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Brady v. Pulgar

August 27, 2009

MICHAEL G. BRADY AND JUDITH M. SEAVER, HIS WIFE, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
MIGUEL A. PULGAR, MULTI-CARE AMBULANCE, INC., AND RURAL/METRO CORP., DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1855-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 9, 2008

Before Judges Winkelstein, Gilroy and Chambers.

In this personal injury negligence action, plaintiff Michael G. Brady filed a complaint alleging that defendants Miguel A. Pulgar, Multi-Care Ambulance, Inc., and Rural/Metro Corp. (collectively, the defendants)*fn1 exacerbated his pre-existing chronic pain syndrome of Reflex Sympathetic Dystrophy (RSD).*fn2

Plaintiff Judith M. Seaver, Michael's wife, sued per quod.*fn3

Following a multi-day trial, a jury awarded plaintiff $12,000,000 ($5,000,000 for pain and suffering and $7,000,000 for future medical expenses); it also awarded plaintiff's wife $2,500,000 on her per quod claim. In addition, the jury determined plaintiff 20% negligent and defendants 80% negligent.

On April 7, 2007, the court molded the verdict based on the jury's determination of comparative negligence and awarded prejudgment interest. An order of the same day entered judgment in favor of plaintiff in the amount of $9,600,000, together with $310,000 pre-judgment interest, and in favor of his wife in the amount of $2,000,000, together with $155,000 pre-judgment interest.

Defendants moved for a new trial on damages, or in the alternative, for a remittitur. Plaintiffs cross-moved for a judgment notwithstanding the verdict (JNOV) on the jury's determination of comparative negligence. On May 11, 2007, the trial court entered an order denying both motions. Defendants appeal, challenging several pre-trial and trial rulings, and the denial of their motion for a new trial, or in the alternative, for a remittitur. Plaintiffs cross-appeal, contending that the court erred in charging comparative negligence and in denying their motion for JNOV on the jury's determination of comparative negligence. For reasons that follow, we affirm.

I.

On April 7, 2005, plaintiffs filed their complaint against defendants. In January 2007, plaintiffs moved in limine to bar the testimony of defendants' expert neurologist, Dr. Eric Fremed. On February 27, 2007, the court entered an order denying the motion, but imposing several limitations on the doctor's trial testimony. The matter was tried to a jury over diverse dates in March and April 2007. The court entered an order of judgment on April 17, 2007. On May 11, 2007, the court entered an order denying defendants' motion for a new trial for damages, or in the alternative, for a remittitur; and denying plaintiffs' cross-motion for JNOV on the jury's finding of comparative negligence.

II.

A. Medical History - 1999 Work Related Accident

On May 12, 1999, plaintiff, then thirty years old and recently married, sold water purifiers for a third-party company. During the course of his employment on that day, plaintiff stepped off a subway train and injured his right foot. Plaintiff's right foot was placed in a cast for several weeks, during which time, instead of healing, he experienced "burning pain" and loss of movement. As a result, plaintiff filed a workers' compensation claim. The Workers' Compensation Division declared plaintiff totally disabled, as did the Social Security Administration (SSA).

Meanwhile, plaintiff visited several physicians, some of whom diagnosed him as suffering from RSD, and others who did not. In December 1999, plaintiff began treatment with Dr. Robert Knobler, a board certified neurologist who specializes in the treatment of RSD, who diagnosed plaintiff as suffering from that disability.

Knobler explained that RSD is a "consequence of improper healing of nerve fibers." It is "a pain disorder typically initiated by some form of trauma," and "is characterized by pain that is out of proportion to the precipitating event." "A minor strain or sprain can lead to the development of this disorder." The nerve damage "tends to occur at nerve endings in the joint spaces following a sprain or strain." According to the doctor, the pain associated with RSD is generally intractable and so severe that some individuals suffering from the disorder commit suicide.

Also according to Knobler, RSD can spread from the affected area by virtue of the sympathetic nervous system, a branch of the automatic nervous system. He explained that the major function of the sympathetic nervous system is to help maintain a person's core body temperature. The doctor testified that once RSD gets under way through alterations in sensation, the central relay station of the sympathetic nervous system is involved, and that in fact allows the anatomical basis for spread[ing] in a mirror image type fashion and to extremities along the line. That is, if the lower extremity's involved, it may spread to the upper. If the upper extremity is involved, it may spread to the lower, and this is based on the anatomy of the sympathetic nervous system.

