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Dibartolomeo v. Herman

February 4, 2008


On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Camden County, L-7970-02.

Per curiam.


Argued: October 29, 2007

Before Judges Stern, C.S. Fisher and C.L. Miniman.

Plaintiff Annette J. DiBartolomeo appeals from the entry of a judgment dismissing her personal injury claims following a jury verdict of no cause for action predicated upon her failure to prove that she sustained a permanent injury proximately caused by either of the two motor-vehicle accidents at issue in this litigation. Intervenor cross-appeals from denial of its motion for a directed verdict under the verbal threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8. We reverse and remand for a new trial.


Plaintiff was involved in two motor-vehicle accidents in 2001. The first occurred on January 10, 2001. On that occasion plaintiff's vehicle was stopped in a line of traffic at a traffic light when defendant Drexel M. Herman started a chain collision by striking the rear of a vehicle being operated by defendant Heidi M. Houser. The force of the collision pushed Houser's vehicle into the rear of a vehicle being operated by defendant Walter R. Schwartz, which in turn struck the rear of plaintiff's vehicle and forced her car into the rear of the vehicle in front of her, which was being operated by defendant Robert L. Haney.

Plaintiff experienced chest tightness immediately after the accident and was taken by ambulance to a hospital where a cardiac catheterization was performed. She was discharged after two or three days. By then her neck and back were bothering her and she was given a soft cervical collar. She sought treatment for her orthopedic injuries in February when she saw her family physician, Dr. Gary Heck, and then saw a chiropractor, Dr. Brian Russell, for treatment. Plaintiff's prior medical history was somewhat complicated and included pre-existing back pain and migraine headaches. Dr. Russell referred plaintiff to Dr. John Yulo, who specialized in physical rehabilitation medicine.

Plaintiff testified that, although she was still under medical care, she had to return to work for financial reasons despite her discomfort, and persuaded Dr. Heck to permit her to return to work. Two or three days after she returned to work, her employment was terminated because her employer was bankrupt. Plaintiff tried through the end of March to find other work because her monthly expenses exceeded her unemployment benefits but she was unsuccessful. She applied for Social Security disability benefits and was determined disabled effective on January 10, 2001.

The second motor vehicle accident occurred on August 9, 2001, after plaintiff left the doctor's office. On that occasion, plaintiff was slowing for a traffic light when she noticed the driver of the vehicle behind her, defendant Nicole A. Yuritch, talking on her cell phone. Yuritch drove into the rear of plaintiff's vehicle. Plaintiff was taken to the hospital by ambulance and was treated and released. The next day she experienced difficulty standing because of dizziness and a friend took her to Dr. Russell, who referred her to Dr. Russell I. Abrams, a neurologist. Dr. Abrams saw her first on August 17, 2001. She also was experiencing pain in her neck, shoulders and back and was treated for these complaints by Dr. Abrams.

Suit was filed on December 5, 2002, with one count claiming injuries from the first accident and the other count claiming injuries from the second accident. Each defendant filed an answer to the complaint, although Herman did not file his answer until October 28, 2003. By that time, Haney, the driver of the vehicle in front of plaintiff on January 10, 2001, and Schwartz, the driver of the vehicle immediately behind plaintiff, had secured summary judgments dismissing all claims against them. On February 6, 2004, plaintiff obtained a summary judgment on liability with respect to Yuritch, the driver of the other vehicle involved in the August 9, 2001, accident.

On July 9, 2004, intervenor Palisades Safety and Insurance Association (Palisades) intervened as a defendant by virtue of plaintiff's claim for underinsured motorist (UIM) benefits. Plaintiff settled her claim against Herman in December, accepting $47,500 from his $50,000 insurance policy. That month plaintiff also settled her claim against Yuritch for $87,500 from her $100,000 policy. Plaintiff's remaining claims were against Houser, the driver of the vehicle struck by Herman, for damages and Palisades for UIM benefits. Plaintiff and Palisades agreed to waive their right to arbitrate the UIM claim.

