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White v. Miller

September 11, 2009

JAMES WHITE, PLAINTIFF-RESPONDENT,
v.
JULIA MILLER, M.D., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, Docket No. DC-010947-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 9, 2009

Before Judges Payne and Waugh.

Defendant, Julia Miller, M.D., a plastic surgeon, appeals from a verdict against her and in favor of plaintiff, James White, in the amount of $2,900 plus costs, entered following a bench trial in the Special Civil Part. On appeal, defendant presents the following arguments:

(A) THE VERDICT OF THE COURT WAS INCONSISTENT WITH THE EVIDENCE AMOUNTING TO A PERVASIVE SENSE OF WRONGNESS AND THEREFORE SHOULD BE OVERTURNED.

(B) THE TRIAL COURT ERRED IN CONSIDERING HEARSAY TESTIMONY BY PLAINTIFF WHICH WAS THE SOLE BASIS FOR THE FINDING BY THE COURT IN FAVOR OF THE PLAINTIFF AND THEREFORE SHOULD BE OVERTURNED.

(C) UNER THE MOST FAVORABLE LIGHT, THE EVIDENCE CONSIDERED ON BEHALF OF THE PLAINTIFF IS INSUFFICIENT TO SUPPORT THE VERDICT AND IT SHOULD BE OVERTURNED.

(D) THE VERDICT ADVERSE TO THE DEFENDANT WAS SO INADEQUATE AS TO BE THE OBVIOUS RESULT OF AN EFFORT BY THE COURT TO CREATE A COMPROMISE IN LIEU OF A LEGITIMATE VERDICT BASED UPON THE EVIDENCE ADDUCED AT TRIAL AND SHOULD BE OVERTURNED.

(E) THE AMOUNT OF THE VERDICT FOR PLAINTIFF WAS EXCESSIVE, AGAINST THE WEIGHT OF THE EVIDENCE, AGAINST THE EVIDENCE PRESENTED AND AGAINST THE LAW.

Following our review of the transcript of trial, in light of the arguments presented by the parties and applicable legal principles, we affirm.

Our review of the factfinding conducted by the trial judge in this matter is limited. His verdict must be sustained if it could reasonably have been reached on sufficient or substantial credible evidence present in the record, considering the proofs as a whole and giving due regard to the ability of the judge to gauge credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

At the one-day trial of this matter, two witnesses testified: plaintiff and defendant. Both agreed that plaintiff contracted with defendant for the performance of cosmetic laser ablation on plaintiff's lower eyelids. Plaintiff determined to undergo the procedure following consultations on February 22, 2007, June 21, 2007, September 6, 2007, and December 17, 2007. On each occasion, plaintiff was informed that he needed to stay out of direct sunlight for a six-month period before and after the procedure.

On December 19, 2007, plaintiff booked the procedure, and at that time was given an informed consent form, which, among other things, stated: "I have been told that this procedure will not totally reduce my wrinkles and/or scars, and have also been apprised of the risks of direct sun exposure after this treatment." Plaintiff testified that he understood this warning to refer to the ...


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