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Sthol v. Zglobicki


January 24, 2008


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-2228-04.

Per curiam.


Argued: November 15, 2007

Before Judges Axelrad, Sapp-Peterson and Messano.

In this motor vehicle accident case, following a jury verdict in favor of plaintiff John Stohl*fn1 in the amount of $750,000 and his wife Mary on her per quod claim in the amount of $250,000, defendant*fn2 appeals several of the trial court rulings and denial of his motion for a new trial. More particularly, defendant argues: (1) the jury verdict is against the weight of the evidence and constitutes a miscarriage of justice under the law; (2) the court erred in failing to strike or otherwise cure plaintiffs' counsel's comments during opening and closing arguments suggesting a correlation between the damage to the vehicles and plaintiff's injuries; and (3) the court erred in denying defendant's motion for a new trial pursuant to Rule 4:49-1, and declining to view the post-trial surveillance videos of plaintiff and denying defendant's motion to vacate judgment pursuant to Rule 4:50-1(b) and (c). We reject each of these arguments and affirm.

Plaintiffs filed a personal injury suit for damages resulting from an August 19, 2002 motor vehicle accident. On the morning of trial, defendant conceded liability and chose to defend the case solely on the issue of the "Limitation of Lawsuit Threshold." Plaintiffs testified as to the events on the day of the collision, the injuries suffered by plaintiff and the effects those injuries had on him and his family. Both parties presented testimony of board certified physicians who examined plaintiff and reviewed the records of his injuries and treatment following the collision. Plaintiffs' expert Dr. Martin Riss opined there was substantial objective evidence that plaintiff had suffered a permanent injury as a result of the accident. The defense expert Dr. Michael Gordon, however, disputed causation of plaintiff's medical conditions and opined those related to the accident were not permanent.

The following facts were developed at trial on November 14 and 15, 2006. While thirty-six-year-old plaintiff was driving his 1987 Nissan Pulsar NX sports car near the intersection of Leesville and Freehold Roads in Jackson Township on August 19, 2002, he was broadsided on the driver's side by defendant, who drove his Mercury Grand Marquis through a stop sign and blinking red light. Plaintiff was launched into the door and towards the open "T" tops of his car. The force of the impact pushed plaintiff's car across the intersection and into a pole on the opposite side of the road, totaling the vehicle. Emergency personnel removed plaintiff from his vehicle and transported him to the Kimball Medical Center emergency room. Plaintiff was treated for neck, lower back, and left shoulder pain. X-rays were negative for fracture.

The next day plaintiff began treating with Dr. Mark Feldman, an orthopedic surgeon, complaining of numbness in his neck and left shoulder, no feeling in the "little fingers" of his left hand, and back pain. He treated with Dr. Feldman through January 2003, during which he was supplied a lumbar spine brace and prescribed pain killers, sleeping pills, and anti-inflammatory medications (Percoset, Valium, Lidocaine patches, OxyContin, and Vioxx). Plaintiff then pursued a two-month period of aggressive physical therapy and continued medication with another orthopedic surgeon, Dr. Aldo Iulo, which resulted in no improvement to his cervical, lumbar, and left shoulder conditions. From July 2003 until the winter of 2004, plaintiff was under the care of Dr. John Petrillo, an orthopedic surgeon, who provided him with more therapy, medications, and epidural injections. In June 2004, plaintiff sought treatment with Dr. Jeffrey Petersohn, a pain care specialist, who provided him with more injections, therapy, and medication.

Plaintiff described in detail the daily pain, numbness and weakness he experienced since the accident and recounted for the jury the numerous diagnostic tests and treatment he underwent, unsuccessfully, in an effort to resolve the injuries sustained in the automobile accident. For example, plaintiff explained that several of the medications gave him "really bad mood swings"; he was physically unable to work for six months, which resulted in money crises and arguments with his wife; he had to sleep in the other room because he and his wife were awakened several times a night by his jerking arm movement when it alternated numbness then tingling; and the symptoms and pain abated very little from the date of the accident. Plaintiff testified the injuries he sustained from the accident kept him from many of his former regular activities, such as archery/bow hunting, carpentry, motor biking, significant home redecorating and repairs, and yard work; he could no longer walk long distances or sit still very long; and his activities with his wife and ten-year-old daughter were severely limited. Plaintiff further explained his injuries prevented him from returning to his employment as a union floor installer. Fortunately, however, plaintiff was able to open his own floor covering business in which he dealt with clients and public relations instead of performing physical work, providing flooring to malls from New York to Maryland, and earned substantially more money. Accordingly, plaintiff made no wage loss claim.

