Mongelli v. Mazza

1

FRANCESCO MONGELLI, Plaintiff-Appellant, v. ROCCO V. MAZZA, ANTOINETTE MAZZA, EMANUEL SOTO, SOLANGE PENA, BELLA N. DOMINGUEZ, CHARMAINE BURTON, and YAHAIRA GUTIERREZ, ^[1] Defendants-Respondents.

No. A-0759-22

Superior Court of New Jersey, Appellate Division

April 2, 2024

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.

Argued March 6, 2024

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Docket No. L-0146-18.

Michele Labrada argued the cause for appellant (Law Offices of Karim Arzadi, attorneys; Michele Labrada, on the briefs).

Scott Barry Lipowitz argued the cause for respondent

Yahaira Gutierrez (Goetz Schenker Blee &Wiederhorn, attorneys; Scott Barry Lipowitz, of counsel and on the brief).

Mario C. Colitti argued the cause for respondents Rocco V. Mazza and Antoinette Mazza (Law Office of Frank A. Viscomi, attorneys; Nicole Lynn Hollingsworth, of counsel and on the brief).

Stephen A. Rudolph argued the cause for respondents Solange Pena and Bella N. Dominguez (Rudolph Kayal &Almeida Counselors at Law, PA, attorneys; Stephen A. Rudolph, on the brief).

Nathan C. Orr argued the cause for respondent Charmaine Burton (Dyer &Peterson, PC, attorneys; Nathan C. Orr, on the brief).

Before Judges Susswein and Vanek.

PER CURIAM

This appeal follows a six-day civil trial after which the jury reached a verdict finding defendants Rocco V. Mazza and Solange Pena liable for damages and determining plaintiff Francesco Mongelli did not prove by a preponderance of the evidence he sustained a permanent injury as a result of any of the three automobile accidents that were litigated. Plaintiff appeals from the October 7, 2022 final judgment in favor of defendants Mazza, Antionette Mazza,^[2] Emanuel Soto, Pena, and Bella N. Dominguez, arguing the trial court erred in: requiring plaintiff to establish causation; barring the testimony of Dr. Wael Elkholy and Dr. Konstantine Fotiou on the issue of causation through apportionment of his injuries to the three accidents at issue; barring evidence of plaintiff's medical bills from being presented to the jury; and granting summary judgment in favor of defendants Charmaine Burton and Yahaira Gutierrez. Because we discern no abuse of discretion in the trial court's evidential rulings on causation proofs, we affirm the October 7, 2022 final judgment based on the jury verdict. Our affirmance of the final judgment moots plaintiff's appeal of the two February 14, 2020 orders granting summary judgment to defendants Burton and Gutierrez.

I.

Plaintiff was involved in three motor vehicle accidents that occurred as follows: March 8, 2017 (the first accident), October 14, 2017 (the second accident), and April 27, 2018 (the third accident). We derive the following material facts relevant to disposition of this appeal from the trial record.

A. The First Accident - March 8, 2017

At the time of the first accident, plaintiff, who was twenty-two years old, was driving in a work-issued van to a warehouse during the course of his employment. While plaintiff was driving in the right-most lane, his vehicle was struck by a car owned by Antionette and driven by Mazza. Plaintiff asserts the collision occurred because Mazza was attempting to make a left turn but failed to obey a stop sign and struck plaintiff's vehicle, which was continuing straight.

After the impact, plaintiff immediately "felt lots of throbbing pain and tingl[i]ness" radiating throughout his back, neck, shoulders, arms, fingers, legs, ankles, and feet. Plaintiff called emergency services, the police arrived on the scene, and an ambulance transported plaintiff to the hospital. In the emergency room, doctors took several x-rays and told plaintiff he had a fractured rib. Plaintiff was prescribed pain relief medication and released the same day.

Plaintiff began a course of chiropractic treatment with Dr. Fotiou beginning in September of 2017. Dr. Fotiou told plaintiff he was showing "positive signs of severe spasm" following the first accident.

B. The Second Accident - October 14, 2017

The second accident occurred when plaintiff's vehicle was stationary at a stop sign. As plaintiff signaled to make a right turn, Soto began making a left turn onto the street where plaintiff was stopped. Plaintiff asserts the collision occurred because Soto was not in the lane designated for left-hand turns and instead crossed into the lane in which his car was stopped. Police were called to the scene, but there was no ambulance summoned and plaintiff was not taken to the hospital.

