On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2073-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2011
Before Judges Grall and Skillman.
Barbara J. Williams was injured in a three-car collision. The accident occurred when defendant Samantha Ratty, the driver of the car in which Williams was a passenger, stopped to make a turn. Although the driver of the pick-up truck behind Ratty was able to stop, the driver of the vehicle behind the pick-up, defendant Justin J. Deliberis, hit it and pushed it into Ratty's car. Williams sued defendants Ratty and Deliberis to recover non-economic damages, and her claim is subject to the limitation on lawsuit threshold of the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.
Williams dismissed her claim against Ratty with prejudice, and settled her claim with Deliberis.*fn1 This appeal concerns Deliberis's cross-claim for contribution from Ratty, which was tried to a jury. Although the jury allocated ninety percent of the fault to Ratty, the jury determined that Williams did not sustain a permanent injury within the meaning of N.J.S.A. 39A:6A-8(a). Thus, the verdict left Deliberis with no contribution from Ratty.
The trial court denied Deliberis's motions for a directed verdict, judgment notwithstanding the verdict and a new trial on damages. On appeal, Deliberis challenges only those determinations. Because the evidence was not so one-sided as to compel a finding that the accident caused a permanent injury to Williams and other potential causes were shown, we affirm.
This accident occurred on July 29, 2005. The permanent injury Williams alleged was to her cervical spine - a disc herniation at the C6/C7 vertebrae, which was suggested by an MRI performed five days after the accident.*fn2 More than ten years earlier, Williams injured her cervical spine in a jet-ski accident. Five years later, she underwent a C5/C6 spinal fusion. Following the surgery, Williams continued to have some pain in her neck but discontinued all treatment and therapy for her cervical spine. After the July 2005 collision, her neck felt "a little bit worse," and Williams went to the orthopedist who had done her surgery in 1999. In September 2005, Williams fell down a flight of stairs that had ten to fifteen steps. After that fall, her neck pain worsened.
At the time of trial, Williams was taking Motrin for the pain in her neck, was not having physical therapy and had no plans for additional surgery. She was receiving epidural injections as needed. None of Williams's treating physicians testified, and Dr. John H. DeJong gave the only expert testimony.
Dr. DeJong examined Williams in May 2008 after reviewing her medical records, physical therapy data and diagnostic tests, including the 2005 MRI study of her cervical spine. In his opinion, in addition to the spinal fusion at C5/C6, the MRI showed what appeared to be a disc herniation at C6/C7. He concluded that the herniation was subsequent to the spinal fusion and resulted from the motor vehicle accident.
Dr. DeJong also acknowledged that Williams had a "degenerative disc disease," which was evident in her diagnostic tests and could have caused the herniation. He also admitted that the herniation could have been caused by the stress on the disc incident to the spinal fusion, a process which leaves the discs above and below the fusion to perform the movement formerly done by the disc in the area of the fusion.
Deliberis argues that the court erred in denying his motion for a directed verdict because there was no evidence undermining Dr. DeJong's conclusion that the accident caused a permanent injury - a herniation that would not heal. His reliance on Pardo v. Dominguez, 382 N.J. Super. 489, 492-93 (App. Div. 2006) is misplaced. There we concluded that the court erred in granting the defendant's motion for summary judgment because the evidence of a herniated disc was adequate to cross AICRA's threshold. Id. at 492. We did not enter summary judgment in favor of the plaintiff but remanded for further proceedings, and we did not address causation. Id. at 494. Causation, not permanency, is the issue in this case.
In reviewing decisions on motions for a directed verdict, this court, like the trial court in the first instance, must consider the evidence and the reasonable inferences that can be drawn from it in the light most favorable to the party resisting the motion. Frugis v. Bracigliano, 177 N.J. 250, 269 (2003). If "'reasonable minds could differ,'" the motion cannot be granted. Id. at 269-70 (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). Dr. DeJong presented an opinion on causation but acknowledged two other potential causes - degenerative disease or the stress on the disc as a consequence of Williams's spinal fusion. In short, because his testimony left room for disagreement as to whether the preponderance of the evidence established that the accident was a significant contributing factor, the motion for a directed verdict was properly denied.
We turn to consider the denial of a new trial. On reviewing that claim, we may not reverse "unless it clearly appears that there was a ...