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Markin-Merwin v. Drews


May 4, 2009


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2872-02.

Per curiam.


Submitted March 17, 2009

Before Judges Graves and Espinosa.

On August 25, 2000, defendant Ryan J. Drews was driving an automobile in Brick, New Jersey, when he struck the rear end of an automobile operated by plaintiff Sheena J. Markin-Merwin*fn1 that was stopped in traffic. Plaintiff brought suit seeking damages for personal injuries.

In October 2007, the parties entered into a "high/low" settlement agreement in which plaintiff would receive a minimum of $60,000 and defendants would be required to pay no more than $650,000 in damages. At plaintiff's request, this agreement was refined further. By letter dated November 30, 2007, her counsel made the following proposal:

If Allstate remits to the plaintiff the sum of $58,500.00 by 5 p.m. on Friday December 7, 2007 plaintiff will give Allstate full credit for the $60,000.00 'low'. In effect we are offering Allstate a 'discount' of $1,500.00 on the $60,000.00 'low' if payment of $58,500.00 is received on or before the deadline set forth above.

There were further discussions between counsel regarding this proposal, a lower prepayment figure, and the possibility that plaintiff might waive prejudgment interest. In a letter dated December 5, 2007, defense counsel wrote to "confirm our various conversations . . . and your offer to waive interest." He advised that Allstate, the insurance carrier, agreed to pay the sum of $57,500 in exchange for a release executed by the plaintiffs for that amount. Defense counsel further noted that there should be additional correspondence executed by the plaintiffs to document the modification of their high/low agreement to reflect a low amount of $57,500. Defense counsel also outlined his understanding of how the high/low agreement would operate, including the scenario that occurred here: "[S]hould the jury come in with an amount less than $57,500 the previously executed release . . . would be forwarded to me along with the appropriate closing documents for the court. That would thereby end in its entirety, this litigation."

Plaintiff's counsel responded by letter dated December 5, 2007. He did not respond to the statement that the litigation would "end in its entirety" under the circumstances described. He only corrected defense counsel's reference to a waiver of prejudgment interest, stating that he had explicitly withdrawn the offer to waive prejudgment interest in an earlier letter. Plaintiff's counsel explained that prejudgment interest would be included within the parameters of the high/low agreement: "In other words, no matter what the verdict, with pre-judgment interest my total recovery cannot be above $650,000 or less than $60,000." Plaintiff's counsel asked defense counsel to advise whether the proposal set forth in his November 30, 2007 letter quoted above was acceptable and extended the deadline for reply to December 14, 2007.

An Allstate representative sent a letter, dated December 6, 2007, to plaintiffs' counsel stating that a settlement check was issued to the plaintiffs and their counsel in the amount of $57,500. After receiving this letter, plaintiffs' counsel wrote to defense counsel. Stressing that he had clearly indicated that the plaintiffs were not waiving any prejudgment interest, plaintiffs' counsel asked his adversary to confirm that the terms of the agreement were as follows:

By acceptance of this check, the Merwin's [sic] agree to waive any pre-judgment interest on the $60,000 low end of the high-low agreement. In other words, if a jury returns a verdict in the amount of $100,000, the Merwin's [sic] agree to waive any prejudgment interest on the first $60,000.

They would then compute the pre-judgment interest on $40,000.

Plaintiff's counsel asked that, if counsel agreed "that this constitutes the terms of the agreement, I would appreciate it if you would notify [the Allstate representative] of same in order that he can release the settlement draft to me." By letter dated December 18, 2007, defense counsel confirmed Allstate's willingness to accept the proposal so outlined and enclosed the settlement check of $57,500, payable to plaintiffs and their counsel.

Approximately one month later, the case proceeded to trial. Defendants stipulated liability for the accident. Because plaintiff was subject to the provisions of the "verbal threshold" statute, N.J.S.A. 39:6A-8a,*fn2 the issues for the jury to decide were whether plaintiff had suffered a "permanent injury" in the accident and, if so, the amount of her damages. A summary of the pertinent evidence follows.

