August 23, 2013
TIKIYA WALKER, Plaintiff,
JUANITA TORRES, Defendant. TIKIYA WALKER, Appellant/Cross Respondent,
21ST CENTURY INSURANCE COMPANY, Respondent/Cross Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket Nos. L-97-09 and L-921-09.
Sal B. Daidone, attorney for appellant/cross respondent (Michael Wiseberg, on the brief).
Law Offices of Edward Hoagland, Jr., attorney for respondent/cross appellant (Stephen C. Wolf, on the brief).
Before Judges Espinosa and Hoffman.
In this auto negligence case, following a jury verdict of no cause of action,  plaintiff Tikiya Walker appeals from two evidentiary rulings made by the trial judge. Plaintiff contends the judge erred by barring her expert, a dentist, from testifying as to his interpretation of her MRIs and from using certain internet videos as a demonstrative aid during his testimony. Because we conclude these rulings did not constitute a mistaken exercise of discretion, we affirm.
On March 7, 2007, plaintiff's car was struck by defendant Juanita Torres on the driver's side as she proceeded through an intersection. According to plaintiff, the impact forced her head and the left side of her body into the left-side window and door of her car. Plaintiff claimed her head and jaw began to hurt immediately following the accident. After experiencing pain in her jaw while eating, plaintiff sought treatment from Dennis Ribatsky, D.D.S., a dentist who specializes in treatment of temporomandibular joint (TMJ) dysfunction.
Dr. Ribatsky prepared a report dated January 12, 2009. His report quoted the conclusion of a radiologist's report pertaining to MRIs of plaintiff's jaw, performed at the Eastlantic Diagnostic Institute on September 11, 2007:
"1. Bilateral moderate anteromedial disc displacement with forward capture.
2. Decreased translation of movement on the left."
Dr. Ribatsky's report did not state that he independently interpreted the MRIs.
Prior to trial, plaintiff settled with Torres and the case proceeded to trial against plaintiff's underinsured motorist carrier, 21st Century Insurance Company (defendant). The parties stipulated as to liability, leaving damages as the only issue for trial. Plaintiff's counsel indicated he planned to call Dr. Ribatsky to testify, among other things, as to his interpretation of plaintiff's MRIs. Additionally, he advised that Dr. Ribatsky planned to use certain internet videos as a demonstrative aid during his testimony. Defendant moved to bar the MRI report from evidence and prevent Dr. Ribatsky from testifying regarding the MRIs and using the internet videos. The judge granted the motion to bar the MRI report from evidence, but reserved his decision on the remaining issues until after receiving Dr. Ribatsky's testimony at a N.J.R.E. 104 hearing.
At the hearing, Dr. Ribatsky testified that MRIs did not become part of the general practice of dentistry until after his graduation from dental school. When asked if he had taken courses on reading MRIs, Dr. Ribatsky stated "[y]ou take general TMJ courses, courses in treatment and diagnosis of temporomandibular oral facial pain type things. And, they include the reading and diagnosis of MRIs as part of the course." Dr. Ribatsky estimated that over the course of his practice, he had used MRIs in approximately one-quarter of the over 2000 TMJ cases he treated. Next, Dr. Ribatsky testified regarding his experience reading MRIs:
Q. All right. Now, in terms of treating people, how was it that you . . . gained experience actually reading MRIs, and not just reading them, but in receiving some sort of feedback from radiologists that the [c]ourt could determine whether or not you actually can read MRIs?
A. Well, I mean you refer a patient for an MRI, you get an MRI report back. The patient will bring the film in; I'd review the film, compare it to the report. If I had a problem, I'd talk to the radiologist.
Q. Now, when you say if you have a problem, what kind of problem?
A. If I didn't agree with his report, or if his report didn't agree with the symptoms for which I sent the patient out for the MRI in the first place. So . . . we had points of discussion at times.
Dr. Ribatsky claimed that he had looked at a "couple hundred" MRIs when treating TMJ injuries. He conceded that he does not have a radiologist's knowledge regarding MRIs, and stated that when reviewing an MRI, "I can look at the [radiologist's] report and look at the film and go, yeah, that's pretty much what it is . . . . If I disagree, I can call the radiologist, that's all."
On cross-examination, Dr. Ribatsky was asked about the scope of the classes he took pertaining to MRIs:
Q. With . . . the courses, you said some of them included courses on reading and diagnosis?
A. Well, it would show a clinical patient, and maybe surgery, and then an MRI, and discuss, you know, this is how the MRI indicates the condition that the patient had. . . .
Q. Well, of these courses how many of them included parts . . . concerning . . . [r]eading of MRI films and diagnoses?
A. Diagnosis, most of them. MRIs, quarter of them, maybe would show you an MRI and discuss it in relation to a case. . . .
