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Barreres v. Salcedo


October 27, 2010


On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. L-5648-07.

Per curiam.


Argued September 21, 2010

Before Judges Wefing and Payne.

Plaintiff appeals from a trial court order denying his motion for a new trial or additur.*fn1 After reviewing the record in light of the contentions advanced on appeal, we affirm.

Richard Barreres was a captain in the North Hudson Regional Fire Department. He filed suit seeking damages for injuries he said he incurred in a fall that took place while fighting a fire in June 2006 at premises owned by defendants Nancy and Humberto Salcedo. Plaintiff does not recall the circumstances of his accident. He regained consciousness at the Jersey City Medical Center, where he was hospitalized for two days. He spent a few days at home and then was hospitalized for another two days at Chilton Memorial Hospital. He eventually underwent separate surgeries on his right wrist, left ankle, and left knee. He said he also injured his neck, lower back and left shoulder in the incident. He said he was no longer able to engage in the physically strenuous job of firefighting and not able to engage in the active life style that he had pursued prior to the accident. He had been cleared to return to work after approximately two months but was on light duty. Eventually, when he was not able to return to active firefighting, he was placed on disability. He testified that he was still being treated by physicians for pain.

Defendants disputed the extent of his injuries. They noted that the doctors to whom the fire department referred plaintiff cleared him to return to work in approximately two months and that they did not recommend any surgery. Defendants noted that each of defendant's three surgeries was performed on a same-day basis, requiring no hospitalization.

Plaintiff's expert witness, Jen F. Lee, M.D., testified that plaintiff had arthroscopic surgery to his right wrist, which revealed a torn ligament and cartilage. Plaintiff also had arthroscopic surgeries to his ankle and knee, which involved debridement. Dr. Lee related plaintiff's injuries, and his need for surgery, to the accident of June 2006 and said plaintiff suffered from residual limitations. Dr. Lee did not perform these surgeries and saw plaintiff approximately two years after the surgeries had been completed.

Defendants presented Sebastian Adibe, M.D., as their expert witness. Dr. Adibe testified that he examined plaintiff in June 2008 and that the results of his orthopedic evaluation were normal. During the course of his testimony, Dr. Adibe expressed the opinion that each of the three surgeries which plaintiff underwent was medically unnecessary. Plaintiff's counsel objected to this testimony, contending that Doctor Adibe did not state that opinion in the written report he had submitted following his examination. The trial court overruled this objection.

At the end of the trial, the jury returned an award in plaintiff's favor for pain and suffering for $20,000. The parties had stipulated to compensatory damages for plaintiff's medical expenses of $42,043.56, the amount of the lien asserted by the workers' compensation carrier, resulting in a total judgment for $62,043.56. Plaintiff moved for a new trial or additur, and the trial court denied that motion. This appeal followed.

Plaintiff argues on appeal that the trial court erroneously allowed Dr. Adibe to express the opinion as to lack of necessity for these surgeries when that opinion was not set forth in his report. We reject this contention.

We have no dispute with the general principle upon which plaintiff relies, that "[a]n expert's testimony at trial may be confined to the matters of opinion contained within the expert's report." Mauro v. Owens-Corning Fiberglass Corp., 225 N.J. Super. 196, 206 (App. Div. 1988). Further, we concur that it can be appropriate, if an expert attempts to testify beyond the scope of his or her report, to give a brief continuance to permit the objecting party to have a fair opportunity to meet the unexpected testimony. Gaido v. Weiser, 227 N.J. Super. 175, 192 (App. Div. 1988).

We are satisfied, however, that those principles provide no basis to reverse the trial court's determinations. Here, Dr. Adibe clearly stated in his written report of July 7, 2008, that his orthopedic examination was normal, with no tenderness, spasm or restriction in motion, and that in his opinion plaintiff had suffered relatively minor injuries from his fall from which he had fully recovered. We agree with the trial court that Dr. Adibe's conclusion that plaintiff's surgeries were not medically necessary follows logically from the text of his report. Plaintiff did not depose Dr. Adibe prior to trial to explore in greater depth his opinions with respect to plaintiff's injuries and medical care and treatment.

Further, we are also satisfied that plaintiff was not unfairly prejudiced by this testimony. Plaintiff had already presented the testimony of Dr. Lee, who had explained to the jury in detail his reasons for his opinion that the surgeries were all medically called for and were causally related to the accident of June 2006. Contrary to plaintiff's contention that his cross-examination of Dr. Adibe was hampered because he was surprised by this testimony, our review of the trial transcript shows that plaintiff's counsel conducted a vigorous cross-examination of Dr. Adibe.

The jury was confronted with a clear conflict in these two opinions. It was up to the jury to resolve that conflict.

The order under review is affirmed.

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