Plaintiff's wife of eighteen years testified about how the accident impacted the parties' family life. Their activities were significantly curtailed, plaintiff was unable to make repairs and perform work around the home that he had previously enjoyed, he became short-tempered and his demeanor changed drastically, he was less patient with their daughter and less able to help her with her homework, their sleep was disrupted, and their marriage became strained. Mary also testified that prior to the accident plaintiff was an avid hunter but he had not gone hunting since the accident because it entailed alot of walking and tree climbing.

Dr. Riss testified he was retained by plaintiffs' counsel to review plaintiff's treatment records and he examined plaintiff on June 11, 2006 for the purpose of this litigation. Dr. Riss summarized plaintiff's medical treatment following the accident, detailing in particular the objective medical tests, and testified about the results of his examination. He noted that an MRI of plaintiff's lumbar spine performed on December 11, 2002 revealed a straightening of the normal lumbar lordosis, a right lateral annular tear with disc protrusion into the right neural foramen, creating moderate stenosis at L5-S1 and retrolisthesis (shifting of the spine) and straightening at the L5-S1 with a right lateral disc protrusion. Dr. Riss explained that plaintiff's complaints of pain, numbness, tingling, and pressure and findings of pain down nerve patterns reflected in Drs. Feldman and Iulo's records were consistent with the objective results of a protruding disc pressing on the nerve of his lower spine.

Dr. Riss then read and explained the report of the results of an EMG performed on plaintiff on March 11, 2003. He testified that the test was inconclusive, [as] the specialist found "[m]ild left C7 and/or C8 radiculopathy possible but cannot be confirmed on EMG testing due to the persistent and diffuse left cervical muscular spasm." Plaintiffs' expert explained that the specialist did not find an electrical defect or the existence of left carpal tunnel syndrome in the lower neck but made objective findings of left cervical muscular spasm with the possibility of left-sided thoracic outlet syndrome. According to Dr. Riss, plaintiff's complaints of pain and numbness traveling down his left arm and fourth and fifth fingers of his hand corresponded with radiculopathy at C7-8. The MRI of plaintiff's cervical spine performed on July 30, 2003 revealed mild left neuroforaminal stenosis, C5-6 disc bulges, left vertebral spurring and left neuroforaminal stenosis.

Dr. Riss recounted plaintiff's complaints to him approximately two years after the accident regarding pain in his neck, left shoulder and lower back; numbness of the fourth and fifth digits of his left hand; pins and needles down his left arm; and the pain in his back extending into the back of his left thigh and calf. Plaintiff also complained of difficulty sitting, standing, bending, lifting, and raising his left arm; an increasing inability to turn his neck; increased pain during cold weather; and muscle spasms in his neck and shoulder. Plaintiff had further explained to Dr. Riss that the pain would wake him up at night and he was stiff in the morning, and he had to use his TENS electrical unit three times a day on his neck, left shoulder and back for relief. Dr. Riss recounted that plaintiff also informed him that he "could no longer bow hunt, he couldn't apply any tension to his left shoulder, he couldn't take long walks [and] [e]verything he did, he only did for short periods of time [and] [h]e couldn't do things on a sustained basis."