Knobler found that plaintiff had many classic symptoms of RSD, including: increasingly severe burning pain; swelling, color and temperature changes of the affected foot; changes in the distribution of hair on his right leg; functional impairments causing limitation of movement; tremors; headaches; and difficulty sleeping. In making that diagnosis, the doctor measured plaintiff's skin temperature and found that, consistent with RSD, his skin temperature was colder at his extremities, and he had a "purple red mottling" of his skin.

Knobler explained that "[t]he worsening of pain by movement leads to less movement of the affected body part, and less movement leads to progression of the [RSD] disorder, so the goal of treatment . . . is to reduce the pain to the level in which the individual can then participate in physical movement." As a result, he prescribed several pain medications, including OxyContin and Roxicodone, and prescribed Klonopin and Namenda for nerve dysfunction. He also directed plaintiff to attend aqua therapy sessions to sustain muscle tone. Aquatic therapy is the "mainstay of treatment of RSD" because it allows for movement with far less pain. Knobler opined that patients who participate in aquatic therapy have less muscle atrophy.

In the years following the 1999 accident, plaintiff's condition worsened, with the RSD spreading to his left lower extremity and into his upper extremities. Plaintiff initially walked with the aid of traditional crutches, but developed a "bilateral brachial plexus traction injury," and switched to Lofstrand or forearm crutches. He used a three-wheeled motorized scooter to travel longer distances, but was "supposed to [use] the crutches as much as possible to keep moving."

By 2002, plaintiff's condition had plateaued or stabilized to the point where he "knew what to expect," and could follow "basic routines." During that same year, Knobler recommended that plaintiff, who frequently fell because of "postural instability" caused by an injury from using the traditional crutches, use a wheelchair on days when he could not walk with the Lofstrand crutches. In August 2002, the workers' compensation carrier provided plaintiff with an electric wheelchair. Plaintiff used the wheelchair on days when he was too tired to walk with crutches.

Meanwhile, in April 2002, at the direction of the compensation carrier, Barrett Kolton, a wheelchair accessibility consultant, evaluated plaintiffs' home to determine whether it could be made wheelchair accessible. Kolton concluded that it could not.

In October 2002, plaintiff filed an application in the workers' compensation action, seeking a minivan equipped with an automatic ramp to transport his wheelchair, and monetary assistance in relocating to a wheelchair accessible home. In support of that application plaintiff certified that he developed RSD as a result of his fall in 1999, which had "a devastating effect on every aspect of [his] life." Plaintiff stated he suffered a "constant burning sensation in [his] feet, knees, hips and left arm from the hand to [his armpit]. The constant pain never goes away[;] it just fluctuates in severity." The RSD also caused him to be hypersensitive to changes in barometric pressure, sound vibrations, and touch.

For example, plaintiff said that "when a sheet touche[d] [his] ankle it fe[lt] like a hot knife cutting into [him]." As a result, plaintiff could not wear heavy or rough-textured socks or clothing. Plaintiff stated he had "fallen to the ground" when the wind blew dust onto his legs because it felt like "a thousand grains of fire hitting [him]." Related to his RSD, plaintiff asserted that he also suffered from insomnia, memory loss, ringing in his ears, and gastrointestinal, vision, and sinus problems. Further, plaintiff claimed that on "a good day" he could "only get around on crutches [for] about 100 yards" before falling, and on some days he could not "stand up at all." As a result of these falls, plaintiff suffered injuries to his back, wrist, and head, and missed more than twenty therapy sessions in 2002.

Lastly, plaintiff's 2002 certification addressed his inability to move within his home. Plaintiff certified that his duplex apartment, which was not wheelchair accessible, presented difficulties for me on the most basic levels. I have been trampled both inside and outside of my home on countless occasions. I've been forced to crawl on the ground like an animal to use my bathroom. I live in constant fear of falling and the risk that my condition will get worse as a result of one of these numerous falls.

The entrance to the home posed a particular problem because plaintiff could not use his wheelchair on the stairs leading to the front door and thus had, on occasion, especially when the stairs were icy, been "trapped outside" the house. Plaintiff could not use the downstairs bathroom because he could not fit a wheelchair through the door, and as a result, "soiled himself" when he fell trying to get to the toilet.

