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Leszkowicz v. Lupinaccio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 23, 2008

DIANE M. LESZKOWICZ, PLAINTIFF-APPELLANT,
v.
EDWARD LUPINACCIO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6549-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2007

Before Judges Cuff and Lihotz.

Plaintiff Diane Leszkowicz was injured in a motor vehicle accident on June 7, 2003. A jury awarded her $5,000 for pain and suffering and $30,000 for lost wages. She appeals from the damages verdict and the order denying her motion for a new trial on damages or an additur. We affirm.

Plaintiff married defendant Edward Lupinaccio in April 2003. On June 7, 2003, plaintiff was seated in a pickup truck waiting for defendant to return from fueling his tractor-trailer. As defendant attempted to park the tractor-trailer, he struck the front right side of plaintiff's pickup truck. Although plaintiff wore her seatbelt, she was tossed around the cab of the vehicle.*fn1

The following afternoon, plaintiff sought medical treatment at the emergency room of her local hospital. She reported headaches and pain in her neck and back. No X-rays were taken at that time. The hospital staff gave plaintiff a prescription and advised her to seek follow-up care with her physician. The next day, plaintiff contacted an attorney who referred her to Dr. Enrique Hernandez.

On her initial visit to Dr. Hernandez, a neurologist, plaintiff complained of headaches, neck and back pain. She also described pain that extended from her neck into her arms and from her low back into her legs. On examination, Dr. Hernandez noted tenderness to palpation in the muscles of her neck and low back. He found a thirty percent loss of mobility in her neck. He rendered a diagnosis of contusion injuries of the neck and low back. Plaintiff received conservative treatment, including heat and electrical stimulation treatments, from Dr. Hernandez until she moved to Florida on June 23, 2003.

Following her move to Florida, plaintiff sought treatment from a chiropractor, a neurologist and an orthopedic surgeon. During 2004, a physician performed two diskograms on her low back. Plaintiff testified that the first diskogram largely resolved the pain and discomfort on the right side of her low back and right leg. The second diskogram on the left side of her low back was not as successful. Another physician administered an epidural to address the low back pain. Plaintiff testified that this treatment did not resolve all of her complaints of pain. Plaintiff obtained physical therapy to address her persistent low back problems. Plaintiff also consulted another physician to address the pain and lack of mobility in her neck. This physician performed an endoscopic procedure that provided limited relief.

The evidence adduced at trial presented a clear conflict about whether the pain and limitations experienced by plaintiff following the June 2003 collision were attributable to herniated disks in the cervical and lumbar regions or pre-existing degenerative osteoarthritis. The evidence also revealed disputes whether the pain and limitations were permanent, whether further surgical procedures would be required, and whether the injuries had improved or resolved over time. Dr. Hernandez testified that plaintiff suffered cervical disk herniations at four levels, C3-C4, C4-C5, C5-C6 and C6-C7. He also identified herniations at L4-L5 and L5-S1. These injuries were caused by the trauma experienced in the collision. By contrast, Dr. James Charles testified that no radiographic study revealed any herniation in the cervical or lumbar regions. He opined that the various studies depicted degenerative osteoarthritic changes that became symptomatic due to trauma. Dr. Hernandez testified that plaintiff was totally and permanently disabled. Dr. Martin Sorger, defendant's expert witness, opined that plaintiff suffered some disability following the accident, but her current complaints and problems were related to pre-existing arthritis.

On appeal, plaintiff argues that the $5000 award for disability, pain and suffering is so inadequate and against the weight of the evidence that she is entitled to a new trial. She also contends that the award of $30,000 in lost wages is inconsistent with the former award and emphasizes the manifest injustice of the verdict.

A trial court may grant a motion for a new trial "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); Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). In correcting any clear error or mistake of the jury, the trial judge may not substitute its judgment for that of the jury merely because he would have reached the opposite conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Thus, a trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)); Baxter, supra, 74 N.J. at 597-98.

Additionally, "a trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock the conscience and to convince him that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596. The presumption of correctness of a verdict by a jury is based upon centuries of common law wisdom merged into our constitutional framework. Id. at 598. In assessing whether a quantum of damages is excessive or inadequate, a trial court must consider the evidence in a light most favorable to the prevailing party in the verdict. Caldwell, supra, 136 N.J. at 432.

