MARLENE MORGAN VS. PROGRESSIVE INSURANCE COMPANY, ETC. (L-4987-13, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2964-15T2
MARLENE MORGAN,
Plaintiff-Respondent,
v.
PROGRESSIVE INSURANCE COMPANY
and/or PROGRESSIVE GARDEN
STATE INSURANCE COMPANY,
Defendant-Appellant.
______________________________________________
Argued October 3, 2017 – Decided November 8, 2017
Before Judges Yannotti, Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-4987-13.
Jennifer A. Hindermann argued the cause for
appellant (Cooper Maren Nitsberg Voss &
DeCoursey, attorneys; Ms. Hindermann, on the
briefs).
Michael H. Foster argued the cause for
respondent (Stark & Stark, attorneys; Mr.
Foster, on the brief).
PER CURIAM
Plaintiff Marlene Morgan asserted a claim against defendant
Progressive Insurance Company and/or Progressive Garden State
Insurance Company for underinsured motorist (UIM) coverage arising
from a motor vehicle accident, in which she allegedly sustained
personal injuries. Defendant appeals from the judgment for
plaintiff entered by the trial court on April 1, 2016. We affirm.
I.
On November 28, 2008, plaintiff was a passenger in a vehicle
being driven by Gregory Moten westbound on Evesham Road in Cherry
Hill. At the time, Ashoke Das was operating a vehicle in the
opposite direction. According to plaintiff, Das attempted to make
a left turn onto Caldwell Road in front of the Moten vehicle.
Das's vehicle struck the front of the Moten vehicle, and plaintiff
sustained certain injuries.
Thereafter, plaintiff filed suit against Das and settled her
claim against him for the limits of his insurance coverage,
$15,000. Plaintiff then filed this action against defendant
seeking UIM benefits. At the time of the accident, plaintiff had
an automobile policy with defendant, which provided $50,000 in UIM
coverage.
The parties stipulated that Das was solely responsible for
the accident, but defendant maintained plaintiff had not
established she sustained injuries that met the limitation-on-
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lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the
Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-
1.1 to -35. The matter was tried before a jury.
At the trial, plaintiff testified that she sustained multiple
injuries in the November 28, 2008 accident. Plaintiff stated that
she worked for an entity that provides services to individuals
with disabilities. She said she had been in an auto accident in
November 2007 and sustained injuries to her neck and lower back.
Since the accident occurred while she was on the job, she had to
seek health care through her employer's occupational health
services.
Plaintiff stated that by the end of 2007, she had completed
treatment for the November 2007 accident. Plaintiff said she did
not have any continuing problems with her neck, lower back, middle
back, or upper back. She stated that she was able to return to
work without any restrictions. She also stated that she was able
to go back to her usual activities, which included spending time
with her grandchildren, performing household chores, and bowling.
Plaintiff further testified that in the days after the
November 28, 2008 accident, she woke up and could not move her
neck and upper back. She went to see her primary care physician,
and later saw a chiropractor. She told the chiropractor that she
had pain in her neck and upper back, and at times pain radiated
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down her left arm. In addition, plaintiff had painful spasms in
her back and chest every day.
Plaintiff treated with the chiropractor for about two years.
She believed the treatment had provided some relief but the pain
returned. The chiropractor referred plaintiff for tests and MRIs
were performed. Plaintiff testified that the tests showed she "had
a bulging dis[c] or something like that" in her neck and upper
back.
Plaintiff was referred to an orthopedist, who prescribed
medication and an injection, which provided some relief for about
eight months. The doctor told plaintiff she could have additional
injections or surgery. Plaintiff elected not to have surgery. She
testified that she continued to work because she had to do so.
She said she "just worked through the pain."
Plaintiff stated that the November 28, 2008 accident had
limited her usual activities. She testified that she spends time
with her grandchildren, but she is no longer able to pick them up
when she wants to. Plaintiff enjoys bowling and participated in a
bowling league, but can no longer engage in that activity.
Plaintiff said she does not perform household chores as she used
to. She explained that someone must accompany her to the grocery
store and laundromat. She also said she lives with neck and upper
back pain every day.
