SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 2964
- 15T2

MARLENE MORGAN, Plaintiff
- Respondent,

v. PROGRESSIVE INSURANCE COMPANY and/or PROGRESSIVE GARDEN STATE INSURANCE COMPANY, Defendant
- Appellant.

______________________________________________

Argued October 3, 2017

– Decided Before Judges Yannotti, Carroll and Mawla. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L - 4987
- 13. Jennifer A. Hindermann argued the cause for appellant (Cooper Maren N its berg Voss & DeCoursey , attorneys; Ms. Hindermann, on the briefs). Michael H. Foster argued the cause for respondent (Stark & Stark, attorneys; Mr. Foster , on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

November 8, 20172 A - 2964
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Plaintiff Marlene Morgan asserted a claim against defendant Progressive Insurance Company and/or Progressive Garden State Insurance Company for underinsured motorist (UIM) coverage arising from a motor vehicle accident, in which she allegedly sustained personal injuries . Defendant appeals from the judgment for plaintiff entered by the trial court on April 1, 2016. We affirm.
I. On November 28, 2008, plaintiff was a passenger in a vehicle being driven by Gregory Moten westbound on Evesham Road in Cherry Hill. At the time, Ashoke Das was operating a vehicle in the opposite direction. According to plaintiff, Das attempted to make a left turn onto Caldwell Road in front of the Moten vehicle . Das ' s vehicle struck the front of the Moten vehicle , and plaintiff sustained certain injuries. Thereafter, p laintiff filed suit against Das and set tled her claim against him for the lim its of his insurance coverage, $ 15,000. Plaintiff then filed this action against defendant seeking UIM benefits. At the time of the accident, plaintiff had an automobile policy with defendant, which provided $50,000 i n UIM
coverage. The parties stipulated that Das was solely responsible for the accident, but defendant maintained plaintiff had not established she sustained i njuries that met the limitation
- on -3 A - 2964
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lawsuit threshold in N.J.S.A. 39:6A
- 8(a), as amended by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A
1.1 to
- 35. The matter was tried before a jury.
At the trial, plaintiff testified that she sustained multiple injuries in the November 28, 2008 accident. Plainti ff stated that
she worked for an entity that provides services to individuals with disabilities. She said she had been in an auto accident in
November 2007 and sustained injuries to her neck and lower back. Since the accident occurred while she was on the job, she had to
seek health ca re through her employer's occupational health services . Plaintiff stated that by the end of 2007, she had completed
treatment for th e November 2007 accident. Plaintiff said she did not have any continuing problems with her neck, lower back, middle back, o r upper back. She stated that she was able to return to work without any restrictions . She also stated that she was able to go back to her usual activities , which included spendi ng time with her grandchildren , performing household chores, and bowling.
Pla intiff further testified that in the days after the
November 28, 2008 accident, she woke up and could not move her neck and upper back. She went to see her primary care physician,
and later saw a chiropractor. She told the chiropractor that she
had pain in her neck and upper back, and at times pain radiated4 A - 2964
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down her left arm. In addition, plaintiff had painful spasms in
her back and chest every day . Plaintiff treated with the chiropractor for about two years. She believed the treatment had provid ed some re lief but the pain
returned . The chiropractor referred plaintiff for tests and MRIs were performed . Plaintiff testified that the tests showed she "had a bulging dis [c] or something like that " in h e r neck and upper
back . Plaintiff was referred to an orthoped ist, who pr e scribed medication and an injection, which provided some relief for about eight months. The doctor told plaintiff she could have additional injections or surgery . P laintiff elected not to have surgery. She testified that she continued to work because she had to do so. She said she "just worked through the pain." Plaintiff stated that the November 28, 2008 accident had limited her usual activities. She testified that she spends time with her grandchildren, but she is no longer able to pick them up
when she wants to. Plaintiff enjoys bowling and partic ipated in a bowling league , but can no longer engage in that activity . Plaintiff said she does not perform household chores as she used
to. She explained that s omeone must accompany her to the grocery store and laundromat. She also said she lives with neck and upper back pain every day.5 A - 2964
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Plaintiff further testified that after the November 28, 2008 accident , she sustained other injuries. While working, p laintiff strained her elbow wh en assisting an individual with cerebral palsy . She also suffered an electric sho ck when checking a smoke
alarm in the workplace . After these incidents, plaintiff saw doctors , but she did not require further medical care for her neck

