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Ternier v. Smith

March 23, 2010

SERGE TERNIER, PLAINTIFF-RESPONDENT,
v.
GARY SMITH, DEFENDANT-APPELLANT, AND NISSAN INFINITI, LT, DEFENDANT, AND GEICO INSURANCE COMPANY, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8678-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 26, 2010

Before Judges Carchman, Parrillo and Ashrafi.

Defendant Gary Smith appeals from a judgment, after jury verdict, awarding plaintiff Serge Ternier $572,595.58 in compensatory damages and interest, and from the denial of his motion for a new trial. We affirm.

This litigation arose out of an automobile accident on December 10, 2005, at the Woodbridge Mall, wherein plaintiff was injured when the car he was driving was "t-boned" by a car driven by defendant, who, in turn, alleged a phantom driver "waved" him into oncoming traffic. Since there was no claim that plaintiff himself was at fault, the issues at trial concerned the allocation of liability, if any, between defendant and "John Doe," and if negligence were found, the amount of damages to be awarded plaintiff.

At around 5:30 p.m. on December 10th, plaintiff was heading home, traveling in the far right lane of a four-lane outer-ring roadway, consisting of dual sets of two lanes in opposite directions, outside the mall. There are multiple exits from the roadway to the inner mall parking lots, and plaintiff was traveling northbound in the lane closest to the parking lot.

Although there were no cars directly in front of plaintiff, traffic was building in the adjacent left lane, where there were "quite a few" stationary vehicles. Defendant, traveling in the opposite direction, was stopped at the intersection with his signal activated, waiting for about a "minute [or] less" to make a left-hand turn across two lanes of oncoming traffic, including plaintiff's.

According to defendant, at one point, the lead car in the nearest oncoming lane stopped, and the driver waved, motioning defendant to make the turn. After being motioned forward, defendant turned going "no more [than] five miles an hour," but without stopping or slowing down further as he entered into oncoming traffic and struck plaintiff's vehicle. Defendant was unable to identify the driver who waved him on or the car the phantom driver was operating; nor was he able to see the oncoming vehicles traveling in plaintiff's right northbound lane due to traffic build-up behind the phantom driver's car.

The force of the collision dragged plaintiff's vehicle to the curb, causing him to move violently within his automobile's cabin, and to hit his head on the headrest. Although he did not immediately seek medical treatment, plaintiff visited the hospital the next day as he experienced headaches, along with both neck and back pain overnight. Two days later, he visited his physician who recommended physical therapy, which plaintiff underwent for several months.

Plaintiff, who was forty-four years old at the time, was referred to a neurologist, Dr. Michael Gruber. His examination of plaintiff on January 23, 2006, revealed limited range of motion in all planes of plaintiff's head and neck, and "spasm of the muscles in the back of [plaintiff's] neck[,]" suggesting "irritation of the nerve roots that innervate those muscles[]" and "a disc herniation in his neck" along with "post traumatic syndrome[.]"

At a second visit on April 24, 2006, Dr. Gruber reviewed plaintiff's MRI films, which revealed disc herniations at C4-C5 and C5-C6. He found no evidence in the diagnostic testing of degenerative spondylosis, calcific changes, or any other indicator that the neck herniations pre-existed the automobile accident, although he admitted there was no method for determining their age.

As late as January 7, 2008, plaintiff continued to suffer from "limitation of movement at the head of the neck in all planes and spasm of the paravertebral cervical muscles." Dr. Gruber's final diagnosis was that plaintiff "has a herniated disc at C5/C6 on the left side. He has a herniated disc at C4/C5 in the midline and he had a bilateral C5, C6, C7 radiculopathy." In Dr. Gruber's opinion, since plaintiff was completely asymptomatic before the accident, the neck herniations were caused by the automobile collision and were permanent in nature. As to the latter, Dr. Gruber explained that nerves usually heal within six months, and if a patient continues to suffer from radiating pain beyond that period, as plaintiff does here, it is very unlikely that his condition will improve. Plaintiff was then referred to a neurosurgeon, Dr. Feinman, whom plaintiff visited on February 19, 2008.

