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Roper v. Pessar


October 9, 2008


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-507-04.

Per curiam.


Submitted: September 17, 2008

Before Judges Lihotz and Messano.

Plaintiff Pamela Roper appeals from an order denying her motion for a new trial following entry of a jury verdict in this negligence action against defendant TLC Realty, L.L.C. (TLC).*fn1

The jury determined liability, apportioned fault between defendant (sixty-five percent) and plaintiff (thirty-five percent), and fixed damages for reasonable medical expenses proximately caused by the accident in the amount of $48,378.70. The jury awarded no money for plaintiff's non-economic damages claim.

Plaintiff moved for a new trial maintaining the verdict was inconsistent. The motion was denied and plaintiff filed this appeal arguing she is entitled to a new trial on all issues. Defendant disputes that the verdict is inconsistent. However, in its cross-appeal, defendant suggests if a new trial is awarded, retrial of liability and damages must be allowed. We affirm.

A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977), and a jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), certif. denied, 180 N.J. 355 (2004). Thus, "[t]he standard for our 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).

A trial court may grant a motion for a new trial "if, 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." R. 4:49-1(a); Johnson v. Scaccetti, 192 N.J. 256, 280 (2007); Caldwell v. Haynes, 136 N.J. 422, 431 (1994); Baxter, supra 74 N.J. at 596. In this regard, reversal is warranted if the jury's verdict is "clearly the product of mistake, passion, prejudice, or partiality." Lanzet v. Greenberg, 126 N.J. 168, 175 (1991); Aiello v. Myzie, 88 N.J. Super. 187, 194, (App. Div.), certif. denied, 45 N.J. 594 (1965).

In correcting any clear error or mistake of the jury, the trial court may not substitute its own judgment for that of the jury merely because it would have reached the opposite conclusion. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). A trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)); Baxter, supra, 74 N.J. at 597-98.

We review a trial judge's decision on a new trial motion using the same standard. Dolson, supra, 55 N.J. at 7; R. 2:10-1. We must make our own determination as to whether there was a miscarriage of justice and defer to the trial judge only with respect to "intangible aspects of the case not transmitted by the written record[,]" namely, "witness credibility and demeanor and the 'feel of the case.'" (Pressler, Current N.J. Court Rules, comment 4 to R. 2:10-1 (2008); Baxter, supra, 74 N.J. at 597-98; Dolson, supra, 55 N.J. at 7. Beyond these "intangibles," this court is to make its own independent determination of whether a miscarriage of justice occurred. "[A]n appellate court must make allowance for factors which were evident to the trial court and jury but which cannot be gleaned from the written record." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970); Dolson, supra, 55 N.J. at 7. Also, the verdict must be considered in the light most favorable to the prevailing party. Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971).

Additionally, "a trial 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 the conscience and to convince him that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596. The presumption of correctness of a verdict by a jury is based upon centuries of common law wisdom merged into our constitutional framework. Id. at 598. Armed with these principles, we review the evidence presented at trial.

Plaintiff lived in a second-floor apartment located in a rooming house, which defendant T.L.C. Realty, L.L.C. (TLC) had recently purchased. On September 29, 2003, while ascending the central stairway in the rooming house, between the second and third floors, plaintiff was struck on the head and hand by falling ceiling plaster. A roof leak had been patched prior to plaintiff's accident. It was undisputed that the falling ceiling plaster resulted from a leaking skylight.

After the plaster struck plaintiff, she slipped on the stairs and began to fall backward. She grabbed the banister to steady herself and struck her back against the railing. Plaintiff swept the fallen plaster and placed it into a bag. Then, she called for help. The building superintendent's wife, who resided on the first floor, responded.

Plaintiff went to St. Michael's Hospital emergency room for treatment. She complained of a headache, face pain, a stiff neck and swelling of the fourth finger of her right hand. She made no mention of back pain or striking her back on the railing. Also, the records state she experienced no redness, cuts, bumps, bruising, or swelling, and had full range of motion. She was treated with ibuprofen and discharged.

The following day plaintiff experienced difficulty getting out of bed due to pain in her lower back. Approximately five days later, plaintiff commenced physical therapy at Newark Rehabilitation Center for her head, finger, neck, and back. Her recorded complaints included headaches, dizziness, back pain, neck pain, and right finger pain. Therapeutic modalities included hot wax treatments of her finger, hot compresses for her face, neck and back massage, electric stimulation and ultrasound for her back, and exercise. Plaintiff continued therapy for seven months.

