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Sebring v. Cospito

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 feels okay with her duties[.]" Dr. Most testified that Susan made significant progress since she first became his patient.

Also, in March 2007, plaintiffs' son was arrested and removed from the home for sexually molesting his younger sister. Susan and Timothy repeatedly denied that this had any effect whatsoever on Susan's emotional, mental and psychiatric problems, and their experts opined that this was nothing more than "a minor stressor" for Susan. However, on cross-examination, Susan conceded that this incident caused her to have multiple panic attacks, and she experienced trauma in not being able to protect her daughter from her son.

Further, Susan treated with Dr. Lychak, a psychiatrist, from September 2004 to November 2005. She testified that she stopped treatment with him because she "just didn't feel like his therapy was going anywhere" and "[h]e was . . . against [her] going back to work." However, cross-examination revealed that in a report Dr. Lychak concluded that, "As of March 8, 2005, I would expect Susan to return to her previous level of functioning and also the type of job that she succeeded in before. She is pleased with her progress and encouraged by it."

Defendant's expert neurologist/psychiatrist, Dr. William Head, opined that Susan's emotional problems did not begin with the accident; Susan's history of having been the victim of long-term physical abuse at the hands of her mother would have caused her son's actions toward her daughter to be more than a "minor stressor"; and that Susan's reaction to her son's conduct would be particularly pronounced because of her own history as a victim of abuse at the hands of a family member. The doctor also said that Susan only suffered temporary PTSD as a result of the accident, which was resolved by May 1, 2006.

As for Susan's lost wage claim, evidence revealed she worked full-time at Neighbor Care Pharmacy at the time of the accident earning $13.56 per hour. On the day of the accident, she had been offered a job at HCR Manor Care, with a salary of $14.77 per hour. She began this job about a month after the accident, initially working half-days. Susan claimed she was fired from this job because she had difficulties performing her job duties. She then worked for two weeks at a collection agency at $11 per hour, and then worked for the Weston Group at $11.25 per hour. She sought $27,186.11 in lost wages, and Timothy sought $4,672.39 in lost wages.

Plaintiffs emphasized at trial that all of Susan's mental and emotional problems were permanent and were caused solely by the accident. In accordance with plaintiffs' theory of the case, the trial judge instructed the jury as follows:

Contentions of the parties. The . . . plaintiff contends that as a result of this accident she sustained severe and permanent injuries including physical injuries to her nose and head. The plaintiff also sustained a concussion, post-concussion syndrome, [PTSD] and severe depression. (Emphasis added.)

The defendant contends that the plaintiff did not sustain any permanent physical, psychological or neurological injury.*fn5 (Emphasis added.)

Also, plaintiffs' counsel had emphasized in his closing that the "key charge in this case" was that relating to the aggravation of Susan's pre-existing mental and emotional condition.*fn6 In that regard, the judge instructed the jury as follows, in relevant part:

Obviously, the defendants in this case are not responsible for any pre-existing injury of the plaintiff. As a result, you may not award any money in this case for damages attributable solely to any pre-existing illness or injury.

I will now explain to you what happens if a plaintiff had a predisposition or weakness which was causing no symptoms or problems before the accident but that made him or her more susceptible to the kind of medical problems she is claiming in this case. [If] [t]he injury sustained in this accident combined with that predisposition to create plaintiff's medical condition, then plaintiff is entitled to recover for all of the damages sustained due to that condition.

The judge also instructed the jury on proximate case, credibility, and "false-in-one, false-in-all," to which there was no objection. The jury determined that defendant's negligence was not a proximate cause of Susan's "pain, suffering, disability, impairment and loss of enjoyment of life as a result of her mental and emotional injuries."

Plaintiffs contend that the trial judge erred in denying their motion for a new trial on damages, or, alternatively, for additur. They argue that the jury's awarding of damages for Susan's physical injuries but failure to find that her mental and emotional injuries were not proximately caused by the accident was "fatally inconsistent" because she "experienced at least some transitory mental and emotional pain and suffering associated with the trauma of the collision and its after affects." Alternatively, plaintiffs contend that additur was necessary because the jury's monetary awards were disproportionate to the injuries and damages they sustained.

