Civil and Personal Injury Cases NJ: September 2009

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1977-08T3

JOANNE JIMENEZ SADUK
AND ANTHONY SADUK, H/W,

Plaintiffs-Respondents,

v.

JAMES HUCKLEBERRY,

Defendant-Appellant.
_________________________________

Argued August 4, 2009 - Decided

Before Judges Lihotz and Baxter.

On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Docket No. L-122-06.

Harold H. Thomasson argued the cause for
appellant (David B. Wright & Associates,
attorneys; Mr. Thomasson, on the brief).

Louis J. DeVoto argued the cause for
respondents (Rossetti & DeVoto, P.C.,
attorneys; Mr. DeVoto, on the brief).

PER CURIAM
This is a verbal threshold case. The matter proceeded to
trial on the issues of liability, permanency, proximate cause
and damages. Defendant James R. Huckleberry appeals from the
August 25, 2009
A-1977-08T3
2
jury verdict in favor of plaintiff Joanne Jimenez Saduk1 and the
denial of his motion for a new trial or, in the alternative,
remittitur. On appeal, defendant argues plaintiff's trial
evidence that included results of a thermogram, which showed she
suffered mediated pain syndrome, did not evince a permanent
injury, as required by N.J.S.A. 39:6A-8(a)(6). Following our
review of the arguments advanced on appeal, the record and the
applicable law, we affirm.
The following evidence was presented at trial. On April
20, 2004, at approximately 4:23 p.m., plaintiff, then age 31,
was traveling South on State Highway 47, or Delsea Drive, in
Millville. She was approaching South Street and slowing her
vehicle to make a left turn when defendant's vehicle struck her
from behind. The collision pushed plaintiff's vehicle onto the
shoulder. As a result of the impact, the passenger seat
occupied by plaintiff's mother was dislodged. Plaintiff
recalled defendant was "just really apologetic. He just kept
saying he was sorry and he also asked us if we were okay."
Defendant testified that right before the collision, he was
rounding a curve in the road and something drew his attention
off to the left. When he refocused on the road ahead,

1
In our opinion, "plaintiff" refers to Joanne Jimenez Saduk,
understanding the asserted per quod claim on behalf of
plaintiff Anthony Saduk was dismissed.
A-1977-08T3
3
plaintiff's vehicle was directly in front of him. Defendant
stated, "I could[] [not] stop and I hit her square in the back
of her vehicle." Defendant described the force of impact as
"heavy" and recalled he was "dazed" when the accident occurred.
His airbag deployed upon impact, after which he could not see
anything. Defendant stated he was aware his "foot had been on
the brake" because his vehicle did not "careen wildly off
anywhere."
Plaintiff and her mother were taken by ambulance to the
emergency room of Newcomb Hospital. Plaintiff complained of
neck, lower back and knee pain. She underwent x-rays and was
released with pain medication and given instructions to follow
up with her family doctor, as necessary. Plaintiff saw her
family doctor, Emanuel Petrolokis, M.D., who changed plaintiff's
medication and instructed her to take two weeks off from work
and rest. Dr. Petrolokis referred plaintiff to James Beebe,
D.C.
Dr. Beebe examined plaintiff on July 21, 2004. She
continued to complain of "pain primarily in the low back, as
well as the neck, and mostly on the right side, radiating pain
going down the right leg as well as predominately pain from the
neck on the right side[.]" His examination revealed muscle
spasms and "a reduction of her ranges of motion, both in the
A-1977-08T3
4
cervical and in the lumbar spine[.]" Both the cervical and
lumbar spine functioned at approximately eighty percent of the
normal range. Dr. Beebe ordered additional x-rays and mapped
out a treatment plan for plaintiff, which consisted of
chiropractic spinal adjustments, electric muscle stimulation,
and traction three times per week for twelve weeks.
Dr. Beebe referred plaintiff for an orthopedic
consultation. Plaintiff underwent Magnetic Resonance
Imaging (MRI), which showed no neuro-compression and was
otherwise negative. Dr. Beebe's final clinical evaluation of
plaintiff on December 20, 2004, revealed improvement in
plaintiff's cervical and lumbar ranges of motion showing
plaintiff's lumbar spine was functioning at ninety percent and
her cervical spine at eighty-five percent. He opined plaintiff
suffered a "permanent injury from the traumatic accident that
she had back in April[.]"
Plaintiff was referred to Philip Getson, D.O., for an
examination on December 8, 2004. She complained of "neck pain,
shoulder pain, weakness in the right arm, mid[-]back pain, low
back pain, which to her was her major problem[]. . . . She had
pain in the leg and hand, weakness in the right lower extremity,
right leg, headaches, [and] sleep interruption." Dr. Getson
observed spasms and limitations in the range of motion in
A-1977-08T3
5
plaintiff's neck, right shoulder, thoracic and lumbar spine.
Plaintiff showed no orthopedic symptoms, however, "there were a
number of abnormalities suggestive of nerve-related problems."
Dr. Getson initially believed plaintiff suffered from
reflex sympathetic dystrophy (RSD). He revised that diagnosis
to a brachial plexus2 injury, which evolved into sympathetically
mediated pain syndrome, a malfunction of the sensory nervous
system and a form of RSD, resulting from the injury plaintiff
sustained in the automobile collision.
He ordered a second MRI and an electromyogram (EMG) to
measure muscle function, as well as a nerve study. All were
negative and, he, therefore, ruled out motor nerve injury as the
source of plaintiff's pain. Dr. Getson referred plaintiff to
David Lopresti, D.O., an interventional pain management
specialist, who performed two series of epidural and facet
injections. Plaintiff had a positive response to the treatments
but did not complete the injection series due to her pregnancy.
Dr. Getson also prescribed physical therapy, Topamax, a drug
used to relieve nerve pain, and ordered a thermogram. The
thermogram confirmed Dr. Getson's diagnosis.

