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Sabo v. Josephs

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 14, 2008

CLARK SABO AND SUSAN SABO, PLAINTIFFS-APPELLANTS,
v.
AARON JOSEPHS AND EDWARD DON & COMPANY, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-542-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically May 15, 2008

Before Judges Graves, Sabatino and Alvarez.

In this personal injury action, Clark Sabo*fn1 and his wife, Susan Sabo, sought damages for injuries Clark Sabo suffered in an intersection accident on June 26, 2002. Clark was driving eastbound on Monmouth Road in Jackson Township when he was involved in an accident with a vehicle operated by defendant Aaron Josephs.*fn2 Josephs, who was operating a vehicle owned by his employer, Edward Don & Company, failed to stop at a stop sign before turning onto Monmouth Road, and he was cited for careless driving in violation of N.J.S.A. 39:4-97. Subsequently, Clark was taken to a hospital emergency room complaining of pain to his head, lower back, neck, chest, and right shin. After being examined, Clark was given some "pain medicine" and was told to follow up with his family physician. He was not admitted.

During the trial, there was conflicting medical testimony regarding the nature and extent of plaintiff's injuries. On March 15, 2007, the jury determined that defendant was negligent and his negligence was the proximate cause of the accident. The jury also found, however, that Clark failed to prove by a preponderance of the evidence that he suffered a permanent injury. The jury awarded Clark $40,000 for economic damages, and it awarded Susan $20,000 on her per quod claim. Because it was not disputed that defendant was working for Edward Don & Company at the time of the accident, the jury was not asked to make a finding as to its liability.

Following the verdict, plaintiff filed a motion for a new trial. On April 27, 2007, after hearing oral argument, the court rendered an oral decision and entered an order denying plaintiff's motion for a new trial. The court also struck the award for per quod damages because that claim was derivative of Clark's personal injury claim, and the court ruled it was "subject to the verbal threshold." On May 14, 2007, the court entered judgment in favor of Clark in the amount of $40,000, plus $1,587.94 in prejudgment interest.

On appeal, plaintiff presents the following arguments:

POINT I

EXHIBIT D-11, A RADIOLOGY REPORT OF DECEMBER 7, 2000, WAS ADMITTED INTO EVIDENCE WITHOUT FOUNDATION, AND WITH PREJUDICE TO PLAINTIFF'S CASE.

A. EXHIBIT D-11 SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AS THERE WAS NO FOUNDATION FOR ACCEPTING IT INTO EVIDENCE.

B. THE QUESTION BY THE JURY DURING DELIBERATIONS MADE MANIFEST THE PREJUDICE CAUSED BY ALLOWING EXHIBIT D-11 INTO EVIDENCE WITHOUT FOUNDATION.

POINT II

RHIZOTOMY SURGERY CAUSES PERMANENT INJURY TO A BODY PART AND, THUS, MEETS THE DEFINITION OF PERMANENT INJURY PURSUANT TO N.J.S.A. 39:6A-8, AS A MATTER OF LAW.

POINT III

THE MEDICAL EVIDENCE PRESENTED BY PLAINTIFF RATIONALLY SUPPORTED A FINDING OF PERMANENT INJURY, TO THE EXCLUSION OF ANY RATIONAL VERDICT OF TEMPORARY INJURY, ONLY.

POINT IV

THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V

DENIAL OF PLAINTIFF'S REQUEST TO PRESENT VIDEOTAPED TESTIMONY OF DEFENDANT'S EXPERT, DR. TIMOTHY MICHAL[S], CONSTITUTES PREJUDICIAL ERROR.

After reviewing these contentions in light of the record, the applicable law, and the arguments of counsel, we conclude there was ample evidence to support the jury verdict, and there was no prejudicial error warranting a new trial. We therefore affirm.

During his opening statement to the jury, plaintiff's attorney conceded Clark had "a history of low back pain":

Now, it's important for you to know there is a history of low back pain by Clark Sabo. He doesn't say he had no problems with his back before this accident. He's not saying that he didn't have a condition of that back beforehand. But, at the time of this accident it was mild. He had had a period of disability about a year earlier where he went through treatment. Went through rehabilitation. Worked his way back to returning to employment and was maintaining his health with some occasional . . . mild back pain, and he did stay in touch with Dr. Risi.

