July 7, 2008
NANCY DIAZ AND MIGUEL DIAZ, PLAINTIFFS-APPELLANTS,
NYVIA C. GONZALEZ AND HONDA LEASE TRUST, DEFENDANTS-RESPONDENTS, AND JOSE M. RODRIGUEZ ESTRELLA AND WHITE CONCORD TOURS, INC., DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-731-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 29, 2008
Before Judges Cuff and Lihotz.
This is a verbal threshold case. Defendant Nyvia Gonzalez stipulated liability. The matter proceeded to trial on the issues of permanency, proximate cause and damages. A jury found that none of plaintiff's injuries were permanent and this appeal follows. We affirm.
Plaintiff Nancy Diaz was a passenger in a minibus. As the minibus entered an intersection in Union City, Gonzalez ignored a stop sign, entered the same intersection, and struck the minibus with her automobile. At the time of the collision, plaintiff fell forward attempting to brace herself with her arms and feet, and struck her right knee against a part of the minibus.
Plaintiff was transported to a local hospital where she was examined, provided with painkillers and released. At the hospital, plaintiff complained of pain in her arms, head, legs, and back. Thereafter, plaintiff sought treatment from Sall/Myers Medical Associates. A physician examined plaintiff and reported complaints of headaches, neck problems, mid-back problems, and lower back problems. He diagnosed a shoulder sprain, a hand and wrist sprain, and contusions to plaintiff's foot and ankle. He ordered a cervical MRI, placed plaintiff's wrist in a splint, and ordered a physical therapy regime. As directed, plaintiff received physical therapy three times a week for two months, after which she received no other physical therapy treatment.
At trial, plaintiff testified that she continues to experience pain in her arms, her hands, and right knee. She noted that she has difficulty lifting things. Her wrists hurt, especially in cold weather. She has difficulty preparing meals because she feels pain in her right arm when she chops ingredients. She also experiences pain when she performs ordinary household chores, such as sweeping, mopping, and moving items. Her fingers get numb when she attempts to grab things. Plaintiff testified that Motrin helps to relieve her pain.
On a follow-up visit, a physician performed a neurological examination and ordered two additional MRIs and an electromyogram (EMG). Dr. Dane, a board certified neurologist at Sall/Myers, testified that plaintiff's cervical MRI revealed disc herniations at C4-5 and C5-6. He noted no evidence of degenerative disease or bone abnormality. A lumbar MRI revealed a condition known as listhesis or "a displacement of [the] L5 [vertebrae] relative to [the] S1 [vertebrae]." The doctor opined that the condition was long-standing and predated the August 9, 2004 accident. Dr. Dane also testified that neither the cervical MRI nor the lumbar MRI revealed any pressure on plaintiff's nerve roots.
The prescribed EMG was performed on October 8, 2004. Dr. Dane testified that the study suggested bilateral carpal tunnel syndrome. Following a December 17, 2004 examination, Dr. Dane diagnosed the following conditions: post-traumatic bilateral carpal tunnel syndrome, a flexion/extension injury to plaintiff's cervical spine with chronic inflammatory change fibrosis, fibromyositis and facet synovitis, lumbosacral radiculitis, traumatic aggravation of the L5-S1 listhesis, and post-traumatic tenosynovitis of the right ankle with decreased range of motion.
At trial, Dr. Dane testified that the bilateral carpal tunnel syndrome, the cervical injuries, the shoulder injuries and the ankle injuries were entirely related to the August 2004 collision. He opined that the accident aggravated the pre-existing listhesis condition. He also opined that plaintiff's injuries were permanent and that additional treatment would not cause the identified body parts to heal to their normal function.
Dr. Dane conceded that plaintiff failed to advise him of one of her two prior automobile accidents. He acknowledged that his diagnosis could be affected by plaintiff withholding relevant information.
Defendant presented the testimony of Dr. Joseph Dryer, a board certified orthopedist. Dr. Dryer reviewed plaintiff's medical records and conducted a physical examination. He observed normal range of motion in her neck and spine. Dr. Dryer noted the L5-S1 listhesis. He, too, opined that it was a pre-existing condition. He also observed no evidence of disc herniation in plaintiff's lumbar spine. He did observe, however, evidence of degenerative disc disease. Dr. Dryer also observed no nerve compression in the lumbar or cervical spine and testified that plaintiff did not complain of any neck pain.
Dr. Dryer concluded that plaintiff did not suffer any permanent injury from the August 2004 accident. He diagnosed a temporary cervical strain, a temporary lumbar strain, and a temporary right foot strain, all of which had resolved. He also opined that plaintiff had no functional limitation.