Dr. Riss found tenderness to palpation and spasm in examining plaintiff's cervical spine. His examination disclosed a significant restriction in the range of motion of plaintiff's neck (40° downward instead of 80°, 25° extension instead of 45°, and 45° rotation instead of an ability to look over his shoulder). The doctor further noted that plaintiff's shoulder lost 35° in its ability to flex and plaintiff also demonstrated a clear-cut impairment in the range of motion on his back. Dr. Riss testified that he "noted on [his] examination that throughout the time, [plaintiff] was holding his left arm against his body to protect it." He also noted in his examination that he found plaintiff's strength was "markedly diminished on the left as compared to the right and that [plaintiff is] left hand dominant." Dr. Riss explained that a left-handed person's left extremities would mainly be stronger than the right and attributed the significant loss of strength in plaintiff's dominant hand and arm to the accident.

Dr. Riss concluded that, as a result of the accident, plaintiff suffered a cervical sprain, bulges throughout the cervical spine, radiculopathy of C7-8 (nerve pattern of pain and numbness into his hand, fourth and fifth finger), left shoulder sprain and possible tear, lumbosacral sprain, retrolisthesis, muscle spasm and disc protrusion, and right sleeve cyst root at L5-S1. He opined that the injuries plaintiff sustained in the accident were permanent, noting that four years later, plaintiff still had "spasm," "that serious tightening of the muscles," "a very considerable impairment in the range of motion," and "numbness and patterns going into his arm that haven't deviated from the very beginning." The doctor reiterated that plaintiff had made an attempt at every treatment, including physical, orthopedic and chiropractic therapy, as well as injections, but nothing worked. Dr. Riss was of the opinion that plaintiff had reached "maximum medical improvement," was not a candidate for surgery, and was "not going to get any better with any other treatment." Thus, although plaintiff could be prescribed anti-inflammatory drugs and pain relief medication, "there is nothing to offer him that's going to make [his injuries] go away."

Dr. Gordon testified that when he examined plaintiff on behalf of the defense on October 5, 2005, plaintiff did not complain of back pain; he complained of neck pain radiating down his entire spine into his left arm and trapezius on a constant basis, with lack of sensation and numbness in the two small fingers of his left hand. Plaintiff rated his pain as a six to eight out of ten. The defense expert explained the tests he performed and his findings of normal range of motion of neck, no evidence of spasm or pinched nerve, no evidence of motor weakness, and normal reflexes. Dr. Gordon showed the jury MRI films of plaintiff's cervical and lumbar spine and shoulder, opining there was no impingement or pressure at any of the levels of the cervical spine where the nerve root travels to the shoulder, arms, and hands. He further explained the March 2003 EMG test was not considered valid as plaintiff had some spasm in his neck and stated that a March 8, 2004 EMG was normal. Dr. Gordon was of the opinion there was not anything on the MRI, EMG or x-rays of plaintiff that would point to a concrete cause for his subjective complaints. The defense expert diagnosed plaintiff with degenerative disc disease of the cervical and lumbar spine not related to the accident; and cervical and lumbar sprains and a contusion of the left shoulder attributable to the accident, but which were not permanent conditions.

On cross-examination, plaintiffs' counsel emphasized Dr. Gordon's testimony that his physical examination of plaintiff had revealed limited range of motion in the left shoulder. Dr. Gordon also testified he had noted that during parts of the examination, plaintiff favored his left arm and held it to his side in a protective manner, consistent with his behavior during the emergency room treatment and his examination by Dr. Markowitz on March 11, 2003 in connection with his MRI test. Plaintiffs' counsel emphasized Dr. Gordon's contrary interpretations of the MRI and diagnoses from plaintiff's treating physicians, specifically, Dr. Iulo's belief that the L5-S1 disc protrusion reflected in the lumbar spine MRI was the cause of plaintiff's low back and buttock pain, and Dr. Petrillo's diagnosis of cervical radiculopathy with left rotator cuff tendonitis.

In summation, defense counsel argued that based on objective medical tests as explained by Dr. Gordon, plaintiff suffered only relatively minor injuries in the collision that were inconsistent with his claims, and that plaintiff was not entitled to a damage award because such injuries were not permanent. He also posited why Dr. Gordon was a more experienced and credible expert.

Plaintiffs' counsel argued the objective proof of permanency sufficient to overcome the verbal threshold includes physical examination as well as medical testing. He recounted plaintiff's complaints and summarized the multiple objective findings of plaintiff's treating physicians that supported Dr. Riss' conclusion of causation and permanency.

