August 25, 2009
JOANNE JIMENEZ SADUK AND ANTHONY SADUK, H/W, PLAINTIFFS-RESPONDENTS,
JAMES HUCKLEBERRY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 4, 2009
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 the sympathetic abnormality, but ruled out a pinched nerve, disc herniation or other motor function abnormalities.
At trial, Dr. Getson's de bene esse deposition was played for the jury. He discussed the thermogram results, explaining a thermogram or infrared imaging was an objective test measuring the sensory portion of the nerves and sympathetic portion of the nervous system to diagnose sympathetically mediated pain syndrome. Dr. Getson showed some of the thermographic images taken on February 16, 2005, and interpreted the images explaining to the jury the various abnormalities between plaintiff's left versus her right side. The thermography results showed "abnormalities in the neck and the legs predominantly, and . . . in the hands; . . . in the neck and upper back they were significant in scope."
Following plaintiff's examinations and the two thermogram tests, Dr. Getson opined, "[b]ased upon the history [plaintiff] gave . . . and the absence of prior neuromuscular abnormalities, review of medical records, diagnostic tests [and] consultant reports, it [wa]s [his] opinion to a reasonable degree of medical probability that the accident of April 20, 2004, was the reason for [plaintiff's] sympathetic dysfunction," and the condition of sympathetic mediated pain syndrome would "continue to be so." Additionally, in his experience of treating sympathetically mediated pain syndromes, Dr. Getson noted "virtually every case of sympathetic dysfunction is the result of some kind of trauma." Although treatable, it remains "an incurable entity."
At trial, plaintiff testified she continued to experience daily pain in her lower back, which radiates down her right leg. The pain is exacerbated by long car rides, excessive walking or standing. Plaintiff stated she lost time from work as a corrections officer following the accident, and it was stipulated her lost wages amounted to $36,000.
Plaintiff's husband, Anthony Saduk, and her mother, Carol Jimenez, also testified. Mr. Saduk testified his wife is in constant pain in her neck, back and legs, and, as a result, her life has been dramatically altered. Carol Jimenez testified she witnessed her daughter's pain and has seen her cry a lot. She helps her daughter with activities such as grocery shopping, lifting and cleaning.
Defendant testified on his own behalf. The defense presented Gerald Packman, M.D., an orthopedist. Dr. Packman admitted he would not take issue with the accuracy of Dr. Getson's diagnoses. When asked his opinion on whether plaintiff's pain would dissipate, he stated, "the statistics are that pain that has lasted four years is not going to go away very quickly." Defendant provided no testimony to challenge Dr. Getson's review of plaintiff's thermogram.
At the close of plaintiff's case, the defense moved to dismiss the complaint. In support of the motion, defendant maintained the thermogram results were insufficient to establish plaintiff suffered a permanent injury. The trial judge denied counsel's motion, again affirming the question would be presented to the jury for determination.
Neither the color thermogram images nor Dr. Getson's thermogram report were offered into evidence. However, during summation, defense counsel attempted to show the jury an enlarged portion of Dr. Getson's thermogram report. Plaintiff objected, as Dr. Getson had testified regarding the conclusions he reached based upon the thermogram test results; he did not read from his report. The trial judge sustained plaintiff's objection and determined that while the hearsay enlargement could not be used, defendant could argue from facts already in evidence regarding the thermogram test, the results, or its value in diagnosing plaintiff's condition.
After deliberating for approximately three hours, the jury returned a verdict in favor of plaintiff for $486,000, which the court molded to $450,000, the court deducted $36,000 for plaintiff's lost wages because she had already received reimbursement. The court added $69,503.41 in prejudgment interest plus taxed costs and entered a Final Order of Judgment on October 17, 2008 for $519,703.41. Defendant filed a motion for a new trial, which was denied on November 21, 2008. This appeal ensued.
