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Hermosi v. Azzaro

December 15, 2008

MARTA HERMOSI AND SERGIO HERMOSI, HER HUSBAND, PLAINTIFFS-APPELLANTS,
v.
MEGAN AZZARO AND JOHN AZZARO, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8848-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2008

Before Judges Wefing, Parker and Yannotti.

Plaintiffs Marta and Sergio Hermosi*fn1 appeal from a judgment entered on November 23, 2007 after a jury found no cause for action. They also appeal from an order entered on December 7, 2007 denying their motion for a new trial.

This appeal arises out of a rear-end collision on October 15, 2004, in which defendant's vehicle hit plaintiff's vehicle. Plaintiff claimed orthopedic and neurological injuries stemming from the accident. Plaintiff was subject to the tort limitation, commonly referred to as the verbal threshold, in order to proceed with her claim. N.J.S.A. 39:6A-8a.

Dr. Michael Amoroso, a radiologist, testified as an expert on plaintiff's behalf. Interpreting plaintiff's MRIs, Dr. Amoroso testified that plaintiff had a central superior disc herniation in the cervical spine at C2/C3 and disc bulges at C3/C4, C4/C5 and C6/C7. He testified that herniation is caused by "[s]ome traumatic force." He further indicated that a herniation is a permanent condition "[e]xcept for rare instances." He noted that plaintiff's lumbar spine MRI showed disc desiccation and acknowledged that the desiccation could have resulted from degenerative changes rather than trauma. He also acknowledged that plaintiff's MRI showed no nerve root or spinal cord impingement.

Dr. Wayne Poller, a chiropractor, testified as an expert on plaintiff's behalf. He noted that plaintiff began treating with him approximately one week after the accident. She complained of pain, stiffness in her back, neck and shoulders and discomfort elsewhere in her body. She exhibited pain on palpation at C4/5, C5/6 and L5. Dr. Poller took X-rays, which showed "hypomobile subluxation*fn2 at C5/6/7, some disc narrowing at C5/6/7, and . . . subluxations at C7/6, C5/4, and malpositions at C6/7 and C4/3." In his reading of plaintiff's MRIs, Dr. Poller found a bulging disc at L5/S1.

Dr. Roger A. Berg, defendant's radiological expert, found no herniations or subluxations in plaintiff's cervical MRI and that "all the vertebral bodies were in a normal alignment." He found no indication of nerve root impingement and testified within a reasonable degree of medical certainty that the changes in plaintiff's cervical spine shown in the MRI were chronic and degenerative rather than caused by the accident. Indeed, Dr. Berg stated that it would be unusual for a person of plaintiff's age, forty-four, to have no degenerative changes. According to Dr. Berg, plaintiff's MRI of the lumbar spine showed no disc bulge at L5/S1 and that the L5/S1 disc was "absolutely normal."

Similarly, Dr. Robert Goldstone, a certified orthopedic surgeon testifying on behalf of defendant, reviewed plaintiff's MRIs and opined that plaintiff did not suffer from symptomatic disc disease or radiculopathy. He also indicated that there was no evidence of nerve root impingement, nor did he see any evidence of permanent injury.

At the conclusion of the testimony, plaintiff requested the court to instruct the jury "that a herniated disc is a permanent injury as a matter of law." Plaintiff argued that if the jury found that the herniated disc was proximately caused by the accident, they should then proceed to damages. Defendants objected and argued that the question of whether plaintiff suffered a permanent injury was an issue of fact for the jury to resolve.

The trial judge denied plaintiff's request and read Model Civil Charge 5.33B on the limitation on lawsuit option (verbal threshold). This charge required the jury to determine (1) whether defendants' negligence was the proximate cause of plaintiff's injuries; and (2) whether plaintiff's injuries were permanent. The court defined "permanent injury" as follows:

[An] injury shall be considered permanent when the body part has not healed to function normally, and will not heal to function normally with further medical treatment. Plaintiff must prove this claim through objective, credible, medical evidence. Objective proof means that the injury must be verified by physical examination or ...


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