The jury unanimously found that plaintiff sustained a permanent injury as a result of the accident, and by a five to one vote awarded plaintiff $750,000 in damages for pain and suffering, disability and impairment, and loss of enjoyment of life due to those injuries, and $250,000 to his wife on her loss of consortium claim.

On November 29, 2006, defendant filed a motion for a new trial, R. 4:49-1, alleging the verdict was against the weight of the evidence and a miscarriage of justice in that plaintiffs did not meet the burden of proof to overcome the verbal threshold, the objective credible medical evidence did not support the award, and plaintiffs' counsel's comments improperly connecting the force of the impact and plaintiff's injuries led to jury speculation and an excessive verdict. On January 3, 2007, defendant filed a supplemental certification and brief seeking to vacate the verdict on the grounds of newly discovered evidence and fraud on the part of plaintiff, pursuant to Rule 4:50-1(b) and (c), based on post-trial video surveillance tapes of plaintiff taken on six days in late December. Defendant noted that throughout the trial plaintiff held his left arm to his side as if he could not move it, even when he walked around the courtroom, that there was significant testimony by plaintiff and Dr. Riss about plaintiff's impairment in the range of motion and difficulty using his left arm, and that he could no longer bow hunt or do things on a sustained basis. According to defense counsel, the surveillance tapes showed plaintiff "using his left arm without any problem, doing such things as washing the windows of his car, carrying a Shop-Vac, doing a 'jump shot' with a bottle, carrying sandbags, and going hunting with a weapon case apparently with intent to use a tree stand [and] . . . hunting for several hours." According to defendant, he was not able to anticipate plaintiff's trial conduct, the surveillance tapes of plaintiff's conduct clearly and materially differed from the trial testimony of plaintiff and his expert and plaintiff's behavior at trial, the new evidence was material to the issue of plaintiff's credibility and the permanency of his injury, was discovered since the trial and based on plaintiff's conduct subsequent to his trial testimony, and was of the nature that it would have likely changed the result of the verdict.

In response, plaintiffs' counsel noted several of his observations of the videotapes, including the following: plaintiff used his right, non-dominant hand to wipe the windows of his car; the Shop-Vac was a mini-version weighing about seven and one-half pounds, which plaintiff only carried from his garage to his adjacent front door; plaintiff merely threw an empty plastic soda bottle towards a nearby trash can; and plaintiff lifted the "corn" bags with his right hand and carried them over his right shoulder. Plaintiffs' counsel further referenced plaintiff's and Dr. Riss' consistent testimony that plaintiff could no longer bow hunt because he could not apply tension to his left shoulder and asserted that a review of the weapons case shown in the video revealed it was a shotgun case that plaintiff was carrying in his right hand. Plaintiffs claimed the video was thus not inconsistent with the trial testimony as plaintiff's physical inability to pull back a hunting bow string had nothing to do with the ability to fire a shotgun.*fn3 Plaintiffs also pointed to other aspects of the video that showed lack of use or awkward use of plaintiff's left arm and hand consistent with the trial testimony. Plaintiffs argued the videotapes were, at best, impeaching and cumulative of the testimony of Dr. Gordon who opined that plaintiff was not seriously injured and was exaggerating his injuries; defendant could have performed surveillance of plaintiff's activities during the two years of litigation prior to trial; and there was nothing in the videos that would change the result of the trial. Plaintiffs emphasized that defense counsel chose not to question plaintiff about his trial conduct, and thus deprived him of the opportunity to explain whether he routinely held his left hand to his body or whether there were extenuating circumstances. Plaintiffs further asserted the public policy arguments of fundamental fairness to plaintiffs and finality in trials.

