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Drinkard v. Hernandez


August 6, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-320-06.

Per curiam.


Argued: June 9, 2009

Before Judges Axelrad and Winkelstein.

Defendant George Hernandez appeals from a judgment entered on May 19, 2008, after a jury rendered a verdict in favor of plaintiff awarding her $254,000 in non-economic damages, plus pre-judgment interest, costs, and attorney's fees. Defendant challenges the in limine ruling barring his medical expert from testifying because of his failure to read the MRI. We reverse and remand for a new trial.

This case arises out of a motor vehicle accident occurring on January 24, 2005, in which plaintiff, Vera Drinkard, was a passenger in the vehicle operated by defendant. Defendant made a left hand turn in front of oncoming traffic, resulting in impact to the passenger door where plaintiff was sitting. Plaintiff was initially treated for neck and back pain and later experienced pain radiating down her right leg. Plaintiff filed suit on January l3, 2006. Thereafter, defendant admitted liability; at issue was the nature and extent of injuries sustained by plaintiff as a result of the accident.

An MRI was performed of plaintiff's lumbar spine on February 25, 2005, with the radiologist concluding "spondylitic mild canal stenosis at L4-5," and further evidence of internal fixation devices, plates and screws that had been placed in plaintiff's lower back during prior surgery.*fn3 She had an MRI of her right hip and cervical spine on May 2, 2005. The hip was interpreted as normal. According to the doctors who testified, the cervical spine report provided that "[t]here is a very small, right paracentral disc herniation at the C5-6 level with reversal of the cervical lordosis; [r]ight spondylitic change narrows the right neural foramen at C4-5."

Plaintiff treated with Dr. Robert Labaczewski, a general practitioner who performed physical therapy; Dr. Jeffrey Polcer, an anesthesiologist and pain management specialist who injected spinal nerve blocks and surgically implanted a temporary spinal cord stimulator;*fn4 and Dr. Joan O'Shea, a neurosurgeon. Videotaped de bene esse depositions were taken of Drs. Polcer and Labaczewski on November 7, 2007 and January 10, 2008, respectively. Both physicians testified they reviewed the MRI films.

Dr. Polcer's testimony was consistent with the cervical MRI report, opining "the MRI showed a disc herniation at C5-6" and "there is a bulging out[,] putting a little bit of pressure toward the . . . central spine canal. . . . it's not impinging and it's not directly compressing the spinal cord, so I categorize this as a small to possibly moderate size, but it is abnormal." Dr. Polcer further stated the "right spondylitic change" was "more an arthritic degenerative condition." He testified it was his opinion plaintiff suffered a herniated disc in her cervical spine as a result of the accident, although he did not render an opinion in any report to that effect. Dr. Polcer further opined that any arthritis in plaintiff's neck was at the C4-5 level, not at the level of herniation.

As to the lumbar MRI, Dr. Polcer corroborated the radiologist's findings of spondylosis and mild stenosis (narrowing) of the spinal canal and opined the condition pre-existed the accident. He made a determination of lumbar radiculopathy related to the accident based on plaintiff's complaint of back pain with radiation down her right leg and upon a straight leg raising test, not with reference to any type of a nerve impingement reflected on the MRI. Relative to the MRI findings and his diagnosis of radicular pain, Dr. Polcer noted that "[w]hat we don't have is any kind of objective evidence as to whether or not there is inflammation, which there had to have been, and how much inflammation existed as a result of the injury. There is no way to quantify that."

Dr. Labaczewski's testimony based on his review of the MRI films was also consistent with the reports that plaintiff had herniation in two levels of her cervical spine in the neck area as a result of the accident and narrowing of her spine at L4-5 due to the arthritis she had in her lower back. He acknowledged that an MRI is merely a test that says what the condition is and is not determinative of causation.

