July 22, 2008
VALANTINA MIKHAIL HEDVAT AND NEJAT O. HEDVAT, PLAINTIFFS-RESPONDENTS,
EUGENE MERWIN AND BARBARA L. MERWIN, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County, Docket No. L-3896-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 12, 2008
Before Judges Stern and C.L. Miniman.
Defendant Eugene Merwin*fn1 appeals from the denial of his motion for a new trial or remittitur and from a judgment for plaintiffs Valantina Mikhail Hedvat (Valantina) and Nejat O. Hedvat (Nejat) in the amount of $248,000 as later amended to include an award of counsel fees, costs and interest for a total judgment amount of $387,177.38. We affirm.
This is the third time this matter has been tried to a conclusion. The case first came on for trial in 2004 and the first jury returned a verdict of no cause for action. The first trial judge granted a motion for a new trial, limited to the issue of whether Valantina had suffered any temporary injuries. Liability had been stipulated by defendants. We then denied plaintiffs' motion for leave to appeal the limited grant of a new trial.
At the second trial, the jury returned a verdict for plaintiffs in the total sum of $15,500 for temporary injuries. Plaintiffs appealed from the denial of the new-trial motion and the resulting judgment and defendant cross-appealed from an order barring its radiological expert. On March 26, 2006, we reversed the scope of the order on the new-trial motion and remanded for a new trial on all damages issues, concluding that the discovery issue was moot in light of the requirement for a new trial. The third trial began on December 5, 2006, and the jury returned its verdict on December 8, 2006.
The head-on collision giving rise to this lawsuit occurred on January 30, 2002, and defendant stipulated that he was at fault for the accident. Plaintiffs' two-year-old vehicle was a total loss. Valantina is a part-time real-estate attorney and mother of three. Nejat is a structural engineer. Valantina did all of the housework and was an active volunteer before the accident. She played tennis, ran and gardened as time allowed.
After the accident Valantina "started to feel pain and achiness starting down [her] neck and [her] back," which progressively got "worse and worse and worse." Valantina experienced a lot of pain all over and some "tingling" and "numbing" sensations throughout the top portion of her body the night following the accident. She went to see her family physician, Dr. Eugene Evans, who ordered an x-ray of her back and shoulders, prescribed Naprosyn for pain relief and Soma as a muscle relaxer. When Dr. Evans received the x-ray report, he ordered an M.R.I. of her neck and low back. After reading the M.R.I. report, Dr. Evans called Valantina and recommended that she see a specialist.
About a week or ten days after the collision, Valantina went to see Dr. Thomas Errico, a New York physician with an office in Summit. He prescribed physical therapy three times a week, which Valantina went to "religiously" for six or eight months. The pain in her low back improved, but her neck continued to bother her even after the physical therapy was over. From the end of physical therapy to the time of trial, Valantina testified that she has weakness in her arms, "can't lift more than two pounds," and that when she tries to do any type of physical exertion with her arms the pain "goes down [her] neck, down [her] shoulders, down [her] arms," and her arms feel weak and tingle. The tips of her fingers are slightly numb, as though she is always wearing gloves. She has pain down her neck to the middle of her back. Her finger strength is diminished and she has trouble with buttons. The pain has prevented Valantina from enjoying many activities that she did before the accident. Valantina also had to hire someone to come to her home on a weekly basis to take care of the heavy household chores that she is not able to do. She offered into evidence copies of checks issued to Very Fatima from February 6, 2002, through May 20, 2004. Defendant objected that several of the checks had not been produced in discovery. However, the judge admitted those checks over the objection of defendant because they had been accepted in evidence in the prior trial.
Dr. Evans testified that he found diffuse tenderness throughout the entire cervical spine, tenderness in the left shoulder and part of the neck. The trapezius muscle was very tender. The range of motion in the left shoulder was limited. Dr. Evans opined that the tenderness in the trapezius was probably a spasm, which he defined as "a persistent tightening of the muscle itself." Dr. Evans also opined that the injuries he noted were "fresh" and that Valantina had not had these symptoms before. He testified that he initially diagnosed a cervical strain. He made no note of Valantina complaining of any numbness or tingling.
Dr. Errico testified in a videotaped de bene esse deposition taken on May 28, 2004, which was played at trial.*fn2 In Dr. Errico testified that he practiced at New York University Medical Center where he taught orthopedic surgery, neurosurgery and served a Chief of Spine Service for the Department of Orthopedics. He was the President of the North American Spine Society, authored twenty-five peer-reviewed articles and wrote or edited four textbooks on spine surgery. Dr. Errico was accepted as an expert in the field of orthopedics.
