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Boxton v. Domingues

Superior Court of New Jersey, Appellate Division

August 20, 2013

SHEDRICK BOXTON and JEMINAT BOXTON, his wife, Plaintiffs-Respondents,
v.
MARIA DOMINGUES, Defendant, and PAULO ALEDE, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 17, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7469-09.

Stephen A. Rudolph argued the cause for appellant (Rudolph & Kayal, attorneys; Mr. Rudolph, on the briefs).

Scott M. Sinins argued the cause for respondents (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, attorneys; Jennifer J. Fleming, on the brief).

Before Judges Grall, Simonelli and Accurso.

PER CURIAM

In this verbal threshold case, defendant Paulo Alede appeals from a jury verdict following a trial on damages. Defendant contends that errors in the jury charge as well as the trial judge's exclusion of plaintiff's thirteen-year-old conviction on a weapons offense deprived him of a fair trial. Because the judge did not abuse her discretion in barring evidence of the conviction and the instructions, read as a whole, correctly set forth the law as applied to the issues in the case, we affirm.

Plaintiff was rear-ended by a car driven by defendant in November 2008. Liability was stipulated and the case went to trial on damages only. In the course of picking a jury, a person ultimately seated as Juror #6 asked a question at sidebar about damages. The judge responded by advising her that "You will be instructed if you are selected as a juror." The judge added that "you and the other jurors would have to come up with a number that you think it would cost to live his daily life as he would have before the injury." Neither lawyer objected to this incorrect statement of the law and neither moved to strike the juror.

Plaintiff presented the testimony of his treating chiropractor, Dr. Iuzzolino, and a physiatrist, Dr. Parvez, who examined him for purposes of the litigation. Dr. Iuzzolino testified that he had treated plaintiff for permanent injuries to his neck and back following a car accident in 2006 in which plaintiff had suffered a disc herniation at C5-6. The doctor described the six months of treatment he provided plaintiff following the 2008 accident at issue in the trial and, following an objection and rephrasing of the question, the results of diagnostic tests he recommended, including an MRI and EMG. Consistent with his report provided to defendant in discovery, Dr. Iuzzolino testified that plaintiff had suffered a permanent injury in the 2008 accident which exacerbated the injuries received in the 2006 accident.

Dr. Parvez testified, via videotape, to the series of epidural injections plaintiff underwent to his neck and low back following the 2008 accident and the results of his MRI and EMG studies. Dr. Parvez testified that she was provided the reports of those studies as well as the studies themselves, all of which she reviewed. Although defendant objected to the doctor testifying to the conclusions of the non-testifying doctors who had performed those studies, the trial judge ruled that Dr. Parvez was appropriately making use of their findings as a basis for explaining her own opinions to the jury. Dr. Parvez agreed with the radiologist who performed the MRI following the 2008 accident, Dr. Chess, that plaintiff had a disc herniation at L4-L5, a disc bulge at L5-S1, and a herniation at C5-C6 impinging on the thecal sac. She likewise agreed that the EMG/nerve conduction studies showed evidence of radiculopathy at L4-L5 and C5-C6. In her report, Dr. Parvez noted that plaintiff appeared to have a pre-existing condition relating to his cervical spine. She also testified that plaintiff had suffered a permanent injury in the 2008 accident.

Defendant presented the expert testimony of Dr. Blank, an orthopedist. Dr. Blank acknowledged abnormalities in plaintiff's spine but opined that these were caused by degenerative disc disease and not traumatic disc injury. The doctor also noted that plaintiff had suffered neck and back injuries in the prior accident in 2006. Dr. Blank acknowledged a "small disc herniation or protrusion at C5-6" visible on the study from 2006 which he found had become smaller on the study following the 2008 accident. When asked on cross-examination whether he agreed with the radiologist's findings from 2006, Dr. Blank answered, without objection, that he "pretty much agreed" with the findings from 2006, namely that plaintiff had a herniation at C5-6, but noted that while he thought the herniation was caused by degeneration, the 2006 report was silent as to the presence or absence of degeneration. Dr. Blank testified, again without objection, that he disagreed with Dr. Chess's findings with regard to the MRI performed following the 2008 accident.

At the charge conference, plaintiff asked that the judge give the standard charge on aggravation. Model Jury Charge (Civil), 8.11(F). "Aggravation of the Preexisting Disability" (1997). Defendant objected on the basis that plaintiff had not pleaded aggravation nor provided a Polk[1] analysis. The trial judge determined that the parties' doctors having all testified to the herniation at C5-6, which predated the 2008 accident, the aggravation charge was appropriate. The judge also stated that she would give Model Jury Charge (Civil), 8.20, "Medical Expenses (Auto)" (1996).

When the instructions were read, the judge omitted, apparently inadvertently, the Medical Expenses charge. Further, in reading the Life Expectancy charge, Model Jury Charge (Civil), 8.11(G.), "Life Expectancy" (1996), the judge charged the jury that "[i]f you make an award for future pain and suffering, disability, impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, you may consider the plaintiff's life expectancy, " even though neither future earnings nor medical expenses were in the case. Neither ...


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