In another certification dated June 20, 2003, also filed in the workers' compensation action, plaintiff again requested a minivan with an automatic ramp to transport his wheelchair or scooter. Plaintiff certified that, "[o]n most days [he] need[ed] the aid of a wheelchair and/or scooter in order to get around." He explained that he used the scooter or the wheelchair to travel distances outside, but did not use the devices in the house because he could not get them through his front door. As a result, in February 2004, the compensation carrier offered plaintiffs a $125,000 loan to purchase a wheelchair accessible residence.

At trial, plaintiff acknowledged that his life before his second accident in 2004 "was not easy" but could not compare with what was in store for him. He admitted he had previously fallen at times, but claimed he was always able to get back up to a standing position. Despite his disability, plaintiff asserted he could function independently, and drove "[a] little bit," exercised, prepared dinner, did chores, painted, participated in family events, albeit at a "slower pace," and was able to attend art and music festivals in Hoboken where he lived. Plaintiff's father, Michael Brady, Sr., described his son as a "scooter maniac," driving all over the streets of Hoboken trying to make "the best of a very bad situation."

Seaver, who had been married to plaintiff for less than one month before his 1999 accident, testified that initially it had been difficult to adjust to marriage and to her husband's illness. However, by 2002, they had developed a workable regimen, which allowed her to work full-time and to accompany plaintiff to therapy sessions and doctors' appointments. Despite plaintiff's illness, the couple not only visited museums, restaurants, family functions and art exhibits, but also often entertained people in their home with plaintiff doing the cooking. By 2002, Seaver began to feel as if she had her life back because she was successful at a job she enjoyed and often socialized with co-workers.

B. The 2004 Accident

The only persons to testify to the happening of the accident were plaintiff and Pulgar. Plaintiff testified that on March 2, 2004, at approximately 10:15 a.m., he walked with the aid of crutches up his steep driveway to the sidewalk in front of his home to wait for defendants' medical transport to take him to his aquatherapy appointment at Hackensack University Hospital. When plaintiff reached the sidewalk, he saw defendants' automobile, operated by Pulgar, parked down the street from his home. Plaintiff began walking in the direction of the parked vehicle, but stopped when he saw Pulgar driving toward him. Upon reaching plaintiff, Pulgar opened the driver's side door of the vehicle and said something to him. The car door struck plaintiff's arm and his crutch, causing him to fall down the steep driveway into his garage door.

Contrary to plaintiff's testimony, Pulgar testified that, upon arriving at plaintiff's home, he knocked on the door and plaintiff came "out screaming" that he "was too early." Pulgar returned to his vehicle to wait. About ten or twenty minutes later, plaintiff, who was using crutches, approached the parked vehicle and stood about two or three feet from the passenger's side door. Pulgar opened the passenger's door into plaintiff's crutch. Pulgar described the incident as the door "barely tapp[ing]" the crutch, and denied that the door struck the crutch hard enough to cause plaintiff to fall. According to Pulgar, after the door tapped plaintiff's crutch, plaintiff "stood there . . . for a couple of seconds," and then turned and "started running and screaming with [the] crutches." Pulgar exited the vehicle and attempted to "grab" plaintiff, but plaintiff walked down the driveway on his crutches, still "screaming." Once plaintiff reached the bottom of the driveway he "let go of the crutches and . . . slammed himself against the door."

After the accident plaintiff was taken by ambulance to St. Mary's Hospital, where he was treated in the emergency room and released. The radiologist who read x-rays of plaintiff's right foot and ankle, the same foot injured in the 1999 accident, reported that plaintiff had an "ill-defined cortical undisplaced fracture of the base of the fifth metatarsal that should be clinically correlated."

Knobler examined plaintiff on March 3, 2004, and reviewed the x-rays. He initially found there "was evidence" that plaintiff had broken his foot in the fall, but later said the findings on the x-rays were "negative." Knobler placed plaintiff on full bed rest for five months to limit plaintiff's movement as much as possible. A March 8, 2004 MRI of plaintiff's right foot showed "intact oscial structures without edema of the fifth metatarsal bone."

