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Nessler-O'Neill v. E & M Associates


April 13, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0384-04.

Per curiam.


Argued November 10, 2008

Before Judges Lisa, Sapp-Peterson and Alvarez.

This is an appeal and cross-appeal in which plaintiff appeals from a $200,000 verdict following a bench trial arising out of a slip and fall on premises (the property) owned by defendant, E & M Associates, and leased by defendant, Marty Sussman, Inc., d/b/a Marty Sussman BMW/Honda (collectively defendants). Defendants cross-appeal the trial court's calculation of prejudgment interest. Defendants, in their cross-appeal, urge that the court misapplied the prejudgment interest rule. We affirm the judgment awarded to plaintiff as well as the court's award of $25,969.22 in prejudgment interest.


The events giving rise to the trial court's verdict occurred on February 15, 2002, when plaintiff fell on the property located in Egg Harbor. On February 5, 2004, plaintiff filed a complaint against defendants in which she alleged that as a result of the fall, she sustained injuries to her back, ankle and foot. At trial, the primary factual dispute related to the causal connection between plaintiff's claimed injury to her back and the fall.

Three days after the accident, plaintiff presented to the Atlantic Shore Orthopaedic Associates (Orthopaedic Associates) and was treated by Dr. Daniel Dalzell, who prescribed a right ankle brace, a left knee brace and crutches. He also prescribed physical therapy three times per week for two weeks. According to Orthopaedic Associates' records, plaintiff's next visit to the office was on July 31, 2002, at which time plaintiff was seen by Dr. Daniel DeMeo, another orthopaedic surgeon in the practice. Dr. DeMeo testified that he diagnosed tarsal tunnel syndrome in plaintiff's right foot and performed surgery on plaintiff for this condition on October 31, 2002. During plaintiff's post-operative visits, plaintiff continued to complain of pain in her right leg, ankle and foot that also radiated into her buttocks and lower back. Dr. DeMeo ordered an MRI of plaintiff's lumbosacral spine that was performed on November 5, 2003. The MRI revealed "disk bulge" with "moderate to severe bilateral neural foramen narrowing" at L3-4, an "annular fissure resulting in severe left neural foramen narrowing and moderate to severe right neural foramen narrowing" at L4-5, and a herniation at L5-S1.

Plaintiff, based upon her consultation with her regular physician and in consultation with Dr. DeMeo, came under the care of Dr. Robert A. Sabo, a neurosurgeon. At Dr. Sabo's recommendation, plaintiff twice underwent epidural steroid injections that provided no relief to her. On February 23, 2004, Dr. Sabo performed an L3-S1 "posterior lumbar interbody fusion with laminectomy and instrument arthrodesis" -- rods and screws. Despite continued physical therapy, plaintiff's complaints were not alleviated and her symptoms increased.

Plaintiff next underwent re-operative fusion, during which the existing hardware was removed and replaced with new and larger hardware, along with additional bone from her hip. This second surgery also failed to alleviate plaintiff's pain in her lower back. Additionally, she developed gait dysfunction secondary to foot drop of her right foot. She testified that she continues to experience sensitivity in both her right foot and the portion of her spine where the fusion surgery was performed. As a result of the surgery, she also sustained permanent scarring, three on her back and one on her ankle. Although plaintiff, prior to the accident, had been declared totally disabled due to a pulmonary condition, she led an active life that included performing her own home repairs, landscaping, re-shingling her roof, stained glass art and wood crafts projects, running, walking, hiking, biking, rowing, kayaking, Tai Bo, kickboxing, caring for her dogs and fishing. According to plaintiff and the several witnesses who testified on her behalf and with whom plaintiff maintained long-standing relationships, the residuals of the accident and two surgeries left her essentially housebound.

The medical experts, including defense experts, who testified, agreed that plaintiff's injuries to her right foot and ankle were causally related to the accident. They also agreed that plaintiff's disk herniation at L5-S1 was causally related to the accident. Dr. Greenwood, the defense expert who also testified on behalf of plaintiff, disagreed that the bulging disks at L3-4 and L4-5, with moderate spinal stenosis, were causally related to the February 15, 2002 accident. In his opinion, these bulges were consistent with pre-existing degenerative disk disease.

At the conclusion of the trial, the court rendered an oral opinion. On the question of liability, the court found that defendant was 100 percent liable for the resulting accident, but that plaintiff had failed to prove defendant's actions were wanton and willful. As to damages, while the court was satisfied that plaintiff had met her burden in establishing that she sustained injuries that were causally related to the accident, the court concluded that plaintiff had "not met her burden by a preponderance of the evidence that all her current ailments are attributable to the fall . . . ." The court determined that "the sum of $200,000 will fairly and reasonably compensate the plaintiff for injuries and damages she sustained at the defendant's property . . . ."

Plaintiff moved for reconsideration. During oral argument, plaintiff's counsel argued:

There was no testimony anywhere that any of her complaints now are not related to the surgery. The surgery, both surgeries in this case are causally related to one or two herniated dis[k]s, and I believe Your Honor found there were two dis[k]s that were, that were caused by the fall. So, again, just using legal logic, if you have the injury that is then treated, and the treatment doesn't cure the problem, it doesn't - if you want to say, well, she had to have a second surgery, yeah; but the treatment didn't cure the problem, and her present problems are from what she got from that treatment, it all legally follows. That's, that's my position, which I think is, is the law of causation, that it's not an obligation[.]