Judge O'Brien denied defendant's motion for a new trial, declined to view the post-trial video surveillance tapes, and denied defendant's motion to vacate the judgment on the grounds of newly discovered evidence or fraud based on the tapes. The judge considered and rejected defendant's arguments in support of his motion for a new trial that the verdict was against the weight of the evidence in that the verbal threshold was not satisfied and the money judgment was excessive. Judge O'Brien expressly found no error in plaintiffs' counsel's comments regarding the impact of the collision. He summarized the trial testimony, noting it was within the province of the jury to credit the testimony of either doctor and determine the credibility of plaintiff and his wife, who he observed were both good witnesses. Judge O'Brien concluded this was a fair trial, there was no miscarriage of justice, and he "would be acting in contravention of the law if [he] were to set aside [the] verdict and give a new trial."

Judge O'Brien then analyzed defendant's motion to vacate the judgment under Rule 4:50-1, determining it was not necessary to view the video surveillance tapes which had been characterized in writing by both counsel. The judge rejected defense counsel's claim that he was unable to anticipate plaintiff's trial conduct of holding his left arm to the front of his body, stating:

The fact that the plaintiff favored his arm at trial was nothing new. The Court's extensive review of the trial medical testimony reveals that the plaintiff has complained of a left arm injury since the motor vehicle accident. Plaintiff has consistently alleged that his left arm would not function normally. He held his arm to his body throughout his treatment. Treating and I.M.E. doctors witnessed this.

Plaintiff produced a ton of medical testimony and treatment respecting the arm. It is a little incredulous for the defense to say it is shocked by the plaintiff's claims and demonstration of a nonfunctioning left arm at trial. What the plaintiff displayed at trial was consistent with the claims he had made throughout the case.

The judge further commented that it was first learned post-trial that the defense conducted pretrial surveillance of plaintiff, did not disclose it to plaintiffs' counsel and declined to use it at trial.*fn4 Noting that the defense had ample opportunity to videotape plaintiff during the two-year pretrial period, and, in fact, had done so, and having waived its rights to conduct pretrial surveillance and present it at trial, the judge concluded that defendant could not admit "newly created evidence" at a post-trial proceeding. Judge O'Brien stated:

It is reported to the Court now that the defense had a surveillance video of the plaintiff pretrial but declined to use it at trial. This video was not mentioned during the trial. Nonetheless, the defendant if unhappy with the contents of the video could have surveilled the plaintiff again pretrial if it felt he was perpetuating a fraud. Defense elected not to do that, but now wants to surveil post Judgment.

The post Judgment surveillance does not really constitute "newly discovered evidence," since the evidence could have been secured pretrial. Rather the evidence is "newly created evidence." The defense learned nothing at trial that it didn't already know pretrial in that plaintiff's lack of left arm function was presented from the date of the motor vehicle accident. The defense's failure to surveil plaintiff pretrial precludes its surveilling the plaintiff post Judgment.

The Court does believe it is against the public policy to surveil in these circumstances [a] plaintiff post Judgment who has received a substantial verdict. It would open Pandora's box. Would every jury verdict be subject not only to a new trial motion, but also a 4:50-1 motion to vacate Judgment and yet another ground for appeal[?] For how long post Judgment would the plaintiff be subject to surveillance; one month, one year, five years? How about the fact that people's medical conditions can and do sometimes improve?

At any rate, the defense was not surprised here and could have surveilled all it wanted pretrial. Defense waived its rights to surveil pretrial. That was voluntary.

Judge O'Brien also considered defendant's assertion of fraud, including plaintiff "holding his left arm to his body to give the jury the perception that his arm was frozen somewhat, that he's crippled, that he can't function at all with his arm." The judge commented about his observation that "either this guy is Academy Award material or his left arm is hurt" and that he "kind of thought [plaintiff] was faking" but recognized it was the "jury's job, not [his] job" to make that determination based on its assessment of the witnesses and evidence presented. Considering the totality of the circumstances, however, the judge was not convinced that defendant proved fraud by clear and convincing evidence. Judge O'Brien noted all of the medical evidence presented at trial respecting plaintiff's left arm and that plaintiff never testified he "[could]n't move [his] left arm," "couldn't function at all with his arm," or "[could]n't do anything." Following argument, the judge thus entered the January 19, 2007 order denying defendant's motion to vacate the jury verdict pursuant to Rule 4:50-1, and this appeal ensued.