2
The brachial plexus is a network of nerves that conducts
signals from the spine to the shoulder, arm, and hand.

A-1977-08T3
6
Plaintiff did not return to Dr. Getson until February 2007,
at which point he observed her lower back pain remained
problematic, but "her neck pain was pretty much gone. And that
was not surprising to me at all because for some reason . . .
pregnancy improves sympathetic dysfunction." Before suggesting
further injection treatments, Dr. Getson ordered a follow-up
MRI, which was unremarkable. Dr. Getson noted a normal MRI did
not preclude the sympathetic abnormality, but ruled out a
pinched nerve, disc herniation or other motor function
abnormalities.
At trial, Dr. Getson's de bene esse deposition was played
for the jury. He discussed the thermogram results, explaining
a thermogram or infrared imaging was an objective test measuring
the sensory portion of the nerves and sympathetic portion of the
nervous system to diagnose sympathetically mediated pain
syndrome. Dr. Getson showed some of the thermographic images
taken on February 16, 2005, and interpreted the images
explaining to the jury the various abnormalities between
plaintiff's left versus her right side. The thermography
results showed "abnormalities in the neck and the legs
predominantly, and . . . in the hands; . . . in the neck and
upper back they were significant in scope."
A-1977-08T3
7
Following plaintiff's examinations and the two thermogram
tests, Dr. Getson opined, "[b]ased upon the history [plaintiff]
gave . . . and the absence of prior neuromuscular abnormalities,
review of medical records, diagnostic tests[] [and] consultant
reports, it [wa]s [his] opinion to a reasonable degree of
medical probability that the accident of April 20[], 2004, was
the reason for [plaintiff's] sympathetic dysfunction," and the
condition of sympathetic mediated pain syndrome would "continue
to be so." Additionally, in his experience of treating
sympathetically mediated pain syndromes, Dr. Getson noted
"virtually every case of sympathetic dysfunction is the result
of some kind of trauma." Although treatable, it remains "an
incurable entity."
At trial, plaintiff testified she continued to experience
daily pain in her lower back, which radiates down her right leg.
The pain is exacerbated by long car rides, excessive walking or
standing. Plaintiff stated she lost time from work as a
corrections officer following the accident, and it was
stipulated her lost wages amounted to $36,000.
Plaintiff's husband, Anthony Saduk, and her mother, Carol
Jimenez, also testified. Mr. Saduk testified his wife is in
constant pain in her neck, back and legs, and, as a result, her
life has been dramatically altered. Carol Jimenez testified she
A-1977-08T3
8
witnessed her daughter's pain and has seen her cry a lot. She
helps her daughter with activities such as grocery shopping,
lifting and cleaning.
Defendant testified on his own behalf. The defense
presented Gerald Packman, M.D., an orthopedist. Dr. Packman
admitted he would not take issue with the accuracy of Dr.
Getson's diagnoses. When asked his opinion on whether
plaintiff's pain would dissipate, he stated, "the statistics are
that pain that has lasted four years is not going to go away
very quickly." Defendant provided no testimony to challenge Dr.
Getson's review of plaintiff's thermogram.
At the close of plaintiff's case, the defense moved to
dismiss the complaint. In support of the motion, defendant
maintained the thermogram results were insufficient to establish
plaintiff suffered a permanent injury. The trial judge denied
counsel's motion, again affirming the question would be
presented to the jury for determination.