o r back. Plaintiff also had an accident during a work
- related outing while riding in a bumper car with a client . Plaintiff hurt her leg, knee, and ankle . She went to a doctor, but testified that she did not hurt her neck or back . In addition, plaintiff slipped and fell backwards while bowling . She testified, however, that she d id not injure her neck or back when she fell. At the trial, p laintiff presented the videotaped testimony
of her medical expert, Dr. Gary Goldstein, who stated that plain tiff had a cervical disc herniation , which was produced or made symptomatic by the November 28, 2008 accident . Dr. Goldstein testified that plaintiff was permanently symptomatic as a result of the accident.
The doctor said plaintiff had been in "some kind of acci dent" in 2007 and plaintiff had injured her neck and back, but she did not have any ongoing residual complaints. The doctor testified
that w hen plaintiff was referred to him, he conducted a general6 A - 2964
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physical examination. He also performed various tests, in c luding
range - of
- motion tests. The doctor explained that in Februa ry 2009, plaintiff had
MRIs of her neck as well as her mid
- and lower
- back. The doctor reviewed the reports of the MRIs, and stated that plaintiff had "some minor bulging throughout her neck " but the bulge at the C5
- 6 level of the spine was larger . He thought the MRI showed a "low grade herniation," which was consistent with plaintiff's complaints of central neck pain with pain radiating to the arm. Defendant presented the videotaped testimo ny of Dr. Br i a n K. Zell, who performed an independent medical evaluation of plaintiff. Dr. Zell examined plaintiff and reviewed the radiographic studies. He testified that plaintiff had been involved in an auto accident on November 28, 2008, and sustained a possible cervical strain and possible strain to the lower back. Dr. Zell opined that plaintiff had degenerative disc disease of the cervical spine, which was a pre
- existing condition
unrelated to the November 28, 2008 accident. He further testified
tha t plaintiff had degenerative disc disease to the lower back, particularly at the L4
- 5 level of the spine, which also was unrelated to the accident. Dr. Zell stated that he found no evidence o f cervical or lumbar radiculopathy, meaning7 A - 2964
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"reproducible finding s that traveled" from the neck into her arms, or from her lower back into her legs. At the conclusion of the trial, plaintiff requested a jury instruction on aggravation of a pre
- existing condition. The judge granted the request over defendant's objection. In addition,
d efendant sought an adverse inference with respect to the loss of
the litigation file pertaining to the workers' compensation claim plaintiff asserted following the November 10 , 2007 accident. The judge denied the a pplication. The jury found that plaintiff h ad sustained a permanent injury that was proximately caused by the November 28, 2008 accident, and
awarded plaintiff $60,000 in damages. The judge molded the jury verdict to reflect the $ 50,000 limit on plaintiff 's UIM coverage, and reduced that amount by the $15,000 plaintiff had recovered
from Das. Thereafter, defendant filed a motion for a new trial. The judge heard oral argument on February 5, 2016, and on that day entered an order denying the motion. Plaint iff also sought attorney's fees, costs, and interest under the offer of judgment rule. R. 4:58
- 1 (a) ; R. 4:58
- 2(b). Prior to trial, plaintiff had m ade an offer of judgment for $29 ,000. The j udge granted the application and ordered defendant to pay plaintiff attorney 's fees in the amount of $15,050, costs8 A - 2964
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and expenses totaling $4,778, and interest of $1,036. These amounts were added to plaintiff's modified award, resulting in a total judgment of $55, 864. This appeal followed. On appeal, defendant argues that: (1) the trial judge improperly precluded defendant from using plaintiff's statements in certain medical records for impeachment ; (2) the judge erred by providing the jury with a charge for aggravation of a pre
existing condition , and by failing to tailor the charge to the facts of this case; (3) the judge should have provided an adverse inference charge regarding the loss of the litigation file pertaining to the plaintiff's prior accident; (4) the judge should have instructed the jury that in an action und er AICRA's limitation
- on - law suit threshold, range
- of
- motion tests are not recognized as objective credible evidence of a permanent injury; and (5) defendant was entitled to judgment notwithstanding the verdict.
II. We turn first to defendant's argument that the trial judge erred by precluding defendant's counsel from questioning plaintiff about statements attributed to her in a doctor's report . As noted at trial, plaintiff testified that as a result of the November 2 8, 2008 accident, she has experienced limitations in certain9 A - 2964
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activities , including the performance of household chores and bowling.
On cross - examination, d efendant's attorney began to question plaintiff about complaints attributed to her in reports by Ralph G. Cataldo, a doctor of osteopathic medicine , dated February 1, 2012, and Ju ne 7, 2013. It appears that Dr. Cataldo examined plaintiff as a result of workplace injuries that plaintiff sustained after the November 28, 2008 accident . The reports were