Dr. Errico testified that he first saw Valantina on February 15, 2002. He reviewed the M.R.I. films and report that Valantina brought with her. They showed reversal of the normal lordotic curvature from C3 through C6, subligamentous disk herniations from C3-4 to C5-6 and spinal stenosis, most prominently at C4-5 and C5-6. The films showed a large posterior disk protrusion at C6-7 that was touching the spinal cord. Dr. Errico opined that the pressure on the spinal cord was causing the tingling into Valantina's hands, the pathological reflexes at the knee and the positive Hoffman sign. Dr. Errico opined that a disk subject to trauma can be pushed back out of its place between the bones and come into contact with the spinal cord.
Dr. Errico elected to treat Valantina conservatively with anti-inflammatory medicine and physical therapy. Over the months of therapy, Dr. Errico felt there was some improvement. By October 2003 Valantina still had the neurological symptoms but her lower extremities were doing well. He felt that her condition had "plateaued" by that time and he continued her on anti-inflammatory medication. There was no change when he last saw her in April 2004.
Dr. Errico expressed concern that in the future Valantina's condition "may become progressive again." He opined that she may need spinal cord decompression surgery. Dr. Errico observed that "there were no problems or complaints prior to the accident and the persistent symptoms which were not only . . . subjective complaints but there were objective findings of irritable nerves." He opined that "the accident exacerbated . . . the condition of her neck . . . resulting in the mild cervical myelopathy." Finally, he opined that her medical condition was permanent.
On cross-examination, Dr. Errico admitted that he did not notice soft tissue swelling in the M.R.I. films. He denied that degenerative conditions always produce pain. Last, he opined that, if there was no pain the day before the accident and there was pain afterwards, the accident caused the pain from the pre-existing degenerative conditions.
Dr. Howard Hirsch was admitted as an expert in radiology on behalf of defendant and gave his opinion of the nature of Valantina's injuries based on his interpretation of her M.R.I. films. Dr. Hirsch testified that he found signs of "advanced disk degeneration" at C3-4, C4-5 and C5-6 that had been taking place "over many years." Valantina had arthritis at those levels and also "minimal disk herniation." Dr. Hirsch further testified that these conditions did not result from the accident as they were formed by a "degenerative, longstanding process."
Dr. Hirsch opined that Valantina had a "narrow spinal canal" due to a "very big arthritic bony ridge" that also was responsible for her condition, but not caused by the accident. Finally, Dr. Hirsch testified that he did not notice any of the edema or swelling that would be evident in the M.R.I. if any damage had been done by the accident.
On cross-examination, Dr. Hirsch admitted that he had never examined Valantina and that he based his opinion entirely on the reading of the M.R.I. He also acknowledged that he did not know what the pre-accident alignment of Valantina's spine was, but opined that this was unimportant because "necessarily post-traumatic alignment changes would show . . . swelling [and] thickening edema[.]"
Dr. Edward Decter was admitted as an expert in orthopedic surgery and testified for defendant. He performed a physical examination of Valantina and noted that she had "no tenderness [and] . . . full range of flexion, extension, bending and rotation." Dr. Decter concluded that he found "no signs of mechanical dysfunction - no reproduction of pain occurred on movement, and [he] did not find an[y] neurogenic abnormalities." His testified that his orthopedic examination of Valantina was completely normal. Dr. Decter testified, like Hirsch, that the conditions revealed by the x-ray of Valantina's lower back were "consistent with degeneration of a disk, which is a long ongoing process." He further stated that this is not something that would be visible in x-rays taken a week or two after an accident if the accident had caused it because "it's something that is chronic, progressive, [and] longstanding." He did not rule out a soft-tissue injury because he saw Valantina long after the accident. However, he opined that Valantina had no permanent injury.
On cross-examination, Dr. Decter admitted that he was not a spinal surgeon. He also admitted that his only examination of Valantina took about five to ten minutes. He further admitted that he had seen no medical records that demonstrated that Valantina had any prior symptoms of the conditions in her neck and low back or any treatment for them.
At the conclusion of the trial, the jury found for plaintiffs and awarded $200,000 in damages to Valantina for her injuries and $48,000 to Nejat for his loss of consortium. Judgment was entered on the verdict. Defendant filed a motion for a new trial or remittitur on December 22, 2006, which was argued on January 19, 2007. He urged that the judge erred in admitting certain checks for household services into evidence because they had not been produced during discovery. He also argued that the verdict was against the weight of the evidence and a new trial should be ordered or the verdict remitted.
