CATHERINE HEMINGWAY VS. LAUREN BALSAMO (L-2612-14, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1110-17T3

CATHERINE HEMINGWAY,

Plaintiff-Appellant,

v.

LAUREN BALSAMO and
SHARON BALSAMO,

Defendants-Respondents.

Argued January 30, 2019 - Decided April 9, 2019

Before Judges Ostrer and Currier.

On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-2612-14.

Tracey C. Hinson argued the cause for appellant
(Hinson Snipes, LLP, attorneys; Timothy J. Foley, of
counsel; Tracey C. Hinson, on the briefs).

John V. Mallon argued the cause for respondents
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on the brief;
Richard W. Fogarty, on the brief).

PER CURIAM
 In this personal injury action, plaintiff Catherine Hemingway appeals

from the no cause for action verdict following a jury trial. Plaintiff alleges the

trial court made several evidential errors that should have resulted in a mistrial.

After a review of the contentions in light of the record and applicable principles

of law, we affirm.

We derive the facts from the evidence presented at trial. Plaintiff was

involved in a motor vehicle accident in December 2012, when the car in which

she was a rear seat passenger was struck from behind. Two months later,

plaintiff began treatment with a chiropractor, complaining of neck and back

pain. The chiropractor recommended a CT scan and x-rays, and prescribed

medication. Plaintiff remained under the chiropractor's care for six months.

Plaintiff also treated with an orthopedic group, and underwent a lumbar epidural

injection. She sought the care of a neurosurgeon, had EMG studies and MRI

studies of her neck and back, and treated with a pain management physician who

prescribed various medications.

The jury learned from plaintiff and her expert orthopedic doctor that she

was involved in a motor vehicle accident in 2002, injuring her neck and back.

Plaintiff stated she fully recovered from those injuries. However, in 2005,

plaintiff stated she began to go to the chiropractor again for "mild back and neck

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pain." She recalled also seeing the chiropractor for the same reason in 2008. In

January 2012, plaintiff returned to the chiropractor for pain in her neck and back

and treated with him until August 2012. Because of her continued pain, plaintiff

sought the care of an orthopedist in March 2012. She was referred for physical

therapy and an MRI of the cervical spine. Following another car accident in

December 2014, plaintiff visited the emergency room complaining of pain in her

legs, back, and hip.

Plaintiff's expert orthopedic expert – David Weiss, D.O. – reviewed

medical records and performed a physical examination. He noted that plaintiff

advised she recovered from her 2002 motor vehicle accident. However, in 2008

plaintiff began to experience neck and low back pain and she started a course of

treatment, with a chiropractor and orthopedist, which continued until the

summer of 2012. Dr. Weiss testified that his review of a 2010 lumbar MRI

revealed disc bulges at L4-5 and L5-S1. He found multilevel disc bulges and

age-related changes in reviewing a March 2012 lumbar MRI.

When Dr. Weiss evaluated plaintiff in September 2016, she complained

of constant neck and back pain. He concluded she sustained soft tissue injuries

to the cervical and lumbar spines in the 2012 accident and herniated discs at C3-

4 and L5-S1. He described her as having aggravated pre-existing cervical and

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lumbar spine pathology shown on MRI studies performed prior to the 2012

accident. Dr. Weiss said he did not see herniated discs in the cervical or lumbar

spine in any of the imaging studies done before the 2012 accident.

On cross-examination, Dr. Weiss conceded he did not see a herniated disc

in the lumbar spine on a 2013 MRI. He first noted a L5-S1 herniated disc in an

MRI done in 2015 – after the 2014 motor vehicle accident. However, when the

doctor reviewed a 2016 lumbar spine MRI, he noted the herniation was no longer

present; it had been "reabsorbed."

The defense presented Alan Sarokhan, M.D., an orthopedic surgeon, as

their expert at trial. Dr. Sarokhan advised that when he examined plaintiff in

April 2016, her primary complaint was back pain. He testified as to his review

of numerous MRI studies: a 2008 MRI of the neck showed "multiple levels of

degeneration of discs" and "arthritic changes," which he described as typical

findings in an MRI of a person in their forties or fifties. The doctor's review of

a March 2012 cervical MRI revealed multilevel degenerative disc and joint

disease, similar to the findings on the 2008 MRI. When the doctor reviewed a

2015 cervical spine MRI, he stated there were no changes from the prior films.

