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Clarke v. Piscopo


November 9, 2007


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-000007-04.

Per curiam.


Argued: September 26, 2007

Before Judges Axelrad and Payne.

Plaintiff, Milagros Clarke, who was subject to the verbal tort threshold, was injured when defendant rear-ended the vehicle she was operating on June 19, 2002. Plaintiff filed suit, claiming she sustained temporary and permanent injuries to her neck, back, and shoulders as a result of the automobile accident. Defendant stipulated liability for the accident, and the case proceeded to trial on the issue of damages. The jury returned a $75,000 damage verdict in plaintiff's favor. Plaintiff moved for a new trial, claiming error in the trial court's denial of her request for: (1) a Puso charge*fn1 that, if the jury found a permanent injury, it should then consider all injuries, whether permanent or temporary, in calculating damages, and (2) modification of the jury interrogatory on damages to insert the word "all" before "injuries" The motion was denied. On appeal, plaintiff contends the lack of a Puso instruction and a misleading verdict sheet resulted in reversible error and a jury verdict that shocks the conscience and is a miscarriage of justice. We are not persuaded by these arguments and affirm.

At the trial in August 2006, forty-two-year-old plaintiff testified, and she presented the testimony of her sixteen-year-old daughter Melownie Bonnevil; chiropractor, Dr. James Galgano; and the videotape deposition testimony of orthopedic surgeon, Dr. Mark Reiner and neurosurgeon, Dr. Joan O'Shea. Defendant testified and presented Dr. Roy Friedenthal, an orthopedic surgeon, as his expert.

In his opening statement, plaintiff's counsel described the accident in which defendant, who was traveling about 30 mph, rear-ended plaintiff, causing her to be thrown forward in a whiplash motion. He disclosed that plaintiff had treated with a chiropractor from March to June 13, 2002, for spinal problems that he claimed were related to her job as a waitress, but asserted she was not experiencing any neck pains when she was discharged. He emphasized that plaintiff never experienced radiating pain down her arm prior to the accident. Counsel summarized plaintiff's medical treatment following the accident, including her complaints of cervical strain and shoulder pain to her family physician, Dr. Varner; the cervical spine MRI showing herniated discs at C3-4 and C4-5; the epidural injections to her neck by pain management specialist, Dr. Peter Arino; her visits to the chiropractor, Dr. O'Hay; and the arthroscopic surgeries to both shoulders performed by Dr. Reiner and the anterior cervical diskectomy fusion at C4-5 and C5-6 performed by Dr. O'Shea. Plaintiff's counsel claimed the accident caused nerve damage to plaintiff's neck, stressing that plaintiff had plates and screws in her neck and limited range of motion; and, as a result of plaintiff's various injuries, was in pain on a regular basis and her activities were severely limited. Plaintiff's counsel did not discuss verbal threshold requirements of permanency or differentiate between any of plaintiff's injuries as temporary or permanent.

Plaintiff testified about a prior automobile accident when she was about twenty years old that resulted in a "pinched nerve" and injuries to her lower spine at L-4 and L-5, causing excruciating, radiating leg pain. She did not experience any problems with her neck or shoulders, nor did she experience any radiating pain down either one of her arms at that time, or at any time prior to the subject accident. Plaintiff further testified she was physically active and in "great shape" before the accident. She acknowledged, however, that in March 2002, approximately three months before the accident, she began treating with Dr. Galgano, a chiropractor, because of lower back pain. She claimed she was discharged from his care six days before the accident.

Through cross-examination of plaintiff and Dr. Galgano, defense counsel addressed plaintiff's prior neck-related complaints and treatment. For example, plaintiff noted on the Patient Intake form completed at the time of the initial chiropractic visit that she had been experiencing neck pain, lower back pain, and tingling in her right leg since November 1996. In addition, Dr. Galgano testified with reference to his office notes of plaintiff's visits throughout the three-month treatment period, which document regular complaints of cervical pain and neck stiffness, though improving. Furthermore, contrary to plaintiff's testimony, Dr. Galgano testified that plaintiff had not been discharged from his care; rather, she had three appointments scheduled subsequent to the accident but failed to return for those appointments.