Plaintiff testified that he felt "stunned" after the accident. His pain increased "[d]ramatically" and "was like nothing that [he] had ever thought could happen." The burning pain in his right foot "felt like . . . the gas was turned on high," and his hips, left hand and arm began to burn. He experienced increased sensitivity to temperature and noise, and could only wear very soft clothing. He underwent several physical changes, including excessive hair growth on his foot, his toes turned purple, his leg swelled, his foot turned in, and his hands curved inward in a "clawlike" fashion. During trial, the jury viewed plaintiff's right foot.

Plaintiff's father testified that after the accident "[a] very bad situation got devastatingly worse," in that plaintiff could no longer use the scooter and crutches for mobility. In order for his son to leave his home, several men had to lift him in and out of his wheelchair; and as a result his son only left his home to attend doctors' appointments. The father stated that his son's transportation to and from the appointments was a "nightmare." The father recalled that on one occasion, his son had to undergo an MRI that lasted four to five hours, and then ride in the car for an hour to get home. Plaintiff's father said his son "cried and sobbed" from pain the entire ride.

Sometime after the accident, Knobler recommended that plaintiff obtain a motorized heavyweight wheelchair. The new wheelchair was larger with a more powerful motor, and the seat inclined so plaintiff could elevate his legs. Thereafter, plaintiffs borrowed money from the compensation carrier for a down payment on a house, and moved to a wheelchair accessible home.

C. Expert Testimony

Knobler opined that the March 2, 2004 accident exacerbated plaintiff's RSD. Knobler concluded that these injuries were permanent and that plaintiff's condition would not improve. He explained that plaintiff's injury was "so severe" that he had "lost function in central nervous system tissue," a function "essential" for recovery.

According to Knobler, prior to the 2004 accident, plaintiff, despite the RSD, could walk as far as a city block and could function independently. After the 2004 accident, plaintiff could no longer walk or stand, and became "incapacitated and dependent on others." Plaintiff also suffered a dramatic worsening of his tremors and dystonic posture (his foot turned inwards). Plaintiff's cognitive abilities suffered as a result of sleep deprivation. Additionally, because plaintiff's pain worsened and spread throughout his body, Knobler increased his dosage of OxyContin and Roxicodone.

Knobler concluded that, although plaintiff's quality of life had been impaired as a result of his RSD, after the 2004 accident it was greatly diminished and became a terrible, terrible existence . . . in the sense that he is affected by total body pain. There's no position that he can get comfortable in, and he really tries as best as possible with the medication . . . to function. Increasing the pain medication is limited because of side effects that will affect bladder and bowel as well as cognitive function, and so there is just so far that you can go in terms of the amount of medication that you [can] give . . . [without] creat[ing] serious problem[s] for him. Without being able to provide adequate pain relief, his ability to participate in physical activities on a day-to-day basis is more severely limited.

Additionally, as a result of the 2004 accident, travel had become extremely painful for plaintiff, so Knobler scheduled plaintiff's examinations four times a year, instead of once a month. Knobler recommended that plaintiff see a physiatrist for rehabilitation, a psychiatrist for depression, and a podiatrist for issues associated with changes to his skin and toenails. He recommended that plaintiff have a home health aide, because plaintiff was "dependent entirely on his wife." Knobler also recommended that plaintiff continue "aquatic and physical therapy and massage," increased to five times a week, to "provide relief," and to allow movement and improve function.

Conversely, defendants' expert, Dr. Fremed, opined that plaintiff was not suffering from RSD based on "[t]he lack of reliable objective findings to confirm that diagnosis." He explained that there are no objective medical tests to determine whether a patient has RSD. The classic symptoms of the syndrome include swollen limbs, hypersensitivity, changes in skin, hair, and nail growth, tremors, and contracted joints. During his examination of plaintiff on July 21, 2006, Fremed found no indication that plaintiff had developed any of these symptoms, although he noted that plaintiff's feet were turned slightly inward. Additionally, although some RSD patients, including plaintiff, have reported that RSD spreads, Fremed found those reports "suspect," because there was "no organic . . . or biological plausible explanation for it."

Fremed found no objective confirmation of plaintiff's complaints of pain. The doctor noted that plaintiff reported "significant pain during any physical contact with his limbs," and during movement. However, Fremed observed that the muscles in plaintiff's legs had not atrophied, and thus he concluded that plaintiff "must have been moving his legs, even though he told [Fremed] it was too painful to do so." And, it was a "convenient coincidence" that plaintiff appeared to develop a tremor while talking about taking medication for tremors.

