May 27, 2009
LEE HAMBRO AND DOREEN HAMBRO, PLAINTIFFS-APPELLANTS,
JOSEPH CLAPA, DEFENDANT-RESPONDENT, AND JOHN CLAPA, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-6258-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 5, 2009
Before Judges Carchman and Sabatino.
Plaintiffs Lee Hambro and Doreen Hambro*fn1 appeal from a jury verdict and entry of judgment finding no cause for action on plaintiff's claim for personal injuries suffered as a result of an automobile accident. The judgment was based on the jury's negative answer to Question #1 of the verdict sheet, inquiring whether plaintiff "suffer[ed] a permanent injury proximately caused by his August 24, 2005 motor vehicle accident . . . ." We affirm.
We briefly set forth the facts relevant to the issues on appeal. On Wednesday, August 24, 2005, at approximately 4:30 p.m., plaintiff was driving on Route 40 on his way to pick up his son from day care. As plaintiff was stopped in a line of traffic, he was struck from behind by another vehicle. Plaintiff described the accident at trial:
Well, I was -- I was standing there. Next thing I know I heard errr (phonetic), bang. I mean I didn't even get a chance to hear a skid so I could kind of hold up. As my head went back I looked up in the mirror and I --I saw his car veer off and I was trying to move my head back to see where I was headed because I thought I had hit the car in front of me and -- because he -- it seemed like we slid forever and it was the largest bang you've ever heard, like a cannon going off in the car.
Following the accident an EMT "jumped inside the car and was holding [plaintiff's] head." Shortly thereafter, defendant overheard a conversation between plaintiff and the EMT regarding whether plaintiff needed an ambulance. Defendant stated that when the EMT asked plaintiff if he needed an ambulance, he initially said "no"; however when the EMT said defendant's insurance "would cover it," an ambulance was then called. The ambulance took plaintiff to the emergency room at Atlantic City Medical Center in Pomona, New Jersey.
At trial, plaintiff described the extend of his pain upon arrival at the hospital:
My neck, my head. I had a really good headache. My hands were numb. My back hurt. My leg was hurt. I had pain down my legs, mainly my left leg and -- and just numbness in my hands right here.
Plaintiff was x-rayed, prescribed medicine for the pain and discharged. Over the next few days, however, plaintiff complained of headaches and "tightening up." Plaintiff returned to work the following Monday, five days after the accident.
Plaintiff then embarked on an extended course of treatments. He first treated with a chiropractor, Dr. Barry Rizzo, who had treated him previously for another back injury. Dr. Rizzo sent plaintiff for an MRI and referred him to see Dr. Andrew Glass. Dr. Rizzo also recommended physical therapy, which did not provide relief. Plaintiff then underwent a series of diagnostic procedures including an MRI, EMG testing and a myelogram.
Plaintiff sought treatment from Dr. Bruce Hairston, for pain management. Dr. Hairston ordered "SI injections," cortisone injections and acupuncture. Plaintiff also treated with Dr. Jeffrey Petersohn who ordered some "rhizotomies" done on plaintiff. This procedure required plaintiff to be placed under anesthesia while the doctor would "burn out the first branch of  nerves."
Plaintiff continued to suffer from headaches, neck pain and back pain every day thereafter as well as problems with his memory. Plaintiff saw Dr. Robert Pasahow, a psychologist, for about six months to treat his memory difficulties.
At trial, plaintiff complained that he still has a burning feeling in his neck, suffered from numbness in his hands and problems with his left leg. Plaintiff claimed that he has to limit his lifting and cannot carry any does not do any heavy lifting, which has reduced his productivity at work. Plaintiff also asserted that because of the pain, he cannot participate in certain sporting activities with his son. He claimed that he had difficulty driving along his normal route where the accident took place. Plaintiff was also forced to hire someone to perform lawn and pool service instead of him performing these activities himself.
