On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, L-4558-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 15, 2007
Before Judges Rodríguez and C.L. Miniman.
This is an appeal from the September 8, 2006, denial of a motion for a new trial or remittitur filed by defendant Scott M. Kruse after the jury on June 20, 2006, returned a $500,000 verdict in favor of plaintiff Tiffany N. Jastram as compensation for a moderate-to-severe permanent sprain and strain of the ligaments and muscles supporting plaintiff's lumbar spine. Defendant asserted in his moving papers that the verdict was against the weight of the evidence, shocking and excessive, and a miscarriage of justice under the law. Defendant also contended that the admission into evidence of some medical illustrations was erroneous. After determining that $19,075 for counsel fees pursuant to the offer-of-judgment rule, R. 4:58-2, was reasonable, and calculating prejudgment interest, the trial judge entered a final total judgment on September 11, 2006, in the amount of $653,367.28. This timely appeal followed. We reverse and order remittitur or a new trial on damages based on this clearly excessive verdict.
Plaintiff and defendant were involved in a motor vehicle accident that occurred on January 16, 2002, in Middletown. Defendant has not raised any issues on appeal respecting the jury's verdict on liability and so we need not discuss the manner in which the accident occurred.
On the date of the accident, plaintiff turned seventeen. She obtained her driver's license that day. Plaintiff was a junior in high school who worked part-time as a hostess at the Navesink Fishery, a restaurant. She also worked at Hidden Hollow Farm six or seven days per week in exchange for horseback riding time, participating in thirty or more riding competitions per year.
After the accident, the plaintiff went about her planned activities for the day, but complained to her mother of pain in her back and legs when she returned home after dinner. When the pain did not subside after using Advil and a heating pad for a few days, plaintiff's mother scheduled an appointment for her with an orthopedic surgeon, Dr. Hausmann. When plaintiff saw him on February 1, 2002, she complained of back pain that went into her left leg and difficulty sleeping. After examining plaintiff, Dr. Hausmann took x-rays of her back, advised her that they were negative and prescribed anti-inflammatory and pain medication.
Plaintiff did not seek any further treatment from Dr. Hausmann. She continued to attend school and work as a hostess despite the pain she felt, but she could no longer ride horses or do any physical labor at the stable. She did continue to give riding lessons to younger children.
With no relief from the medication, plaintiff's mother took her to see a chiropractor, Dr. Grossman, on February 16, 2002. Plaintiff complained to him of lower back pain into her thigh and foot, an inability to sleep and muscle spasms. Dr. Grossman ordered an MRI, which the radiologist read as normal. Dr. Grossman treated plaintiff nineteen times between February 16 and May 3, 2002. When plaintiff did not obtain relief from her symptoms, Dr. Grossman recommended that she see another physician.
Plaintiff saw Dr. Del Valle on April 29, 2002. Dr. Del Valle recommended trigger point injections, which plaintiff declined, and continued chiropractic treatment. Plaintiff had no medical treatment from May 4, 2002, to December 2, 2003.
Plaintiff then returned to medical care with another orthopedic surgeon, Dr. Caponetti, on December 3, 2003. He recommended physical therapy, which plaintiff attended on three occasions. She then decided to exercise and stretch at home. She did not return to the care of Dr. Caponetti and had no further medical treatment.
At trial plaintiff testified that she continued to work at the Navesink Fishery, which provided some accommodations for her pain and spasms, until the summer of 2003. However, she quit working at Hidden Hollow Farm entirely a few months after the accident. Although she tried to ride horseback several times, the pain and spasms in her back prevented her from riding and she stopped going to the farm. Horseback riding and competitions had been her main activity for almost ten years. She testified that she remained in pain and had spasms from the time of the accident through the time of trial in 2006. She related that she still had difficulty sleeping because of the pain, stiffness and spasms, which awaken her every two or three hours. Her social activities are somewhat limited as well. She does not go to the gym with her mother or go dancing with her friends. She cannot contribute much to the household chores at her mother's house, where she continues to live. At the time of trial she worked full-time as a manager of the stable at a country club, Due Process Stables. In addition, she attends college part-time at night.
Plaintiff and defendant each retained consulting physicians to conduct independent medical examinations and testify at trial. Dr. Robert Dennis, an orthopedic surgeon, testified on behalf of plaintiff and Dr. Jay Bruce Bosniak, also an orthopedic surgeon, testified on behalf of defendant. After reviewing various medical records, Dr. Dennis examined plaintiff on March 3, 2005, and noted positive findings in the form of restricted ranges of motion, paraspinal tenderness and spasms. She had a positive straight-leg-raising test demonstrating scar tissue tethering the nerves. Dr. Dennis explained that plaintiff's spine was injured from excessive flexion or extension. He opined that she had suffered a moderate to severe sprain and strain of the muscles and ligaments supporting the lumbar spine. He explained that muscles and ligaments healed with scar tissue, which is not as flexible as uninjured tissue. He opined that she had a significant ligamentous injury causing lumbar instability. He further opined that ...