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Sebring v. Cospito

July 16, 2008

SUSAN R. SEBRING AND TIMOTHY SEBRING, PLAINTIFFS-APPELLANTS,
v.
VINCENT A. COSPITO, DEFENDANT-RESPONDENT, AND ANA V. BARILLAS,*FN1 DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-367-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 2, 2008

Before Judges Lisa and Simonelli.

In this non-verbal threshold automobile negligence case, plaintiff Susan R. Sebring (Susan) claimed she suffered permanent physical, mental and emotional injuries, and lost wages, as a result of an automobile accident on June 4, 2004, caused by the negligence of defendant Vincent A. Cospito. Susan's husband, plaintiff Timothy Sebring (Timothy), sought per quod damages.

Defendant stipulated liability, and the matter proceeded to trial on damages. The jury found that defendant's negligence proximately caused Susan's physical injuries and lost wages, but not her mental and emotional injuries. The jury awarded Susan $3300 for the pain and suffering resulting from her physical injuries, and $2623 for her lost wages. The jury also found that defendant's negligence caused Timothy's loss of Susan's services, society, consortium and past lost wages, and awarded him $1512.

Plaintiffs' appeal from the order of July 13, 2007, denying their motion for a new trial on damages or, alternatively, for additur. We affirm.

The following facts are summarized from the record. Susan and defendant were involved in a head-on collision, which resulted in Susan's vehicle catching fire and filling with smoke. Susan and her infant daughter were trapped inside the smoke-filled vehicle, and she was unable to locate her child. Susan feared the vehicle would explode and she would die. Bystanders extricated the two, and the police extinguished the fire.

As a result of the accident, Susan sustained a chest wall contusion, left neck contusion, cervical strain, a concussion, and a minimally displaced nasal bone fracture.*fn2 She also claimed she suffered permanent post-traumatic stress disorder (PTSD), depression, and anxiety as a result of the accident.

Defendant vigorously attacked the credibility of Susan's injury claims, especially her alleged mental and emotional injuries, which were the crux of her damages claim. For example, as to the permanency of Susan's physical injuries, she testified that due to the nose injury her "voice has . . . become more nasally and [she] snore[s] louder," and she suffered post-concussion syndrome; however, she presented no medical expert evidence confirming these alleged permanent injuries.

Conversely, defendant's medical expert opined that Susan's minimally displaced nasal bone fracture was corrected by closed reduction, and she "had a perfectly normal external nose and the internal structures of her nose were basically normal. There was nothing found within the nose that could be a result of an injury. And her airway on both sides was perfectly normal and not responsible for any snoring problem."

Susan also testified that she suffered permanent post-concussion syndrome; however, she presented no evidence stating with certainty the length of time she suffered this injury. Also, the testimony of Susan's treating psychologist, Dr. Charles Most, revealed that within ten days of the accident her cognitive abilities were intact.

As for Susan's permanent mental and emotional injuries, evidence revealed that as a child, her mother physically abused her, and that she saw either a psychologist or psychiatrist at age thirteen relative to a needle phobia she developed as a result of her mother's repeated attacks on her with needles. Timothy testified that, except for the needle phobia, Susan had no psychological problems and obtained no psychiatric or psychological counseling before the accident, that she was "coping with" her needle phobia, and that except for Susan's pregnancy with their daughter, she never took any anti- depressant medication. He also testified that, prior to the accident, no doctor had ever made reference to PTSD as a condition afflicting or affecting Susan, and no one ever discussed PTSD with her. Susan testified that, prior to the accident, she had not received or been recommended to receive any psychiatric or psychological treatment or therapy, and that she "never heard of PTSD until this accident." However, their cross-examinations revealed that approximately two years before the accident, Susan was encouraged to seek therapy during her pregnancy for symptoms associated with PTSD, and that this became "a big issue" when she was pregnant.*fn3 Despite this evidence, both Timothy and Susan maintained that no doctor had ever discussed PTSD as something that might have been affecting Susan at any time prior to the accident.

Timothy also testified about a DVD*fn4 he made of Susan's activities on August 18, 2004, September 6, 2004, and October 31, 2004, indicating that what he filmed captured "what [Susan's] life was like day in and day out" for four months after the accident. However, Timothy's cross-examination revealed that on August 3, 2004, Susan reported to Dr. Most that "her new job was going well," and on September 16, 2004, she reported to the doctor that "she likes work, she ...


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