But, the pain on this day was different and more severe than he had ever felt. And physical therapy was ordered by Dr. Risi. July 9th, 2002, an MRI is ordered and you'll see and hear evidence of the MRI results. And what was reported and found at that time was an extruded disk at L5[-]S1 which was an aggravation of that disk at that level compared to what was before.

And the extruded disk will be discussed. Extruded means disk material. The disk is the cushion, the shock absorber if you would, between the vertebrae and the spine. And it's encapsulated in a ligament. And the disk material when that ligament is torn can escape. And in this case, extruded means it was all the way into the spinal canal after this accident which is different than anything that appeared before on any studies of Mr. Sabo.

In addition, plaintiff conceded during cross-examination that he had seen his family physician, Dr. Mark Risi, for low back pain (which he rated as an eight on a scale of ten) on the morning of June 26, 2002, prior to the accident which took place later that same day.

Plaintiff's complaint was filed pursuant to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, which requires a party to demonstrate objective evidence of a permanent injury to qualify for non-economic damages. N.J.S.A. 39:6A-8(a). To prove that he suffered permanent injuries as a result of the motor vehicle accident on June 26, 2002, plaintiff presented testimony from three treating physicians: Dr. Robert Carabelli, a Board certified specialist in physical and rehabilitation medicine; Dr. John Tydings, a Board certified orthopedic spinal surgeon; and Dr. Adam Sackstein, a Board certified anesthesiologist, who specializes in pain management. Plaintiff also presented the testimony of Dr. Steven Resnick, a board certified psychiatrist, and Ronald Rosenberg, Ph.D., a vocational economist and rehabilitation counselor. In rebuttal, defendant presented the testimony of Dr. David Smith, a board certified orthopedic surgeon, who examined Clark during the course of the litigation.

Plaintiff was treated by Dr. Carabelli both before and after the accident on June 26, 2002. According to Dr. Carabelli, plaintiff "was having some lower back pain" when he was seen prior to the accident on May 15, 2001. Dr. Carabelli testified that plaintiff participated in "back strengthening therapy," and he was discharged to return to work "[o]n or about 8/13/01."

Following the accident, Clark returned to Dr. Carabelli's office on July 16, 2002, at which time the doctor recommended physical therapy and pain management. Clark was not treated again by Dr. Carabelli until December 13, 2004, when he returned with complaints of increased lower back pain.

Dr. Carabelli testified that an MRI dated December 7, 2000, prior to the accident, revealed a disc bulge at L5-S1, and an MRI after the accident, dated July 9, 2002, revealed a disc herniation at L5-S1. He also stated the July 2002 MRI revealed two new disc bulges at L3-4 and L4-5, and the original disc bulge at L5-S1 was larger.

Dr. Carabelli's testimony also included the following:

Q: [Plaintiff] had also undergone an Xray of the lumbar spine on December 7, 2000, correct?

A: Yes.

Q: And the indication for undergoing that lumbar spine X-ray was an indication of back pain and radiculopathy, correct?

A: Yes.

Q: And that lumbar spine X-ray which was taken on December 7, 2000 revealed degenerative changes in the lower lumbar [facets], correct?

A: Yes.

Q: And L5-S1, that's in the lowest region of the lumbar spine, correct?

A: Yes.

Q: So L5-S1 would be considered in the same region as the lower lumbar [facets], correct?

Yes.

Thus, Dr. Carabelli confirmed that the x-ray taken on December 7, 2000, revealed degenerative changes in the lower lumbar facets, and he confirmed that the July 2002 MRI report indicated moderate desiccation of the L5-S1 disc, i.e., a drying-out of the disc, which is "degenerative in nature." In addition, Dr. Carabelli testified that the degenerative disc disease noted on the MRI report of July 9, 2002, was consistent with his May 2001 diagnosis of discogenic disc disease.

On September 5, 2002, Clark sought treatment from Dr. John Tydings, a board certified orthopedic spinal surgeon. In the course of his evaluation and treatment, Dr. Tydings reviewed and compared Clark's medical records from before and after the accident, and he testified as follows:

Q: And did you have the opportunity to review any films, x-rays or MRIs?