The trial judge presented four interrogatories to the jury. Only the first two are relevant to the issue in this case. The first interrogatory asked the jury, "Did . . . plaintiff Nancy Diaz sustain an injury proximately caused by the auto accident of August 9, 2004?" The second interrogatory asked, "Was an injury to the neck, or the lower back, or either of her wrists sustained by Nancy Diaz permanent?" Plaintiff's counsel requested the judge to clarify for the jury that it could answer the first interrogatory "yes," if it found only one of the injuries was proximately caused by the accident. The trial judge stated that she would repeat the question for emphasis but did not do so. The trial judge also rejected a charge requested by plaintiff that if the jury found that a herniation was caused by the accident, it was a permanent injury as a matter of law.
The jury found that plaintiff suffered an injury that was proximately caused by the August 2004 accident but responded that the injury was not permanent. The trial judge entered a judgment in favor of defendant and subsequently denied plaintiff's motion for a new trial.
On appeal, plaintiff reiterates her trial argument that she had suffered a permanent injury as a matter of law once the jury found the August 2004 accident proximately caused a herniated disc. We disagree.
For purposes of awarding damages for injuries sustained in an automobile accident, the Legislature has declared that no damages shall be awarded unless the injured person satisfies the verbal threshold. N.J.S.A. 39:6A-1.1 to -35. Only certain injuries qualify for an award of non-economic damages. N.J.S.A. 39:6A-8a. A person who suffers a permanent injury may recover non-economic damages. Ibid. An injury is 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. Ibid.
In support of her argument, plaintiff relies on several cases in which the Supreme Court and this court address satisfaction of the verbal threshold. Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332 (2005); DiProspero v. Penn, 183 N.J. 477 (2005); Serrano v. Serrano, 183 N.J. 508 (2005); Pardo v. Dominguez, 382 N.J. Super. 489 (App. Div. 2006). Plaintiff argues that these cases have held that a person who presents medical evidence that she suffered a disc herniation, and the herniation was proximately caused by the auto accident, has satisfied the verbal threshold as a matter of law. Our examination of these cases reveals that each was decided in the context of a motion for summary judgment rather than a trial. In each case, a court ruled that the submission of medical evidence of the existence of a herniated disc and a medical opinion that the injury was proximately caused by an automobile accident presented a factual issue for resolution at trial by a jury. See, e.g., Juarez, supra, 185 N.J. at 334; DiProspero, supra, 183 N.J. at 506; Serrano, supra, 183 N.J. at 518-19; Pardo, 382 N.J. Super. at 491-93.
Only one case has been brought to our attention that seems to hold that a herniated disc found by a jury to have been proximately caused by an auto accident must be considered a permanent injury as a matter of law. The case, Kalra v. Garcia, A-4198-05 (App. Div. July 17, 2007), is unreported. In this case, both physicians found multiple cervical disc herniations. The etiology of the herniations was hotly disputed. The plaintiff's expert opined that the herniations were caused by recent trauma; the defendant's expert opined that the herniations were caused by degenerative disc disease. We discern from the opinion that the defendant's expert physician did not dispute that the herniations caused compression to the spine or that the herniations were a permanent injury. It is in this context that we affirmed a verdict in favor of the plaintiff in which the trial judge charged the jury that a herniated disc is a permanent injury as a matter of law. That is not this case. Here, both physicians acknowledged the existence of the herniated discs, both acknowledged no evidence of nerve compression or impingement, and defendant's physician never conceded that a herniated disc was a permanent injury.
Plaintiff's reliance on Johnson v. Scaccetti, 192 N.J. 256 (2007) and Pardo, supra, is misplaced. Pardo, supra, arose in the context of a motion for summary judgment. 382 N.J. Super. at 491. In Johnson, supra, the back injury proximately caused by the accident required a vertebra-fusion operation and a three- to four-month period in a body cast. 192 N.J. at 273. The Court noted that the primary issue at trial was causation and the permanent nature of the back injury was never seriously questioned. Ibid.
Here, the evidence presented by both parties created broad factual issues for resolution by the jury. Plaintiff's expert, Dr. Dane, testified that plaintiff had suffered several injuries and that these injuries were permanent. Dr. Dryer testified, however, that all of plaintiff's injuries were temporary in nature. Notably, both physicians found two herniated cervical discs and both testified that they found no nerve compression. Both physicians diagnosed the listhesis condition in plaintiff's lumbar spine and both testified that the condition existed before the August 2004 accident. Indeed, Dr. Dryer stated that most of the spinal findings were degenerative in nature. Dr. Dryer also explained for the jury that a herniated disc will cause no pain or discomfort unless the protrusion compresses or impinges nerves in the spine. Moreover, Dr. Dryer reported that plaintiff did not complain of any neck pain to him during physical examination. Thus, the jury was presented with clear factual issues for it to resolve concerning the proximate cause of all of plaintiff's injuries or conditions about which she complained and whether any injuries proximately caused by the accident are permanent.
In short, we discern no error in the charge or the denial of plaintiff's motion for a new trial. The issue of permanency in the face of undisputed evidence of no nerve impingement or spinal compression was correctly presented to the jury as a question of fact for their resolution.
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