Plaintiff is a musician; however, he can no longer play his instrument, the drums, because of the pain. Plaintiff complained that, although he is 44 years of age, he feels like he is in his "late 80s, 90s." Plaintiff stated, regarding intimacy with his wife, that "there's no real relation there." Plaintiff stated that home exercises and swimming seem to aggravate his pain. He also claimed that he is not able to drive long distances because after sitting in the car for more than a few hours it feels like a "hot poker straight down your leg," and he has trouble sleeping because there is "no comfortable position for long periods of time."
Dr. Andrew Glass, a neurosurgeon, began treating plaintiff within a few weeks after the accident. After extended treatment of plaintiff from approximately September 2005 until May 2006, Dr. Glass concluded:
My diagnosis was posttraumatic cervicalgia. Neck pain following a traumatic injury. Bilateral cervical radiculopathy. Again, a disorder of the nerve roots leaving the neck. Herniated nucleolus pulposus which is a medical term for a ruptured disk or herniated disk. C3-4, C4-5, C5-6, and C6-7 posttraumatic low back pain. Again, low back pain following a traumatic injury of the lower back with bilateral lumbosacral radiculopathy or disorder of the nerve roots leaving -- leaving the spine in the lower back. . . . .
I reported that I believed within a reasonable degree of medical probability that the motor vehicle accident of August 24th, 2005 was causally responsible for his subsequent symptomatology. . . . .
I do believe that [the injuries are] permanent in nature.
In December 2007, Dr. Glass found from the MRI "disk osteophyte complexes at C5-6 and C6-7," and stated this "extra calcium builds up in that area and that can cause as much pressure on the nerve as the -- the disk problem itself . . . ."
Plaintiff also presented the testimony of Dr. Derrick Aita, a clinical psychologist and neuropsychologist. On December 15, 2006, Dr. Aita performed a series of twenty-three "psychometric, psychological, neuropsycholigical" tests on plaintiff. Dr. Aita found that plaintiff has some "fluctuations or variability with his ability to process information quickly" and also that plaintiff has a degree of "depression and anxiety present." Dr. Aita opined that plaintiff's condition was "more consistent with a history of post-traumatic stress disorder." He further stated plaintiff had a "depressive disorder, and a pain disorder both influenced by medical conditions and psychological or emotional -- his emotional status or factors." Dr. Aita concluded that the cause of plaintiffs depression is attributed to the August 24, 2005 accident.
Defendants Joseph Clapa and John Clapa countered with the opinion of Dr. Roy Friedenthal, an orthopedic surgeon. After examining plaintiff, the doctor opined that these injuries were not caused by the accident but by age. He concluded:
Based upon everything that I reviewed, it's my opinion that there was no permanent damage, no structural injury sustained to either the neck or the back in this accident. The -- The -- The diagnoses that I put in my initial report were status post-possible cervical and lumbar strain by history. By his history he had onset of symptoms in his neck and back following this accident. They were strain injuries. But there's no evidence that there was any structural damage. No -- No evidence really of sprain or disruption of ligaments, no evidence of bleeding inside, no evidence of traumatic disk herniation. That everything that was identified were changes that pre-existed this accident and not altered by the accident. . . . The evidence is that he really was unchanged structurally from this and there was nothing on his clinical examination that confirmed any permanent damage and all the testing revealed that there was no permanent damage. His nerves were working normally. The disks appeared normal on diskogram. The only abnormal changes were changes that are commonly seen in 40 year olds as a part of normal wear and tear process. They're not even that extreme. I can't even say that this is more than average, that what I observed on the last MRI.
Following the jury verdict, plaintiffs moved for a new trial, which the trial judge denied. This appeal followed.
We first state some basic principles that guide our analysis of plaintiffs' arguments. "Jury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). "In reviewing a trial court's ruling on a motion for a new trial, an appellate court shall not reverse a trial court unless it clearly appears that there was a miscarriage of justice under the law." Goss v. American Cyanamid, Co., 278 N.J. Super. 227, 239 (App. Div. 1994) (internal quotations and citations omitted). See also Romano v. Galaxy Toyota, 399 N.J. Super. 470, 477 (App. Div.), certif. denied, 196 N.J. 344 (2008). Furthermore, "[t]he 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 it's feel of the case, including credibility." Goss, supra, 278 N.J. Super. at 239-40 (internal quotations and citations omitted).
