NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3580-16T2
LUZI BARTSCH,
Plaintiff-Appellant,
v.
IRMA LAGE,
Defendant,
and
GEICO INSURANCE COMPANY,
Defendant-Respondent. ________________________________
Argued July 17, 2018 – Decided January 10, 2019
Before Judges Ostrer and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5583-14.
Lazaro Berenguer argued the cause for appellant (Clark Law Firm, PC, attorneys; Lazaro Berenguer, on the briefs). Bryan T. Kurtzberg argued the cause for respondent (Law Offices of Cindy L. Thompson, attorneys; Bryan T. Kurtzberg, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
Plaintiff Luzi Bartsch appeals from the dismissal of her auto negligence
lawsuit seeking underinsured motorist benefits from her auto insurer, defendant
Geico Insurance Company, for injuries she suffered in a collision caused by
defendant Irma Lage. Two experts testified that Bartsch's injuries were
permanent. However, the trial court granted Geico's motion for involuntary
dismissal because neither stated that his opinion was within a reasonable degree
of probability. Bartsch appeals from this and several evidentiary rulings. We
affirm some of the evidentiary rulings, reverse others, and reverse the
involuntary dismissal and remand for a new trial.
I.
On January 25, 2013, Lage ran a stop sign and collided with Bartsch's car.
Bartsch claimed her neck and back were injured. After settling with Lage,
Bartsch sought underinsured motorist benefits from Geico, which disclaimed
liability because she had not satisfied the "limitation on lawsuit" coverage option
she selected. In particular, Geico maintained she had not suffered "a permanent
A-3580-16T2 2 injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a).
The matter was tried before a jury solely on the issue of damages, specifically
whether the accident caused Bartsch's injuries, and whether they were
permanent.
Several of the trial court's rulings are at issue. First, the trial judge
excluded Bartsch's husband from testifying about the effect of the accident on
her daily living. In its interrogatories, Geico requested that Bartsch provide the
names of individuals with knowledge of any of the relevant facts. In response,
Bartsch generally identified "all persons named in answers to interrogatories and
depositions," and her "family members," but did not expressly identify her
husband. During her deposition, however, she referred to her husband and
explained the injuries from the accident affected her relationship with him.
When Bartsch later named her husband as a fact witness at trial, Geico claimed
undue surprise and sought to bar him from testifying because Bartsch had not
specifically named him in her interrogatory answer. The trial court agreed.
The next evidentiary ruling occurred at trial. Geico called only one expert,
Dr. Edward Decter, an orthopedic surgeon who examined Bartsch in March
2015. Before examining Bartsch, Dr. Decter reviewed her post-accident medical
records, including those of a spinal surgeon, Dr. Kopacz, who examined Bartsch
A-3580-16T2 3 soon after the accident. Relying in part on Dr. Kopacz's records, Dr. Decter
testified that Bartsch's alleged pain was not consistent with the area of her neck
she said was injured in the accident. He opined that the pain arose from the
gradual degeneration of her spine and loss of water content. He also disputed
that she sustained any permanent injury.
In response to Geico's questioning, Dr. Decter relayed objective findings
that Dr. Kopacz reported upon physical examination. Dr. Kopacz noted Bartsch
had a normal gait, sensation to light and pin-prick touching, reflexes, and
strength in her extremities. Dr. Kopacz also reported no finding of "any patchy
deprivation of sensation," contrary to what Bartsch self-reported to Dr. Decter.
Notably, Geico's counsel stopped Dr. Decter when he appeared ready to disclose
Dr. Kopacz's opinion regarding Bartsch's MRI results.
Bartsch's counsel objected on the ground that Dr. Kopacz was not a
witness and could not be cross-examined; allowing Dr. Decter to repeat Dr.
Kopacz's findings would, therefore, allow Dr. Kopacz's statement "through the
back door." The trial judge overruled the objection and held Dr. Decter could
relay Dr. Kopacz's report as the basis for his opinion. Shortly thereafter,
Bartsch's counsel objected again, arguing that Geico wanted the jury to consider
A-3580-16T2 4 Dr. Kopacz's report for its truth, and it constituted "complex and disputed
matters." The trial judge overruled the objection again.
The trial judge also denied Bartsch's request to question Dr. Decter about
a censure he received from the Board of Directors of the American Association
of Orthopaedic Surgeons. The censure related to one of his written expert
reports, which the organization found was not given "in a fair and impartial
manner," in violation of its Standards of Professionalism for Orthopaedic Expert
Witness Testimony. The trial judge barred evidence of the censure because
Bartsch could provide no information about the organization's procedures and
whether they complied with Dr. Decter's due process rights. 1
The trial court's final, and most crucial, ruling was to dismiss the suit after
Bartsch rested, because her experts had not specifically stated they were
testifying to a reasonable degree of medical probability. The two expert
witnesses were a chiropractor and a pain management physician. Each
examined or treated her after the accident.