On appeal, defendant presents two issues for our consideration. First, he suggests a new trial is necessary because the verdict was against the weight of the evidence, arguing plaintiff's proofs were insufficient to support the necessary finding of permanent injury to satisfy the verbal threshold. Second, he maintains the trial court abused its discretion in preventing the utilization of a copy of the enlarged summary themography report during closing argument.
A trial court's decision on a motion for a new trial on the basis that the jury verdict is against the weight of the evidence will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; R. 4:49-1; Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). In correcting any clear error or mistake of the jury, the trial judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Thus, a trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)); Baxter, supra, 74 N.J. at 597-98.
Therefore, "'[t]he standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility.'" Caldwell, supra, 136 N.J. at 432 (quoting Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984)); Johnson, supra, 192 N.J. at 282. Beyond these "intangibles," an appellate court is to make its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Dolson, supra, 55 N.J. at 6-7. It is within this context that this court should consider defendant's argument.
At the time of the accident, plaintiff was covered by an automobile insurance policy wherein she elected the "limitation on lawsuit" or verbal threshold coverage. This coverage comports with the Legislature's declaration under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), that no damages claimed for injuries sustained in an automobile accident shall be awarded unless the injured person satisfies the verbal threshold. N.J.S.A. 39:6A-1.1 to -35. Only a person who suffers a "permanent injury" qualifies for an award of non-economic damages. N.J.S.A. 39:6A-8(a).
Under AICRA, the court must decide whether the medical evidence shows plaintiff's injury or injuries fall within at least one of the established threshold categories. Oswin v. Shaw, 129 N.J. 290, 294 (1992). N.J.S.A. 39:6A-8(a) sets forth the following six threshold categories: "death; dismemberment, significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." The statute further states, "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, a plaintiff must show, within a reasonable degree of medical probability, a permanent injury by objective credible evidence that is causally related to the crash. Davidson v. Slater, 189 N.J. 166, 189 (2008).
Defendant's objection implicitly attacks the thermogram as evidence of permanent injury. Defendant asserts a thermogram is accepted only for the purpose of diagnosing RSD, which was not established in this matter. We reject this argument.
A thermogram has been accepted as an objective diagnostic test relied upon by physicians. See Procida v. McLaughlin, 195 N.J. Super. 396, 398 (Law Div. 1984) (the thermogram is a diagnostic tool with a sufficient scientific basis to produce uniform and reasonably reliable results). Ibid. Also, in the context of personal injury protection payments, N.J.A.C. 11:3-4.5(b)(9) states a thermogram is an accepted "diagnostic test" "determined to have value in the evaluation of injuries". . . "only when used to evaluate pain associated with reflex sympathetic dystrophy ("RSD"), in a controlled setting by a physician experienced in such use and properly trained." Ibid.
The trial judge accepted the evidence to allow plaintiff to vault the verbal threshold when he denied summary judgment. Any dispute as to the results of the thermogram or its interpretation goes to its weight, which was properly left to be determined by the jury. The record reflects Dr. Getson's diagnosis that plaintiff suffered sympathetically mediated pain syndrome, a form of RSD, went unrefuted. The jury received and assessed all the evidence of the medical testing performed including the negative MRIs, EMG, x-rays and nerve study, as well as the abnormal thermogram results, as interpreted by Dr. Getson. The jury evaluated the credibility of the witnesses, including the experts, to which we give "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Accordingly, as found by the trial court, the jury verdict was properly grounded in the evidence and it did not constitute a miscarriage of justice.
We also reject defendant's contention that the trial court abused its discretion in preventing defense counsel from showing the jury a copy of Dr. Getson's summary report during summation. The determination was a matter that lies within the sound discretion of the trial judge, "and the exercise of that discretion will not ordinarily be disturbed unless there is a marked abuse of discretion. Reversal will follow only in cases of a clear abuse." Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123, 130 (App. Div. 1982) (internal citations omitted). We do not discern an abuse in the court's exercised discretion restraining comment during summation to the facts shown or reasonably suggested by the actual evidence introduced. R. 1:7-1(b).