On appeal, defendant renews the arguments he made to the trial court, additionally arguing that Judge O'Brien erred in declining to view and consider the post-trial surveillance videos of plaintiff in connection with defendant's new trial motion. We discern no abuse of discretion nor misapplication of law in the trial court's rulings and affirm substantially for the reasons articulated by Judge O'Brien during oral argument of defendant's new trial motion.

The trial court may only grant a motion for a new trial when, "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). In examining a motion for a new trial, a trial judge cannot pass upon the credibility of witnesses and must not balance the persuasiveness of the evidence on one side against the other, but must review the record and "determine whether reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969). The trial court should set aside verdicts only in "clear cases," Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970), and we should not reverse a trial court's ruling on a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law," R. 2:10-1.

In a civil suit for non-economic tort damages, a plaintiff must meet the verbal tort threshold by proving by objective credible evidence that he suffered a permanent injury within a reasonable degree of medical probability. N.J.S.A. 39:6A-8a; Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 333-34 (2005); see also DiProspero v. Penn, 183 N.J. 477, 504-05 (2005); Serrano v. Serrano, 183 N.J. 508, 510, 516 (2005). Defendant's argument that plaintiff did not suffer permanent injury and the pain and suffering award is grossly excessive is based upon the mistaken impression that the jury had no basis to credit the testimony and opinions of plaintiffs' expert, Dr. Riss, over that of the defense expert, Dr. Gordon. As recognized by the trial judge, there is ample evidence in the record of diagnostic tests and medical opinions rendered by plaintiffs' treating physicians supporting Dr. Riss' physical examination and opinion as to causation and permanency sufficient to satisfy the verbal threshold.

A new trial cannot be granted simply because a person disagrees with the verdict or the verdict is debatable. It is well settled that "persons of equal intelligence, sincerity and impartiality draw wholly different inferences from identical facts." Kulbacki v. Sobchinsky, 38 N.J. 435, 444 (1962). The trial court 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 [its] conscience and to convince [it] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). In making this determination, the trial court must:

[A]ccept the medical evidence in the most favorable light to the plaintiffs; it must accept the conclusion that the jury believed the plaintiffs' injury claims and the testimony of their supporting witness, and if, tested on such bases, the verdict (even if generous) has reasonable support in the record, the jury's evaluation should be regarded as final. [Id. at 599 (citation omitted).]

The jury heard extensive testimony by plaintiff and his wife regarding plaintiff's injuries, his pain and suffering and the impact of his injuries on his and his family's lives. The jury apparently found this testimony, buttressed by plaintiffs' medical testimony, to be credible, and rejected the defense position that plaintiff was faking or exaggerating his injuries. The fact the jury compensated plaintiff and his wife generously for his pain and suffering, disability, impairment and loss of enjoyment of life, and her loss of her husband's services, society and consortium, does not exceed the wide scope of its latitude or constitute a verdict so wide of the mark that it should be considered grossly disproportionate or manifestly unjust.

Moreover, the magnitude of plaintiff's injuries are not diminished by the fact that he did not suffer a monetary loss of income. The record is clear that plaintiff was no longer physically capable of performing his prior occupation as a floor installer. Fortunately, based on his experience and contacts in the flooring industry, plaintiff was able to start his own installation company and secure an exclusive contract with a large national retailer, which did not entail the physically demanding duties of his prior job. Plaintiff candidly informed the jury that he obtained an alternate source of income for himself and his family despite his physical limitations in an amount greater than he had previously earned, and thus he did not assert a lost wages claim.

There is no merit to defendant's assertion of error by plaintiffs' counsel in describing the accident in violent terms.

R. 2:11-3(e)(1)(E).

We are satisfied that Judge O'Brien acted within his discretion in determining that on the record before him there was no need to view the two videotapes of the post-judgment surveillance. The judge was provided with a detailed summary of the exhibit sufficient to address defendant's motion. We are also satisfied the judge acted within his discretion and consistent with law and public policy in denying defendant's motion for a new trial based on these tapes.