1 We note that the trial court nonetheless permitted Geico to question Bartsch's expert, Dr. Burt, on a reprimand he received from the New Jersey State Board of Medical Examiners, based on the findings of its Virginia counterpart, for violating a Virginia law against deceptive or fraudulent activity. However, Geico's counsel ultimately chose not to reference the reprimand, apparently for tactical reasons. Therefore, we need not pass on the propriety of its admission. A-3580-16T2 5 Bartsch had previously visited the chiropractor, Dr. Mark Rodrigues, for
neck and back pain several times, but had stopped the visits a few months before
the accident. She returned after the accident with renewed pain, and saw him
forty-eight more times. He diagnosed Bartsch with cervicalgia and lumbalgia
and opined that the pain she suffered after the accident was unrelated to her pre -
accident pain. Dr. Rodrigues also opined that her injury was permanent, given
that she was still in pain well after the accident. When asked if he was certain
in his assessments, Dr. Rodrigues said, "without a doubt."
The pain management specialist, Dr. Clifton Burt, who first saw Bartsch
after the accident, relied on an electromyographic test (EMG) in diagnosing
cervical and lumbar radiculopathy, which he testified were a result of the car
accident. When asked if the injuries were permanent, he said, "[I]t's very
possible that any movement with the disc bulge still sitting there can re-irritate
a nerve root again." He repeated, "[Y]es, it's a good possibility that the original
cause and the original disc bulges can lead to permanent symptoms." While
both Dr. Rodrigues and Dr. Burt had submitted written certifications before trial
stating they held their opinions "to a reasonable degree of medical certainty,"
neither used that phrase while on the stand.
A-3580-16T2 6 At the close of Bartsch's case, Geico moved for a directed verdict on the
ground that the two experts had not testified to a "reasonable degree of medical
probability," and had testified only that Bartsch "had bulges." The trial judge
granted the motion and entered an involuntary dismissal under Rule 4:37-2(b),
explaining:
[T]he issue of expert testifying with a reasonable degree of medical probability is one of the things I look for. . . . [I]n this particular case when the plaintiff had his doctors testify for whatever reason he did not have them testify to that standard and though counsel for the defense did it with Doctor Decter I was waiting for it from the plaintiff and it didn't occur. . . . The issue here is whether together with the legitimate inferences therefrom plaintiff has made out a case in the verbal threshold . . . . [T]o establish permanency you have to have an expert who['s] testifying within a reasonable degree of medical probability. And as I said there is no establishment by the plaintiff of reasonable medical probability based upon the testimony of the physicians . . . .
On appeal, Bartsch contends the trial court erred in: granting the directed
verdict; "disregard[ing] James v. Ruiz"2 by allowing Dr. Decker to "back door"
Dr. Kopacz's opinion; barring her husband from testifying; and barring her
counsel from cross-examining Dr. Decker about his prior sanction. Bartsch also
seeks the costs of appeal pursuant to Rule 2:11-5.
2 440 N.J. Super. 45 (App. Div. 2015). A-3580-16T2 7 II.
A.
We first address the trial court's dismissal of Bartsch's case based on its
finding that she failed to present expert testimony within a reasonable degree of
medical probability that her injuries were caused by the accident and permanent
in nature.
In reviewing an involuntary dismissal motion, we apply the same standard
the trial court does. Smith v. Millville Rescue Squad, 225 N.J. 373, 397
(2016). After a plaintiff has rested, a defendant may move to dismiss if "upon
the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-
2(b). The motion shall be denied "if the evidence, together with the legitimate
inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.
Involuntary dismissal should be granted only if "no rational juror could conclude
that the plaintiff marshaled sufficient evidence to satisfy each prima facie
element of a cause of action." Godfrey v. Princeton Theological Seminary,
196 N.J. 178, 197 (2008).
As Bartsch's injury did not result in "death; dismemberment; significant
disfigurement or significant scarring; displaced fractures; [or] loss of a fetus, "
she was barred from recovering damages for "non-economic loss" unless she
A-3580-16T2 8 could prove she suffered a "permanent injury within a reasonable degree of
medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a);
see also DiProspero v. Penn, 183 N.J. 477, 488 (2005). An injury is "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." N.J.S.A.
