Hisenaj v. Kuehner

• Decision Date: 06 March 2008
• Docket Number: A-86 September Term 2006.
• Citation: 194 N.J. 6,942 A.2d 769
• Parties: Hajrie HISENAJ, Plaintiff-Respondent, and Binak Hisenaj, her husband, Plaintiff, v. Amanda L. KUEHNER, Defendant-Appellant, and GMAC, John Doe I Through John Doe X (Being fictitious) and ABC Corporation Through XYZ Corporation (Being fictitious), Defendants.
• Court: New Jersey Supreme Court

942 A.2d 769

194 N.J. 6

Hajrie HISENAJ, Plaintiff-Respondent, and Binak Hisenaj, her husband, Plaintiff, v. Amanda L. KUEHNER, Defendant-Appellant, and GMAC, John Doe I Through John Doe X (Being fictitious) and ABC Corporation Through XYZ Corporation (Being fictitious), Defendants.

A-86 September Term 2006.

Supreme Court of New Jersey.

Argued November 13, 2007.

Decided March 6, 2008.

Michael B. Devins argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Devins, Walter R. Krzastek, Jr., Lisa E. Lomelo and Patrick J. Farmer III, Morristown, on the briefs).

Michelle Joy Munsat argued the cause for respondent.

Bruce H. Stern, Lawrenceville, argued the cause for amicus curiae Association of

Trial Lawyers of America-New Jersey (Stark & Stark, attorneys).

Stephen J. Foley, Jr., Asbury Park, submitted a brief on behalf of amicus curiae New Jersey Defense Association (Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys).

Justice LaVECCHIA delivered the opinion for the Court.

The issue in this appeal arose out of the trial of a personal-injury action for injuries sustained in an automobile accident. The jury's verdict was largely in favor of defendant, and plaintiff appealed. A panel of the Appellate Division reversed and held that plaintiff was entitled to a new trial because the trial court erred in admitting expert testimony from defendant's biomechanical engineer. Hisenaj v. Kuehner, 387 N.J.Super. 262, 277, 903 A.2d 1068 (App.Div.2006). We granted defendant's petition for certification, 189 N.J. 427, 915 A.2d 1050 (2007), and now reverse. Based on the record and arguments presented to the trial court, and applying the abuse-of-discretion standard, we hold that the trial court's evidential ruling was within the range of sustainable trial determinations that the reviewing court should have affirmed.

I.

A.

The instant case involves a low-impact, vehicle-on-vehicle collision that occurred at the intersection of River Road and Drakestown Road in Mount Olive on March 2, 1998. Plaintiff, Hajrie Hisenaj, a forty-year-old woman, had stopped at the intersection and was preparing to turn left. Defendant Amanda Kuehner was driving toward the intersection and initially failed to notice plaintiff's vehicle. Suddenly aware of the threat of an impending collision, defendant applied her brakes. But her reaction came too late. Her vehicle collided with the rear bumper of plaintiff's vehicle.

Defendant nonetheless succeeded in substantially slowing her vehicle prior to the accident. At impact, defendant's car was traveling at less than eight miles per hour, and the collision resulted in less than a five-mile-per-hour change in the velocity of plaintiff's car. An accident re-constructionist later likened the impact to that felt by riders in colliding amusement park bumper cars.

Plaintiff began experiencing chronic pain in her neck and lower back soon after the accident. She consulted a multitude of medical practitioners to address her discomfort. Imaging of her back revealed degenerative disc disease (DDD),¹ as well as herniated and bulging discs, in the cervical and lumbar portions of her spine.² After four years of non-invasive treatments failed to alleviate her cervical and lumbar back pain, plaintiff resorted to surgical treatment.

In 2000, plaintiff filed the instant action claiming that the 1998 accident caused the herniated discs in her cervical and lumbar spine.³ Because summary judgment resolved liability in plaintiff's favor, the trial focused on damages. Plaintiff asserted that the accident caused a "permanent consequential limitation of use of a body organ or member," and a "significant limitation of use of a body function or system," which allowed her to pursue this tort cause of action against defendant. See N.J.S.A. 39:6A-8(a) (1990) (amended 1998 and 2003) (establishing then-extant verbal threshold requirement for negligence cause of action to proceed); Oswin v. Shaw, 129 N.J. 290, 315, 609 A.2d 415 (1992). Both plaintiff and defendant produced expert testimony on the disputed issues of causation and permanency of injury.

