BARBARA GARY VS. GEORGE WENTHE(L-2186-11, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 24, 2017
• Docket: A-1722-15T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1722-15T3

BARBARA GARY,

Plaintiff-Appellant,

v.

GEORGE WENTHE,

Defendant-Respondent. _______________________________

Submitted June 8, 2017 – Decided July 24, 2017

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2186-11.

Shebell & Shebell, LLC, and Morley Law, LLC, attorneys for appellant (Thomas F. Shebell, III, of counsel and on the briefs; Robert A. Morley, on the briefs).

Carton Law Firm, LLC, attorneys for respondent (Michael J. Lynch, on the brief).

PER CURIAM

Plaintiff Barbara Gary appeals from the denial of her motion

for a new trial and challenges the jury verdict, which concluded she had no cause of action against defendant George Wenthe. We

affirm.

These facts were presented at trial. While driving home from

work on November 5, 2010, defendant hit plaintiff's Dodge Caravan

in the rear. Plaintiff was wearing her seat belt and the air bag

did not deploy. Plaintiff's two children were in the vehicle and

one was taken for emergency medical care. While at the hospital,

plaintiff experienced lower back pain. She was x-rayed and

released. The next day, her neck was stiff and she experienced

pain on her left side. Plaintiff commenced six months of

chiropractic care. Next, she began trigger point injections to

her lower back and shoulders. When relief was not forthcoming,

she was administered epidural injections and underwent an MRI.

Other treatments were administered to ease the spasms in her back

and numbness in her legs. In April 2011, she began treatment with

Dr. Cary Glastein, a spinal surgeon. Plaintiff was informed about

the risks and benefits of surgery, but chose to continue with non-

surgical treatment.

At trial, plaintiff and her family members related the

consequence of her injuries, which included her inability to return

to work or to enjoy the activities she engaged prior to the

accident. She experienced pain while sitting or standing for

2 A-1722-15T3 extensive periods of time, she lost the ability to ride a bicycle

or dance, and has gained weight.

On cross-examination, defendant demonstrated some of

plaintiff's complaints were not expressed during her course of

treatment, such as her inability to dance. Further, plaintiff's

inability to recall facts, and contradictions between plaintiff's

trial testimony and deposition testimony were highlighted. For

example, at her deposition she stated there was no damage to the

front of her vehicle; yet at trial she stated there was.

Critical to this case was the expert testimony. Plaintiff

presented testimony from Dr. Glastein, who stated plaintiff

initially presented with complaints of pain in her neck radiating

to her arms, and pain in her lower back radiating to her left leg.

His objective findings at that time noted neck and back spasms and

tenderness. However, plaintiff's gait was normal, she had full

range of motion, exhibited normal strength, and showed no

neurological deficits.

Reviewing plaintiff's MRI, Dr. Glastein stated she had four

herniated discs in her neck, with some cord impingement, and a

bulge to herniation in her lumbar spine. He stated the MRI did

not reflect degenerative changes, and he attributed plaintiff's

herniations as caused by the accident. Dr. Glastein stated

plaintiff's current condition caused pain, and is permanent,

3 A-1722-15T3 although symptoms may "come and go." He saw no change in

plaintiff's condition through his course of treatment. He

explained surgery could alleviate the disc herniations, leaving

the patient with disc fusions "and orthopedic hardware," which

"chang[es] things a lot." The risks attendant with surgery were

also very high and when he last saw plaintiff on March 7, 2012,

she had not opted for surgery, as she was improving. Regarding

the herniated conditions in her neck, Dr. Glastein stated

plaintiff's conditions could not be reversed and would likely

worsen over time.

Plaintiff also presented testimony from Douglas Gibbens, a

diagnostic radiologist, who reviewed the MRI films. Dr. Gibbens

confirmed plaintiff suffered four herniated discs and a disc bulge.

