May 7, 2008
MAYAH KARNWEA, PLAINTIFF-RESPONDENT,
KELLY L. MORAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-150-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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; and (3) denying defendant's motion for a directed verdict.
Prior to trial, defendant moved in limine to preclude Dr. DiBartolo's testimony interpreting the MRIs. Defendant argued that Brun v. Cordoso, 390 N.J. Super. 409, 421 (App. Div. 2006), prohibited a chiropractor from interpreting MRIs before a jury. Plaintiff maintained that Dr. DiBartolo would not be interpreting the tests but would testify that he relied on the reports in the same way Dr. Cristini did in his de bene esse deposition.
The trial court noted that this case differed significantly from Brun in that here the experts did not disagree on the interpretation of the MRIs and each expert merely relied on the reports in drawing his own conclusions as to permanency and causation. To the extent that the reports assisted the experts in arriving at their opinions, the experts' testimony -- not the actual MRI reports -- would be admitted into evidence.
Defendant now argues that the trial court erred in that decision. We disagree. In Brun, the plaintiff had cervical and lumbar MRIs about five months after a rear-end collision. 390 N.J. Super. at 412. The MRI was reviewed and a report was rendered by Dr. Steven Meyerson, a radiologist. Ibid. The plaintiff's chiropractor, Dr. Michael Corey, relied on the MRI in formulating his opinion as to permanency, prognosis and future care. Id. at 413-14. The plaintiff intended to have Dr. Corey testify with respect to permanency along with Dr. Hernandez, who had performed an EMG study. Id. at 413.
On the defendant's motion in limine, the trial court ruled "that before Dr. Corey could testify as to the MRI findings, a radiologist who was qualified to interpret MRIs would have to be called." Id. at 415. Dr. Meyerson was not available to testify and the plaintiff sought to have Dr. Howard Kessler, a board certified radiologist, testify as to the interpretation of the MRI. Dr. Kessler's reading of the film differed significantly from Dr. Meyerson's, however. The defendant objected to Dr. Kessler as "a new witness." Ibid. The trial judge reserved on the defendant's objection until after Dr. Kessler testified. Id. at 416. After Dr. Kessler's testimony, in which he "conceded that his interpretation of the film differed from that of Dr. Meyerson," the trial court "found prejudice to the defendants flowing from [defense] counsel's argument that he would have handled the case in a different manner had Kessler's opinion been disclosed prior to trial." For that reason, the court dismissed the complaint with prejudice. Id. at 418. The court denied the plaintiff's motion for a new trial, referring to "the unfairness of requiring defense counsel to 'fairly cross-examine' Dr. Kessler under the circumstances." Id. at 418. The court then added that "in Union County, we do not let chiropractors read MRIs." Ibid.
Plaintiff appealed. We reversed and remanded on the grounds that (1) a mistrial should have been declared rather than a dismissal; (2) local county "rules," such as disallowing chiropractors "read[ing] MRIs" were unacceptable. We noted that "on objection, interpretation of an MRI may be made only by a physician qualified to read such films, and that the MRI report could not be bootstrapped into evidence through Dr. Corey's testimony." Id. at 420-21.
The circumstances here are entirely different. Both experts agreed on the radiologist's interpretation of the MRI; both relied on the MRI report in rendering their opinions, albeit they drew different conclusions from the same report. Both experts agreed that MRIs were reasonably relied on in formulating opinions of injuries such as plaintiff's.
N.J.R.E. 703 provides:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
"Once an expert opinion is deemed admissible (that is, it is not excluded as a net opinion), the data and the totality of the facts on the basis of which the expert arrived at the opinion must be made known to the factfinder so that it may evaluate the validity of the opinion and conclude what weight, if any, it should give to that opinion." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 703 (citing Bowen v. Bowen, 96 N.J. 36, 50 (1984)). "Insufficient factual support for an opinion undermines its foundation and justifies its rejection by the trier of fact." Ibid. (citing Champion Dyeing v. Centennial Ins. Co., 355 N.J. Super. 262, 273-74 (App. Div. 2002)). Moreover, we have approved a chiropractor's testimony respecting the reports of a neurologist and an orthopedic surgeon, which were "consistent with his own independent findings." Macaluso v. Pleskin, 329 N.J. Super. 346, 354 (App. Div.), certif. denied, 165 N.J. 138 (2000). Thus, in formulating their respective opinions, both experts properly testified with respect to the MRI report on which they relied. Brun, supra, 390 N.J. Super. at 423 (citing Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996)).
We have carefully considered Dr. DiBartolo's testimony with respect to the MRIs and we are satisfied that it was well within the bounds of N.J.R.E. 703 and that the trial court properly admitted it into evidence.
Defendant next argues that the trial court erred in denying her pretrial motion for summary judgment. She contends that the complaint should have been dismissed prior to trial because plaintiff presented no evidence of permanency to meet the verbal threshold.
In response to defendant's motion, plaintiff submitted Dr. DiBartolo's Permanency Certification in which he specifically relied on the February 25, 2004 MRI of the "cervical spine indicating straightening of the cervical lordosis and muscle spasm;" the February 25, 2004 MRI of the "lumbar spine indicating disc dessication at L4-L5 and L5-S1;" and the February 19, 2004 EMG "indicating an abnormal upper extremity because of electrical evidence of left C5,C6 radiculopathy and denervation on the left side biceps." Although defendant's expert disagreed that the MRIs and EMG demonstrated permanent injuries caused by the accident, he acknowledged that they were objective evidence. The disagreement between the experts as to the permanency of plaintiff's injuries was a genuine issue of material fact for the jury to resolve. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment was properly denied.
Finally, we find no merit in defendant's argument that the trial court erred in denying her motion for a directed verdict. Our standard of review of a trial court's denial of a motion for a directed verdict is substantially the same as for summary judgment.
Rule 4:37-2(b) provides that
After having completed the presentation of the evidence on all matters other than the matter of damages (if that is an issue), the plaintiff shall so announce to the court, and thereupon the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief. Whether the action is tried with or without a jury, such motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
The court must accept as true all of the evidence supporting the non-moving party, "and according [the non-moving party] the benefit of all inferences which can reasonably and legitimately be deduced therefrom." Dolson v. Anastasia, 55 N.J. 2, 5 (1969). "The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6.
Here, the trial court denied the motion "based upon . . . at least one objective finding with respect to the testimony of the chiropractor." As we have discussed previously, there was objective evidence of plaintiff's injuries and there were genuine issues of fact for the jury to determine.