Dr. Sarokhan also looked at MRI films of plaintiff's lumbar spine. He

testified he saw degenerated and bulging discs at L4-5 and L5-S1 on a 2015

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MRI. He opined the findings were "consistent with the patient's age and with

the findings elsewhere in her spine."1 The doctor concluded plaintiff had not

suffered a permanent orthopedic injury in the 2012 accident. His review of

additional MRI studies of the neck and back from 2013 and 2016 did not change

his opinion.

Several days before trial was scheduled to start,2 the parties filed pre-trial

information statements listing in limine motions to edit both orthopedic experts'

de bene esse videotaped depositions.3 Plaintiff also advised she intended to

present seven in limine motions, including barring any mention of the 2014

accident, barring reference to any prior injuries, accidents, and lawsuits, and

barring hearsay testimony from defendant.

The record reflects that when the court convened on September 12, 2017,

plaintiff had not filed her motions with eCourts and Judge Janetta D. Marbrey

1
Plaintiff was forty-seven years old at the time of the accident.
2
We were provided transcripts for September 12, 13, and 14, 2017. It appears
there were also trial proceedings on an earlier day, including the selection of a
jury and some discussion of the in limine motions. That transcript was not
provided to us.
3
Defendants filed their pretrial statement on September 7; plaintiff filed her
statement the following day. Both Dr. Weiss and Dr. Sarokhan testified at trial
through videotaped depositions.

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requested she do so prior to a consideration of them. As a result, Judge Marbrey

began the day on September 12 addressing defendants' motion to edit Dr.

Sarokhan's de bene esse testimony. She methodically went through each

objection, providing reasons for her rulings.

After swearing in the jury and excusing them for lunch, Judge Marbrey

addressed plaintiff's requested redactions to Dr. Sarokhan's testimony. She

again considered each objection and made rulings. When she had addressed

each redaction, the judge went through all of the edits required to the videotape,

combining her rulings on both parties' objections.

Next, Judge Marbrey considered the parties' objections to Dr. Weiss's de

bene esse testimony and carefully ruled on each request. With regard to

plaintiff's remaining in limine motions, the judge found she could not determine

the admissibility of certain evidence without hearing the particular question

posed during cross-examination. She stated she would handle objections during

testimony at sidebar. However, Judge Marbrey did bar counsel from discussing

surgery during the opening statements. She advised she would listen to the

testimony regarding surgery and make a further ruling at the appropriate time.

The day concluded with the opening statements and plaintiff's testimony.

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 The following day plaintiff requested a mistrial. She argued that the court

had "allowed prejudicial and inadmissible evidence before the jury that . . .

prejudiced [plaintiff's] ability to have a fair trial." Plaintiff's counsel contended

she was deprived of the opportunity to argue her in limine motions, and defense

counsel improperly used medical records in her cross-examination of plaintiff.

In denying the motion for a mistrial, Judge Marbrey stated counsel's tardy

filing of the motions affected the manner in which the court had to handle the

applications. Plaintiff's counsel did not bring the motions on the first day of

trial, but instead faxed them on Sunday afternoon. The motions were not filed

when the parties arrived at court Monday morning. Nevertheless, the judge

spent an abundant period of time reading the experts' testimony and ruling on

counsel's redaction requests. This permitted counsel to edit the videotapes so

the testimony could be played on the third day of trial. Judge Marbrey further

stated that after she heard the expert's testimony, she would permit plaintiff to

renew her motion as to the admissibility of evidence regarding other accidents

and injuries.

Following the testimony of Dr. Weiss, Judge Marbrey advised counsel

that she intended to further redact the videotaped testimony of Dr. Sarokhan by

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removing all testimony regarding surgical consultations with non-testifying

physicians.

Plaintiff renewed her motion for a mistrial after both parties had rested.

She reiterated that defense counsel had improperly questioned plaintiff with

certain medical records. Defense counsel responded that the particular records

were used to impeach statements made by plaintiff during her direct

examination. One was the emergency room intake sheet in plaintiff's

handwriting memorializing her complaints following the 2014 accident; those

complaints included back pain. The second record was a note in the 2005

chiropractic records that plaintiff was seeking treatment for neck and back pain.

The record was used to establish the date plaintiff sought treatment from the

chiropractor prior to the 2012 accident.

Judge Marbrey found the records were appropriate tools for cross-

examination and impeachment purposes as they related to complaints of and

treatment for plaintiff's neck and back – the same body parts she claimed were

injured in 2012. The judge, therefore, denied the mistrial motion.

