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Agha v. Feiner

February 26, 2009

MAHMOUD AGHA, PLAINTIFF-APPELLANT,
v.
VALERIE M. FEINER AND BARBARA A. DELILLO, DEFENDANTS-RESPONDENTS, AND LAURA SABAGH, JAMIL SABAGH, "JANE DOE", "ABC COMPANY", "MARY BO" AND "XYZ COMPANY" (ALL BEING FICTITIOUS DESIGNATIONS), DEFENDANTS.



On certification to the Superior Court, Appellate Division.

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

At issue in this Automobile Insurance Cost Reduction Act (AICRA) case is the substantive admissibility of an MRI report prepared by a non-testifying radiologist and relied on by plaintiff's testifying physicians.

Plaintiff, Mahmoud Agha, was injured when the stopped car in which he was a passenger was struck by a vehicle owned by defendant Barbara A. Delillo and driven by defendant Valerie M. Feiner (defendants). Agha instituted this negligence action. Defendants conceded responsibility for the accident, but contended that the accident did not cause Agha's injuries and that, in any event, those injuries did not satisfy the AICRA threshold because they were not permanent.

A trial ensured. In support of his claim that he suffered a permanent injury to his back, Agha testified to the pain, suffering, and limitations imposed on his daily life as a result of the accident. He also produced Dr. Ragukonis, an anesthesiologist specializing in pain management, and Dr. Awari, a chiropractor, as witnesses. Agha's pre-trial witness list further indicated that Dr. Default, the author of an MRI report, would testify.

When Agha's counsel asked Dr. Ragukonis for the results of the MRI, defense counsel objected and requested a limiting instruction regarding the substance of the report because Dr. Ragukonis admitted that he didn't review the MRI. The trial court denied the request, and Dr. Ragukonis testified that the MRI, as read by Dr. Default, revealed that Agha had a herniated disc. Dr. Ragukonis also concluded that Agha's herniated disc was "causally related to the accident" and was a permanent injury.

Dr. Awari testified that Dr. Default's report established herniation and that such herniation is a permanent injury. On cross-examination, Dr. Awari acknowledged that he cannot read MRI films. Defense counsel objected and sought an instruction regarding the limited use to which an out-of-court expert report may be used by the jury. Defense counsel argued that the MRI report could not be used as substantive evidence to prove that Agha suffered a herniated disc - one of the key issues in the case. At this point, Agha's counsel offered to resolve the problem by calling Dr. Default, who was available to testify. That, however, proved unnecessary, because the trial judge again declined to give a limiting instruction. Without that instruction, the jury was left with testimony regarding the substantive results of the MRI.

At the conclusion of Agha's case, defense counsel reiterated his concerns regarding the MRI testimony and moved to dismiss. Counsel argued that the only evidence Agha provided of his alleged disc herniation was the MRI report, which was admissible only to support the opinions of the testifying doctors and not as independent proof of a critical fact in dispute - a disc herniation. Counsel further argued that absent objective proof of a herniated disc, there was no medical evidence of a permanent injury. The trial judge denied defendants' motion. After deliberations, the jury awarded Agha $80,000.

Defendants appealed and the Appellate Division reversed and remanded with instructions that judgment be entered in defendants' favor because plaintiff failed to provide any objective medical evidence of a permanent injury. The Appellate Division ruled that an MRI report may not be admitted under N.J.R.E. 703 without the testimony of a qualified physician. After discussing Brun v. Cardoso, 390 N.J. Super. 409 (2006), in which the Appellate Division had noted that, "on objection, interpretation of an MRI may be made only by a physician qualified to read such films," the panel held that the facts here "presented a classic case of bootstrapping [the] otherwise inadmissible MRI report into evidence" through the testimony of Drs. Ragukonis and Awari, who either could not or did not read the MRI films.

The Supreme Court granted Agha's petition for certification, limited solely to the issue of the appropriate disposition of defendant's motion for an involuntary dismissal. 195 N.J. 520 (2008).

HELD: The testimony of a physician qualified to interpret an MRI was required to establish that the MRI represented proof of a herniated disc, and, absent such testimony, the trial court was required to give a limiting instruction regarding the jury's use of the MRI. Because the trial court's rulings had the effect of lulling Agha into believing that the production of the radiologist who prepared the report was unnecessary, a new trial is required.

1. The "limitation on lawsuit" or "verbal threshold" of AICRA, N.J.S.A. 39:6A-8(a), is a cost-containment measure that provides lower premium payments in exchange for a limitation on the insured's right to sue for noneconomic damages. The Act restricts suits for such damages unless the victim sustains bodily injury that results in, among other things, death, dismemberment or a permanent injury. In order to vault the threshold, a physician must certify that the victim suffered a statutorily enumerated injury based on "objective clinical evidence." Here, the sole objective clinical evidence that Agha was permanently injured was Dr. Default's MRI report of disc herniation. If Dr. Default's report was not properly before the jury, than Agha did not vault the AICRA threshold. (pp. 12-15)

2. Under N.J.R.E. 703, a testifying expert is generally permitted to detail for the jury all of the materials, including films, test results and other experts' reports on which the expert relied in deriving his opinion, so long as they are of a type reasonably relied on by experts in the field. The fundamental question here centers on what the jury is empowered to do with that underlying data. Although the rule permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as a vehicle for the wholesale introduction of otherwise inadmissible evidence. That is why the court rules provide that where an expert references the report of a non-testifying expert, it is incumbent on the trial judge, upon request, to instruct the jury regarding its limited use.

