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Christine M. Davison and Paul Davison v. Bette M. Mayers

September 6, 2011

CHRISTINE M. DAVISON AND PAUL DAVISON, PLAINTIFFS-APPELLANTS,
v.
BETTE M. MAYERS,
DEFENDANT-RESPONDENT,
AND JOHN KENDALL, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-2-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 29, 2011

Before Judges Yannotti and Espinosa.

After defendant moved to dismiss the complaint in this verbal threshold case, plaintiffs sought to strike portions of their own experts' testimony and substitute a new chiropractic expert three days before trial. Plaintiffs appeal from the dismissal of their complaint and denial of their motions. We affirm.

Plaintiff Christine M. Davison*fn1 was injured in an automobile accident on January 5, 2006. In January 2008, she filed a complaint against defendant Bette M. Mayers,*fn2 alleging that, as a result of defendant's negligence, plaintiff "sustained serious and debilitating injuries including, but not limited to, cervical spine injury, thoracic spine injury, contusions, psychological injury and damage to her nerves and nervous system, some or all which is permanent in nature, have not healed to function normally and will not heal to function normally with further medical treatment." Defendant stipulated liability.

Prior to the accident, plaintiff was a patient of Kelly Best, D.C., and received treatment for headaches and lower back pain. She saw Dr. Best after the accident, on January 9, 2006, and complained of pain going down her right arm, among other issues. Plaintiff stopped seeing Dr. Best in September 2007. She began to treat with Matthew LaBarre, D.C., in October 2007, approximately one and one-half years after the accident, and continued to receive treatment from him.

Pursuant to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, plaintiff was required to meet the verbal threshold requirement of N.J.S.A. 39:6A-8(a). Plaintiff submitted a certificate of permanency by Dr. Best in April 2008. Dr. Best certified that, as a result of the accident with defendant, plaintiff suffers from "cervical disc bulging at C4-5, cervical radiculopathy into arm, cervical sprain/strain, thoracic spine sprain/strain, post traumatic headaches, severe bruising/contusions to both lower extremities." It was Dr. Best's "opinion within a reasonable degree of chiropractic/medical probability, that [plaintiff]. . . sustained a permanent injury in that [plaintiff's] cervical spine has not healed to function normally and will not heal to function normally with further medical treatment."

Plaintiff submitted answers to the form interrogatories for personal injury actions in September 2008. See Interrogatory Forms, Form A, Pressler, Current N.J. Court Rules, Appendix II at 2244 (2008). Question number seven of the form interrogatories requests the name of each treating health care provider and the production of "all written reports provided to you by any such health care provider whom you propose to have testify in your behalf." Plaintiff answered by merely referring to her response to defendant's request to produce documents.*fn3 In her answer to another interrogatory, plaintiff identified Dr. LaBarre, as her current treating chiropractor, but did not indicate that he would be a witness or provide any written report by him.

Dr. LaBarre later provided plaintiff's counsel with a written report, dated July 2, 2009. Dr. LaBarre stated that plaintiff "suffered an injury to her cervical discs which is evident by the persistent radicular pain into her right arm and supported by the cervical MRI." Dr. LaBarre opined "within a reasonable degree of chiropractic/medical probability that the injuries. . . are permanent, and have not healed and will not heal to function normally with further medical treatment."

Following receipt of this report, plaintiff's counsel sent a letter to defense counsel, dated July 8, 2009, making a settlement offer, and enclosing a supplemental report from Dr. Best and the "email report of Dr. LaBarre." The letter also stated that Dr. Best's and Dr. LaBarre's curriculum vitae would "be produced soon."

Trial was originally scheduled for November 30, 2009, but was adjourned several times. Plaintiff decided to videotape the deposition testimony of her experts rather than present live testimony at trial. She requested and was granted adjournment of the trial to do so. Videotaped depositions of plaintiff's experts, Joel Swartz, M.D., and Kelly Best, D.C., were taken in April 2010.

In April 2010, plaintiff submitted a proposed exhibit list that included the July 2, 2009 report of Matthew LaBarre, D.C. She also submitted a proposed witness list which included Kelly Best, D.C., and Joel Swartz, M.D., but did not include Dr. LaBarre.

Dr. Best testified at her deposition that her examination of plaintiff revealed plaintiff "was positive in the neck area for injuries to that area, and in the middle and low back, as well." Plaintiff also had numbness in her right arm. Dr. Best initially attributed the numbness to a possible herniated disc, but the MRI revealed that it was a bulging disc. According to Dr. Best, the bulging disc diagnosis corresponds to the radiculopathy and pain in plaintiff's right arm. Additionally, the bulging at C5-6, as discovered by the December 2007 follow-up MRI, also caused the cervical radiculopathy going down plaintiff's right arm. Dr. Best testified that during her treatment of plaintiff, the radiculopathy in plaintiff's arm did not get any better, and that she believed plaintiff suffered a permanent injury.

Dr. Best had stopped treating plaintiff in September 2007. On cross examination, she admitted she had no knowledge of plaintiff's medical condition as of the time of the deposition in April 2010.

Dr. Best was also unaware of prior injuries suffered by plaintiff. It was revealed during cross examination that plaintiff was in a motor vehicle accident in 1999 and diagnosed with cervical sprain and strain. In July 2001, plaintiff notified her general practitioner that "she had neck pain, and had it for years, with that neck pain going into her right shoulder and arm[.]" Dr. Best admitted that the description plaintiff provided her general practitioner was consistent with a description of radiculopathy, and that she could not now state "within a reasonable degree of chiropractic probability that what [plaintiff is] complaining about. . . is directly related to the car accident in January 2006[.]"

On re-direct, Dr. Best clarified that, prior to the January 2006 accident, plaintiff complained of neck pain during only one visit and never complained of the radiculopathy-type pain described after the accident. During re-cross examination of Dr. Best, defendant's counsel raised additional parts of plaintiff's medical history, i.e., that she was sent for cervical x-rays in 2001 and 2004 "because of worsening and chronic neck pain from the motor vehicle accident several years" earlier; that in September 2005, plaintiff "complained to her general practitioner about worsening neck pain from the [1999] motor vehicle accident;" that she was diagnosed in 2005 with degenerative joint disease in her neck and referred to an orthopedic specialist; and that in October and November 2005, plaintiff's general practitioner made references in plaintiff's records to "arthritis and tenderness in the neck and the cervical spine[.]" Dr. Best had no knowledge of these facts. Faced with this history previously unknown to her, Dr. Best testified that she did not know if the permanency of the injury was connected to the January 2006 accident.

Dr. Swartz testified for plaintiff as an expert qualified to interpret plaintiff's April ...


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