Idowu Adesina vs. Eddie Santana, Jr.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

 APPELLATE DIVISION

 DOCKET NO.  A-2428-10T1

  IDOWU A. ADESINA and KEMI K. ADESINA, h/w and OLABISI M. OLOWOOKERE, Plaintiffs, and AYODEJI OLOWOOKERE, Plaintiff-Appellant, v. EDDIE SANTANA, JR., LIBERTY MUTUAL FIRE INSURANCE COMPANY, ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendants, and  GEORGE R. KERR, III,   Defendant-Respondent. __________________________________
Submitted: February 8, 2012 – Decided: March 5, 2012   Before Judges Axelrad, Sapp-Peterson and Ostrer.   On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6924-05.   Sean M. McDonough, attorney for appellant.   Purcell, Mulcahy, O’Neill & Hawkins, LLC, attorneys for respondent (Elizabeth C. Flanagan and David M. Hawkins, on the brief).   PER CURIAM   Plaintiff, Ayodeji Olowookere,[1] a passenger involved in an accident and subject to the verbal threshold, appeals from a jury verdict finding no permanent injury and order for judgment dismissing with prejudice his claims against defendant George R. Kerr.  He challenges as harmful error the court’s in limine ruling barring evidence of his medical expenses, denial of his motion for a directed verdict as to liability, modification of the jury verdict sheet after the jury began deliberations, and denial of his motion for a new trial.  We affirm in part and reverse and remand in part.

I.

     On September 26, 2005, plaintiff filed suit against defendants Eddie Santana, Jr., Kerr, Liberty Mutual Fire Insurance Company, and Allstate New Jersey Insurance Company, alleging Santana and Kerr negligently operated their motor vehicles and struck the vehicle in which plaintiff was a passenger.[2]  Plaintiff alleged that on September 29, 2003, he was a passenger in a car driven by Idowu Adesina, which was stopped at a traffic light.  A vehicle driven by Santana was stopped directly behind the Adesina car.  A vehicle driven by defendant struck the Santana vehicle from behind, propelling it into the Adesina car.  Plaintiff contended he sustained serious and permanent physical injuries to his lumbar and cervical spine and damages as a result of defendant’s negligence.  Defendant filed responsive pleadings. Multiple trial dates were scheduled dating back to 2008.  By order of February 9, 2010, the court scheduled trial for June 7, 2010, and ordered plaintiff to provide discovery by March 1, 2010.  By order of June 14, 2010, the court extended discovery, in part, until August 15, 2010.  On July 1 and September 17, 2010, plaintiff sent amended interrogatory answers disclosing that Personal Injury Protection (PIP) coverage was exhausted and itemizing approximately $250,000 in unreimbursed medical expenses.  Plaintiff was deposed during the summer.  On September 23, 2010, plaintiff faxed defendant a letter of that date from Liberty Mutual, his PIP carrier, formally advising that plaintiff’s PIP benefits had been exhausted as of February 24, 2010. The trial commenced on September 29, 2010.  The court granted defendant’s motion in limine barring the evidence of plaintiff’s unreimbursed medical expenses.  The court found plaintiff’s submissions were too vague, they violated discovery rules, and their admission would be prejudicial to the defense. Plaintiff testified on his own behalf and both parties presented medical testimony.  The court denied plaintiff’s motion for a directed verdict as to defendant’s negligence for striking the rear of the vehicle in which plaintiff was traveling.  Over plaintiff’s objection, during deliberations the court granted defendant’s request to change the jury verdict sheet from asking whether defendant’s negligence was a “proximate cause of the September, 2003 collision” to whether it was a “proximate cause of injuries” to plaintiff. Later that day the jury returned a unanimous verdict finding defendant was negligent and his negligence was the proximate cause of plaintiff’s injuries.  However, the jury also found plaintiff did not sustain a permanent injury in the 2003 collision.  Due to the verbal threshold under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8, plaintiff was not awarded any damages.  The court denied plaintiff’s motion for a new trial.  This appeal ensued.

II.