Plaintiff Sheena J. Markin-Merwin struck her head against the windshield in the accident on August 25, 2000, causing the windshield to crack. She stated that, after the accident, she could not move her neck and left shoulder due to severe pain but had no cuts, bruises or bleeding. She was transported to Community Medical Center in Toms River, where she was X-rayed, examined and released. She returned for emergency medical treatment on September 2, 2000.

Plaintiff saw her chiropractor, Dr. Peter Ottone, for the first time on September 6, 2000. Plaintiff, twenty-six years old, gave the following complaints on that day: severe neck pain radiating down to the mid-thoracic spine, left arm and shoulder pain, numbness in the fingers, right biceps pain, a constant headache, low back pain radiating down both legs, stomach pain and right knee pain. Upon examination, Dr. Ottone found that plaintiff had severe cervical muscle spasm that was related to the accident. Dr. Ottone referred plaintiff to a neurologist who ordered an EEG. The EEG results were normal. Dr. Ottone also ordered a cervical MRI. He agreed that the MRI showed no evidence of disc herniation and no problem with any type of nerve involvement from the disc or from the spinal column. Plaintiff continued to treat with Dr. Ottone until April 2001. She consulted him again one year later in July 2002 and continued treatment for an additional year. Plaintiff last saw Dr. Ottone in April 2007 for a final examination but received no treatment. Plaintiff's cervical range of motion, motor strength, reflexes and neurological testing were all within normal limits at that time. At trial, Dr. Ottone testified that his diagnosis was cervical radiculopathy and a chronic misalignment of a vertebra, which he stated was permanent.

Plaintiff also presented the videotaped testimony of Dr. David A. Yazdan, a neurosurgeon. Dr. Yazdan testified that plaintiff had suffered a mild concussion, partially herniated discs at C5-6 and C6-7, and aggravation of her pre-existing syringomelia, a congenital condition in the thoracic area, as a result of the accident. On September 28, 2006, Dr. Yazdan performed a cervical diskectomy fusion at C5-C6, C6-C7, inserting a synthetic material as a substitute for a bone graft. Dr. Yazdan testified that, following the surgery, most of plaintiff's symptoms improved and some of them went away completely. Dr. Yazdan opined that the synthetic bone graft was a permanent condition.

Defendants presented the videotaped testimony of Dr. Steven G. Robbins, an orthopedic surgeon. Dr. Robbins disagreed with Dr. Yazdan's conclusions and diagnoses, most notably with the conclusion that surgery was indicated. He unequivocally stated, "the surgery that was done had no relationship to the accident." Dr. Robbins concluded that no objective findings supported a conclusion that plaintiff had suffered a permanent injury or explained her claimed symptoms.

Defendants also presented the videotaped testimony of Dr. Benjamin Mark, a neurologist. Dr. Mark testified that, as a result of the accident, plaintiff suffered a sprain/strain of her neck, a lumbosacral sprain/strain and a closed head injury. He opined that the closed head injury was not a permanent injury.

Prior to trial, defense counsel moved for the redaction of Dr. Yazdan's videotaped testimony. Dr. Yazdan had made a number of statements expressing his opinion, in very unflattering terms, that Dr. Robbins was not qualified to give an opinion as to the plaintiff's need for surgery. He referred to a statement made by Dr. Robbins as "the most ignorant statement anybody can make," stating further, "This simply indicates the ignorance of the individual. He doesn't know what he's talking about whatsoever . . . ." Disagreeing with another conclusion of Dr. Robbins, Dr. Yazdan stated, "even a sixth grader can understand" the point rejected by Dr. Robbins. Other comments included: "I mean the statement that he makes is really ridiculous." "C'mon, how can you make a statement like that?" "That simply shows the total lack of experience in this individual." "So, essentially I believe that this gentleman should not have made any comment about this case period. . . . And his lack of knowledge is quite obvious. I mean he shouldn't really make these statements."

