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

NOT FOR PUBLICATION WITHOUT THE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
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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,
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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
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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.
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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:
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[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.
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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
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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
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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.
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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.
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