Plaintiffs' motion for a new trial requires the judge to grant the motion "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 on the law." R. 4:49-1(a).
At the argument on the motion for a new trial, plaintiffs argued the same three grounds that it now asserts on appeal: (1) "the medical evidence was so overwhelming that the jury's verdict was clearly and convincingly a miscarriage of justice;"
(2) the comments about defendant's insurance coverage prejudiced plaintiff before the jury; and (3) there was juror misconduct because one of the jurors was allegedly a customer at plaintiffs' store. In a thorough oral opinion denying the motion, Judge Nugent said in reference to the verdict being against the weight of the evidence:
Essentially I think the argument is that the medical evidence was so overwhelming that the jury's verdict was clearly and convincingly a miscarriage of justice, or put another way, that it was shocking to the conscience, to use counsel's words. I disagree with that assessment. Actually this case was very typical in terms of the issues and the expert testimony. It was similar to, you know, cases that are tried week in and week out, and even had some of the medical witnesses that we see frequently throughout the course of the year, but having said all that, essentially the plaintiff indisputably was subject to the statutory limitation on lawsuit threshold that I've already referred to. He attempted to grault (phonetic) that threshold through medical evidence that he had sustained a herniated disk in an accident and he presented a medical witness that gave that opinion. The defense presented the testimony of its medical witness, Doctor Friedenthal, and Doctor Friedenthal disagreed for a number of reasons that he clearly articulated during the course of his testimony, in his view the accident did not and could not have caused the herniated disk, which meant that if the jury believed Doctor Friedenthal, they would conclude that the herniated disk had not been sustained in the accident and -- and really there wasn't a lot of other medical evidence to support a permanency claim. The -- The disk was really the battleground and I have given due regard to the opportunity of the jury to pass on the credibility of witnesses and in my view -- and I'm not suggesting that I agree or disagree with their credibility assessment, but whether I do or don't is not relevant to this motion -- giving due regard to the opportunity they had to pass upon the credibility of the witnesses, they could have very easily believed Doctor Friedenthal's opinion. The evidence was not so overwhelming on the other side that their believing Doctor Friedenthal's opinion could be characterized as clearly and convincingly appearing that there was a miscarriage of justice and the fact that they believed him is not shocking to the conscience. . . . Giving due regard to the opportunity of the jury to pass on the credibility of the witnesses, particularly the medical witnesses, it does not appear clearly and convincingly that there was a miscarriage of justice in this case.
The judge then addressed the issue of the insurance comment made by the EMT. He said:
The testimony that is now complained of with respect to the EMT was admissible. First of all, whenever there is a statement made by a third party that serves as the predicate for a statement made by a party, the statement made by the third party is not hearsay.
It's not being introduced for the truth of the matter asserted. It's being introduced as the predicate for the reaction of the party and the party's statement is admissible as a statement of a party opponent. . . . And in terms of the statement made by the plaintiff, clearly it was relevant. It established a motive to seek medical treatment that, if believed, undermined his credibility that he needed medical treatment that day because of the pain that he was in or because of the severity of the injuries. So I made the decision that the statement of the EMT was not hearsay. As I said, I didn't think it was then and I don't think it is now, but I also gave the jury an instruction based upon that ruling. It was never called to my attention then or until this motion that the plaintiff brought the insurance issue, should have been excluded under Rule 403 because it may have led the jury to believe that the defendant's insurance company paid for all of the medical bills. . . . [H]ad a -- request for a 104 hearing been made, but it wasn't, I would have dealt with it in a 104 hearing. If there had been an objection after the fact based on undue prejudice, I could have instructed the jury on that, but I wasn't able to do any of those things because the objection was not made. I ruled on the one that was. It's my view under the law that in the absence of an objection, the plain error doctrine applies and applying that doctrine, I don't believe that that was so prejudicial that it could have created a miscarriage of justice and I'm not really articulating property (sic) the -- properly the plain error standard, but in my view, it was not plain error. I -- I don't believe that was so prejudicial that it would have required a mistrial at the time. Had the argument been made, I may have given a stronger limiting instruction. I may have given an instruction that the jury was not to speculate about whether, (a) there even was insurance, or (b) whether it paid for those or any other bills, and as I indicated, I didn't have the opportunity to do that in the absence of that and again, based on my understanding of what the plain error doctrine is, I don't believe it was plain error.
