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Verruso v. Rojas

September 25, 2007

SANDRA VERRUSO AND PHILLIP VERRUSO, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
ALBERTO ROJAS AND BRANCH BROOK CO., DEFENDANTS-APPELLANTS/CROSS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3036-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 11, 2007

Before Judges Skillman and Yannotti.

On September 18, 2001, plaintiff Sandra Verruso's car was struck from behind by a vehicle operated by defendant Albert Rojas in the course of his employment for defendant Ventrice Enterprises, Inc., trading as Branch Brook Co. Plaintiff subsequently brought this action seeking damages for the personal injuries allegedly suffered in the accident. Her husband Phillip Verruso joined in the action asserting a per quod claim. Following a four-day jury trial, the trial court entered a directed verdict on liability in plaintiffs' favor. However, the jury returned a verdict for zero damages, thus no causing plaintiffs.

Plaintiffs filed a motion for a new trial on damages or, in the alternative, an additur. The trial court denied the motion for a new trial. Nevertheless, the court awarded plaintiff Sandra Verruso an additur of $20,000. Neither party filed a motion for reconsideration or clarification of this ruling. The court entered an order on March 31, 2006 memorializing its ruling.

Defendants filed a notice of appeal from the award of the $20,000 additur to plaintiff Sandra Verruso. Plaintiffs filed a notice of cross-appeal from the denial of their motion for a new trial.

Initially, we note that there is no authorization for the grant of additur where a motion for a new trial has been denied. An "additur may be employed only in cases where a new trial as to damages is proper[.]" Tonelli v. Khanna, 238 N.J. Super. 121, 132 (App. Div.), certif. denied, 121 N.J. 657 (1990). "An additur is an order denying plaintiff's application for a new trial, conditioned upon defendant's consent to an increase in the damage verdict as specified by the trial judge." Id. at 131. An additur "serve[s] the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial." Fisch v. Manger, 24 N.J. 66, 80 (1957). Therefore, an additur may be granted only if the trial court finds, in conformity with Rule 4:49-1(a), that "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." See Tonelli, supra, 238 N.J. Super. at 130.

We reject plaintiffs' argument that the court's order granting Sandra Verruso a $20,000 additur was actually an order granting a new trial unless defendants agreed to pay that amount. In its opinion denying a new trial, the trial court stated that "I am not going to award a new trial pursuant to [R. 4:49-1], because I do not believe that there's such a miscarriage of justice with regard to that that the Court, it shocks the [conscience] of the Court, . . . that I should award a new trial," and then stated, "[t]he closer question becomes whether or not the plaintiff is entitled to an additur in this situation." Moreover, the order memorializing this ruling provided that "plaintiff be granted an additur in the amount of $20,000." In addition, the trial court struck out and wrote "[d]enied" next to the part of plaintiffs' proposed order that provided for the grant of a new trial on damages. We also note that plaintiffs' notice of cross-appeal recognized, contrary to the argument presented in their appellate brief, that the trial court had denied their motion for a new trial. Therefore, we conclude that the trial court improperly granted plaintiff Susan Verruso an additur without finding that the jury's no damages verdict constituted a miscarriage of justice requiring a new trial.

Accordingly, we proceed to consideration of plaintiffs' cross-appeal from the denial of their motion for a new trial. The principles that govern a court's consideration of such a motion are well established. "[A] trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). A verdict may be set aside only if it "shock[s] the judicial conscience." Ibid. Moreover, "[i]n assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Ibid.

Plaintiffs claimed that Sandra Verruso suffered injuries to her neck, a cervical disc herniation, and to her jaw, a temporomandibular disorder (TMJ), during the September 18, 2001 automobile accident. Both parties presented expert opinion testimony regarding these alleged injuries. Dr. Ian Fries, an orthopedic surgeon testified for the defendants that although an MRI of Mrs. Verruso's cervical spine conducted on March 15, 2003 showed degenerative changes, there was no objective evidence she suffered any injury to her cervical spine in the September 18, 2001 automobile accident. Dr. Joel Doner, a dentist with a specialty in oral and maxillofacial surgery, testified that Mrs. Verruso does not suffer from TMJ and that her complaints of pain in the chewing muscle related to a longstanding "apparent functional bruxing habit and clenching habit" that is unrelated to any injury suffered in the accident. We are satisfied that this testimony provided an adequate evidential foundation for the jury's finding that Mrs. Verruso was not entitled to any damages for injuries allegedly suffered in the September 18, 2001 automobile accident.

Plaintiffs also argue that the trial court's denial of a new trial should be reversed because the court erred in granting defendants' in limine motion to preclude testimony by Mrs. Verruso that her obstetrician had prescribed bedrest during the four month period following the accident. Plaintiffs assert that such testimony would have rebutted any inference that Mrs. Verruso's alleged injuries were not as serious as she claimed because she did not seek any treatment until four months after the accident. Plaintiffs argue that the court should not have entertained the motion because it was filed too late. See R. 4:25-7(b); Pressler, Current N.J. Rules, Appendix XXIII to R. 4:25-7(b), at 2453 (2007). Plaintiffs also argue that the court erred in precluding such testimony as hearsay.

The only record of defendants' motion is the transcript of a brief colloquy between counsel and the trial court following opening statements, which reads as follows:

[Defendants' counsel:] We discussed in chambers about my motion in limine, and you said that we would put that on the ...


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