39:6A-8(a). A plaintiff must serve on the defendant a certification from a board-
certified licensed physician, or licensed treating physician, stating that the
plaintiff has suffered a qualifying injury "based on . . . objective clinical
evidence." Ibid. The trial court may properly dismiss a suit that lacks the
requisite expert medical testimony based on objective clinical evidence. Agha
v. Feiner, 198 N.J. 50, 61 (2009). In addition to proving a permanent injury, a
plaintiff must adduce expert testimony, within a reasonable degree of medical
probability, that the accident caused the injury. Johnesee v. Stop & Shop Cos.,
174 N.J. Super. 426, 431 (App. Div. 1980).
"[M]edical-opinion testimony must be couched in terms of reasonable
medical certainty or probability; opinions as to possibility are inadmissible."
Ibid. However, the certainty requirement does not oblige experts to use
"'talismanic' or 'magical words,'" so long as the court is "persuaded that 'the
doctor was reasonably confident of'" the opinion. Eckert v. Rumsey Park
A-3580-16T2 9 Assocs., 294 N.J. Super. 46, 51 (App. Div. 1996) (quoting Azpiazu v. Orgera,
535 A.2d 338, 342 (Conn. 1987)); see also id. at 52 (stating that opinion as to
causation will not "be satisfied by a single verbal straitjacket alone, but, rather,
by any formulation from which it could be said that the witness' whole opinion
reflects an acceptable level of certainty") (quoting Matott v. Ward, 399 N.E.2d
532 (N.Y. 1979)).
Therefore, the issue before us is whether Bartsch's experts' testimony,
taken as a whole, reflects the requisite degree of certainty, although neither
uttered the "magic words" that they held their opinions within a reasonable
degree of medical probability. Dr. Rodrigues engaged in the following give and
take at trial:
Q: Based on your treatment . . . and the knowledge of her medical history . . . what do you believe was the cause [of] the damage to [Bartsch's] spine?
A: I believe the cause was the [motor vehicle accident] in question.
Q: What is it about being in a crash that is consistent to the injuries and the damages that you see in her spine that's consistent to her diagnosis?
A: I believe that it's due to hyperflexion/hyperextension injury. Basically what that means is any kind of time you have trauma that puts the spine in forward, backward, lateral or rotation motion quickly it causes damage.
A-3580-16T2 10 Counsel later asked if Dr. Rodrigues had "any doubt that [Bartsch] sustained a
permanent injury to her spine and that her injuries were caused by the . . . car
accident." Dr. Rodrigues answered, "I have no doubt."
Although Dr. Rodrigues did not recite the phrase "reasonable degree of
medical probability," he demonstrated his confidence at least as forcefully in his
own words – "I have no doubt." Furthermore, regarding causation, he repeatedly
asserted his unqualified "belief" that the car accident caused Bartsch's injury.
His opinion was neither equivocal nor stated in terms of "possibilities." We
conclude, therefore, that his opinion reflected the requisite degree of certainty.
Dr. Burt's testimony, in contrast, was less certain, as he did not clearly
convey a confidence to a degree of probability. When asked if the damage was
permanent, Dr. Burt answered:
As far as the disc bulge, yes. As far as the nerve with inflammation, that's down but it can recur. . . . So, in 2013 she can be at a [pain level of] two out of ten but it's very possible that any movement with the disc bulge still sitting there can re-irritate a nerve root again, even after that. So, yes, it's a good possibility that the original cause and the original disc bulges can lead to permanent symptoms, depend[ing] on what you do in activity.
[Emphasis added.]
A-3580-16T2 11 When counsel then asked him if the accident had caused Bartsch's injuries,
Dr. Burt said, "My answer to that is yes." Counsel prodded him further, "How
do you know that?" Dr. Burt responded:
[T]hose symptoms that she came in for were sudden and then in the treatment of them, if it was nerve root inflammation that goes down, the symptoms can go down when treated acutely, then those discs were moved at some time from some kind of trauma and this accident is what matches up to me.
Though it was clear Dr. Burt stood by his testimony, his choice of words
fell short of conveying an opinion to a reasonable degree of medical probability.
Regarding permanency, the most he expressed was that it was "very possible"
and "a good possibility" the injuries were permanent. Regarding causation, his
most forceful language was "yes" and "this accident is what matches up to me."
These remarks reflected only that Dr. Burt considered his opinion reasonable or
plausible.
Nonetheless, the court erred in dismissing plaintiff's suit for failure to
present essential expert opinion as to permanent injury, as plaintiff met that
requirement through the testimony of Dr. Rodrigues.
B.
Bartsch contends that Dr. Decter's recitation of Dr. Kopacz's report was
inadmissible hearsay relating to a complex and contested issue. We disagree.