Lastly, as to the issue of a juror having been a customer in plaintiffs' business, the judge said:
Finally, there's this issue of a juror who is an engineer and a customer of the shop. Apparently the plaintiffs didn't recognize him as a customer throughout the course of the trial. Everyone knew he was an engineer because he told us that when we selected him and that was part of the voir dire process with the jurors. They got up and told us what they did and I think I conducted a voir dire that was fairly comprehensible on that point. So in my view, that argument is --is really one of speculation at this point and not absent more, grounds for a new trial. So for the three reasons that I've just explained, the motion for the new trial is denied.
Plaintiffs now argue again that the "prejudice to plaintiff after the jury heard twice that defendant's insurance paid for his medical treatment substantially outweighs the probative value." Plaintiffs also argue that "the absence of jury instructions regarding the prejudicial effect of the statement about insurance further increased the prejudice." Defendants argue the verdict should stand and that the importance of jury verdicts in the justice system is fundamental and the trial court and jury have a much better feel for the case.
We have recognized the possible prejudice comments about insurance coverage has on a party. "'[A]s a general rule, the probative value of information regarding whether a person is insured or not is substantially outweighed by the potential for undue prejudice.'" Wenz v. Allstate Ins. Co., 316 N.J. Super. 570, 574 (App. Div. 1998) (quoting Krohn v. New Jersey Full Ins. Underwriters Assoc., 316 N.J. Super. 477, 481-82 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999)). In Wenz we noted that:
On the one hand, awareness by the jury of the existence of insurance is thought to present the danger of an award of damages based upon the "deep pockets" of the carrier. On the other hand, the potential of evidence of lack of insurance for prejudicing a plaintiff's cause is obvious.
The jury may feel sorry for the defendant and either exonerate him completely or return a much lower verdict against him than the facts warrant. [Ibid. (internal citations omitted).]
We also reasoned that whether mention of the existence or non-existence of insurance coverage before the jury creates "reversible prejudice must depend upon the particular circumstances of each trial." Id. at 579. In Wenz we reversed and remanded for a new trial because the "jury was twice told the culpable tortfeasor was uninsured and that the plaintiff was seeking coverage from his own carrier, and, we think, may well have been led (at the least allowed) to believe that that somehow had some importance to the case." Id. at 578.
In Krohn, supra, we reversed a jury verdict and remanded for a new trial because we found "that [plaintiff's] counsel's repeated references to the subject of insurance seriously infected the [defendant's] rights to a fair trial." Krohn, supra, 316 N.J. Super. at 481. We reasoned that counsel's "repeated references to plaintiff's payment of an 'extra premium' and the insurers' abject refusal to honor their contractual commitments were irrelevant, inappropriate and had the capacity to deprive [defendant] of a fair trial." Id. at 483. Most importantly we noted that counsel's comments "had no bearing on the material issues, and were designed to prejudice the insurers in the eyes of the jury." Ibid.
In Pickett, we reversed and remanded for a new trial after "defense counsel's opening introduced plaintiff's election of 'the benefits of lower premiums' of verbal threshold insurance coverage as an issue for jury consideration." Pickett v. Bevacqua, 273 N.J. Super. 1, 3 (App. Div. 1994). We found that:
Defense counsel's reference to low cost benefits of verbal threshold coverage was totally inappropriate. The statements bore no relevance to the issues before the jury. The clear and prejudicial purpose was to induce the jury into believing that such low cost benefits were an element of plaintiff's right to recover--a completely irrelevant and improper purpose and one that could have significantly influenced the jury. [Id. at 5 (emphasis added).]