The judge explained that the checks she had admitted into evidence had been used during the first or second trial. She concluded that there was no surprise to defendant from their proffer at the third trial and that he suffered no prejudice from their admission. As to the weight of the evidence, the judge pointed out that it was for the jury to decide whether the anti-inflammatory medication Valantina took reduced any swelling that might have been found on the M.R.I., that there was no evidence of any prior symptoms, and that Valantina's whole lifestyle had changed. The judge observed that although the verdict seemed a little high, it was not shocking given her life expectancy. The judge also denied the motion for remittitur and entered an order denying defendant's entire motion that day.
Defendant filed a premature notice of appeal on February 8, 2007, although the transcript of the January 19, 2007, colloquy with the judge referred to the outstanding issue of counsel fees under the offer-of-judgment rule.*fn3 Furthermore, the appeal was only from the January 19, 2007, order, which was interlocutory without a judgment having been entered.
Plaintiffs moved for attorney's fees with costs and interest under Rule 4:58-2 on February 20, 2007, based on their $95,000 offer for judgment filed on March 14, 2003. Those issues were addressed at oral argument on March 16, 2007. Plaintiffs' counsel stated that he did not include his paralegal's time in his fee application, did not include every minute he spent on the matter and did not include conversations with his adversary or his clients. Defense counsel argued that defendant took issue with the fee for filing a brief with us and reminded the judge that there had been a prior award of fees for which defendant was entitled to a credit of $1200. The judge found that the amount of time for the appellate brief was fair and reasonable and allowed that item. Defense counsel also argued that the hourly rate of $300 was excessive and inconsistent with the rate charged by defense counsel, which was in the range of $75 to $125 per hour. Plaintiffs' counsel responded that he charged $300 to his hourly clients and knew that many attorneys charged more than that sum. He pointed out that his firm obtained a very good result for plaintiffs, that he had appeared before the Supreme Court and us, and that large firms charged $450 to $500 per hour. He also argued that defense firms had no risk of nonpayment in their work but plaintiffs' firms had to fund the litigation costs of all clients with a commensurate risk of nonpayment. He pointed out that he had expended almost $20,000 on this litigation, which he had incurred beginning with institution of suit in 2002. The judge concluded that plaintiffs were entitled to fees of $55,650 and costs of $19,713.24 less the $1200 credit of $750 for fees and $500 for costs.
The judge entered judgment on March 16, 2007, in the amount of $387,177.38 consisting of $248,000 compensatory damages; $36,010.95 in prejudgment interest; $27,803.19 in additional interest under Rule 4:58-2; $19,213.24 in reasonable litigation expenses under the same rule; and $54,900 in counsel fees from the ninetieth day after the offer for judgment was filed on June 14, 2003, until the jury verdict on December 8, 2006. Defendant filed a supplemental notice of appeal from the January 19, 2007, order and the final judgment of March 16, 2007.
Defendant asserts that the trial judge erred in failing to grant a new trial because the verdict was against the great weight of the evidence and, in any event, remittitur was clearly required. Defendant also argues that the trial judge erred in admitting certain checks issued by plaintiffs as proof of damages and that she miscalculated the enhanced damages under the offer-of-judgment rule.
A motion for a new trial on the ground that the verdict was excessive is governed by Rule 4:49-1, which permits the trial judge to grant such a motion 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." The trial judge must accept the medical evidence and view it in a light most favorable to plaintiffs. Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971). The judge must also "accept the conclusion that the jury believed the plaintiff['s] injury claims and the testimony of [her] supporting witness." Ibid. A verdict may only be set aside as excessive in "clear cases." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970); Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993) (trial judge may not interfere with a verdict unless it is clearly against the weight of the evidence). Additionally, the verdict must shock the judicial conscience. Carey v. Lovett, 132 N.J. 44, 66 (1993).
We may only reverse the trial judge's ruling on a motion for a new trial where "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)); see also McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)).
At the same time, a trial court's determination is "not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which he [or she] is no more peculiarly situated to decide than the appellate court." Dolson, supra, 55 N.J. at 7. [Caldwell v. Haynes, 136 N.J. 422, 432 (1994).]
As to remittitur, unless a jury's award for damages is so disproportionate to the injury and resulting disability to shock the conscience of the court, the trial judge should not disturb the award. McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74 N.J. at 595); see also Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491-92 (2001).