Q. But . . . would it tell you . . . how to read an MRI?
A. It was almost implied. They would just show —— here's the MRI, here it is. We go, oh yeah, that's how it is, and we'd all see it and ——
Q. So, did they ever teach you explicitly how to read an MRI?
A. I can't say I was ever taught anywhere how to read an MRI.
When asked to elaborate on what he meant when he testified that he sometimes would disagree with the radiologist's report, Dr. Ribatsky stated that he would not disagree with the reading of the MRI, but rather the radiologist's findings on the MRI were sometimes different than what he had expected based on his clinical diagnosis. In regard to plaintiff's injuries, Dr. Ribatsky testified that, absent the MRIs, he would have made the diagnosis of the injuries on the right side of her jaw, but would have missed the injuries on the left side.
Based on Dr. Ribatsky's testimony, the trial court found him unqualified to read and interpret MRIs and thus barred him from testifying about them. As to the internet videos Dr. Ribatsky planned to use as a demonstrative aid, the court cited N.J.R.E. 611 and found that they could not be properly authenticated and their probative value was outweighed by the prejudicial effect they would have on the jury. Accordingly, the judge barred Dr. Ribatsky from using the videos during his testimony.
At the conclusion of the trial, the jury determined that plaintiff had not sustained a "permanent injury" caused by the accident, within the meaning of N.J.S.A. 39:6A-8(a),  and a judgment of no cause of action was entered. This appeal followed.
We first address plaintiff's argument pertaining to the MRIs. Plaintiff contends that Dr. Ribatsky was qualified to read and interpret MRIs of the jaw and the trial court erred by failing to permit him to testify as to plaintiff's MRIs. We disagree.
"In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Thus, we are "not permitted to create anew the record on which the trial court's admissibility determination was based." Ibid.
In Brun v. Cardoso, 390 N.J.Super. 409, 421 (App. Div. 2006), we ruled an MRI report may not be admitted into evidence under N.J.R.E. 703 without the testimony of a qualified physician to read the films. The plaintiff in Brun claimed injury to her back following a rear-end automobile accident. Id . at 412. She had cervical and lumbar MRIs completed, which were reviewed by a radiologist, who prepared a report, noting a disc bulge and herniation. Ibid. At trial, the defense moved to bar the plaintiff's treating physician, a chiropractor, from testifying about the MRI findings after it became evident that the plaintiff's neurologist would not testify. Id . at 414-15. The court ruled that a radiologist who was qualified to interpret the MRI films would first have to be called as a witness to testify. Id . at 415.
We agreed that the non-testifying expert's opinion, i.e., the MRI report, was inadmissible hearsay, because admitting the report without calling the author as a witness would deprive the defendants of the opportunity to cross-examine him on the central issue of the case, namely whether there was a herniation. Id . at 422. Nor did we view the report as substantively admissible under N.J.R.E. 703, noting that "on objection, interpretation of an MRI may be made only by a physician qualified to read such films, and that the MRI report could not be bootstrapped into evidence through [the treating physician's] testimony." Id . at 421.
In Agha v. Feiner, 198 N.J. 50, 54 (2009), the Court reaffirmed that "testifying physicians could not establish the substance of the contested MRI" unless the expert was "qualified to interpret an MRI[.]" Similar to Brun, the only objective evidence of permanency was the MRI report of disc herniation, which the defense neuroradiologist disputed. Id . at 58. Over the defendants' objections, the plaintiff's treating physicians, a chiropractor who was not qualified to interpret an MRI and an anesthesiologist who, although capable, did not review the films, were permitted to testify, based on the MRI report, that the plaintiff suffered a disc herniation. Id . at 53. The defense's requests for a limiting instruction were denied, N.J.R.E. l05, as was their motion to dismiss based on the plaintiff's failure to satisfy the permanency threshold, and the jury returned a verdict in the plaintiff's favor. Id . at 53-54.
We reversed, reasoning that the plaintiff had "'bootstrapped' the contested MRI report findings into evidence through the testimony of the treating physicians in violation of established law." Id . at 54. We noted that production of a qualified witness regarding the MRI was particularly important because the defense's expert was subjected to a thorough cross-examination regarding his conclusions while the plaintiff was able to present the MRI report to the jury "free from attack." Id . at 59. We reversed and remanded, with instructions to enter judgment in the defendant's favor on the basis the plaintiff failed to sustain his burden of proving permanency. Id . at 58.
The Supreme Court affirmed our evidentiary ruling but determined that a new trial was warranted, rather than dismissal, because the trial judge's rulings led the plaintiff to believe he did not have to call the author of the MRI as a witness. Id . at 54.
