On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-656-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Stern and J. N. Harris.
In this action, governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), a properly instructed jury found that plaintiff suffered a permanent injury as a result of an automobile accident - thereby surmounting the verbal threshold - and awarded her $400,000. The defendant appeals, claiming that the plaintiff's myofascial pain syndrome was not demonstrated by objective medical evidence, was not adequately proven to be a permanent condition, and cannot sustain a $400,000 verdict. We disagree and affirm.
Plaintiff Tanesha C. Staton and defendant Olukoya Adenuga were involved in an automobile accident on May 1, 2003. The vehicles collided when defendant entered plaintiff's traveled path, causing plaintiff's vehicle to run off the road, hit a tree, roll over twice, and land on its roof. Immediately after the accident, plaintiff sought emergency treatment, where she complained of wrist, shoulder, neck, and back pain. After her release from the hospital, plaintiff followed up with treatment from a family physician, who prescribed pain medication.
Chiropractic intervention by Dr. Roy F. Siegel, D.C., began less than one week later to help alleviate plaintiff's complaints about "headache, neck pain with radiation into the left shoulder blade area, mid back pain, as well as low back pain with radiation into the right greater-than left posterior thighs and legs." Plaintiff was observed by Dr. Siegel as experiencing decreased cervical and lumbosacral range of motion, partial numbness, tenderness, and muscular spasm. Plaintiff received forty-three chiropractic treatments from Dr. Siegel, which lasted less than four months.
Plaintiff was treated concurrently by neurologist Dr. Alexander M. Pendino, D.O., who found restricted range of motion and tenderness. Dr. Pendino diagnosed plaintiff with post-traumatic regional myofascitis and ordered an MRI, which revealed no abnormalities. Dr. Pendino referred plaintiff to Dr. Barry A. Korn, D.O., D.P.M., a pain management specialist, who treated plaintiff in August and September 2003. A second round of pain management was provided to plaintiff by Dr. Dorota M. Gribbin, M.D., from March to November 2004. Despite being eighteen months post-accident, plaintiff still complained of cervical, thoracic, and lumbar pain, as well as headaches.
Plaintiff commenced a final round of pain management on March 14, 2005, with Dr. Frederic C. Stieg, M.D., which lasted until December 2005. Despite aggressive treatments, Dr. Stieg's final diagnosis, contained in his February 28, 2006 report, opined that plaintiff suffered a permanent injury to the musculature of the cervical and thoracic spine region, resulting in permanent myofascial pain. He described myofascial pain as "a disorder of muscle microanatomy, physiology, and neurologic processing of sensory modalities in the peripheral as well as the central nervous system."
Defendant, not surprisingly, produced the contrary opinions of Dr. Aaron A. Sporn, M.D., who found that plaintiff suffered no restrictions in her range of motion and no spasm. Dr. Sporn found no evidence of myofascitis, which he claimed would be visible in an MRI as either inflammation or swelling.
Plaintiff commenced her negligence action on March 11, 2005. After discovery concluded, defendant moved for summary judgment, which was denied on February 2, 2007.*fn1 The dispute proceeded to a three-day jury trial in June 2008, where the jury determined that the defendant was entirely at fault for the happening of the accident. The jury awarded plaintiff $400,000 as compensatory damages for her permanent injury, which was embodied in a judgment dated August 5, 2008. Defendant's motion for a new trial or for a remittitur was subsequently denied. The final memorializing order was entered on August 15, 2008.
On appeal, defendant argues that her 2007 motion for summary judgment should have been granted, thereby avoiding the subsequent jury trial entirely. Alternatively, defendant asserts that the jury was not presented with objective medical evidence to support a finding of permanent injury and therefore a new trial should be conducted. Moreover, defendant claims that the verdict was against the weight of the evidence, thereby necessitating a new trial. Finally, defendant asserts that the damages component of the verdict was excessive and requires either a new trial or a ...