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Karnwea v. Moran

May 7, 2008

MAYAH KARNWEA, PLAINTIFF-RESPONDENT,
v.
KELLY L. MORAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-150-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 23, 2008

Before Judges Wefing and Parker.

Defendant Kelly L. Moran appeals from a judgment entered on August 20, 2007 after a jury rendered a verdict in favor of plaintiff and awarded her $200,000 in compensatory damages, plus interest in the amount of $9,340 and court costs in the amount of $200. We affirm.

This case arises out of an auto accident that occurred on January 12, 2004. Liability was stipulated and the case was tried on damages only. Plaintiff was insured with a verbal threshold policy. She testified that after the accident she suffered injuries to her neck, lower back and shoulder and experienced numbness in her hands and shooting pain in her upper and lower extremities. Plaintiff was treated in the emergency room at Shore Memorial Hospital. The hospital records indicate that she had spasm at the cervical, thoracic and lumbar spine areas.

Plaintiff's expert, Dr. Philip DiBartolo, a chiropractor, testified that plaintiff suffered from paraspinal spasm in the cervical, thoracic and lumbar regions. When plaintiff first presented to him on January 21, 2004, she complained of headaches, neck pain that radiated through the left arm, upper back pain and lower back pain with left leg pain. In his examination of plaintiff, Dr. DiBartolo found decreased range of motion in the cervical spine, decreased range of motion in the lumbar spine and positive results in a number of tests involving movement of the extremities. Dr. DiBartolo acknowledged that these tests were largely subjective, but noted that "it's usually rather obvious if someone is trying to manipulate them."

The objective evidence consisted of MRIs of plaintiff's cervical and lumbar spine taken in February 2004, about five weeks after the accident. The cervical MRI indicated straightening of the cervical lordosis, narrowing of the anterior epidural space from C3 to C6 correlated with muscle spasm; and straightening of the lordotic curve correlated with muscle spasm. The lumbar MRI also showed a straightening of the lordotic curve correlated with muscle spasm, mild disc dessication at L4-5 and L5-S1.

Just over a year later, in April 2005, plaintiff had another set of MRIs of her cervical and lumbar spine. The reports from the second set of MRIs, written by a different radiologist, indicated an unremarkable cervical spine and made no mention of the disc dessication in the lumbar spine. Dr. DiBartolo testified that the radiologist's failure to include those points in his report did not mean plaintiff's conditions had reversed; rather, Dr. DiBartolo testified that, in his experience, radiologists did not generally include a reference to the lordatic curve in their reports. He further testified to a reasonable degree of medical certainty that it was "impossible" for the disc dessication to have reversed itself.

Dr. DiBartolo further testified that plaintiff had an EMG study in February 2004. The report of that study indicated that plaintiff had radiculopathy at C5-6 and denervation on the left side of the biceps at the brachial and paraspinal muscles.

Defendant's expert, John Cristini, M.D., a board certified orthopedist, testified at trial by videotaped de bene esse deposition. Dr. Cristini examined plaintiff in January 2007, three years after the accident, and reviewed plaintiff's emergency room records, the two sets of MRIs, the EMG study and the reports of several other physicians who treated plaintiff after the accident.

In his examination of plaintiff, Dr. Cristini did a number of subjective tests which indicated that plaintiff had "diminished range of mobility in flexion of the spine and extension . . . in the lower lumbar region and over the sacroiliac area." The other tests he performed, however, showed normal deep tendon reflex, muscle power and range of motion in ankles, knees and hips. Plaintiff tested positive for Tinel's sign on the left wrist, consistent with carpal tunnel syndrome; and showed normal range of motion in the neck, good grip strength and normal pulse rates on Adson's test.*fn1

Dr. Cristini acknowledged that MRIs and EMGs were objective tests and that there was a correlation between cervical lordosis and muscle spasm. He testified that disc dessication in the lumbar spine of a twenty-eight to thirty-year-old person was "not impossible but it's unusual." In Dr. Cristini's opinion, to a reasonable degree of medical certainty, there was no evidence of "any permanent impairment or disability related to [plaintiff's] lower back area," and that the symptoms relating to her upper extremity was caused by carpal tunnel syndrome unrelated to the accident.

In this appeal, defendant argues that the trial court erred in (1) denying defendant's motion in limine to preclude Dr. DiBartolo's interpretations of MRIs and EMGs; (2) denying defendant's motion for summary judgment; ...


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