Here, we see no abuse of discretion in the trial judge's determination that Dr. Ribatsky was unqualified to read and interpret MRIs. Contrary to plaintiff's assertion, the judge's decision was entirely consistent with Brun and Agha. As in Brun and Agha, plaintiff did not call the radiologist as a witness. Accordingly, the trial judge correctly declined to allow plaintiff to bootstrap the findings of the radiologist through the testimony of Dr. Ribatsky.
We agree with the trial judge that Dr. Ribatsky had neither the training nor the experience to read and interpret MRIs. Dr. Ribatsky's testimony failed to establish that he had the requisite basis of knowledge of an expert in MRI interpretation, including MRIs strictly limited to the jaw. Although Dr. Ribatsky has taken TMJ related courses utilizing MRIs, he readily admitted, "I can't say I was ever taught anywhere how to read an MRI." Further, Dr. Ribatsky testified that he had never disagreed with a radiologist's reading and interpretation of an MRI based on his own reading and interpretation of same, but occasionally would disagree based on his clinical diagnosis of the patient.
Dr. Ribatsky's utilization of MRIs in his practice and the TMJ disfiguration courses he completed did not give him the requisite knowledge of an expert in MRI interpretation. MRI interpretation is not a skill which can be learned through seminars nor can it be self-taught. According to Dr. Ribatsky, he would not have discovered one of plaintiff's alleged injuries absent the MRIs. The trial judge properly barred Dr. Ribatsky from testifying about that injury because Dr. Ribatsky was unqualified to independently interpret plaintiff's MRIs. Our conclusion is not dependent on Dr. Ribatsky's status as a dentist but on the complexity of MRI interpretations. See Brun, supra, 390 N.J.Super. at 423.
Next, we turn to plaintiff's argument pertaining to the internet videos. Plaintiff contends that the trial judge erred by barring Dr. Ribatsky from using certain internet videos as demonstrative aid during his testimony. Again, we disagree.
N.J.R.E. 611 provides in pertinent part that "[t]he court shall exercise reasonable control over the mode and order of . . . presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth[.]"
There is nothing inherently improper in the use of demonstrative or illustrative evidence. Demonstrative or illustrative evidence may be evidence that replicates the actual physical evidence, or demonstrates some matter material to the case, or illustrates certain aspects of an expert's opinion. It is in the nature of a visual aid —— a model, diagram or chart used by a witness to illustrate his or her testimony and facilitate jury understanding.
Rodd v. Raritan Radiologic Assocs., P.A.
373 N.J.Super. 154
Generally, the decision on whether to admit demonstrative evidence, such as an image or video, is left to the sound discretion of the trial court. Id . at 165. Such evidence must be authenticated, N.J.R.E. 901, relevant, N.J.R.E. 901, and "its probative value must not be offset by undue prejudice, unfair surprise, undue consumption of trial time, or possible confusion of issues due to the introduction of collateral matters." Id . at 165-66. Moreover, "the use of a computer-generated exhibit requires a more detailed foundation than that for just photographs or photo enlargements." Id . at 169. The witness utilizing a computer-generated exhibit as a demonstrative aid must not only possess the knowledge to accurately identify the content of the exhibit, but also must possess "sufficient knowledge of the technology used to create the exhibit[.]" Id . at 169-70.
In this case, plaintiff planned to have Dr. Ribatsky use certain internet videos, apparently depicting a healthy TMJ and an injured TMJ, as a demonstrative aid during his testimony. After reviewing the videos, the trial judge found they could not be properly authenticated and would be prejudicial. Specifically, the judge found
it's going to mislead the jury into thinking that this is the plaintiff, and this is the exact same type of condition that she's got, and that . . . despite any type of correction that I may be able to make as the judge, to tell them that this is just . . . an illustration, or for illustration purposes, I think that the prejudicial effect is going to outweigh any other . . . probative value of that evidence.
We discern no basis to disturb the wide discretion bestowed on the trial judge in determining whether to permit the use of such demonstrative evidence. See id. at 165. There is nothing in the record to show that the judge's decision to bar these videos was so wide of the mark to constitute an abuse of discretion. The judge reviewed the evidence under the correct legal standards and reached a rational conclusion. Because the demonstrative aid plaintiff sought Dr. Ribansky to use was computer-generated, the judge properly subjected it to heightened scrutiny. See id. at 169-70. Specifically, there is nothing in the record to suggest that Dr. Ribatsky was qualified to testify as to how the videos were generated. See ibid. Finally, plaintiff fails to articulate any convincing reason why the result of the trial would have been different if the judge had permitted Dr. Ribatsky to use the videos during his testimony. Thus, even if the judge erred in this regard, it was harmless error.
Affirmed; cross-appeal dismissed as moot.