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Browne v. Sempel

March 15, 2010

NOVENA BROWNE, PLAINTIFF-RESPONDENT,
v.
JENNIFER SEMPEL AND SHERWIN EDWARDS, DEFENDANTS-APPELLANTS, AND FRANCIS SEMPEL, DEFENDANT.
BRONWEN BROWNE, PLAINTIFF-RESPONDENT,
v.
NOVENA BROWNE, DEFENDANT-RESPONDENT,
DARYLE MORRIS, FRANCIS SEMPEL, LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANTS, AND JENNIFER SEMPEL AND SHERWIN EDWARDS, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-2807-05 and L-2865-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 22, 2010

Before Judges Reisner and Yannotti.

In this intersection accident case, defendants Sherwin Edwards and Jennifer Sempel appeal from two judgments dated March 6, 2009 in favor of plaintiffs Bronwen Browne and Novena Browne. They contend that the Civil Part presiding judge erred in denying their request to adjourn the eleventh scheduled trial date; that the trial judge erred in directing a liability verdict, after the defense produced no witnesses to contest plaintiffs' testimony that defendants' vehicle caused the accident by going through a red light; and that the trial judge should have remitted the jury verdicts of approximately $500,000 for Bronwen and about $400,000 for Novena for their spinal herniated disc injuries. Finding no merit in any of these contentions, we affirm.

I.

The accident occurred on May 21, 2003. At the trial, both plaintiffs testified that their vehicle was stopped at a red light and only moved forward into the intersection when the light turned green. According to Novena Browne, the driver, when her car reached the middle of the intersection, she saw defendant's van approaching from the right, but believed that he would stop because he had the red light. Instead, defendant's van went through the red light and hit her car on the passenger side. As a result, the Browne vehicle was totaled, and both sisters were taken by ambulance to the hospital.

Placing her damages in context, Novena Browne, a forty-nine year old Newark resident, testified that just prior to the accident, she was in her last semester of a course of study to become an auto mechanic. Due to the physical limitations caused by her accident injuries, she was unable to pursue that career path, and at the time of trial she was working as a clerk at a Wal-Mart store.

Novena's sister Bronwen, who lived with her, suffered a similar disastrous limitation on her career path. She testified that she missed more than a year of work due to the accident injuries. She also testified that she was trained as a registered nurse but was unable to go back to that career because of the limitations caused by her injuries. Instead, she was answering telephones at a Home Depot store.

As further discussed below, plaintiffs produced medical evidence that they incurred serious injuries in the accident, including herniated spinal discs. Both plaintiffs testified to the severe and continuing pain they suffered and their unsuccessful efforts at treatment. They also detailed the significant impact on their daily life activities caused by their daily pain and their physical limitations.

Both plaintiffs produced testimony from a chiropractor and a board certified orthopedic surgeon detailing plaintiffs' injuries, the unsuccessful efforts at treatment, the permanency of the injuries and the accompanying pain they caused, and the limitations those injuries would place on plaintiffs' life activities. Plaintiffs' experts also confirmed that the injuries, including the herniated discs, were caused by the accident.

Plaintiffs first presented the testimony of their treating chiropractor, Frank Belverio. Belverio testified he began treating Novena Browne on May 28, 2003, because she had "complaints and injuries to her neck, her right shoulder, her upper back, her lower back, and her right leg." Upon her initial appointment, Novena reported "marked headaches, neck pain, shoulder stiffness, mid back tightness, rib sprain/strain with pain, lower back pain, leg pain, lumbar spasms." After doing a full chiropractic examination, Belverio found that Novena "did have a decreased range of motion in the cervical region, also in the lumbar region." Belverio noted that "most of her spasms and pain were coming from the right side . . . and it was marked." At that time Novena reported her pain as a nine on a scale of one to ten. Belverio testified that Novena's complaints were "related to the accident" one week earlier.

Belverio treated Novena three times a week for the next few months. Her treatments included chiropractic adjustments, muscle stimulation, massage, traction, and strengthening exercises. In August 2003, Belverio reduced her treatments to twice a week. At that time, Novena was still experiencing spasms and pain, although her reported pain level had decreased to a seven out of ten. Belverio testified that Novena's radiating pain and reported arm tingling were "indicative to either a disc herniation or a disc bulge."

In September 2003, Belverio reduced Novena's treatments to once per week. At that time, she was still experiencing neck pain, back tightness, arm tingling, lower back pain, sciatica and lumbar spasms. Upon termination of her treatment with Belverio in December 2003, Novena continued to report similar symptoms.

At some point during Novena's treatment, Belverio sent her to have an MRI, which he reviewed. Belverio referred Novena to a neurologist, Dr. Nalini Prasad, to determine if Novena had any nerve damage. Belverio testified that Novena's findings on the neurological tests were "positive" for her neck and her back. Belverio referred Novena to an orthopedic surgeon because she was still in pain and had "disc injuries." Belverio testified that Novena ...


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