LUZI BARTSCH VS. IRMA LAGE (L-5583-14, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3580-16T2

LUZI BARTSCH,

Plaintiff-Appellant,

v.

IRMA LAGE,

Defendant,

and

GEICO INSURANCE COMPANY,

Defendant-Respondent.
________________________________

Argued July 17, 2018 – Decided January 10, 2019

Before Judges Ostrer and Vernoia.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-5583-14.

Lazaro Berenguer argued the cause for appellant (Clark
Law Firm, PC, attorneys; Lazaro Berenguer, on the
briefs).
 Bryan T. Kurtzberg argued the cause for respondent
(Law Offices of Cindy L. Thompson, attorneys; Bryan
T. Kurtzberg, on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Plaintiff Luzi Bartsch appeals from the dismissal of her auto negligence

lawsuit seeking underinsured motorist benefits from her auto insurer, defendant

Geico Insurance Company, for injuries she suffered in a collision caused by

defendant Irma Lage. Two experts testified that Bartsch's injuries were

permanent. However, the trial court granted Geico's motion for involuntary

dismissal because neither stated that his opinion was within a reasonable degree

of probability. Bartsch appeals from this and several evidentiary rulings. We

affirm some of the evidentiary rulings, reverse others, and reverse the

involuntary dismissal and remand for a new trial.

I.

On January 25, 2013, Lage ran a stop sign and collided with Bartsch's car.

Bartsch claimed her neck and back were injured. After settling with Lage,

Bartsch sought underinsured motorist benefits from Geico, which disclaimed

liability because she had not satisfied the "limitation on lawsuit" coverage option

she selected. In particular, Geico maintained she had not suffered "a permanent

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injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a).

The matter was tried before a jury solely on the issue of damages, specifically

whether the accident caused Bartsch's injuries, and whether they were

permanent.

Several of the trial court's rulings are at issue. First, the trial judge

excluded Bartsch's husband from testifying about the effect of the accident on

her daily living. In its interrogatories, Geico requested that Bartsch provide the

names of individuals with knowledge of any of the relevant facts. In response,

Bartsch generally identified "all persons named in answers to interrogatories and

depositions," and her "family members," but did not expressly identify her

husband. During her deposition, however, she referred to her husband and

explained the injuries from the accident affected her relationship with him.

When Bartsch later named her husband as a fact witness at trial, Geico claimed

undue surprise and sought to bar him from testifying because Bartsch had not

specifically named him in her interrogatory answer. The trial court agreed.

The next evidentiary ruling occurred at trial. Geico called only one expert,

Dr. Edward Decter, an orthopedic surgeon who examined Bartsch in March

2015. Before examining Bartsch, Dr. Decter reviewed her post-accident medical

records, including those of a spinal surgeon, Dr. Kopacz, who examined Bartsch

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soon after the accident. Relying in part on Dr. Kopacz's records, Dr. Decter

testified that Bartsch's alleged pain was not consistent with the area of her neck

she said was injured in the accident. He opined that the pain arose from the

gradual degeneration of her spine and loss of water content. He also disputed

that she sustained any permanent injury.

In response to Geico's questioning, Dr. Decter relayed objective findings

that Dr. Kopacz reported upon physical examination. Dr. Kopacz noted Bartsch

had a normal gait, sensation to light and pin-prick touching, reflexes, and

strength in her extremities. Dr. Kopacz also reported no finding of "any patchy

deprivation of sensation," contrary to what Bartsch self-reported to Dr. Decter.

Notably, Geico's counsel stopped Dr. Decter when he appeared ready to disclose

Dr. Kopacz's opinion regarding Bartsch's MRI results.

Bartsch's counsel objected on the ground that Dr. Kopacz was not a

witness and could not be cross-examined; allowing Dr. Decter to repeat Dr.

Kopacz's findings would, therefore, allow Dr. Kopacz's statement "through the

back door." The trial judge overruled the objection and held Dr. Decter could

relay Dr. Kopacz's report as the basis for his opinion. Shortly thereafter,

Bartsch's counsel objected again, arguing that Geico wanted the jury to consider

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Dr. Kopacz's report for its truth, and it constituted "complex and disputed

matters." The trial judge overruled the objection again.

The trial judge also denied Bartsch's request to question Dr. Decter about

a censure he received from the Board of Directors of the American Association

of Orthopaedic Surgeons. The censure related to one of his written expert

reports, which the organization found was not given "in a fair and impartial

manner," in violation of its Standards of Professionalism for Orthopaedic Expert

Witness Testimony. The trial judge barred evidence of the censure because

Bartsch could provide no information about the organization's procedures and

whether they complied with Dr. Decter's due process rights. 1

The trial court's final, and most crucial, ruling was to dismiss the suit after

Bartsch rested, because her experts had not specifically stated they were

testifying to a reasonable degree of medical probability. The two expert

witnesses were a chiropractor and a pain management physician. Each

examined or treated her after the accident.