According to Fremed, plaintiff's hypersensitivity to touch was worse on his right leg and left arm, was non-neuroanatomic, or inconsistent with "nerve distributions," and thus there was "no biologically plausible explanation" for the pattern of plaintiff's reported hypersensitivity. Moreover, although plaintiff claimed that his legs were too sensitive to touch, Fremed noted that plaintiff wore trousers.

Fremed found these findings inconsistent with a diagnosis of RSD. Furthermore, if plaintiff had RSD since 1999, he would have reached the later stages of the disease where he would have developed permanent changes in his skin, toenails, and the hair on his legs, changes not observed by Fremed during his examination. Thus, Fremed concluded that, at the time he examined plaintiff in July 2006, plaintiff did not have RSD. Instead, Fremed found that plaintiff had "a chronic pain syndrome based purely on his self[-]reported pain," explaining: "That's not to say he's faking . . . . [or] lying. We can't tell just based on his own pain complaints whether they're real or what's causing them." Nevertheless, Fremed concluded that even if plaintiff suffered from RSD, his condition was not aggravated or exacerbated by the 2004 accident. He explained that there were no "objective neurological findings" to support plaintiff's self-reported continued deterioration.

D. Damages

Plaintiff testified that after the 2004 accident he could no longer dress or groom himself, shower, or use the toilet without assistance. Although he used to perform such activities as shopping, laundry, cooking, vacuuming, exercising, painting, visiting friends and relatives and driving, he could no longer do so. Plaintiff could use the computer on a limited basis, but was unable to sustain any other type of activity for any duration. He had difficulty sleeping because of the pain, and had to tent his sheets over his body because of his hypersensitivity.

According to plaintiff, before the 2004 accident, he was "limited, but . . . independent," and felt as though he "was a part of society" because he could attend art and music festivals, and could socialize with friends. After the accident, he could no longer walk with the aid of crutches, becoming entirely dependent on his motorized wheelchair for mobility. Plaintiff stated that the exacerbation of his RSD also affected his relationship with his wife. For example, plaintiff said his wife had recently complained that he treated her more like a "home health aide" than a wife. The level of pain also affected their physical relationship.

Seaver testified to the progression of plaintiff's illness and its dramatic effect on their lives. Initially, after the 2004 accident, they hired home health aides to assist plaintiff so Seaver could continue working. Under the terms of the workers' compensation policy they were not able to interview or screen the health aides, and as a result they experienced problems and had to fire several of them for theft, and problems with safety and cleanliness. Unhappy with the quality of care provided to her husband, Seaver left her job to care for him full time.

After the 2004 accident plaintiff became completely dependent on Seaver, who assisted her husband in every facet of his day-to-day activities, including getting dressed, showering, brushing his teeth, washing his face, using the bathroom, and eating. Initially, some of these tasks had proven harder than she expected. For example, Seaver was physically unable to assist her husband in taking showers, so she built a ramp to enable him to get his wheelchair into the shower.

In addition to assisting her husband, Seaver performed many of the chores that he used to do including cooking, food shopping, ironing, laundry, managing money, and vacuuming. She described her quality of life post-accident, as having been changed in every sort of way. Every way, socially, going to work, I have to think about [plaintiff] first. I don't think about myself really at all anymore. And it's . . . very mentally draining for me. I feel I have totally lost my identity. I feel -- I am only a health care provider in a sense. . . . I'm stressed, I'm depressed. It's hard sometimes . . . to get through the day. . . .

With regard to her husband's physical condition, Seaver testified that he suffered much more fatigue and pain after the 2004 accident. She described the intense pain her husband felt when he tried to take a shower, when she hit a bump while driving him to therapy, or when dust blew against his legs. She lamented that why "anybody in the world should have to experience pain like this is mind blowing." Most notably, before the 2004 accident, Seaver said that her husband could walk with "[m]inimal assistance," but afterwards, he could not walk at all. According to Seaver, he was also much more sensitive to temperature and touch.

Seaver described her husband's post-accident sleep patterns as "[h]orrible." She explained that he often cannot get to sleep until 7:30 or 8:00 a.m., when his "body just gives out on him," making her "life harder" because she tries not to make any noise while her husband is sleeping. According to Seaver, her husband's sleep patterns have affected her own.