     Plaintiff testified at trial.  He presented the testimony of the following physicians who treated him over various periods since 1997 and who the court accepted as experts in their designated fields: Dr. Marc Cohen, in the field of orthopedic surgery and the specialty of spinal surgery; Dr. Boqing Chen, in the field of pain management and electro diagnostic testing; and Dr. Neville Mirza, in the field of spinal surgery.  The defense called Dr. Edward Decter, accepted as an expert by the court in the field of orthopedic surgery.  Defendant also presented his own testimony and that of Santana and investigating police officer David Buchok of the Edison Police Department. The following testimony and evidence were adduced at trial.  Plaintiff testified he was involved in a motor vehicle accident in August 1997, in which he sustained injuries to his neck and back.  MRI tests performed within a month revealed disc herniations at C6/7 and L3/4, and a disc bulge at L4/5.  On March 3, 1999, MRI and CT scans of the lumbar spine revealed diffuse disc bulging at L3/4 and a disc herniation at L4/5.  Two days later, plaintiff had a laminectomy and discectomy performed at L3/4 and L4/5.  He had no further medical treatment related to his spine. As aforementioned, on September 29, 2003, defendant struck the rear of the Santana vehicle, propelling it into the rear of the Adesina vehicle, which was stopped at a red light.  Plaintiff was a passenger in the Adesina vehicle.  He was taken by ambulance to the hospital, where he was treated and released.  Plaintiff had PIP through Liberty Mutual with a cap of $250,000.  He treated at All Care Medical Center for two years for complaints of neck and right leg pain.  He treated with Dr. Sayed Bakhaty, a pain management specialist between January 8 and April 24, 2004, during which he received epidural steroid injections into his cervical and lumbar spine.  On April 14, 2005, Dr. Mirza performed a cervical endoscopic discectomy at C6/7. On February 1, 2007, plaintiff began treatment with Dr. Cohen.  Dr. Cohen testified that plaintiff informed him he had lower back surgery in 1999, but he had no further conversations with him about any prior orthopedic injuries or any treatment.  Moreover, Dr. Cohen never reviewed plaintiff’s records from his 1997 accident prior to trial.  Plaintiff returned to Dr. Cohen in October 2007, and again in February 2009.  Following his examination, Dr. Cohen ordered MRI’s and a cervical discography, which indicated pain inducers at the C6/7 level, where the 2005 surgery had been performed.  In June 2009, Dr. Cohen performed a discectomy and cervical fusion surgery on plaintiff at the C6/7 level.  Dr. Cohen reported that the disc, which was removed, was degenerated. In November 2009, plaintiff started treatment with Dr. Chen, who ordered a lumbar MRI, which indicated herniation at L3/4 and L4/5.  On December 5, 2009, Dr. Chen performed a lumbar endoscopic discogram, which revealed that plaintiff’s worst pain was at L3/4.  On January 19, 2010, Dr. Chen performed a discectomy on plaintiff at the L3/4 level, the same area operated on by Dr. Mirza in 1999. Dr. Decter testified that he first reviewed plaintiff’s medical records following the 1997 accident, and then examined plaintiff in September 2006, December 2009, and July 2010.  Dr. Decter discussed plaintiff’s medical reports and tests prior to and following the subject accident.  He opined that plaintiff had “two herniated discs in his neck, one at C5/C6 and one at C6/C7, he had positive EMGs at that level back in 1997 and 1998, he had a herniated disc at L3/L4 and a [] large bulging disc at 4/5, he had surgery on his back . . . , and he also had EMG studies that [] showed he [] had radiculopathy.”  Dr. Decter further opined that the operative procedure in June 2009 performed by Dr. Cohen was not for the injuries sustained in the September 2003 accident but, rather, was for “degenerative discogenic disease[,]” explaining that plaintiff had a “preexisting herniated disc” going back to the late 1990s.  Dr. Decter expressed the opinion that plaintiff suffered permanent injury to his lumbar and cervical spine prior to the September 29, 2003 accident.  He concluded that as a result of the accident, plaintiff sustained a temporary, non-permanent, soft tissue strain to his cervical and lumbar spine superimposed upon the preexisting problems with his neck and back.

III.