Defendant's expert Dr. Arthur Vasen, an orthopedic physician,

examined plaintiff and reviewed her MRI and records. He found her

gait and range of motion were normal. He found no spine

limitations associated with herniations, noting plaintiff

successfully walked on her toes and heels, and bent to touch her

toes within normal range. He identified tenderness in her neck,

but noted no objective signs of neck or back limitations. He

diagnosed plaintiff with cervical sprain and lumbar strain with

no evidence of herniation. Although he noted disc bulging in

4 A-1722-15T3 plaintiff's neck, as shown on the MRI, he could not link these

symptoms as caused by the accident.

At the charge conference, plaintiff offered a charge on

permanent injury. The judge declined to use her drafted charge

in favor of provisions of the Civil Model Jury Charges, which

addressed the need for plaintiff to prove a permanent injury in

order to recover damages. The judge next issued the jury charge,

to which neither counsel voiced exception, and reviewed the verdict

sheet.

After commencing deliberations, the jury asked three

questions, two of which are implicated on appeal. First, the

judge was asked to "restate the definition of permanent injury,

per question number one" of the verdict sheet. Second, the jury

asked: "Can you confirm that a herniated disc or a bulge is a

permanent injury as a defined medical fact?"

To question one, the judge responded:

In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that she sustained injuries which fit into this category. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. If you find the injuries caused by the accident does not come within that category, your verdict must be for the defendant. If you find the injuries caused by the accident do come within that category, your verdict must be for the plaintiff.

5 A-1722-15T3 In this case, plaintiff alleges she suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally, and will not heal to function normally with further medical treatment. I’ll read that one again.

An[] injury shall be considered permanent when the body part or organ, or both, has not healed to function normally, and will not heal to function normally with further medical treatment.

Plaintiff must prove this claim through objective credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing, and cannot be based solely upon the plaintiff’s subjective complaints. Credible evidence is evidence you find to be believable.

As to question two, the judge explained: "If I answered that

yes or no, that would put me in your shoes as the fact finder. I

can’t do that. It is your decision, based on your recollection

of the evidence of the testimony of all of the witnesses."

The jury continued deliberations, while plaintiff's counsel

placed an argument on the record, previously advanced in chambers,

requesting the judge instruct the jury that a herniated disc was

a permanent injury. The judge declined, expanding to counsel the

reasoning undergirding the response given to the jury on question

two:

6 A-1722-15T3 [Y]ou brought that to my attention in chambers. And the way the question was asked by the jury, I viewed it as something where they have to make a factual finding as to whether or not it was a herniated disc.

My defining a herniated disc as a permanent injury or not, I thought would overstep my role. It's their roles as facts finders. That's one. Two, with respect to all that, I know there was a discussion about all doctors agree, a herniated disc is a permanent injury.

The problem I have is that there's many Appellate Division cases that say the jury is free to disregard what the doctors say. And again, I would be stepping into their shoes as a fact finder.

Shortly thereafter, the jury reached a verdict. Voting five

to one, the jury concluded plaintiff did not suffer a permanent

injury proximately caused by the November 5, 2010 accident.

Plaintiff's motion for a new trial was denied. This appeal ensued.

Plaintiff argues the jury instructions were vague, replete

with antiquated language, the judge incorrectly responded to the

jury's questions, and the verdict was against the weight of the

evidence. Each of these issues is directed to the issue of

permanent injury, a requirement set forth in the Automobile

Insurance Cost Reduction Act of 1998, N.J.S.A. 39:6A-8(a), which

allowed insureds to choose automobile policy options, which

succinctly lowered premiums in exchange for limiting the

circumstances for recovery of noneconomic damages. Zabilowicz v.

7 A-1722-15T3 Kelsey, 200 N.J. 507, 509 (2009). "Those covered by the

limitation-on-lawsuit threshold may not sue a tortfeasor for

noneconomic damages unless they suffer a serious or permanent

bodily injury." Ibid. Defined as "when the body part or organ

or both, has not healed to function normally and will not heal to

function normally with further medical treatment." N.J.S.A.

39:6A-8(a).