1
We note that the trial court nonetheless permitted Geico to question Bartsch's
expert, Dr. Burt, on a reprimand he received from the New Jersey State Board
of Medical Examiners, based on the findings of its Virginia counterpart, for
violating a Virginia law against deceptive or fraudulent activity. However,
Geico's counsel ultimately chose not to reference the reprimand, apparently for
tactical reasons. Therefore, we need not pass on the propriety of its admission.
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 Bartsch had previously visited the chiropractor, Dr. Mark Rodrigues, for

neck and back pain several times, but had stopped the visits a few months before

the accident. She returned after the accident with renewed pain, and saw him

forty-eight more times. He diagnosed Bartsch with cervicalgia and lumbalgia

and opined that the pain she suffered after the accident was unrelated to her pre -

accident pain. Dr. Rodrigues also opined that her injury was permanent, given

that she was still in pain well after the accident. When asked if he was certain

in his assessments, Dr. Rodrigues said, "without a doubt."

The pain management specialist, Dr. Clifton Burt, who first saw Bartsch

after the accident, relied on an electromyographic test (EMG) in diagnosing

cervical and lumbar radiculopathy, which he testified were a result of the car

accident. When asked if the injuries were permanent, he said, "[I]t's very

possible that any movement with the disc bulge still sitting there can re-irritate

a nerve root again." He repeated, "[Y]es, it's a good possibility that the original

cause and the original disc bulges can lead to permanent symptoms." While

both Dr. Rodrigues and Dr. Burt had submitted written certifications before trial

stating they held their opinions "to a reasonable degree of medical certainty,"

neither used that phrase while on the stand.

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 At the close of Bartsch's case, Geico moved for a directed verdict on the

ground that the two experts had not testified to a "reasonable degree of medical

probability," and had testified only that Bartsch "had bulges." The trial judge

granted the motion and entered an involuntary dismissal under Rule 4:37-2(b),

explaining:

[T]he issue of expert testifying with a reasonable
degree of medical probability is one of the things I look
for. . . . [I]n this particular case when the plaintiff had
his doctors testify for whatever reason he did not have
them testify to that standard and though counsel for the
defense did it with Doctor Decter I was waiting for it
from the plaintiff and it didn't occur. . . . The issue here
is whether together with the legitimate inferences
therefrom plaintiff has made out a case in the verbal
threshold . . . . [T]o establish permanency you have to
have an expert who['s] testifying within a reasonable
degree of medical probability. And as I said there is no
establishment by the plaintiff of reasonable medical
probability based upon the testimony of the
physicians . . . .

On appeal, Bartsch contends the trial court erred in: granting the directed

verdict; "disregard[ing] James v. Ruiz"2 by allowing Dr. Decker to "back door"

Dr. Kopacz's opinion; barring her husband from testifying; and barring her

counsel from cross-examining Dr. Decker about his prior sanction. Bartsch also

seeks the costs of appeal pursuant to Rule 2:11-5.

2
440 N.J. Super. 45 (App. Div. 2015).
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 II.

A.

We first address the trial court's dismissal of Bartsch's case based on its

finding that she failed to present expert testimony within a reasonable degree of

medical probability that her injuries were caused by the accident and permanent

in nature.

In reviewing an involuntary dismissal motion, we apply the same standard

the trial court does. Smith v. Millville Rescue Squad, 225 N.J. 373, 397

(2016). After a plaintiff has rested, a defendant may move to dismiss if "upon

the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-

2(b). The motion shall be denied "if the evidence, together with the legitimate

inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.

Involuntary dismissal should be granted only if "no rational juror could conclude

that the plaintiff marshaled sufficient evidence to satisfy each prima facie

element of a cause of action." Godfrey v. Princeton Theological Seminary,

196 N.J. 178, 197 (2008).

As Bartsch's injury did not result in "death; dismemberment; significant

disfigurement or significant scarring; displaced fractures; [or] loss of a fetus, "

she was barred from recovering damages for "non-economic loss" unless she

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could prove she suffered a "permanent injury within a reasonable degree of

medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a);

see also DiProspero v. Penn, 183 N.J. 477, 488 (2005). An injury is "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." N.J.S.A.

