                        NOT FOR PUBLICATION WITHOUT THE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-1722-15T3

BARBARA GARY,

        Plaintiff-Appellant,

v.

GEORGE WENTHE,

     Defendant-Respondent.
_______________________________

              Submitted June 8, 2017 – Decided July 24, 2017

              Before Judges Lihotz and Hoffman.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Docket No.
              L-2186-11.

              Shebell & Shebell, LLC, and Morley Law, LLC,
              attorneys for appellant (Thomas F. Shebell,
              III, of counsel and on the briefs; Robert A.
              Morley, on the briefs).

              Carton Law Firm, LLC, attorneys for respondent
              (Michael J. Lynch, on the brief).

PER CURIAM

        Plaintiff Barbara Gary appeals from the denial of her motion

for a new trial and challenges the jury verdict, which concluded
she had no cause of action against defendant George Wenthe.                  We

affirm.

       These facts were presented at trial.       While driving home from

work on November 5, 2010, defendant hit plaintiff's Dodge Caravan

in the rear.      Plaintiff was wearing her seat belt and the air bag

did not deploy.      Plaintiff's two children were in the vehicle and

one was taken for emergency medical care.             While at the hospital,

plaintiff experienced lower back pain.                 She was x-rayed and

released.     The next day, her neck was stiff and she experienced

pain   on   her   left   side.     Plaintiff   commenced     six   months    of

chiropractic care.       Next, she began trigger point injections to

her lower back and shoulders.          When relief was not forthcoming,

she was administered epidural injections and underwent an MRI.

Other treatments were administered to ease the spasms in her back

and numbness in her legs.        In April 2011, she began treatment with

Dr. Cary Glastein, a spinal surgeon.         Plaintiff was informed about

the risks and benefits of surgery, but chose to continue with non-

surgical treatment.

       At   trial,   plaintiff   and   her   family    members   related    the

consequence of her injuries, which included her inability to return

to work or to enjoy the activities she engaged prior to the

accident.      She experienced pain while sitting or standing for



                                       2                              A-1722-15T3
extensive periods of time, she lost the ability to ride a bicycle

or dance, and has gained weight.

     On      cross-examination,       defendant      demonstrated        some     of

plaintiff's complaints were not expressed during her course of

treatment, such as her inability to dance.              Further, plaintiff's

inability to recall facts, and contradictions between plaintiff's

trial testimony and deposition testimony were highlighted.                       For

example, at her deposition she stated there was no damage to the

front of her vehicle; yet at trial she stated there was.

     Critical to this case was the expert testimony.                    Plaintiff

presented     testimony    from   Dr.    Glastein,    who     stated     plaintiff

initially presented with complaints of pain in her neck radiating

to her arms, and pain in her lower back radiating to her left leg.

His objective findings at that time noted neck and back spasms and

tenderness.     However, plaintiff's gait was normal, she had full

range   of    motion,     exhibited     normal    strength,       and   showed    no

neurological deficits.

     Reviewing plaintiff's MRI, Dr. Glastein stated she had four

herniated discs in her neck, with some cord impingement, and a

bulge to herniation in her lumbar spine.              He stated the MRI did

not reflect degenerative changes, and he attributed plaintiff's

herniations as caused by the accident.                 Dr. Glastein         stated

plaintiff's     current    condition     caused   pain,     and    is   permanent,

                                         3                                 A-1722-15T3
although     symptoms      may   "come     and    go."     He    saw     no    change       in

plaintiff's     condition        through    his    course       of    treatment.            He

explained surgery could alleviate the disc herniations, leaving

the patient with disc fusions "and orthopedic hardware," which

"chang[es] things a lot."            The risks attendant with surgery were

also very high and when he last saw plaintiff on March 7, 2012,

she had not opted for surgery, as she was improving.                            Regarding

the    herniated     conditions      in     her    neck,    Dr.       Glastein        stated

plaintiff's conditions could not be reversed and would likely

worsen over time.

       Plaintiff also presented testimony from Douglas Gibbens, a

diagnostic radiologist, who reviewed the MRI films.                           Dr. Gibbens

confirmed plaintiff suffered four herniated discs and a disc bulge.

