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Miller v. New Jersey Manufacturers Insurance Co.


April 27, 2009


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-17032-06.

Per curiam.


Submitted March 30, 2009

Before Judges Reisner and Sapp-Peterson.

Plaintiffs Andrew Miller and Wendy Miller*fn1 appeal from the May 7, 2008 order memorializing the judgment of no cause, following a jury trial, in favor of defendant New Jersey Manufacturers Insurance Company (NJM) in this underinsured motorist action. Plaintiffs also appeal from the June 6, 2008 order denying their motion for a new trial. We affirm.

Plaintiff was involved in a motor vehicle accident on October 4, 2001, while stopped at a stop sign. She was rear-ended by a vehicle operated by John J. Mitrushi. Plaintiff claimed that she sustained disk herniations/bulges at C4-C5, C5-C6, C6-C7, L4-L5, and L5-S1 that caused her neck and back pain. Plaintiff underwent a cervical diskectomy at the C4-C5 level with allograft and plate/screw insertion.

At trial, plaintiff testified that prior to the accident, she suffered from headaches in connection with her menstrual cycle which were "treatable," but following the accident, her headaches occurred during all times of the month, were excruciating, and incapacitated her for days at a time. She also testified that prior to the accident she experienced no lower back symptomology. She explained that her pre-accident activities included bike riding, rollerblading, walking the dog, and performing household chores such as plumbing, sanding floors, painting and carpentry. She also acknowledged that ten years before the accident, she experienced a sore neck the day after going on bumper cars with her daughter at an amusement park. She had one treatment with a chiropractor and one visit to her family physician as a result of this soreness. An MRI taken of her neck at that time revealed a mild disk herniation at C4-C5. She experienced no further symptoms stemming from the bumper car experience over the next ten years.

Plaintiff's husband and daughter also testified. They corroborated her testimony that prior to the accident, she was asymptomatic for any condition, was not under a doctor's care for any treatment, was not taking medication, except for her monthly headaches, and was not restricted in any of her daily activities.

Plaintiff's expert witness, Dr. Fernando Delasotta, a neurosurgeon, acknowledged that plaintiff had a pre-existing disk herniation at C4-C5. He opined, however, that the 2001 motor vehicle accident caused new injuries to plaintiff's cervical and lumbar spine.

NJM called one witness, Dr. John Cristini, an orthopedic surgeon. He testified that he initially opined that plaintiff's injuries were causally related to the accident but later changed that opinion when he learned that plaintiff had been involved in the bumper car incident and reviewed the MRI taken ten years earlier. Based upon his review of the earlier MRI, he concluded that all of plaintiff's cervical disk herniations were the result of a pre-existing degenerative condition. He explained that by comparing the 1991 MRI with the post-accident MRI taken in 2002, he was of the opinion that as far back as 1991 there was a focal herniation of two discs in the cervical region. And during that interim period of time of greater than ten years, what was seen on the subsequent MRI studies represents the natural progression of a degenerative change associated with those disc herniations, and the development of degenerative change at other levels in the -- in the spinal column as well.

In addition to the testimony from the witnesses, the court, without objection, admitted a photograph of plaintiff's vehicle.

The jury unanimously answered "No" to the question whether plaintiff "established that she sustained any injuries that were proximately caused by the accident?" The court entered judgment in favor of defendant. Plaintiff filed a motion seeking a new trial, which the court denied. The present appeal followed.

On appeal plaintiff contends the trial judge erred when he failed to grant plaintiff's new trial motion, and the jury's verdict was against the weight of the evidence. We reject each of these contentions.

The record on appeal fails to include any of the papers submitted by the parties in support of and in opposition to plaintiff's motion for a new trial. Nor does the record include the transcript of the argument, if any, of that motion or a statement of the judge's reasons, whether oral or written. We have only an order entered on June 6, 2008, denying the motion. Consequently, there is nothing in the record to inform us of the basis of the court's reason for denial.

Rule 2:5-4(a) provides:

Contents of Record. The record on appeal shall consist of all papers on file in the court or courts or agencies below, with all entries as to matters made on the records of such courts and agencies, the stenographic transcript or statement of the proceedings therein, and all papers filed with or entries made on the records of the appellate court. The portions of the record that must be included in the appendix filed by appellant are set forth in Rule 2:6-1(a).

Plaintiff's failure to adhere to this rule warrants our disregard of plaintiff's first point. Nonetheless, we have elected to consider the issue because there is no indication that the arguments advanced in her appellate brief are any different than what was argued before the trial court. In that regard, plaintiff essentially argues that NJM's evidence failed to rebut the abundant evidence she produced demonstrating that her injuries were proximately caused by the May 4, 2001 motor vehicle accident.

The trial court's decision on a motion for a new trial will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial court regarding the "intangible 'feel of the case,'" not transmitted by the record, namely, credibility and demeanor. Id. at 6; see also Carrino v. Novotny, 78 N.J. 355, 360 n. 2 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Here, the jury was presented with conflicting testimony on the issue of causation from two experts and they apparently found the testimony of defendant's expert more credible than that offered by plaintiff's expert. We discern no miscarriage of justice. The jury was free to reject Dr. Delasotta's testimony and the testimony of plaintiff, her husband and daughter.

Likewise, the verdict was not against the weight of the evidence. There was substantial credible evidence in the record to support the jury's finding that all of plaintiff's complaints were causally related to her degenerative condition. There was evidence in the record that plaintiff, at the time of trial, had not treated with any medical provider for her injuries in over five years. Plaintiff also testified that the impact between her vehicle and the vehicle operated by Mitrushi was severe. Admitted into evidence, without objection, was a photograph of plaintiff's vehicle, from which the jury may have concluded otherwise as to the severity of the impact. See Brenman v. Demello, 191 N.J. 18, 34 (2007) (finding the trial court did not "palpably abuse its discretion when it permitted the admission of photographs that fairly and accurately depicted the condition of the rear of [the] plaintiff's car").

The resolution of the question of causation was largely "a battle of the experts." Das v. Thani, 171 N.J. 518, 524 (2002). Assessing the credibility of expert testimony is uniquely within the province of the jury. State v. Vandeweaghe, 177 N.J. 229, 239 (2003) (citing State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991) (quoting Commonwealth v. Seese, 512 Pa. 439, 443 (1986)), aff'd, 130 N.J. 554 (1993)). The jury is never bound to accept the testimony of an expert witness. State v. M.J.K, 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). The jury may accept some of an expert's testimony and reject the rest. Todd v. Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993). Here, the jury heard all of the expert testimony, weighed that testimony along with the testimony of all of the witnesses and other evidence introduced during the trial, and made its determination. Based upon our careful review of the record, we are convinced that "reasonable minds might accept the evidence as adequate to support the jury verdict." Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)).


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