Our review of evidentiary rulings is more limited in scope. "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). A judge's discretionary rulings on the admissibility of evidence may not be disturbed absent a mistaken exercise of discretion so long as the rulings are consistent with applicable law. State v. Fortin, 189 N.J. 579, 597 (2007); State v. Cook, 179 N.J. 533, 568-69 (2004); Tarr v. Bob Ciasulli's Mack Auto Mall, 390 N.J. Super. 557, 563 (App. Div. 2007), aff'd, 194 N.J. 212 (2008). Error in the admission of evidence is not harmful if the defendant's fundamental rights were not impaired and the evidence against the defendant enjoys great weight. State v. Soto, 340 N.J. Super. 47, 65 (App. Div.), certif. denied, 170 N.J. 209 (2001).
Finally, our review of a trial judge's calculation of enhanced damages under the offer-of-judgment rule is plenary. Rowe v. Hoffman-La Roche, 383 N.J. Super. 442, 452 (App. Div. 2006), rev'd on other grounds, 189 N.J. 615 (2007). The issue presented is entirely a question of law. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").
First, defendant argues that "Dr. Errico did concede that he did not see any  swelling or water accumulation on the M.R.I. films" and that "[t]he [j]ury could reasonabl[y] conclude that no . . . injury to the [plaintiff] took place as a result of the accident with [defendant]." Defendant goes on to argue that the testimony of the other doctors in the case also supported a finding that the accident did not cause the injuries. As such, defendant contends that "the verdict is against the weight of the credible evidence, [and] the verdict should be vacated and a New Trial granted."
Plaintiffs argue that "there is nothing in the record to indicate that the verdict was a miscarriage of justice." They point out that, while there was not evidence in the M.R.I. of swelling, Dr. Errico never stated that this was dispositive. As a consequence, the jury was free to weigh that testimony with all of the other evidence. Further, Drs. Errico and Evans had both examined Valantina and testified that the injuries were caused, or at least exacerbated, by the accident. The jury was free to weigh the credibility of the evidence and the testimony of the witnesses; therefore, there was no miscarriage of the justice in this verdict.
It is clear from our scope of review that defendant's argument lacks merit. The judge was required to accept the medical evidence and view it in a light most favorable to plaintiffs. Taweel, supra, 58 N.J. at 236. She was also required to "accept the conclusion that the jury believed the plaintiff['s] injury claims and the testimony of [her] supporting witness." Ibid. Furthermore, we may only reverse the trial judge's ruling where "it clearly appears that there was a miscarriage of justice under the law," Rule 2:10-1, giving due deference to the trial court's "feel of the case." Feldman, supra, 97 N.J. at 463. In light of the testimony of Drs. Evans and Errico, which the jury was entitled to credit, we find no miscarriage of justice under the law and affirm the verdict for plaintiffs.
Defendant next argues that "[t]he amount of damages awarded in this case was clearly not borne out by the evidence presented." He argues that Dr. Errico's admission that there was no swelling noticeable in the M.R.I. was significant in that it showed that the damage was pre-existing and not caused by the accident.
Plaintiffs, however, argue that Taweel, supra, 58 N.J. at 231, supports the proposition that the trial court was bound to deny the motion for remittitur because it had already denied the motion for a new trial. Plaintiffs further argue that "[i]n accepting the testimony in the light most favorable to the plaintiffs, the jury heard evidence that [Valantina] has constant pain in the neck and numbness in her hands. Her lifestyle and activities have been significantly altered [and] [g]iven [that] her life expectancy [is] over 25 years, the yearly damage award is quite reasonable."
The proposition that remittitur cannot be granted unless a new trial is awarded is more clearly stated in Caldwell, 136 N.J. 422.
Remittitur denies a defendant a new-trial motion on the condition that a plaintiff consent to a specified reduction in the jury's award. Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987). The practice of remittitur is encouraged at both trial and appellate levels in cases involving excessive damages. Baxter, supra, 74 N.J. at 595; Fritsche, supra, 55 N.J. at 330-31. The practice "gives plaintiff the choices of accepting the reduced verdict or suffering a new trial on damages." Mulkerin v. Somerset Tire Serv., Inc., 110 N.J. Super. 173, 176 (App. Div. 1970); see Taweel, supra, 58 N.J. at 231. However, the practice is available if the only issue is the quantum of damages, the claimant's right to relief is clear, and "the verdict was not the result of compromise or otherwise tainted." Sylvia B. Pressler, Current N.J. Court Rules, comment 1 on R. 4:49-1 (1994).