N.J.R.E. 105. In short, under N.J.R.E. 703, an expert may give the reasons for his opinion and the sources on which he relies, but that testimony does not establish the substance of the report of a non-testifying physician. (pp. 15-19)

3. Agha argues that, because Brun was an unanticipated break with prior precedent, it should not have been considered in connection with a trial that preceded it. However, Agha could cite no reported case in which an outof-court diagnosis was admitted substantively over the objection of the adversary. The reason for that failure is self-evident: there is nothing in our prior jurisprudence or in prior practice to suggest that the merits of an out-of-court report are admissible under such circumstances. The reasons against the broad admissibility of an out-of-court diagnosis are many: it would violate the hearsay rules, allow an expert to testify beyond his qualifications, and, most importantly, defeat the cross-examination that is the bedrock of our adversary system. Here, Dr. Awari was unable to interpret the MRI and Dr. Ragukonis, although capable, did not do so. Accordingly, as the Appellate Division properly held, defendants were denied a fair trial when Drs. Ragukonis and Awari were permitted to testify to the herniation without the limiting instruction that defendants requested, and when the motion to dismiss for failure to produce objective evidence of permanency was denied. (pp. 19-24)

4. Although ordinarily the appellate panel would have been correct in dismissing an AICRA case in which the permanency threshold as not satisfied, what took place in this case requires a different disposition. Here, Dr. Default was on Agha's pre-trial witness list and was available to testify. The trial courts rulings, however, led Agha's counsel reasonably to conclude that Dr. Default was not a necessary witness. Under these circumstances, fairness dictates that the dismissal is too harsh a remedy and that the matter should be tried anew. (pp. 24-25)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED for a trial.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Justice Long

Argued December 2, 2008

At issue in this Automobile Insurance Cost Reduction Act (AICRA) case is the substantive admissibility of an MRI*fn1 report prepared by a non-testifying radiologist and relied on by plaintiff's testifying physicians. One of the testifying physicians, a chiropractor, acknowledged that he was not qualified to interpret an MRI, and the other, an anesthesiologist, although capable, did not, in fact, review the MRI films. Over defendants' objections, both witnesses were permitted, based on the MRI report, to testify that plaintiff suffered a disc herniation, which was the only objective evidence of permanency. Defendants' requests for a limiting instruction under N.J.R.E. 105 were denied, as was their motion to dismiss, based on plaintiff's failure to satisfy the permanency threshold of AICRA. A verdict in favor of plaintiff ultimately issued.

Defendants appealed and the Appellate Division reversed, reasoning that plaintiff had "bootstrapped" the contested MRI report findings into evidence through the testimony of the treating physicians in violation of established law.

We agree with the Appellate Division that, over a defense objection, the testifying physicians could not establish the substance of the contested MRI and that only an expert qualified to interpret an MRI could do so. We part company from the panel, however, in connection with its dismissal of the action. Ordinarily a dismissal would be required in an AICRA case where, as here, no objective evidence of permanency was adduced. However, because the trial judge's rulings had the effect of lulling plaintiff into believing that the production of the radiologist who prepared the report was unnecessary, a new trial is required.

I.

Plaintiff, Mahmoud Agha, was injured on September 1, 2003, when the stopped car in which he was a passenger was struck by a vehicle owned by defendant Barbara A. Delillo and driven by defendant Valerie M. Feiner. The automobile in which plaintiff was traveling was driven by his wife, Laura Sabagh, and owned by Jamil Sabagh. Plaintiff instituted a negligence action against Feiner, Delillo, and the Sabaghs.*fn2 Feiner and Delillo (defendants) conceded responsibility for the accident but contended that the accident did not cause plaintiff's injuries and that, in any event, those injuries did not satisfy the AICRA threshold because they were not permanent.

Laura Sabagh also instituted a negligence action against Feiner and Delillo. Sabagh's claims were consolidated with plaintiff's for trial.

A trial ensued. In support of plaintiff's claims that he suffered a permanent injury to his back, he testified that he had never had a prior accident or back injury before the Feiner crash and further testified to the pain, suffering, and limitations imposed on his daily life as a result of the accident. He also produced Dr. Thomas Ragukonis, an anesthesiologist specializing in pain management, and Dr. Adam Awari, a chiropractor, as witnesses. Plaintiff's pre-trial witness list further indicated that Dr. Default, the author of an MRI report, would testify.

Dr. Ragukonis testified that as part of his initial examination of plaintiff, he reviewed: x-ray reports of the lumbar spine and chest; MRI reports of the cervical and lumbar spine; a neurological consultation report, which included an electromyography (EMG); and an evaluation summary from Dr. Awari. When plaintiff's counsel asked Dr. Ragukonis for the results of the MRI, defense counsel objected and requested a limiting instruction regarding the substance of the MRI report:

MR. POWERS: I want a limiting instruction, he didn't review the MRIs, he says so in his report therefore this --MR. [CAPOZZI]: I looked at ...


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