On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0692-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa, Lihotz and Simonelli.
Plaintiff Jacqueline Johnson appeals from a Law Division order denying her motion for a new trial or additur, following a jury verdict that awarded her $10,000 in compensation for personal injuries. Defendant Thomas W. Bonello cross-appealed from an order denying his cross-motion for reimbursement of counsel and witness fees, pursuant to Rule 4:21A-6(c). We affirm.
On November 3, 2001, plaintiff was a passenger on a bus owned by TCT Transit Services Corp. (TCT) and operated by Francesti P. Brown. The trial court granted summary judgment to TCT and Brown, leaving defendant Bonello as the sole defendant in the action. Defendant was driving his vehicle behind the bus. While attempting a merge in a jug-handle, defendant's vehicle struck the rear of the bus. The bus passengers remained at the accident scene for several hours. After impact, plaintiff did not immediately experience pain and did not request medical attention at the scene. However, by the time she arrived at her apartment, she experienced a slight headache and developed stiffness in her neck. Over the following weeks, stiffness and pain occurred in plaintiff's neck, lower back and legs. An MRI taken on February 7, 2002, revealed a large protrusion at L5-S1, and after a physical exam, Dr. Cary Glastein, an orthopedic surgeon specializing in spinal surgery, diagnosed plaintiff as suffering from a herniated disc.
The parties attended arbitration on May 8, 2003. The arbitrator assessed 100 percent liability against defendant and awarded plaintiff $20,000 for pain and suffering. Plaintiff filed a demand for trial de novo. In an in limine motion, plaintiff sought to bar evidence of prior accidents and any pre-existing conditions. Despite defendant's opposition, the motion was granted.
At trial, Dr. Glastein's testimony from his de bene esse video deposition was presented. He stated that based on the history that [plaintiff] is sitting on a bus, it gets struck, she's thrown about, she develops pain into her back and leg at some time, you lost her ankle jerk, it's consistent with L5-S1, I think all of that indicates and is consistent with a disc herniation caused by this bus accident.
The defense expert, Dr. Douglas Noble, a neuroradiologist, opined:
So, it's my opinion that within a degree of medical certainty and probability that this disc herniation is most compatible with a normal degenerative process rather than a post[-]traumatic single, acute incident, such as a traumatic incident on one day. It's my feeling that these findings at the 5-1 level, which include the disc herniation, are compatible with a more longstanding process of degeneration, which we know does cause herniations.
At the close of evidence, the trial judge presented the standard jury charges explaining the burden of proof, proximate cause, damages, and life expectancy. In a six to one verdict, the jury awarded plaintiff $10,000.
Plaintiff's motion for a new trial cited two bases of error: first, in the jury instructions, which omitted a charge discussing the aggravation of a pre-existing condition, and second, in the court's ruling to limit "effective cross-examination" of the defendant's expert witness. The trial judge rejected these arguments and denied the motion.
Defendant's cross-motion requested to limit plaintiff's damage award and order payment of his counsel fees and costs because the arbitration award exceeded the jury's verdict. This application was also denied by the trial judge.
On appeal, in addition to arguing that the verdict was against the weight of the evidence, plaintiff raises for our consideration the omission of the aggravation of a pre-existing injury charge and the asserted preclusion of effective cross-examination of defendant's expert. Defendant's challenge ...