Plaintiff sought to depose the personal injury protection (PIP) adjuster from Palisades in order to establish that its payment of PIP benefits was an admission that plaintiff's treatment was reasonable, necessary and related to the motor vehicle accidents of 2001. On March 4, 2005, Palisades prevailed on its motion for a protective order precluding plaintiff from deposing its employees or calling them as witnesses at trial. The judge determined that Palisades should not be estopped from contending that the treatment for which they made PIP payments was not reasonable or necessary or related to the accident, although its PIP adjuster determined it to be reasonable, necessary and related. The judge stated, "They have the right to step into the shoes of the underinsured defendant and they argue the position of the underinsured defendant because it's beneficial to them since they have to pay anything over and above what the underinsured defendant had to pay." The judge also denied plaintiff's motion to amend her complaint to state a UIM claim against Palisades because Palisades was stepping into the shoes of the settling defendants and no direct first-party action against it would be consistent with that posture.

Later that year Palisades filed another motion for a protective order, this one to bar plaintiff from calling as her own expert witness Edward Murphy, Psy. D., a Pennsylvania neuropsychological expert retained by Yuritch who opined that plaintiff sustained a mild traumatic brain injury as a result of the August 9, 2001, accident. Palisades also sought to bar plaintiff's experts from referring to the opinions in Dr. Murphy's report. Plaintiff cross-moved seeking an adverse inference charge in the event she was precluded from calling Dr. Murphy as a witness and Palisades failed to call him. Plaintiff also sought to bar Palisades from calling Paul Moberg, Ph.D., another neuropsychologist who examined her at the request of her disability insurance carrier. On August 19, 2005, the judge granted the motion of Palisades and denied plaintiff's cross-motion. The judge reasoned, The . . . only purpose that I can see in calling Dr. Murphy would . . . on the plaintiff's part, to be able to argue, imply or otherwise, some other way, let the jury know that this was . . . a doctor hired by the defense.

Dr. Murphy is not necessary or critical to the plaintiff's case. Plaintiff has their own engaged expert . . . that can be called. Dr. Murphy would be surplus or redundant, at best, and it would be, in my view, unfair to tilt the balance in favor of the plaintiff by allowing that to happen.

The judge barred plaintiff from calling Dr. Murphy and barred plaintiff's expert from testifying that he relied on the opinions of Dr. Murphy. He denied plaintiff's motion for an adverse inference because "Murphy was not Palisades' doctor" and denied the motion to bar Palisades from calling Dr. Moberg because he was not an adverse witness.

The case was called for trial on May 8, 2006. Plaintiff moved in limine to determine how Palisades was going to be identified. Plaintiff sought to have the jury instructed that she had settled with Herman and Yuritch and to have defense counsel appear as the attorney for Palisades so that the jury was "told the truth." Plaintiff argued that once the jury was told that Herman and Yuritch settled, it would not understand who Palisades' counsel was representing. The judge responded, "I understand. It's a problem. And I want to think on it a little more, but . . . for the moment, for the present, we're gonna call Mr. Barr as the attorney for an interested party until we can devise something a little more specific and factual."

Plaintiff also requested that the judge revisit the issue of barring her from calling Dr. Murphy in light of new case law, Fitzgerald v. Roberts, 186 N.J. 286 (2005). The judge agreed to do so if Dr. Murphy agreed to testify. Palisades objected to plaintiff calling Dr. McLaughlin, a psychiatrist who performed an independent medical examination for PIP purposes. Because Dr. McLaughlin had not been identified as a witness for trial, the judge barred plaintiff from calling her to testify.

The matter was tried over the course of three days. Plaintiff never represented during the trial that Dr. Murphy was willing to appear as a witness on plaintiff's behalf and, as a result, the judge did not revisit his order barring plaintiff from calling him. At the conclusion of the evidence, Palisades moved to dismiss plaintiff's economic damage claim relating to the first accident and the judge granted that motion. The jury returned its verdict on May 15, 2006. It concluded that Houser was not ...

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