A: Yes, I did. And I'll read here 'cause I have it clearly printed. . . . The plain x-rays that I have reviewed from both episodes were essentially normal. The MRI from two years ago, which would be 2000, showed a small herniation on the left with mild degenerative change at the L5-S1 disc. L4-5 and above appear completely normal on all imaging sequences. The most recent study from July 9th, 2002 shows essentially the same findings with perhaps a slight increase to the protrusion at L5-S1. This caused minimal nerve root impingement at that level.

Dr. Tydings initially thought "the most likely diagnosis was a problem with the disc itself, a combination of a herniated disc as shown by the MRI and also a degenerative disc as shown by the MRI." But he also believed Clark's "symptoms were much more consistent with [a] diagnosis of degenerative disc disease than a true herniated disc."

Dr. Tydings referred Clark for epidural injections for his back pain, and the injections, together with physical therapy, caused significant improvement in Clark's condition. However, in March 2003, Clark returned to Dr. Tydings with complaints of back pain. A discogram revealed the pain was not emanating from Clark's discs. As a result, Dr. Tydings believed the facet joint may have been the cause of Clark's back pain, and he ordered facet injections, which provided therapeutic relief.

Based on the results of the facet injections, Dr. Tydings was satisfied that Clark suffered from facet syndrome, or lower back pain secondary to a problem with the facet joints. He explained that he did not know if Clark's lower back pain "was something completely new or if maybe he had the start of something and [the accident] made it substantially worse." Nevertheless, his diagnosis was that the accident caused an exacerbation of a pre-existing condition. He admitted, however, it was possible that the degenerative disc disease could progress in the manner revealed in the MRIs from December 2000 and July 2002, "irrespective of any trauma," and he agreed the degenerative disc disease was not caused by the accident on June 26, 2002.

In September 2003, Dr. Sackstein performed a discography, and he gave Clark facet injections between October 2003 and January 2007. He also performed radiofrequency rhizotomy procedures in 2005 and 2007, which involved the destruction of the nerve tissue by burning the nerve root.

Dr. Sackstein diagnosed Clark with lumbar facet syndrome and sacroiliitis. Although Dr. Sackstein stated the facet syndrome was related to the accident, when asked if it was a new injury or an aggravation of a pre-existing condition, he responded that it "appear[ed] to be the components of both."

In January 2004, Clark began therapy with Dr. Alan S. Gordon, a clinical psychologist, for depression. Dr. Gordon referred Clark to psychiatrist Dr. Steven Resnick for further evaluation, and Dr. Resnick and Dr. Gordon worked in conjunction regarding Clark's treatment.

Dr. Resnick diagnosed Clark with major depression disorder, obsessive-compulsive disorder, and social anxiety disorder. He noted Clark had a history of depression and anxiety for a few years, resulting from his physical disability and also a learning disability. He also found Clark previously had problems with his wife and stepson, however, Dr. Resnick believed Clark's depression and anxiety were clearly exacerbated by the accident on June 26, 2002. At the time of trial, Dr. Resnick was unaware of Clark's current condition because he had not seen him in over a year, since February 9, 2006.

Clark was also examined by Ronald Rosenberg, Ph.D., a vocational economist and rehabilitation counselor. Dr. Rosenberg determined that as a result of the accident, Clark's lost salary as of July 2005, was $33,533, and his total economic loss, including fringe benefits, was $45,186. According to Dr. Rosenberg, Clark was not completely disabled. Rather, he was employable, but at a diminished capacity. He testified the present value of Clark's future lost salary and fringe benefits was $194,010. And, according to Dr. Rosenberg, as of July 2005, Clark's lost household production was $12,530, and his lost future household production was $125,836.

On February 3, 2005, plaintiff was examined by defendant's medical expert, Dr. Smith. Dr. Smith's findings and conclusions, based on his physical examination and "a thorough review" of plaintiff's medical records, included the following:

[A]s a result of the motor vehicle accident on June 26th of '02 [plaintiff] sustained a sprain of his neck, a bruise of his lower leg and possibly a head injury. It did not render him unconscious. The medical records do not reflect that he sustained any significant injury to his back. That the neck strain, contusion and closed-head injury did respond to conservative treatment with anti[-]inflammatory medications.

It was my opinion that he had previously been treated for low back pain and he had an MRI prior to the accident which revealed this disc problem at L5-S1. That the new MRI of July of '02 was unchanged from the previous study. And I did not feel that he had sustained any injury to his back and he certainly had no evidence that the accident of June 26th, '02 had produced any kind of problems with the L5-S1 disc.