In April 2004, plaintiff underwent an MRI. The imaging test revealed a herniated disc at L5-S1, impinging on the nerve root, and a bulging disc at L4-L5. Treatment for the disc abnormalities included two epidural steroid injections and same-day IDET surgery. The latter procedure is designed to shrink the disc material using microwaves transmitted through a conductive wire inserted into the disc.

Plaintiff's medical bills for all treatments totaled $58,936.88. Plaintiff's expert, David Lessing, M.D., an orthopedic surgeon, testified as to his examination of plaintiff's medical records. He stated the bills incurred were reasonable in amount and the services employed were necessary to treat plaintiff's condition.

Additionally Dr. Lessing examined plaintiff. Relying on a review of the medical records and plaintiff's expressions of current symptoms made during the examination, Dr. Lessing opined that plaintiff's disc problems resulted when she slipped and twisted on the stairs. He acknowledged he relied on the description of the accident provided by plaintiff.

Defendant contested liability and the necessity of treatment. Cross-examination of plaintiff, her fiancée and Dr. Lessing, as well as the factual testimony offered by the building superintendent, his wife, and the owner of TLC, Sam Pessar, tested plaintiff's version of events, the size of the detached plaster, the extent and nature of her symptoms and injury, and a possible motive for suit.

Following the jury's decision, the trial judge molded the verdict and entered judgment against defendant for $31,446.15, along with pre-judgment interest. Plaintiff's motion for a new trial was denied and this appeal ensued.

Plaintiff argues that once the jury determined she was entitled to an award for the reasonable and necessary medical expenses incurred in treating those injuries proximately caused by defendant's negligence, it was required to also award her damages for pain and suffering cause by those same injuries. She maintains this inconsistency shows the jury "failed to comprehend the issues involved in the trial and, by their verdicts, demonstrated their unfitness to determine the rights and obligations of the respective parties." Brendel v. Public Service Elec. & Gas Co., 28 N.J. Super. 500, 507 (App. Div. 1953). We disagree.

"We do not consider jury verdicts such as those returned here to be necessarily inconsistent." Love, supra, 366 N.J. Super. at 528. Here, plaintiff's credibility, particularly as to her experienced injury and the resultant pain and suffering, was strenuously challenged. Plaintiff's testimony in this regard was sparse, broad and non-specific. The jury apparently took a highly skeptical view of plaintiff's continued protests of unabated pain and inability to engage in normal activities. This view is supported by the record. Thus, it would not necessarily be inconsistent for the jury to determine plaintiff received a non-permanent injury for which certain medical treatments were reasonable, while also independently concluding plaintiff failed to prove adequate pain and suffering to support a damages verdict.

We distinguish this matter from Love, supra, which plaintiff cites to support her argument. In Love, the plaintiff endured multiple arthroscopic knee surgeries and two knee replacements, which were described at trial. 366 N.J. Super. at 531. The jury awarded the plaintiff $65,000 in lost wages and no pain and suffering. Id. at 527. We concluded the verdict was inconsistent because the jury failed to compensate plaintiff for "logically inescapable periods of pain and suffering" such as that experienced "as a consequence of . . . surgeries required, for the period of recovery, if not before and beyond[.]" Id. at 532. That basis is not present in the matter at bar. Plaintiff's treatments were principally palliative and she described the IDET procedure as "a little pinch."

Also, the jury by its award was not convinced that all of plaintiff's incurred medical costs were reasonable or necessary. Defendant's trial strategy challenged Dr. Lessing's unfamiliarity with the IDET surgery. Dr. Lessing admitted he was neither trained nor read about the surgery. Further he acknowledged the procedure was "relatively new" and he had not read the medical studies identified by the defense that concluded the procedure "may be no better than a placebo." Although we cannot conclude with certitude that the $10,400 expense for IDET procedure was the item excluded by the jury, we are struck by the closeness of that cost to the difference in the damages claimed and the amount awarded.

Accordingly, as found by the trial court, we conclude there was sufficient credible evidence present in the record as a whole to support the jury's verdict, which did not constitute a miscarriage of justice under the law. Crego v. Carp, 295 N.J. Super. 565, 577-579 (App. Div. 1996) certif. denied, 149 N.J. 34 (1997).


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