Dr. Reiner testified that when he first examined plaintiff on September 12, 2002, she reported that as a result of the accident she sustained injuries to her neck, back, and shoulders, and complained of pain in those areas and of radiating pain into her right arm and leg. According to Dr. Reiner, the August 2002 MRI of plaintiff's lumbar spine was normal, the MRI of her cervical spine showed two herniated discs between C3-4 and C4-5, and the MRI of her shoulder indicated a possible tearing to the labrum on the right and left side. The March 2004 MRI showed disc bulges to the cervical spine at levels C3-4, C4-5 and C5-6.

Dr. Reiner performed arthroscopic surgery to repair the tear of the interior glenoid labrum of plaintiff's right shoulder on June 11, 2003, and performed the same procedure to her left shoulder on August 20, 2003. Dr. Reiner related that Dr. Arino gave plaintiff a series of epidural injections to her neck, and when she did not feel better, she was operated on by Dr. O'Shea in May 2004.

Dr. Reiner testified that during plaintiff's last visit in May 2005 she was still complaining of stiffness and soreness to her shoulders; stiffness, soreness, discomfort to her neck and back; she had 60% of normal movement to her cervical spine; she had a positive Tinel's*fn2 sign above her left elbow; she had a restricted movement in her back of 60% of normal with spasm and tenderness; her straight leg raised produced some back pain; and she had continued symptoms of neck, back and shoulder pain. He opined that she had permanent injuries to her cervical spine, neck, right and left shoulder, and low back or lumbar spine. Dr. Reiner acknowledged that plaintiff had some pre-existing problems with her neck and back, which were improving as of the date of the accident. He opined that the vast majority of plaintiff's problems were attributable to the accident and that her shoulder injuries were entirely caused by the accident. The expert concluded that the injuries to plaintiff's spine and shoulder were permanent based on the MRIs and residual effect of the surgeries. He further concluded that the symptomatic soft tissue injury to plaintiff's low back was permanent despite not having a herniated disc there.

Dr. O'Shea testified that she first examined plaintiff in February 2004 and diagnosed that she was suffering from herniated discs in her neck caused by the accident, that she had failed to obtain relief from conservative treatment (chiropractic, epidural injections, and time), and that surgery was necessary. Dr. O'Shea described in detail the interior cervical diskectomy and fusion procedure she performed on plaintiff's neck at the C4-5 and C5-6 levels in May 2004. She opined that the herniated discs at C3-4 and C4-5 and the need for surgery at C4-5 and C5-6 were the direct result of the motor vehicle accident, and that plaintiff suffered a permanent injury and loss of function of her neck because she could not move properly. Dr. O'Shea discharged plaintiff from her care in October 2005.

Defense counsel's opening statement and cross-examination of plaintiff's witnesses focused on plaintiff's pre-existing injuries to her neck and back, and her lack of candor to Dr. Reiner and Dr. O'Shea about her prior medical history and treatment. On cross-examination, both of plaintiff's experts acknowledged that she did not disclose her pre-accident chiropractic treatment for neck and back pain, headaches, and tingling in her leg, or that she had reported the problems as commencing in November of 1996. Nor had plaintiff informed either doctor of her involvement in an episode in a bar in December 2002, in which she was thrown against a wall and complained to her family doctor of tailbone pain. Both of plaintiff's experts, however, testified that their subsequent knowledge of plaintiff's pre-accident complaints and chiropractic treatment did not affect their opinions regarding the injuries plaintiff sustained in the accident.

Defendant's expert, Dr. Friedenthal, who evaluated plaintiff on August 25, 2004, testified that the bulk of plaintiff's injuries were pre-existing conditions not caused by the accident, and opined that plaintiff did not suffer any permanent residuals as a result of the accident. He referenced the emergency room records, which did not mention any shoulder pain or problems; Dr. Varner's June 24, 2002 notes as only recording plaintiff's complaints of right shoulder discomfort; and the fact that plaintiff subsequently treated with a different chiropractor, Dr. O'Hay, rather than returning to Dr. Galgano. Dr. Friedenthal noted no muscle atrophy in plaintiff's upper arms or legs; found no muscle spasm; and his neurological examination was normal, as were all reflexes. He further noted that plaintiff's ranges of motion in her various limbs and joints were inconsistent; she moved through wider ranges of motion while he was "casually observing" her than when he was actually testing her for her range of motion. The expert interpreted the 2002 cervical MRI film to reflect degenerative disc changes rather than herniation, and found mild degenerative disc changes to C4-5 and minimal degenerative disc changes to C5-6 in the 2004 films. Dr. Friedenthal also did not observe any localized acute changes or "traumatically caused damage" to plaintiff's spine on the MRIs that he reviewed; rather, he noted the abnormalities and changes were consistent with the wear and tear of degenerative disc changes.