a pparently obtained for the purpose of asserting workers' compensation claims. The first report related to the injuries plaintiff sustained
when she assisted a client and when she checked the smoke detector in the workplace. The second report related to th e bumper
- car accident. Both reports list plaintiff's complaints, which include limitations on her ability to perform household chores and engage in bowling. Plaintiff's attorney objected to the use of Dr. Cataldo's reports for cross
- examination . The judg e sustained the objection, finding that the statements attributed to plaintiff were hearsay. The judge stated that if defendant wanted to present the statements, defendant had to present Dr. Cataldo as a witness. On appeal, d efendant argues that the judge erred by precluding its attorney from questioning plaintiff regarding the complaints10 A - 2964
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attributed to her in Dr. Cataldo's reports. Defendant asserts that the statements were admissible under the hearsay exception in
N.J.R.E. 80 3 (b)(1) for statements of a party opponent. Defendant
argues that the statements were admissible because they did not involve any complex medical diagnosis. The trial court's evidentiary rulings are reviewed under an
abuse
- of
- discretion standard. Hisenaj v. Kuehner , 194 N.J. 6, 12 (2008). However, we apply a de novo standard of review in determining if the trial court correctly interpreted and applied the evidence rules. Konop v. Rosen , 425 N.J. Super. 391, 401 (App. Div. 201 2) (citing Pressler & Verniero , Current N.J. Court Rules , comment 4.6 on R . 2:10
- 2 (2012); State v. Darby , 174 N.J. 509, 518 (2002)).
The statements attributed to plaintiff in Dr. Cataldo's reports are hearsay because defendant intended to offer th e statements to prove that plaintiff reported those complaints to
Dr. Cataldo. See N.J.R.E. 801(c) (defining hearsay as a statement, "other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.").
Defendant co rrectly notes that N.J.R.E. 803 (b)(1) provides an exception to the rule against admission of hearsay for statements by a party opponent. However, t he statements were11 A - 2964
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contained in a doctor's reports, which were apparently obtained for the purpose of litigating workers' compensation claims. Defendant did not , however, lay a proper foundation for the admission of th e reports as business records under N.J.R.E. 803(c)(6). Defendant did not establish that the documents were made in the regular course of business, or that it was the regular practice of th e business to make the record. Hahnemann Univ. Hosp. v. Dudnick , 292 N.J. Super. 11, 17 (App. Div. 1996).
We therefore con clude that the trial judge did not abuse his discretion by precluding defendant from questioning plaintiff about the statements in the reports.
III. Next, defendant argues that the trial judge erred by charging the jury on aggravation of a pre
- existing co ndition . The aggravation charge states in relevant part that