Neither the color thermogram images nor Dr. Getson's
thermogram report were offered into evidence. However, during
summation, defense counsel attempted to show the jury an
enlarged portion of Dr. Getson's thermogram report. Plaintiff
objected, as Dr. Getson had testified regarding the conclusions
he reached based upon the thermogram test results; he did not
A-1977-08T3
9
read from his report. The trial judge sustained plaintiff's
objection and determined that while the hearsay enlargement
could not be used, defendant could argue from facts already in
evidence regarding the thermogram test, the results, or its
value in diagnosing plaintiff's condition.
After deliberating for approximately three hours, the jury
returned a verdict in favor of plaintiff for $486,000, which the
court molded to $450,000, the court deducted $36,000 for
plaintiff's lost wages because she had already received
reimbursement. The court added $69,503.41 in prejudgment
interest plus taxed costs and entered a Final Order of Judgment
on October 17, 2008 for $519,703.41. Defendant filed a motion
for a new trial, which was denied on November 21, 2008. This
appeal ensued.
On appeal, defendant presents two issues for our
consideration. First, he suggests a new trial is necessary
because the verdict was against the weight of the evidence,
arguing plaintiff's proofs were insufficient to support the
necessary finding of permanent injury to satisfy the verbal
threshold. Second, he maintains the trial court abused its
discretion in preventing the utilization of a copy of the
enlarged summary themography report during closing argument.
A-1977-08T3
10
A trial court's decision on a motion for a new trial on the
basis that the jury verdict is against the weight of the
evidence will not be reversed "unless it clearly appears that
there was a miscarriage of justice under the law." R. 2:10-1;
R. 4:49-1; Johnson v. Scaccetti, 192 N.J. 256, 280 (2007);
Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter v. Fairmont
Food Co., 74 N.J. 588, 596 (1977). In correcting any clear
error or mistake of the jury, the trial judge may not substitute
his judgment for that of the jury merely because he would have
reached the opposite conclusion. Dolson v. Anastasia, 55 N.J.
2, 6 (1969). Thus, a trial judge must "'canvass the record, not
to balance the persuasiveness of the evidence on one side as
against the other, but to determine whether reasonable minds
might accept the evidence as adequate to support the jury
verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435,
445 (1962)); Baxter, supra, 74 N.J. at 597-98.
Therefore, "'[t]he standard for appellate review of a trial
court's decision on a motion for a new trial is substantially
the same as that controlling the trial court except that due
deference should be made to its 'feel of the case,' including
credibility.'" Caldwell, supra, 136 N.J. at 432 (quoting
Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984)); Johnson,
supra, 192 N.J. at 282. Beyond these "intangibles," an
A-1977-08T3
11
appellate court is to make its own independent determination of
whether a miscarriage of justice occurred. Carrino v. Novotny,
78 N.J. 355, 360 (1979); Dolson, supra, 55 N.J. at 6-7. It is
within this context that this court should consider defendant's
argument.
At the time of the accident, plaintiff was covered by an
automobile insurance policy wherein she elected the "limitation
on lawsuit" or verbal threshold coverage. This coverage
comports with the Legislature's declaration under the Automobile
Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), that
no damages claimed for injuries sustained in an automobile
accident shall be awarded unless the injured person satisfies