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Plaintiff further testified that after the November 28, 2008
accident, she sustained other injuries. While working, plaintiff
strained her elbow when assisting an individual with cerebral
palsy. She also suffered an electric shock when checking a smoke
alarm in the workplace. After these incidents, plaintiff saw
doctors, but she did not require further medical care for her neck
or back.
Plaintiff also had an accident during a work-related outing
while riding in a bumper car with a client. Plaintiff hurt her
leg, knee, and ankle. She went to a doctor, but testified that she
did not hurt her neck or back. In addition, plaintiff slipped and
fell backwards while bowling. She testified, however, that she did
not injure her neck or back when she fell.
At the trial, plaintiff presented the videotaped testimony
of her medical expert, Dr. Gary Goldstein, who stated that
plaintiff had a cervical disc herniation, which was produced or
made symptomatic by the November 28, 2008 accident. Dr. Goldstein
testified that plaintiff was permanently symptomatic as a result
of the accident.
The doctor said plaintiff had been in "some kind of accident"
in 2007 and plaintiff had injured her neck and back, but she did
not have any ongoing residual complaints. The doctor testified
that when plaintiff was referred to him, he conducted a general
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physical examination. He also performed various tests, including
range-of-motion tests.
The doctor explained that in February 2009, plaintiff had
MRIs of her neck as well as her mid- and lower-back. The doctor
reviewed the reports of the MRIs, and stated that plaintiff had
"some minor bulging throughout her neck" but the bulge at the C5-
6 level of the spine was larger. He thought the MRI showed a "low
grade herniation," which was consistent with plaintiff's
complaints of central neck pain with pain radiating to the arm.
Defendant presented the videotaped testimony of Dr. Brian K.
Zell, who performed an independent medical evaluation of
plaintiff. Dr. Zell examined plaintiff and reviewed the
radiographic studies. He testified that plaintiff had been
involved in an auto accident on November 28, 2008, and sustained
a possible cervical strain and possible strain to the lower back.
Dr. Zell opined that plaintiff had degenerative disc disease
of the cervical spine, which was a pre-existing condition
unrelated to the November 28, 2008 accident. He further testified
that plaintiff had degenerative disc disease to the lower back,
particularly at the L4-5 level of the spine, which also was
unrelated to the accident. Dr. Zell stated that he found no
evidence of cervical or lumbar radiculopathy, meaning
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"reproducible findings that traveled" from the neck into her arms,
or from her lower back into her legs.
At the conclusion of the trial, plaintiff requested a jury
instruction on aggravation of a pre-existing condition. The judge
granted the request over defendant's objection. In addition,
defendant sought an adverse inference with respect to the loss of
the litigation file pertaining to the workers' compensation claim
plaintiff asserted following the November 10, 2007 accident. The
judge denied the application.
The jury found that plaintiff had sustained a permanent injury
that was proximately caused by the November 28, 2008 accident, and
awarded plaintiff $60,000 in damages. The judge molded the jury
verdict to reflect the $50,000 limit on plaintiff's UIM coverage,
and reduced that amount by the $15,000 plaintiff had recovered
from Das.
Thereafter, defendant filed a motion for a new trial. The
judge heard oral argument on February 5, 2016, and on that day
entered an order denying the motion.
Plaintiff also sought attorney's fees, costs, and interest
under the offer of judgment rule. R. 4:58-1(a); R. 4:58-2(b).
Prior to trial, plaintiff had made an offer of judgment for
$29,000. The judge granted the application and ordered defendant
to pay plaintiff attorney's fees in the amount of $15,050, costs
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and expenses totaling $4,778, and interest of $1,036. These amounts
were added to plaintiff's modified award, resulting in a total
judgment of $55,864. This appeal followed.
On appeal, defendant argues that: (1) the trial judge
improperly precluded defendant from using plaintiff's statements
in certain medical records for impeachment; (2) the judge erred
by providing the jury with a charge for aggravation of a pre-
existing condition, and by failing to tailor the charge to the
facts of this case; (3) the judge should have provided an adverse
inference charge regarding the loss of the litigation file
pertaining to the plaintiff's prior accident; (4) the judge should
have instructed the jury that in an action under AICRA's
limitation-on-lawsuit threshold, range-of-motion tests are not
recognized as objective credible evidence of a permanent injury;
and (5) defendant was entitled to judgment notwithstanding the
verdict.