[Caldwell, supra, 136 N.J. at 443; see also Pressler, Current N.J. Court Rules, comment 3 on R. 4:49-1 (2008).]
Defendant has failed to meet his burden of proving that damages are excessive. In light of Dr. Errico's credentials and the absence of any evidence of inconsistent statements on his part, the jury was entitled to accord greater weight to his testimony than that of defendant's experts. He testified that the trauma of the accident most likely caused the displacement of the herniated disk at C6-7 and caused pressure on the spinal cord, which was consistent with Valantina's neurological signs, symptoms and pain. He also testified that she may require cord decompression surgery in the future as a result of the accident. With these proofs before the jury, the damages awarded to her, although on the high side, are not excessive. Furthermore, she suffered a significant alteration in her previous lifestyle. Thus, the damages were not so disproportionate to the injury and resulting disability that the trial judge should have disturbed the verdict. McRae supra, 349 N.J. Super. at 597. We find no basis for reversing this determination.
Defendant contends that the judge erred in awarding damages under the offer-of-judgment rule. Rule 4:58-1 provides that "any party may, at any time more than 20 days before the actual trial date, serve on any adverse party, without prejudice, and file with the court, an offer to take a monetary judgment in the offeror's favor . . . for a sum stated therein (including costs)." Rule 4:58-2(a) imposes a consequence for not accepting such an offer.
If the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed, in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later . . .; and (3) a reasonable attorney's fee, which shall belong to the client, for such subsequent services as are compelled by the non-acceptance.
First, defendant contends that the trial court no longer had jurisdiction under Rule 2:9-1 to make such an award after defendant's initial notice of appeal was filed. However, an improvident appeal from an interlocutory order has no impact on the trial court's jurisdiction over the action. Shimm, supra, 375 N.J. Super. at 302-03; Savage v. Weissman, 355 N.J. Super. 429, 435 (App. Div. 2002). As a consequence, we find no merit to this contention.
Defendant next argues that the calculation of fees should not have included all matters from the original date of the offer of judgment but should have, instead, only allowed fees for the services rendered after we remanded the matter for a new trial on March 28, 2006. Plaintiffs contend that the calculation of attorney's fees was proper because Rule 4:58-2 makes no mention of the exclusion of retrials and "there is no prejudice to the defendant who is sophisticated enough to understand the consequences of not accepting the offer."
This issue has previously been resolved by us in Negron v. Melchiorre, Inc., 389 N.J. Super. 70 (App. Div. 2006), certif. denied, 190 N.J. 256 (2007). There, we held: that the sanctions provided in Rule 4:58-2 are enforceable against the party who fails to accept an offer of judgment "prior to the 10th day before the actual trial date or within 90 days of its service, whichever period first expires," Rule 4:58-1, even if the first trial results in a mistrial. The only requirement for the enforceability of these sanctions is the entry of a final judgment disposing of the case. Rule 4:58-5. It matters not whether the final judgment was entered after the completion of one trial, or, as here, after the completion of the third trial. [Id. at 76.]
Because the rule contains no exclusion for the complexities of litigation between the time of the offer for judgment and the final verdict, defendant's argument is without merit.
Defendant also argues that there was no factual substantiation for the rates claimed by respondents and that the award of fees would be a double recovery because defendant "assumed" that plaintiffs had a contingency fee arrangement with their lawyer. We do not doubt that defendant's assumption was probably correct, but the rule does not limit an award of fees to the normal contingency-fee rate; and, in any event, appellate work is generally not covered by contingency-fee agreements. Finally, we note that plaintiffs provided detailed accounts of the basis for their fee calculations and, thus, the quantum of fees awarded was properly supported.
After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the final issue presented by defendant is without sufficient merit to warrant extensive discussion in this opinion, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on March 16, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).
In addition, we note that the defendant knew of the existence of the cancelled checks for housekeeping assistance because they were admitted at a previous trial, therefore appellant suffered no surprise from their admission into evidence. Valantina testified to the information contained in the evidence and appellant had a full opportunity to cross-examine her with respect to those services. Further, as plaintiffs observe, the "evidence of cancelled checks was but one factor in the jury's award of $48,000 to Nejat Hedvat for his loss of consortium." We find no mistaken exercise of discretion on the part of the trial judge in admitting this evidence. Even if the judge mistakenly exercised her discretion, no new trial was warranted because there was no "miscarriage of justice under the law." R. 2:10-1.