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Joseph Ingrao v. Daniel Goncalves and Sousa Hardwood Floor Refinishing

June 6, 2011

JOSEPH INGRAO, PLAINTIFF-RESPONDENT, AND PAULA INGRAO, PLAINTIFF,
v.
DANIEL GONCALVES AND SOUSA HARDWOOD FLOOR REFINISHING, INC., DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2263-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2011

Before Judges Lisa, Sabatino, and Alvarez.

After a jury trial in this personal injury case arising out of a motor vehicle accident, plaintiff Joseph Ingrao*fn1 was awarded $250,000 in compensatory damages, plus prejudgment interest. Defendants now appeal the award and seek a new trial on damages because of various asserted trial errors. We affirm.

I.

We briefly state the pertinent facts. In doing so, we say little about the conduct of the respective motorists, as defendants before trial stipulated their negligence and their liability for causing the accident.

On the morning of March 27, 2008, defendant Daniel Goncalves was driving a Ford Econoline owned by his employer, defendant Sousa Hardwood Floor Refinishing, Inc., when he failed to stop at a red light. Defendants' van struck a Toyota Camry owned and operated by plaintiff Joseph Ingrao. Plaintiff, an electrical engineer for the United States Army, was driving his Toyota on his way to work at Fort Monmouth.

In his trial testimony, plaintiff described the mechanics of the accident as follows:

What happened was the light had turned red for the other side. It's one of those delayed lights. And this light van came flying -- well, came going through the red light, hit a car that had started out of Wyckoff Road which did a 360[-degree spin] and went about three cars behind me which projected him straight on to me, took out the light post that I was looking at for the red light. Thank goodness, that [post] didn't hit the car. And it came head on to me, which I went into the guy behind me, and there were seven cars [that were damaged] at the end of the day.

An ambulance arrived shortly thereafter, but plaintiff declined medical treatment at the scene.

Four days after the accident, on March 31, 2008, plaintiff went to his primary care physician, principally complaining of shoulder and neck pain and also numbness or tingling in his right hand. Plaintiff's symptoms did not abate. Consequently, eighteen days later, on April 18, 2008, plaintiff had an appointment with Cary Glastein, M.D., a Board-certified orthopedic and spinal surgeon.

Dr. Glastein testified that, at the time of plaintiff's initial visit in April 2008, he was of the opinion that plaintiff "had some radiculopathy of the cervical or lumbar spine. There [were] symptoms of pain radiating into his arm, pain radiating into his legs. There certainly was clinical suspicion of disk herniations and [he] felt that MRI[s], which were imaging studies[,] were appropriate."

Dr. Glastein ordered MRIs of plaintiff's cervical and lumbar spine. According to the radiologist's written findings and Dr. Glastein's personal review of the MRI films, the studies showed that plaintiff had two disc herniations: one in his cervical spine at C5-6 and a second in his lower thoracic spine at T11-12. Dr. Glastein concluded that plaintiff, who denied having previous neck or back injuries, had sustained the disc herniations as a proximate result of this motor vehicle accident. Dr. Glastein also opined that the films did not indicate to him that the herniations were the result of a degenerative condition.

Dr. Glastein referred plaintiff for treatment with a local chiropractor. The chiropractor treated plaintiff for about six months. Meanwhile, plaintiff had several more appointments with Dr. Glastein. On plaintiff's fourth and final visit with Dr. Glastein in September 2008, the surgeon observed that plaintiff "did seem to be improving," and consequently discharged him from his care.

Despite having been discharged by Dr. Glastein, plaintiff continued to have pain in his neck, back, and hand, which he claims affected his daily life activities. According to his testimony, plaintiff would experience pain when sitting for prolonged periods on airplanes, which was unavoidable because his job frequently required him to travel overseas. He also felt pain when lifting more than fifteen pounds with his right hand. He could no longer mow the lawn, and found it painful to carry buckets while doing house and yard work at home. He was unable to help his son move to a college apartment, as he had done in the year before the accident, because the luggage was too difficult to lift.

Dr. Glastein's expert testimony was presented to the jury in a videotaped de bene esse deposition. In his testimony, Dr. Glastein confirmed his diagnosis that plaintiff has two herniated discs and that the herniations were caused, within a reasonable degree of medical probability, by the motor vehicle accident. Dr. Glastein described a disc herniation as "a very serious injury," which "becomes more symptomatic as the patient ages." His prognosis for plaintiff's neck and thoracic region was that the injuries were permanent, and that plaintiff will have them "for the rest of his life." Dr. Glastein noted that, for patients with a herniated disc, "even though they improve with treatment, in all probability some pain in the neck and mid to lower back will always be present."

Defendant's sole witness at trial was a competing medical expert, Francis DeLuca, M.D., also a Board-certified orthopedic surgeon. Dr. DeLuca examined plaintiff on November 11, 2009.

Based on his examination and his review of various medical records of plaintiff, including the radiologist's MRI report, Dr. DeLuca concluded that plaintiff had not sustained any permanent injury as a result of the motor vehicle accident.

Dr. DeLuca found no objective basis to substantiate plaintiff's claims of injury. The defense expert characterized plaintiff, upon physical examination, as "totally normal with no evidence of any neurologic deficit or radioculopathy[.]" Dr. DeLuca found absent the kinds of objective indicia that commonly would accompany a permanent injury from a herniated disc, such as muscle spasm, radiating pain or headaches, weakness, atrophy, tenderness, changes in reflexes or changes in sensation and feeling. Dr. DeLuca also explained that discs can be herniated for reasons other than trauma, for instance, degeneration.

After receiving the customary jury charges for a damages-only auto negligence case (with a no-limitation-on-lawsuit option under N.J.S.A. 39:6A-8b), the jurors rendered a verdict unanimously concluding that defendants' negligence was the proximate cause of plaintiff's injuries. The jurors, also unanimously, awarded plaintiff $250,000 in compensatory damages. The trial judge issued a corresponding final judgment on September 2, 2010, awarding plaintiff $250,000 plus prejudgment interest.

Defendants then moved for a new trial on various grounds, which we shall discuss, in Part II, infra, of this opinion. The trial judge, Craig Wellerson, denied the motion in all respects, concluding that the verdict was "reflective of the damages that the plaintiff placed before the fact finder[s]," "that it was [within the jurors'] purview to come to that conclusion[,]" and that "the verdict amount does not shock [the court's] conscience."

This appeal followed.

II.

In seeking to set aside the verdict, defendants argue on appeal that: (1) plaintiff's counsel prejudiced the jury by referring, during his summation, to defendant Goncalves' absence from the trial; (2) the court erred in allowing plaintiff to testify about his treatment by a chiropractor in Maryland; (3) the court improperly precluded Dr. DeLuca from testifying about the enlargements of the MRI films presented by plaintiff; (4) the jury was tainted because the MRI enlargements were inadvertently brought into the deliberations room; (5) plaintiff's counsel improperly referred to a letter from defense counsel when cross-examining Dr. DeLuca; (6) the verdict was the product of cumulative errors; and (7) the damages award was clearly excessive.

None of these arguments, either singularly or in combination, mandates reversal and a new trial. We discuss each of them in turn. Before doing so, we recite some overarching principles concerning the limited scope of our ...


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