On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-0748-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Chambers.
In this motor vehicle accident case, defendant Linda M. Sullivan appeals from the Amended Final Judgment dated July 20, 2007, in favor of plaintiffs Antoinette P. Sheffer and James F. Sheffer entered after a jury trial, and from the order of June 22, 2007, denying her motion for judgment n.o.v., new trial, or remittitur. We reverse, since the evidence did not support the aggravation charge, and this mistake was capable of producing an unjust result.
This lawsuit arises out of a motor vehicle accident that took place on October 15, 2002, when the car plaintiff Antoinette P. Sheffer was driving was struck in the rear by a vehicle being driven by defendant. Defendant admitted liability, and the case was tried to a jury on the issue of damages. Since plaintiff's claim was governed by the verbal threshold*fn1, in order to recover damages, plaintiff was required to prove with credible objective medical evidence that she sustained a permanent injury in the accident.
At the commencement of the trial, plaintiff contended that she sustained two permanent injuries in the accident, a herniated disc in her thoracic spine between the sixth and seventh thoracic vertebrae (T6-T7) and a lump on her shin. At trial, she presented the testimony of two orthopedic surgeons, Barry S. Gleimer, D.O., and I. David Weisband, D.O.
Dr. Gleimer testified by videotaped de bene esse deposition. He stated that plaintiff had a herniated disc in her thoracic spine at T6-T7 that was pushing into the thecal sac surrounding her spinal cord. In reaching this opinion, he relied in part on the magentic resonance imaging (MRI) report and films taken of plaintiff's spine. The MRI report stated that plaintiff had a moderate central disc protrusion pressing against the thecal sac. Dr. Gleimer testified that a disc protrusion and a disc herniation were the same thing. In his opinion, the disc herniation was caused by the accident and was likely to degenerate over time. Possible future treatment included an epidural and, if that was unsuccessful, surgery. According to Dr. Gleimer, surgery would be difficult because, due to the location of the herniation, the surgery would have to be done from the front, not the back, and hence would entail opening the chest cavity.
While acknowledging that plaintiff had pre-existing arthritis, Dr. Gleimer opined that the disc herniation was caused by the accident and not the pre-existing arthritis. He reached this conclusion in part because plaintiff had no complaints about her back prior to the accident, and her complaints of pain were in the area where the herniated disc was located. Dr. Gleimer also testified that plaintiff sustained a hematoma to her left shin that did not completely heal and may require some future surgery.
Dr. Weisband, a partner of Dr. Gleimer, who had conducted a medical examination of plaintiff and reviewed her medical records, including the MRI report and the films themselves, concluded that she had a moderate size central disc herniation at T6-T7 that was pressing on the thecal sac. When it compressed on the spinal cord, she would experience back pain. He also stated that these were permanent injuries. He expressed the opinion that the herniated disc was likely to get worse and explained the treatment options, consisting of an epidural and surgery. He also found that plaintiff had a nodule on her shin called a chronic hematoma caused by the accident.
The defense disputed that plaintiff had a herniated disc and attributed any back problems she did have to her pre-existing degenerative back condition and not the accident. The defense's medical expert, Irving P. Ratner, M.D, an orthopedic surgeon, disputed the findings on the herniation by plaintiff's experts. He stated that a disc herniation and a disc protrusion were not the same thing in that they differ by degree - a protrusion is a small bump while a herniation is a larger piece of disc pushing through the wall. His review of the MRI films revealed only a protrusion; he did not find a disc herniation nor did he find any compression upon the spinal cord. While he found evidence of aging and degenerative changes in plaintiff's spine, he found no evidence of an acute disc herniation. In his opinion, plaintiff sustained no permanent injury from the motor vehicle accident. On cross-examination he acknowledged that the nodule on plaintiff's leg was permanent; he described it as the size of a lima bean. He also testified that he did not think that plaintiff was lying about her pain. He explained that degenerative disc disease is not the same as arthritis.
At the conclusion of the trial, relying in part on the testimony of the defense expert, plaintiff argued that the proofs also supported a claim for aggravation of her pre-existing asymptomatic arthritic condition. Over the objections of the defense, the trial judge gave the jury the aggravation charge.
The jury found that plaintiff had sustained a permanent injury proximately caused by the accident. It awarded her the sum of $175,000 for her injuries and awarded her husband James F. Sheffer $25,000 on his per quod claim. Defendant's motion for a ...