       Defendant's expert Dr. Arthur Vasen, an orthopedic physician,

examined plaintiff and reviewed her MRI and records.                      He found her

gait   and   range    of    motion    were       normal.        He    found     no     spine

limitations     associated         with     herniations,             noting     plaintiff

successfully walked on her toes and heels, and bent to touch her

toes within normal range.            He identified tenderness in her neck,

but noted no objective signs of neck or back limitations.                                   He

diagnosed plaintiff with cervical sprain and lumbar strain with

no evidence of herniation.               Although he noted disc bulging in



                                            4                                        A-1722-15T3
plaintiff's neck, as shown on the MRI, he could not link these

symptoms as caused by the accident.

     At the charge conference, plaintiff offered a charge on

permanent injury.   The judge declined to use her drafted charge

in favor of provisions of the Civil Model Jury Charges, which

addressed the need for plaintiff to prove a permanent injury in

order to recover damages.   The judge next issued the jury charge,

to which neither counsel voiced exception, and reviewed the verdict

sheet.

     After   commencing   deliberations,   the   jury   asked     three

questions, two of which are implicated on appeal.        First, the

judge was asked to "restate the definition of permanent injury,

per question number one" of the verdict sheet.     Second, the jury

asked: "Can you confirm that a herniated disc or a bulge is a

permanent injury as a defined medical fact?"

     To question one, the judge responded:

          In order to recover damages in this case,
          plaintiff must prove by a preponderance of the
          evidence that she sustained injuries which fit
          into this category. A permanent injury within
          a reasonable degree of medical probability,
          other than scarring or disfigurement. If you
          find the injuries caused by the accident does
          not come within that category, your verdict
          must be for the defendant. If you find the
          injuries caused by the accident do come within
          that category, your verdict must be for the
          plaintiff.


                                 5                              A-1722-15T3
            In this case, plaintiff alleges she suffered
            a permanent injury as a result of the motor
            vehicle   accident.   An   injury   shall  be
            considered 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. I’ll
            read that one again.

            An[] injury shall be considered 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.

            Plaintiff must prove this claim through
            objective     credible   medical     evidence.
            Objective proof means the injury must be
            verified by physical examination or medical
            testing, and cannot be based solely upon the
            plaintiff’s subjective complaints. Credible
            evidence   is   evidence  you   find   to   be
            believable.

       As to question two, the judge explained:   "If I answered that

yes or no, that would put me in your shoes as the fact finder.        I

can’t do that.    It is your decision, based on your recollection

of the evidence of the testimony of all of the witnesses."

       The jury continued deliberations, while plaintiff's counsel

placed an argument on the record, previously advanced in chambers,

requesting the judge instruct the jury that a herniated disc was

a permanent injury.    The judge declined, expanding to counsel the

reasoning undergirding the response given to the jury on question

two:



                                  6                           A-1722-15T3
            [Y]ou brought that to my attention in
            chambers. And the way the question was asked
            by the jury, I viewed it as something where
            they have to make a factual finding as to
            whether or not it was a herniated disc.

                 My defining a herniated disc as a
            permanent injury or not, I thought would
            overstep my role. It's their roles as facts
            finders. That's one. Two, with respect to
            all that, I know there was a discussion about
            all doctors agree, a herniated disc is a
            permanent injury.

                 The problem I have is that there's many
            Appellate Division cases that say the jury is
            free to disregard what the doctors say. And
            again, I would be stepping into their shoes
            as a fact finder.

     Shortly thereafter, the jury reached a verdict.                   Voting five

to one, the jury concluded plaintiff did not suffer a permanent

injury    proximately   caused    by    the   November     5,    2010   accident.

Plaintiff's motion for a new trial was denied. This appeal ensued.

     Plaintiff argues the jury instructions were vague, replete

with antiquated language, the judge incorrectly responded to the

jury's questions, and the verdict was against the weight of the

evidence.     Each of these issues is directed to the issue of

permanent    injury,    a   requirement      set   forth   in    the    Automobile

Insurance Cost Reduction Act of 1998, N.J.S.A. 39:6A-8(a), which

allowed    insureds    to   choose     automobile    policy      options,     which

succinctly    lowered       premiums    in    exchange     for    limiting       the

circumstances for recovery of noneconomic damages.                Zabilowicz v.

                                        7                                   A-1722-15T3
Kelsey,    200    N.J.   507,   509   (2009).             "Those       covered    by   the

limitation-on-lawsuit         threshold       may   not    sue     a    tortfeasor     for

noneconomic damages unless they suffer a serious or permanent

bodily injury."       Ibid.     Defined as "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).