If you find that [plaintiff's] preexisting illness/injur y (ies)/condition was not causing him/her any harm or symptoms at the time of the accident, but that the preexisting condition combined wit h injuries incurred in the accident to cause him/her damage, then [plaintiff] is entitled to recover for the full extent of the damage s he/she sustained. [ Model Jury Charge (Civil) , 8.11F "Aggravation of the Preexisting Disability" (1997).]12 A - 2964
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A. Lack of Notice of Claim of Aggravation . Defendant argues the judge erred by granting plaintiff's request for the charge because plaintiff did not plead or place defendant on notice that she was pursuing a claim for aggravati on of a pre
- existing condition. We disagree. T he judge did not err by finding that defendant was on notice that plaintiff was asserting such a claim . Here, defendant served interrogatories upon plaintiff and plaintiff was asked if she was claiming that she sustained an injury in the subje ct accident that aggrava ted a pre
- existing condition. In her answer , plaintiff objected to the question on the ground that it asked for a legal or medical opinion, which she

was no t qualified to provide . Nevertheless, without waiving that objection, plaint iff stated that she would rely upon the opinion and testimony of he r medical expert. In his report, Dr. Goldstein stated among other things that plaintiff had "a cervical disc herniation or its equivalent that was produced or made sympt omatic by the Novem ber 28, 2008" accident. As the judge determined, Dr. Goldstein's report was sufficient to place defendant on notice of a potential claim for aggravation of a pre
- existing condition. Therefore, we reject
defendant's contention that it did not have notice of the claim.13 A - 2964
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B. Comparative Analysis . Defendant also argues that the jury instruction on aggravation of a pre
- existing conditio n was not warranted because
Dr. Goldstein failed to provide a comparative analysis distinguishing the injuries sustained in the subject accident with any prior injuries to the same body part. Defendant contends this comparative medical analysis was required by Davidson v. Slater , 189 N.J. 16 6 ( 2007 ). Again, we disagree.
In Davidson , the Court noted that in a personal injury action that involves the AICRA limitation
- on - lawsuit threshold, a plaintiff must establish that he or she sustained a bodily injury resulting from the "operation . . . or use of" an automobile, that results in on e of the enumerated categories of injuries, including "a permanent injury within a reasonable degree of medical probability." Id. at 186 ( quoting N.J.S.A. 39:6A
- 8(a)). The Court explained that when a plaintiff claims he or she sustained a permanent injury that aggravated a pre
- existing condition , the plaintiff must present evidence comparing the injur y sustained in the subject accident with injuries previously sustained to the same body parts . Id. at 185
- 86 . The Davidson Court noted , however, that whe n a p laintiff does not assert an aggravation claim, the plaintiff can carry his or her burden by demonstrating that the subject accident caused a14 A - 2964
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permanent injury "without having to exclude all prior injuries to the same body part." Id. at 170. The Court stated that

