On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-1189-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges C.L. Miniman and Waugh.
Plaintiff Colleen Troy-Millette appeals from a December 15, 2008, judgment in favor of defendant Carol J. Hynes and third-party defendant Ricky Millette and from a December 19, 2008, order denying her motion for a new trial. Hynes cross-appeals from a February 16, 2007, order denying summary judgment. We affirm the orders of December 15 and 19, 2008, which moots the cross-appeal.
On September 17, 2002, Hynes was driving westbound on Industrial Way in Eatontown when she was involved in an intersection accident with a vehicle owned by third-party defendant Joann B. Recht*fn1 and driven by Millette, who was traveling northbound on Hope Road. Plaintiff, who was wearing her seatbelt at the time of the accident, was a passenger in the Millette vehicle. Both drivers were ultimately held responsible for the happening of the accident.
Plaintiff's face hit the inside of the car after impact. When paramedics arrived, she reported pain in her head, neck, and face. The paramedics took plaintiff to Jersey Shore Medical Center, where she was examined, x-rayed, and discharged with back and neck braces. The next day, plaintiff saw her primary-care physician, Dr. Joanna Dennis, because her wrist was swollen, but x-rays did not reveal any fractures. She underwent physical therapy at Jersey Shore Rehabilitation Center for a few months after the accident. The physical therapy helped relieve some of the pain in her neck.
Plaintiff received no other medical treatment, although she consulted a number of other physicians, including Dr. Paul Gilson, a neurologist; Dr. Robert Grossman, an orthopedist; Dr. Scott Woska; Dr. Lucyna Lupicki; and Dr. David Yazdan, a neurosurgeon, who testified on plaintiff's behalf at trial. Plaintiff testified she had pain in her right arm; swelling in her wrist, fingers, and neck; hand tremors; headaches; poor motor function in her hand; two herniated discs in her neck; and an inability to assist in household tasks. Plaintiff testified she never had neck or right-arm problems before the accident. Plaintiff also testified she elected not to have corrective surgery due to a fear of becoming paralyzed.
Dr. Yazdan testified that he examined plaintiff on July 22, 2003. She complained of headaches, neck pain, and abnormal sensations in her upper extremities, especially her right hand. Dr. Yazdan found decreased hand strength and depressed tendon reflexes in plaintiff's upper and lower extremities. Dr. Yazdan interpreted a cervical MRI from June 2003 as consistent with a herniated disc at C5-C6 and to a lesser extent a herniated disc at C6-C7 with spondylitic changes, which he described as very common in most people. Dr. Yazdan found no indication of prior neck or back injury. Dr. Yazdan concluded that plaintiff had posttraumatic cervical radiculopathy, which is an irritation of the nerve route. He recommended an anterior discectomy, a relatively common procedure. Dr. Yazdan opined that the herniated discs were caused by the accident. Plaintiff's prognosis was guarded because she needed surgery. When asked whether plaintiff's injuries were permanent in nature, Dr. Yazdan replied:
You cannot say that permanency right now because her treatment is not completed.
Now once the treatment is completed and she has gone through therapy and we prepare them to go back to their previous job, then we can evaluate them to see how much disability they have at that time.
Right now when she is not even gone through a complete treatment it is very, very, difficult to make the statement like that.
Dr. Yazdan continued to say that plaintiff would not get better and would only get worse without surgery. He acknowledged that other doctors had recommended more conservative treatments.
Dr. Robert Warren, an orthopedic surgeon, testified on behalf of defendants. He examined plaintiff on October 14, 2004. Plaintiff reported to him that she had neck pain, tremors and decreased motor function in her right hand, and pain and numbness radiating down her right arm. Dr. Warren noted that plaintiff did not appear to be in pain when he saw her, although she reported tenderness from the base of her skull down to her scapula. Dr. Warren stated that disc problems in the neck present as pain radiating into the extremities, changes in muscle tone, or weakness, but not as tenderness. Plaintiff's range of ...