Dr. Friedenthal also challenged the causal relationship of plaintiff's shoulder injury to the accident. In his opinion, the fact that during arthroscopic surgery Dr. Reiner found a small glenoid labral tear, which was actually a "fraying" in the inner surface, but no rotator cuff tear, was consistent with degenerative changes in the shoulder rather than a traumatic injury. His finding of similar conditions in both shoulders reinforced this conclusion. Dr. Friedenthal thus opined that the shoulder surgeries were not necessitated by the accident.

At closing defendant challenged plaintiff's overall credibility and the causal relationship between the accident and plaintiff's alleged injuries, arguing that plaintiff's doctors' findings were based on an inadequate medical history. Defendant correctly stated the law that plaintiff had the burden of proving by objective, credible medical evidence that the accident caused a permanent injury. At no time did defendant argue that the jury needed to limit its award because only some of plaintiff's alleged injuries qualified under the verbal threshold statute; rather, defendant argued that plaintiff should not be awarded any damages because her injuries were not caused by the accident.

Plaintiff's summation emphasized that her complaints of neck, back and shoulder pain were made in a consistent pattern following the serious accident and that her experts' opinions were based on objective, credible evidence. Plaintiff's counsel explained the jury questions*fn3 as follows:

[T]he very first question that you're going to be asked to answer is did Milagros Clarke suffer a permanent injury proximately caused by the accident on June 19th, 2002, and the word proximate throws some people. It's a legal term, but proximate basically means --again, it's a very common sense kind of a term. Did the injury that we're talking about over here, the cervical sprain and strain which ultimately led to the surgery and to the treatment and so forth in the shoulder surgeries and so forth was that related to the car accident? Was there inefficiency (sic) between the injury, the accident, in other words, and the ultimate outcome, meaning the injury and then the operation and so forth?

If it makes sense to you from a common sense standpoint I'd submit to you that's what proximate cause means. It can't be something that happened so distant and so far away that there was no continual causal connection of the chain of events. This is exactly what happened. It's a chain of events from the car accident leading up to the surgeries.

The second question that you're going to have to answer is what amount of money will fairly and reasonably compensate Milagros Clarke for her injuries, and that's the one that's going to give a lot of people problems, because they're going to think to themselves, and you're going to go back there, I'll guarantee you, how do we figure out how much money to award in this case? It's not an easy task. As a matter of fact I think the Court will probably instruct you to the effect that this is a decision of the highest order of your experience; how do you equate pain and suffering with money.

He further explained that damages could be awarded as pain and suffering, disability impairment, and loss of enjoyment of life, and provided illustrative examples.

The trial judge then gave the following jury charge, which provided in relevant part:

In order to recover damages in this case, Milagros Clarke must prove by a preponderance of the evidence that she sustained injuries which fit into the category of permanent injury. In this case Ms. Clarke alleges that she suffered permanent injuries as a result of the motor vehicle accident. [Description of permanent injury under N.J.S.A. 39:6A-8].

In order to recover damages in this case the plaintiff must prove by a preponderance of the evidence that she sustained an injury which is permanent in nature within a reasonable degree of medical probability. The plaintiff must satisfy you that (sic) the neck, back or shoulder injury by objective credible medical evidence, that is the proofs must be both objective and credible . . . .

If you find the injuries caused by the accident do not come within this category your verdict must be for the defendant. If you find the injuries caused by the accident do come within this category your verdict must be for the plaintiff.

The judge further instructed the jury that "the defendant in this case is not responsible for any pre-existing injury of Milagros Clark" and thus it "may not award any money in this case for damages attributable solely to the pre-existing injury." The jury could, however, award damages to the extent of any aggravation of a pre-existing injury, with plaintiff bearing the burden of proving what portion of her condition was due to her pre-existing injury; or if plaintiff's pre-existing injury was asymptomatic at the time of the accident, but when combined with injuries incurred in the accident caused her damage, she was entitled to recover for the full extent of the damages she sustained.

The judge also instructed the jury on the law governing damages in the event it decided liability in favor of plaintiff, stating:

[I]f you find in favor of [plaintiff] she is entitled to recover fair and reasonable money damages for the full extent of the harm cause[d], no more, no less.

