MARK J. RAGNACCI VS. MEDHAT GHABA (L-1339-14, MERCER COUNTY AND STATEWIDE) ( 2019 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE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-1229-16T2
    MARK J. RAGNACCI and
    AURELIA RAGNACCI,
    husband and wife,
    Plaintiffs-Appellants,
    v.
    MEDHAT GHABA,
    Defendant-Respondent.
    ____________________________
    Argued October 24, 2018 – Decided August 28, 2019
    Before Judges Nugent and Mawla.
    On appeal from the Superior Court of New Jersey, Law
    Division, Mercer County, Docket No. L-1339-14.
    Kenneth William Thayer argued the cause for
    appellants (Gaylord Popp LLC, attorneys; Kenneth
    William Thayer, on the brief).
    Lori A. Kaniper argued the cause for respondent
    (Sponder & Sellitti, attorneys; Lori A. Kaniper, on the
    brief).
    PER CURIAM
    Plaintiff, Mark J. Ragnacci, appeals from an order that dismissed his
    personal injury action after a jury returned a verdict of no cause of action.1 The
    jury found plaintiff had not suffered a permanent injury as defined in the
    limitation on lawsuit option ("verbal threshold"), N.J.S.A. 39:6A-8(a). Plaintiff
    contends the trial court committed reversible error by allowing defense counsel
    to cross-examine plaintiff's medical expert about the percent of partial total
    disability to the neck and back the expert had once opined plaintiff had sustained
    in a workers' compensation accident. We conclude that, if error, the admission
    of the testimony was harmless. Accordingly, we affirm.
    Defendant Medhat Ghaba stipulated to liability for causing the November
    2012 rear-end collision in which plaintiff was injured. Plaintiff conceded he
    was subject to the verbal threshold. During trial, the parties mostly disputed the
    cause and extent of the injuries to plaintiff's neck or cervical spine, left shoulder,
    and lower back or lumbar spine. Plaintiff claimed his injuries were caused by
    the accident and were permanent, that is, they "ha[d] not healed to function
    normally and [would] not heal to function normally with further medical
    treatment." N.J.S.A. 39:6A-8(a). Defendant claimed he was exempt from
    1
    Because plaintiff Aurelia Ragnacci's per quod claim is derivative, and because
    the sole issue on appeal involves Mark J. Ragnacci only, we refer to him in his
    opinion as "plaintiff."
    A-1229-16T2
    2
    liability for noneconomic loss because plaintiff suffered no permanent injuries
    in the accident.
    To prove he suffered a permanent injury, plaintiff described the impact
    caused by the collision—"pretty good"—and presented evidence about the
    moderate damage to the two vehicles. He drove to his home after the accident
    and had his wife take him to a hospital emergency room. There, he complained
    of neck and shoulder pain.        Hospital personnel took x-rays, prescribed
    medication, and discharged him.
    Approximately a week later, plaintiff came under the care of Dr. Barry
    Douglass Fass, a board-certified physiatrist, a specialist in physical medicine
    and rehabilitation. The doctor and the medical personnel in his office treated
    plaintiff for the impairment and pain in his neck, shoulders, middle-back and
    lower back. Plaintiff was also experiencing tingling through his left leg. He
    remained under Dr. Fass's care from November 29, 2012 through October 8,
    2013.
    Plaintiff's treatment included chiropractic manipulation, electrical
    stimulation, hot compresses, and physical therapy.       Two months into his
    treatment, on December 26, 2012, plaintiff underwent magnetic resonance
    imaging (MRI) of his cervical and lumbar spine. As the result of deficits the
    A-1229-16T2
    3
    MRIs revealed, plaintiff's treatment changed to invasive modalities, including
    what plaintiff described as injections of Novocain into his neck and lower back,
    and an injection into his spinal column under general anesthesia. He also had
    electromyography (EMG), which showed pain was "radiating" or going down
    into both his legs "but more into the left leg." Dr. Fass referred him for a
    consultation with a surgeon.
    According to plaintiff, his treatment with Dr. Fass ended in October 2013
    "[b]ecause they couldn't do any more for me." Although the treatment ended,
    plaintiff's pain and impairment continued. He described for the jury his ongoing
    pain and discomfort, as well as the continuing impairment that affected his
    ability to sleep, perform routine daily activities, play with his child, and have a
    normal relationship with his wife.      His wife testified and corroborated his
    testimony.   During plaintiff's testimony, he explained that the injuries he
    suffered to his neck and lower back in a 2007 work accident were not really
    causing him discomfort before the 2012 automobile accident.
    The three doctors who testified described the function of intervertebral
    discs. One analogized a disc to the "tired analogy [of] a jelly doughnut or tire."