II.
We turn first to defendant's argument that the trial judge
erred by precluding defendant's counsel from questioning plaintiff
about statements attributed to her in a doctor's report. As noted
at trial, plaintiff testified that as a result of the November 28,
2008 accident, she has experienced limitations in certain
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activities, including the performance of household chores and
bowling.
On cross-examination, defendant's attorney began to question
plaintiff about complaints attributed to her in reports by Ralph
G. Cataldo, a doctor of osteopathic medicine, dated February 1,
2012, and June 7, 2013. It appears that Dr. Cataldo examined
plaintiff as a result of workplace injuries that plaintiff
sustained after the November 28, 2008 accident. The reports were
apparently obtained for the purpose of asserting workers'
compensation claims.
The first report related to the injuries plaintiff sustained
when she assisted a client and when she checked the smoke detector
in the workplace. The second report related to the bumper-car
accident. Both reports list plaintiff's complaints, which include
limitations on her ability to perform household chores and engage
in bowling.
Plaintiff's attorney objected to the use of Dr. Cataldo's
reports for cross-examination. The judge sustained the objection,
finding that the statements attributed to plaintiff were hearsay.
The judge stated that if defendant wanted to present the
statements, defendant had to present Dr. Cataldo as a witness.
On appeal, defendant argues that the judge erred by precluding
its attorney from questioning plaintiff regarding the complaints
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attributed to her in Dr. Cataldo's reports. Defendant asserts that
the statements were admissible under the hearsay exception in
N.J.R.E. 803(b)(1) for statements of a party opponent. Defendant
argues that the statements were admissible because they did not
involve any complex medical diagnosis.
The trial court's evidentiary rulings are reviewed under an
abuse-of-discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12
(2008). However, we apply a de novo standard of review in
determining if the trial court correctly interpreted and applied
the evidence rules. Konop v. Rosen, 425 N.J. Super. 391, 401 (App.
Div. 2012) (citing Pressler & Verniero, Current N.J. Court Rules,
comment 4.6 on R. 2:10-2 (2012); State v. Darby, 174 N.J. 509, 518
(2002)).
The statements attributed to plaintiff in Dr. Cataldo's
reports are hearsay because defendant intended to offer the
statements to prove that plaintiff reported those complaints to
Dr. Cataldo. See N.J.R.E. 801(c) (defining hearsay as a statement,
"other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted.").
Defendant correctly notes that N.J.R.E. 803(b)(1) provides
an exception to the rule against admission of hearsay for
statements by a party opponent. However, the statements were
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contained in a doctor's reports, which were apparently obtained
for the purpose of litigating workers' compensation claims.
Defendant did not, however, lay a proper foundation for the
admission of the reports as business records under N.J.R.E.
803(c)(6). Defendant did not establish that the documents were
made in the regular course of business, or that it was the regular
practice of the business to make the record. Hahnemann Univ. Hosp.
v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996).
We therefore conclude that the trial judge did not abuse his
discretion by precluding defendant from questioning plaintiff
about the statements in the reports.
III.
Next, defendant argues that the trial judge erred by charging
the jury on aggravation of a pre-existing condition. The
aggravation charge states in relevant part that
If you find that [plaintiff's] preexisting
illness/injury(ies)/condition was not causing
him/her any harm or symptoms at the time of
the accident, but that the preexisting
condition combined with injuries incurred in
the accident to cause him/her damage, then
[plaintiff] is entitled to recover for the
full extent of the damages he/she sustained.
[Model Jury Charge (Civil), 8.11F "Aggravation
of the Preexisting Disability" (1997).]
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A. Lack of Notice of Claim of Aggravation.
Defendant argues the judge erred by granting plaintiff's
request for the charge because plaintiff did not plead or place
defendant on notice that she was pursuing a claim for aggravation
of a pre-existing condition. We disagree. The judge did not err
by finding that defendant was on notice that plaintiff was
asserting such a claim.
