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Felix Almanzar-Flores v. William H. O'neill

February 10, 2012

FELIX ALMANZAR-FLORES, PLAINTIFF-RESPONDENT,
v.
WILLIAM H. O'NEILL, DEFENDANT-APPELLANT, AND DONALD P. MILEY, BR TRUCKING CO., INC., HECTOR E. TOLEDO, AND MICHAEL N. ZANSKY, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4392-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Yannotti and Espinosa.

The jury in this verbal threshold case returned a verdict in favor of plaintiff, Felix Almanzar-Flores, awarding him $500,000 in damages for injuries sustained in a motor vehicle accident involving defendant William O'Neill and other vehicles. Defendant appeals from the judgment and the denial of his motion for a new trial or remittitur. We affirm.

The accident in question occurred in North Bergen on March 12, 2007. Plaintiff was driving southbound in the left lane of Westside Avenue when defendant's vehicle struck him on the side, forcing him over the yellow lines into a head-on collision with a third motor vehicle. The vehicle plaintiff struck then collided with another motor vehicle. Defendant's vehicle flipped over and struck a truck.

Plaintiff filed a lawsuit against defendant O'Neill and the remaining defendants. The lawsuit was bifurcated for trial. Defendant O'Neill was found 100% liable for the accident following the jury trial on liability. The evidence at the damages trial can be summarized as follows.

Plaintiff was taken to the hospital from the scene by paramedics. He was treated and released with medicine and a collar to wear around his neck. Thereafter, he sought treatment from a chiropractor, Dr. Valentin Diaz, had an MRI performed by a board certified radiologist, Dr. Michael D. Green, and was also treated by a board certified neurologist, Dr. Nalini Prasad. All three doctors testified at the trial.

On March 15, 2007, plaintiff went to see Dr. Diaz, with complaints of pain in his neck and back, including his lower back. Plaintiff also told Dr. Diaz he had difficulty sitting, standing and sleeping. Plaintiff informed Dr. Diaz that he had surgery on his lower back in 1991, prior to the car accident. As a result of his examination, Dr. Diaz found that plaintiff's posterior section of the spine "was very rigid, very tight[,]" his neck and shoulder muscles were very tender and his range of motion was limited.

Dr. Diaz began treating plaintiff three times a week with adjustments and manipulation.

Dr. Diaz sent plaintiff for an MRI exam, which was performed on May 25, 2007. Dr. Green reviewed plaintiff's MRI films and prepared a report in which he stated, in part:

Annulus bulging is present at the C5-C6 and C6-C7 levels with a superimposed left central disc herniation seen without a contour deformity of the cervical cord noted. [(Emphasis added).]

In his testimony before the jury, Dr. Green stated his conclusion that plaintiff suffered a disc herniation in the cervical spine and also suffered from disc bulging in another area of the cervical spine.

The MRI reports prepared by Dr. Green were reviewed and relied upon by both Dr. Diaz and Dr. Prasad, the neurologist who later treated plaintiff. In his testimony, Dr. Diaz noted that the MRI reports prepared by Dr. Green indicated a disc herniation.

Dr. Prasad also testified regarding her review of the MRI report prepared by Dr. Green, which she noted, showed disc bulges and herniations. She testified that a herniation is a permanent injury.

Defense counsel objected to this portion of Dr. Prasad's testimony and asked for a limiting instruction that "the reliance on the finding of a radiologist is not evidence of a permanent injury." The trial court allowed plaintiff's counsel to withdraw his question, "Is there a way to fix a herniation?" but gave no limiting instruction.

Plaintiff's treating doctors also testified regarding their findings upon examining him.

Three months of chiropractic treatment were unsuccessful in improving plaintiff's condition. Dr. Diaz referred plaintiff to Dr. Prasad, who saw plaintiff on June 12, June 26, September 12 and October 17, 2007.

On his first visit, plaintiff "complained of neck pain and stiffness, and also pain in both scapular regions[,] . . . low back pain, and weakness of the legs, and then tingling in the feet, and he mentioned that the pain was aggravated by standing for long periods of time." In her initial examination, Dr. Prasad found that plaintiff's cranial nerves were normal but there was tenderness in the cervical and lumbar spine. Additionally, "there were trigger points in the lumbar para spinal muscles[,]" the range of motion "for the neck, cervical spine, and the lumbar spine was reduced by 30 percent[,]" and his straight leg test was "mildly abnormal[.]" Dr. Prasad prescribed plaintiff medications including anti-inflammatories and muscle relaxers.

On plaintiff's second visit, on June 26, 2007, Dr. Prasad performed the same tests on plaintiff that she conducted at the first visit, and found "[t]here was no change in his exam." The doctor also advised plaintiff to continue taking the prescribed anti-inflammatory medication and follow up with physical therapy. Dr. Prasad provided a guarded prognosis at that time. She testified, "[B]ecause of the presence of disc herniation . . . I gave it as a permanent injury because disc herniations do not heal normally to the full extent."

Defense counsel sought to strike this response because the doctor's report did not state that plaintiff suffered a permanent injury. The court declined, finding that although Dr. Prasad's report did not specifically use the phrase "permanent injury," it would be reasonable for the jury to draw an inference of permanency from portions of the doctor's report.

Plaintiff visited Dr. Prasad again on September 12, 2007. On this date, plaintiff "still had complaints of neck . . . and back pain, and stiffness in the neck . . . and pain in both scapular regions." After performing another round of examinations, Dr. Prasad found there was still tenderness "in the cervical and lumbar spine, . . . his range of motion was still reduced by 30 percent, . . . the lower back exam with the straight-leg-raising was still limited by 60 degrees[,]" and the motor exam revealed "a mild weakness of the shoulder reduction." Dr. Prasad's prognosis did not change after this visit. She again recommended physical therapy and advised plaintiff to use Lodine patches to help with the pain in his right side.

Dr. Prasad last saw plaintiff on October 17, 2007. Plaintiff presented complaints similar to those in his previous three visits and also complained of being unable to turn his head to the right side. Dr. Prasad conducted the same examinations as in previous visits, with the same results except that plaintiff's range of motion on the lumbar spine was within ...


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