Plaintiff argues the trial judge's use of Model Jury Charge

(Civil) 5:33B requires reversal. She maintains the charge is

flawed as outdated and the judge's decision to decline her request

to tailor the charge to the facts of this case and the law was

error. Plaintiff focuses on the language of the charge, discussing

her burden to establish permanent damage:

Plaintiff must prove this claim through objective credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing, and cannot be based solely upon the plaintiff's subjective complaints. Credible evidence is evidence that you find to be believable.

The language is taken directly from the Model Jury Charge (Civil)

5:33B(C). Plaintiff's position argues a more accurate charge

would replace "medical evidence" with "objective clinical

evidence," language taken from N.J.S.A. 39:6A-8(a). She

additionally maintains the charge should not have included the

8 A-1722-15T3 word "verified," noting this requisite is satisfied upon filing a

certification of permanency, with the complaint. For the reasons

that follow we reject these arguments.

First, the record reflects plaintiff did not object to the

charge as issued. Failure to do so restricts reversal to only

upon a showing of plain error. See R. 1:7-2 ("[N]o party may urge

as error any portion of the charge to the jury . . . unless

objections are made thereto before the jury retires to consider

its verdict . . . ."). Here, plaintiff voiced no exceptions to

the charge. See Gaido v. Weiser, 227 N.J. Super. 175, 198 (App.

Div. 1988) (requiring a party "to apprise the trial court of the

specific nature" of an objection when the charge is issued).

Second, plaintiff's argument overreads the use of "verified,"

used to define objective proof. The use of the phrase "verified

by physical examination or medical testing" is contrasted with

"the plaintiff's subjective complaints." The change expresses the

need for medical evidence through testing, not simply a patient's

complaints of pain.

The charge when read as a whole, Mogull v. Cb Commer. Real

Estate Grp., 162 N.J. 449, 464 n.2 (2000), is neither misleading

nor a misstatement of the legal requirement of objective evidence

to prove permanent injury. We conclude the charge is accurate and

9 A-1722-15T3 in no way altered the fairness of plaintiff's trial. See Berberian

v. Lynn, 335 N.J. Super. 210, 219 (App. Div. 2002).

Regarding the need for the court to issue a "tailored

instruction," we reject the notion this entitles a party to require

the court to accept their suggested charge. Ibid. The charge

must clearly and accurately state the legal principles, which

guide the factual determinations of a jury. The use of model jury

charges is "recommended as a method, albeit not perfect, for

avoiding error." Pressler & Verniero, Current N.J. Court Rules,

cmt. 8.1 on R. 1:8-7 (2014). The jury instructions used in this

case clearly outlined the relevant statutory elements for

plaintiff to recover damages. We discern no error, let alone

plain error.

We also reject plaintiff argument the jury's confusion was

manifest by its questions. Returning to the Legislature's

"objective clinical evidence" language found in N.J.S.A. 39:6A-

8(a), this argument conflates case law examining whether a

plaintiff has presented sufficient facts to meet the statute's

requisites and overcome the defendant's motion for summary

judgment. Certainly, that plaintiff's experts asserted she

suffered herniations, which they opined were visible from review

of the MRI, does not end the controversy or prove plaintiff in

fact suffered a permanent injury caused by the accident.

10 A-1722-15T3 Defendant, through expert testimony, contested not only the claim

plaintiff's discs were herniated, but also whether the bulging

discs were caused by the accident. These material factual disputes

were the essence of the jury's factfinding function in this case.

The jury was provided with competing evidence as to material

facts through the experts' testimony. Additionally, the jury had

the opportunity to evaluate plaintiff's credibility and to observe

her as she testified. Credibility of the experts and the plaintiff

was critical. We have no basis to suggest the jury failed to

properly sift through the evidence to reach its verdict.

We similarly reject the inference sought to be drawn from the

jury's second question on what evidence is "honest and reliable."

The judge properly rejected plaintiff's suggested charge,

delineating conclusively what she believed was objective and

reliable evidence of her herniated discs. The charge improperly

tread upon the factfinding function of the jury.

Based upon our review, we find no merit to plaintiff's

argument of error in the denial of her motion for a directed

verdict, challenge to the verdict as against the weight of the

evidence, as well as her motion for a new trial.

Affirmed.

11 A-1722-15T3