SUSAN ABANKWA VS. ROBERT GREER (L-4239-15, MIDDLESEX COUNTY AND STATWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4424-16T4
SUSAN ABANKWA,
Plaintiff-Appellant,
v.
ROBERT GREER, and JEANNE
N. GARNER,
Defendants-Respondents.
______________________________
Argued January 10, 2019 – Decided May 6, 2019
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4239-15.
Matthew S. Forlizzi argued the cause for appellant
(Epstein Ostrove, LLC, attorneys; Matthew S. Forlizzi,
on the briefs).
Mario C. Colitti argued the cause for respondent Robert
Greer (Law Offices of Viscomi & Lyons, attorneys;
Mario C. Colitti, on the brief).
PER CURIAM
Plaintiff, Susan Abankwa, appeals from the May 11, 2017 judgment
entered following a jury verdict in favor of defendant Robert Greer. We affirm.
On or about November 5, 2013, plaintiff was involved in a two-car
accident with Greer.1 Discovery revealed that plaintiff declined treatment from
first responders at the scene. Plaintiff went to Dr. Atiya Nadeem, a gynecologist
and plaintiff's primary care physician, two days after the accident complaining
of soreness, but her medical records did not mention the accident. Plaintiff went
to the emergency room three days after the accident. Doctors ordered x-rays,
prescribed Motrin, and discharged plaintiff the same day. Plaintiff began seeing
a chiropractor, who referred her to a pain management doctor for epidural
injections. Plaintiff consulted with two doctors who specialized in treatment of
the spine; each recommended back surgery. Plaintiff declined surgery and
instead treated her symptoms with a combination of prescription muscle
relaxers, topical creams, and heat compresses.
One year after the accident, plaintiff consulted with a neurologist.
Plaintiff complained of pain in her neck, shoulders, and back, as well as pain
1
Defendant Jeanne Garner was the owner of Greer's vehicle. The complaint
against Garner was dismissed by consent.
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radiating from her neck and shoulders to her fingertips. Plaintiff underwent an
EMG to evaluate nerve function.
On July 17, 2015, plaintiff filed a complaint alleging she suffered serious
and permanent injuries as a result of defendant's negligence. Discovery ensued,
and during her deposition plaintiff testified that, fifteen or twenty years earlier,
she had been in a previous car accident in which she suffered a knee injury. The
knee injury required surgery and post-operative chiropractic treatment. At
deposition she testified her knee was the only part of her body treated for
symptoms related to that accident. During her deposition, plaintiff stated after
the November 5, 2013 accident, she started having back pain that affected her
daily life. Her later trial testimony regarding her history of back injuries differed
from the accounts given during her deposition and interrogatory answers , and
defendant confronted her about these discrepancies during cross-examination.
Both plaintiff's expert, Dr. Marc Cohen, and defendant's expert, Dr.
Steven Robbins, were deposed. Plaintiff moved in limine to strike testimony
relating to plaintiff's prior automobile accident. The court agreed to permit
defendant to cross-examine plaintiff about the earlier accident. Plaintiff also
sought to bar Dr. Robbins from testifying about certain information in her
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gynecological records, as well as the results of the EMG. The court denied the
motion.
At trial, plaintiff testified the accident caused injury to her back and neck.
At trial, Dr. Robbins, a board certified orthopedic surgeon, testified he examined
plaintiff and reviewed her MRIs, EMGs, and other medical records. He testified
there were "no objective findings on [plaintiff's] exam to substantiate her . . .
subjective complaints."
Dr. Robbins noted the EMG showed moderate to severe carpal tunnel
syndrome unrelated to the accident in question and ruled out cervical
radiculopathy. According to Dr. Robbins, the EMG did not show the nerves in
plaintiff's neck were compromised, proving her subjective complaints of
numbness in the arm had no anatomic explanation.
Dr. Robbins also testified plaintiff's medical records of her visit to Dr.
Nadeem, just two days after the 2013 accident, did not mention the car accident
or trauma. Dr. Nadeem's records list thirty-one medical problems, including
chronic pain, fibromyalgia, a back disorder, and neck pain, but Dr. Robbins
claimed those complaints and conditions pre-existed the accident. Moreover,
on November 7, 2013, Dr. Nadeem conducted a range of motion test of plaintiff's
neck and found she had a full active range of motion that was within normal
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limits and there was no tenderness. Subsequent visits to Dr. Nadeem in
December 2013 and January 2014 were also devoid of references to a car
accident or trauma, and revealed similar results in range of motion tests.
After a four-day trial, the jury found Greer was at fault for the accident,
but also found plaintiff failed to prove she sustained a permanent injury
proximately caused by the accident; therefore, the court entered judgment for
defendant. This appeal followed.
On appeal, plaintiff argues the trial judge erred in permitting Dr. Robbins
to testify about an EMG he did not conduct and upon which he did not rely
because it was hearsay and outside the scope of his expertise. She also argues
the judge erred in allowing defendant to cross-examine her regarding the prior
accident and her gynecological records.
"[A] trial court's evidentiary rulings are entitled to deference absent a
showing of abuse of discretion[.]" State v. Nantambu, 221 N.J. 390, 402 (2015)
(first alteration in original) (quoting State v. Harris, 209 N.J. 431, 439 (2012)).
A decision constitutes an abuse of discretion if it was "made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis." U.S. ex rel. U.S. Dept. of Agric. v. Scurry, 193 N.J. 492,
504 (2008) (quotation omitted). Where the trial court fails to apply the correct
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test to determine admissibility of evidence, appellate review is de novo. State
v. Lykes, 192 N.J. 519, 534 (2007). "[W]e will reverse an evidentiary ruling
only if it 'was so wide off the mark that a manifest denial of justice resulted.'"
Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J.
Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
Plaintiff argues Dr. Robbins's testimony relating to the EMG was
inadmissible because he never explicitly stated he relied on the EMG report in
forming his own medical opinion. Second, plaintiff argues Dr. Robbins's
testimony is barred by Rules 803(c)(6) and 808 due to the complexity of
plaintiff's EMG test. N.J.R.E. 803(c)(6), 808. Third, plaintiff asserts Dr.
Robbins lacked the proper qualifications and training to interpret the EMG test.
Essentially, plaintiff contends defendant impermissibly "bootstrapped"
the opinion of a non-testifying expert into evidence. Plaintiff argues Dr.
Robbins's statements regarding the EMG results allowed the jury to conclude
that she did not suffer from a permanent injury caused by the accident, and this
constituted reversible error. We disagree.
Under the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1
to -35, policyholders who accept the "limitation on lawsuit" threshold can only
recover for bodily injuries sustained while operating a motor vehicle if they
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provide objective proof they suffered "a permanent injury within a reasonable
degree of medical probability." James v. Ruiz, 440 N.J. Super. 45, 52 (App.
Div. 2015) (quoting N.J.S.A. 39:6A-8(a)). To recover here, plaintiff needed to
demonstrate the accident caused a permanent injury.
Rule 703 provides:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or
inferences upon the subject, the facts or data need not
be admissible in evidence.
[N.J.R.E. 703.]
The purpose of Rule 703 is to "allow more latitude in the admission of
expert opinion testimony." Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting
Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 284 (1990)).
[T]he testifying expert is generally permitted to detail
for the trier of fact all of the materials, including films,
test results, hospital records, and other experts' reports,
on which he [or she] relied in deriving his [or her]
opinion, so long as they are of a type reasonably relied
upon by experts in his [or her] field.
[Ibid.]
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The underlying data relied upon by a testifying expert is only admissible to
enable an evaluation of the quality of the opinion, not to establish the truth of
any out-of-court statements. Id. at 63.
In Agha, the Supreme Court disallowed expert testimony that an MRI
report established plaintiff suffered a herniated disc where the report was
prepared by a non-testifying doctor and the testifying expert did not review the
MRI himself. Id. at 67. In Brun v. Cardoso, we excluded testimony of a
chiropractor interpreting an MRI report prepared by non-testifying physician
where the testifying expert was unqualified to interpret MRI films. 390 N.J.
Super. 409, 421 (App. Div. 2006). There, we said due to the complexity of
reading MRIs and diagnosing damage to the back and spine, a chiropractor's
opinion that was "substantially reliant on [a non-testifying radiologist's]
interpretation of the MRI films" was inadmissible under Rule 803. Id. at 424.
Here, Dr. Robbins, an orthopedic surgeon, reviewed plaintiff's EMG
results as well as the raw data underlying the EMG, not just the report. Plaintiff
did not challenge Dr. Robbin's qualifications to interpret the EMG findings
either before or after trial, and fails to refer to any evidence or legal authority in
support of her premise this orthopedic surgeon was unqualified to interpret and
testify about the EMG.
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Even if the trial court did abuse its discretion, plaintiff did not show how
the EMG results could have affected the outcome. Dr. Robbins's analysis of the
EMG resulted in the same conclusion he reached from his examination of
plaintiff and her medical records. Therefore, barring Dr. Robbins's statements
about the EMG would not have altered his opinion on the cause of plaintiff's
injury and would not have been likely to affect the verdict.
Plaintiff argues any reference to her prior accident was not relevant and
should have been excluded under Rule 401. In the alternative, she argues
defendant's questions about the prior accident on cross-examination should have
been excluded under Rule 403 because they led jurors to believe she suffered
from pre-existing injuries. Plaintiff additionally contends her testimony about
the prior accident was more prejudicial than probative because she was unable
to recollect when the accident occurred or what injuries she suffered as a result.
Evidence is relevant if it tends to "prove or disprove any fact of
consequence to the determination of the action." N.J.R.E. 401. Relevant
evidence is nevertheless inadmissible "if its probative value is substantially
outweighed by the risk of . . . undue prejudice" or confusion. N.J.R.E. 403. The
party seeking exclusion has the burden of demonstrating the prejudicial effect
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of the evidence substantially outweighs its probative value. Griffin, 225 N.J. at
420.
We discern no abuse of the court's discretion in permitting the questions
relating to plaintiff's previous accident. Plaintiff's testimony contradicted prior
statements she provided in her deposition and in answers to interrogatories;
therefore, the subject testimony was relevant to her credibility. Moreover, the
scope of defense counsel's questioning about the prior accident was limited to
exposing plaintiff's contradictory statements.
We also reject plaintiff's assertion she was prejudiced by Dr. Robbins's
testimony that her 2013 accident was not mentioned in her medical records from
an appointment with Dr. Nadeem two days after the accident. Plaintiff argues
the content of Dr. Nadeem's records was hearsay, and the failure to mention the
accident is neither relevant nor admissible under Rule 401. However, Dr.
Robbins's testimony regarding plaintiff's visit with her physician, to whom
plaintiff provided her medical history, as recorded in Dr. Nadeem's medical
charts, falls within the exceptions provided in Rule. 803(c)(4). Statements made
"for purposes of medical diagnosis or treatment which describe medical history,
or past or present symptoms, pain, or sensations" are admissible "to the extent
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that the statements are reasonably pertinent to diagnosis or treatment." N.J.R.E.
803(c)(4).
Affirmed.
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