39:6A-8(a). A plaintiff must serve on the defendant a certification from a board-

certified licensed physician, or licensed treating physician, stating that the

plaintiff has suffered a qualifying injury "based on . . . objective clinical

evidence." Ibid. The trial court may properly dismiss a suit that lacks the

requisite expert medical testimony based on objective clinical evidence. Agha

v. Feiner, 198 N.J. 50, 61 (2009). In addition to proving a permanent injury, a

plaintiff must adduce expert testimony, within a reasonable degree of medical

probability, that the accident caused the injury. Johnesee v. Stop & Shop Cos.,

174 N.J. Super. 426, 431 (App. Div. 1980).

"[M]edical-opinion testimony must be couched in terms of reasonable

medical certainty or probability; opinions as to possibility are inadmissible."

Ibid. However, the certainty requirement does not oblige experts to use

"'talismanic' or 'magical words,'" so long as the court is "persuaded that 'the

doctor was reasonably confident of'" the opinion. Eckert v. Rumsey Park

A-3580-16T2
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Assocs., 294 N.J. Super. 46, 51 (App. Div. 1996) (quoting Azpiazu v. Orgera,

535 A.2d 338, 342 (Conn. 1987)); see also id. at 52 (stating that opinion as to

causation will not "be satisfied by a single verbal straitjacket alone, but, rather,

by any formulation from which it could be said that the witness' whole opinion

reflects an acceptable level of certainty") (quoting Matott v. Ward, 399 N.E.2d

532 (N.Y. 1979)).

Therefore, the issue before us is whether Bartsch's experts' testimony,

taken as a whole, reflects the requisite degree of certainty, although neither

uttered the "magic words" that they held their opinions within a reasonable

degree of medical probability. Dr. Rodrigues engaged in the following give and

take at trial:

Q: Based on your treatment . . . and the knowledge of
her medical history . . . what do you believe was the
cause [of] the damage to [Bartsch's] spine?

A: I believe the cause was the [motor vehicle accident]
in question.

Q: What is it about being in a crash that is consistent to
the injuries and the damages that you see in her spine
that's consistent to her diagnosis?

A: I believe that it's due to hyperflexion/hyperextension
injury. Basically what that means is any kind of time
you have trauma that puts the spine in forward,
backward, lateral or rotation motion quickly it causes
damage.

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Counsel later asked if Dr. Rodrigues had "any doubt that [Bartsch] sustained a

permanent injury to her spine and that her injuries were caused by the . . . car

accident." Dr. Rodrigues answered, "I have no doubt."

Although Dr. Rodrigues did not recite the phrase "reasonable degree of

medical probability," he demonstrated his confidence at least as forcefully in his

own words – "I have no doubt." Furthermore, regarding causation, he repeatedly

asserted his unqualified "belief" that the car accident caused Bartsch's injury.

His opinion was neither equivocal nor stated in terms of "possibilities." We

conclude, therefore, that his opinion reflected the requisite degree of certainty.

Dr. Burt's testimony, in contrast, was less certain, as he did not clearly

convey a confidence to a degree of probability. When asked if the damage was

permanent, Dr. Burt answered:

As far as the disc bulge, yes. As far as the nerve with
inflammation, that's down but it can recur. . . . So, in
2013 she can be at a [pain level of] two out of ten but
it's very possible that any movement with the disc bulge
still sitting there can re-irritate a nerve root again, even
after that. So, yes, it's a good possibility that the
original cause and the original disc bulges can lead to
permanent symptoms, depend[ing] on what you do in
activity.

[Emphasis added.]

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 When counsel then asked him if the accident had caused Bartsch's injuries,

Dr. Burt said, "My answer to that is yes." Counsel prodded him further, "How

do you know that?" Dr. Burt responded:

[T]hose symptoms that she came in for were sudden and
then in the treatment of them, if it was nerve root
inflammation that goes down, the symptoms can go
down when treated acutely, then those discs were
moved at some time from some kind of trauma and this
accident is what matches up to me.

Though it was clear Dr. Burt stood by his testimony, his choice of words

fell short of conveying an opinion to a reasonable degree of medical probability.

Regarding permanency, the most he expressed was that it was "very possible"

and "a good possibility" the injuries were permanent. Regarding causation, his

most forceful language was "yes" and "this accident is what matches up to me."

These remarks reflected only that Dr. Burt considered his opinion reasonable or

plausible.

Nonetheless, the court erred in dismissing plaintiff's suit for failure to

present essential expert opinion as to permanent injury, as plaintiff met that

requirement through the testimony of Dr. Rodrigues.

B.

