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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 2007 and December 2007 MRIs.

Dr. Swartz testified that there was a mild bulging disc at C4-5 in the April 2007 exam, and that in the follow-up December 2007 exam, there was also a mild bulge at C5-6, but the change was not significant. On cross-examination, defendant's counsel asked Dr. Swartz, "Is there any indication in your findings . . . that would support a diagnosis of radiculopathy within a reasonable degree of medical probability?" Dr. Swartz answered in the negative, explaining, "there's no asymmetry and there's no compromise of the neural foramen so there's nothing consistent with radiculopathy."

Defendant filed a motion in limine in April 2010, seeking to dismiss plaintiff's complaint on the basis that plaintiff failed to satisfy the verbal threshold requirements of N.J.S.A. 39:6A-8(a). Plaintiff filed two motions in limine, seeking to strike various portions of the deposition testimony of her own experts, Dr. Best and Dr. Swartz.

Oral argument of the motions was scheduled for May 7, 2010, three days before the scheduled trial date of May 10, 2010. Prior to oral argument, the trial judge, Judge Peter A. Buchsbaum, provided counsel with a written memorandum of his preliminary decision on the motions, which included a preliminary ruling to dismiss plaintiff's complaint. Judge Buchsbaum memorialized the reason the motion to dismiss was being considered so close to the trial date.

While ordinarily such a motion on the eve of trial would be dismissed as an untimely summary judgment application, this case is different in that all the plaintiff's expert testimony has already been recorded in video depositions, and thus all the trial evidence is already available to the Court. Given this circumstance, in the interests of efficiency, both sides have requested that this motion be decided by the Court before a jury is empanelled . . . .

In the preliminary memorandum decision, the court denied the majority of plaintiff's motion in limine with regard to Dr. Best's testimony, striking only portions relating to plaintiff's lower back complaints, which were not at issue in this case. The court also denied plaintiff's motion in limine with regard to Dr. Swartz's testimony.

The court next turned to defendant's motion to dismiss. The court found there was "no objective evidence of a permanent injury to a body part that will not function normally based on objective evidence." Pursuant to Agha v. Feiner, 198 N.J. 50 (2009), Dr. Best was not qualified to give opinions based on MRIs. However, even if she were permitted to give such an opinion, a link between the post-accident MRI and plaintiff's condition was not established "to a reasonable degree of medical probability" in light of Dr. Best's admission that she could not ascertain the origination of plaintiff's injury. The memorandum reflected the court's preliminary decision to grant defendant's motion because subjective complaints of pain are insufficient to vault the verbal threshold under Davidson v. Slater, 189 N.J. 166, 181 (2007).

Although the trial was scheduled, after many adjournments, for three days later, plaintiff's counsel stated during oral argument, "We may not have in fact all the expert testimony yet." An exchange between the judge and plaintiff's counsel ensued as follows:

THE COURT: The trial is Monday. When was this coming? [COUNSEL]: Well, let me tell you.

THE COURT: The only reason I allowed this motion to be heard was everybody agreed this motion could determine whether we go to trial or not. [COUNSEL]: Well, we have another expert, your Honor.

THE COURT: Which we all agreed --[COUNSEL]: We have another expert, your Honor, a chiropractor. Dr. LaBarre produced an expert report, cc was mailed --THE COURT: Why wasn't that in this motion? [COUNSEL]: Now, the plaintiff chose a strategy not to use Dr. Best [sic], now we are choosing not to use Dr. Best, we are going to use Dr. LaBarre.

THE COURT: I have this motion in front of me which everyone agreed would be treated as an appropriate motion. I am not going to deal with anything on the record. That was your choice, the fact that you now tell me there was someone else out there. [COUNSEL]: But there is no prejudice to the defendant.

THE COURT: He files a motion that looks valid and you are telling me there is something else out there you didn't produce on a motion? [COUNSEL]: I am producing it now on the record.

THE COURT: Well, that's too late. [COUNSEL]: How is it too late? We haven't empanelled a jury, your Honor.

THE COURT: It is too late because I am dealing with what everyone agreed to be an appropriate motion. [COUNSEL]: What's the rush to judgment, your Honor? We haven't even picked the jury yet. THE COURT: Because I have got to -- why didn't you include it in your papers? [COUNSEL]: Because we were choosing to pursue -- there wasn't a decision made on that yet. It is the Plaintiff's strategy to choose what expert they want to use.