    A disc has "an outer lining or an outer skin [like] a jelly doughnut. The inside
    is a gelatinous material called the nucleus that's made up of various . . .
    A-1229-16T2
    4
    components that allow shock absorption movement and provides some
    stability." Bulges and herniations describe the contour of the disk. A bulge
    could be analogized to the flattening of a tire, whereas a herniation, which is
    more focused, could be analogized to a protruding bubble in a tire.
    Another doctor explained that in a normal disc the spinal cord is in the
    middle surrounded by fluid, which acts as a lubricant and allows sliding and
    bending forward and backward. If a disc herniates, there is a tear in the rim that
    holds it. By definition, a disc bulge has no focality and is three millimeters or
    less, whereas herniations are three millimeters or more and have a "focal hook."
    Plaintiff presented the testimony of a board certified radiologist who
    interpreted the December 2012 MRIs.         She said the cervical MRI showed
    herniated cervical discs at C2-3 and C5-6. The herniations appeared to be
    "newer" because they showed no signs of degeneration, which occurs over time
    after a disc herniates. The lumbar MRI showed both bulging and a herniation at
    the L4-5 disc. The herniation was seven millimeters and compressed the spinal
    cord. The MRI also revealed a disc herniation at L5-S1 with impingement of
    the "S-1 root." According to the radiologist, the impingement of the nerve root
    by the L4-5 disc was not a degenerative condition.         The herniations were
    permanent, abnormal conditions.
    A-1229-16T2
    5
    Dr. Fass, plaintiff's treating physician, recounted plaintiff's course of
    treatment, reviewed the diagnostic studies, including an EMG of plaintiff's legs
    that revealed "acute nerve damage in the lower part of both legs which correlated
    with the nerve that was injured from the disc," and explained his final diagnosis
    and prognosis. When he discharged plaintiff, the doctor's diagnosis included
    "bilateral L5-S1 radiculopathy," that is, damage to a "low back nerve that goes
    into his leg." His final diagnosis also included cervical, thoracic, and left
    shoulder strain; disc herniations at C2-3, C5-6, L4-5, and L5-S1; and disc
    bulging at L4-5.
    Dr. Fass opined that plaintiff had sustained permanent injuries to his neck
    and lower back caused by the accident. According to the doctor, plaintiff's
    injuries were structural and were not going to heal to plaintiff's pre-injury state.
    Consequently, "[plaintiff] would continue to experience discomfort and
    limitations of his activities into the future."
    Plaintiff's counsel asked Dr. Fass about the injuries plaintiff had suffered
    in the previous work accident. The doctor explained that plaintiff's primary
    injury in the work accident was to his ulnar nerve. The nerve damage was not
    affected or exacerbated as a result of the automobile accident. Concerning the
    neck and back injuries plaintiff sustained in the work accident, Dr. Fass said that
    A-1229-16T2
    6
    when he first saw plaintiff following the automobile accident, plaintiff "noted
    that his neck and back pain had improved and he was performing normal daily
    activities up until the time of the [automobile] accident."
    Dr. Fass explained that plaintiff did not have radiating pain or numbness
    into his legs following the work accident; those symptoms developed after the
    motor vehicle accident. The doctor added, "the disc abnormalities by MRI were
    significantly worse following the 2012 motor vehicle accident including the
    herniation pressing the nerve at . . . L5-S1 causing that, to me, in my opinion
    . . . the numbness . . . in his legs was never present prior to the motor vehicle
    accident."
    The court had ruled during argument on a pretrial motion in limine that
    defendant could cross-examine the doctor about plaintiff's prior workers'
    compensation accident. Dr. Fass had written a report for plaintiff in which he
    opined as to the percent of partial permanent disability plaintiff had suffered to
    his cervical and lumbar spine in the work accident, and the court had ruled the
    doctor could be cross-examined about that.         Based on its analysis under
    N.J.R.E.403, the court concluded such evidence had probative value that was
    not substantially outweighed by countervailing factors such as undue prejudice
    A-1229-16T2
    7
    or confusion of issues. In addition, the court determined the differences could
    be adequately explained to the jury.
    Apparently anticipating such cross-examination, plaintiff's counsel
    prefaced a question to Dr. Fass with this remark: "I assume on cross[-]
    examination you're going to be asked some questions on those prior evaluations
    you did for the purposes of workers' compensation." Counsel then questioned
    the doctor extensively about the subject.