Additionally, plaintiff's counsel argued that even if the court found plaintiff's testimony regarding her visits to Dr. DeMeo between February 18, 2002 and July 31, 2002, which visits were not reflected in any of Dr. DeMeo's records, lacked credibility, the court did not "find that the witnesses . . . that were produced were incredible, and understanding the physical problems that she's having now, what she said about the visits to Dr. DeMeo should have no effect on what she's saying her present problems . . . are because they've been corroborated." The court rejected all of the arguments advanced on plaintiff's behalf and denied reconsideration. The present appeal followed.

On appeal, plaintiff contends the trial judge erred by holding that the plaintiff did not demonstrate her injuries were proximately caused by her fall. We disagree with plaintiff's characterization of the trial court's factual findings. The trial court simply concluded that plaintiff had failed to prove, by the preponderance of the evidence, that all of her injuries were attributable to the fall.

We do not glean from the record, as plaintiff's counsel suggested during the reconsideration motion, that the damages award did not include compensation for any ongoing back symptomatology plaintiff was experiencing subsequent to the first and second surgeries or that such complaints were not recoverable as part of plaintiff's pain and suffering. Rather, we are convinced the court, after considering the evidence, was not persuaded that all of plaintiff's back injuries and resulting symptomatology were causally related to the accident.

There was substantial credible evidence in the record to support the trial court's findings on this issue, including her pre-existing disk degeneration, the conflicting evidence of whether plaintiff ever returned to Orthopaedic Associates during the months immediately following the accident, and the lack of any documentation of such therapy. Additionally, Dr. Sabo testified that he only learned that plaintiff experienced a specific painful incident involving her back in the fall of 2003 outside of the courtroom on the very day of his testimony. He explained that he had "based all of [his] opinions on the fact that [he] had been told that there was no significant trauma intervening or prior to [the fall of 2003]." When it had been explained to him outside of the courtroom that morning, "the way [he understood] the story, which again [was] not first-hand, was that it was a sudden onset of exacerbation of symptoms . . .

[w]ithout significant trauma." Plaintiff, however, in her testimony, had characterized the pain she experienced in this shopping trip as more significant:

A: I went back to Dr. Davidson. And then I went with my girlfriend shopping in Hammonton.

Q: Which girlfriend?

A: Carmel.

Q: Carmel.

A: Her and I are friends, that friendship has ended because of this. But the concrete, it was a nice day. I had shorts on. It was a summer day. Something just came up from my feet, up my right leg into my back. I would have to say a monster of numbness, a frozenness. The pain was so excruciating it was just chills. And Dr.

Davidson again sent me back to Dr. DeMeo.

As the trier of fact, the trial judge had the unique ability to assess the credibility of plaintiff, which he found lacking in important respects. To the extent that an appropriate medical diagnosis and resulting treatment relies heavily upon the patient's history, as provided by the patient, in addition to objective diagnostic examinations, the court's assessment of plaintiff's credibility is critical. See Matthies v. Mastromonaco, 160 N.J. 26, 34 (1999) (observing that "[c]hoosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients, [and] [t]o discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment . . . under the circumstances.") (emphasis added). Further, Dr. Sabo, who performed the two back surgeries on plaintiff, opined that causally relating plaintiff's L3-4 to trauma versus a degenerative condition "would be a tough one[,]" and although he was prepared to agree that it was probably from trauma, he could not offer that opinion with "medical certainty."

Our Supreme Court has defined the scope of appellate review of a trial judge's fact findings in a non-jury case, as were the circumstances here, stating that such findings: should not be disturbed unless . . . they are so wholly insupportable as to result in a denial of justice. . . . That the finding reviewed is based on factual determinations in which matters of credibility are involved is not without significance. . . . Findings by the trial judge are considered binding on appeal when supported by adequate substantial and credible evidence. . . . It has otherwise been stated that our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. [Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974) (citations and internal quotations omitted).]

Measured against these standards, we are satisfied that there is substantial credible evidence in the record to support the judge's factual determination that plaintiff failed to prove that all of her injuries were causally related to the February 15, 2002 accident. Those findings are entitled to our deference and we discern no miscarriage of justice in the findings or the legal conclusion reached as a result of those findings or the resulting $200,000 judgment awarded.


In their cross-appeal, defendants argue that pursuant to Rule 4:42-11(b), any prejudgment interest should not have been computed on plaintiff's attorney's contingent fee. Instead, defendants urge that prejudgment interest should have been calculated on $133,333.33 (the award minus the attorney's contingency fee). We disagree and conclude this argument lacks merit.

Under subsection (a) of Rule 4:42-11, "judgments, awards and orders for the payment of money . . . shall bear simple interest as follows." Additionally, subsection (b), dealing with tort actions, states that, subject to certain irrelevant exceptions, the court shall "include in the judgment simple interest . . . ." R. 4:42-11(b). The rule further states: "Prejudgment interest shall be calculated in the same amount and manner provided for by paragraph (a) of this rule . . . ." Ibid. Thus, prejudgment interest is calculated on the full amount of the judgment. The final sentence of subsection (b) then says: "The contingent fee of an attorney shall not be computed on the interest so included in the judgment." Ibid. Therefore, although the full amount of the judgment includes interest, the calculation of the percentage contingent fee of the attorney must be computed only on the principal amount of the judgment, not the interest.



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