On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-826-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges S.L. Reisner and Baxter.
Plaintiffs Carmen Valentin and Jeronimo Reyes appeal from a no-cause verdict at the conclusion of a two-day trial on damages in this automobile accident case, and from the trial judge's subsequent denial of their motion for a new trial. Because defendants Steven Pratz and Jefferson Bank had stipulated to liability, the trial proceeded only on damages. The verbal threshold statute, N.J.S.A. 39:6A-8, was not applicable. We affirm the denial of the motion for a new trial. In light of that determination, we need not address defendants' cross-appeal, in which defendants argue that if plaintiffs prevail on appeal and a new trial is ordered, the judge's decision barring defendants from using photographs of the accident to cross-examine plaintiffs should be reversed.
On June 10, 2003, plaintiffs were on their way to a company picnic in Wildwood when their vehicle was rear-ended by a vehicle driven by defendant Pratz. At trial, plaintiffs produced an estimate of $770 for the cost of repairing the vehicle. Police officer Patrick Greene responded to the scene of the accident and prepared a police report. He listed the accident as "non-reportable," which signified that both vehicles were operational after the crash; no injuries were reported at the scene; and an ambulance was not requested by either driver or any of the passengers. The plaintiffs proceeded to their company picnic and did not seek emergency room care or see a doctor for approximately one week. The doctor who treated plaintiffs commencing one week after the accident, Philip Getson, D.O., was a physician whom their attorney had recommended.
Valentin testified that she did not miss any time from work after the accident and was able to continue in school as well. Reyes, who was out of work on disability at the time of the accident due to a kidney transplant, returned to light-duty work. There was no testimony establishing that any physician ever limited Reyes' work duties, or delayed his return to work, because of this motor vehicle accident.
A nurse practitioner in Dr. Getson's office examined Reyes during his visits to that office. By August 12, 2003, two months after the accident, the nurse practitioner's notes specified that Reyes was no longer experiencing spasms anywhere throughout his spine. Dr. Getson testified that an MRI performed on Reyes showed a "straightening of the lumbar spine and correlated muscle spasm, a mild disc desiccation and a small focal right-sided posterior annular tear at L5-S1." Dr. Getson also described the pain management injections anesthesiologist Alan Carr, D.O., gave to Reyes. Dr. Getson opined that Reyes, as a result of the June 10, 2003 automobile accident, "sustained a traumatic injury to the lumbar spine," which is chronic in nature and which will "predispose him to more low back and leg problems with the passage of time." When asked, Getson was unable to explain why Reyes had come to him for treatment rather than conferring with his family doctor, Dr. Merle.
Dr. Getson also testified to his treatment of plaintiff Valentin. He described tenderness of her right jaw. He also described muscle spasm in the neck that extended into her upper back causing limitations in her range of motion. An April 20, 2004 MRI of Valentin's lumbar spine revealed a "straightening of the lumbar spine with correlated muscle spasm" and "hypotrophic facet degenerative changes at L5-S1." Dr. Carr also prescribed the same type of pain management injections for Valentin that he had administered to Reyes. Dr. Getson testified that Valentin had sustained a "myofascial pain syndrome" accompanied by "muscle inflammation and spasticity" to her low back, which Getson opined was permanent.
On cross-examination, when Getson was asked whether his opinion that Valentin's injuries were attributable to the 2003 accident took into account the injuries Valentin had sustained in an automobile accident ten years earlier, Getson acknowledged that Valentin never advised him of her prior injuries. He stated that his opinion as to causation was not changed by the knowledge of that prior accident. On cross-examination, Getson also agreed that his treatment of Valentin ceased on November 4, 2004, and that no spasm to her low back was reported after August 2004. On cross-examination, Dr. Getson also acknowledged that Dr. Carr traveled to Getson's office to administer the pain management injections to plaintiffs. Getson explained that Carr travels to "four or five offices in the general area" for that purpose. Plaintiffs did not object to those questions.
John Cristini, M.D., the defense orthopedic physician, testified that he found no evidence of any orthopedic injury to plaintiff Reyes resulting from the accident. As to plaintiff Valentin, Dr. Cristini opined that the subject accident was not the cause of the injuries reported in Valentin's MRI or in Dr. Carr's report.
During trial, the judge denied defendants' request to cross-examine plaintiff with photographs that showed only minimal damage to plaintiffs' vehicle.
The jury returned a verdict that neither plaintiff had sustained any injuries as a result of this accident. Plaintiffs filed a motion for a new trial and/or additur, which was denied on January 10, 2007. The motion had been filed on December 11, 2006, thirty-three days after the no-cause verdict was rendered on November 8. In a written decision, Judge Kane denied plaintiffs' motion, finding that the motion was procedurally barred because it was filed thirty-three days after the verdict was reached, in violation of the provisions of Rule 4:49-1. That rule requires that such motions be filed no later than twenty days after a verdict. The judge provided a second reason for denying the motion. He reasoned that the jury had heard opposing expert testimony from each side and had had the opportunity to decide which expert was more credible. In light of the evidence presented, Judge Kane held that "it was not unreasonable or shocking to the judicial conscience for the jury to conclude that plaintiffs suffered no ...