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Ponzo v. Pelle

February 27, 2001

KAREN L. PONZO AND JOSEPH C. PONZO, HER HUSBAND,
PLAINTIFFS-APPELLANTS,
V.
CHRISTOPHER K. PELLE,
DEFENDANT-RESPONDENT.



SYLLABUS BY THE COURT

Ponzo v. Pelle (A-133-99)

Argued January 2, 2001

Decided February 27, 2001

Long, J., writing for a unanimous Court

In this appeal, the Court considers whether the defense conceded that plaintiff suffered a knee injury in the automobile accident at issue in this litigation and, if so, whether the single jury interrogatory addressing proximate cause improperly skewed the outcome of the case.

In December 1992, plaintiff was stopped in traffic in her automobile when she was struck from behind by the defendant. Damage to plaintiff's car was minimal, but plaintiff testified at trial that the force of the impact thrust her forward and then back very heavily against the headrest. The collision also caused her knee to strike the steering column. She did not complain of injuries to police officers at the scene of the accident and the police report indicated no injuries. After two days, plaintiff reported to the emergency room complaining of soreness in her neck and back and pain in her right knee. An orthopaedist diagnosed plaintiff with a contusion and synovitis of the right knee. After eight months of treatment, plaintiff began to experience more severe pain in her legs and arms. After seeing another orthopaedist, plaintiff was diagnosed with Reflex Sympathetic Dystrophy, a nerve disorder. Additionally, arthroscopic surgery was performed on plaintiff's right knee in November 1994 to address persistent pain. She experienced some relief from the knee pain, but continued to suffer neck and back pain.

Plaintiff filed suit. At trial, the defendant conceded that he was negligent in causing the accident. Plaintiff presented expert testimony on her claim that she suffered three distinct injuries as a result of the collision. These injuries were 1) torn cartilage of the right knee requiring surgery; 2) two herniated cervical discs; and 3) Reflex Sympathetic Dystrophy. Defendant's experts agreed that plaintiff suffered from cervical disc herniations, but opined that they were unrelated to the accident. The defense experts also disputed the diagnosis of Reflex Sympathetic Dystrophy. In respect of the knee injury, the defendant's expert orthopaedist opined that while plaintiff may have suffered an injury at some point, there was no permanent impairment and the knee was now normal. On cross examination, the expert did not dispute plaintiff suffered the knee injury as a result of the accident, nor would he opine that the surgery was unnecessary. Finally, the defense attorney stated in his summation that he had no evidence to dispute that the accident caused plaintiff's knee injury and that the injury was, in fact, associated with the accident. However, he argued that the surgery corrected the knee injury so that she was not permanently injured.

The trial court submitted a single interrogatory to the jury: "Did the defendant's negligence proximately cause damage to [plaintiff]?" The jury answered "no" to that question, and thus returned a no-cause verdict in favor of the defendant. Plaintiff moved for a new trial, contending that the issue of proximate cause of the knee injury should have been removed from the jury's consideration because the defense expert conceded it. The trial court found that the expert had not made a concession and that there was no miscarriage of justice.

On appeal, plaintiff argued, in part, that: 1) the trial court erred in submitting an ambiguous single interrogatory to the jury; and 2) the trial court erred in failing to instruct the jury that proximate cause was no longer an issue in respect of plaintiff's knee injury. The Appellate Division found that the jury was not misled by the interrogatory, plaintiff never asked for a directed verdict on the knee injury, and neither defense counsel nor the defense experts conceded that the knee injury and surgery were causally related to the accident.

HELD: The record clearly establishes that the defense conceded that plaintiff sustained a knee injury in the accident that was successfully repaired by surgery. Where, as here, plaintiff advanced three distinct injuries from the accident, the existence of only two of which defendant disputed, the single jury interrogatory was inadequate and a new trial is required.

1. Although plaintiff's counsel could have moved for a directed verdict on the issue of the knee injury, she was not compelled to do so and any evidential concession should have been flagged for the jury. (Pp. 9-10).

2. A concession can be inferred from the record. The defense expert did not contest that plaintiff suffered a knee injury in the accident, nor did he opine that the surgery was not necessary. He further agreed that there was nothing in the record to suggest that the knee injury was not related to the accident. While that testimony may not rise to the level of a concession, it was placed into higher relief by defense counsel's remarks on summation. A reasonable juror could only conclude from those remarks that defendant conceded that plaintiff sustained a knee injury in the accident that was successfully repaired by surgery. Moreover, no exception was made to plaintiff's summation, in which plaintiff's counsel informed the jury that the defense expert admitted the knee injury was caused by the accident and the surgery was the result of that injury. Finally, the trial court's instructions noted that defendant did not deny that plaintiff sustained an injury from the accident, but merely disputed its nature, extent and permanency. As such, everyone at trial understood that there was no contest over the fact that plaintiff sustained an injury to her knee during the accident. (Pp. 10-13).