The defense conducted the de bene esse deposition of Dr. Robert Bachman, an orthopedic surgeon, on January 8, 2008. Dr. Bachman testified that in addition to talking with plaintiff and obtaining her medical history and complaints and physically examining her on December 5, 2006, he reviewed medical records consisting of office notes or letters generated by the doctors who examined her, specifically including the emergency room records and treating doctors' reports; and reviewed diagnostic studies, such as the MRIs, EMG/NCS (nerve construction study) and electrodiagnostic test. Dr. Bachman stated these were the type of medical records he would normally review in rendering treatment, care or diagnoses of his own patients. He acknowledged he did not personally read the MRI films but stated he was unaware of a standard set by either the American Board or American Academy of Orthopedic Surgery "that mandates a personal reading of MRI films in order to render opinions or treat individuals." Over plaintiff's counsel's objection, Dr. Bachman quoted from the radiologist's reports of the MRIs and explained the definitions of "spondylitic," "stenosis" and "neuroforamen" in terms similar to that used by plaintiff's experts.

Based on forty years of experience, the history taken from plaintiff, the medical records he reviewed and the physical examination he conducted, Dr. Bachman opined that plaintiff sustained a strain of the neck and lower back as a result of the accident. When asked whether he made a determination as to whether plaintiff sustained a herniated disc to her neck, Dr. Bachman did not dispute what was reflected in the MRI -- a small disc herniation -- but said he "didn't find a clinical representation of such when [he] examined her." He testified there is a difference between a "clinical" and an MRI finding, commenting that "one never makes a diagnosis on the basis of an MRI" and explaining it has been "well-documented in the literature" over at least the past decade "that there are people walking around every day who have an MRI picture of a dis[c] herniation, yet have no complaints, no history of any injury, and so the only way you can decide on whether it's a dis[c] as a result of an injury or a clinical dis[c] herniation is to do a physical examination to see whether there is . . . any abnormality which the dis[c] is causing." He did not find any. Nor was Dr. Bachman of the professional opinion that plaintiff's "reversal lordosis" (straight spine) was the "probable" result of a muscle spasm.

With regard to plaintiff's complaint of pain down her right leg, Dr. Bachman commented that the MRI of the lumbar spine did not indicate there was a pinched nerve. Dr. Bachman further testified that based on his examination of plaintiff, including the straight leg raising test, he did not find evidence of radiculopathy.

On January l6, 2008, plaintiff filed a motion to strike the testimony of Dr. Bachman, returnable on February l5, 2008. On February 7, defendant filed a response and cross-motion seeking to strike certain testimony of Dr. Polcer. Oral argument was requested but not granted. According to the court's memorandum decision, relying on Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), plaintiff argued the defense medical expert's "entire testimony or at least the passages with respect to his analysis of [plaintiff's] MRI films are inadmissible because the doctor's entire opinion is based on his interpretation of a written report" and he did not review the MRI films himself and, further, "[he] is not competent to provide an opinion of [plaintiff's] MRI films[.]" Plaintiff pointed out that, without ever looking at a film, Dr. Bachman concluded:

(1) [Plaintiff] has arthritis; (2) the MRI did not show a pinched nerve; (3) the absence of the lodortic curves was not from muscle[] spasm but from [plaintiff's] position during testing; (4) the MRI does [not] show nerve impingement and that a real disc herniation impinges on the nerve; and (5) the herniation was caused by degeneration.

Plaintiff contended the radiologist's report of an MRI was hearsay and must be subject to cross-examination. In opposition, defendant argued that plaintiff's reliance on Brun was misplaced as that case dealt with an issue concerning "different interpretations of what may have been contained in an MRI film and not controlling here since there is no dispute as to the interpretation of the MRI."

By orders of February l5, 2008, and accompanying memorandum decision, the court denied the cross motion and granted plaintiff's motion to strike the testimony of Dr. Bachman.*fn5 The court concluded:

Although Dr. Bachman's testimony may be relevant, its relevance is substantially outweighed by its potential to mislead the jury. Dr. Bachman's deposition testimony makes reference to MRIs that he never reviewed and the jury could place more credibility in the statements of a doctor than those of a lay witness. Further, Defendants' opposition disputes the case law provided by Plaintiffs but not the substance of the argument. Nowhere in Defendants' opposition is there any demonstration that the doctor's method of review and resulting opinion are an acceptable method of diagnosis in the medical community. Accordingly, Plaintiffs' motion is granted.