In ordering the redaction of Dr. Yazdan's testimony, the motion judge stated that the determination whether Dr. Robbins was qualified to give an opinion was the function of the court and not that of another witness. He stated further that comments by Dr. Yazdan that Dr. Robbins was ignorant were inappropriate. The testimony as redacted was presented to the jury without further objection by plaintiff.

At trial, plaintiff's counsel did not object to the jury charge or to the verdict sheet. The verdict sheet consisted of three questions that differed from the sample interrogatories contained in the model jury charge. The first question on the verdict sheet asked, "Was the accident of 8/25/00 a proximate cause of injury to the plaintiff, Sheena Markin Merwin?" The jury answered, "No," by a vote of five to one. As a result, the jury did not proceed to consider the second question: "Based upon objective and credible evidence, has the plaintiff sustained a permanent injury as a result of this accident?" or the third question on damages.

A judgment of no cause of action was entered on February 7, 2008. Plaintiff filed a motion, asking the court to vacate the jury's "No" response to the first question on the verdict sheet and enter a directed verdict of "Yes" to that question or, in the alternative, to vacate the jury verdict and grant the plaintiff a new trial. The motion was denied.

On appeal, plaintiff raises the following issues:




Defendants argue that the high/low agreement constitutes an enforceable settlement that prevents plaintiff from pursuing this appeal. Plaintiff counters by stating that the appeal is not barred because she did not waive her right to appeal. The record here does not support a finding that the right to appeal was waived. However, because the errors alleged lack merit, we affirm the judgment.

Under ordinary circumstances, there would have been no payment to plaintiff until it was clear that the matter was resolved. However, plaintiff asked for a modification of that agreement to receive a discounted amount of $58,500, giving defendant "full credit for the $60,000 low" of the high/low agreement. In response, defense counsel confirmed an agreement for a lower prepayment of $57,500 and stated his understanding that the litigation would "end in its entirety" as part of this settlement, even if plaintiff obtained a verdict of less than $57,500. Unfortunately, there is no evidence of any further discussion or agreement between counsel regarding the circumstances under which the litigation would "end in its entirety." Plaintiff's counsel never corrected defense counsel's impression and defense counsel never insisted upon a written waiver of appeal. Instead, the correspondence which followed was concerned with the application of prejudgment interest to a jury verdict and the high/low agreement.

The high/low agreement is a contract subject to traditional rules of contract interpretation. Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182, 186 (App. Div. 2008); Shafer v. Cronk, 220 N.J. Super. 518, 521 (Law Div. 1987). The right to appeal is neither explicitly included nor excluded by the agreement itself. To find that plaintiff waived her right to appeal, the record must clearly show that she knew of the right and then abandoned it. She must waive the right "clearly, unequivocally, and decisively." Knorr v. Smeal, 178 N.J. 169, 177 (2003). The record is insufficient to support a conclusion that such a waiver occurred here.

The errors alleged are without merit, however, and do not warrant discussion beyond the following comments. R. 2:11-3(e)(1)(E).

Since plaintiff failed to object to the jury charge as required by R. 1:7-2, the claim of error advanced in her first point is subject to the plain error standard. In the charge conference, plaintiff's counsel stated that the content of the charge was "adequate" and that he had no objection. He asked the court to supplement the charge with language he had selected from a charge that defined permanency under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The court declined to do so but agreed to charge another part of counsel's request. Plaintiff's counsel agreed to this procedure and did not object to the final charge.

When a party has requested a charge that has been rejected by the court, the plain error standard will apply in the absence of an objection to the final charge. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000). To prevail under this standard, plaintiff must show "legal impropriety in the charge prejudicially affecting [her] substantial rights . . . and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Id. at 18 (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)).

Plaintiff has failed to meet even the first part of this test as she has not alleged any legal impropriety in the charge. The claimed error is that her request for particular language in the charge was denied. As plaintiff's counsel acknowledged at trial, the content of the charge was "adequate." Therefore, it was not error for the court to decline to charge specific language requested by the plaintiff. Berberian v. Lynn, 355 N.J. Super. 210, 219 (App. Div. 2002), aff'd in part, 179 N.J. 290 (2004).