THE COURT: [Counsel], that is --[COUNSEL]: We have another expert. He knows about it. He never chose to take his deposition. We chose not to put him on video.

THE COURT: Why didn't you put his report in?

This is crazy.

During the course of oral argument, plaintiff's counsel stated he wanted to make a "basically informal motion . . . now to amend the witness list" to include Dr. LaBarre and drop Dr. Best. Plaintiff's counsel contended there was no prejudice to defendant because the defense had known about Dr. LaBarre but chose not to depose him. He stated further that the "only problem" was that Dr. LaBarre was on vacation, would not return until the middle of the next week, and therefore would not be available until then.

Defense counsel objected to the proposed substitution. He stated he had received an amended witness list from plaintiff's counsel that morning, that he had deposed the other experts because they were identified as witnesses and Dr. LaBarre was not. Further, he noted the case had been scheduled for the previous autumn and was adjourned at plaintiff's request so they could videotape their experts' testimony.

The court refused to allow the substitution of Dr. LaBarre as plaintiff's expert witness and entered judgment in accordance with his preliminary ruling, dismissing the case. Plaintiff presents the following issues in this appeal:

POINT I

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN DENYING PLAINTIFFS' REQUEST TO CALL AND USE THEIR ALTERNATE EXPERT MEDICAL/CHIROPRACTIC WITNESS (DR. LABARRE) AT TRIAL WHEN (1) THE EXPERT WAS PREVIOUSLY IDENTIFIED IN DISCOVERY; (2) THE PLAINTIFF PROVIDED AN EXPERT REPORT AND CURRICULUM VITAE OF DR. LABARRE IN DISCOVERY; (3) THE REPORT AND CV OF DR. LABARRE WAS PART OF PLAINTIFFS' TRIAL EXHIBIT LIST; AND (4) A JURY WAS NOT E[M]PANELED

POINT II

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN DENYING PLAINTIFFS' MOTION IN LIMINE TO STRIKE SELECTED PORTIONS OF PLAINTIFFS' RADIOLOGY EXPERT DR. SWARTZ'S TRIAL CROSS EXAM TESTIMONY (PAGE 19 LINES 12 THROUGH 19), WHEN SAID TESTIMONY WAS (1) BEYOND THE SCOPE OF DIRECT EXAMINATION; (2) BEYOND THE SCOPE OF DR. SWARTZ'S EXPERTISE; (3) THE PROBATIVE VALUE OF SAID TESTIMONY WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE, CONFUSION OF THE ISSUES OR MISLEADING THE JURY; AND (4) THE TESTIMONY ELICITED ON CROSS EXAM WAS NEITHER CONTEMPLATED NOR REQUIRED BY LAW UNDER BRUN v. CARDOSO, 390 N.J.SUPER. 409 [] ([APP. DIV.] 2006) OR AGHA v. FEINER, 198 N.J. 50 [] (2009)

POINT III

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHEN DENYING PLAINTIFFS' MOTION IN LIMINE TO STRIKE SELECTED PORTIONS OF PLAINTIFFS' MEDICAL/CHIROPRACTIC EXPERT DR. KELLEY M. BEST'S TRIAL CROSS EXAM TESTIMONY, WHEN (1) SAID TESTIMONY WAS BEYOND THE SCOPE OF DIRECT EXAMINATION; (2) SAID TESTIMONY WAS ARGUMENTATIVE; (3) THE PROBATIVE VALUE OF SAID TESTIMONY WAS SUBSTANTIALLY OUTWEIGHED BY THE RISK OF UNDUE PREJUDICE, CONFUSION OF THE ISSUES OR MISLEADING THE JURY; AND (4) ALTERNATIVELY IF SAID TESTIMONY WAS ADMISSABLE, IT IS SUBJECT TO A CREDIBILITY DETERMINATION BY THE JURY

POINT IV

WHETHER THE TRIAL COURT'S GRANT OF THE DEFENDANT'S MOTION IN LIMINE FOR JUDGMENT WAS ERRONEOUSLY GRANTED WHEN ACCEPTING AS TRUE ALL EVIDENCE SUPPORTING THE PLAINTIFFS/APPELLANTS' CASE AND GIVING THE PLAINTIFFS/APPELLANTS THE BENEFIT OF ALL FAVORABLE INFERENCES, REASONABLE MINDS COULD DIFFER ON THE ISSUE OF WHETHER O[R] NOT THE PLAINTIFF SUFFERED INJURIES THAT SATISFY THE PERMANENCY THRESHOLD IN N.J.S.A. 39:6A(8)(a)

After carefully considering the record and briefs of counsel, we are satisfied that none of these arguments has merit.

