January 7, 2009
GEORGE TEREBUSH AND BARBARA TEREBUSH, PLAINTIFFS-RESPONDENTS,
ERICA HOFFMAN, DEFENDANT-APPELLANT, AND ALLSTATE INSURANCE COMPANY,*FN1 DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7164-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 18, 2008
Before Judges Winkelstein and Fuentes.
Following a trial on causation and damages, a jury awarded plaintiff George Terebush $125,000, and his wife Barbara Terebush $25,000 on her consortium claim.*fn2 The lawsuit arose out of personal injuries plaintiff sustained in an October 2, 2001 automobile accident, when his car was rear-ended by a car driven by defendant Erica Hoffman. Defendant claims the verdict was against the weight of the evidence; and alternatively, that a new trial is required as a result of improper comments plaintiff's counsel made during summation. We reject these arguments and affirm.
At the time of the accident, plaintiff was forty-eight years old and employed as a magician. He declined immediate medical attention at the scene of the accident, stating that he was not in pain immediately after the accident, feeling only pressure at the base of his back. In December 2001, he sought treatment after his back pain worsened. He continued working, though he could no longer carry his equipment; instead, he used a hand cart to move it.
Plaintiff received treatment from Dr. Jeffrey Jenssen, a chiropractor, twice a week for several months, but showed no improvement. In March 2002, he saw Dr. Joseph Lombardi, an orthopedist. After plaintiff underwent an MRI and an EMG, Dr. Lombardi diagnosed him with bulging and herniated disks, as well as nerve damage causing pain down his left leg. Dr. Lombardi recommended epidural injections; plaintiff received a series of five injections beginning on July 16, 2002, which provided him with temporary relief from his back and leg pain.
The parties stipulated to liability. Prior to opening statements, defendant moved to strike the May 15, 2007 supplemental expert report of Dr. David Weiss, a board certified orthopedist, because it was submitted after the discovery end date. The court granted defendant's motion and precluded use of the report at trial, and limited Dr. Weiss's testimony to the results of his 2003 examination of plaintiff. The parties later agreed that Dr. Weiss could testify about the 2007 MRI results, but he could not mention his 2007 report.
Plaintiff testified that as a result of the accident, he was unable to engage in his prior activities. He could no longer stand or sit for long periods of time; could not do household or yard chores; and had problems sleeping. He and his wife were "intermittently not intimate," and they no longer went out socially because of his injury. His wife confirmed his testimony.
Dr. Weiss testified that plaintiff sustained a permanent back injury causally related to the 2001 accident. He based his opinion on the MRI results, showing a disk bulge at L4-L5 and a herniated disk at L5-S1, and the EMG results, which showed radiculopathy from the L5-S1 disc down plaintiff's left leg.
In his 2007 report, which the court barred from use at trial, Dr. Weiss diagnosed plaintiff with post-traumatic facet syndrome of the lumbar spine superimposed on a pre-existing facet joint arthropathy. At trial, Dr. Weiss did not refer to that report, but he nevertheless testified about plaintiff's pre-existing problem with the facet joints in his spine. The relevant portions of that testimony were as follows:
[Dr. Weiss:] The problem with facet joints are they are prone to become arthritic, and unfortunately as all of us get over 40 years of age and we look at these MRI's you're going to have some arthritic changes. You may not even know you have arthritis, you may not be asymptomatic, but over 60 percent of us [are] going to have some degree of arthritic change either in the disk or in the facet joints.
The problem with the facet joints are they produce pain. We know now that these facet joints carry nerve endings in themselves. They are a source of pain. So what the interventional radiologist does, and by the way, here's your facet joints.
This is what we call the sagittal view, and you can see in here these facet joints. These are enlarged, and that's from arthritis. That has nothing to do with this motor vehicle accident. This arthritis predated his motor vehicle accident.
But what happens is the facet joints can almost be hurt like in a whiplash in a car accident, and so that will cause them to undergo pain. Trauma can produce pain in asymptomatic arthritic conditions. So what you're seeing here is the facet joint. You're also seeing some disk pathology down here at L4-5 and L5-S1. Again, this is a swollen disk.
If we look at the disk above it, see how nice this is? It comes straight across. But when we see here it starts to dip down, and here it even dips further. This is the central area with some lateralization to the left side, and we also have the facet joints also playing a factor.