3. No objection was made to the single jury interrogatory, "Did defendant's negligence proximately cause damage to [plaintiff]?" As such, the plain error standard applies and the interrogatory will withstand attack unless it was clearly capable of producing an unjust result. Interrogatories are not grounds for reversal unless they were misleading, confusing or ambiguous. They must also be considered in the context of the charge as a whole since an accurate and thorough jury charge may cure the potential for confusion that may be present in an interrogatory. (Pp. 13-14).

4. Plaintiff claimed three distinct injuries and only the knee injury was conceded. In considering the two non- conceded injuries, the jury had to decide four different questions: did the injuries exist, were they were caused by the accident, the extent of the injuries, and what amount would compensate the plaintiff. In contrast, the jury was only required to determine the extent and damages of the conceded knee injury. The single interrogatory was inadequate to alert the jury to its differentiated task. (Pp. 14-15).

5. Where there are multiple allegations, multiple interrogatories are the best way to focus the jury's attention on the details of the case. Multiple interrogatories also aid in ascertaining, with some degree of specificity, what the jury has actually determined. As a corollary, a trial judge should eliminate from disposition matters that are not truly in contest to assist the jury and to avoid unnecessary effort and possible confusion. Not every single case requires finely diced interrogatories. In a situation such as this one, however, where the plaintiff advanced three distinct injuries from the accident, only two of which were disputed, the trial court should have created interrogatories that reflected the concession regarding the knee injury and detailed the distinct approach that was required of the jury as a result of the defendant's defenses to the different claims. Here, there is no way to be sure whether the jury simply misunderstood the concession regarding the knee injury or whether it was confused by being required to render a global answer to questions needing individual and potentially different responses. Because it is impossible to ascertain what happened and localize the error, a new trial is required. (Pp. 15-16).

The Judgment of the Appellate Division is REVERSED, and the matter is REMANDED for a new trial.

CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in JUSTICE LONG's opinion.

The opinion of the court was delivered by: Long, J.

Argued January 2, 2001

B Decided

On certification to the Superior Court Appellate Division.

In December 1992, plaintiff Karen Ponzo was stopped in traffic in her vehicle when she was struck from behind by a vehicle driven by defendant Christopher Pelle. Ponzo sued Pelle for negligence. Her husband Joseph Ponzo sued per quod. A five- day trial took place after which a jury returned a no cause verdict in favor of Pelle. Ponzo's motion for a new trial was denied. She appealed and the Appellate Division affirmed the judgment entered upon the jury verdict. We granted certification and now reverse.

I.

The evidence is as follows: As a result of the collision between Pelle's car and her own, Ponzo's car struck the car in front of her, resulting in minimal damage. Ponzo testified that the "force of the impact was so hard that [she] went forward and came back very heavy against the headrest" and that the collision caused her knee to strike the steering column. She was "badly shaken up" by the accident, but did not appear injured at the scene. In fact, she did not complain of any injuries to police officers who interviewed her upon arriving at the scene and the police report indicates that the accident resulted in no injuries. Ponzo did not seek medical attention on the day of the accident.

Two days later, she reported to the emergency room of St. Anthony's Hospital complaining of "soreness" and pain in her right knee. She sought follow-up care from Dr. Paul Glicksman, an orthopaedist. Ponzo told Dr. Glicksman that she was experiencing soreness in her neck and back, as well as pain in her knee. Dr. Glicksman diagnosed a contusion and synovitis*fn1 of the right knee, sent Ponzo for an MRI and prescribed medication to address any inflammation in her knee. Ponzo then began seeing a chiropractor, Dr. Lisa Bloom.

She received treatment for her injuries for a period of eight months with little relief. She also began to experience more severe and debilitating pain in her legs and arms. Thus, in approximately March 1994, Ponzo decided to seek medical attention from Dr. Kim Sloan, another orthopaedist. Dr. Sloan sent Ponzo to Dr. J. Choi, who diagnosed her with Reflex Sympathetic Dystrophy (RSD), a nerve disorder that causes hypersensitivity to pain. Dr. Choi subsequently performed nerve blocks and placed Ponzo on a physical therapy program. In July 1994, Ponzo left her job as a legal secretary and began to collect disability insurance.

Ponzo's knee pain persisted and Dr. Sloan performed arthroscopic surgery on her right knee in November 1994. After the surgery, Ponzo felt "some relief" from the pain in her knee but continued to experience neck and back pain. Thus, she sought further treatment from a neurosurgeon, a psychologist, a physical therapist, and her family physician.

During the trial, at which Pelle conceded that he was negligent in causing the accident, Ponzo claimed that she suffered three distinct ...


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