     Plaintiff argues the trial judge's use of Model Jury Charge

(Civil) 5:33B requires reversal.                She maintains the charge is

flawed as outdated and the judge's decision to decline her request

to tailor the charge to the facts of this case and the law was

error. Plaintiff focuses on the language of the charge, discussing

her burden to establish permanent damage:

            Plaintiff must prove this claim through
            objective    credible   medical    evidence.
            Objective proof means the injury must be
            verified by physical examination or medical
            testing, and cannot be based solely upon the
            plaintiff's subjective complaints. Credible
            evidence is evidence that you find to be
            believable.

The language is taken directly from the Model Jury Charge (Civil)

5:33B(C).        Plaintiff's position argues a more accurate charge

would     replace    "medical     evidence"         with     "objective          clinical

evidence,"       language     taken   from      N.J.S.A.         39:6A-8(a).           She

additionally maintains the charge should not have included the


                                          8                                       A-1722-15T3
word "verified," noting this requisite is satisfied upon filing a

certification of permanency, with the complaint.      For the reasons

that follow we reject these arguments.

     First, the record reflects plaintiff did not object to the

charge as issued.     Failure to do so restricts reversal to only

upon a showing of plain error.    See R. 1:7-2 ("[N]o party may urge

as error any portion of the charge to the jury . . . unless

objections are made thereto before the jury retires to consider

its verdict . . . .").    Here, plaintiff voiced no exceptions to

the charge.   See Gaido v. Weiser, 227 N.J. Super. 175, 198 (App.

Div. 1988) (requiring a party "to apprise the trial court of the

specific nature" of an objection when the charge is issued).

     Second, plaintiff's argument overreads the use of "verified,"

used to define objective proof.       The use of the phrase "verified

by physical examination or medical testing" is contrasted with

"the plaintiff's subjective complaints."     The change expresses the

need for medical evidence through testing, not simply a patient's

complaints of pain.

     The charge when read as a whole, Mogull v. Cb Commer. Real

Estate Grp., 162 N.J. 449, 464 n.2 (2000), is neither misleading

nor a misstatement of the legal requirement of objective evidence

to prove permanent injury.   We conclude the charge is accurate and



                                  9                           A-1722-15T3
in no way altered the fairness of plaintiff's trial. See Berberian

v. Lynn, 335 N.J. Super. 210, 219 (App. Div. 2002).

       Regarding       the    need   for    the    court      to    issue    a    "tailored

instruction," we reject the notion this entitles a party to require

the court to accept their suggested charge.                          Ibid.       The charge

must clearly and accurately state the legal principles, which

guide the factual determinations of a jury.                    The use of model jury

charges is "recommended as a method, albeit not perfect, for

avoiding error."           Pressler & Verniero, Current N.J. Court Rules,

cmt. 8.1 on R. 1:8-7 (2014).                The jury instructions used in this

case    clearly        outlined      the    relevant      statutory         elements     for

plaintiff to recover damages.                 We discern no error, let alone

plain error.

       We also reject plaintiff argument the jury's confusion was

manifest    by    its      questions.        Returning        to     the    Legislature's

"objective clinical evidence" language found in N.J.S.A. 39:6A-

8(a),   this     argument       conflates        case   law    examining         whether    a

plaintiff has presented sufficient facts to meet the statute's

requisites       and    overcome      the    defendant's           motion    for    summary

judgment.      Certainly,         that     plaintiff's        experts       asserted     she

suffered herniations, which they opined were visible from review

of the MRI, does not end the controversy or prove plaintiff in

fact    suffered       a     permanent      injury      caused      by     the    accident.

                                            10                                      A-1722-15T3
Defendant, through expert testimony, contested not only the claim

plaintiff's discs were herniated, but also whether the bulging

discs were caused by the accident. These material factual disputes

were the essence of the jury's factfinding function in this case.

      The jury was provided with competing evidence as to material

facts through the experts' testimony.         Additionally, the jury had

the opportunity to evaluate plaintiff's credibility and to observe

her as she testified. Credibility of the experts and the plaintiff

was critical.     We have no basis to suggest the jury failed to

properly sift through the evidence to reach its verdict.

      We similarly reject the inference sought to be drawn from the

jury's second question on what evidence is "honest and reliable."

The   judge   properly   rejected        plaintiff's   suggested    charge,

delineating   conclusively   what    she    believed   was   objective   and

reliable evidence of her herniated discs.          The charge improperly

tread upon the factfinding function of the jury.

      Based upon our     review, we find no merit            to plaintiff's

argument of error in the denial of her motion for a directed

verdict, challenge to the verdict as against the weight of the

evidence, as well as her motion for a new trial.

      Affirmed.




                                    11                              A-1722-15T3
