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He v. Miller

March 27, 2009


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2270-05.

Per curiam.


Argued December 1, 2008

Before Judges Lisa and Sapp-Peterson.

Plaintiffs Ming Yu He and Jinfang He appeal from the trial court order remitting plaintiffs' jury verdict for pain and suffering from $1,000,000 to $200,000 and the per quod award of $100,000 to $20,000. We reverse.

The jury's award arises out of a motor vehicle accident that occurred on October 28, 2003. The evidence presented to the jury, if credited, disclosed that plaintiff*fn2 was struck head-on. The impact drove her vehicle into a wooded area off the roadway where it struck a tree. Plaintiff was knocked unconscious as a result of the impact. Plaintiff was transported via ambulance to a nearby hospital where x-rays were taken. No fractures were found and she was discharged that same day. The next day, she consulted with Dr. Joseph D. Salamone, a chiropractor, who administered stretching-type treatments which plaintiff found painful. After three visits, she concluded that chiropractic treatments would not help and ceased her treatment with Dr. Salamone.

Several days later, on November 6, 2003, plaintiff consulted Dr. Robert Kramberg, who later served as plaintiff's expert medical witness in the area of physical medicine and rehabilitation. Dr. Kramberg's initial examination of plaintiff revealed that she had limited range of motion of the cervical spine and lower back, flattening of the lumbar spine, back spasms, bruising and injury to her left knee, and slightly abnormal nerve sensation on one side. Dr. Kramberg wrote plaintiff several prescriptions for anti-inflammatory medication, muscle relaxants, and painkillers. He also started her on a physical therapy program which included heat and ice treatments, electrical stimulation, ultrasound treatments, and various stretching exercises.

On December 1, 2003, during plaintiff's second visit, Dr. Kramberg noted that plaintiff still complained of neck and lower back pain, as well as left knee pain. He ordered Magnetic Resonance Imaging (MRI) testing of plaintiff's cervical and lumber spine,*fn3 which was performed on December 22, 2003. The MRI revealed that plaintiff had four herniated or ruptured discs*fn4

which had come out of proper alignment. Later, Dr. Kramberg performed an electromyography (EMG) test, which involved attaching plaintiff to a computer and introducing "electrical stimulation at various levels of the nerves going down her arm" to "calculate how long does it take for that shock to go down the arm." During the second part of that test, Dr. Kramberg performed an electromyogram, which involved inserting needles into "various muscles" of her legs, arms, neck, and lower back to detect damage to those muscles. The EMG confirmed that the herniated discs were causing compression of the nerves, affecting plaintiff's arms, legs, and back, and that she "clearly was suffering from radiculitis or radiculopathy from the herniated discs both in the cervical and the lumbosacral spine." Dr. Kramberg testified that such a condition would produce symptoms like "[p]ain, numbness, weakness, tingling, [and] limitation of motion." He further testified that the results of the EMG correlated with the MRI and plaintiff's complaints of pain to make it "pretty much a textbook case."

When the physical therapy failed to work, Dr. Kramberg referred plaintiff to Dr. Jay Lee, who performed over thirty or forty acupuncture treatments on her hands, neck, waist, and back, but those treatments provided only temporary relief. Dr. Lee performed two epidural procedures in which he anesthetized plaintiff and injected her with cortisone directly into her cervical spine. Plaintiff experienced a bad reaction to the cervical epidurals and did not see any significant improvement. Later, Dr. Kramberg performed three additional epidural injections of cortisone into plaintiff's lumbar spine. Because plaintiff's leg became swollen, she ceased the treatment.

In April 2007, Dr. Kramberg referred plaintiff to a neurosurgeon, Dr. Frank Gamache, Jr. On April 17, plaintiff underwent another set of MRIs of her lumbar and cervical spine, the results of which were consistent with the findings from the first series of MRIs, revealing herniated discs that compressed the spinal cord and impinged on her nerve root. Dr. Gamache, however, did not recommend surgery. Dr. Kramberg testified that whether or not a spinal patient is referred to surgery depends on the particular patient and particular injury, and based upon his experience, Doctor Gamache recommended surgery for only two or three out of every ten patients referred to him. Dr. Kramberg opined that "not all patients do well with surgery.

And once you have a failed surgery, there's nothing else you can do for that patient. They wind up on lifetime narcotic pain medication."

Additionally, Dr. Kramberg concluded that after five years of unavailing treatment, plaintiff's pain was "chronic [and] permanent." He testified that she continued to have limited range of motion, and he believed she was medically incapable of performing her job as a housekeeper at a hotel. He continued to prescribe pain medication (Vicodin) to plaintiff and she last saw him in January 2008. In Dr. Kramberg's opinion, based upon the MRI and EMG results, the physical examination, plaintiff's complaints, and the fact that plaintiff had been completely asymptomatic prior to the accident, her injuries were causally related to the October 28, 2003 accident.

Dr. Kramberg acknowledged that plaintiff's diagnostic testing revealed "a little bit of arthritic degeneration on the vertebrae, but [was] pretty much consistent with her age, being in her 40's." He characterized the arthritic condition as part of the "normal aging process." On cross-examination, defense counsel questioned Dr. Kramberg concerning whether plaintiff's continued pain could be the result of normal disc degeneration or whether it must have been from the accident:

Q: Is there a way of telling if the herniations were a result of the degeneration?

A: No.

Q: Okay. So other than the fact that she was involved in an accident, this condition could ...

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