On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-3896-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C.L. Miniman.
Defendant Eugene Merwin*fn1 appeals from the denial of his motion for a new trial or remittitur and from a judgment for plaintiffs Valantina Mikhail Hedvat (Valantina) and Nejat O. Hedvat (Nejat) in the amount of $248,000 as later amended to include an award of counsel fees, costs and interest for a total judgment amount of $387,177.38. We affirm.
This is the third time this matter has been tried to a conclusion. The case first came on for trial in 2004 and the first jury returned a verdict of no cause for action. The first trial judge granted a motion for a new trial, limited to the issue of whether Valantina had suffered any temporary injuries. Liability had been stipulated by defendants. We then denied plaintiffs' motion for leave to appeal the limited grant of a new trial.
At the second trial, the jury returned a verdict for plaintiffs in the total sum of $15,500 for temporary injuries. Plaintiffs appealed from the denial of the new-trial motion and the resulting judgment and defendant cross-appealed from an order barring its radiological expert. On March 26, 2006, we reversed the scope of the order on the new-trial motion and remanded for a new trial on all damages issues, concluding that the discovery issue was moot in light of the requirement for a new trial. The third trial began on December 5, 2006, and the jury returned its verdict on December 8, 2006.
The head-on collision giving rise to this lawsuit occurred on January 30, 2002, and defendant stipulated that he was at fault for the accident. Plaintiffs' two-year-old vehicle was a total loss. Valantina is a part-time real-estate attorney and mother of three. Nejat is a structural engineer. Valantina did all of the housework and was an active volunteer before the accident. She played tennis, ran and gardened as time allowed.
After the accident Valantina "started to feel pain and achiness starting down [her] neck and [her] back," which progressively got "worse and worse and worse." Valantina experienced a lot of pain all over and some "tingling" and "numbing" sensations throughout the top portion of her body the night following the accident. She went to see her family physician, Dr. Eugene Evans, who ordered an x-ray of her back and shoulders, prescribed Naprosyn for pain relief and Soma as a muscle relaxer. When Dr. Evans received the x-ray report, he ordered an M.R.I. of her neck and low back. After reading the M.R.I. report, Dr. Evans called Valantina and recommended that she see a specialist.
About a week or ten days after the collision, Valantina went to see Dr. Thomas Errico, a New York physician with an office in Summit. He prescribed physical therapy three times a week, which Valantina went to "religiously" for six or eight months. The pain in her low back improved, but her neck continued to bother her even after the physical therapy was over. From the end of physical therapy to the time of trial, Valantina testified that she has weakness in her arms, "can't lift more than two pounds," and that when she tries to do any type of physical exertion with her arms the pain "goes down [her] neck, down [her] shoulders, down [her] arms," and her arms feel weak and tingle. The tips of her fingers are slightly numb, as though she is always wearing gloves. She has pain down her neck to the middle of her back. Her finger strength is diminished and she has trouble with buttons. The pain has prevented Valantina from enjoying many activities that she did before the accident. Valantina also had to hire someone to come to her home on a weekly basis to take care of the heavy household chores that she is not able to do. She offered into evidence copies of checks issued to Very Fatima from February 6, 2002, through May 20, 2004. Defendant objected that several of the checks had not been produced in discovery. However, the judge admitted those checks over the objection of defendant because they had been accepted in evidence in the prior trial.
Dr. Evans testified that he found diffuse tenderness throughout the entire cervical spine, tenderness in the left shoulder and part of the neck. The trapezius muscle was very tender. The range of motion in the left shoulder was limited. Dr. Evans opined that the tenderness in the trapezius was probably a spasm, which he defined as "a persistent tightening of the muscle itself." Dr. Evans also opined that the injuries he noted were "fresh" and that Valantina had not had these symptoms before. He testified that he initially diagnosed a cervical strain. He made no note of Valantina complaining of any numbness or tingling.
Dr. Errico testified in a videotaped de bene esse deposition taken on May 28, 2004, which was played at trial.*fn2 In Dr. Errico testified that he practiced at New York University Medical Center where he taught orthopedic surgery, neurosurgery and served a Chief of Spine Service for the Department of Orthopedics. He was the President of the North American Spine Society, authored twenty-five peer-reviewed articles and wrote or edited four textbooks on spine surgery. Dr. Errico was accepted as an expert in the field of orthopedics.
Dr. Errico testified that he first saw Valantina on February 15, 2002. He reviewed the M.R.I. films and report that Valantina brought with her. They showed reversal of the normal lordotic curvature from C3 through C6, subligamentous disk herniations from C3-4 to C5-6 and spinal stenosis, most prominently at C4-5 and C5-6. The films showed a large posterior disk protrusion at C6-7 that was touching the spinal cord. Dr. Errico opined that the pressure on the spinal cord was causing the tingling into Valantina's hands, the pathological reflexes at the knee and the positive Hoffman sign. Dr. Errico opined that a disk subject to trauma can be pushed back out of its place between the bones and come into contact with the spinal cord.
Dr. Errico elected to treat Valantina conservatively with anti-inflammatory medicine and physical therapy. Over the months of therapy, Dr. Errico felt there was some improvement. By October 2003 Valantina still had the neurological symptoms but her lower extremities were doing well. He felt that her condition had "plateaued" by that time and he continued her on anti-inflammatory medication. There was no change when he last saw her in April 2004.
Dr. Errico expressed concern that in the future Valantina's condition "may become progressive again." He opined that she may need spinal cord decompression surgery. Dr. Errico observed that "there were no problems or complaints prior to the accident and the persistent symptoms which were not only . . . subjective complaints but there were objective findings of irritable nerves." He opined that "the accident exacerbated . . . the condition of her neck . . . resulting in the mild cervical myelopathy." Finally, he opined that her medical condition was permanent.
On cross-examination, Dr. Errico admitted that he did not notice soft tissue swelling in the M.R.I. films. He denied that degenerative conditions always produce pain. Last, he opined that, if there was no pain the day before the accident and there was pain afterwards, the accident caused the pain from the pre-existing degenerative conditions.
Dr. Howard Hirsch was admitted as an expert in radiology on behalf of defendant and gave his opinion of the nature of Valantina's injuries based on his interpretation of her M.R.I. films. Dr. Hirsch testified that he found signs of "advanced disk degeneration" at C3-4, C4-5 and C5-6 that had been taking place "over many years." Valantina had arthritis at those levels and also "minimal disk herniation." Dr. Hirsch further testified that ...