A-3580-16T2 12 We review the trial court's evidentiary ruling for an abuse of discretion.
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 269, 382 (2010).
However, we owe no deference to an evidentiary ruling based on a
misapplication of the law. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371 (2011).
Under the "business records" exception to the hearsay rule, medical
records are admissible to prove the truth of the matters stated therein, absent
indicia of untrustworthiness, when made by someone "with actual knowledge or
from information supplied by such a person"; "at or near the time of
observation"; and "in the regular course of business." N.J.R.E. 803(c)(6).
However, an opinion or diagnosis included in the medical record shall not be
admitted to prove its truth "if the declarant has not been produced as a witness
unless the trial judge finds that the circumstances involved in rendering the
opinion" support its trustworthiness. N.J.R.E. 808; see also N.J.R.E. 803(c)(6)
(stating "opinions or diagnoses" are admissible as business records "subject to
Rule 808"). Those circumstances include "the motive, duty, and interest of the
declarant, whether litigation was contemplated by the declarant, the complexity
of the subject matter, and the likelihood of accuracy of the opinion." Ibid.
A-3580-16T2 13 On the other hand, a testifying expert may base his or her opinion on "facts
or data" otherwise inadmissible as hearsay, so long as experts in the field would
reasonably rely on those materials. N.J.R.E. 703. Introduction of such hears ay
facts or data, however, is permitted only "for the limited purpose of
understanding the basis of the testifying expert's opinions," not for the truth of
the asserted facts. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 173-74
(App. Div. 2013). "The testifying expert must not function as a mere 'conduit'
for the substantive admission of inadmissible hearsay." Agha, 198 N.J. at 63.
A non-testifying expert's opinion is only admissible, whether as a
"business record" or as "facts or data . . . upon which a" testifying expert relies,
if it consists of "routine" – as opposed to "disputed or complex" – findings.
James v. Ruiz, 440 N.J. Super. 45, 63, 66 (App. Div. 2015). Courts have
"traditionally admitted 'routine' findings of experts contained in medical records
that satisfy the business record exception, but ha[ve] excluded 'diagnoses of
complex medical conditions' within these records." Id. at 63 (citing State v.
Matulewicz, 101 N.J. 27, 32 (1985)).
To admit complex and disputed opinions would deprive the adverse party
"an opportunity to cross-examine the declarant on a critical issue" that other
experts may have approached differently. Nowacki v. City Med. Ctr., 279 N.J.
A-3580-16T2 14 Super. 276, 282-84 (App. Div. 1995) (holding hospital record characterizing
injury as "pathologic" was an inadmissible complex, disputed opinion as it could
be interpreted as a conclusion on causation, and opposing party needed
opportunity to challenge the judgment behind that characterization); see also
Brun v. Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006) (excluding non-
testifying doctor's MRI reading contained in record because MRI interpretation
is nuanced and the subject of differing opinions; allowing the opinion would
"bootstrap" it into evidence without an opportunity to cross-examine its author).
Here, the trial judge did not abuse his discretion by allowing Dr. Decter
to testify about Dr. Kopacz's observations. The report involved issues that,
while disputed, were not "complex" within the contemplation of N.J.R.E. 808.
Dr. Decter said that Dr. Kopacz "found preserved range of motion of her back
and her neck, no neurological deficits or anything like that."3 Bartsch "moved
slowly" but with a normal gait; she had normal "sensation to light touch and pin
prick in her upper and lower extremities," without the "patchy" areas lacking
sensation of which she complained; she had normal "motor" capacity; she had
3 We recognize that the diagnosis of neurological conditions are often complex opinions. But, in context, we understand "neurological deficits" simply to refer back to the non-complex observation that Bartsch could move her back and neck without restriction. A-3580-16T2 15 "negative tinels and falens," which Dr. Decter explained, signaled that she did
not suffer from carpal tunnel syndrome. These findings did not involve
specialized or complex evaluations.
We therefore discern no error in the court's evidentiary ruling, permitting
Dr. Decter to convey Dr. Kopacz's objective findings.
C.
We next address the trial court's exclusion of Bartsch's husband as a fact
witness at trial. We agree with Bartsch that her interrogatory answers, together
with her deposition, put defendant on notice that her husband would testify, and
the trial judge abused his discretion in barring Bartsch's husband's testimony.
"The discovery rules are to be construed liberally and broadly to facilitate
the search for the truth during litigation." Thomas v. Toys "R" Us, Inc., 282
N.J. Super. 569, 581 (App. Div. 1995). Nonetheless, a party may not resort to
"[c]oncealment or surprise." Ibid. (quoting Lang v. Morgan's Home Equip.
