October 5, 2009
TANESHA C. STATON, PLAINTIFF-RESPONDENT,
OLUKOYA ADENUGA, DEFENDANT-APPELLANT, AND GORIOLA A. ADENUGA, DEFENDANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 substantial remittitur. After carefully reviewing the record, we cannot subscribe to any of defendant's arguments and therefore affirm the judgment.
Summary judgment may be granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court Rules, comment 3.2.1 on R. 2:10-2 (2009). "We employ the same standard that governs trial courts in reviewing summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
"New Jersey's compulsory automobile insurance statutory scheme distinguishes between those who seek recovery for economic loss . . . [under] N.J.S.A. 39:6A-2k, and those who seek recovery for non-economic loss . . . [under] N.J.S.A. 39:6A-2i." Soto v. Scaringelli, 189 N.J. 558, 562 (2007). The statute merely requires that a plaintiff prove that an injury meets one of the "threshold categories." DiProspero v. Penn, 183 N.J. 477, 493 (2005). If an insured has elected the limitation on lawsuit option, commonly known as "verbal threshold," the insured may not maintain a lawsuit for non-economic damages until she has sustained bodily injury that results in "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8. The statute considers an injury to be permanent when the body part or organ has not healed to function normally and will also not do so with further medical treatment. Id.; DiProspero, supra, 183 N.J. at 488.
A physician opining on the permanency of a plaintiff's injury must make such a determination through the use of objective medical evidence. Id. at 489. If the objective evidence depends on diagnostic and medical testing, those tests "may not be experimental in nature or dependent entirely upon subjective patient response." N.J.S.A. 39:6A-8(a). The Legislature intended these rigorous standards to ensure that a plaintiff could use only honest and reliable medical evidence and testing procedures to prove that the injury met the threshold. DiProspero, supra, 183 N.J. at 489. Contradictory medical evidence that disputes whether or not the plaintiff has met the verbal threshold prevents a court from disposing of the case on a motion for summary judgment. Cineas v. Mammone, 270 N.J. Super. 200, 213 (App. Div. 1994). If such a dispute over medical evidence arises, the court must give the plaintiff the opportunity "at trial to prove [the injury meets the verbal threshold] to the satisfaction of the finder of fact." Brown v. Puente, 257 N.J. Super. 203, 209 (App. Div. 1992).
Courts have found objective evidence of muscle spasm sufficient to satisfy the verbal threshold. In Cavanaugh v. Morris, 273 N.J. Super. 38, 41 (App. Div. 1994), the court found that plaintiff's physician's report of "continuing spasm long after the accident" satisfied the objective medical evidence requirement. The court in Cineas, while acknowledging that subjective evidence of restricted range of motion is insufficient, found that the treating physician's diagnosis of several instances of cervical and lumbar spasm was an objective assessment that satisfied the verbal threshold. Cineas v. Mammone, supra, 270 N.J. Super. at 211. See also, Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (muscle spasms that are persistent and present twenty-six months after the cessation of active treatment was prima facie evidence of a permanent injury).
Although the motion judge expressed skepticism about what might be the ultimate result after a jury trial (a skepticism not borne out by the verdict), he determined that there were disputes of fact that could only be resolved by a jury. The fulcrum of the parties' dispute was the persistent muscle spasms endured by plaintiff and detected over several years by her treating physicians. Dr. Stieg's report, dated February 28, 2006, noted several personally-observed episodes of muscle spasm and that plaintiff "continued to demonstrate painful muscle spasm" as late as December 15, 2005. This tangible and objective observation by a medical professional was more than thirty months after the accident.
On the other hand, Dr. Sporn's expert report, dated January 24, 2006, noted that as of the date of the report, plaintiff exhibited "excellent range of active motion in all directions" and "[s]pasm is not present." Dr. Sporn noted the absence of any objective evidence of a permanent injury such as radiographic examinations or electro-diagnostic studies. He concluded that plaintiff's "injuries are not serious, significant or permanent."
In the face of these competing observations and conclusions, the motion judge, "still dubious . . . about the complaint," nevertheless denied the motion and submitted the matter to a jury. Clearly, this squares with AICRA's summary judgment jurisprudence and was a correct application of the law.
Rule 4:49-1(a) states that a motion for a new trial shall be granted "if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." Our standard of review is substantially the same. R. 2:10-1; Jastram v. Kruse, 197 N.J. 216, 230 (2008). Nevertheless, we "must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Ibid. (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
The trial judge remarked upon the jury's ability to consider all of the evidence, including the claim of muscle spasm then existing five years after the accident. He observed that "the jury's verdict was not so distorted and wrong that it would evidence a plain miscarriage of justice." We agree. While the verdict may be high, it does not shock the judicial conscience. In the circumstances, we can find no plain error warranting a new trial or remittitur. See Jastram v. Kruse, supra, 197 N.J. at 231; Fertile v. St. Michael's Hospital, 169 N.J. 481, 496-99 (2001) (regarding the claim of an excessive verdict); R. 2:11-3(e)(1)(C) and (E).
Defendant's last point revolves around the view that given the lack of any "reproducible objective medical test" the jury's determination of plaintiff's permanent injury cannot be sustained. The defendant's argument is self-defeating when it notes,
The x-rays were negative. The MRI testing was negative. The EMG testing was negative. The nerve conduction studies were negative. All plaintiff had left were Dr. Stieg's personal statements that he found spasms, which although described by him as objective, were not consistently reproducible." [Emphasis added.]
There is nothing in the AICRA, and we have been cited to no other authority that requires - as a matter of law - manifestation of a permanent condition to be "reproducible." If a jury finds a competent expert's opinion persuasive on the issue of objective permanency, that may be enough to sustain a its verdict.
We have no reservations in affirming the decisions of the motion and trial judges below. The jury verdict was not such an outlier that appellate intervention is necessary. Even though the motion judge's prediction about the plaintiff's proofs - "[t]his, folks presents a very difficult case" - was inaccurate, there appear to be no reversible errors capable of inducing an unjust result.