    Plaintiff's counsel asked the doctor to explain the difference between a
    workers' compensation evaluation on one hand, and rendering an opinion as a
    treating physician in a vehicular negligence case on the other. During his
    explanation, the doctor noted about workers' compensation claims, "New Jersey
    State has its own standard of different—hundreds of different injuries and each
    one of them has some type of percentage of total body part." The doctor noted
    that was why in workers' compensation he was required to opine on "a
    percentage of injury of a specific body part[.]" The doctor also explained the
    differences in the definitions of permanent disability for workers' compensation
    and permanent injury in vehicular accident cases. The doctor said the two areas
    of law provided "separate classification[s] and . . . separate regulations and laws
    regarding . . . what's considered work comp and what's considered through a
    A-1229-16T2
    8
    motor vehicle. So the verbiage is different." He added that he was not asked to
    come up with percentages for motor vehicle accidents; percentages are required
    in workers' compensation claims. The doctor told the jury, "it's basically just a
    different type of, you know, procedural and verbiage and language for different
    accidents. It could be the same part of the body but . . . you have to come [up]
    with a different form depending on . . . which type of accident it was."
    The doctor concluded that the automobile accident "was an aggravation
    of neck and back injuries with worsening disc abnormalities. The nerve damage
    to the legs was never present so that's a . . . brand new injury."
    Defense counsel did not ask on cross-examination about the percent of
    partial permanent disability Doctor Fass had opined plaintiff suffered to his
    cervical and lumbar spine in the workers' compensation accident. Following
    cross-examination and redirect examination, defense counsel brought out on re-
    cross-examination that the doctor had found "permanency" as a result of the
    workers' compensation accident. This is the exchange:
    [Defense Counsel]: And in fact you indicate a
    percentage of permanent partial disability for purposes
    of workers' comp but that's what you say in your
    examination and your narrative report of 2010, correct?
    [Doctor]:    I do. Yes.
    A-1229-16T2
    9
    [Defense counsel]: And in fact you specifically say in
    your last report, November 30, 2010, [fifty-five
    percent] permanent partial disability of the cervical
    spine, correct?
    [Doctor]:   Yes.
    [Defense Counsel]:         Fifty-five percent permanent
    partial disability of the left upper extremity, correct?
    [Doctor]:   Yes.
    [Defense Counsel]: And [fifty] percent permanent
    partial disability of the lumbar spine, correct?
    [Doctor]:    Yes.
    Plaintiff's counsel asked follow-up questions on further redirect
    examination. Specifically, he asked the doctor how percentages required under
    workers' compensation law differed from an opinion of permanency in an
    automobile accident case. The doctor essentially reiterated the answers he had
    originally given during direct examination.
    Dr. Alan Sarokhan, a board certified orthopedic surgeon, testified for the
    defense. He examined plaintiff at the request of defendant, and he reviewed
    plaintiff's medical records, including the MRI studies. He noted plaintiff had
    sustained injuries to his neck and back in a work accident in 2007, and medical
    records documented continuing pain or impairment from those injuries through
    A-1229-16T2
    10
    2010 or 2011. The doctor pointed out that plaintiff underwent permanency
    evaluations for his workers' compensation claim.
    Dr. Sarokhan reviewed MRI studies of plaintiff's neck and back that were
    completed in 2007—following the workers' compensation accident—and
    compared them to the December 2012 MRI studies. He explained what a doctor
    would expect to see on an MRI study following traumatic injury to the spine and
    said he found no evidence of trauma on the 2015 MRI studies.
    On the other hand, the doctor testified the 2007 studies showed significant
    degenerative changes in plaintiff's cervical and lumbar spine. He described the
    degenerative process, explained how over years degeneration could result in
    spinal disc herniations and bulging, and concluded the deficits seen on the
    December 2012 MRIs were caused by a normal degenerative process in
    plaintiff's spine that was evident five years earlier following the 2007 work
    accident. The doctor also told the jury that radiculopathy is not an injury, but
    rather "simply an electrical diagnosis." The doctor said "the overwhelming
    majority of radiculopathy can be resolved[.]" The doctor thus concluded, more
    likely than not, plaintiff's "radiculopathy" was not permanent.
    In its charge, the court instructed the jury about the workers' compensation
    accident:
    A-1229-16T2
    11
    You have heard testimony and argument
    regarding the plaintiff's claim in workers' compensation
    court. Please understand that the term permanency as
    used in the workers' compensation court case has
    different legal standards than the term permanent injury
    used in this case and as provided to you in these
    instructions. The permanency evidence from the
    workers' compensation case may be considered by you,
    along with all of the other evidence in this case in
    evaluating whether or not plaintiff sustained a
    permanent injury that was [proximately] caused by the
    November 23, 2012 accident. Once again, you're
    instructed that the legal standard you must follow to
    determine whether plaintiff sustained a permanent
    injury is the legal standard contained in this jury
    instruction.