[i] f defendant raises a genuine factual issue about the causation of plaintiff's claimed injuries by pointing to other injuries the plaintiff may have experienced, that disputed issue of causation is for the fact
- finder to decide, except in those unu sual instances when no reasonable fact
- finder could conclude that the permanent injury was caused by the subject accident. [ Ibid. ] On appeal, defendant argues that plaintiff requested the aggravation charge and therefore was required to present the
comp arative analysis required by Davidson . Defendant asserts that Dr. Goldstein's analysis failed as a matter of law because he based his analysis of the pre
- existing condition solely upon plaintiff's subjective complaints. Defendant asserts that the
doctor failed to review a single record pre
- dating the November 28, 2008 accident. We are not persuaded by these arguments. In our view, Dr. Goldstein provided a sufficient comparison of plaintiff's pre
existing condition with the injuries allegedly sustained i n the subject accident. In his videotaped testimony, Dr. Goldstein testified that plaintiff had some low grade degenerative changes in her neck, which were "probably existent" before the accident.15 A - 2964
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The doctor emphasized that plaintiff was asymptomatic, an d she either had a new disc bulge or low grade herniation "that was produced by this accident or whatever was there predating this accident was extended or made symptomatic[.]" The doctor based his analysis in part on the MRIs performed after the November 28, 2008 accident, which he indicated showed a pre
- existing degenerative condition. Moreover, defendant presented testimony from Dr. Zell who opined that plaintiff possibly sustained a lumbar strain in the November 28, 2008 accident. He said plaintiff h ad degenerative disc disease in the cervical and lumbar spine, which were pre
existing conditions and unrelated to the subject accident. He based his opinions on his physical examination of plaintiff; review of the records pertaining to the November 28, 20 08 accident, including the MRIs; and records pertaining to the November 10, 2007 accident, including a CT scan of plaintiff's neck and x
- rays of he r lower back. Considering the evidence as a whole, we are convinced that
the judge did not err by charging the jury on aggravation of a
pre - existing condition. Dr. Goldstein and Dr. Zell both agreed
that plaintiff had a pre
- existing condition, although they disagreed as to whether plaintiff sustained a permanent injury to her neck and lower back in the subject accident.16 A - 2964
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While Dr. Goldstein did not review the diagnostic studies that pre
- dated the November 28, 2008 accident, he was able to base his opinion as to plaintiff's pre
- existing condition in part upon the diagnostic studies performed after that accident. Dr. Zell also opined that plaintiff had a pre
- existing disc disease , which
pre - dated the subject accident. In light of all of the evidence , the judge properly instructed the jury on aggravation of a pr e existing condition.
C. Request for Modification of Aggravation Charge . Defendant further argues that the judge erred by denying its request to modify the aggravation charge. According to defendant, the judge should have instructed the jury that the ch arge was given merely to assist the jury in calculating damages, and not as a means to determine if plaintiff had shown that she sustained a permanent injury proximately caused by the November 28, 2008 accident. Again, we disagree. Here, the judge correctly found that the model jury charge on permanency was sufficient to address defendant's concern. The judge noted the jury had to find that plaintiff had a permanent injury, whether it was an aggravation of a pre
- existing condition