We turn first to the court's denial of plaintiff's request to add a new expert witness three days before trial. Generally, we defer to a trial court's decision relating to matters of discovery, applying an abuse of discretion standard. Pomerantz Paper Corp. v. New Cmty. Corp., ____ N.J. ____ (July 25, 2011), slip op. at 32; Bender v. Adelson, 187 N.J. 411, 428 (2006); Smith v. Schalk, 360 N.J. Super. 337, 344-46 (App. Div. 2003).

Plaintiff was required to identify the experts she would rely upon in answers to interrogatories. An amendment to those answers was governed by Rule 4:17-7, which states in pertinent part:

Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.

Plaintiff did not make a timely motion to amend her answers to add Dr. LaBarre as a witness. Instead, her request was made by virtue of an informal, oral request three days before trial.

No representation, let alone certification, was provided to the court that the information requiring this amendment "was not reasonably available or discoverable by the exercise of due diligence" in a timely manner.

The facts revealed in the record make it evident that such a certification could not have been produced. The deficiencies in the opinions of Dr. Best and Dr. Swartz that led plaintiff to attempt to rely upon a new expert were readily ascertainable to plaintiff in the exercise of reasonable diligence. Indeed, it was the information regarding plaintiff's prior accidents and injuries - known and withheld by plaintiff - that proved the undoing of Dr. Best's opinion when revealed to her by defense counsel at her deposition. There were, then, no legitimate problems here that caused the late revelation of a new expert. This case is therefore distinguishable from both Ponden v. Ponden, 374 N.J. Super. 1 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), and Tucci v. Tropicana Casino and Resorts, Inc, 364 N.J. Super. 48 (App. Div. 2003), relied upon by plaintiff.

Moreover, plaintiff could have made a motion to add Dr. LaBarre as a witness well before any of plaintiff's experts were deposed. Dr. LaBarre treated plaintiff since October 2007 and supplied a written report to plaintiff's counsel in July 2009, in which he set forth the opinions that plaintiff hoped to rely upon. Therefore, plaintiff had the necessary report in hand ten months before the testimony of her designated experts was videotaped for use as evidence at trial. Instead, plaintiff chose to proceed with her designated experts. She did not attempt to identify Dr. LaBarre as an expert until after receiving the court's preliminary decision on the defense motion to dismiss her complaint, and did not ask to add him as a witness until engaged in colloquy with the court at oral argument, when it was apparent the motion would be granted.

That Dr. LaBarre had not been properly and timely identified was purely a function of plaintiff's choice. Plaintiff's counsel admitted to the court, "We chose not to put him on video." Plaintiff's brief also acknowledges that it was "a strategic decision not to present the testimony of Dr. LaBarre in addition to Dr. Best even though Dr. LaBarre's records, expert report and curriculum vitae was provided during discovery to defense counsel . . . ." (emphasis added).

Plaintiff's strategic decision unfairly prejudiced defendant, rendering her unprepared to meet new evidence designed to satisfy the verbal threshold despite diligent trial preparation that included the depositions of experts plaintiff did identify. In a similar case where a plaintiff provided "late blooming evidence" that unfairly put the defendant on the defensive on the eve of trial, we rejected the notion that the defendant should have made the late effort to respond to the new evidence and stated:

[T]he point is that this case should have been fully trial-ready when it was listed in May 2001, then its fourth listing. If parties must use last minute continuances to level a precipitously upset playing field, then gamesmanship has truly re-emerged in the trial of cases to the detriment of the litigants and the public. [Smith, supra, 360 N.J. Super. at 345.]

Here, too, if the court had permitted the eleventh-hour shift in experts, gamesmanship would have prevailed and defendant would have been prejudiced. Under the circumstances, it was not an abuse of discretion for the court to deny plaintiff's motion to add a new expert witness.

We are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in Judge Buchsbaum's written memorandum decision.

Affirmed.


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