Corp., 6 N.J. 333, 338 (1951)). A party is required to amend interrogatory
answers to correct incompleteness or inaccuracy. R. 4:17-7.
The trial court may, in its "sound discretion," sanction a party by
excluding a witness whom an adversary fails to name in response to a request.
Brown v. Mortimer, 100 N.J. Super. 395, 401-02 (App. Div. 1968). The sanction
A-3580-16T2 16 will be upheld so long as "just and reasonable." Id. at 401. However, three
factors "strongly urge the trial court, in the exercise of his [or her] discretion, to
suspend the imposition of sanctions, namely, (1) the absence of a design to
mislead, (2) absence of the element of surprise if the evidence is admitted, and
(3) absence of prejudice which would result from" admitting the evidence. Id.
at 402. "'Prejudice'in this context refers not to the impact of the testimony itself,
but the aggrieved party's inability to contest the testimony because of late
notice." State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011).
In Thomas, we affirmed the trial court's order excluding a personal injury
plaintiff from introducing a positive X-ray discovered in her doctor's file at trial.
282 N.J. Super. at 580-81. We noted the surprise to defendant, which could not
have anticipated the X-ray report, in the absence of a report from the plaintiff's
physician, and in light of other negative diagnostic tests. Id. at 582. We also
stressed the prejudice to defendant, which "had prepared a case built around a
theory that no objective medical findings through X-rays or MRIs were
reported," and was not prepared to cross-examine the doctor on the X-ray or to
question its own expert on the X-ray's significance. Ibid.
In contrast, where the plaintiff "should have been fully prepared to deal
with" a new expert's report, the court did not err in permitting the expert to
A-3580-16T2 17 testify. See Gaido v. Weiser, 227 N.J. Super. 175, 192-93 (App. Div. 1988)
(holding evidence was properly admitted where it was "in line with the theory
of the case" prepared by opposing party); Brown, 100 N.J. Super. at 401-02
(holding evidence was properly allowed where the witness was not specified but
the adverse party anticipated another witness in his stead).
Here, Bartsch did not specifically name her husband as a fact witness, and
she did not timely amend her answer to the interrogatory upon deciding her
husband would testify. However, the trial judge acknowledged that Bartsch's
failure to amend her answer was not designed to mislead defendant. Therefore,
the sole question is whether the husband's testimony reasonably would have
surprised or prejudiced defendant.
Regarding surprise, defendant was aware Bartsch had a husband and that
she claimed diminished sexual relations as a result of the accident. Additionally,
Bartsch listed "family members" in her answer to defendant's interrogatory. We
conclude defendant was on notice that Bartsch's husband was a potential
witness; it was, furthermore, to be expected that he might testify about the effect
of the accident on his wife's domestic life.
As for prejudice, defendant should have been prepared to confront the
husband, given plaintiff's disclosure in her disposition. To avoid any
A-3580-16T2 18 conceivable prejudice from the late discovery that the husband would testify,
the trial court could have permitted defendant to depose the husband mid -trial,
rather than bar his testimony.
In sum, we conclude the court mistakenly exercised its discretion in
barring the husband's testimony.
D.
We next address Bartsch's claim that the trial judge improperly barred her
from cross-examining Dr. Decter on his censure by the American Association
of Orthopaedic Surgeons. We affirm the trial court's decision.
A party may attack a witness's credibility with "evidence in the form of
opinion or reputation" relating to the witness's propensity for truthfulness or
untruthfulness. N.J.R.E. 608(a). However, evidence in a civil trial of "specific
instances of conduct" involving untruthfulness, other than evidence of a
conviction, is inadmissible to impeach a witness's credibility. N.J.R.E. 608(a);
N.J.R.E. 609; see also Delgaudio v. Rodriguera, 280 N.J. Super. 135, 143-44
(App. Div. 1995) (stating that a Board of Medical Examiners' opinion that a
witness had a "propensity . . . to play somewhat fast and loose with the truth"
was admissible under N.J.R.E. 608, although evidence of the underlying conduct
was not).
A-3580-16T2 19 Here, Dr. Decter's censure by the American Association of Orthopaedic
Surgeons was inadmissible to impeach his credibility under N.J.R.E. 608
because it was not in the form of opinion or reputation testimony, but instead
reported a specific instance of conduct. Since the censure involved no
conviction for a crime by a competent court of law, it was not admissible under
N.J.R.E. 609.
Bartsch's remaining points lack sufficient merit to warrant extended
discussion. See R. 2:11-3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
A-3580-16T2 20