Jefferson v. Freeman

• Decision Date: 20 December 1996
• Citation: 685 A.2d 1357,296 N.J.Super. 54
• Parties: Joann JEFFERSON and Elelake Jefferson, Plaintiffs-Appellants, v. Johnny M. FREEMAN and Dominick Salerno, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 54

296 N.J.Super. 54

685 A.2d 1357

Joann JEFFERSON and Elelake Jefferson, Plaintiffs-Appellants, v. Johnny M. FREEMAN and Dominick Salerno, Defendants-Respondents.

Superior Court of New Jersey Appellate Division.

Submitted Nov. 27, 1996.

Decided Dec. 20, 1996.

Robert S. Miller, East Orange, for appellants. (Alfred V. Gellene, on the brief).

Robert A. Auerbach, Florham Park, for respondents (Randi S. Greenberg, Piscataway, of counsel and on the brief).

Before Judges BAIME, PAUL G. LEVY and BRAITHWAITE.

The opinion of the court was delivered by

PAUL G. LEVY, J.A.D.

A jury found that plaintiff, a cashier employed at a supermarket, did not qualify for an award of non-economic damages under the ninth category of qualifying injuries under the "verbal threshold" statute ( N.J.S.A. 39:6A-8a), yet it awarded her an economic loss for lost wages. Plaintiff's appeal focuses on the issue of whether her injuries had a "serious impact on the plaintiff and her life," a factual determination to be made by the jury. We hold that the jury instructions regarding this issue were misleading and clearly capable of producing an unjust result. Accordingly, we reverse and remand for a new trial limited to consideration of non-economic damages for injuries qualifying under type nine of the verbal threshold.

Plaintiffs, wife and husband, filed a complaint alleging the wife's personal injuries, as a result of an automobile accident caused by the negligence of defendants, and the husband's loss of consortium. On a snowy day, plaintiff's car stalled and was struck in the rear so hard that emergency crews had to use the "jaws of life" apparatus to extract her from the car. Taken to a local hospital, she complained of pain "from head to toe." X-rays were taken of her skull, neck and back, and although she could not walk, she was released several hours later and advised to consult with her own physician.

Plaintiff consulted and was treated by several doctors. First, Dr. Davis, a chiropractor, recommended that plaintiff see a gynecologist for a pregnancy test. Plaintiff was found to be pregnant and subsequently delivered a healthy child in October 1993. Because of her pregnancy, no additional x-rays were taken until after October 1993. Plaintiff testified that her wrists and ankles bothered her during her pregnancy.

During her pregnancy, Dr. Haidri, a neurologist, prescribed braces for her wrists upon discovering carpal tunnel syndrome through an EMG. With regard to her wrists, plaintiff testified that she suffers throbbing and aching pain in her wrists, which sometimes feels like pins and needles, and other times is numbing and aching. She sometimes feels pain in her whole hand, sometimes in her fingers, and the pain radiates up her arm and into her shoulder. Plaintiff testified she never injured her wrists or arms before the accident.

At trial, Dr. Haidri testified that he made an initial diagnosis of concussion, post traumatic headaches and dizziness, acute sprain of her neck, mid and low back pain and radiculopathy and pinched nerves in her neck and back sprain. He noted that the neurological testing of plaintiff's brain, the EMG of her legs, and the MRI of her left ankle were normal. Her hip x-rays were negative. Dr. Haidri indicated that plaintiff had bilateral carpal tunnel syndrome, which he attributed to her gripping her hands to the steering wheel during the accident, but acknowledged this problem could also be caused by pregnancy, being overweight, thyroid problems, and/or repetitive motion. The EMG of the cervical spine was normal except for the suggestion of carpal tunnel syndrome. The doctor testified he gave plaintiff a guarded prognosis based on the duration of her symptoms. He testified her symptoms were consistent and reliable throughout the time that he saw her.

Dr. Davis, the chiropractor, treated plaintiff's neck and back three times each week from February 1993 to December 1993. Plaintiff testified that the chiropractic treatments did not help her at all. When her injuries persisted, she saw Dr. Gallick twice for pain in her wrists; Dr. Gallick applied a needle therapy and diagnosed carpal tunnel syndrome.

In May 1994, plaintiff was treated by Dr. Glushakow, an orthopedic surgeon, for pain in her left foot and her swollen right hip, both of which she claims made it difficult to walk. Plaintiff wore an air cast for her left leg from May 1994 to September 1994, a soft cast from September 1994 to November 1994, and the air cast again from November 1994 to December 1995. In May 1994, Dr. Glushakow also prescribed crutches to plaintiff because of her difficulty in walking without a limp. Dr. Glushakow was the only physician who treated plaintiff's ankle problems.