Rule 4:50-1 provides, in pertinent part, that the court may relieve a party from a final judgment or order for the following reasons:

(b) newly discovered evidence which would probably alter the judgment or order for which by due diligence could not have been discovered in time to move for a new trial under Rule 4:49;

(c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . .

Rule 4:50-1 motions should be granted sparingly and only in exceptional circumstances. Housing Auth. of Town of Morristown v. Little, 135 N.J. 274, 289 (1994); Town of Phillipsburg v. Block, 380 N.J. Super. 159, 173 (App. Div. 2005); Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004). Motions for a new trial and for relief from judgment are addressed to the sound discretion of the trial court and will not be disturbed unless that discretion has been clearly abused. Quick Chek Food Stores v. Springfield Twp., 83 N.J. 438, 446 (1980).

In order for relief to be granted on the ground of newly discovered evidence, the new evidence must (1) be material to the issue and not merely cumulative or impeaching, (2) have been discovered since the trial and must be such as by the exercise of due diligence could not have been discoverable prior to the expiration of the time for moving for a new trial, and (3) be of such a nature as to have been likely to have changed the result if a new trial had been granted. Quick Chek Food Stores, supra, 83 N.J. at 445; see also Pressler Current N.J. Court Rules, comment 5.2 on R. 4:50-1(b).

Judge O'Brien properly concluded that the post trial surveillance tapes were "newly created" evidence rather than "newly discovered" evidence and thus not a basis for relief from the judgment. In his determination the judge was cognizant of two primary points: first, that defendant had no justification for waiting until he received an unfavorable verdict to conduct the video surveillance of plaintiff; and second, that allowing defendants to reopen judgments by after-acquired evidence under these circumstances would have the significant adverse policy implications of circumventing the due diligence requirements of trial preparation and the finality of trials and judgments, of causing undue expense and delay, and of intruding upon a plaintiff's privacy.

In Gross v. Borough of Neptune City, 378 N.J. Super. 155, 156 (App. Div. 2005), we held that an employer in a workers' compensation case could not avoid its notification obligation by delaying surveillance of the plaintiff without justification until after the trial began, and then offering the videotapes just before its last medical expert testified. The excuse given for the delayed taping was that defense counsel did not realize until plaintiff testified that she was exaggerating her injuries. Id. at 157. The trial judge noted, however, as did Judge O'Brien, that long before trial, defense counsel had obtained a report from his medical expert disputing that plaintiff's injuries were as serious as claimed by her physicians. In upholding the trial judge's refusal to admit the videotapes into evidence, we stated:

Although the Division's rule expressly addresses discovery of pre-trial surveillance tapes,*fn5 we think it implicit that surveillance tapes made after trial has begun would be inadmissible in the proceedings unless the employer can show that it was unaware, and could not have been aware, of the circumstances warranting surveillance before the hearing. As the judge noted in refusing to admit the videotapes, one of the problems caused by allowing the course pursued by Neptune in this case is that the employee would probably have to recall her medical experts. That would be financially burdensome and would unduly delay conclusion of the case.

Over a half century ago, in a workers' compensation case, we held that surveillance films can give 'deceptive impression[s].' . . . To countenance what occurred here, withholding surveillance until after the trial has begun, would not only cause undue expense and delay -- it would be inconsistent with the purposes of the rule and with a decent respect for the notice requirement that is central to our concepts of due process and fundamental fairness. . . . [Id. at 158 (internal citation omitted).]

The rationale and policy considerations discussed in Gross for excluding the undisclosed videotape at trial are even more compelling in the context of a request to vacate a jury verdict based on a video surveillance conducted after the trial. At depositions in August 2005, plaintiff described his current symptoms resulting from the accident as a constant sharp pain and numbness radiating down his neck to his left shoulder, down his left arm, to his pinky and ring fingers, and also down his lower back to his left leg. He testified he could no longer "bow hunt, rifle hunt, ATV ride, [do] excessive walking, hiking . . . heavy lifting [around the house] or install [carpets]." Dr. Gordon noted that during parts of his examination of plaintiff on October 5, 2005, plaintiff favored his left arm and held it to his side in a protective manner, consistent with conduct during examinations by other doctors. Although the defense doctor found limited range of motion in plaintiff's left shoulder, he was of the impression that plaintiff was exaggerating his injuries. Thus, as in Gross, defense counsel was aware long before trial of plaintiff's predilection to hold his left arm to his side and that Dr. Gordon disputed the extent and severity of injuries claimed by plaintiff and set forth in his medical records.

