On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3146-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Alvarez and Skillman.
Plaintiff appeals from a judgment memorializing a jury verdict of no cause of action in an automobile negligence action. We reverse because defense counsel improperly placed before the jury inadmissible medical evidence in the guise of using that evidence to refresh plaintiff's recollection regarding his past medical treatment.
On June 27, 2007, a car being driven by plaintiff ran into the back of the car being driven by defendant. Defendant stipulated that her negligence was the sole cause of the accident. It was also undisputed that plaintiff had a herniated disk for which he had disk surgery approximately a year after the automobile accident, on July 29, 2008. Thus, the only issues at trial were whether the accident was a proximate cause of plaintiff's herniated disk, and if so, what was fair and reasonable compensation for that injury.
The only two witnesses at trial were plaintiff and the orthopedic surgeon who performed the disk surgery, Dr. David H. Clements, III. Dr. Clements' testimony was presented to the jury by means of a de bene esse deposition. Plaintiff, who was twenty-four years old at the time, testified that although he felt soreness in various areas of his body, including his lower back, on the day of the accident, he did not seek immediate medical attention. However, when the pain in his lower back intensified over the next week, he went to Dr. Stephen Lesse, a chiropractor who he had gone to for treatment of a shoulder injury while in high school, before having surgery on that shoulder his senior year. Plaintiff denied having been treated by Dr. Lesse for a back injury while in high school.
Dr. Lesse treated plaintiff by giving him ultrasound and back manipulations for approximately a month until plaintiff left New Jersey in early August to attend law school in Florida. Plaintiff claimed that he suffered serious pain and discomfort in his back, radiating down his leg, during his first year of law school, but did not receive any additional medical treatment until he returned to New Jersey at the end of the year. At that time, in May 2008, plaintiff went to Dr. Clements, who had him get an MRI and then referred him to a pain specialist who administered a series of cortisone injections into his back. After three of those injections administered over a four- week period failed to provide plaintiff any substantial relief, Dr. Clements performed disk surgery upon him on July 29, 2008. This surgery, described by Dr. Clements as a "lumbar microdiscectomy," revealed that part of plaintiff's disk had broken off and was pressing against his nerve. Dr. Clements expressed the opinion that this disk herniation was caused by plaintiff's June 27, 2007 automobile accident.
Although the surgery provided plaintiff with substantial relief, he claims to still suffer discomfort and weakness in his back and an inability to engage in recreational and other activities he had engaged in before the accident. According to plaintiff, this discomfort and limitation upon his activities continued until the time of trial.
On cross-examination, defense counsel undertook to attack plaintiff's testimony that he had been treated by Dr. Lesse solely for a shoulder injury, and not for an injury to his back, before the automobile accident. Defense counsel confronted plaintiff with notes that he had subpoenaed from Dr. Lesse's office, in particular, a chart with handwritten notes under thirty-five vertical columns, with a series of dates listed in the first column. Defense counsel focused plaintiff's attention upon a column in the middle of the page that had what appeared to be a circled "L5" for nine dates. Defense counsel then proceeded with the following cross-examination:
Q. And it looks like a chart[,] correct?
Q. Okay. And there's a bunch of columns and it looks like there's a column for date[,] correct?
Q. Okay. And there looks like there's a lot of different columns, but right in the middle and it's highlighted for you, it says lumbar[,] correct?
Q. Okay. I just want to refer you to a date that's marked, it's May 17th, 1999. Do you see that?
[Plaintiff's counsel]: Judge, I'm going to object at this time. I mean, this is not his record. This is a doctor's record. She's cross examining from a physician's record. I mean, I'm allowing [defense counsel] latitude here, but these aren't his records. I mean, you're going to ask him to read his records and decipher what he wrote, that is what Dr. Lesse wrote. I mean, that's the basis of my objection.
[Defense counsel]: Right now, it's for -- it's marked for identification purposes. I'm laying a foundation for my questioning with regard to whether he recalls a treatment on a certain date and to have the record in front of him.
[Plaintiff's counsel]: Well --
THE COURT: Well, would it be less complicated to simply have the record in front of him and indicate that the doctor has a notation that there was treatment rendered on such and such -- and such and such a date?
[Defense counsel]: I can do that.
THE COURT: Why don't we go that way? I think that takes care of [plaintiff's counsel's] objection and he's not reading from the report other than to confirm that that is what it says.
[Defense counsel]: And that's all I'm trying to do. I was just trying to direct him to that date, Your Honor.
[Defense counsel]: If I ...