Here, defendant served interrogatories upon plaintiff and
plaintiff was asked if she was claiming that she sustained an
injury in the subject accident that aggravated a pre-existing
condition. In her answer, plaintiff objected to the question on
the ground that it asked for a legal or medical opinion, which she
was not qualified to provide. Nevertheless, without waiving that
objection, plaintiff stated that she would rely upon the opinion
and testimony of her medical expert.
In his report, Dr. Goldstein stated among other things that
plaintiff had "a cervical disc herniation or its equivalent that
was produced or made symptomatic by the November 28, 2008"
accident. As the judge determined, Dr. Goldstein's report was
sufficient to place defendant on notice of a potential claim for
aggravation of a pre-existing condition. Therefore, we reject
defendant's contention that it did not have notice of the claim.
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B. Comparative Analysis.
Defendant also argues that the jury instruction on
aggravation of a pre-existing condition was not warranted because
Dr. Goldstein failed to provide a comparative analysis
distinguishing the injuries sustained in the subject accident with
any prior injuries to the same body part. Defendant contends this
comparative medical analysis was required by Davidson v. Slater,
189 N.J. 166 (2007). Again, we disagree.
In Davidson, the Court noted that in a personal injury action
that involves the AICRA limitation-on-lawsuit threshold, a
plaintiff must establish that he or she sustained a bodily injury
resulting from the "operation . . . or use of" an automobile, that
results in one of the enumerated categories of injuries, including
"a permanent injury within a reasonable degree of medical
probability." Id. at 186 (quoting N.J.S.A. 39:6A-8(a)). The Court
explained that when a plaintiff claims he or she sustained a
permanent injury that aggravated a pre-existing condition, the
plaintiff must present evidence comparing the injury sustained in
the subject accident with injuries previously sustained to the
same body parts. Id. at 185-86.
The Davidson Court noted, however, that when a plaintiff does
not assert an aggravation claim, the plaintiff can carry his or
her burden by demonstrating that the subject accident caused a
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permanent injury "without having to exclude all prior injuries to
the same body part." Id. at 170. The Court stated that
[i]f defendant raises a genuine factual issue
about the causation of plaintiff's claimed
injuries by pointing to other injuries the
plaintiff may have experienced, that disputed
issue of causation is for the fact-finder to
decide, except in those unusual instances when
no reasonable fact-finder could conclude that
the permanent injury was caused by the subject
accident.
[Ibid.]
On appeal, defendant argues that plaintiff requested the
aggravation charge and therefore was required to present the
comparative analysis required by Davidson. Defendant asserts that
Dr. Goldstein's analysis failed as a matter of law because he
based his analysis of the pre-existing condition solely upon
plaintiff's subjective complaints. Defendant asserts that the
doctor failed to review a single record pre-dating the November
28, 2008 accident.
We are not persuaded by these arguments. In our view, Dr.
Goldstein provided a sufficient comparison of plaintiff's pre-
existing condition with the injuries allegedly sustained in the
subject accident. In his videotaped testimony, Dr. Goldstein
testified that plaintiff had some low grade degenerative changes
in her neck, which were "probably existent" before the accident.
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The doctor emphasized that plaintiff was asymptomatic, and
she either had a new disc bulge or low grade herniation "that was
produced by this accident or whatever was there predating this
accident was extended or made symptomatic[.]" The doctor based his
analysis in part on the MRIs performed after the November 28, 2008
accident, which he indicated showed a pre-existing degenerative
condition.
Moreover, defendant presented testimony from Dr. Zell who
opined that plaintiff possibly sustained a lumbar strain in the
November 28, 2008 accident. He said plaintiff had degenerative
disc disease in the cervical and lumbar spine, which were pre-
existing conditions and unrelated to the subject accident. He
based his opinions on his physical examination of plaintiff; review
of the records pertaining to the November 28, 2008 accident,
including the MRIs; and records pertaining to the November 10,
2007 accident, including a CT scan of plaintiff's neck and x-rays
of her lower back.