Dr. Bachman's deposition testimony is stricken.

Defendant then filed a motion to compel plaintiff's counsel to produce the three MRIs for purposes of a N.J.R.E. l04(a) hearing "to determine the entitlement of Dr. Bachman to be called as a live witness in this matter and render an opinion relative to causation of injuries alleged to be sustained by plaintiff in the subject automobile accident[.]" Defendant's position was that the purpose of the hearing would be to ascertain whether Dr. Bachman's testimony would be any different after he reviewed the MRI films and since he did not dispute the findings of the MRI films, it was anticipated his testimony would remain the same. The motion was denied by order of March l4, 2008. In the accompanying memorandum of decision, the court did not view the application as a "motion to permit a general hearing on the admissibility of evidence" but, rather, as a motion for reconsideration and found nothing warranted such application.

The matter proceeded to trial on March 24 and 25, 2008. Defendant orally renewed his request for the relief denied by the motion judge, which was denied by the trial court.

Plaintiff testified at trial about her ongoing pain and the medications she takes and Lidoderm patches she applies for pain and muscle spasms, her use of a cane, and the impact of the accident on her life. Her husband testified about the changes in plaintiff since the accident. The de bene esse deposition testimony of Drs. Polcer and Labaczewski was presented. The defense presented no witnesses. Following the $254,000 verdict for plaintiff, defendant made a motion for a new trial, which was denied. This appeal ensued.

On appeal, defendant contends the court erred in granting plaintiff's motion in limine to preclude Dr. Bachman from testifying at trial and denying defendant's motion for a Rule l04 hearing. Defendant argues the court improperly relied on Brun to strike his orthopedic surgeon's testimony based on the failure to review the MRI films. He emphasizes that the defense expert was qualified to read an MRI and all experts agreed on the radiologist's interpretation of the MRI despite Dr. Bachman drawing a different conclusion as to whether plaintiff's conditions and current complaints were causally related to the accident. Moreover, Dr. Bachman had rendered a clinical diagnosis and had formed an opinion based on his examination and review of medical records and reports typically reviewed by him as an orthopedic surgeon during over forty years of practice in connection with rendering treatment and care and diagnosing injuries, and thus was admissible under N.J.R.E. 703. Plaintiff further urges that even if the motion judge had some concerns about Dr. Bachman's testimony relative to the MRI films, considering there were numerous instances in which his opinion was based on an independent clinical assessment and review of other reports and tests, the court should not have perfunctorily barred his entire testimony but should have conducted a N.J.R.E. l04 hearing and stricken limited portions or at trial provided a limiting instruction to the jury.

Plaintiff emphasizes that in response to her motion, defendant never requested that Dr. Bachman be allowed to testify regarding his physical examination without regard to the MRI report. Plaintiff further argues that despite her counsel's objection at Dr. Bachman's deposition, there was never an effort by defendant to have Dr. Bachman offer an opinion that limited his testimony to just his physical examination or exclude the MRI report from his evaluation. According to plaintiff, we made clear in Brun that an MRI report is hearsay and, upon objection, such report cannot be "bootstrapped into evidence" through the testimony of the treating physician, a chiropractor, who was not qualified to interpret the films and did not read them. Brun, supra, 390 N.J. Super. at 421. She argues that all the experts do not entirely agree with the radiologist's interpretation and report. She notes, for example, Dr. Bachman's opinion that the herniation in plaintiff's neck was from a degenerative process and there was no indication it was pinching on a nerve because it was reflected on the MRI as a "small disc herniation" and Dr. Polcer's opinion that there were no degenerative changes present on the MRI film in the area of the disc herniation and any arthritis at plaintiff's neck was at the C4-5 level, not at the level of the herniation. Thus plaintiff urges the motion judge correctly applied the holding of Brun by barring Dr. Bachman's "efforts to bootstrap his subjective interpretation of the MRI report[s] into evidence" and striking Dr. Bachman's testimony in its entirety, as the hearsay was an integral part of his opinions.

