On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6618-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued December 21, 2011 -
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from a March 2011 jury verdict awarding plaintiff $250,000 in damages suffered as a result of a rear-end automobile collision. Defendant claims the court committed various errors related to the admission of expert testimony on plaintiff's behalf; failed to cure the impact of improper comments by plaintiff's counsel; and erred in denying defendant's motion for remittitur or a new trial. As we discern no errors in the rulings of Judge John C. Kennedy, we affirm.
As liability was not disputed, we focus our factual discussion on the injuries plaintiff sustained and the court's evidentiary rulings.*fn1 On September 6, 2006, as Annunziata Competiello, then fifty-five years old, was slowing for traffic on Grove Street in Montclair, she was struck from behind by a vehicle driven by defendant Torre Pizarro. Police and an ambulance responded to the scene. Competiello complained of back and shoulder pain and was placed on a backboard with a cervical collar before taken to Mountainside Hospital for treatment and evaluation. At the hospital, a cervical x-ray, and CAT scans of the cervical spine and brain were performed. The examining physician observed tenderness in Competiello's lower neck, diagnosed lumbar and cervical sprains, neck injury due to a motor vehicle accident, and discharged her with instructions to take a prescription muscle relaxant, Flexeril, and ibuprofen.
Between September 2006 and February 2007, Competiello was treated several times by her family doctor, Dr. Hamada. She first visited the physician on September 18, complaining of headaches, pain in her left shoulder and back, and pain in her knee. Her complaints of pain continued, although the exact location of reported pain varied. Over the course of his treatment, Hamada prescribed anti-inflammatory medication, muscle relaxants, and a course of physical therapy for the cervical spine.
In February 2007 plaintiff discontinued physical therapy and treatment by Hamada as she did not feel it was doing her any good. Hamada did not refer Competiello to an orthopedist or a chiropractor and Competiello did not request any referrals.
However, at the urging of her children, Competiello eventually sought treatment with a chiropractor, Dr. Esposito. Esposito ordered MRIs of Competiello's spine which were performed in April 2008. Competiello testified that she continued to obtain treatment from Esposito, up to the date of the trial.
Defendant moved in limine shortly before jury selection to bar testimony of chiropractic treatment after July 2, 2008, as plaintiff had failed to provide treatment records past that date, although plaintiff provided billing records. Defendant had expressed the intention to so move in her pre-trial exchange in December 2010. Judge Kennedy denied the motion. Noting defendant had the bills and dates of treatment, he stated, "If you need[ed] more information . . . an application should have been made for more information at that time. Having not made that application, I can't find that you're prejudiced."
Plaintiff's expert, Dr. John Owens, testified he reviewed the MRI film and agreed with the radiologist's finding, with respect to the cervical spine, of "[m]ultilevel degenerative changes of the cervical intervertebral discs. Mild C5-6 central canal stenosis, moderate left C6-7 neural foraminal narrowing." As for the findings regarding the lumbar spine, Owens agreed with the finding of "annular bulge at the L4-5 level with a small right lateral protrusion and osteophyte resulting in foraminal narrowing with mild posteriolateral displacement of the exiting right L4 nerve root," but Owens characterized the protrusion as moderate in size. Owens also agreed with the finding of "a small central to left paracentral protrusion at L2-3, that disc space, slightly flattening the anterior aspect of the thecal sac. Number three, a very small central protrusion at L1-2, and four, multilevel degenerative changes."
Owens testified that the abnormalities shown on Competiello's MRI films corresponded to the areas where the emergency room physician observed tenderness on the day of the accident.
In the summer of 2008, Competiello traveled to her native Italy to visit her father who was ill. Upon landing in Italy, Competiello's back was causing her pain and made it difficult for her to walk. She testified that she was given six injections in her back by an Italian physician during her stay.
Defense counsel had also moved in limine to exclude all testimony regarding these injections as Competiello had not provided the name and address of this Italian physician nor any medical records regarding treatment. The court denied this motion stating that the issue was "grist for cross examination."