This court will not reverse a trial judge's decision that the jury verdict is against the weight of the evidence "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Caldwell, supra, 136 N.J. at 432. Therefore, "'[t]he standard for 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.'" Caldwell, supra, 136 N.J. at 432 (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)); Johnson, supra, 192 N.J. at 282; see Dolson, supra, 55 N.J. at 7 (noting deference should be made for criteria not transmitted by the written record). Beyond these "intangibles," this court is to make its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979).

"Additur refers to '[t]he power of a court, on motion for a new trial due to inadequate damages rendered by jury verdict, to require the defendant to consent to an increase to a stipulated amount of the award as a condition for denial of the motion for a new trial . . . .'" Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 n. 2 (2001) (quoting S.T. Rayburn, Statutory Authorization of Additur and Remittitur, 43 Miss. L.J. 107 (1972)). Additur can only be ordered when a new trial on the damages issue would be warranted. Pressler, Current N.J. Court Rules, comment 3 on R. 4:49-1 (2008).

Basing an order for a new trial or an additur on an alleged inconsistency in the verdict between the award for pain and suffering and the award for lost wages is a tenuous proposition. The quantum of damages for pain and suffering is not subject to a formula. Johnson, supra, 192 N.J. at 279-80. Jurors are told they may consider various factors but are also instructed to resort to their experience and judgment in fashioning such awards. Model Jury Charge (Civil), 8.11E, "Damages Charges-General: Disability, Impairment, Loss of Enjoyment of Life, Pain and Suffering" (1996). Assessing whether the award is adequate and then whether it is inherently inconsistent with another portion of the award, such as lost wages, injects further uncertainty. This assessment is particularly uncertain when the nature and extent of any injury and the credibility of plaintiff's complaints of pain and suffering, limitations or disability are hotly contested.

Here, the jury apparently accepted that plaintiff was unable to be gainfully employed while she lived in Florida. Plaintiff presented substantial testimony of extensive treatment she received in the first year she lived in Florida. At times, she received physical therapy three times a week. The jury also apparently discounted the degree of pain and suffering and disability reported by plaintiff. We have noted that such decisions by a jury are not necessarily inconsistent. Recently, we observed that

In fitting circumstances, a jury might well -- and quite rationally -- determine, on the one hand, that a showing of medical causation had been made and that a plaintiff's loss of income was a direct consequence of the accident, while at the same time concluding that the plaintiff had not discharged his burden of proving the pain and suffering adequate to support a damages verdict therefor. In order to determine whether an apparent inconsistency was justified by the record, we must examine and evaluate the proofs for that purpose in the light of the arguments advanced by the parties. [Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 528 (App. Div.), certif. denied, 180 N.J. 355 (2004).]

In Love, the jury awarded plaintiff $65,000 in lost wages and nothing for pain and suffering. Id. at 527. We held that this verdict could not be reconciled with the evidence adduced at trial. Id. at 532. We observed that the jury had ample reason to be skeptical of plaintiff's complaints of "lasting injury or long-term pain and suffering," ibid.; however, having found medical causation, there had to have been some period of discomfort that warranted some compensation. Ibid. Under those circumstances, we held that the awards were fatally inconsistent and a new trial was required. Id. at 532-33.

Here, as in Love, there was ample evidence from which the jury could conclude that plaintiff was injured in the June 2003 accident, that she experienced some measure of discomfort from those injuries, that she required treatment for those injuries, and that the treatment that provided some relief made it practically difficult to work. The jury also had ample evidence from which it could conclude that plaintiff exaggerated her discomfort and disability and/or that the bulk of her discomfort and disability was attributable solely to her pre-existing degenerative osteoarthritis.

We cannot overlook that plaintiff's expert physician opined that plaintiff was permanently disabled and unable to work. Dr. Hernandez was not aware that plaintiff had returned to work as an assembler in December 2005 and had continued to work uninterrupted through trial. He attempted to explain that patients do not always follow their physician's advice, but the jury could have readily found this explanation unconvincing. We also cannot overlook the videotape shown by defendant at the close of plaintiff's cross-examination that showed her engaging in activities without any apparent difficulty that she professed she could not do.

Therefore, based on this record we find no fatal inconsistency that requires a new trial or an additur. We, therefore, affirm the verdict and the order denying plaintiff's motion for post-judgment relief.

Affirmed.


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