On appeal from Superior Court of New Jersey, Law Division, Somerset County, No. L-1543-05.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2008
Before Judges Wefing, Yannotti and LeWinn.
The jury returned a verdict in plaintiff's favor for $250,000 as damages for injuries plaintiff sustained in a motor vehicle accident on November 4, 2003. Defendant appeals from the judgment entered upon that verdict. After reviewing the record in light of the contentions advanced on appeal, we have concluded the judgment must be reversed and the matter remanded for a new trial.
The accident occurred in the early evening of November 4, 2003. Plaintiff was stopped in the line of traffic at a red light when he was struck in the rear by a vehicle driven by defendant. Defendant conceded liability, and the matter was tried on the question of damages only.
Plaintiff did not immediately seek medical care or treatment. Approximately two weeks after the accident, he came under the care of a chiropractic physician, Doctor Lang. He related the happening of the accident, the aggravation of a pre-existing condition in his left hip and pain in his lower back. Dr. Lang began a course of treatment that provided only temporary relief. Dr. Lang referred plaintiff for MRIs, which revealed a herniated disc in plaintiff's lower back. When plaintiff did not achieve substantial relief through the chiropractic treatments, Dr. Lang referred plaintiff to a medical doctor, who twice gave plaintiff a cortisone injection in his hip and once gave him an epidural injection in his lower spine.
Plaintiff was thirty-five years old at the time of the accident and lived a physically active lifestyle. He played ice hockey and roller hockey, coached an ice hockey team, skied, played golf and hiked. He said that after the accident he no longer engaged in those activities because of the pain he experienced.
The trial was brief. Plaintiff testified, and presented two experts, Dr. Lang and David Weiss, D.O. Dr. Weiss testified that plaintiff's herniated disc was a proximate result of the automobile accident. Defendant presented Robert Bercik, M.D., who agreed that plaintiff had a herniated disc but testified that it was the result of plaintiff's degenerative disc condition and was not related to the accident.
Dr. Bercik also testified that in his opinion plaintiff's complaints did not correlate with the MRI. He noted in this regard that the herniation revealed on the MRI was to the right side, while plaintiff's complaints of pain and limitation appeared to be limited to his left side. He also noted that plaintiff did not make any complaints of tingling or numbness or display any limitation in his reflex reactions.
After the close of evidence, plaintiff, relying on Pardo v. Dominguez, 382 N.J. Super. 489 (App. Div. 2006), requested the trial court to instruct the jury that a herniated disc constitutes a permanent injury. Defendant objected, but the trial court, after argument, agreed to do so. It included the following remarks within its charge:
In order to recover damages in this case, plaintiff must prove . . . by a preponderance of the evidence that he sustained permanent injury with a reasonable degree of medical probability. In this case the plaintiff alleges that he suffered a permanent injury as a result of the motor vehicle accident. An injury shall be 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. In this matter, if you find that the accident was a substantial factor in causing a herniated disc in the lumbar spine at L5-S1, if you decide that there is a herniation that was caused by this accident, then that is a permanent injury under the statute, and Mr. Ames would be entitled to non-economic damages. If, however, in this matter you do not find this accident was a ...