In denying plaintiffs' motion, the trial judge found that the monetary awards did "not shock the judicial conscious[]" because the jury could have found, based upon the expert testimony, that Susan's physical injuries were not severe or permanent, and that the minimally displaced nasal bone fracture and post-concussion syndrome had resolved shortly after the accident. As to the jury's no-cause verdict on Susan's mental and emotional injuries, the judge found as follows:

The jury did not award, and I think this is pretty obvious, however, in light of [Susan's] abuse at the hands of her mother when she was a child and her PTSD she suffered during the birth of the second child, all her emotional mental injuries weren't proximately caused by the accident. It's pretty obvious during the testimony, as I indicated a minute ago, when I saw this videotape, this woman did have a nervous breakdown.

Considering the role of the jury in determining the credibility of the witnesses and the burden of the plaintiff to establish by clear and convincing evidence that a miscarriage of justice occurred, this Court does not find that the requirements of [Rule] 4:49-1 have been met.

As to the jury's monetary damages, the judge found:

[T]hat the monetary award for [Susan's] pain and suffering associated with her physical injuries and [her] lost wage claim and Timothy's [] per quod claim do not shock the judicial conscious [sic]. Specifically, the jury could have found based upon your expert testimony introduced at trial that [Susan's] physical injuries were not severe and were not permanent. For instance, the jury could have found that [Susan] sustained [a] minimally displaced nasal fracture and that her post-concussion syndrome had terminated within ten days of the accident. That such award of $3300 for those injuries, although low, . . . does not shock the judicial conscious [sic].

In addition, the Court finds that in weighing the evidence at trial the jury could have reasonably determined that [Susan's] lost wages only totaled [$]2623 and, therefore, this award does not shock the judicial conscious [sic].

Finally, [Timothy's] per quod claim is difficult to quantify and the Court does not find that $1512 is an unreasonable amount.

In reviewing a motion for a new trial, the trial judge cannot substitute his or her judgment for that of the jury. Rather, the judge is "required to canvass the record [and weigh the evidence] to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict." Hacker v. Statman, 105 N.J. Super. 385, 391 (App. Div.) (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)), certif. denied, 54 N.J. 245 (1969); Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A jury's verdict can only be disturbed when on examination of the evidence, the verdict "is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it was the result of mistake, passion, prejudice, or partiality. . . ." Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.) (citing Hager v. Weber, 7 N.J. 201, 210 (1951)), certif. denied, 45 N.J. 594 (1965). When ruling on a motion for a new trial, "[t]he trial judge shall grant the motion if, having given due regard to the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears three was a miscarriage of justice under the law." R. 4:49-1(a). We recently reiterated that standard as follows:

Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice. On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict.

Neither trial nor appellate courts may grant a new trial unless it clearly appears there was a miscarriage of justice. Appellate courts should give considerable deference to a trial court's decision to order a new trial because "the trial court has gained a 'feel for the case' through the long days of the trial." [Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (citations omitted), certif. denied, 186 N.J. 242 (2006).]

Also, a trial judge has the authority to modify a damage verdict. Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). However, the "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 his conscience and to convince him that to sustain the award would be manifestly unjust." Ibid. (citing Sweeny v. Pruyne, 67 N.J. 314, 315 (1975)); see also Caldwell v. Haynes, 136 N.J. 422, 431 (1994). "All damages evidence should be viewed in the light most favorable to the prevailing party, with deference given to the trial court's feel for the case." Boryszewski, supra, 380 N.J. Super. at 391; see also Caldwell, supra, 136 N.J. at 432; Carey v. Lovett, 132 N.J. 44, 66-67 (1993); Baxter, supra, 74 N.J. at 597-600.

Applying these standards, and based upon our careful review of the record, we are satisfied that the jury's verdict on Susan's mental and emotional injury claim is supported by ample evidence in the record, and is a reflection of its assessment of the credibility of that claim. We are also convinced that the quantum of damages assessed by the jury reflected what it determined would fairly and reasonably compensate Susan for her temporary physical injuries and lost wages, and for Timothy's per quod damages.

Affirmed.


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