A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury resulting in disability or impairment of her faculties, health, [or] ability to participate in activities as a proximate result of the defendant's negligence.*fn4

The jury was then given the following verdict sheet, which stated:

Question No. 1

Did Milagros Clarke suffer a permanent injury proximately caused by the accident of June 19, 2002?


No ____

If you have marked "Yes" as to Question No. 1 and [sic] proceed to Question No. 2. If you have marked "No" as your answer, cease deliberations and return your verdict. Question No. 2 What amount of money if any will fairly and reasonably compensate Milagros Clark for her injuries?


Before the judge chose the alternate juror, there was a sidebar discussion, which was inaudible and could not be transcribed, in which the parties agree that plaintiff requested a Puso instruction that if the jury found plaintiff overcame the verbal threshold as to one injury, then she was entitled to have the jury consider in calculating non-economic damages all of her injuries proximately caused by the accident, regardless of whether any of the remainder independently satisfied the threshold. Puso, supra, 272 N.J. Super. at 293. According to the colloquy during plaintiff's motion for a new trial, plaintiff's counsel believed he also raised the issue as to whether the second jury interrogatory was misleading because it did not mirror the exact language of sample interrogatory, Category 6, Damages of the Model Jury Charge (Civil) 5.42, "Limitation on Lawsuit Option" (2005), which states, "What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident." (emphasis added).*fn5 The judge declined plaintiff's requests. Based on plaintiff's counsel's comments during argument on the new trial motion, it appears "the Court felt that the jury instruction was appropriate and complete" and that "the plural injuries [in the second jury question] was adequate to imply to the jury that they should consider all of her injuries." The jury returned a $75,000 verdict in plaintiff's favor.

In her motion for a new trial, plaintiff acknowledged approval of the instructions and verdict form at the charge conference, and the fact that there were no statements made during the entire case that the jury could only compensate plaintiff for permanent injuries or that it could not compensate her for all injuries. Plaintiff contended, however, that there was a "void," a "blank space as to what the status of the law was." Plaintiff argued that the lack of a Puso instruction expressly giving the jury direction to consider in its damage award injuries arguably insufficient to pierce the verbal threshold, coupled with a verdict sheet, which implied to the jury that only a permanent injury was compensable, misled the jury. According to plaintiff, the jury thus perceived that it could only compensate her for a permanent injury caused by the accident, and that was the reason it awarded her an excessively low verdict of $75,000, which shocks the conscience in a case in which there were multiple injuries and extensive spinal surgery.

The trial judge disagreed, noting:

[I]s there anything that [defense counsel] said that would lead them to believe that they were only allowed to compensate for one injury? Is there anything in the charge that I gave that told them they can only compensate for one injury and not two? You're saying that there's some confusion. I'm searching my own mind to come up with how anybody could possibly be confused when they were asked to compensate her for her injuries. And I spent an exhaustive amount of time talking about her pain, her suffering, her loss of enjoyment of life. All of those things go to the panoply of injuries that she suffered as a result of the accident.

And there was no distinction between one permanent injury or another. They were spoken to globally about this wom[a]n, how she was before, and how she was after. . . .

I don't think that there was an issue in this particular case that would cause anyone to be confused as to what their obligation was. They were instructed in regards to their obligation. They were certainly told in summation. And the entire trial revolved around a series of injuries that the plaintiff suffered and how it impacted her life.

I just -- I don't have any hesitation in coming to the conclusion that the jury weighed the impact of the accident on the plaintiff and compensated her for what they felt was appropriate for her injuries. I don't see that they picked and chose one injury, as opposed to another.

The judge denied plaintiff's motion, finding the jury had appropriate information, adequate instructions, and the interrogatories on the verdict sheet were not in any way misleading. He concluded that, given the circumstances of the trial, the injuries that were alleged, and the arguments which were made to the jury and the charge itself which instructs the jury on what their obligation is, it's hard for this Court to come to the conclusion that any -- any person on that jury could have been laboring under the impression that they were not permitted to compensate her for all of her injuries.

