On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5801-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2010
Before Judges Axelrad, R.B. Coleman, and Lihotz.
Defendants Patricia Livingston and County of Hudson appeal from various orders of the Law Division memorializing a jury verdict in favor of plaintiff, Carol Lintao, who was struck by a motor vehicle driven by Livingston and owned by the County. The jury allocated ninety-five percent of the liability to Livingston and five percent to plaintiff; determined that plaintiff had incurred medical expenses of $90,878; and awarded $2,000,000 for pain, suffering, disability, impairment and loss of enjoyment of life. The court molded the verdict and entered an order of judgment dated August 11, 2009, which was amended on September 11, 2009, to include prejudgment interest. A second order, dated September 11, 2009, denied defendants' motion for a new trial and to set aside the jury verdict, but granted a stay of enforcement of the judgment, conditioned on the posting of a supersedeas bond in an amount to be determined. Defendants' motion to set aside the order granting prejudgment interest and the imposition of a supersedeas bond was denied by order dated October 9, 2009, and this appeal was then filed.
On appeal, defendants argue the trial court committed reversible error by excluding a non-testifying physician's medical diagnosis contained within a hospital record and by excluding evidence of plaintiff's pre-existing medical conditions. They further argue that the trial court erred by shifting the burden onto them to prove the existence and impact of plaintiff's pre-existing medical conditions and by instructing the jury to that effect. Defendants also argue that public entities and public employees are immunized from prejudgment interest and are excepted from the posting of a supersedeas bond as a condition for a stay of the judgment.
We have carefully considered the arguments of the parties, the facts and the applicable law. We affirm the judgment memorialized and molding the jury's verdict on liability and damages; however, we reverse the September 11 and October 9 orders awarding prejudgment interest and requiring the posting of a supersedeas bond, to the extent the requirement to post the bond is not otherwise moot.
The following testimony and evidence was presented at trial. On February 9, 2006, plaintiff was struck while crossing the street by a six-person passenger van driven by Livingston and owned by Hudson County. The impact knocked plaintiff to the ground causing her to land on her buttocks, with her left arm stretched behind her. Livingston drove plaintiff to the hospital, where plaintiff complained of a shooting pain in her left arm. An x-ray of her wrist revealed that it was fractured in two places. Plaintiff was released from the hospital the same day, without having reported any other problems; however, that night plaintiff's condition worsened. Whereas she had previously complained of pain only in her left arm and neck, the pain in her neck spread to her entire back and buttocks, where it was particularly painful.
The next day, plaintiff went to her general care physician to evaluate a "big bruise" that had developed on her buttocks. Later the same day, plaintiff returned to the hospital for an evaluation of her neck, back, and buttocks and underwent x-rays of her coccyx, lumbosacral spine, and pelvis. The hospital records contain two contradictory reports concerning the x-rays taken during that visit. A radiologist, who did not testify at trial, read the x-rays and issued a report in which he concluded that "[t]he examination shows no evidence of abnormality of the coccyx." Records from the same visit reflect that the emergency room doctor diagnosed plaintiff with a fracture of the coccyx. The emergency room doctor also did not testify at trial.
Plaintiff continued to experience pain in her coccyx. She had difficulty with bowel movements, intercourse, and walking. On March 29, 2006, plaintiff underwent a lumbar MRI, which revealed an acute fracture of her coccyx and damage to the disks in her spine. An evaluating physician later told plaintiff that a coccygectomy was necessary to relieve her pain in her peroneal area and rectum. The coccygectomy dramatically relieved her pain, but made a normal bowel movement impossible without using laxatives.
In October 2006, plaintiff sought treatment for sexual dysfunction, specifically discomfort during intercourse and an inability to have an orgasm. On December 1, 2006, plaintiff filed her personal injury suit against defendants.*fn1
In February 2007, plaintiff became pregnant and on November 1, 2007, gave birth to her fifth child without complications. On February 6, 2008, plaintiff was evaluated by Dr. Victor Borden, an obstetrician/gynecologist retained by defendants. Plaintiff told Dr. Borden that she suffered from lower back, hip, and groin pain; decreased sensation and pain in her left hand; spasms in her back, neck, and lower spine; and significant problems with intercourse, including inability to achieve orgasm and vaginal numbness. After a physical examination and review of her medical records, Dr. Borden concluded that "[plaintiff's] complaints of pelvic pain, in my opinion, cannot be associated with her accident of February 2006. She had a delivery after that date and had she suffered significant pudendal nerve damage in any form, that would certainly have caused significant pain during the delivery process in 2007."
On February 18, 2009, plaintiff was evaluated by Dr. Steven Fiske, an internist and gastroenterologist. Dr. Fiske concluded in his report that plaintiff suffered from pelvic floor dysfunction caused by pudendal nerve damage. He noted that the most common cause of pudendal nerve damage is childbirth, though plaintiff's problems surfaced after the accident. He added that "one could draw a reasonable conclusion that the injury she sustained and the resultant coccygeal surgery were also responsible for her current complaints." Later, Dr. Fiske amended his report to state that the presence of pudendal nerve dysfunction most likely resulted from five vaginal deliveries rather than a specific incident of the coccygeal bone fracture.
At trial, plaintiff and her experts contended that as a result of the accident, plaintiff suffered permanent loss of normal function of: (1) her pudendal nerve, (2) sexual and intestinal function, (3) the cervical spine and C-8 nerve root, (4) the lumbar spine, and (5) her left wrist. Considerable expert medical testimony was introduced to describe the extent of plaintiff's injuries, as well as to establish that those injuries were caused by the February 9, 2006 accident.
The jury returned its verdict in favor of plaintiff, and this appeal ensued.
Defendants argue that the trial court erred by prohibiting cross-examination related to plaintiff's pre-existing medical conditions. Defendants concede the court allowed cross-examination related to plaintiff's history of scoliosis, pelvic obliquity, and one short leg, but contend it erred in prohibiting cross-examination related to plaintiff's prior medical history of pelvic inflammatory disease, ovarian cysts, and laparoscopic procedures, and by later instructing the jury to disregard plaintiff's pre-accident medical history. Plaintiff responds that the trial court properly excluded evidence of plaintiff's prior conditions because defendants failed to present any expert testimony establishing that the pre-existing conditions had any role whatsoever in causing or exacerbating the injuries for which plaintiff sought compensation.
During the defense's cross-examination of plaintiff, who was the first witness called,*fn2 plaintiff's counsel objected on the theory that evidence of plaintiff's prior medical conditions occurring in her back, legs, and pelvic area should be barred under N.J.R.E. 403. Counsel argued that defendants' expert had never opined that any of those prior medical conditions contributed at all to plaintiff's present complaints and symptoms.
N.J.R.E. 403 provides that the trial court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403(a). In addressing the admissibility of evidence of pre-existing injuries in a negligence case, the Supreme Court has stated: the test of admissibility is one of possibility rather than probability and that if each prior accident could have caused the injury, the testimony as to that accident is relevant and admissible provided, of course, there is ...