the verbal threshold. N.J.S.A. 39:6A-1.1 to -35. Only a person
who suffers a "permanent injury" qualifies for an award of non-
economic damages. N.J.S.A. 39:6A-8(a).
Under AICRA, the court must decide whether the medical
evidence shows plaintiff's injury or injuries fall within at
least one of the established threshold categories. Oswin v.
Shaw, 129 N.J. 290, 294 (1992). N.J.S.A. 39:6A-8(a) sets forth
the following six threshold categories: "death; dismemberment,
significant disfigurement or significant scarring; displaced
fractures; loss of a fetus; or a permanent injury within a
reasonable degree of medical probability, other than scarring or
A-1977-08T3
12
disfigurement." The statute further states, "[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." Ibid. Thus,
a plaintiff must show, within a reasonable degree of medical
probability, a permanent injury by objective credible evidence
that is causally related to the crash. Davidson v. Slater, 189
N.J. 166, 189 (2008).
Defendant's objection implicitly attacks the thermogram as
evidence of permanent injury. Defendant asserts a thermogram is
accepted only for the purpose of diagnosing RSD, which was not
established in this matter. We reject this argument.
A thermogram has been accepted as an objective diagnostic
test relied upon by physicians. See Procida v. McLaughlin, 195
N.J. Super. 396, 398 (Law Div. 1984) (the thermogram is a
diagnostic tool with a sufficient scientific basis to produce
uniform and reasonably reliable results). Ibid. Also, in the
context of personal injury protection payments, N.J.A.C. 11:3-
4.5(b)(9) states a thermogram is an accepted "diagnostic test"
"determined to have value in the evaluation of injuries". . .
"only when used to evaluate pain associated with reflex
sympathetic dystrophy ("RSD"), in a controlled setting by a
physician experienced in such use and properly trained." Ibid.
A-1977-08T3
13
The trial judge accepted the evidence to allow plaintiff to
vault the verbal threshold when he denied summary judgment. Any
dispute as to the results of the thermogram or its
interpretation goes to its weight, which was properly left to be
determined by the jury. The record reflects Dr. Getson's
diagnosis that plaintiff suffered sympathetically mediated pain
syndrome, a form of RSD, went unrefuted. The jury received and
assessed all the evidence of the medical testing performed
including the negative MRIs, EMG, x-rays and nerve study, as
well as the abnormal thermogram results, as interpreted by Dr.
Getson. The jury evaluated the credibility of the witnesses,
including the experts, to which we give "the utmost regard."
Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532
(App. Div.), certif. denied, 180 N.J. 355 (2004). Accordingly,
as found by the trial court, the jury verdict was properly
grounded in the evidence and it did not constitute a miscarriage
of justice.
We also reject defendant's contention that the trial court
abused its discretion in preventing defense counsel from showing
the jury a copy of Dr. Getson's summary report during summation.
The determination was a matter that lies within the sound
discretion of the trial judge, "and the exercise of that
discretion will not ordinarily be disturbed unless there is a
A-1977-08T3
14
marked abuse of discretion. Reversal will follow only in cases
of a clear abuse." Purdy v. Nationwide Mut. Ins. Co., 184 N.J.
Super. 123, 130 (App. Div. 1982) (internal citations omitted).
We do not discern an abuse in the court's exercised discretion
restraining comment during summation to the facts shown or
reasonably suggested by the actual evidence introduced. R. 1:7-
1(b).
Affirmed.

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