Considering the evidence as a whole, we are convinced that
the judge did not err by charging the jury on aggravation of a
pre-existing condition. Dr. Goldstein and Dr. Zell both agreed
that plaintiff had a pre-existing condition, although they
disagreed as to whether plaintiff sustained a permanent injury to
her neck and lower back in the subject accident.
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While Dr. Goldstein did not review the diagnostic studies
that pre-dated the November 28, 2008 accident, he was able to base
his opinion as to plaintiff's pre-existing condition in part upon
the diagnostic studies performed after that accident. Dr. Zell
also opined that plaintiff had a pre-existing disc disease, which
pre-dated the subject accident. In light of all of the evidence,
the judge properly instructed the jury on aggravation of a pre-
existing condition.
C. Request for Modification of Aggravation Charge.
Defendant further argues that the judge erred by denying its
request to modify the aggravation charge. According to defendant,
the judge should have instructed the jury that the charge was
given merely to assist the jury in calculating damages, and not
as a means to determine if plaintiff had shown that she sustained
a permanent injury proximately caused by the November 28, 2008
accident. Again, we disagree.
Here, the judge correctly found that the model jury charge
on permanency was sufficient to address defendant's concern. The
judge noted the jury had to find that plaintiff had a permanent
injury, whether it was an aggravation of a pre-existing condition
or not. The instructions the judge later provided stated in
pertinent part:
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Now in order to recover damages in this
case, the plaintiff must prove by a
preponderance of the evidence that she
sustained injuries which were permanent. And
she must do that within a reasonable degree
of medical probability. If you find that
plaintiff[']s injuries caused by the accident
were not permanent, your verdict must be for
the defendant. If you find the injuries caused
by the accident [are] permanent, then your
verdict must be for the plaintiff.
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.
We conclude the judge's instructions clearly informed the
jury that plaintiff could not recover damages unless she proved
that she sustained a permanent injury that was proximately caused
by the subject auto accident. Therefore, the judge did not err by
denying defendant's motion to modify the charge on aggravation of
a pre-existing condition.
IV.
Next, defendant argues that the judge erred by denying its
request to bar plaintiff from arguing that range-of-motion tests
are objective tests upon which a jury could rely in determining
whether plaintiff sustained a permanent injury. Defendant contends
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that the entire theory of plaintiff's case was based on the
assertion that plaintiff suffers pain and decreased range of
motion. According to defendant, Davidson precludes a plaintiff
from establishing a permanent injury under the AICRA limitation-
on-lawsuit threshold based on range-of-motion tests and subjective
symptomology.
We are convinced that this argument is without sufficient
merit to warrant extended comment. R. 2:11-3(e)(1)(E). As noted
previously, the judge's final instructions to the jury made clear
that plaintiff had to prove she sustained a permanent injury with
objective, credible evidence, and her injury could not be proven
by subjective complaints alone.
Moreover, Dr. Goldstein's opinion was not based solely on
range-of-motion tests. As noted, the doctor based his opinion in
part upon his review of the MRIs. Therefore, the judge did not err
by denying defendant's application for an instruction to the jury
regarding range-of-motion tests.
V.
In addition, defendant argues that the judge erred by refusing
to provide an adverse inference charge with regard to plaintiff's
failure to produce certain documents relating to the workers'
compensation claim she asserted as a result of the November 10,
2007 auto accident. Defendant maintains the charge was warranted
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due to the intentional or negligent disposal of evidence. We
disagree.
"Spoliation typically refers to the destruction or
concealment of evidence by one party to impede the ability of
another party to litigate a case." Jerista v. Murray, 185 N.J.
175, 201 (2005) (citing Rosenblit v. Zimmerman, 166 N.J. 391, 400-
01 (2001)). The duty to preserve evidence arises when (1) there
is pending or likely litigation and knowledge of this fact by the
alleged spoliating party, (2) the evidence is relevant to
litigation, and (3) the opposing party would be prejudiced by the
destruction or disposal of the evidence. Aetna Life and Cas. Co.
v. Imet Mason Contractors, 309 N.J. Super. 358, 366 (App. Div.
