On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-657-00.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Alvarez and Coburn.
This is a personal-injury action for injuries sustained in an automobile accident that occurred on March 2, 1998. Since liability was conceded, the trial was limited to damages. The jury awarded plaintiff $50,000. Plaintiff unsuccessfully moved for a new trial or additur and then appealed. We reversed and remanded for a new trial on the ground that the testimony of one of defendant's experts was improperly admitted into evidence. Hisenaj v. Kuehner, 387 N.J. Super. 262 (App. Div. 2006). The Supreme Court granted defendant's petition for certification and reversed our judgment, holding that admission of the expert's testimony fell within the trial judge's discretion. Hisenaj v. Kuehner, 194 N.J. 6, 25 (2008). In addition, the Court remanded the case to us for "consideration of plaintiff's unresolved appellate issues." Ibid. We then granted plaintiff's motion to file a supplemental brief, noting that our grant of that relief "in no way alters the scope of the issues on appeal, which are limited to those remanded by the Supreme Court." We also permitted defendant to file a brief in response to plaintiff's supplemental brief.
In plaintiff's supplemental brief, she argues under Point I that the judge erred in denying her motion for a new trial because the jury's determination that plaintiff had not suffered a permanent injury pursuant to N.J.S.A. 39:6A-8(a) "was the result of improperly allowed testimony and defense counsel's improper summation references to a subsequent accident." Under Point II, plaintiff argues that the $50,000 award must be reversed because "it was the result of an improper jury instruction [Not raised Below] and was against the weight of the evidence." Plaintiff did not make the jury instruction argument in her original appellate brief. Although plaintiff had previously argued to us that she was entitled to an additur to be set by us or by the trial court on remand, it appears that she is no longer pursuing that relief, insisting instead on a new trial on damages.
Plaintiff was involved in two automobile accidents. The first occurred on March 2, 1998, and the second occurred on January 5, 2002. In the interests of economy, we incorporate by reference our original statement of facts, which included a detailed description of the lay and expert testimony regarding plaintiff's course of treatment and the opinions of the physicians who testified for each party. Hisenaj, supra, 387 N.J. Super. at 264-70. Nevertheless, we will briefly summarize the medical testimony set forth in that decision.
The thrust of the lay and expert testimony submitted for plaintiff was that all of her injuries were due to the first accident. The most significant injuries claimed were three herniated discs in plaintiff's lumbar and cervical spine. Dr. Charles Kalko, a neurosurgeon, performed two major operations on the discs. He also opined that these injuries were caused by the first accident, and that plaintiff was left with permanent disability.
The testimony of the physicians offered by defendant, an orthopedic surgeon and a neuroradiologist, was that plaintiff was suffering from degenerative changes in her spine that were unrelated to the March 1998 accident. And the orthopedic surgeon opined that there was no objective medical finding justifying the surgeries. As we noted in our previous opinion, "the opinions of the experts were plainly at odds as to whether the accident caused any serious cervical or lumbar injuries to plaintiff, necessitating surgery and resulting in permanency." Id. at 269.
Since plaintiff's main argument concerns the treatment of the second accident at trial, which she says prejudiced her case, we should reiterate what occurred in this regard on the first day of trial. Before openings, plaintiff's counsel asked the trial judge to exclude all evidence regarding the second accident. The motion was based on the ground that pretrial discovery had revealed that no expert believed that the second accident was a cause of plaintiff's injuries. The judge reserved on the issue, cautioning counsel to omit reference to the second accident in their opening remarks to the jury. Originally, plaintiff argued to us that the judge's failure to rule on the issue before openings was reversible error. We rejected the argument. Id. at 278. Since the Supreme Court's remand is limited to the issues we left undecided in our first opinion, we cannot revisit this issue, which we resolved. However, we did note that "[p]laintiff's counsel made a strategic decision to preemptively elicit in his questioning of a medical witness that plaintiff was involved in the later accident rather than risk a negative jury reaction for appearing to conceal information if the ultimate ruling was adverse." Ibid.
Plaintiff's counsel suggests now that his introduction of the second accident was necessitated by the following comments made by defense counsel in his opening:
[I] will also prove to you that subsequent to this March 2, 1998 accident plaintiff had additional injuries, and that they will also show up on MRIs that were taken in January of 2002, four years later new findings . . . . Those MRIs are significant. When the ...