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Calimano v. Brzychey

September 8, 2010

LYNN CALIMANO, PLAINTIFF-APPELLANT, AND THOMAS CALIMANO,*FN1 PLAINTIFF,
v.
JOSEPH BRZYCHEY, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-5675-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2010

Before Judges Axelrad and Sapp-Peterson.

Plaintiff, Lynn Calimano, appeals from a no cause jury verdict arising out of injuries she reportedly sustained following a motor vehicle accident. On appeal, plaintiff contends:

POINT I.

THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE OPINIONS OF NON-TESTIFYING DOCTORS AND THE CUM[]ULATIVE EFFECT OF THESE IMPROPER EVIDENTIARY RULINGS HAD A CLEAR CAPACITY TO RESULT IN AN UNJUST VERDICT.

POINT II.

THE COURT'S REFUSAL TO ALLOW THE PLAINTIFF TO USE A DEMONSTRATIVE DIAGRAM OF HER SURGICAL PROCEDURE WAS IMPROPER AND RESULTED IN A MISCARRIAGE OF JUSTICE.

POINT III.

THE TRIAL COURT'S REFUSAL TO MOLD THE JURY INSTRUCTION AS REQUESTED BY THE PLAINTIFF-APPELLANT WAS IMPROPER AND RESULTED IN A MISCARRIAGE OF JUSTICE.

POINT IV.

THE TRIAL COURT ERRED IN DENYING THE PLAINTIFF'S MOTION FOR A NEW TRIAL BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF [THE] EVIDENCE AND RESULTED IN A MISCARRIAGE OF JUSTICE.

We have considered the points raised in light of the record, submissions and arguments of counsel, and we reject all of the arguments advanced and therefore affirm.

We recite only those facts from the record relevant to the issues before us. The accident occurred on December 7, 2004, when plaintiff was rear-ended by a van driven by defendant, Joseph Brzychey.*fn2 Plaintiff claims that she injured her cervical spine as a result of the accident. This accident did not represent the first time plaintiff had sustained an injury to her cervical spine. In August 1997, plaintiff injured her neck in a roller coaster accident and, as a result, commenced treatment with a chiropractor. Then, in October 2002, plaintiff injured her neck while making her grandmother's bed when she "moved the wrong way." She underwent chiropractic treatment, but the treatment did not alleviate her pain. She then commenced treatment with a pain management physician, Dr. Shah Nagendra. She treated with Dr. Nagendra from November 2002 until approximately May 2004. At that time, she felt essentially symptom-free. Following the December 7 motor vehicle accident, plaintiff resumed treatment with Dr. Nagendra eleven days later, but she experienced no relief from the various treatment modalities he performed, including injections. She then consulted with a neurosurgeon, Dr. Jay Moore, who recommended surgery, ...


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