In her second point, plaintiff argues that it was error to exclude portions of Dr. Yazdan's videotaped testimony that were redacted pursuant to a pretrial ruling. Plaintiff contends that the redacted portions of Dr. Yazdan's testimony should have been admitted into evidence at trial to rebut Dr. Robbins' testimony that the surgery was unnecessary. Plaintiff did not object to the admission of the videotaped testimony as redacted at trial and did not seek relief from the trial court until after the defense rested. Therefore, this claim is also subject to the plain error standard.

A trial court's evidentiary ruling is afforded "[c]onsiderable latitude" by this court and "will be reversed only if [the ruling] constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As the motion judge noted, the decision as to whether a witness is qualified to offer an expert opinion is a question of law that lies within the province of the court. State v. Ravenell, 43 N.J. 171, 182 (1964), cert. denied, 379 U.S. 982, 85 S.Ct. 690, 13 L.Ed. 2d 572 (1965); Rempfer v. Deerfield Packing Corp., 4 N.J. 135, 141 (1950). Expert witnesses may not render opinions on matters which involve a question of law. Healy v. Fairleigh Dickinson Univ., 287 N.J. Super. 407, 413 (App. Div.), certif. denied, 145 N.J. 372, cert. denied, 519 U.S. 1009, 117 S.Ct. 510, 136 L.Ed. 2d 399 (1996). Dr. Yazdan's proffered testimony that Dr. Robbins was not qualified to give an opinion in this case or on the need for surgery was, therefore, not a proper subject for expert testimony. Such testimony, in apparent conflict with the trial court's determination that Dr. Robbins was qualified to render an opinion, would have the capacity to confuse the jury, see McGarvey v. G.I. Joe Septic Serv., Inc., 293 N.J. Super. 129, 140-41 (App. Div.), certif. denied, 147 N.J. 263 (1996), and was properly excluded.

Plaintiff also failed to object to the verdict sheet at trial as required by Rule 1:7-2. Therefore, plaintiff's third point, addressing the interrogatory questions, is also subject to the plain error standard. This requires a determination of "whether the interrogatories were so misleading, confusing, or ambiguous that they produced an unjust result." Mogull v. CB Commercial Real Estate Group, Inc., 162 N.J. 449, 468, certif. denied, 165 N.J. 607 (2000).

The first jury question asked, "Was the accident of 8/25/00 a proximate cause of injury to the plaintiff, Sheena Markin Merwin?" Plaintiff now argues that this question was irrelevant. Because the jury answered "No," it did not consider the second question, "Based upon objective and credible evidence, has the plaintiff sustained a permanent injury as a result of this accident?" These questions were posed following a charge that properly instructed the jury on the burden of proof and the causal link required to impose liability.

The evidence of a "permanent injury" here was far from compelling. Dr. Robbins testified that it was his opinion "that the diagnosis [Dr. Yazdan] stated was wrong and that the surgery that was done had no relationship to the accident." His testimony included the following:

Q: Doctor, do you have an opinion as to whether or not Ms. Markin sustained a significant or serious injury as the result of the August 25, 2000 automobile accident?

A: Yes, I have an opinion.

Q: And what is that opinion?

A: That she did not. She may have sustained temporary soft-tissue injuries. She had negative imaging studies. She had inconsistencies in her exam. No permanent injury occurred as a result of this accident. . . .

A: Six years later she had an MRI that can be seen in people who never had a problem without pressing any nerves and unfortunately a neurosurgeon operated on her.

If the jury found this testimony more credible than that presented by plaintiff, they could have justifiably concluded that the accident did not cause either a "permanent injury" or an injury of any significance to plaintiff.

The first question on the verdict sheet asked the jury to determine proximate cause and "injury," a broader term than the "permanent injury" asked about in the second question. Since the first question did not set a higher bar for relief than the "permanent injury" required by N.J.S.A. 39:6A-8a, the jury did not deny plaintiff recovery based upon a standard of proof that was higher than she was required to meet. Therefore, even if the inclusion of the first jury question were considered error, the error did not deprive plaintiff of a fair trial.


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