On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-122-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Baxter.
This is a verbal threshold case. The matter proceeded to trial on the issues of liability, permanency, proximate cause and damages. Defendant James R. Huckleberry appeals from the jury verdict in favor of plaintiff Joanne Jimenez Saduk*fn1 and the denial of his motion for a new trial or, in the alternative, remittitur. On appeal, defendant argues plaintiff's trial evidence that included results of a thermogram, which showed she suffered mediated pain syndrome, did not evince a permanent injury, as required by N.J.S.A. 39:6A-8(a)(6). Following our review of the arguments advanced on appeal, the record and the applicable law, we affirm.
The following evidence was presented at trial. On April 20, 2004, at approximately 4:23 p.m., plaintiff, then age 31, was traveling South on State Highway 47, or Delsea Drive, in Millville. She was approaching South Street and slowing her vehicle to make a left turn when defendant's vehicle struck her from behind. The collision pushed plaintiff's vehicle onto the shoulder. As a result of the impact, the passenger seat occupied by plaintiff's mother was dislodged. Plaintiff recalled defendant was "just really apologetic. He just kept saying he was sorry and he also asked us if we were okay."
Defendant testified that right before the collision, he was rounding a curve in the road and something drew his attention off to the left. When he refocused on the road ahead, plaintiff's vehicle was directly in front of him. Defendant stated, "I could [not] stop and I hit her square in the back of her vehicle." Defendant described the force of impact as "heavy" and recalled he was "dazed" when the accident occurred. His airbag deployed upon impact, after which he could not see anything. Defendant stated he was aware his "foot had been on the brake" because his vehicle did not "careen wildly off anywhere."
Plaintiff and her mother were taken by ambulance to the emergency room of Newcomb Hospital. Plaintiff complained of neck, lower back and knee pain. She underwent x-rays and was released with pain medication and given instructions to follow up with her family doctor, as necessary. Plaintiff saw her family doctor, Emanuel Petrolokis, M.D., who changed plaintiff's medication and instructed her to take two weeks off from work and rest. Dr. Petrolokis referred plaintiff to James Beebe, D.C.
Dr. Beebe examined plaintiff on July 21, 2004. She continued to complain of "pain primarily in the low back, as well as the neck, and mostly on the right side, radiating pain going down the right leg as well as predominately pain from the neck on the right side[.]" His examination revealed muscle spasms and "a reduction of her ranges of motion, both in the cervical and in the lumbar spine[.]" Both the cervical and lumbar spine functioned at approximately eighty percent of the normal range. Dr. Beebe ordered additional x-rays and mapped out a treatment plan for plaintiff, which consisted of chiropractic spinal adjustments, electric muscle stimulation, and traction three times per week for twelve weeks.
Dr. Beebe referred plaintiff for an orthopedic consultation. Plaintiff underwent Magnetic Resonance Imaging (MRI), which showed no neuro-compression and was otherwise negative. Dr. Beebe's final clinical evaluation of plaintiff on December 20, 2004, revealed improvement in plaintiff's cervical and lumbar ranges of motion showing plaintiff's lumbar spine was functioning at ninety percent and her cervical spine at eighty-five percent. He opined plaintiff suffered a "permanent injury from the traumatic accident that she had back in April[.]"
Plaintiff was referred to Philip Getson, D.O., for an examination on December 8, 2004. She complained of "neck pain, shoulder pain, weakness in the right arm, mid[-]back pain, low back pain, which to her was her major problem. . . . She had pain in the leg and hand, weakness in the right lower extremity, right leg, headaches, [and] sleep interruption." Dr. Getson observed spasms and limitations in the range of motion in plaintiff's neck, right shoulder, thoracic and lumbar spine. Plaintiff showed no orthopedic symptoms, however, "there were a number of abnormalities suggestive of nerve-related problems."
Dr. Getson initially believed plaintiff suffered from reflex sympathetic dystrophy (RSD). He revised that diagnosis to a brachial plexus*fn2 injury, which evolved into sympathetically mediated pain syndrome, a malfunction of the sensory nervous system and a form of RSD, resulting from the injury plaintiff sustained in the automobile collision.
He ordered a second MRI and an electromyogram (EMG) to measure muscle function, as well as a nerve study. All were negative and, he, therefore, ruled out motor nerve injury as the source of plaintiff's pain. Dr. Getson referred plaintiff to David Lopresti, D.O., an interventional pain management specialist, who performed two series of epidural and facet injections. Plaintiff had a positive response to the treatments but did not complete the injection series due to her pregnancy. Dr. Getson also prescribed physical therapy, Topamax, a drug used to relieve nerve pain, and ordered a thermogram. The thermogram confirmed Dr. Getson's diagnosis.
Plaintiff did not return to Dr. Getson until February 2007, at which point he observed her lower back pain remained problematic, but "her neck pain was pretty much gone. And that was not surprising to me at all because for some reason . . . pregnancy improves sympathetic dysfunction." Before suggesting further injection treatments, Dr. Getson ordered a follow-up MRI, which was unremarkable. Dr. Getson noted a normal MRI did not preclude ...