Plaintiff asserts the identical arguments on appeal. We are unpersuaded by plaintiff's arguments essentially for the same reasons articulated by Judge Wellerson. Our Supreme Court has consistently instructed that "[j]ury charges must outline the function of the jury, set forth the issues, correctly state the applicable law in understandable language, and plainly spell out how the jury should apply the legal principles to the facts as it may find them[.]" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)). The role of an appellate court in reviewing a jury verdict, instruction, and verdict sheet, is also well-defined:

As a general rule, an appellate court will not disturb a jury's verdict based on a trial court's instructional error "where the charge, considered as a whole, adequately conveys the law and is unlikely to confuse or mislead the jury, even though part of the charge, standing alone, might be incorrect." Fischer v. Canario, 143 N.J. 235, 254, 670 A.2d 516 (1996). We apply that same standard when evaluating the adequacy of a jury's interrogatories or verdict sheet.

Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 467-68, 744 A.2d ll86 (2000). [Ibid.]

We have to consider the instructions and verdict sheet in the context of this case. Plaintiff's position was that she sustained a variety of serious injuries when she was rear-ended by a car traveling 30 mph. She made no attempt to differentiate between the type of injuries she sustained as to whether they would or would not satisfy the verbal threshold. Moreover, defendant never argued that plaintiff was to be limited in her proofs as to any claimed injuries because any such injury would not have satisfied the verbal threshold, nor did he argue that plaintiff could only recover damages for those injuries which individually may have satisfied the verbal threshold. Rather, the theme of defendant's case was an attack on plaintiff's overall credibility and that plaintiff should not be awarded any damages whatsoever because her injuries were not caused by the accident. The jury instructions, which were approved by both counsel, reflected the parties' theories of the case advanced at trial. Unlike the defendant in Espinal v. Arias, 391 N.J. Super. 49, 64 (App. Div. 2007), defendant in the present case did not argue that the jury should have been instructed to "parse[] out" all non-permanent injuries, and not consider them in arriving at its verdict. And as plaintiff acknowledged during argument on the new trial motion, no such instruction was given. In fact, Judge Wellerson gave the same instruction on non-economic damages as the trial judge did in Espinal, Model Jury Charge (Civil) 6.11F, that a "plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury . . . ." Id. at 65. In Espinal, in which we held that the Puso principle applies to AICRA cases, we found this charge to be "consistent with an injured party's ability to recover for all non-economic damage sustained as a result of an automobile accident, both permanent and temporary, so long as one of the enumerated injuries has been met to bring the lawsuit in the first instance." Id. at 65-66.

We are satisfied the jury charge, when evaluated in its entirety, "set forth an understandable and clear exposition of the issues" in this case. Campos v. Firestone Tire and Rubber Co., 98 N.J. 198, 210 (1984). The court instructed the jury that in order to prevail, plaintiff had to establish that she sustained permanent injuries as a result of the automobile accident, and if the jury so found the verdict must be for the plaintiff. That charge tracked verbatim the language of the Model Jury Charge (Civil) 5.42. The judge also tailored the charge to the facts of the case, specifically informing the jury that plaintiff had the burden to prove a "neck, back, or shoulder" injury that was permanent in order to recover damages. The charge adequately conveyed the law and did not give the misimpression to the jury that each and every claimed injury had to satisfy the verbal threshold in order to be compensable.

The jury verdict sheet was neither misleading nor confusing. The first question asked whether plaintiff suffered "a permanent injury" in the accident, phrased in the singular. Thus, the jury only needed to find one of the claimed injuries to vault the verbal threshold requirement. If it did so, it would then proceed to the second question and render a monetary award. The jury was clearly not persuaded by defendant's causation defense as to all of her injuries because it answered the first question in the affirmative; thus, it found at least one permanent injury caused by the accident. The second question, which solicited a monetary award of damage, invited an award of damages for plaintiff's injuries in the plural. The jury had never been told that it was limited to awarding damages only for those injuries which it found specifically satisfied the verbal threshold, i.e., permanent injuries. On the contrary, the court specifically instructed the jurors of their obligation to award "fair and reasonable compensation for any permanent or temporary injury." The word "all" was an implicit modifier of "injuries;" in the context of the presentation and instructions in this case, there would be no reason for the jurors to interpret this question as limiting the type of injuries for which they could compensate plaintiff.

The timing of plaintiff's request also reinforced the propriety of the trial court's ruling. Plaintiff requested the additional charge and modification of the jury question after summations, conclusion of the jury instructions, and distribution of the jury verdict sheet. On balance, bringing this new issue into the case at such a late point in the trial could have unfairly emphasized the damage component and prejudiced a substantial right of defendant.


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