Bartsch contends that Dr. Decter's recitation of Dr. Kopacz's report was

inadmissible hearsay relating to a complex and contested issue. We disagree.

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 We review the trial court's evidentiary ruling for an abuse of discretion.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 269, 382 (2010).

However, we owe no deference to an evidentiary ruling based on a

misapplication of the law. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 371 (2011).

Under the "business records" exception to the hearsay rule, medical

records are admissible to prove the truth of the matters stated therein, absent

indicia of untrustworthiness, when made by someone "with actual knowledge or

from information supplied by such a person"; "at or near the time of

observation"; and "in the regular course of business." N.J.R.E. 803(c)(6).

However, an opinion or diagnosis included in the medical record shall not be

admitted to prove its truth "if the declarant has not been produced as a witness

unless the trial judge finds that the circumstances involved in rendering the

opinion" support its trustworthiness. N.J.R.E. 808; see also N.J.R.E. 803(c)(6)

(stating "opinions or diagnoses" are admissible as business records "subject to

Rule 808"). Those circumstances include "the motive, duty, and interest of the

declarant, whether litigation was contemplated by the declarant, the complexity

of the subject matter, and the likelihood of accuracy of the opinion." Ibid.

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 On the other hand, a testifying expert may base his or her opinion on "facts

or data" otherwise inadmissible as hearsay, so long as experts in the field would

reasonably rely on those materials. N.J.R.E. 703. Introduction of such hears ay

facts or data, however, is permitted only "for the limited purpose of

understanding the basis of the testifying expert's opinions," not for the truth of

the asserted facts. McLean v. Liberty Health Sys., 430 N.J. Super. 156, 173-74

(App. Div. 2013). "The testifying expert must not function as a mere 'conduit'

for the substantive admission of inadmissible hearsay." Agha, 198 N.J. at 63.

A non-testifying expert's opinion is only admissible, whether as a

"business record" or as "facts or data . . . upon which a" testifying expert relies,

if it consists of "routine" – as opposed to "disputed or complex" – findings.

James v. Ruiz, 440 N.J. Super. 45, 63, 66 (App. Div. 2015). Courts have

"traditionally admitted 'routine' findings of experts contained in medical records

that satisfy the business record exception, but ha[ve] excluded 'diagnoses of

complex medical conditions' within these records." Id. at 63 (citing State v.

Matulewicz, 101 N.J. 27, 32 (1985)).

To admit complex and disputed opinions would deprive the adverse party

"an opportunity to cross-examine the declarant on a critical issue" that other

experts may have approached differently. Nowacki v. City Med. Ctr., 279 N.J.

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Super. 276, 282-84 (App. Div. 1995) (holding hospital record characterizing

injury as "pathologic" was an inadmissible complex, disputed opinion as it could

be interpreted as a conclusion on causation, and opposing party needed

opportunity to challenge the judgment behind that characterization); see also

Brun v. Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006) (excluding non-

testifying doctor's MRI reading contained in record because MRI interpretation

is nuanced and the subject of differing opinions; allowing the opinion would

"bootstrap" it into evidence without an opportunity to cross-examine its author).

Here, the trial judge did not abuse his discretion by allowing Dr. Decter

to testify about Dr. Kopacz's observations. The report involved issues that,

while disputed, were not "complex" within the contemplation of N.J.R.E. 808.

Dr. Decter said that Dr. Kopacz "found preserved range of motion of her back

and her neck, no neurological deficits or anything like that."3 Bartsch "moved

slowly" but with a normal gait; she had normal "sensation to light touch and pin

prick in her upper and lower extremities," without the "patchy" areas lacking

sensation of which she complained; she had normal "motor" capacity; she had

3
We recognize that the diagnosis of neurological conditions are often complex
opinions. But, in context, we understand "neurological deficits" simply to refer
back to the non-complex observation that Bartsch could move her back and neck
without restriction.
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"negative tinels and falens," which Dr. Decter explained, signaled that she did

not suffer from carpal tunnel syndrome. These findings did not involve

specialized or complex evaluations.

We therefore discern no error in the court's evidentiary ruling, permitting

Dr. Decter to convey Dr. Kopacz's objective findings.

C.

We next address the trial court's exclusion of Bartsch's husband as a fact

witness at trial. We agree with Bartsch that her interrogatory answers, together

with her deposition, put defendant on notice that her husband would testify, and

the trial judge abused his discretion in barring Bartsch's husband's testimony.

"The discovery rules are to be construed liberally and broadly to facilitate

the search for the truth during litigation." Thomas v. Toys "R" Us, Inc., 282

N.J. Super. 569, 581 (App. Div. 1995). Nonetheless, a party may not resort to

"[c]oncealment or surprise." Ibid. (quoting Lang v. Morgan's Home Equip.