At trial, Dr. Glushakow testified that he diagnosed plaintiff with lumbosacral radiculitis, cervical sprain, internal derangement of her left ankle, and bilateral Dequervian syndrome. He explained how he gave plaintiff Finklestein's test for which she tested positive; the test measures pain to one's hands. Dr. Glushakow acknowledged that repetitive motion is a cause of carpal tunnel syndrome. The doctor found her wrist and ankle injuries to be permanent in nature and attributable to the accident.

Plaintiff was also treated briefly by Drs. Wolkstein and Megingea. In September 1995, Dr. Megingea began to administer acupuncture to plaintiff's neck, left ankle, hands, and right hip. Plaintiff testified the acupuncture helps to temporarily ease the pain by about ten percent.

Plaintiff was examined by several of defendants' doctors. Dr. Ross, a neurosurgeon, testified that because plaintiff exhibited only one of the two positive signs needed to establish the existence of carpal tunnel syndrome, its existence was suggestive, not conclusive, but that repetitive motions such as those of a cashier could cause carpal tunnel syndrome. The doctor did not think that bracing oneself against the steering wheel for a brief moment before the collision would produce carpal tunnel syndrome. He testified that plaintiff did not exhibit any indications of torn ligaments in her ankle, her MRI was negative, and she had no neurological injury. Dr. Ball, an orthopedist, believed that the accident caused plaintiff to sustain whiplash, but he did not find any indications that she could not work.

Plaintiff testified that she is in constant pain, twenty four hours a day, which has affected her ability to do housework, enjoy the physical benefits of married life and take care of her baby. She said her vision is frequently blurred and she often gets migraine headaches.

Plaintiff's husband, Elelake Jefferson testified about his wife's claims of pain and its effect upon their marriage. He explained that since the accident he has had to do most of the household chores including cooking and cleaning, and that he has had to cut back his own work hours to take care of the family.

At the time of the accident, plaintiff worked as a cashier at a supermarket where she had been working for over twenty years. As a cashier, plaintiff stands at the register and scans items. She claimed her injuries caused her to lose nineteen months of work at her weekly salary of $425 per week, totaling approximately $42,000 and received $7000 in disability payments. Plaintiff did not work from February 1993 until January 1994; she returned to work in January 1994 until September 1994 and again in April 1995 due to financial necessity.

Crossing the Verbal Threshold: Type Nine Injury

The judge instructed the jury on the relevant law, including the verbal threshold statute. Plaintiffs contend the instructions concerning the type nine verbal threshold claim were erroneous because they placed an undue burden of proof on plaintiffs and because they were misleading and confusing. These contentions were not raised at trial and there was no objection to the charge, so we limit our consideration to whether or not there was plain error. R. 2:10-2.

The statute provides that a plaintiff in an automobile accident may not recover for non-economic loss unless her injuries satisfy at least one of nine criteria. In this case, pursuant to the statute, plaintiff claims that she suffered injuries that qualified in three of these categories, types seven, eight, and nine:

TYPE 7: permanent consequential limitation of use of a body organ or member;

TYPE 8: significant limitation of use of a body function or system;

TYPE 9: a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment....

[ N.J.S.A. 39:6A-8a quoted in Oswin v. Shaw, 129 N.J. 290, 315, 609 A.2d 415 (1992).]

The seminal case providing a general explanation of the application of the verbal threshold is Oswin v. Shaw. There, the Court held plaintiff's injuries did not satisfy any one of the statute's nine categories, and thus, she did not meet the verbal threshold. Id. at 294, 609 A.2d 415. The Court noted the New Jersey statute was based on a similar law in New York; however, "although the categories in the New York statute serve to define 'serious injury,' the New Jersey statute contains no specific requirement of 'serious injury,' resorting instead to only the injury-type categories to designate the types of injury that meet the threshold." Id. at 303, 609 A.2d 415 (emphasis added). The Court also determined that for a plaintiff to recover, she must present "credible, objective medical evidence" of one or more of the types of injuries described in the statute. Id. at 314, 609 A.2d 415. Additionally, the Court imposed a second requirement that "a plaintiff must show that 'the injury had a serious impact on the plaintiff and her life.' " Id. at 318, 609 A.2d 415 (internal...