SILVANO COLLADO VS. ELI M. SALZMANN (L-4337-12, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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 only binding 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-3383-14T2
SILVANO COLLADO and MAYRA
COLLADO, Individually and
as Husband and Wife,
Plaintiffs-Appellants,
v.
ELI M. SALZMANN,
Defendant-Respondent,
and
ARI MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________
Argued September 21, 2016 – Decided August 22, 2017
Before Judges Fuentes, Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-4337-12.
James B. Smith, Jr. argued the cause for
appellants (Ana C. Moreira, attorney; Ms.
Moreira, on the brief).
Carl Mazzie argued the cause for respondent
(Foster & Mazzie, LLC, attorneys; Mr. Mazzie,
of counsel and on the brief; Jennifer L.
Sanyshyn, on the brief).
PER CURIAM
On September 7, 2010, plaintiff Silvano Collado was rear-
ended by defendant Eli M. Salzmann while driving a mini-commuter
bus in Jersey City, New Jersey. Defendant stipulated to liability,
and the matter was tried before a civil jury to determine whether
plaintiff was entitled to recover compensatory damages. Because
plaintiff's insurance policy contained a verbal threshold
provision, he was required to prove, by a preponderance of the
evidence, that he suffered "a permanent injury within a reasonable
degree of medical probability." N.J.S.A. 39:6A-8a.1 At trial,
defendant's orthopedic expert, Dr. Thomas Helbig, opined that
plaintiff suffered only soft tissue sprains and strains in
connection with the accident. Dr. Helbig further testified that
two surgical procedures performed on plaintiff were unnecessary.
The jury returned a verdict in defendant's favor, finding plaintiff
did not suffer a permanent injury related to this accident.
On appeal, plaintiff argues the trial judge abused her
discretion in permitting Dr. Helbig to opine that his surgeries
1
The statute provides that "[a]n 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." N.J.S.A. 39:6A-8a.
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were unnecessary. As he did before the trial judge, plaintiff
argues this testimony went beyond the four corners of the six pre-
trial reports Dr. Helbig submitted to plaintiff’s counsel.
Plaintiff argues this discrete evidential error by the trial judge
requires us to vacate the jury's verdict and remand for a new
trial. We disagree with plaintiff's arguments and affirm.
In order to question Dr. Helbig directly and fully consider
counsel's arguments, the trial judge conducted an N.J.R.E. 104
hearing outside of the presence of the jury. The following
colloquy occurred at this hearing:
THE COURT: Doctor [Helbig], just so I'm
clear, because I want to make sure I'm
following you, . . . you would have to
speculate, essentially, as to why the
surgeries were performed.
. . . .
Is that accurate?
A. Yes. I would have to speculate as to why
Dr. Rovner2 and Dr. Oppenheimer3 performed
these particular procedures on this particular
gentleman.
2
In his August 18, 2014 report, Dr. Helbig noted reviewing the
operative report of Dr. Aron Rovner, dated June 6, 2014, which
noted a surgical procedure performed on plaintiff related to a
herniated disc at L5-S1. Dr. Helbig made clear he saw only
degenerative change.
3
In the same August 18, 2014 report, Dr. Helbig indicated he had
reviewed Dr. Oppenheimer's post-surgery report on plaintiff's
cervical spine.
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. . . .
THE COURT: Notwithstanding that you said you
would have to speculate as to why the
surgeries were performed . . . you still
indicated that you would not have recommended
either procedure. . . . Am I accurate in what
you said?
A. Yes.
. . . .
DEFENSE COUNSEL: Doctor [Helbig], whether you
know why in Dr. Rovner's mind or Dr.
Oppenheimer's mind, why they did the surgery,
do you believe the surgeries were necessitated
by the motor vehicle accident of September
7[], 2010?
A. No.
DEFENSE COUNSEL: And why not?
A. There was no objective finding on the MRI
scan that was performed soon after the
accident of September 2010 that, in my
opinion, would require surgery.
DEFENSE COUNSEL: I have nothing further.
THE COURT: [Addressing plaintiff's counsel]
[A]ny follow up?
PLAINTIFF'S COUNSEL: No Judge.
After considering the parties' arguments, the trial judge
overruled plaintiff's objection. Dr. Helbig had previously opined
in his pre-trial reports that plaintiff suffered only "sprains and
strains" as a result of the September 7, 2010 accident, and the
trial judge found that Dr. Helbig's opinion concerning the
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necessity of plaintiff's surgeries was merely the logical
extension of these reports. Furthermore, Dr. Helbig had previously
made clear that the Magnetic Resonance Imaging (MRI) studies he
reviewed showed injuries that were "degenerative in nature,
unrelated to trauma[,] and unrelated to the alleged incident of
9/7/10." Dr. Helbig's opinion concerning the degenerative nature
of plaintiff's spine covered both the cervical and lumbar regions.
The trial judge was also particularly troubled by plaintiff’s
counsel's decision to proceed to trial without having taken Dr.
Helbig’s deposition.
Our standard of review concerning this type of evidentiary
ruling is well settled. A trial court's admission of expert
testimony is entitled to deference absent a showing of an abuse
of discretion. Townsend v. Pierre, 221 N.J. 36, 52–53 (2015)
(citations omitted). An abuse of discretion arises "on
demonstration of 'manifest error or injustice[,]'" Hisenaj v.
Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.
554, 572 (2005)), and occurs when the trial judge's "decision is
'made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis.'" Milne
v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
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"Expert testimony that deviates from the pretrial expert
report may be excluded if the court finds 'the presence of surprise
and prejudice to the objecting party.'" Conrad v. Robbi, 341 N.J.
Super. 424, 440–41 (App. Div.) (citation omitted), certif. denied,
170 N.J. 210 (2001). In determining whether the trial judge abused
her discretion in permitting Dr. Helbig to opine on the need for
plaintiff's surgeries, we consider whether there was: (1) an
absence of a design to mislead; (2) an absence of the element of
surprise; and (3) an absence of prejudice. See id. at 441.
Here, the trial judge carefully reviewed the record and found
there was no basis to conclude plaintiff's counsel was surprised,
mislead, or prejudiced by Dr. Helbig's opinion. We conclude the
trial judge did not abuse her discretion.
Affirmed.
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