On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1258-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued June 6, 2011
Before Judges R. B. Coleman and Lihotz.
Plaintiff Angela Collado appeals from a no cause of action jury verdict dismissing her personal injury complaint against defendants Mardy Roman and Gloria Tan. Defendants admitted liability and trial proceeded on the issues of plaintiff's injuries and damages. On appeal, plaintiff argues various evidentiary rulings by the trial judge prejudiced her case, warranting a new trial. We disagree and affirm.
The automobile accident occurred on March 12, 2005. Plaintiff was stopped at a traffic signal on Secaucus Road (County Road 678) waiting to turn right onto the ramp for Tonnele Avenue (Route 1/Route 9 South) in Jersey City, when her vehicle was struck in the rear by an automobile owned by Tan and operated by Roman. According to plaintiff, the vehicle operated by Roman pushed her vehicle five feet forward even though she had applied her brakes at the time of the accident.
After the accident was documented by police, plaintiff reported to work. After a few hours she developed a headache, pressure in her shoulders and other pains that forced her to leave early. The following day, plaintiff continued to suffer from a headache and felt general discomfort throughout her body. When her headache symptoms worsened on March 14, 2005, she sought treatment at St. Mary's Medical Center's emergency room. Plaintiff was treated for her complaints of severe headaches. Plaintiff was prescribed pain medication and discharged the same day. In the ensuing six months, Dr. Anthony Scarpello provided plaintiff with a regular chiropractic treatment for pain in her neck, lower back, arm, and jaw, which included adjustments to the bone, electronic stimulation, manipulation under anesthesia (MUA) and physical therapy.
Plaintiff recovered from most of her injuries; however, the pain in her lower back persisted. Also, in the latter months of 2005 she began experiencing weakness in her legs for the first time, causing her to fall. She experienced these difficulties once every six months. On May 17, 2009, plaintiff fell as she was walking outside of her home towards her door. She explained she did not trip or slip; her legs just gave out. Unlike the previous falls she had suffered, plaintiff felt a "tremendous amount of pain" up and down her entire left leg before she fell and needed assistance to return to her feet. Because she felt severe pain and was unable to stand on her own, plaintiff was taken to Meadowlands Hospital for evaluation.
Plaintiff was diagnosed with a torn ACL in her left knee which was repaired by two surgeries on September 1 and December 8, 2009. Plaintiff used crutches and a cane in the weeks following each surgery, was out of work for seven months and at the time of trial has a four and one-half inch scar at the surgery site.
Plaintiff filed her negligence complaint against defendants on March 9, 2007. At trial, defendants stipulated their liability and plaintiff's proofs were limited to her claim for damages for injuries suffered to her lower back and left knee.
During trial, each side presented expert medical testimony analyzing plaintiff's injuries and their cause. Teofilo Dauhajre, M.D., an orthopedic surgeon, testified on behalf of plaintiff; defendants' orthopedic expert was Kevin J. Egan, M.D. Each expert based his opinion on two office examinations of plaintiff and the review of her diagnostic test results. The experts offered differing diagnoses of plaintiff's underlying medical conditions and the cause of her torn ACL.
After a four day trial, the jury returned a verdict in favor of defendant. The jury's answers to the posed interrogatories reflected it found plaintiff proved she sustained injury to her left knee or lower back as a result of the accident, yet failed to prove the injuries suffered in the accident were permanent. On August 20, 2010, the trial court entered an order for judgment of no cause of action.
On appeal, plaintiff challenges certain evidentiary rulings by the trial judge and asserts omissions in the jury charge were error. We examine each of these claims.
Plaintiff argues the trial court erred in barring her use of prior deposition testimony of Dr. Egan. She maintains "[h]ad the plaintiff been permitted to confront the doctor with prior inconsistent testimony given under oath in other proceedings, such inconsistencies would not have only been substantively admissible under [N.J.R.E.] 803(a)(1), but would also have been before the jury for its consideration in determining whether plaintiff's injuries were permanent and causally related to the accident." Plaintiff contends the trial court's erroneous denial "depriv[ed] the jury of the opportunity to consider matters that ...