More importantly, I felt that his complaints of pain in the leg on the right side were opposite from the MRI findings. There was nothing wrong with the right side of L5-S1 and the other levels in the lumbar spine were normal.

I felt that . . . his subjective complaints were in excess of the objective physical findings at the time of my examination. I did not think that he required any kind of injections either in the form of facet injections or epidural injections, I did not think that he required physical therapy and I did not think that he had any residuals from his neck injury, the contusion and the closed-head injury that he may have sustained.

When questioned regarding the source of Clark's back pain, Dr. Smith stated: "I think he had chronic degenerative disc disease with herniation at L5-S1 and he may have well been having some back pain related to that."

It is well-settled that a motion for a new trial should be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). In this case, the trial court concluded there was no miscarriage of justice, and its reasons for denying plaintiff's motion for a new trial included the following:

[C]ould a reasonable jury . . . on the proofs in this case have come up with the verdict they did? I think the answer is, yes. I don't believe it was irrational as Mr. Brotman suggests. There was a lot for them to consider no doubt, all of the expert testimony that was put forth by the plaintiffs.

But there were certain problems with the case . . . . One of the problems with Facet Syndrome from the plaintiff's point of view is that there's a certain subjectivity involved in the diagnosis. The doctors talked about that. It's not as if you can see it. That doesn't mean that . . . the discogram isn't valid. I think we had Dr. Smith calling some things into question about that. But it certainly was put before the jury the testimony that it was valid. But they both admitted, Tydings and Sackstein, that it's based upon subjective complaints of pain. So, I mean that was just something that the jury had to consider that made the plaintiffs' proofs more difficult.

But ultimately, I think it really was the issue of permanency. The jury said, no, there was no permanent injury caused by the accident. And so, you look back and you see the pre-existing injury that was significant enough to keep . . . Mr. Sabo out of work for six months.

And . . . there were certain things on cross[-]examination . . . Dr. Tydings for example hadn't looked at Dr. Levine's records. Dr. Levine had . . . treated Mr. Sabo earlier. And there had been complaints to the leg that Mr. Sabo had in the earlier treatment that weren't brought out . . . in Dr. Tydings'[s] testimony.

So, even though there was a lot of testimony on behalf of plaintiff, there were questions that were raised by the defense. The jury really . . . had to struggle with this.

There were certain credibility issues with the plaintiff himself. I mean he . . . seemed not to have recalled he had gotten a letter to be out of work . . . because of back problems . . . on the day of this accident. He was out of work for a week, yet he was in Jackson at the outlets at the time the accident occurred, going shopping for clothing and an air conditioner. I guess he had effective pain medication that day.

And you had the other issue of his going back to work for a number of months prior to his being out on disability. . . . But the jury was free to reject the testimony and the opinions of Dr. Tydings and Dr. Sackstein because what they have to look at is did plaintiff meet [his] burden of proof by a preponderance of the evidence that he had sustained a permanent injury as a result of the accident.

We are in substantial agreement with the court's analysis. Moreover, based on our review of the record and the applicable law, we are satisfied the verdict was reasonable and there was no reversible error.

Plaintiff contends the court erred by admitting the December 2000 x-ray report into evidence without proper foundation and authentication, as required under N.J.R.E. 901. He also argues the report was inadmissible hearsay because the radiologist who prepared it was not subject to cross-examination. As a result, plaintiff contends he was substantially prejudiced and is entitled to a new trial.

In response to plaintiff's motion to introduce the July 2002 MRI report into evidence, defendant's attorney argued that plaintiff's MRI and x-ray from December 2000 should also be admitted into evidence for the sake of "completeness." The xray report, dated December 7, 2000, reads as follows:

EXAMINATION PERFORMED: SPINE LUMBOSACRAL 2VW CLINICAL INFORMATION: Back pain, left radiculopathy.

IMPRESSION: LUMBOSACRAL SPINE - Degenerative changes lower lumbar facets. No fracture or subluxation.

COMMENT: Frontal and lateral radiographs demonstrate straightening of the lumbar lordosis. There is no fracture, collapse or subluxation. There is facet arthropathy at the lower lumbar levels. The sacrum and sacroiliac joints appear preserved.

