NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 24, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-556-10.
Stephen A. Rudolph and James M. Merendino argued the cause for appellants (Rudolph & Kayal, attorneys for appellant Lisa Marshall; Connell Foley, LLP, attorneys for appellant New Jersey Manufacturers Insurance Company; Mr. Rudolph and Mr. Merendino, on the joint briefs).
John M. Vlasac, Jr., argued the cause for respondent (Vlasac & Shmaruk, LLC, attorneys; Mr. Vlasac, on the brief).
Before Judges Grall, Koblitz and Accurso.
In this verbal threshold case tried only on damages, defendant Lisa Marshall appeals from entry of judgment, after a jury verdict in favor of plaintiff Mitzi Rosado, in the amount of $976, 063.65, and from denial of her motion for a new trial or remittitur. Because plaintiff's counsel's patently inappropriate statements about the defense expert in summation were clearly capable of producing an unjust result, we reverse and remand for a new trial on damages.
Plaintiff, fifty-one years old, was the driver of a car rear-ended by defendant on Saturday, February 16, 2008. Plaintiff's mother was a back-seat passenger. Plaintiff accompanied her mother to the hospital in an ambulance but did not seek treatment herself. On the Monday following the accident, plaintiff visited an orthopedist, complaining of neck and back pain. The doctor recommended three weeks of physical therapy. Having completed those twelve visits without significant relief, plaintiff returned to her doctor who referred her for an MRI.
The MRI report of plaintiff's cervical spine noted slight disc bulges at C2-3 and C4-5 both without central canal, lateral recess or neural foraminal stenosis; a disc bulge at C5-6 with facet degenerative changes especially on the left and mild left foraminal encroachment; and a disc bulge at C6-7 extending into the neural foramen especially on the left with mild neural foraminal encroachment worse on the left. The radiologist's impression was "disc bulges most significant at C6-7 and C5-6. Facet degenerative changes especially on the left at C5-6. No focal disc herniation."
The MRI report of plaintiff's lumbar spine noted a disc herniation at L3-4 and a smaller one at L4-5, both in the left lateral recess and neural foramen with posterior element spondylosis and no central canal, right lateral recess or right neural foraminal stenosis; and a disc bulge at L5-S1 posterocentrally and extending into the right lateral recess and neural foramen, with no central canal, left lateral recess or left neural foraminal stenosis. The radiologist's impression was "disc herniations left lateral recess and neural foramen L3-4 and to a lesser extent L4-5. Disc bulge more prominent on the right L5-S1. Posterior element spondylosis."
Plaintiff's doctor advised that she could either go back to physical therapy or try epidural injections. Plaintiff did neither. She testified that physical therapy "just wasn't working, " and that the risk of infection, paralysis and immune system suppression from injections, coupled with their being only a "temporary fix, " caused her to reject that option. Plaintiff visited a chiropractor one time and saw another orthopedist three times. No doctor recommended surgery. She testified that she tried another physical therapist "much later . . . but that was probably worse." Plaintiff takes no prescription medication but takes Aleve "probably five times a week." She missed only one day of work, the Monday after the accident when she first went to the doctor, and had no other treatment in the over three-and-a-half years between the accident and trial.
Plaintiff testified that she is always in pain, which she described "as having a knife in my back constantly." She testified that the pain in her back radiates down her legs and her knees and has not abated at all since the accident. She testified that she suffers from frequent headaches and the pain in her neck radiates to her shoulders such that she feels as if she has "a monkey on [her] back." In response to a question from her counsel as to whether her pain was "ever non-existent, " she testified, "No. It's always there. The pain in the neck and back are always there." She testified that she never had any problems with her neck or back prior to the accident.
Besides plaintiff, the only other witnesses to testify were the parties' board certified orthopedic experts, both of whom testified on videotape. Plaintiff's expert testified that plaintiff suffered disc bulges at levels C5-6 and C6-7 and herniations at L3-4 and L4-5 as a result of the accident and that her injuries were permanent. Defendant's expert testified that plaintiff had suffered only temporary cervical and lumbar strain in the accident with no objective medical evidence of herniated discs or cervical or lumbar radiculopathy, and that she was exaggerating her symptoms.
During the de bene esse deposition of the defense expert, plaintiff's counsel confronted him with his testimony in two prior cases, questioned his review of the MRI studies in this case, and explored the extent of his work on behalf of defendants in personal injury cases. Because counsel justifies his summation comments about the expert on the basis of the expert's response to these questions, we discuss them at length. Plaintiff's counsel asked the defense expert whether he would agree that the medical literature states that ninety percent of the traumatically induced herniated discs in the lumbar spine occur at levels L4-5 and L5-S1. The expert responded, "That's the most common area where you see degeneration or disc pathology, period." The transcript continues as follows:
Q Well, Doctor, my question was, do you agree that the literature, orthopedic literature that is, your area of specialty, that the literature says approximately 90 percent of traumatically induced herniated discs occur at L4-L5 and L5-S1, do you agree with that?
A I agree with that with also the explanation that not just traumatic, but degenerative changes are also most commonly seen at those levels.
After ascertaining that the expert could not recall "an examination case from several years ago, " counsel then confronted the expert with his prior testimony as follows:
Q Fair enough. Let me refresh your recollection. I'm specifically looking at a transcript from Goodman vs. Nunez with an April 14, 2008 date. I'm looking at Page 28, Lines 7 through 11 and the question asked of you under oath, as you are today, Doctor, at that time was, "Would you agree that generally in the orthopedic literature, that approximately 90 percent of traumatically induced herniated discs occur at the L4[-]L5 and L5[-]S1?" And your answer was, "Right."
Does that refresh your recollection how you testified in front of that jury and that judge on that date?
A Again, all disc pathology, whether it's traumatic or degenerative is primarily at those levels.
Q So traumatic or – so which testimony do you want to change? The one you gave in front of the jury under oath on that day or [are you] going to go with what you said here today, that it's not just traumatic, the literature is also traumatic and degenerative?
Later in the testimony, counsel asked the defense expert, whether a disc "that has signs of degeneration be more or less prone to acute herniation with trauma?" The expert responded:
A I would probably make the statement that it might be actually less because the disc is of softer consistency and is less likely to respond to a firm pressure or sudden trauma, you know. Can it happen in a ...