The defense had more than ample opportunity to conduct surveillance of plaintiff during the two-year litigation period and, in fact, apparently felt compelled to do so in February 2006. Defendant chose not to pursue further pretrial surveillance, not to disclose the tape, and not to use it at trial. Defense counsel further made a conscious strategic decision at trial to conduct limited cross-examination of plaintiff and his wife and to defend through the experts. He also chose not to address with plaintiff his arm-holding, thus depriving plaintiff of the opportunity to provide an explanation, and never expressed to the court at trial that he was concerned with the jury's perception of plaintiff's body language. Perhaps defense counsel believed plaintiff was over-exaggerating his symptoms, which would adversely affect the jury. Nor did defense counsel confront plaintiff with his deposition testimony about no longer being able to "rifle hunt," which was conspicuously absent from plaintiff's trial testimony. Instead, the defense waited until an unfavorable verdict was announced, and then attempted to resurrect its case through a post-trial video surveillance that it had no explanation for not conducting pretrial. Based on defendant's lack of diligence, consideration of the after-acquired videos would clearly be inconsistent with the notions of due process and fundamental fairness.

The record also supports Judge O'Brien's discretionary decision to reject defendant's new trial motion on the grounds of fraud under R. 4:50-1(c). "[I]t is within the discretion of the trial court to grant a new trial on the basis of revelation of wilfully false testimony substantially affecting the result." Balip Auto. Repairs, Inc. v. Schroeder, 8 N.J. Super. 238, 246 (App. Div. 1950), aff'd, 7 N.J. 152 (1951). The ground of fraud encompassed by R. 4:50-1(c) includes perjurious testimony, even if not accompanied or concealed by other and collateral acts of fraud provided that the testimony is willfully false, material to the result, and not earlier discoverable by reasonable diligence. Pavlicka v. Pavlicka, 84 N.J. Super. 357, 366 (App. Div. l964). Perjured testimony warranting disturbance of a final judgment must be proven by "clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result." Shammas v. Shammas, 9 N.J. 321, 330 (1952).

The case relied on by defendant, Balip Automotive Repairs, is factually inapposite as the record established perjurious testimony by the plaintiff and due diligence by the defendant. In Balip the record established that the plaintiff corporation's president provided willful and purposely false testimony at trial and did not produce company records to substantiate his testimony as requested by the defendant, that the defendant could not have anticipated that the plaintiff would offer and rely upon the testimony in question and informed the court it was taken by surprise at the production of such testimony, and the defendant established the fraudulent testimony by court-ordered deposition four days after trial. Balip Auto. Repairs, Inc., supra, 8 N.J. Super. at 240-41.

In contrast here, the record neither supports a finding of willful and purposely false testimony or conduct by plaintiff nor due diligence by defendant. The medical testimony presented at trial supported plaintiff's claims of injury and, in fact, both experts agreed that plaintiff exhibited a partial loss of range of motion to his left shoulder. The post-trial surveillance videotapes may have had some impeachment value had they been used during trial but even as depicted by defendant, the activities do not demonstrate clear and convincing evidence of fraud by plaintiff. Plaintiff never claimed nor testified at trial that he lost the full use of his left arm or that he could not perform simple tasks with it for short periods of time. On the contrary, he testified he was gainfully employed in a business that requires driving and supervising floor installation jobs in malls located from New York to Maryland, and still performs household repairs, though significantly less than before the accident. Plaintiff's conscious or unconscious placement of his left arm against his body throughout trial, though it may have conveyed an inability to use his arm, in and of itself does not rise to the level of willful and purposefully false testimony or conduct. Moreover, although plaintiff testified at trial that he was unable to specifically go bow hunting, he was never asked as to other forms of hunting.


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