     Plaintiff first asserts as reversible error the court’s in limine ruling barring him from presenting outstanding medical bills as an element of economic damages based primarily on purported discovery violations.  Specifically, he claims the court’s reliance on Smith v. Schalk, 360 N.J. Super. 337, 345-46 (App. Div. 2003) was factually distinguishable, because it addressed medical reports, not medical bills, and plaintiff’s submissions were not provided on the “eve of trial.”  Plaintiff further claims these bills were admissible to prove economic loss against defendant independent of his non-economic loss claim.  See N.J.S.A. 39:6A-12. We are mindful that, in general, courts apply an abuse of discretion standard to trial court decisions relating to discovery matters.  Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Bender v. Adelson, 187 N.J. 411, 428 (2006).  We are also aware that “[t]he typical liberality with which late amendments to interrogatories had been tolerated was substantially affected by the 2000 rule amendments, then known as the Best Practice rules, which demanded stricter compliance with the discovery time frames than theretofore.”  Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 4:17-7 (2012). We note, however, that Rule 4:17-7 does not prohibit late amendments to discovery answers, but requires only that untimely amendments be accompanied by a showing of due diligence: [I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period . . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.   [(Emphasis added).]   The Rule further provides, “Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment.  Objections made thereafter shall not be entertained by the court.” Here, the court’s February 9, 2010 order listed a discovery end date of June 2 and a preference trial date of June 7, 2010.  It further provided that plaintiff  was  to provide “all recent . . . records”[3] by March 1, defendant was permitted to re-examine and re-depose plaintiff by April 30, and defendant was required to serve an expert report by May 24, 2010.  By order of June 14, 2010, the discovery period was extended until August 15, 2010 “to permit the parties to obtain updated medical records, to re-depose [plaintiff], and for an updated examination[,]” and trial was rescheduled for September 7, 2010. In a detailed letter of July 1, 2010, plaintiff’s attorney amended his interrogatory answers, disclosing that PIP coverage was exhausted, and itemizing the provider, date, bill, and amount due.  Though not totaled, the amount of bills was slightly in excess of $481,000 and the amount of unreimbursed medical expenses was $251,187.64.  The answers included a certification pursuant to Rule 4:17-7 that the information was “not reasonably available or discoverable by the exercise of due diligence by the discovery end date.”  Defendant apparently did not object to these answers within twenty days. On July 8, 2010, plaintiff was deposed and reiterated that his PIP benefits were exhausted and he had outstanding medical bills.  Plaintiff also said he was covered under his wife’s medical policy through her employment, the prior month he had applied for medical payments for his treatment through her carrier but was declined, and he had no other medical coverage. Plaintiff served defendant with an additional amendment on September 17, 2010, which appears to largely restate the unreimbursed medical bills listed in July, but containing a total of $251,376.64.  The letter also contained the requisite Rule 4:17-7 certification of due diligence.  On September 23, 2010, plaintiffs faxed defendant the letter from Liberty Mutual of that date confirming that plaintiff’s PIP benefits had been exhausted on February 24, 2010. At argument on his in limine motion on October 1, 2010, defense counsel represented that although plaintiff stated during his July deposition that all PIP benefits were exhausted, no details of the unreimbursed medical expenses were provided until September 17, two weeks before trial.  He also noted the September 23 letter from the PIP carrier.  He further claimed that he was uncertain as to whether there were fee schedules, whether the unpaid bills were or were not authorized, and whether they were unpaid because PIP was exhausted.  Defense counsel further claimed he found out that plaintiff’s wife had coverage through her employment and there was no indication as to whether plaintiff made an application to her carrier for his outstanding medical bills. When plaintiff’s attorney pointed out the July 1 amendment, defendant conceded he received it.  Plaintiff explained that Liberty Mutual’s formal letter was delayed because of an arbitration of one of the claims and confusion resulting from payments to four providers over the limits requiring refunds.  Nevertheless, defense counsel was on notice three months before trial that plaintiff’s PIP benefits were exhausted and he had outstanding medical bills in excess of $250,000.  