On appeal from the Superior Court of New Jersey, Law Division, Union County, L-5640-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, R. B. Coleman and Lyons.
Defendant New Jersey Manufacturers Insurance Company (NJM) appealsfrom a judgment in favor of plaintiff Charles Hinton for injuries plaintiff alleged he suffered as a result of a car accident in Newark on January 21, 2001. The matter was tried on damages only, liability having been conceded. Factually, a motor vehicle driven by defendant William Valasquez-Molina, who was not insured at the time, collided into the rear of the vehicle driven by plaintiff. Consequently, NJM, plaintiff's uninsured motorist insurance carrier, was joined as a defendant to the litigation, and the matter was tried in Union County on May 9, 10 and 11, 2006. On May 11, 2006, the jury returned a verdict in favor of plaintiff in the amount of $150,000. Because the policy limit of plaintiff's uninsured motorist coverage with NJM is $100,000, the award was fixed at that amount.
NJM filed a motion for a new trial, which was denied. It now appeals from that denial. We affirm.
After the accident, plaintiff was transported to the University of Medicine and Dentistry emergency room in Newark where he complained of neck pain. X-rays did not reveal any fractures, so plaintiff was treated and released the same day. From January 4, 2001 through July 3, 2001, plaintiff received chiropractic treatments from Dr. Thomas Hary, who ordered MRIs of the cervical and lumbar spine. The MRI of the cervical spine revealed a "posterocentral disc herniation, C5-C6 with cord compression." The radiologist's impression of the MRI of the lumboscral spine was "disc dessication, L4-L5 and L-5.S1." MRI testing and EMG/NCV studies were conducted on the plaintiff; these were "suggestive of left-sided C5-C6 radiculopathy." In January 2003, plaintiff saw a neurologist, Dr. Charles Kalko, now deceased. According to plaintiff, Dr. Kalko recommended surgery for his neck and told him that he could become paralyzed if he did not have it.
On September 11, 2003, at the request of his attorney, plaintiff consulted with Dr. Douglas Bradley, an orthopedic surgeon at the Back Institute of Union. Dr. Bradley suggested a second cervical MRI, which was done on October 27, 2003. It showed a large central left-sided herniated disc at the C5-C6 level. As plaintiff wished to consider something other than surgery, he was referred to Dr. Yu, a pain management specialist. On March 18, 2004 and June 23, 2004, plaintiff received epidural injections in order to better cope with the pain. Plaintiff's last visit with Dr. Bradley was May 13, 2004, two years before the trial.
In this appeal, defendant makes the following arguments:
POINT I: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL WHEN EVIDENCE OF ALCOHOL INTOXICATION WAS INTRODUCED IN THE DAMAGES ONLY TRIAL.
POINT II: THE TRIAL COURT ERRED IN PERMITTING THE PLAINTIFF'S ATTORNEY OVER OBJECTION OF DEFENSE COUNSEL TO INTRODUCE THE HEARSAY OPINIONS OF DR. CHARLES KALKO.
We have considered defendant's arguments in light of the pertinent facts and applicable law. We conclude the trial court properly denied the request for a mistrial; and while we agree with defendant that the hearsay opinion of Dr. Kalko should have been excluded, we are convinced the introduction of that hearsay opinion does not warrant a reversal.
We begin with a statement of the controlling standards. A trial court shall grant a motion for a new trial, only "if, 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." R. 4:49-1(a). Where, as here, the trial related solely to damages, the moving party must demonstrate that the quantum awarded was plainly in error or shocking to the judicial conscience. Mahoney v. Podolnick, 168 N.J. 202, 229 (2001). A jury verdict for damages should not be disturbed unless it is so disproportionate to the injuries and residual disabilities that it shocks the conscience and is clearly against the weight of the evidence. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). "[A] trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Ibid. "'The standard of appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its feel of the case, including credibility.'" Ibid. (internal quotations omitted) (quoting Feldman v. Ledarle Labs., 97 N.J. 429, 463 (1984)); see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
Defendant contends that he is entitled to a new trial because plaintiff testified regarding his impression that Valasquez-Molina was drunk at the time of the accident. More specifically, plaintiff testified that, upon observing defendant after the accident, "I approached the driver of the other car, saw that he was extremely drunk, and motioned him to pull over. Even as he was pulling over, his car tapped mine again, just to say how drunk he really was." At that point, defense counsel requested a sidebar conference at which he objected that plaintiff twice ...