The day prior to the second accident, plaintiff saw Dr. Fotiou. However, because of the timing of the second accident, plaintiff had to wait several days until he received further treatment. By the time of his appointment, plaintiff was having "shooting" pain in his arms, hands, fingers, legs, feet, and back. Dr. Fotiou told plaintiff the range of motion in his cervical and lumbar areas was significantly reduced following the second accident.

Plaintiff underwent an MRI of the cervical and lumbar spine and commenced electrical stimulation therapy. Dr. Fotiou told plaintiff his MRI results were consistent with the pain he was experiencing.

In March of 2018, plaintiff began treatment with Dr. Elkholy, who was board-certified in pain management. Dr. Elkholy reviewed some of plaintiff's previous MRI studies and medical reports before determining plaintiff had herniations and bulging in several places throughout his lumbar and cervical spine. Plaintiff underwent a discectomy in the lumbar spine.

C. The Third Accident - April 27, 2018

Approximately three weeks after plaintiff's discectomy, plaintiff was a passenger in a car owned by Dominguez and driven by Pena. When the vehicle was approximately halfway through an intersection, it was struck by two cars, one driven by Burton, and the other by Gutierrez.

Plaintiff testified the severity of the third accident was such that he thought he was going to die. An ambulance arrived on the scene and transported plaintiff to the hospital. At the hospital, plaintiff was "on [his] knees" in pain, unable to lay down or turn over, and "crying with [his] father." Plaintiff was discharged from the hospital the same day.

Plaintiff felt his neck "snap" during the collision and he was not able to turn his head for the next several weeks. Due to the extreme pain, he began taking pain relief medication with greater frequency. Plaintiff continued receiving treatment from Dr. Fotiou until September 2018, when the doctor told plaintiff he had received the maximum benefit chiropractic care could provide and discharged him. Plaintiff continued to receive treatment from Dr. Elkholy.

D. Pre-Trial Motions

On January 8, 2018, plaintiff filed a two-count complaint in the Law Division seeking damages from the first two accidents. On June 6, 2018, plaintiff amended his complaint to add a count seeking damages resulting from the third accident.

The discovery period concluded on January 29, 2020. On February 14, 2020, the trial court granted both Gutierrez and Burton's motion and crossmotion for partial summary judgment on liability, and dismissed plaintiff's claims against them with prejudice.

On February 24, 2022, over two years after the close of discovery, plaintiff served the remaining defendants with a January 2, 2018 Raritan Bay Medical Imaging report as to a lumbar spine MRI. On March 16, 2022, plaintiff served defendants with a February 10, 2020 report from the Precision Pain &Spine Institute.

Pena and Dominguez jointly filed a motion to bar plaintiff from using any medical records served after the January 29, 2020 discovery end date at the trial. Plaintiff opposed the motion and cross-moved to extend discovery.

On April 21, 2022, the trial court denied plaintiff's motions for reconsideration of the orders granting summary judgment to Burton and Gutierrez and denied plaintiff's cross-motion seeking a discovery extension. The trial court partially granted the motion to bar late discovery as to the February 10, 2020 Precision Pain &Spine Institute report served on March 16, 2022, after the discovery end date. Plaintiff's subsequent motion for reconsideration was denied.

E. Trial

The jury trial commenced on September 19, 2022.^[3] Defense counsel moved in limine to exclude any medical bills that were not submitted for payment to the worker's compensation carrier for plaintiff's employer, through plaintiff's personal injury protection (PIP) coverage, or provided to defendants during discovery. When neither plaintiff's counsel nor defense counsel could identify what medical bills they had served or received, respectively, during the discovery period, the trial court instructed counsel for defendants to "come up with a draft order . . . as to what bills" they each received during discovery so the trial court could address admissibility.

Counsel for Mazza certified that plaintiff had not served any bills that were not already paid by plaintiff's worker's compensation carrier; counsel for Soto certified plaintiff served eight bills totaling $130,598.31; counsel for Pena certified plaintiff served one bill but it had been paid by plaintiff's PIP carrier.

Plaintiff's counsel could not identify which bills were served on all defense counsel during discovery. Among other dialogue between the trial court and counsel, the court said to plaintiff's counsel:

[I]f you have an objection [to the entry of orders submitted by defense counsel], I need to hear that on the record. Okay? So I don't believe that you're in a position now

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