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Lynn Oppedisano and Joseph Oppedisano, Her Husband v. Jeffrey S. Utz

June 22, 2012

LYNN OPPEDISANO AND JOSEPH OPPEDISANO, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
JEFFREY S. UTZ, DEFENDANT-APPELLANT, AND LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2317-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 6, 2012

Before Judges Messano and Kennedy.

Defendant Jeffrey S. Utz appeals from a $3 million judgment entered against him following a jury verdict finding that plaintiff Lynn Oppedisano sustained a permanent injury proximately caused by a motor vehicle accident on October 6, 2006. Defendant had stipulated to liability and the jury was only asked to determine whether the accident gave rise to a permanent injury and, if so, the amount of money that would "reasonably and fairly" compensate the plaintiff for her injuries. Defendant claims that the trial judge erred in excluding evidence that plaintiff was in a subsequent accident on November 7, 2007. Defendant also claims that the trial judge abused his discretion by barring records of plaintiff's prior treatment by Dr. Joseph Romanella between 1998 and 2004 and then barring testimony from the defendant's "causation expert," Dr. Robert S. Fijan. Defendant also asserts that the comments of plaintiff's counsel during summation had the "capacity to mislead the jury" and that the cumulative impact of the errors warrants a new trial.

I.

We discern the following facts from the trial record.

On October 6, 2006, the forty-three year old plaintiff was driving to a doctor's appointment when she stopped behind a line of cars. She was stopped for several seconds when her vehicle was struck from behind by a vehicle driven by defendant. Plaintiff estimated that defendant was traveling between thirty and thirty-five miles per hour at the time of impact while defendant estimated that he was traveling between five and ten miles per hour at that time. Plaintiff's vehicle did not move as a consequence of the collision, however, and sustained only scratches to the rear bumper. Plaintiff advised the police officer at the scene that she was not injured but merely "sh[a]ken up."

Plaintiff began to experience pain that evening and sought treatment from her regular chiropractor approximately ten days after the accident. Plaintiff was seen by her chiropractor two to four times each week through December 2006. When the pain did not subside, she consulted with Dr. Horowitz who administered trigger point injections in her neck. She also underwent chiropractic manipulation while under anesthesia and was given epidural injections by another physician. Plaintiff contended that the pain continued to grow and to spread to other areas of her body, despite these treatments.

By April 2007, plaintiff experienced burning and stabbing pain in her neck, shoulders, arms, hands, legs and in the bottoms of her feet. She then consulted with Dr. El-Kadi, M.D., a rheumatologist, who initially prescribed Percocet and Celebrex. When these medications failed to provide any relief, the doctor began administering Remicade intravenously. Plaintiff underwent Remicade administration three or four times and each occasion required two and a half to three hours to complete the administration of the prescribed dosage. The Remicade provided no relief to plaintiff and Dr. El-Kadi thereupon gave plaintiff a series of Humira injections. These injections did not provide any relief, however, and Dr. El-Kadi reinstituted the Remicade medication. Nonetheless, these efforts provided no relief for plaintiff's progressive pain and spreading difficulties.

In August 2007, plaintiff consulted with Dr. Vasko Gulevski, M.D., a neurologist, for "full body pain" and progressive swelling and numbness. Plaintiff complained that the pain was "unbearable" and kept getting "worse and worse." Dr. Gulevski examined plaintiff and found that she suffered abnormal sensation and pain reactions. He felt that she may be suffering from a "small fiber neuropathy" and sent her for a series of tests. By November 2, 2007, Dr. Gulevski noted that plaintiff's pain and physical difficulty had progressed and was not getting better with time. In a report issued on November 2, 2007, Dr. Gulevski thought plaintiff might be "expressing some signs of [complex regional pain syndrome] CRPS"*fn1 and referred her to Dr. Robert Schwartzman, M.D., a neurologist in Philadelphia, for evaluation.

Plaintiff was also examined by Dr. Brawer, M.D., neurologist, on May 12, 2008. Unlike Dr. Gulevski, however, Dr. Brawer found that there was little in plaintiff's history to "seriously entertain" a diagnosis of CRPS or RSD. Dr. Brawer did find, however, that plaintiff was suffering from rheumatoid arthritis caused by the accident of October 6, 2006. Dr. Brawer stated that plaintiff developed a generalized "systemic inflammatory arthropathy" and his diagnosis was "traumatically initiated rheumatoid arthritis." He added that the condition is "chronic, permanent and progressive . . . [and] has the inherent capability of rendering [plaintiff] incapacitated."

Dr. Gulevski examined plaintiff again on November 3, 2008 and stated in a report that plaintiff did not have the small fiber neuropathy he initially suspected but "was exhibiting more signs and symptoms of complex regional pain syndrome. This was evidenced by allodynia, edema, diminished movements (dystonia)." He noted that the prognosis for this illness "if untreated is poor" and that most patients "continue to have worsened pain." He explained in the report at that time that no one has ever been cured of CRPS and that it is generally caused by traumatic nerve injury. He added, "it appears that [plaintiff] was injured in an accident on October 6, 2006 and [there] appears to be a causal relationship between injuries sustained and the CRPS."

In June 2009, plaintiff consulted with Dr. Schwartzman in Philadelphia. Dr. Schwartzman opined that plaintiff had severe CRPS and indicated that she would do well with "Ketamine protocols." Dr. Schwartzman administered a series of Ketamine treatments to the plaintiff in Philadelphia between October and December 2009. The Ketamine treatments consisted of four to five hours of intravenous Ketamine infusion, five days per week for two weeks. Thereafter, plaintiff received a Ketamine booster solution in November and December. The Ketamine infusions were very taxing and required additional injections of other medications to counteract nausea, vomiting and hallucinations.

Dr. Brawer testified at trial that RSD is another name for CRPS and that the condition essentially involves hypersensitivity to stimuli and a low threshold for pain. Dr. Gulevski testified that RSD arises as a consequence of changes in the activation threshold of the nervous system. He indicated, "so in somebody who normally would feel a touch when you touch them, [in those with RSD] . . . the pain fibers are activated and the patients feel pain." He also indicated that the processing of pain in the brain changes and that, in time, RSD manifests in changes in brain structures, as well.

Defendant's expert, Norman Kohn, M.D. diagnosed plaintiff as suffering from fibromyalgia and ankylosing spondylitis. He explained that firbromyalgia is a condition characterized by extreme fatigue, generalized widespread pain, over-reactivity to touch and sleep disturbances. He stated that ankylosing spondylitis is an inflammatory condition of the spine. Dr. Kohn asserted that both conditions develop over time and that neither is caused by trauma. He opined that plaintiff's conditions were unrelated to the October 6, 2006 accident. He also opined that plaintiff showed no signs of RSD and he ruled it out as a diagnosis.

Plaintiff testified that her life had changed as a consequence of her injuries and that she is in constant pain and discomfort. She stated that a light touch to her body ignites severe pain, and that she has become debilitated and is in bed each day by 6:30 p.m.

II.

Plaintiff's complaint was filed on March 22, 2007. The trial commenced on August 16, 2010 and the verdict was returned on August 23, 2010. Discovery prior to trial was laborious and nine ...


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