Owens also commented on the chiropractor's records of the episode in Italy. When asked to describe his understanding as to what happened, Owens testified, without objection, "Well, more or less, it sounded like her back went into spasm and seized up, so to speak, from the long flight and she required treatment when she arrived in Italy. And I believe she had six injections in her back." Owens admitted on cross-examination that he did not know the exact nature or location of the injections Competiello received in Italy and that he had not reviewed any medical records from that incident.
Owens personally examined Competiello on September 11, 2009. Competiello complained of continued pain in her neck, low back, and right knee. Owens found she had limited mobility of the neck and low back; diminished sensation in part of her thigh and knee; and a lot of tenderness and spasm. Owens diagnosed plaintiff to have "bulging discs in the cervical spine as well as the herniated discs in the lumbar spine, along with a radiculopathy of the right lower extremity." The lumbar herniation occurred at L1-2, L2-3, and L4-5 and the cervical abnormalities were found at C5-6 and C6-7. He opined, within a reasonable degree of medical probability, that the lumbar herniations, cervical abnormalities, and radiculopathy were all permanent injuries, that is, they would never return to normal function, even with medical treatment. He opined that they were all caused by the auto accident. He explained that Competiello's pain was not due to pre-existing degenerative changes, which were asymptomatic. He noted she never required any treatment for back or neck conditions before the accident.
Owens testified Competiello had "exhausted . . . conservative measures." He initially testified that "she would be a candidate" for lumbar compression and fusion, but then clarified that he recommended the surgical procedure. He described the surgical procedure and testified that the normal recuperative timeframe is three to six months. He based his recommendation on his opinion that more conservative treatments had been ineffective in providing relief of Competiello's symptoms.
On cross-examination, Owens admitted that it might have been beneficial for Competiello to try less-invasive epidural injections prior to surgery as it is typical to undergo three rounds of epidural injections prior to surgery. Owens also stated that because it had been nearly five years since the accident, he did not believe epidurals would provide an effective solution to Competiello's symptoms. He conceded he did not review plaintiff's physical therapy records or chiropractic records after July 2008, and, to his knowledge, she had not opted for the recommended surgery.
The court denied a defense motion to bar Owens's opinion that surgery was needed. The defense argued the opinion was a net opinion and speculative, in part because he did not review all of plaintiff's treatment records. Judge Kennedy explained,
It's not a net opinion. It was his opinion based upon all of the records that he had examined. And he indicated that she still has complaints and restrictions after all these years of therapy, all the services that she's rendered.
And so, consequently, he feels that the only offer o[r] prospect of relief is a lumbar laminectomy. I don't find that to be a net opinion from a qualified orthopedic doctor who has examined the plaintiff and knows the nature and substance of the treatment that she has received since the time of the accident.
Pizarro's expert, Dr. Robert Morrison, evaluated Competiello on August 6, 2009 and testified that he did not find that Competiello had sustained any permanent orthopedic or neurological injuries as a result of the accident. Based on his review of Competiello's medical records and his physical examination of her, Morrison concluded the abnormalities found on the MRI films resulted from arthritic changes, not the 2006 accident. He found it telling that the emergency room records indicated Competiello complained of neck pain and headache, not back pain (although the ambulance report indicated back pain). He stated that someone with an acute disc herniation, such as would be caused by an auto accident, would be aware of it immediately and would not wait to get treatment. He also opined that Competiello's report of back pain in February 2007 was related to a kidney stone that was removed shortly thereafter. Morrison thought it significant that Competiello did not miss a single day of work as the school cafeteria manager.
Morrison testified that he had tested Competiello's reflexes, range of motion, and ability to walk on heels and toes and her results were normal. Morrison did find that Competiello was suffering from an active back spasm when he examined her, but it was unaffected by movement, which he considered consistent with arthritic changes. Morrison also testified that ...