On appeal from the Superior Court of New Jersey, Law Division, Monmouth County
Dreier, Brochin and Kleiner. The opinion of the court was delivered by Brochin, J.A.D.
[268 NJSuper Page 155] Plaintiff James E. Blanks sued defendants Robert Murphy, Gerald Love, and Universal Automotive Distributors, Inc. for personal injuries which allegedly resulted from an automobile accident. Liability was conceded. At trial, plaintiff claimed that the accident had caused injuries to his neck, shoulder and back. However, the jury could have found from the evidence that his complaints were in large part the result of other back injuries which he had sustained both before and after the accident which was the subject of the law suit. The jury returned a verdict in
plaintiff's favor for $3,000. Plaintiff's motion for an additur or a new trial was denied.
Plaintiff has appealed. He alleges that the trial court committed plain error by omitting the word "solely" from what was otherwise the model charge on the subject of apportioning responsibility for preexisting injuries; that it committed plain error by failing to place the burden on defendants to show that his injuries were not the result of the accident for which they were responsible; that the $3,000 verdict was so inadequate as to be a miscarriage of Justice; and that hearsay evidence contained in his hospital records was erroneously admitted over his objection.
At trial, the Judge instructed the jury as follows:
Now, if a plaintiff who is awarded a verdict had a preexisting illness or injury he is entitled to an award of damages only if the jury finds that the illness or injury was aggravated or made more severe as a result of this accident and only to the extent of such aggravation.
In fixing your award of damages, for pain, suffering, disability and impairment you may allow the plaintiff such damages as will fairly and reasonably compensate him for injuries sustained in this accident, including any increased pain, suffering, disability and impairment, because of aggravation of a preexisting illness or injury.
You may not award damages in this lawsuit for pain, suffering, disability or impairment attributable to a preexisting illness or injury. I also charge you that if such preexisting illness or injury did not itself involve pain, suffering, disability or impairment but combined with the injuries sustained in this accident, to produce pain, suffering, disability or impairment, you may award damages to the full extent of such pain, suffering, disability and impairment. [Emphasis added.]
If you find the plaintiff's present condition results in part from a vulnerability or preDisposition or a latent disease or weakness without symptoms, his damages would be based upon the present condition of pain, suffering, disability and impairment in full even though you may speculate that an individual without such preDisposition or latent condition would have experienced less pain, suffering, disability and impairment.
The charge given mirrors Civil Model Jury Charge 6.10(G)(1) with the exception of the word "solely," which was omitted from the charge read to the jury. The pertinent sentence of the model jury charge reads: "You may not award damages in this lawsuit for pain, suffering, disability or impairment attributable solely to a preexisting illness or injury" (emphasis added). Plaintiff's counsel did not object to the instruction at trial. See R. 1:7-2. Had a
Reading the charge given as a whole, the first two paragraphs clearly explain that any award for a preexisting illness or injury must be for aggravation or increase of pain, suffering, disability or impairment which has resulted from the accident at issue. Although the first sentence of the third paragraph of the court's charge does not include the word "solely," the next sentence instructs the jury that it may award damages to the full extent of pain, suffering, disability and impairment which resulted from the combined effect of preexisting illness and injuries sustained in the automobile collision. Because the overall effect of the charge informed the jury accurately that they might award damages for a preexisting illness or injury to the extent of any aggravation or increase, the Judge's omission of the word "solely" did not possess a clear capacity to bring about an unjust result. We therefore reject plaintiff's argument on this issue.
We next consider plaintiff's challenge to the trial court's jury charge with respect to the burden of proof for apportioning damages. Plaintiff argues (1) that Fosgate v. Corona, 66 N.J. 268, 272-73, 330 A.2d 355 (1974), holds that the defendants in a medical malpractice case have the burden of proving which of plaintiff's conditions were caused by events for which they were not responsible, and (2) that Bendar v. Rosen, 247 N.J. Super. 219, 588 A.2d 1264 (App.Div.1991), and Sholtis v. American Cyanamid Co., 238 N.J. Super. 8, 568 A.2d 1196 (App.Div.1989), extended that holding to ordinary negligence cases.
In Fosgate, supra, plaintiff, Mary Fosgate, brought a malpractice action against her doctor for failure to diagnose her tuberculosis. 66 N.J. at 270, 330 A.2d 355. Despite the treatments which she received over a period of six years from defendant, her tuberculosis was not discovered until she was ...