We are satisfied under the circumstances of this case the trial court clearly abused its discretion in excluding the defense expert opinion in its entirety. See Carey v. Lovett, 132 N.J. 44, 64-65 (1993). This is not a situation whereby a party, over objection, is seeking to substantively admit a contested MRI report prepared by a non-testifying radiologist solely through testimony of a treating physician not qualified to read the films or one who, though capable, did not do so as a way to present to the jury the report "free from attack." See Brun, supra; see also Agha v. Feiner, 198 N.J. 50, 59 (2009).

In Brun, supra, 390 N.J. Super. at 412, the plaintiff claimed injury to her back following a rear-end accident. She had cervical and lumbar MRIs, about which a radiologist reviewed and prepared a report, noting a disc bulge and herniation. Ibid. At trial, the defense moved to bar the plaintiff's treating physician, a chiropractor, from testifying about the MRI findings after it became evident that the plaintiff's neurologist would not testify. Id. at 414-15. The court ruled that a radiologist who was qualified to interpret the MRI films would first have to be called as a witness to testify. Id. at 415. We agreed that the non-testifying expert's opinion, i.e., the MRI report, was inadmissible hearsay under the business exceptions rule because admitting the report without calling the author as a witness would deprive the defendants of their ability to cross-examine him on the central issue of the case, namely whether there was a herniation. Id. at 422. Nor was it substantively admissible under N.J.R.E. 703, noting that "on objection, interpretation of an MRI may be made only by a physician qualified to read such films, and that the MRI report could not be bootstrapped into evidence through [the treating physician's] testimony." Id. at 421; see also Agha, supra, 198 N.J. at 65.

In Agha, similar to Brun, the only objective evidence of permanency*fn6 was the MRI report of disc herniation, which the defense neuroradiologist disputed. Agha, supra, 198 N.J. at 53, 58. Over the defendants' objections, the plaintiff's treating physicians, a chiropractor who was not qualified to interpret an MRI and an anesthesiologist who, although capable, did not review the films, were permitted to testify, based on the MRI report, that the plaintiff suffered a disc herniation. Id. at 53. The defense's requests for a limiting instruction*fn7 were denied, N.J.R.E. l05, as was their motion to dismiss for the plaintiff's failure to satisfy the permanency threshold, and the jury returned a verdict in the plaintiff's favor. Id. at 53-54.

We reversed, reasoning that the plaintiff had "'bootstrapped' the contested MRI report findings into evidence through the testimony of the treating physicians in violation of established law." Id. at 54. We noted that production of a qualified witness regarding the MRI was particularly important because the defense was subjected to a thorough cross-examination regarding his conclusions while the plaintiff was able to present the MRI report to the jury "free from attack." Id. at 59. We reversed and remanded with instructions to enter judgment in the defendant's favor on the basis the plaintiff failed to sustain his burden of proving permanency. Id. at 58.

The Supreme Court affirmed our evidentiary ruling but determined that a new trial was warranted, rather than dismissal, because the trial judge's rulings led the plaintiff to believe it did not have to call the author of the MRI as a witness. Id. at 54. The Court reiterated the general requirements applicable to admissibility of expert testimony. N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Noting that N.J.R.E. 703 was intended to "'allow more latitude in the admission of expert opinion testimony[,]'" id. at 62 (citations omitted), the Court also concluded that its "fair interpretation is that it was not intended as a conduit through which the jury may be provided the results of contested out-of- court expert reports." Id. at 63. In other words, under N.J.R.E. 703, an expert may give the reasons for his or her opinion and the sources relied upon, but that testimony does not establish the substance of the absent physician's report. Id. at 64. The Court concluded that on objection, the testifying physicians who either could not or did not interpret the MRI films could not bring the herniation conclusion to the jury contained in the MRI report as a matter of substance where the defendants had challenged the correctness of the MRI report through their own experts, who were subject to rigorous cross-examination. Id. at 66-67.