Plaintiff further explained his doctor would testify that the bills were reasonable and necessary, and they would thus be eligible for submission to the jury as an economic loss. Though recognizing Smith v. Schalk did not address billing, the court relied on our holding that it was error to admit medical evidence as an amendment to interrogatories on the eve of trial.  The court noted there was no showing of why $251,000 was due on $481,000 of bills, and expressed his agreement with defense counsel that “more [] is required than just a mathematical addition[,]” particularly where there are fifty-four separate bills.  The court concluded it was not fair to defendants “to expect them to respond to the claims of unpaid PIP benefits in this way.”  Accordingly, the court precluded plaintiff from presenting his unpaid medical expenses at trial. Based on our review of the record and applicable law, we are convinced the court mistakenly exercised its discretion in this ruling.  It is not in dispute that plaintiff had a PIP policy that provided $250,000 in coverage.  Moreover, defense counsel was apprised on July 1 that plaintiff’s PIP benefits had been exhausted, and as to the provider, date, amount and outstanding balance of each bill.  He could have served additional interrogatories seeking clarification or explored the bills in depth during plaintiff’s July 8 deposition.  The defense chose not to do so and, in fact, during argument on the motion either ignored or overlooked the July disclosure until confronted with it by plaintiff.  We further note that unlike in the Smith case, plaintiff included the Rule 4:17-7 certification of due diligence with his July 1 interrogatory amendments.  As defendant did not object within twenty days, any such challenge is deemed waived. It is clear defense counsel was not surprised by plaintiff’s claim or the amount of unpaid PIP benefits on the September 29, 2010 trial date.  Under the circumstances of this case, in weighing the equities, there was far greater prejudice to plaintiff in precluding him from presenting this element of economic damage to the jury.  An injured party may recover economic loss from a tortfeasor, even if the verbal threshold is not satisfied.  Haywood v. Harris, 414 N.J. Super. 204, 211-12 (App. Div.), certif. denied, 204 N.J. 38 (2010); Miskelly v. Lorence, 380 N.J. Super. 574, 578 (App. Div.), certif. denied, 185 N.J. 597 (2005).  See also N.J.S.A. 39:6A-2k (“Economic loss” is defined as “uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses.”); N.J.S.A. 39:6A-12 (stating that evidence regarding collections of PIP benefits is inadmissible with respect to non-economic loss, but that “[n]othing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party”); Wise v. Marienski, ___ N.J. Super. ___ (Law Div. 2012) (slip op. at 17)  (holding that N.J.S.A. 39:6A-12 does not preclude recovery of medical expenses beyond those collectable or paid under a standard PIP plan and noting defendant’s concession that “had plaintiffs incurred medical expenses one dollar in excess of $250,000, that minor expense would be permitted into evidence before a jury”). We thus reverse and remand for retrial on the issue of economic loss, during which plaintiff can present medical testimony that the bills were reasonable and necessary.  Plaintiff had testified during his July 8, 2010 deposition that his wife’s employer denied payment of his outstanding PIP bills.  In the event of a verdict for plaintiff, defendant may demonstrate that amounts were paid or could have been paid by collateral sources in a post-trial hearing on damages pursuant to N.J.S.A. 2A:15-97. Plaintiff next argues the court committed reversible error when it modified the jury verdict sheet after the jury began deliberations.  Specifically, plaintiff contends that changing the interrogatory during the second day of deliberations was prejudicial because it created a new question which counsel could not address in closing and created an inherent contradiction between the deliberation with which the jury was being tasked and the plain language of the jury charge.  Plaintiff further argues that because the cause of injury cannot be determined until after the proximate cause of the accident is determined, and that question was taken from the jury, the existing verdict cannot stand as it is insufficient as a matter of law, thereby requiring a new trial.  We disagree. The original jury question asked whether it was proved by a preponderance of the evidence that plaintiff’s negligence was a “proximate cause of the [] collision.”  Upon defendant’s request, and over plaintiff’s objection, the court modified the question to whether plaintiff’s negligence was a “proximate cause of injuries sustained in the [] collision.”  