1998) (quoting Hirsch v. General Motors Corp., 266 N.J. Super.
222, 250-51 (Law Div. 1993)).
"In civil litigation, depending on the circumstances,
spoliation of evidence can result in a separate tort action for
fraudulent concealment, discovery sanctions, or an adverse trial
inference against the party that caused the loss of evidence."
Jerista, supra, 185 N.J. at 201-02 (citing Rosenblit, supra, 166
N.J. at 401-06). "The spoliation inference permits the jury to
infer that the evidence destroyed or concealed would not have been
favorable to the spoliator." Id. at 202 (citing Rosenblit, supra,166 N.J. at 401-02).
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The instruction should be provided if a party establishes
that the other party "improperly caused the loss of the evidence."
Davis v. Barkaszi, 424 N.J. Super. 129, 148 (App. Div. 2012)
(citing Cockerline v. Menendez, 411 N.J. Super. 596, 621 (App.
Div.), certif. denied, 201 N.J. 499 (2010)). Furthermore, the
inference may be drawn against the party that negligently or
intentionally failed to preserve the evidence. Rosenblit, supra,166 N.J. at 401-02.
Here, the judge did not err by refusing to provide an adverse
inference charge to the jury. The record shows that defendant
asked plaintiff to produce the litigation file related to the
plaintiff's November 10, 2007 accident. Plaintiff's attorney
stated that the records had been placed at a private, off-site
storage facility, but they were either misplaced or could not be
found.
The judge found that defendant had not shown that plaintiff
had intentionally or negligently failed to preserve evidence. The
record supports that finding. Under the circumstances, an adverse
inference charge was not warranted.
VI.
Defendant further argues that it was entitled to judgment
notwithstanding the verdict. Defendant contends plaintiff
presented insufficient objective credible medical evidence to
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support the jury's determination that plaintiff suffered a
permanent injury, as that term is defined in N.J.S.A. 39:6A-8(a),
which was proximately caused by the November 28, 2008 accident.
Under Rule 4:40-1, a party may move for entry of judgment
either "at the close of all the evidence or at the close of the
evidence offered by an opponent." Rule 4:40-2(b) states that if
the motion for judgment is denied, it may be renewed in accordance
with the procedure under Rule 4:49-1 for a new trial. Rule 4:40-
2(b) also states that every motion for a new trial "shall be deemed
to include, in the alternative, a renewal of any motion for
judgment made by that party at the close of the evidence."
Here, defendant did not formally move for entry of judgment
after plaintiff presented her evidence or at the close of all the
evidence. Defendant did, however, file a motion for a new trial.
That motion was premised in part upon defendant's assertion, which
was made at various times throughout the trial, that plaintiff had
not presented sufficient objective credible evidence to support
her claim under N.J.S.A. 39:6A-8(a). The judge denied the motion.
A motion for judgment notwithstanding the verdict under Rule
4:40-2 must be denied if the evidence, together with the legitimate
inferences therefrom, could sustain a judgment in favor of a party.
Lanzet v. Greenberg, 126 N.J. 168, 174 (1991). In considering such
a motion, the court must accept "as true all the evidence which
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supports the position of the party defending against the motion
and [accord that party] the benefit of all inferences which can
reasonably and legitimately be deduced therefrom . . . ."
Verdicchio v. Ricca, 179 N.J. 1, 30 (2004) (quoting Estate of
Roach v. TRW, Inc., 164 N.J. 598, 612 (2000)). If "reasonable
minds could differ, the motion must be denied." Ibid. (quoting
Estate of Roach, supra, 164 N.J. at 612). When reviewing a trial
court's order on the motion, we apply the same standard. See Frugis
v. Bracigliano, 177 N.J. 250, 269 (2003).
We are convinced that plaintiff presented sufficient evidence
to support the jury's finding that plaintiff suffered a permanent
injury, as defined in N.J.S.A. 39:6A-8(a), which was proximately
caused by the November 28, 2008 accident. Defendant's arguments
to the contrary are without sufficient merit to warrant discussion.
R. 2:11-3(e)(1)(E).
Affirmed.
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