    The jury returned its verdict by answering "No" to the following question:
    "Has the plaintiff Mark Ragnacci proven by a preponderance of the evidence
    that he sustained a permanent injury that was proximately caused by the
    November 23, 2012 accident?" This appeal followed.
    On appeal, plaintiff argues, "the testimony as to prior findings of partial
    permanent disability predicated upon estimates of percentages of partial
    permanency, which came to light on questioning on re-cross and not cross, was
    misleading to the jury and caused confusion and undue prejudice in violation of
    N.J.R.E. 403." Plaintiff contends the workers' compensation percentages of
    disability had no bearing on the verbal threshold issue the parties were litigating
    at trial.   Plaintiff further contends the admission of this testimony was
    A-1229-16T2
    12
    exacerbated by the court's inadequate instruction to the jury, which did not
    explain "the meaning and the significance of the estimates of partial permanent
    disability presented to the jury during the charge phase of the trial."
    Our trial courts are vested with broad discretion in determining whether
    proffered evidence is relevant, and if so, whether it should be excluded under
    N.J.R.E. 403 because its probative value is substantially outweighed by the risk
    of undue prejudice, confusion of issues, misleading the jury, or other
    considerations. Wymbs v. Twp. of Wayne, 
    163 N.J. 523
    , 537 (2000). For that
    reason, we review such decisions for abuse of discretion. Estate of Hanges v.
    Metro. Prop. & Cas. Ins. Co., 
    202 N.J. 369
    , 383-84 (2010). A party may
    demonstrate such an abuse of discretion by establishing the trial court's ruling
    resulted in "manifest error or injustice," Hisenaj v. Kuhner, 
    194 N.J. 6
    , 20 (2008)
    (quoting State v. Torres, 
    183 N.J. 554
    , 572 (2005)); or by demonstrating "there
    has been a clear error of judgment." State v. Brown, 
    170 N.J. 138
    , 147 (2001)
    (quoting State v. Marrero, 
    148 N.J. 469
    , 484 (1997)).
    Here, plaintiff has demonstrated neither manifest error, injustice, nor a
    clear error of judgment. The percent of partial permanent disability plaintiff
    suffered to his neck and back in the work accident arguably had probative value.
    Plaintiff's expert testified that the injuries plaintiff sustained in the automobile
    A-1229-16T2
    13
    accident aggravated and exacerbated the cervical and lumbar injuries plaintiff
    had sustained in the work accident. The percentages could have aided the jury
    by providing a more concrete understanding of the extent of the aggravation.
    That said, the testimony potentially opened the door to plaintiff eliciting
    testimony from Doctor Fass concerning the percentage of partial permanent
    disability plaintiff was left with in his neck and back following the automobile
    accident.    That would have led to an undue distraction: arguments about
    percentage of injuries relevant to the precise compensation a petitioner is
    entitled to as the result of a workers' compensation accident, but having little to
    do with the compensation a plaintiff is entitled to in a negligence action, and
    little if anything to do with the verbal threshold's definition of a permanent
    injury.     The better course would have been to bar questions about percentages
    of partial permanent disability and confine questioning to the doctor's opinion
    that plaintiff had previously suffered permanent injuries.
    Regardless, even if admission of the testimony was error, it was harmless.
    R. 2:10-2. Plaintiff's treating physician provided a lucid explanation of the
    differences of the deficits in plaintiff's cervical and lumbar spine based on
    comparison of the MRI studies following the work accident with those following
    the vehicular accident. The defense expert gave an equally lucid explanation of
    A-1229-16T2
    14
    the differences, but attributed them to a degenerative process, rather than the
    automobile accident.
    In addition, plaintiff's treating physician provided the jury with a clear
    explanation of the difference in terminology and criteria between workers'
    compensation cases and verbal threshold cases. Not only did plaintiff's treating
    physician clearly explain the differences, but the trial court adequately
    instructed the jury on how it could consider testimony about the percentages of
    partial permanent disability that plaintiff's treating physician had given in the
    workers' compensation case.
    In short, it was clear from the expert testimony and the court's instruction
    to the jury that the central issue in the case was whether the injuries evidenced
    by the spinal disc deficits displayed on the post-vehicular accident MRI films
    were caused by trauma from the automobile accident or resulted from a
    degenerative process. Considering all of the evidence presented to the jury, the
    arguments of counsel, and the trial court's instruction, it cannot be reasonably
    concluded that the brief testimony of plaintiff's physician about disability
    percentages, on re-cross examination, was of such a nature as to have been
    clearly capable of producing an unjust result. R. 2:10-2.
    Affirmed.
    A-1229-16T2
    15