So that when the patient went to see Dr. Lamb the situation became, okay, I believe that his problem is two-fold. One is the disk is inflamed. And two, the facet joints are inflamed. So she attacked it two ways. She attacked it through the blocks, the nerve blocks, and she attacked it through the facet joint injections.
Q:... Now doctor, do you have an opinion with regard to the disk injury that we just talked about on these films, whether or not they're causally related to this motor vehicle accident of October 2nd, 2001?
A: Yes, I did.
Q: And what is that opinion, Doctor?
A: [T]his gentleman, essentially, was asymptomatic prior to the motor vehicle accident in question. There's no history in the medical records here that he had been to see a spinal surgeon before this, that anybody had said that he needed interventional pain management before this.
That... essentially following this motor vehicle accident there becomes the cascade of events. He sees the chiropractor. He gets an MRI. He goes to a spine surgeon.
The spine surgeon recommends interventional pain management. He then sees an interventional pain management specialist and receives these type of injections.
Dr. Douglas Chalmers, a board certified orthopedic surgeon, testified for defendant that the MRI films did not show damage to plaintiff's spine as a result of the 2001 accident. He testified that plaintiff had a pre-existing degenerative injury at L5-S1. In his opinion, plaintiff suffered only a strain as a result of the accident.
Following plaintiff's counsel's closing argument, defense counsel objected to the "mischaracterization of testimony of Dr. Chalmers"; plaintiff's counsel's "interjection of testimony not elicited during plaintiff's case in chief concerning a Viagra prescription"; and the "use of Dr. Weiss's May 15, 2007 report by plaintiff's counsel during his closing argument." As to the latter, during summation, plaintiff's counsel picked up Dr. Weiss's 2007 report instead of his 2003 report and read to the jury the following diagnosis: "post traumatic facet syndrome of the lumbar spine superimposed upon a pre-existing facet joint arthopathy."
After a lengthy colloquy with counsel, the court emphasized to the jury that counsels' comments during closing were not evidence. The judge instructed the jury as follows:
Before I begin I want to emphasize to you again, that which I told you whenever the attorneys approached you to speak to you, and that is that what they say is not evidence. They are simply highlighting that, which they think, you should take into consideration during your deliberations or what you should be listening for during the course of the trial.
You can accept or reject anything that they have said to you, and again that's for you to choose. And I'll tell you again during these instructions, but again it's a very important concept that we want you to keep in mind that this is simply argument and what eventually happens all depends on you and if there is some dispute with regard to the facts as you believe them to be and the facts that were presented to you during the course of the presentation to you by the attorneys its your recollection that is controlling, and not theirs.
Now while you may consider their comments nothing that the attorneys say is evidence and their comments are not binding upon you.... It's your recollection and evaluation of the evidence that is controlling. And if the attorneys have said anything about the facts in the case that disagrees with your recollection of the evidence then it's your recollection that you should rely on.
Following the verdict, the court denied defendant's motion for a new trial, and alternatively, for a remittitur.
We begin our discussion with defendant's argument that the verdict was against the weight of the evidence. Defendant claims that plaintiff did not prove that he suffered a permanent injury as a result of the accident. We disagree.
Plaintiff's automobile insurance policy had a limitation on lawsuit threshold pursuant to the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. For a plaintiff to recover for non-economic injuries under that act, his injuries must "satisfy one of the six statutorily defined threshold categories in [AICRA]." Serrano v. Serrano, 183 N.J. 508, 509 (2005). One of those categories is that the plaintiff sustained a "permanent injury within a reasonable degree of medical certainty" as a result of the accident. N.J.S.A. 39:6A-8a. "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." Id.
Here, the record supports the jury's conclusion that plaintiff suffered a permanent injury as a result of the accident. Dr. Weiss testified that two objective tests were conducted on plaintiff, an MRI and an EMG. Based on the results of those tests, Dr. Weiss concluded that the accident caused plaintiff permanent injuries, a disk bulge at L4-L5, a herniated disk at L5-S1, and radiculopathy from the L5-S1 disc down plaintiff's left leg.