With regard to their relationship, Seaver testified that after the 2004 accident, her husband became frequently "quiet" and "short tempered," and that "it's hard -- it's very difficult to deal with and to remember that it's the RSD talking, it's not him talking to me." They rarely socialized because it was so difficult, tiring, and painful for her husband to leave the house. Thus, she was rarely able to leave the confines of the house on her own because of her husband's dependency on her.

Barbara Scheffel, a registered nurse and plaintiff's life care planning expert, testified as to plaintiff's future medical and living needs. In preparing a life care plan for plaintiff, she separated the care required after the 1999 accident from the care required as a result of the 2004 accident. In making those determinations, she compared plaintiff's functional abilities. For example, she found that before 2004, although plaintiff needed minimal assistance with walking and driving, he could perform many functions independently, including dressing, using the toilet, eating, and housework. However, Scheffel found that after the 2004 accident, plaintiff's life changed dramatically and she found he needed maximum assistance with almost all of the functions he used to be able to perform independently, and was not able to walk.

Scheffel created a chart comparing the health care provided before the 2004 accident to the care required after that accident, and listed the differences in cost. For example, she concluded that after the 1999 accident plaintiff needed a home health aide eight hours a day, while after the 2004 accident he needed an aide on a twenty-four hour basis. Matityahu Marcus, plaintiff's expert economist, concluded that the total cost of Scheffel's health care plan, based on plaintiff's life expectancy, and discounted to present value, totaled $7,820,336.

Defendants presented no expert witnesses regarding the cost of care. Rather, they defended the case contending that plaintiff's 2004 injury did not exacerbate his pre-existing condition. In so doing, defendants offered the testimony of Kathleen Wiese, a registered nurse and plaintiff's workers' compensation caseworker. Wiese testified that she had met with plaintiff on a monthly basis and accompanied him to most of his physician office visits. Wiese testified that after plaintiff was diagnosed with RSD following the 1999 accident, he used an electric scooter for traveling long distances and crutches for assistance in walking inside his home. According to Wiese, plaintiff had reported frequent episodes of falling. For example, in February 2002, plaintiff told her that he had fallen down thirteen steps while trying to get to his first-floor bathroom. As a result of his frequent falls before 2004, Wiese recommended that plaintiff be provided with a motorized wheelchair "to protect his safety" and to "possibly avoid some falls." He received the wheelchair in July 2002.

Wiese offered other examples of plaintiff's falls prior to the 2004 accident. In August 2002, plaintiff fell and hurt his hand, and on December 13, 2002, he fell four or five times. Later that month, during an appointment with Knobler, Wiese observed that plaintiff's right leg "gave out and he seemed to collapse to the floor." Wiese said plaintiff "appeared" to be "struggling severely trying to get up" because "his face became very red and shivering and quivering."

On January 20, 2003, plaintiff told Wiese that he had fallen down the steps in his home and become entangled in the railing, where he remained for about an hour until his wife got home and could "free him." Plaintiff told Wiese that as a result of that fall, he missed his therapy session, and that "his legs were more painful and swollen than ever." Wiese noted a marked change in plaintiff's functional abilities and a decline in his quality of life after the 2004 accident.

According to Wiese, plaintiff now needs "[m]aximum assistance" in performing daily tasks.

III. - A.

Defendants first argue that the trial court erred in limiting the scope of Dr. Fremed's testimony. Defendants contend that the court improperly barred Fremed from referring to the opinions of several non-testifying physicians who had concluded that plaintiff was "malingering"; applied an unduly restrictive application of N.J.R.E. 703; and failed to conduct an N.J.R.E. 104 hearing. Defendants further assert that the court erred in limiting Fremed's testimony as to whether plaintiff suffered from RSD and whether plaintiff had fractured his foot in the 2004 accident. We reject these arguments.

Plaintiffs moved in limine to bar Fremed from testifying that plaintiff was malingering, contending that Fremed had not previously rendered that diagnosis and was not qualified to do so. Plaintiffs also sought to bar Fremed from referring to reports of non-testifying physicians who had rendered that diagnosis.

In support of that motion, plaintiffs cited to the following portion of Fremed's deposition testimony:

PLAINTIFFS' COUNSEL: Did you think [plaintiff] was malingering on the pain?

DR. FREMED: I have no way of knowing. Again, he may have truly believed he was in pain. . . .

PLAINTIFFS' COUNSEL: So you made no determination whether he was malingering, whether [it] was ...


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