ARCHANNA RANA VS. ALLSTATE NEW JERSEY PROPERTY & CASUALTY INSURANCE COMPANY (L-1722-17, PASSAIC COUNTY AND STATEWIDE)

A
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4305-18

ARCHANNA RANA,

          Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY
PROPERTY & CASUALTY
INSURANCE COMPANY,

          Defendant-Respondent.


                   Argued February 1, 2021 – Decided March 22, 2021

                   Before Judges Currier and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Docket No. L-1722-17.

                   Salomao Nascimento argued the cause for appellant
                   (Epstein  Ostrove,     LLC, attorneys;  Salomao
                   Nascimento, on the briefs).

                   Ryan J. Gaffney argued the cause for respondent
                   (Chasan Lamparello Mallon & Cappuzzo, PC,
                   attorneys; John V. Mallon, of counsel and on the brief;
                   Ryan J. Gaffney, on the brief).
PER CURIAM

      In this personal injury claim arising out of an automobile accident,

plaintiff Archanna Rana appeals from a May 2, 2019 order for final judgment

granted in favor of defendant Allstate New Jersey Property & Casualty

Insurance Company following a three-day jury trial. We affirm.

      We derive the facts from the testimony elicited at trial. Plaintiff was

involved in an automobile accident with another vehicle in March 2016.

Because the other car left the accident scene, plaintiff pursued a claim for

uninsured motorist benefits against Allstate. She also applied for personal injury

benefits (PIP) through Allstate.

      Several weeks after the accident, plaintiff sought care from a chiropractor.

She was experiencing pain in her neck and low back as well as her shoulders.

After several months of treatment, the chiropractor referred plaintiff to an

orthopedic surgeon, who sent plaintiff for MRI scans and an EMG, and

recommended physical therapy. Plaintiff testified she completed her treatment

in October 2016.

      In June 2018, plaintiff consulted with Dr. Sheref Hassan for a second

opinion regarding her continuing pain in her neck and shoulders.            In his

subsequent report, he diagnosed plaintiff with bilateral partial rotator cuff tears


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and rotator cuff tendinosis and bursitis. Because the condition was worse in her

left shoulder, the doctor recommended left shoulder arthroscopy with a potential

need for a similar surgery on the right shoulder. The doctor opined: "[T]he

estimated cost of such future treatments including the planned arthroscopic

surgery, anesthesia, medications, injections, physical therapy and facility fees is

approximately $100,000 per shoulder."

      Prior to trial, the parties preserved Dr. Hassan's testimony in a de bene

esse videotaped deposition. Defense counsel objected to the doctor's description

of the surgery and to his estimation of the surgery costs and requested the court

edit the videotape prior to playing it for the jury.

      In considering defendant's editing requests, the trial judge stated:

             First and foremost, as far as the doctor talking about his
             recommendation being that the patient would need or
             he would recommend surgery on the shoulder, I don't
             have any problem with that, and I think that . . . can be
             dealt with by cross, which has, in fact, taken place, and
             he gave at one point a very brief description of the
             procedure that he apparently provided to the patient.

             However, I have a great deal of difficulty accepting his
             testimony that talks about this very detailed description
             of what this surgery would entail, including anchoring.

             Now, that's one thing. If the surgery took place,
             obviously, the doctor can testify to all of that. But the
             mere fact that he has recommended surgery should not


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give him the opportunity to tell this jury all of the
details of what the surgery would entail.

First and foremost, we don't know what would happen
at surgery until the surgery is performed. Anything
could happen.

Second of all, it's highly speculative in nature. We
don't even know if this person is, in fact, going to have
surgery. She saw the doctor one time, has never been
back to see him again. . . . And I have no problem with
his saying that [he] would recommend . . . surgery. I
have no problem with that and no problem with the very
beginning where he gives a very brief description of
what the surgery would entail. But once he starts going
into all of the details . . . concerning anchoring and
things of that sort, whatever probative value that would
have, which would be highly questionable at this point,
simply because it's so speculative in nature as to
whether there is even going to be surgery, would be
certainly outweighed by the prejudicial impact.
Because if the jury starts hearing all of this, it makes
the injury sound a lot more severe than it might
otherwise be. We don't know what's going to happen.

Now, if the surgery had taken place, that's a totally
different story, then he certainly would be permitted to
testify to everything that occurred during the surgical
procedure. But when you have a doctor who sees the
patient one time, has not treated her in any sense of the
word, has done nothing, she's never gone back for
follow-ups, there is no indication that she is even
intending [to] have surgery, for him to go into that kind
of detail . . . I have difficulty with that.