Defendant also argues that the court erred in failing to reduce the jury verdict because it was excessive. A trial judge should not reduce damages assessed by a jury "'unless it is so disproportionate to the injuries and resulting disabilities shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust.'" Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977) (quoting Tawell v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). "'In making its overview, a court must accept the medical evidence in the most favorable light to plaintiffs; it must accept the conclusion that the jury believed the plaintiffs' injury claims and the testimony of their supporting witness, and if, tested on such bases, the verdict (even if generous) has reasonable support in the record, the jury's evaluation should be regarded as final.'" Ibid. We apply the same standard on appeal. McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002).
Accepting the evidence presented by Dr. Weiss, along with the testimony of plaintiff and his wife as to how the injuries impacted plaintiff's life, the $150,000 verdict did not shock the trial court's conscience. The court found that the verdict was "not so out of the ordinary or out of whack with regard to the evidence that was presented, and the type of case that was presented." We agree. Dr. Weiss testified that plaintiff has a permanent back injury. Plaintiff testified that he has continuing pain in his back and left leg. As a result of the accident, he is unable to engage in his prior activities, he can no longer stand or sit for long periods of time, he cannot do household or yard chores, and he has problems sleeping. He and his wife are "intermittently not intimate" and they no longer go out socially because of his injury. This evidence supports the court's finding that the verdict does not shock the conscience.
Next, we turn our attention to defendant's argument that they are entitled to a new trial because the court failed to take sufficient corrective action to address statements plaintiff's counsel made in closing. Defense counsel did not object during the closing, although in a colloquy with the court and plaintiff's counsel she stated that she was "stammering for a moment during the closing," but she did not want to object until the closing had been completed. At oral argument before this court, defense counsel represented that she attempted to stand up during plaintiff's counsel's closing to object to some of his comments, but the judge motioned her with his hand to sit down. In either event, by counsel waiting until the closing was complete or by attempting to object and being precluded from doing so by the court, we conclude that counsel timely objected to plaintiff's counsel's comments. Thus, we will not address defendant's argument under the plain error standard, but rather under the harmful error rule, which allows a court to find an error to have been harmless and not be grounds for reversal unless it is "clearly capable of producing an unjust result."
R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).
Counsel is permitted broad latitude in summation. Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). "[C]counsel may draw conclusions even if the inferences that the jury is asked to make are improbable, perhaps illogical, erroneous or even absurd, unless they are couched in language transcending the bounds of legitimate argument, or there are no grounds for them in the evidence." Ibid. But, counsel may not "misstate the evidence nor distort the factual picture." Ibid. (quotation omitted).
Here, defendant's objections with regard to plaintiff's counsel's characterization of Dr. Chalmers's testimony and the Viagra comments are without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Defendant's arguments with regard to plaintiff's counsel mischaracterizing Dr. Weiss's testimony, however, require some additional discussion. Nevertheless, we conclude that although plaintiff's counsel erred in reading from the barred 2007 report, in the context of Dr. Weiss's testimony, as well as the findings in his 2003 report, which was used during the trial, we find no error that would warrant reversal of the verdict.
Dr. Weiss testified that problems with facet joints produce pain. He said that plaintiff's facet joints were enlarged, but the enlargements were from arthritis that was unrelated to, and pre-existed, the motor vehicle accident. Nevertheless, in his direct testimony, Dr. Weiss explained: "facet joints can almost be hurt like in a whiplash in a car accident, and so that will cause them to undergo pain. Trauma can produce pain in asymptomatic arthritic conditions. So what you're seeing here is the facet joint.... Again, this is a swollen disk." Subsequently, when asked by plaintiff's counsel if he held an opinion whether the disk injuries that he had just spoken about were causally related to the motor vehicle accident, Dr. Weiss replied that prior to the accident plaintiff was essentially asymptomatic, with no prior history of back pain requiring interventional pain management, which he needed after the accident. A fair inference from Dr. Weiss's testimony is that plaintiff was pain-free prior to the accident, even though his facet joints were inflamed from arthritis, and injections were only required as a result of injuries he sustained in the accident. Thus, the evidence could have supported a conclusion that plaintiff's facet joints were injured in the accident.
In light of that testimony, the inadmissible 2007 diagnosis that plaintiff's attorney read to the jury during summation does not, in context, constitute a miscarriage of justice so as to warrant a new trial. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Significantly, the trial court emphatically instructed the jury that counsel's arguments were not evidence. Consequently, the error was harmless.