Relying on Pickett, we also reversed and remanded for a new trial in Demers v. Snyder, 282 N.J. Super. 50 (App. Div. 1995), where again counsel referred to the benefits of lower premiums. "In Pickett, this court determined that 'reference to low cost benefits of verbal threshold coverage [is] totally inappropriate.'" Id. at 57 (citing Pickett, supra, 273 N.J. Super. at 5). In Demers we extended Pickett:
We now hold it is beyond the scope of proper comment to mention verbal threshold insurance coverage at all. The fact that plaintiff had an insurance policy with a verbal threshold requirement compelling her to prove her injuries qualified under N.J.S.A. 39:6A-8a does not compel the conclusion the jury must be made aware of that requirement. In fact, that plaintiff has such insurance coverage is irrelevant in a verbal threshold case. . . .
There is no reason, except to prejudice a plaintiff in a verbal threshold case, to mention the fact that because of plaintiff's election of the verbal threshold option under her insurance policy, she lost her right to sue in court unless she establishes that she fits within one of the types of injuries listed in the law. [Id. at 58-59 (emphasis added).]
In applying Wenz, Krohn, Pickett and Demers, we must examine whether the comments about insurance here had some "bearing on the material issues" and whether they were designed to prejudice one of the parties. Krohn, supra, 316 N.J. Super. at 483.
We conclude that the fleeting references to "insurance" in the context of this trial were not such that they were either designed to create prejudice or did in fact, "infect" or alter the verdict. The insurance comments related to an issue of plaintiff's condition at the scene of the accident. They were encapsulated in the testimony of an EMT and designed only to establish that plaintiff used an ambulance when it was provided at no cost.
In contrast to Wenz, Krohn, Pickett and Demers, the reference to insurance was relevant to the extent of plaintiff's injuries. Because this evidence was used for the purpose of challenging plaintiff's credibility as to his statements about his injuries, it is clear that there has not been "'a miscarriage of justice under the law.'" Goss, supra, 278 N.J. Super. at 240 (quoting R. 2:10-1). This was not a prohibited situation in which proof of liability insurance was admitted "on the issue of that person's negligence or other wrongful conduct." N.J.R.E. 411.
We now address the issue of the juror. "The test for determining whether irregular influences on jurors merit a new trial is whether they 'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" Brown v. Kennedy Mem'l Hospital-University Med. Ctr. (Cherry Hill Div.), 312 N.J. Super. 579, 590 (App. Div.) (citing Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)), certif. denied, 156 N.J. 426 (1998). "A new trial, however, is not necessary in every instance where it appears an individual juror has been exposed to outside influence." State v. R.D., 169 N.J. 551, 559 (2001). The Supreme Court elaborated:
Ultimately, the trial court is in the best position to determine whether the jury has been tainted. That determination requires the trial court to consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings. The inquiry about whether extraneous information had the capacity to influence the result of the jury requires an examination of whether there was at least an opportunity for the extraneous information to reach the remaining jurors when that extraneous information is knowledge unique to one juror who is excused mid-trial. [Ibid.]
When the trial judge asked if any of the jurors knew the parties, none of the jurors, including Joseph Polisano, raised their hands. Plaintiff thereafter submitted a "Rent-to-Own Agreement" from Music & Arts, a store owned by plaintiff, which states that "Nicholas Polisano" "grade 4" was a student renting a trumpet. Joseph Polisano's name was written in the "parent or guardian" section below Nicholas' name. Then below that, under credit card information, "Mary O. Polisano" was written next to "Name (as it appears on card)." This is the extent of the evidence plaintiffs submitted in support of their claim of juror misconduct.
As the trial judge stated, this argument "is really one of speculation." We cannot be certain that Mr. Polisano ever even set foot into plaintiffs' store, let alone ever came into contact with plaintiffs themselves while in the store. We find no basis for our intervention on this issue.
Lastly, we find no basis for a new trial. As Judge Nugent correctly noted, the verdict was not against the weight of the evidence nor does it represent a miscarriage of justice. We affirm substantially for the reasons set forth in Judge Nugent's thorough and thoughtful oral opinion of March 28, 2008.