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Lamb v. Allstate Insurance Co.

Superior Court of New Jersey, Appellate Division

July 23, 2013

DOROTHY LAMB, Plaintiff-Appellant,
v.
ALLSTATE INSURANCE COMPANY, Defendant-Respondent, and CITY OF EAST ORANGE POLICE DEPARTMENT, Defendant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 21, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5830-09.

Sherri Davis Fowler argued the cause for appellant (Bendit Weinstock, P.A., attorneys; Ms. Fowler, on the brief).

Kenneth N. Lipstein argued the cause for respondent (Frederic J. Regenye, on the brief).

Law Office of Jeffrey Randolph, LLC, attorneys for amicus curie The Association of New Jersey Chiropractors (Jeffrey P. Randolph, on the brief).

Seigel Capozzi Law Firm, attorneys for amicus curia The New Jersey Association for Justice (Edward P. Capozzi, on the brief).

Before Judges Reisner and Hoffman.

PER CURIAM

In this automobile negligence case, plaintiff Dorothy Lamb appeals from the March 30, 2012 Law Division order granting defendant Allstate Insurance Company's motion for a directed verdict at the end of plaintiff's case. Plaintiff's claim for non-economic damages was subject to the "verbal threshold" provision set forth in N.J.S.A. 39:6A-8, of the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1 to -35. Plaintiff contends that the trial judge erred in prohibiting her treating physician, a chiropractor, from testifying as to his interpretation of plaintiff's MRI films, even though his report gave no indication that he personally interpreted plaintiff's MRIs. Because we conclude that the judge's ruling on this issue did not constitute a mistaken exercise of discretion, we affirm the judgment of no cause of action entered by the trial court.

I

The subject accident occurred in Newark on July 28, 2008, when plaintiff's vehicle was rear-ended by an individual driving a stolen car.[1] While plaintiff accompanied her two children to the hospital following the accident, she was not examined or treated. The following day, plaintiff did go to the hospital with neck and back complaints. One week later, she began treatment with a chiropractor, Dr. Stephen Levine, D.C. She informed Dr. Levine that she had a stiff neck, and sharp pains in her lower back that sometimes ran down part of her leg. Plaintiff received treatment from Dr. Levine three days per week from August through December 2008.

Dr. Levine prepared a report dated December 15, 2008. His report summarized a radiologist's report of the MRI studies of plaintiff's spine completed at Orange Community MRI on August 7, 2008. The finding of the cervical MRI was: "Loss of lordosis and bulging annulus at C7-T1" and the finding of the lumbar MRI was: "herniated disc at L4-L5 to the right side and bulging annulus at L3-L4." Dr. Levine's report stated that the MRI "reports have been reviewed and attached[, ]" but provided no indication that he personally reviewed the MRI films and made a diagnosis based on such review.

During a pre-trial colloquy on March 5, 2012, the trial judge asked plaintiff's counsel who would read the MRI films at trial. Plaintiff's counsel indicated that she planned for Dr. Levine to interpret the MRIs. At that point, the ...


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