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Sabo v. Josephs

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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