the range of motion of plaintiff's neck (40° downward instead of 80°, 25° extension instead of 45°, and 45° rotation instead of an ability to look over his shoulder). The doctor further noted that plaintiff's shoulder lost 35° in its ability to flex and plaintiff also demonstrated a clear-cut impairment in the range of motion on his back. Dr. Riss testified that he "noted on [his] examination that throughout the time, [plaintiff] was holding his left arm against his body to protect it." He also noted in his examination that he found plaintiff's strength was "markedly diminished on the left as compared to the right and that [plaintiff is] left hand dominant." Dr. Riss explained that a left-handed person's left extremities would mainly be stronger than the right and attributed the significant loss of strength in plaintiff's dominant hand and arm to the accident.

Dr. Riss concluded that, as a result of the accident, plaintiff suffered a cervical sprain, bulges throughout the cervical spine, radiculopathy of C7-8 (nerve pattern of pain and numbness into his hand, fourth and fifth finger), left shoulder sprain and possible tear, lumbosacral sprain, retrolisthesis, muscle spasm and disc protrusion, and right sleeve cyst root at L5-S1. He opined that the injuries plaintiff sustained in the accident were permanent, noting that four years later, plaintiff still had "spasm," "that serious tightening of the muscles," "a very considerable impairment in the range of motion," and "numbness and patterns going into his arm that haven't deviated from the very beginning." The doctor reiterated that plaintiff had made an attempt at every treatment, including physical, orthopedic and chiropractic therapy, as well as injections, but nothing worked. Dr. Riss was of the opinion that plaintiff had reached "maximum medical improvement," was not a candidate for surgery, and was "not going to get any better with any other treatment." Thus, although plaintiff could be prescribed anti-inflammatory drugs and pain relief medication, "there is nothing to offer him that's going to make [his injuries] go away."

Dr. Gordon testified that when he examined plaintiff on behalf of the defense on October 5, 2005, plaintiff did not complain of back pain; he complained of neck pain radiating down his entire spine into his left arm and trapezius on a constant basis, with lack of sensation and numbness in the two small fingers of his left hand. Plaintiff rated his pain as a six to eight out of ten. The defense expert explained the tests he performed and his findings of normal range of motion of neck, no evidence of spasm or pinched nerve, no evidence of motor weakness, and normal reflexes. Dr. Gordon showed the jury MRI films of plaintiff's cervical and lumbar spine and shoulder, opining there was no impingement or pressure at any of the levels of the cervical spine where the nerve root travels to the shoulder, arms, and hands. He further explained the March 2003 EMG test was not considered valid as plaintiff had some spasm in his neck and stated that a March 8, 2004 EMG was normal. Dr. Gordon was of the opinion there was not anything on the MRI, EMG or x-rays of plaintiff that would point to a concrete cause for his subjective complaints. The defense expert diagnosed plaintiff with degenerative disc disease of the cervical and lumbar spine not related to the accident; and cervical and lumbar sprains and a contusion of the left shoulder attributable to the accident, but which were not permanent conditions.

On cross-examination, plaintiffs' counsel emphasized Dr. Gordon's testimony that his physical examination of plaintiff had revealed limited range of motion in the left shoulder. Dr. Gordon also testified he had noted that during parts of the examination, plaintiff favored his left arm and held it to his side in a protective manner, consistent with his behavior during the emergency room treatment and his examination by Dr. Markowitz on March 11, 2003 in connection with his MRI test. Plaintiffs' counsel emphasized Dr. Gordon's contrary interpretations of the MRI and diagnoses from plaintiff's treating physicians, specifically, Dr. Iulo's belief that the L5-S1 disc protrusion ...


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