or not. The instructions the judge later provided stated in pertinent part:17 A - 2964
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We conclude the judge's instructions clearly inform ed the jury that plaintiff could not recover damages unless she proved that she sustained a permanent injury that was proximately caused by the subject auto accident. Therefore, the judge did not err by denying defendant's motion to modify the charge on ag gravation of
a pre - existing condition.
IV. Next, d efendant argues that t he judge erred by denying its request to bar plaintiff from arguing that range
- of
- motion tests are objective tests upon which a jury could rely in determining whether plaintiff susta ined a permanent injury. Defendant contends18 A - 2964
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that the en tire theory of plaintiff's case was based on the assertion that plaintiff suffers pain and decreased range of motion. According to defendant, Davidson precludes a plaintiff from establishing a permanen t injury under the AICRA limitation
on - lawsuit threshold based on range
- of
- motion tests and subjective symptomology. We are convinced that this argument is without sufficient merit to warrant extended comment. R. 2 :11
- 3 (e)(1)(E). As noted previously, the judge's final instructions to the jury made clear
that plaintiff had to prove she sustained a permanent injury with objective, credible evidence, and her injury could not be proven by subjective complaints alone. Moreover, Dr. Goldstein's opinion was not based solely on
range - of
- motion test s. As noted, the doctor based his opinion in part upon his review of the MRIs. Therefore, the judge did not err by denying defendant's application for an instruction to the jury regarding range
- of
- motion tests.
V. In addition, defendant argues that the judge erred by refusing
to provide an adverse inference charge with regard to plaintiff's failure to pro duce certain documents relating to the workers' compensation claim she asserted as a result of the November 1 0,
2 007 auto accident. Defendant maintains the charge was warranted19 A - 2964
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due to the intentional or negligent disposal of evidence. We disagree. "Spoliation typically refers to the destruction or concealment of evidence by one party to impede the ability of
anothe r party to litigate a case." Jerista v. Murray , 185 N.J. 175, 201 (2005) (citing Rosenblit v. Zimmerman , 166 N.J . 391, 400
- 01 (2001)). The duty to preserve evidence arises when (1) there is pending or likely litigation and knowledge of this fact by the
all eged spoliating party, (2) the evidence is relevant to litigation, and (3) the opposing party would be prejudiced by the destruction or disposal of the evidence. A e tna Life and Cas. Co.
v. Imet Mason Contractors , 309 N.J. Super. 358, 366 (App. Div. 1998) ( quoting Hirsch v. General Motors Corp. , 266 N.J. Super. 222, 250
- 51 (Law Div. 1993)). "In civil litigation, depending on the circumstances, spoliation of evidence can result in a separate tort action for fraudulent concealment, discovery sanctions, or an adverse trial inference against the party that caused the loss of evidence." Jerista , supra , 185 N.J. at 201
- 02 (citing Rosenblit , supra , 166
N.J. at 401
- 06). "The spoliation inference permits the jury to infer that the evidence destroyed or concealed would not have been favorable to the spoliator." Id. at 202 (citing Rosenblit , supra , 166 N.J. at 401
- 02).20 A - 2964
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The instruction should be provided if a party establishes that the other party "improperly caused the loss of the evidence." Davis v. Barkaszi , 424 N.J. Super. 129, 148 (App. Div. 2012) (citing Cockerline v. Menendez , 411 N.J. Super. 596, 621 (App. Div. ), certif. denied , 201 N.J. 499 (2010)). Furthermore, the inference may be drawn against the party that negligently or intentionally failed to preserve the evidence. Rosenblit , supra , 166 N.J. at 401
- 02. Here, the judge did not err by refusing to provide an adverse inference charge to the jury . The record shows that defendant asked plaintiff to produce the litigation file related to the plaintiff's November 1 0, 2007 accident. Plaintiff's attorney stated that the records had been placed at a private, off
- site storage facility, but they were either misplaced or could not be
found. The judge found that defendant had not shown that plaintiff had intentionally or negligently failed to preserve evidence. The record supports that finding. Under the circumstances, an adverse inference charge was not warranted.
V I . Defendant further argues that it was entitled to judgment notwithstanding the verdict. Defendant contends plaintiff presented insufficient objective credible medical evidence to21 A - 2964
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support the jury's determination that plaintiff suffered a permanent injury, as that term is defined in N.J.S.A. 39:6A
- 8(a), which was proximately caused by the November 28, 2008 accident.
Under Rule 4:40
- 1, a party may move for entry of judgment either "a t the close of all the evidence or at the close of the evidence offered by an opponent." Rule 4:40
- 2 (b ) states that if
the motion for judgment is denied, it may be renewed in accordance with the procedure under Rule 4:49
- 1 for a new trial. Rule 4:40
- 2 (b) a lso states that every motion for a new trial "shall be deemed to include, in the alternative, a renewal of any motion for judgment made by that party at the close of the evidence." Here, defendant did not formally move for entry of judgment after plaintif f presented her evidence or at the close of all the evidence. Defendant did, however, file a motion for a new trial. That motion was premised in part upon defendant's assertion, which was made at various times throughout the trial, that plaintiff had not p resented sufficient objective credible evidence to support her claim under N.J.S.A. 39:6A
- 8(a). The judge denied the motion.
A motion for judgment notwithstanding the verdict under Rule
4:40
- 2 must be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor of a party . Lanzet v. Greenberg , 126 N.J. 168, 174 (1991). In considering such

a motion, the court must accept "as true all the evidence which22 A - 2964
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supports the position of the party defending against the motion and [accord that party] the benefit of all inferences which can reasonably and legi timately be deduced therefrom . . . . " Verdicchio v. Ricca , 179 N.J. 1, 30 (2004) (quoting Estate of Roach v. TRW, Inc. , 164 N.J. 598, 612 (2000)). If "reasonable minds could differ, the motion must be denied." Ibid. (quoting
Estate of Roach , supra , 164 N.J. at 612). When reviewing a trial court's order on the motion, we apply the same standard . See Frugis v. Bracigliano , 177 N.J. 250, 269 (2 003). We are convinced that plaintiff presented sufficient evidence to support the jury's finding that plaintiff suffered a permanent injury, as defined in N.J.S.A. 39:6A
- 8(a) , which was proximately caused by the November 28, 2008 accident . Defendant's ar guments to the contrary are without sufficient merit to warrant discussion.
R. 2:11
- 3(e)(1)(E). Affirmed.