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Idowu A. Adesina and Kemi K. v. Eddie Santana

March 5, 2012

IDOWU A. ADESINA AND KEMI K. ADESINA, H/W AND OLABISI M. OLOWOOKERE, PLAINTIFFS,
AND
AYODEJI OLOWOOKERE, PLAINTIFF-APPELLANT,
v.
EDDIE SANTANA, JR., LIBERTY MUTUAL FIRE INSURANCE COMPANY, ALLSTATE NEW JERSEY INSURANCE COMPANY, DEFENDANTS,
AND GEORGE R. KERR, III, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6924-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: February 8, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff, Ayodeji Olowookere,*fn1 a passenger involved in an accident and subject to the verbal threshold, appeals from a jury verdict finding no permanent injury and order for judgment dismissing with prejudice his claims against defendant George R. Kerr. He challenges as harmful error the court's in limine ruling barring evidence of his medical expenses, denial of his motion for a directed verdict as to liability, modification of the jury verdict sheet after the jury began deliberations, and denial of his motion for a new trial. We affirm in part and reverse and remand in part.

I.

On September 26, 2005, plaintiff filed suit against defendants Eddie Santana, Jr., Kerr, Liberty Mutual Fire Insurance Company, and Allstate New Jersey Insurance Company, alleging Santana and Kerr negligently operated their motor vehicles and struck the vehicle in which plaintiff was a passenger.*fn2 Plaintiff alleged that on September 29, 2003, he was a passenger in a car driven by Idowu Adesina, which was stopped at a traffic light. A vehicle driven by Santana was stopped directly behind the Adesina car. A vehicle driven by defendant struck the Santana vehicle from behind, propelling it into the Adesina car. Plaintiff contended he sustained serious and permanent physical injuries to his lumbar and cervical spine and damages as a result of defendant's negligence. Defendant filed responsive pleadings.

Multiple trial dates were scheduled dating back to 2008. By order of February 9, 2010, the court scheduled trial for June 7, 2010, and ordered plaintiff to provide discovery by March 1, 2010. By order of June 14, 2010, the court extended discovery, in part, until August 15, 2010. On July 1 and September 17, 2010, plaintiff sent amended interrogatory answers disclosing that Personal Injury Protection (PIP) coverage was exhausted and itemizing approximately $250,000 in unreimbursed medical expenses. Plaintiff was deposed during the summer. On September 23, 2010, plaintiff faxed defendant a letter of that date from Liberty Mutual, his PIP carrier, formally advising that plaintiff's PIP benefits had been exhausted as of February 24, 2010.

The trial commenced on September 29, 2010. The court granted defendant's motion in limine barring the evidence of plaintiff's unreimbursed medical expenses. The court found plaintiff's submissions were too vague, they violated discovery rules, and their admission would be prejudicial to the defense.

Plaintiff testified on his own behalf and both parties presented medical testimony. The court denied plaintiff's motion for a directed verdict as to defendant's negligence for striking the rear of the vehicle in which plaintiff was traveling. Over plaintiff's objection, during deliberations the court granted defendant's request to change the jury verdict sheet from asking whether defendant's negligence was a "proximate cause of the September, 2003 collision" to whether it was a "proximate cause of injuries" to plaintiff.

Later that day the jury returned a unanimous verdict finding defendant was negligent and his negligence was the proximate cause of plaintiff's injuries. However, the jury also found plaintiff did not sustain a permanent injury in the 2003 collision. Due to the verbal threshold under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8, plaintiff was not awarded any damages. The court denied plaintiff's motion for a new trial. This appeal ensued.

II.

Plaintiff testified at trial. He presented the testimony of the following physicians who treated him over various periods since 1997 and who the court accepted as experts in their designated fields: Dr. Marc Cohen, in the field of orthopedic surgery and the specialty of spinal surgery; Dr. Boqing Chen, in the field of pain management and electro diagnostic testing; and Dr. Neville Mirza, in the field of spinal surgery. The defense called Dr. Edward Decter, accepted as an expert by the court in the field of orthopedic surgery. Defendant also presented his own testimony and that of Santana and investigating police officer David Buchok of the Edison Police Department.

The following testimony and evidence were adduced at trial. Plaintiff testified he was involved in a motor vehicle accident in August 1997, in which he sustained injuries to his neck and back. MRI tests performed within a month revealed disc herniations at C6/7 and L3/4, and a disc bulge at L4/5. On March 3, 1999, MRI and CT scans of the lumbar spine revealed diffuse disc bulging at L3/4 and a disc herniation at L4/5. Two days later, plaintiff had ...


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