The jury found that the accident resulted in a "significant limitation of use of a body function or system,"⁴ but that plaintiff did not suffer a permanent injury as a result of the collision. In its review of this matter on appeal, the Appellate Division remarked, "The jury apparently found that the accident caused plaintiff's pre-existing [DDD] to become symptomatic and painful for a time, but it did not cause any herniations or other permanent injuries." Hisenaj, supra, 387 N.J.Super. at 266, 903 A.2d 1068. That said, the Appellate Division reversed and ordered a new trial, finding that the trial court committed reversible error in admitting expert testimony from defendant's biomechanical engineer, Harold Alexander, Ph.D. Id. at 275, 903 A.2d 1068.

The narrow issue in this appeal is whether the Appellate Division overstepped its bounds when reviewing the trial court's admission of Dr. Alexander's expert testimony. In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion. See Brenman v. Demello, 191 N.J. 18, 31, 921 A.2d 1110 (2007). A reviewing court is not permitted to create anew the record on which the trial court's admissibility determination was based. See ibid. Defendant claims that instead of adhering to the proper scope of review, the Appellate Division essentially undertook its own examination of the foundation for Dr. Alexander's testimony and erroneously substituted its judgment for that of the trial court. And, further, in doing so, the panel effectively allowed plaintiff to create a whole new case against the admissibility of Dr. Alexander's testimony than that which was presented to the trial court.

We begin our analysis, therefore, by turning to the record and arguments that were presented to the trial court.

B.

The expert testimony on biomechanics⁵ from Dr. Alexander was to be a central component in defendant's response to plaintiff's medical experts (all of whom opined that the 1998 low-impact collision caused plaintiff to suffer a permanent injury).⁶ In proffering her expert's testimony, defendant indicated that Dr. Alexander would testify that the minimal velocity of defendant's vehicle at impact, coupled with the minor change in the velocity of plaintiff's car resulting from the crash, made it "highly improbable" that the rear-end collision caused the herniations in plaintiff's cervical and lumbar spine. According to Dr. Alexander, given the circumstances of the low-impact collision, no biomechanical "mechanism" existed that would cause a chronic injury to result from this impact. He therefore opined that it was highly improbable that plaintiff suffered a chronic injury from an accident such as the collision with defendant's vehicle.

Dr. Alexander partially based his opinion on a review of the record as to the accident and plaintiff's medical history. He relied on (1) police reports relating to the accident; (2) the parties' depositions and answers to interrogatories; (3) photographs of defendant's vehicle; (4) the property damage file from plaintiff's insurance company; (5) plaintiff's medical records; and (6) the report and testimony of defendant's accident re-constructionist regarding the velocity of defendant's vehicle at impact and the change in velocity to plaintiff's vehicle caused by the collision (the Delta-V opinion testimony). Dr. Alexander also reviewed seventeen scholarly analyses of studies that measured the effects of low-impact collisions on humans of various ages, and physical and mental make-ups. He appended those studies to his expert report.

Plaintiff moved in limine to exclude Dr. Alexander's testimony, alleging that the threshold requirements for admissibility under Evidence Rule 702 were not met because there was not a reliable scientific foundation for the opinion testimony. Plaintiff further objected to Dr. Alexander's reliance, when forming his expert opinion, on the opinion of the accident reconstructionist concerning the Delta-V involved in this accident. In respect of the latter criticism, plaintiff also argued that Alexander's opinion constituted a net opinion. After conducting a Rule 104 hearing, the trial court admitted Dr. Alexander's proffered testimony. Dr. Alexander's direct testimony at trial essentially followed the proffer. On appeal, plaintiff reasserted that Dr. Alexander's opinions did not have the requisite reliable scientific foundation needed to satisfy Evidence Rule 702's admissibility requirements and that, therefore, the trial court erred in admitting that testimony. Hisenaj, supra, 387 N.J.Super. at 264, 903 A.2d 1068.

The Appellate Division directed the parties to submit the studies on which Dr. Alexander relied, which had not been moved into evidence, and to file briefs readdressing whether Dr. Alexander's testimony met the threshold requirements for admissibility under Rule 702. Id. at 272, 903 A.2d 1068. The panel engaged in its own review of the bases for Dr. Alexander's expert testimony and concluded that the testimony did not rest on a scientifically reliable foundation. Id. at 273-75, 903 A.2d 1068. The panel found that although biomechanical engineers could testify to the effects that usually follow from involvement in a low-impact vehicular collision, the field was not sufficiently accurate and reliable for biomechanical engineers to offer opinions about the likely effects that would flow to a particular individual involved in a low-impact vehicular collision. Id. at 274, 903 A.2d 1068. Accordingly, the panel vacated the trial verdict and remanded for a new trial. Id. at 277, 903 A.2d 1068.

II.

In assessing whether the trial court erred in admitting Dr. Alexander's expert testimony, we must examine the testimony and evidence developed in the record under review. See Mogull v. CB Commercial...