The circumstances here are completely different. The defense was not seeking to establish the substance of an MRI report of a non-testifying doctor through Dr. Bachman. Rather, the radiologist's findings would have been presented to the jury through the testimony of plaintiff's medical experts who reviewed the MRI films and reached similar conclusions, as clearly reflected in the de bene esse testimony of Drs. Polcer and Labaczewski. Moreover, unlike in Brun and Agha, the defense doctor did not dispute the actual findings of the MRI as testified to by plaintiff's doctors; rather, he drew different conclusions as to how the condition presented itself and causation than did plaintiff's experts based on his experience, clinical examination and review of medical records and other tests typically relied on by experts in his field. For example, Dr. Bachman did not dispute that the MRI showed a small disc herniation in plaintiff's cervical spine but he "didn't find a clinical representation of such when [he] examined her."

Moreover, this is not a situation where plaintiffs' medical experts were thoroughly cross-examined regarding their conclusions pertaining to the MRIs and the defense presented evidence to the jury "free from attack." See id. at 59. Dr. Bachman was subject to rigorous cross-examination as to the fact he did not read the films himself, and as to his conclusions and the basis for his opinions of lack of serious injury caused by the accident. Moreover, in comparing the expert testimony, in both opening and closing statements plaintiff's counsel could emphasize the fact Drs. Polcer and Labaczewski reviewed the MRIs and the defense doctor did not. We find no basis for the motion judge's conclusion that Dr. Bachman's testimony was "substantially outweighed by its potential to mislead the jury" or that in a case involving competing medical experts, "the jury could place more credibility in the statements of a doctor than those of a lay witness."

Because an expert is entitled to rely on prior trial testimony under N.J.R.E. 703, and because Drs. Polcer and Labaczewski's de bene esse deposition testimony would have been read to the jury before that of Dr. Bachman, and the defense doctor accepted plaintiffs' experts' opinion as to what the MRI films showed, albeit his inferences and conclusions differed in some respects, Dr. Bachman's testimony would have been admissible at trial. Moreover, the defense opinions were not limited to conclusions drawn from the MRI but were also based on forty years of experience as a board-certified orthopedic surgeon; plaintiff's history, medical records (including the emergency room reports and those of plaintiff's treating doctors) and other tests; and Dr. Bachman's clinical examination of plaintiff. Again, contrary to the motion judge's conclusion, these are plainly acceptable methods of diagnosis in the medical community under N.J.R.E. 703.

In addition, Dr. Bachman's testimony contained the sufficient "why" and "wherefore" to support his position and withstand a net opinion challenge. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). In fact, none of the experts relied solely on the MRI for their diagnoses and conclusions. For example, Dr. Polcer diagnosed radiculopathy based on the straight leg raising test, not with reference to any type of a nerve impingement reflected on the MRI, and Dr. Bachman concluded to the contrary based on his clinical assessment of the same test. Furthermore, Dr. Labaczewski acknowledged that an MRI is merely a test that states what the condition is and is not determinative of causation.

Accordingly, we are satisfied Dr. Bachman's testimony should not have been stricken in limine and there was substantial undue prejudice to the defense in having to proceed to trial without a medical expert. The defense should have been permitted to present Dr. Bachman's testimony by way of de bene esse deposition to the jury. Plaintiff would have had the opportunity to discredit the foundation of Dr. Bachman's opinions by raising the points asserted in her moving papers and appellate brief. The jury would then have been charged that it was not required to accept the opinion of any expert and that the weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated. Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48-49 (App. Div. l990), modified, 125 N.J. 421 (1991).

Reversed and remanded for a new trial.

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