On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4942-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 15, 2012 Before Judges Payne, Reisner and Hayden.
Plaintiff, Susan Becker, appeals October 6, 2011 orders entering judgment in favor of defendant, Dawn M. Babcock, and denying a new trial or additur, following the return of a jury verdict awarding zero damages in plaintiff's auto negligence case. In it, plaintiff alleged permanent injuries to her neck, back and left shoulder as the result of the stipulated negligence of Babcock, who ran a stop sign and broadsided plaintiff's BMW sports car with her SUV Jeep, causing damage to the area of the rear wheel well on the driver's side. The per quod claim of plaintiff, Richard Becker, and plaintiff's claim against the Jeep's owner, defendant, Arvilla M. Decker, were dismissed at trial.
On appeal, plaintiff argues that the trial judge erred in permitting the introduction of evidence, on cross-examination of plaintiff, regarding prior motor vehicle accidents in which plaintiff had claimed permanent injuries, occurring in 1991 and 1999. She argues that the award of zero damages constituted a miscarriage of justice, and she additionally argues that the statement by defense counsel in his summation that plaintiff was obligated to prove permanent injury was a misstatement of the law, improper and prejudicial. We reverse.
Prior to trial, plaintiff's counsel brought a motion in limine to bar any reference to motor vehicle accidents occurring on December 2, 1991 and May 26, 1999 for which plaintiff filed suit claiming that she sustained permanent injuries and received money in settlement. The motion was argued in chambers, and the judge's decision was not placed on the record. For that reason, we do not know the arguments made by counsel or the basis for the judge's decision. However, it is clear that the judge denied the motion, and for that reason, the subject of the prior accidents was addressed by plaintiff's and defense counsel in their opening statements, during the direct and cross-examination of plaintiff and in closing arguments, and by the judge in the jury charge.
Facts disclosed in the direct and cross-examination of plaintiff established that, in the 1991 accident, plaintiff had injured her right shoulder, low back, right leg, right side of her neck, and her upper back. Her car was totaled, and she missed two months of work. Diagnostic procedures, consisting of EMGs, MRIs*fn1 and somatosensory evoked potential tests were performed, and treatment, consisting of physical therapy and injections to the right shoulder took place. Following the accident, plaintiff filed suit, claiming injuries to her right shoulder, lumbar spine and upper back were permanent. The suit was settled for an undisclosed amount of money. Despite the claim of permanency, plaintiff testified that her symptoms had resolved by 1993.
In 1999, plaintiff's vehicle was rear-ended in a three-car chain collision. Thereafter, she underwent cervical and lumbar MRIs and a myelogram and was treated for two years with physical therapy and non-steroidal anti-inflammatory drugs for right leg, low back, neck, and right shoulder pain. Although plaintiff admitted that none of the diagnostic tests conducted in 1999 was positive, again, plaintiff, a practicing nurse with a master's degree in nursing, claimed in litigation that her injuries were permanent, and that they made it impossible for her to bowl or play golf, and they made sexual activity "excruciating." Yet, according to plaintiff, all symptoms from the 1999 accident had resolved in 2000 or 2001, leaving her symptom-free until the August 12, 2006 accident that was the subject of the present trial.
Neither the 1991 nor the 1999 accident was disclosed to Marc Allan Cohen, M.D., the doctor who treated plaintiff in 2006 for injuries that plaintiff alleged consisted of low back, neck and left shoulder pain. Dr. Cohen's office records indicated that, upon plaintiff's first visit to the doctor on August 18, 2006, she denied prior injuries to the neck or back. When asked about her non-disclosure on direct examination, plaintiff stated that she did not recall whether Dr. Cohen had asked for her medical history. On cross-examination, the following exchange occurred:
Q And Dr. Cohen, and I'm sure you can appreciate this, it's important for [a] medical provider to have a full history, including prior accidents, prior injuries in order to make a proper diagnosis and prognosis. Isn't that correct?
Q You don't believe that's true?
A It's individual what the doctor would want. I can't say what a doctor would want.
Additionally, it was disclosed that plaintiff had failed to reveal to Dr. Cohen a diagnosis of rheumatoid arthritis in 2005.
Plaintiff testified, with regard to the injuries sustained in 2006, that she had been seen by Dr. Cohen for low back pain from August 2006 to February 2007, and that she had received nineteen physical therapy treatments for what the doctor had described to her as a ...