March 4, 2008
JACQUELINE JOHNSON, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
TCT TRANSIT SERVICES CORP. AND FRANCESTI P. BROWN,*FN1 DEFENDANTS, AND THOMAS W. BONELLO, DEFENDANT-RESPONDENT/CROSS-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007
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 seeks to reverse the court's denial of his request bottomed on Rule 4:21A-6(c).
We are mindful that the standard for "setting aside a verdict already sustained by the trial judge is high." Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). Neither a trial judge nor an appellate court may reweigh the evidence and impose a new verdict simply because they disagree with the jury's decision. Battista v. Olson, 213 N.J. Super. 137, 142 (App. Div. 1986). "Only when[,] upon examination[,] the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality, may it be disturbed." Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965). "Furthermore, jury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of clear injustice." Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); R. 4:49-1(a). Guided by these principles, we examine the arguments presented.
During the charge conference, plaintiff requested inclusion of a portion of the charge on aggravation of a pre-existing condition*fn2 based upon Dr. Noble's testimony; defendant objected to the use of the charge because plaintiff presented no evidence of a pre-existing condition that had been aggravated and, further, because it was inappropriate to use only a portion of the charge as plaintiff proposed. Judge English considered the request and concluded:
I do not believe that this case was presented through the experts of the plaintiff as an aggravation case or even a latent condition case. Again, chopping this charge up, I think is only going to serve to confuse the jury because I don't think there was enough evidence in the case with the way it was presented through the plaintiff's experts, that we were talking about a pre-existing condition and for a manner in which to consider damages in this case.
The damage in this case deals with a herniation and the bus accident causing a herniation. It was not presented in such a manner that there was significant testimony dealing with an aggravation of a pre-existing condition or a latent pre-existing condition.
And based on that, I'm not going to give that charge.
After argument, during the post verdict motions, the judge again reviewed the evidence and concluded that the requested charge was unwarranted because neither party presented evidence of an aggravation of a pre-existing condition. Plaintiff's case reflected that her "herniation was caused by the accident, not that this herniation was there and then exacerbated." Defendant's expert did not say plaintiff's "degenerative condition" was aggravated as a result of the accident.
Our review of the record reveals Judge English correctly concluded that the charge as proposed by plaintiff was inappropriately misleading. A piecemeal instruction, which ignored the evidence presented at trial, would tend to undermine the jury's capacity to accurately determine the facts. The actual charge given was properly tailored to the evidence presented, and we find no error. See Reynolds v. Gonzalez, 172 N.J. 266, 288-289 (2002) (trial court's failure to tailor its instructions to the theories and facts presented in a case supports a remand for a new trial). Also, Judge English properly identified that plaintiff's case showed her herniated disc was caused solely by the impact sustained when the bus was rear-ended, without mention of a prior condition or a prior symptom that may have been aggravated by the accident. Additionally, defendant's position, as presented by his expert, proffered that the herniation resulted from the normal degenerative process caused by aging. We are convinced that the jury charge presented was correct and was fully supported by the record.
We are equally unpersuaded by plaintiff's second alleged error suggesting that effective cross-examination of defendant's expert was prejudicially precluded. During cross-examination of Dr. Noble, the court sustained defendant's objections when plaintiff asked Dr. Noble to opine what symptoms plaintiff might have experienced as a result of his MRI findings. Plaintiff's voir dire had already established that Dr. Noble was not qualified to correlate plaintiff's symptoms with his findings after viewing her MRI film. Dr. Noble unequivocally conceded that neuroradiologists do not examine patients. Instead, they look at the imaging studies and present a diagnosis. Plaintiff's characterization that the questions aimed at soliciting her symptomology were designed to test the expert's credibility is specious. We discern no abuse of discretion in the trial judge's evidentiary rulings limiting plaintiff's inquiry. N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358, 370 (App. Div.), certif. denied, 54 N.J. 565 (1969).
Finally, we examine plaintiff's argument that she was entitled to a new trial or, in the alternative, additur because the jury's verdict was against the weight of the evidence presented. R. 4:49-1(a); Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). We show appropriate deference to the trial court's "feel of the case," Baxter v. Fairmont Food Co., 74 N.J. 588, 600 (1977), and will not reverse a trial judge's decision on whether 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 v. Haynes, 136 N.J. 422, 432 (1994). Additionally, the jury's damage assessment is entitled to a presumption of correctness and should stand "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. 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).
Following our review of the record, we have no hesitation in finding that the jury's verdict did not cause a miscarriage of justice under the law. On the contrary, sufficient credible evidence in the record as a whole supported all aspects of the jury's verdict. Crego, supra, 295 N.J. Super. at 577-579.
Defendant's cross-appeal argues the trial court erred in denying his motion for counsel and expert witness fees. Rule 4:21A-6(c) states a party requesting a trial de novo "may be liable to pay the reasonable costs, including attorney's fees, incurred after rejection of the award by those parties not demanding a trial de novo." In the trial court's discretion, "it may deny an application for costs" when "satisfied that an award of reasonable costs will result in substantial economic hardship." R. 4:21A-6(c)(5).
The trial judge was aware that plaintiff was unemployed at the time of trial and we can reasonably assume plaintiff must satisfy her attorney's and expert's fees from the $10,000 award. Thus, we conclude the trial court properly exercised discretion in denying defendant's application.
We are convinced that Judge English's findings are fully supported by the record and his conclusions are consistent with controlling legal principles.