I also have difficulty with, and I feel it should not go
before the jury, what the cost of this particular surgical
procedure would be. It comes out to about $100,000.

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            Well, number one, we don't know if it's going to
            happen. Number two, we don't know what the actual
            bill is going to be if it were to happen. Number three,
            we don't even know what would be boardable. I don't
            know what would be boardable. Maybe it's going to be
            covered, maybe it's not going to be covered. But to
            throw out a figure like that to the jury, at this point,
            again, for something that may never happen, I think is
            highly prejudicial, and that should not come in.

In addition, because plaintiff did not have a claim for economic damages, the

judge found the cost of the surgery was not relevant.

      During the discussion, plaintiff requested the court prohibit references to

a prior 2010 motor vehicle accident in which plaintiff sustained injuries and

sought medical treatment. According to plaintiff, all of her injuries had resolved

prior to the 2016 accident and no doctor attributed any or all of her current

injuries to the prior accident. The judge responded:

            Here is the interesting point. And this may go to
            credibility. When you say no doctor has done it, it's
            because nobody ever bothered to get the records of the
            prior accident. Don't you think that that's something
            that a jury should consider?

            I mean, this woman had a prior accident, okay? And on
            issues of credibility, if she's asked, . . . what kind of
            treatment did you receive, how long was that treatment?
            You don't think that a jury has a right to know that?

            Now, I understand that you're in a position where
            nobody can give an analysis here of a breakdown, but
            here is the problem: The problem is, there are no

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            records, there is no analysis, because none were ever
            provided. This doctor never sought them.

            And in fact, I think on cross examination there was
            some question to the effect that you didn't think you
            would ask for this stuff? Wouldn't you want to see it?
            Wouldn't you want – I mean, it's almost unheard of that
            as a treating doctor you're not going to even ask for
            prior records. But don't you think that that goes to
            weight and credibility that a jury should be permitted to
            at least consider that?

In addition, defense counsel informed the judge that her medical expert, Hervey

Sicherman, M.D., had reviewed records from the prior accident and included a

discussion of them in his report. The judge denied plaintiff's motion and ruled

that the parties could refer to the 2010 accident.

      During her trial testimony, plaintiff told the jury that Dr. Hassan

recommended surgery for both of her shoulders.         When plaintiff's counsel

inquired whether plaintiff had undergone the surgeries, defense counsel

objected.

      During the sidebar, the judge asked plaintiff's counsel if plaintiff was

going to tell the jury she had not undergone surgery because of the cost. The

judge said plaintiff could not give cost as a reason because she had not made a

claim for economic damages and there was no evidence whether the surgery

would be covered by insurance or PIP.         Outside the presence of the jury,


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plaintiff's counsel instructed plaintiff not to refer to the potential cost of the

surgery.

      In front of the jury, plaintiff's counsel again asked plaintiff why she had

not had surgery. She said she was "scared." "There is a lot of stuff that can

happen, go wrong and I'm just not ready for that surgery right now."

      When questioned about the prior 2010 accident, plaintiff stated she injured

her neck and shoulders and treated with a chiropractor and physical therapist.

She told the jury she treated for those injuries for approximately a year but then

"got . . . back to . . . normal."

      During the direct examination of Dr. Sicherman, defense counsel

questioned him about his review of plaintiff's MRI films and asked if the doctor

had the films with him. The doctor said he did not. At sidebar, defense counsel

stated she had sent the films to the courthouse. No one knew if the films had

arrived. Plaintiff's counsel stated he did not have a copy with him. The judge

told counsel they should have worked the issue out before trial began and they

would have to proceed with what they had.          Dr. Sicherman then testified

regarding his findings on the MRI films consistent with what was written in his

report. There was no objection to the testimony.




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      Dr. Sicherman reviewed MRI films taken of plaintiff's neck and back after

the 2010 accident. He testified they showed degenerative changes. In his review

of 2016 MRI films, Dr. Sicherman stated they showed continuing degenerative

changes. The expert opined plaintiff had not suffered any permanent injury in

the 2016 accident.

      The jury returned a verdict in favor of defendant and the court entered an

order for final judgment. 1

      On appeal, plaintiff argues the trial court erred: (1) in barring Dr. Hassan's

testimony regarding the details and costs of the recommended shoulder surgery;

and (2) in allowing references to the prior 2010 motor vehicle accident. Plaintiff

also asserts the admonishment of her counsel deprived her of a fair trial.

      In reviewing allegations of error in a trial court's evidential ruling, we are

"limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner,

194 N.J. 6

, 12 (2008) (citing Brenman v. Demello, 

191 N.J. 18

, 31 (2007)). In

other words, "[i]n light of the broad discretion afforded to trial judges, an

appellate court evaluates a trial court's evidentiary determinations with

substantial deference." State v. Cole, 

229 N.J. 430

, 449 (2017) (citing State v.