Corp., 6 N.J. 333, 338 (1951)). A party is required to amend interrogatory

answers to correct incompleteness or inaccuracy. R. 4:17-7.

The trial court may, in its "sound discretion," sanction a party by

excluding a witness whom an adversary fails to name in response to a request.

Brown v. Mortimer, 100 N.J. Super. 395, 401-02 (App. Div. 1968). The sanction

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will be upheld so long as "just and reasonable." Id. at 401. However, three

factors "strongly urge the trial court, in the exercise of his [or her] discretion, to

suspend the imposition of sanctions, namely, (1) the absence of a design to

mislead, (2) absence of the element of surprise if the evidence is admitted, and

(3) absence of prejudice which would result from" admitting the evidence. Id.

at 402. "'Prejudice'in this context refers not to the impact of the testimony itself,

but the aggrieved party's inability to contest the testimony because of late

notice." State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011).

In Thomas, we affirmed the trial court's order excluding a personal injury

plaintiff from introducing a positive X-ray discovered in her doctor's file at trial.

282 N.J. Super. at 580-81. We noted the surprise to defendant, which could not

have anticipated the X-ray report, in the absence of a report from the plaintiff's

physician, and in light of other negative diagnostic tests. Id. at 582. We also

stressed the prejudice to defendant, which "had prepared a case built around a

theory that no objective medical findings through X-rays or MRIs were

reported," and was not prepared to cross-examine the doctor on the X-ray or to

question its own expert on the X-ray's significance. Ibid.

In contrast, where the plaintiff "should have been fully prepared to deal

with" a new expert's report, the court did not err in permitting the expert to

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testify. See Gaido v. Weiser, 227 N.J. Super. 175, 192-93 (App. Div. 1988)

(holding evidence was properly admitted where it was "in line with the theory

of the case" prepared by opposing party); Brown, 100 N.J. Super. at 401-02

(holding evidence was properly allowed where the witness was not specified but

the adverse party anticipated another witness in his stead).

Here, Bartsch did not specifically name her husband as a fact witness, and

she did not timely amend her answer to the interrogatory upon deciding her

husband would testify. However, the trial judge acknowledged that Bartsch's

failure to amend her answer was not designed to mislead defendant. Therefore,

the sole question is whether the husband's testimony reasonably would have

surprised or prejudiced defendant.

Regarding surprise, defendant was aware Bartsch had a husband and that

she claimed diminished sexual relations as a result of the accident. Additionally,

Bartsch listed "family members" in her answer to defendant's interrogatory. We

conclude defendant was on notice that Bartsch's husband was a potential

witness; it was, furthermore, to be expected that he might testify about the effect

of the accident on his wife's domestic life.

As for prejudice, defendant should have been prepared to confront the

husband, given plaintiff's disclosure in her disposition. To avoid any

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conceivable prejudice from the late discovery that the husband would testify,

the trial court could have permitted defendant to depose the husband mid -trial,

rather than bar his testimony.

In sum, we conclude the court mistakenly exercised its discretion in

barring the husband's testimony.

D.

We next address Bartsch's claim that the trial judge improperly barred her

from cross-examining Dr. Decter on his censure by the American Association

of Orthopaedic Surgeons. We affirm the trial court's decision.

A party may attack a witness's credibility with "evidence in the form of

opinion or reputation" relating to the witness's propensity for truthfulness or

untruthfulness. N.J.R.E. 608(a). However, evidence in a civil trial of "specific

instances of conduct" involving untruthfulness, other than evidence of a

conviction, is inadmissible to impeach a witness's credibility. N.J.R.E. 608(a);

N.J.R.E. 609; see also Delgaudio v. Rodriguera, 280 N.J. Super. 135, 143-44

(App. Div. 1995) (stating that a Board of Medical Examiners' opinion that a

witness had a "propensity . . . to play somewhat fast and loose with the truth"

was admissible under N.J.R.E. 608, although evidence of the underlying conduct

was not).

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 Here, Dr. Decter's censure by the American Association of Orthopaedic

Surgeons was inadmissible to impeach his credibility under N.J.R.E. 608

because it was not in the form of opinion or reputation testimony, but instead

reported a specific instance of conduct. Since the censure involved no

conviction for a crime by a competent court of law, it was not admissible under

N.J.R.E. 609.

Bartsch's remaining points lack sufficient merit to warrant extended

discussion. See R. 2:11-3(e)(1)(E).

Reversed and remanded. We do not retain jurisdiction.

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