Defendant's expert, Dr. Robert Bercik, an orthopedic surgeon, examined plaintiff on October 18, 2007, and found no evidence of nerve irritation, spasm, or limitation of motion in his neck. He found "no evidence of a permanent impairment of the cervical spine" since "[o]bjectively there was really no finding that was consistent with an anatomic injury."

In reviewing the MRI film, Dr. Bercik found "some degeneration in the different levels[,]" namely levels "[o]ne, two, three, four, five[,]" with some disc desiccation.*fn1 He found slight disc bulging at C3-C4, "a little bit more of a bulge with a central dis[c] herniation" at C4-C5, and a "left sided dis[c] herniation" at C5-C6. Dr. Bercik also found signs of spondylosis, or "arthritis of the spine," opining that the bulges and herniations were unrelated to the motor vehicle accident, as "[t]he most common cause of dis[c] bulging and dis[c] herniation is degeneration. It's not trauma. . . . When you see it at several levels it's more likely to be degeneration than trauma."*fn2 Dr. Bercik further explained: these changes take . . . at least one year and maybe two years to develop. . . .

[T]his [MRI] was done within . . . six months of the motor vehicle accident. The changes on these MRI's, in all likelihood, took more than a year to develop, took one to two years to develop, and I think they were there before the accident and I don't think they were caused by the accident.

In other words, in his opinion, the MRI revealed chronic, not acute, changes that were probably present for one to two years before the automobile accident. When asked how he was able to approximate the age of disc herniations, Dr. Bercik explained: you can't give an exact date but you can have an idea. If you see degeneration in the dis[c]s you know that there have been changes going on between one and two years.

And . . . some of the most common changes of degeneration are the desiccation, which was present at multiple levels, dis[c] bulging and dis[c] herniations.

Dr. Bercik did admit, however, that a degenerative disc can be herniated with trauma. He also agreed that a person with spondylosis, who later is involved in an accident, may suffer an aggravation of the spondylosis as a result of the trauma when the injured person experiences pain after the accident. Dr. Bercik also acknowledged that plaintiff suffered from a disc that was "innervated," that it had "pain fibers," and that he had no history of neck pain prior to the accident.

According to plaintiff, as of trial, his physical therapy and medication regime had proven effective, as he experienced "a lot of progress." His headaches are gone and his back issues have steadily improved. However, plaintiff still experiences neck pain and continues to suffer from pain radiating down to his extremities. Plaintiff's neck pain has compromised his ability to engage in recreational activities, and has become a constant source of interruption from his work as an analyst at the Federal Reserve Bank of New York.

Plaintiff sued defendant in negligence and an amended complaint impleaded his automobile insurance carrier, GEICO Insurance Company (GEICO), since plaintiff would be entitled to Uninsured Motorist (UM) benefits under the GEICO policy should the phantom driver be found negligent. Discrediting defendant's proofs, the jury found him 100% liable and awarded plaintiff $500,000 in compensatory damages which, together with prejudgment interest, amounted to a judgment of $572,595.58.

Defendant moved for a new trial, arguing the trial judge erred in instructing the jury on defendant's insurance coverage, on aggravation of a pre-existing disability, and on "John Doe," the waving motorist. The court denied the motion. This appeal follows.

Defendant raises the following issues for our consideration:

I. THE UNEMPLOYMENT EVIDENCE DID NOT "OPEN THE DOOR" TO UNRELATED EVIDENCE OF LIABILITY INSURANCE COVERAGE.

II. THE COURT ABUSED ITS DISCRETION IN FAILING TO EXPLORE LESS RESTRICTIVE ALTERNATIVES THAN DISCLOSURE OF ...


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