1
  The case proceeded only on the issue of damages. The jury found plaintiff
had not proven she sustained a permanent injury proximately caused by the
March 2016 motor vehicle accident.
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Kuropchak, 

221 N.J. 368

, 385 (2015)). "Thus, [this court] will reverse an

evidentiary ruling only if it 'was so wide off the mark that a manifest denial of

justice resulted.'" Griffin v. City of E. Orange, 

225 N.J. 400

, 413 (2016)

(quoting Green v. N.J. Mfrs. Ins. Co., 

160 N.J. 480

, 492 (1999)).

      Plaintiff argues the testimony Dr. Hassan attempted to offer regarding a

recommended arthroscopic surgery was necessary as it would have helped the

jury understand the nature and complexity of the shoulder injury. We disagree.

Plaintiff went to Dr. Hassan on one occasion. She testified at trial that she did

not plan to undergo the recommended surgery because she was afraid of it. A

description of a surgery plaintiff did not undergo, and furthermore, one which

she did not plan to have, is not relevant to any analysis of the permanency of her

injuries.

      Plaintiff had the burden to show she had a permanent injury resulting from

the 2016 accident. A description of a surgical procedure did not "have[] a

tendency in reason to prove or disprove" whether plaintiff sustained permanent

injuries that required surgery. See R. 401. The jury was apprised of Dr. Hassan's

diagnoses of plaintiff's injuries, his opinion that she sustained a permanent

injury, his recommended treatment, including the arthroscopic procedure , and




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his opinion that even with surgery, plaintiff might not return to her pre-accident

functionality.

      Even if the details of the recommended procedure were determined

relevant, the trial judge found any probative value was outweighed by the risk

of prejudice under N.J.R.E. 403 as the jury would hear about a surgery that

plaintiff did not intend to have.     Therefore, the "trial court's weighing of

probative value against prejudicial effect 'must stand [because] it can[not] be

shown that the trial court palpably abused its discretion, that is, that its finding

was so wide of the mark that a manifest denial of justice resulted.'" 

Cole, 229

N.J. at 449

(quoting State v. Carter, 

91 N.J. 86

, 106 (1982)).

      The same reasoning applies to the testimony regarding the costs of the

proposed surgery.     Plaintiff argues before this court that she did not have

sufficient PIP coverage to pay the surgical costs and the jury should have been

informed of that fact. She states this is another reason why she did not have the

surgery and the jury should have considered it as a future economic claim.

      However, plaintiff did not plead a claim for economic damages. Nor did

she tell the judge during the discussion of the editing of Dr. Hassan's videotaped

testimony that she did not have the surgery because she could not afford it. In

addition, the surgery was speculative; as stated, plaintiff did not intend to have


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it.   Therefore, the court properly denied the testimony under its Rule 403

balancing analysis. Without any information as to the true costs, and whether

some portion of the costs might be covered by PIP benefits or health in surance,

any proffered figure was not grounded in fact nor could it be subject to cross-

examination.

       We discern no error in the references to plaintiff's prior motor vehicle

accident. She told the jury she had injured her neck and back in that accident.

During a defense medical examination conducted for the prior accident, she

described injuring her neck and shoulder in the 2010 incident. Here, plaintiff

informed the jury she hurt her neck, back and shoulders in the 2016 accident.

However, plaintiff stated she had fully recovered from her prior injuries.

       Dr. Sicherman provided testimony that imaging studies done in 2010 and

2016 showed plaintiff had degenerative changes in her neck and back in 2010

and 2016.      Therefore, there was testimony before the jury that plaintiff's

condition was not caused solely or at all by the 2016 motor vehicle accident but

instead, partially or wholly, from a degenerative condition.          Defendant

established a sufficient logical connection between the injuries sustained in the

two accidents for the jury to hear of the prior accident, alleged injuries and




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medical treatment. See Allendorf v. Kaiserman Enters., 

266 N.J. Super. 662

(App. Div. 1993); Paxton v. Misiuk, 

34 N.J. 453

(1961).

       We are unpersuaded by plaintiff's contention that her counsel was

admonished by the judge before the jury, resulting in an unfair trial. The record

reflects that the discussion regarding the MRI films occurred at sidebar. The

judge did not single out plaintiff's counsel; to the contrary, the judge stated

during the sidebar conversation that both counsel should have resolved the issue

of production of the films before trial. That ended the discussion. Plaintiff has

not demonstrated any error, much less an accumulation of errors that deprived

her of a fair trial.

       Affirmed.




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