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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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