The jury returned a no cause for action verdict. This appeal followed.

On appeal, plaintiff reiterates arguments made before the trial judge,

specifically the judge failed to hear plaintiff's in limine motions prior to trial,

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erred in rulings on the admissibility of certain evidence, and erred in denying

her motion for mistrial.

We review the judge's evidentiary rulings for an abuse of discretion,

deferring to the ruling "unless it can be shown that the trial court palpably abused

its discretion, that is, that its finding was so wide off the mark that a manifest

denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)

(quoting State v. Carter, 91 N.J. 86, 106 (1982)).

We discern no merit to plaintiff's argument regarding Judge Marbrey's

consideration of the in limine motions. Despite the last-minute filing of the

motions, the judge painstakingly went through each redaction requested by

counsel and provided reasons for her rulings. She then went through her rulings

a second time to ensure counsel were clear on the required edits.

Judge Marbrey properly exercised her discretion in advising she would

handle any objections to the admissibility of evidence at the time of the

objection. It was appropriate to consider objections to specific evidence as they

arose, so the judge could rule in the context of the proffered testimony and in

light of the evidence already presented to the jury. See State v. Cordero, 438

N.J. Super. 472, 484 (App. Div. 2014) (stating "[o]ur courts generally disfavor

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in limine rulings on evidence questions," and noting that pre-trial rulings are

made without the benefit of facts presented at trial).

Plaintiff argues, without citing to specific testimony in the record or rules

of evidence, that Judge Marbrey improperly permitted defense counsel to

introduce evidence of inadmissible medical records and cross-examined plaintiff

with information from records of plaintiff's non-testifying physicians. Our

review of the record reveals the judge entertained each objection, permitted

counsel to thoroughly present the basis for their objections, and gave reasoned

rulings.

During her direct examination, plaintiff discussed a prior accident in

which she had injured her neck and back. She also testified to pain in her neck

and back for which she sought treatment from various doctors before the 2012

accident. Because plaintiff claimed an aggravation of these prior injuries as well

as new injuries from the 2012 accident, it was appropriate for defense counsel

to explore these issues with plaintiff. Defense counsel also properly confronted

plaintiff with statements she gave in medical records discussed by Dr. Weiss,

who informed that he had reviewed and relied on plaintiff's medical records in

forming his opinions.

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 Defense counsel did not cross-examine plaintiff or Dr. Weiss with records

not already testified to in direct examination. Nor did she attempt to elicit any

opinions of non-testifying physicians. See James v. Ruiz, 440 N.J. Super. 45,

65 (App. Div. 2015).

Plaintiff's general reference to Allendorf v. Kaiserman Enterprises, 266

N.J. Super. 662 (App. Div. 1993) does not support her argument. Allendorf

requires that

[a]party seeking to present evidence of a prior injury or
condition relating to an issue of medical causation must
show that the evidence has some "logical relationship
to the issue in the case." Paxton v. Misiuk, 34 N.J. 453,
460 (1961). Moreover, this logical relationship
generally must be established by appropriate expert
medical opinion. See Ratner v. General Motors Corp.,
241 N.J. Super. 197, 203-06 (App. Div. 1990).

[Id. at 672-73.]

As Judge Marbrey stated,

[W]e do have in this case . . . an allegation of prior
injury to the neck and back. In fact, this is … not only
asserted by the defendant. It is also acknowledged by
the plaintiff.

The . . . logical relationship, yes. It's the same area of
complaints and there is an aggravation claim.

Dr. Weiss [stated] . . . [plaintiff was] previously injured
in that area and [it is] also admitted to -- by the plaintiff
and . . . in the records.

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 Because plaintiff alleged an aggravation of a prior injury, it was proper to

confront the experts with plaintiff's statements and information reviewed in prior

medical records to test the experts' opinions as to the medical causality of the

injuries claimed in the subject accident. Here, the jury had to determine whether

plaintiff sustained a permanent injury in the 2012 accident. Any evidence

pertaining to neck or back pain and treatment to those body parts was admissible

as it bore "a logical relationship to the issue in the case." Allendorf, 266 N.J.

Super. at 672 (quoting Paxton, 34 N.J. at 460). We see no abuse of discretion

in the trial court's management of cross-examination.

In this contentious proceeding, Judge Marbrey patiently considered

counsel's motions, objections and arguments, and provided careful and reasoned

rulings. Any other arguments presented by plaintiff on appeal lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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