On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-1075-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Reisner.
In this automobile accident case, plaintiff Barbara Dedear appeals from a $3,000 jury verdict in her favor, contending that the trial judge erred in failing to charge the jury on aggravation of a pre-existing condition. Because we conclude that the trial judge's determination on that issue was correct, we affirm the judgment entered November 13, 2007, and the January 4, 2008 order denying plaintiff's motion for a new trial.
There is no dispute that plaintiff was injured in the accident, which occurred on December 1, 2002. Defendant admitted liability and did not dispute that plaintiff suffered temporary sprain and strain injuries in the accident. Plaintiff's theory of the case, as articulated in her counsel's opening statement, was that the accident caused new injuries to plaintiff's lower back, in the form of "disc damage at L4-5 . . . and L5-S1." In 2005, plaintiff had lower back surgery to repair those discs. Plaintiff contended that the surgery was necessary because of the injuries she suffered in the accident. The defense's position was that the 2005 surgery was due to plaintiff's degenerative joint disease, which was unrelated to the accident. In particular, the defense relied on the fact that a 2002 MRI showed a disc bulge, whereas the 2005 MRI showed a herniated disc.
At the trial, the parties presented their expert witnesses through de bene esse videotaped depositions taken prior to trial. Consequently, neither party was in a reasonable position to respond to new medical theories raised at trial by the other party.
Plaintiff presented testimony from Dr. James Lowe, a neurosurgeon specializing in spinal surgery. He began treating plaintiff in April 2004. He testified to his review of plaintiff's previous medical history, which included fibromyalgia, and a 1992 auto accident which caused no lasting injury. Dr. Lowe reviewed an MRI done June 13, 2003. He testified that the MRI did not show a typical herniated disc in plaintiff's lower back, but rather showed that the discs at L5-S1 and L4-5 had subtle changes from normal, particularly in terms of height and color. However, he also testified that a discogram, which involved injecting contrast medium into plaintiff's spinal discs, showed tears in the discs at L4-5 and L5-S1, as well as eliciting pain in those locations.
According to Dr. Lowe, the damage to the discs, as shown on the MRI and the discogram, was caused by the 2002 accident. By contrast, an MRI taken about a year prior to the accident was "unremarkable." He also testified that plaintiff's symptoms (e.g., back pain and radiating leg pain) and her need for a laminectomy and fusion of her lower spine, which he performed, were due to the accident. He testified that the surgery was successful in returning plaintiff to "her pre-accident baseline." However, he also testified that the surgery itself, in fusing the lower spine, would permanently change its mechanics and increase the risk of future back problems. Dr. Lowe testified that he disagreed with the defense expert, Dr. Goldstein, who opined that plaintiff's surgery was for a condition that pre-existed the accident.
When asked if plaintiff had a pre-existing problem with her lower back, Dr. Lowe responded that there was "no MRI showing a problem, there is no EMG showing a problem, there is no discogram, CAT scan, myelogram, or xray." However, he admitted that even after the surgery, plaintiff still had subjective complaints of pain, which was "one of the classic symptoms of fibromyalgia." He also admitted that plaintiff's medical records from 2001 showed some low back problems, characterized as "lumbar strain" with no diagnosis of any problems with plaintiff's discs. Dr. Lowe did not testify that plaintiff's injuries from the accident aggravated any pre-existing condition. Rather, he testified that plaintiff suffered a new injury in the accident - the damage to her lumbar discs - as distinguished from her pre-existing and unrelated condition of fibromyalgia.
Plaintiff also presented testimony from Dr. Gregory Maslow, an orthopedic surgeon. He first examined plaintiff in June 2003. She complained of low back pain, and pain and numbness in her left leg. He testified to an EMG nerve conduction study done in April 2003, showing radiculopathy at the S1 nerve, which corresponded to plaintiff's radiating leg pain. He concluded that this condition was caused by the 2002 accident. Because plaintiff's symptoms continued to worsen, he ordered an MRI in 2003, which "did not show a disc rupture." He then ordered a discography in December 2003. This test showed abnormalities in the L4-5 and L5-S1 discs, including tears in the annulus or outer coating of those two discs, although there was no actual "rupture." According to Dr. Maslow, the annular tears and the radiculopathy were caused by the 2002 accident and were not pre-existing conditions. Plaintiff's eventual surgery was necessitated by the injuries suffered in the accident.
Significantly, when plaintiff's counsel asked specifically whether it was "possible" that plaintiff might have had "things wrong in her back that were not causing her pain that became painful after the car accident," Dr. Maslow responded "that's possible." However, when plaintiff's counsel asked if it was "probable," Dr. Maslow replied "I have stated that in my opinion, within reasonable medical probability, the abnormalities, which include the annular fissures, and the lumbar radiculopathy occurred as a result of this accident."
Defendant presented Dr. Gary Goldstein, an orthopedic surgeon, who performed an independent medical examination (IME) of plaintiff. According to Dr. Goldstein, when he examined plaintiff she told him that before the accident, her fibromyalgia was causing "pain in every joint of her body" including her low back. He testified that fibromyalgia was "an unusual condition and its manifestation is pain." It was ...