In admitting all three documents (both MRIs and the x-ray report), the court reasoned:

Well . . . there's language also in the diagnostic radiology reports that goes beyond what any of the treating physicians testified to. The reason I was considering giving it to the jury is that there was various testimony . . . about the reports, and they are the kind of reports that doctors rely upon, and to some extent they can go to credibility and . . . the jury could certainly see it. . . .

But the x-ray report is pretty basic, and to me it's the same kind of situation as the MRI. So . . . we will put in the two MRIs, one from 2000, one from 2002, and I will allow into evidence the report of the x-ray, which was from 12/07/2000. The radiology . . . report from . . . December 7th, 2000, and the radiology report from July 9th, 2002.

The court also determined the x-ray report was trustworthy in accordance with N.J.R.E. 808, finding it was the kind of report doctors relied upon.

During its deliberations, the jury sent a note to the court pertaining to the x-ray report. The jury asked whether the "facet" referred to in the x-ray report referred to "the facet joint." The court responded that it could not provide an answer to the question because it was a fact to be determined by the jury. Plaintiff now argues "the jury's unnecessary confusion caused undue prejudice . . . and resulted in an inexplicable finding of temporary injury." We do not find this argument persuasive.

N.J.R.E. 808, which prohibits the use of an expert opinion as substantive evidence, absent testimony from a qualified expert witness or circumstances tending to establish trustworthiness, provides as follows:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

Expert witnesses often rely on documentary hearsay statements to form the basis of their opinions. They are "permitted to rely upon facts constituting hearsay, so long as they are 'of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" Corcoran v. Sears Roebuck & Co., 312 N.J. Super. 117, 134-35 (App. Div. 1998) (quoting N.J.R.E. 703). "The hearsay statements so considered are not admitted to establish the truth of their contents, but to apprise the jury of the basis of the expert's opinion." Id. at 135. "Stated another way, an expert may offer out-of-court statements of others to support the opinions presented." State v. Torres, 183 N.J. 554, 576 (2005). See also State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995) ("We recognize that an expert who relies on hearsay as the basis of his opinion may relate that hearsay as part of his direct testimony.").

An expert's reliance upon hearsay evidence in rendering an expert opinion, however, is not without limitations. In Brun v. Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006), based "on the complexity of MRI interpretations," the court reasoned that admitting an "MRI report without calling [the author] as a witness would deprive [the adverse party] of the ability to cross-examine the author of the report on the central issue of the case, namely plaintiff's herniation." Thus, the court concluded that the MRI report, which was authored by a non-testifying expert, "was, on objection, inadmissible hearsay." Id. at 422.

Similarly, the parties in the present matter did not present any testimony from the authors of either the July 2002 MRI report or the x-ray report dated December 7, 2000. Consequently, neither document should have been admitted into evidence. Nevertheless, because there was substantial testimony from plaintiff's experts regarding the contents of the x-ray report, we are satisfied the admission of the x-ray report did not have a clear capacity to produce an unjust result. See R. 2:10-2; see also Bussell v. DeWalt Prods. Corp., 105 N.J. 223, 231 (1987); State v. Macon, 57 N.J. 325, 337-38 (1971).

Moreover, plaintiff's inconsistent advocacy, in first urging the admission of a hearsay diagnostic report helpful to his position, but then objecting to a comparable and equally inadmissible diagnostic report offered by the defense, implicates the "opening the door" doctrine. Having succeeded in getting the court to admit the hearsay MRI report from July 2002, and having also consented to the admission of the December 2000 MRI report, contrary to hearsay case law and N.J.R.E. 808, plaintiff should not be permitted to complain that the court failed to enforce those very same hearsay principles when the defense, in turn, offered the x-ray report dated December 7, 2000. Plaintiff opened the door to the admission of the x-ray report by convincing the trial judge to admit the later MRI study. See State v. James, 144 N.J. 538, 554 (1996) ("The doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence."). Like the doctrine of completeness, the opening the door doctrine allows an adverse party "to place the evidence in its proper context." Ibid. That is what happened here.

The remaining arguments advanced by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(B) and (E). The jury was entitled to credit the expert testimony of Dr. Smith, which supported a finding that plaintiff did not suffer a permanent injury as a result of the automobile accident on June 26, 2002, and we perceive no legitimate basis to intervene.

Affirmed.


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