Here, a finding that defendant was the proximate cause of plaintiff’s injuries necessarily involved a finding that defendant was the proximate cause of the collision, so although the verdict sheet omitted one step in the proximate cause analysis, it still answered the critical question of whether there was a causal relationship between defendant’s negligence and plaintiff’s injuries.  See Davidson v. Slater, 189 N.J. 166, 185 (2007).  The jury was not confused by the modification of the verdict sheet and, in fact, unanimously found in favor of plaintiff on this issue.  See Fischer v. Canario, 143 N.J. 235, 254 (1996) (holding that a verdict will not be disturbed where the charge, instructions, and verdict sheet, considered as a whole, adequately convey the law and are “unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect”). Plaintiff’s next challenge is to the court’s denial of his motion for a new trial in which he claimed the verdict was against the weight of the evidence and a miscarriage of justice.  According to plaintiff, given the testimony regarding the treatment he received, the undisputed medical testimony regarding permanency, and the testimony that plaintiff’s activities and daily life are directly affected by the 2003 accident, no reasonable juror could have found plaintiff did not suffer a permanent injury as required for satisfaction of the verbal threshold to recover for non-economic loss. This contention was properly rejected by the trial court. Pursuant to Rule 4:49-1(a), a trial judge is authorized to grant a motion for a new trial “if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.”  See Von Borstel v. Campan, 255 N.J. Super. 24, 28 (App. Div. 1992).  In making this determination, a trial judge must not act as a “thirteenth and decisive juror.”  Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (l969)).  A trial court should “resist the natural temptation to substitute [its] judgment for that of the jury.”  Baxter v. Fairmont Food Co., 74 N.J. 588, 597 (1977).  A jury verdict carries a presumption of correctness and should be set aside sparingly and only in cases of clear injustice.  Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div.), certif. denied, 196 N.J. 344 (2008); Boryszewski v. Burke, 380 N.J. Super. 361, 39l (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).  The judgment of the initial fact-finder “should not be overthrown except upon the basis of a carefully reasoned and factually supported . . . determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.” Baxter, supra, 74 N.J. at 597-98. An appellate court “must be concerned with the same norm of decision[]” in reviewing a trial judge’s decision whether to interfere with the quantum of damages awarded by a jury.  Von Borstel, supra, 255 N.J. Super. at 28 (quoting Baxter, supra, 74 N.J. at 599).  Whether the motion is granted or denied, “[t]he trial court’s ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.”  R. 2:10-1.  To decide if there was such a miscarriage, we defer to the trial court with respect to intangibles, such as credibility, demeanor and “feel of the case,” not transmitted by the record, but we otherwise make our own independent determination of whether a miscarriage of justice occurred.  Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter, supra, 74 N.J. at 597-98; Dolson, supra, 55 N.J. at 6-8. We discern no manifest denial of justice by the verdict in this case.  Contrary to plaintiff’s assertion, the issue of permanence was disputed at trial and the parties presented competing expert testimony and evidence on this issue.  Through Drs. Cohen, Chen and Mirza, plaintiff presented testimony that he had no preexisting permanent injury as a result of the l997 motor vehicle accident and any existing injury was aggravated or made permanent by the 2003 collision.  The defense expert, Dr. Decter, testified that plaintiff’s medical records and tests showed permanent back and neck injuries following the l997 accident and plaintiff suffered only temporary, soft tissue injuries to his cervical and lumbar spine as a result of the 2003 collision.  Accordingly, a reasonable jury could find plaintiff suffered no permanent injuries resulting from the 2003 accident within the intendment of N.J.S.A. 39:6A-8 and case law. Lastly, plaintiff asserts as plain error the court’s denial of his motion for a directed verdict regarding defendant’s liability.  Any error was harmless in view of the jury’s finding that defendant was negligent and his negligence proximately caused plaintiff’s injuries. The order for judgment is affirmed to the extent it reflects the jury rendered a verdict finding no permanent injury as a result of the subject accident and thus plaintiff’s claims with respect to non-economic loss under AICRA are dismissed with prejudice; the matter is remanded for retrial to permit the jury to consider plaintiff’s outstanding medical bills with regard to his claim of non-economic loss. Affirmed in part; remanded in part.  We do not retain jurisdiction.