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DeVirgilio v. Westbrook


March 31, 2010


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-926-05.

Per curiam.


Argued March 5, 2009

Before Judges Carchman, R. B. Coleman and Sabatino.

After a two-day trial in this automobile negligence case, a jury determined that plaintiff, Francine DeVirgilio, was not entitled to any monetary damages. The jury reached that determination as to damages after separately finding that: (1) the defendant motorist, Roy L. Westbrook, was negligent and had proximately caused the collision and plaintiff's bodily injury; and (2) plaintiff had sustained a permanent injury that would not heal "to function normally with further medical treatment," thereby surmounting the limitation-on-lawsuit threshold provisions of the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-1.1 to -35.

Following the verdict, plaintiff moved for a new trial, or, in the alternative, to have the court apply an additur and award her money damages. The trial judge denied the motions and, consistent with the verdict, entered final judgment for defendant.

Plaintiff now appeals. She argues that because the jury found defendant was liable for the accident and had caused her permanent injuries, it is a manifest injustice to not award her monetary damages for pain and suffering. We reject this contention, and affirm the judgment.


More than a decade ago, plaintiff and defendant began living together in Hazlet Township. Plaintiff, who at the time of trial was in her mid-fifties, is a state-licensed beautician. Since receiving her license in 1970, she has worked as a beautician at various salons. At the time of the subject accident, she was employed at two salons, LA Hair and Riverside Salon.

On July 22, 2003, plaintiff and defendant were traveling in defendant's PT Cruiser sedan in Middletown Township. Defendant was at the wheel of the PT Cruiser, and plaintiff was in the front passenger seat, wearing a seat belt. While going an estimated thirty miles per hour, the PT Cruiser struck the rear of another vehicle stopped at a traffic light. The impact caused airbags in the PT Cruiser to deploy. After getting out of the car, plaintiff felt pain as she reached back into the car to retrieve her pocketbook. She asked to be driven to a hospital but declined an ambulance.

Immediately police were dispatched to the accident scene. When they arrived, they promptly drove defendant to his home so that he could retrieve another vehicle in which to transport plaintiff to an emergency room.

After arriving at the hospital, plaintiff was admitted and placed under the care of a Dr. Murugesan.*fn1 She was discharged three days later. Following her discharge, plaintiff continued to see Dr. Murugesan. After conducting a magnetic resonance imaging ("MRI") examination, Dr. Murugesan recommended that plaintiff be examined by an orthopedic physician.

Consequently, plaintiff was referred to the Shore Orthopedic Group, where she was seen by an orthopedic surgeon in the practice, Cary Glastein, M.D. After examining plaintiff, Dr. Glastein prescribed a regimen of physical therapy. Because the physical therapy did not abate plaintiff's continuing neck pain, Dr. Glastein referred plaintiff to Scott Woska, M.D., a colleague in his practice group who specializes in interventional pain management. Dr. Woska is board-certified in physical medicine, rehabilitation and pain management.

Dr. Woska found that plaintiff had sustained disc herniations in her cervical spine at C3-4 and C6-7, along with a disc bulge at C4-5 and a "ridge disk complex" at C5-6.*fn2 He then performed an electromyography ("EMG") study, which reinforced his opinion that plaintiff had, in fact, sustained multiple cervical herniations, causing her to experience radiating pain in both arms.

Between March 22 and June 14, 2004, Dr. Woska saw plaintiff four times. In addition to prescribing oral pain medications for her, Dr. Woska recommended that plaintiff get a cervical epidural steroid injection. Plaintiff declined the injection because she has severe allergies to iodine and shellfish. Her objection persisted despite being assured that a different type of injection would produce no allergic reaction. However, plaintiff did obtain acupuncture treatment at some unspecified time after her final visit with Dr. Woska.

On February 17, 2005, plaintiff filed a personal injury action in the Law Division against defendant. The complaint alleged, among other things, that because of defendant's negligent operation of the motor vehicle, "plaintiff was caused to sustain various severe personal injuries, both temporary and permanent in nature." Because plaintiff, by virtue of her insurance policy, is admittedly subject to the lawsuit limitation provisions under AICRA, her complaint was accompanied by a certification of permanency from Dr. Woska, in compliance with N.J.S.A. 39:6A-8.

Following a period of discovery, defendant filed a motion for summary judgment, alleging that plaintiff's injuries were insufficient to vault the AICRA threshold limitations. After hearing oral argument, the motion judge denied defendant's application.*fn3 Consequently, the court reserved for a jury the questions of permanency, causation and other medical issues raised by the competing lay and expert proofs.

Trial commenced before a different Law Division judge on June 30, 2008. After jury selection and opening statements from counsel, the jury heard testimony from plaintiff, defendant, and defendant's expert medical witness, Michael Gordon, M.D. The jury also was presented the de bene esse deposition of plaintiff's medical expert, Dr. Woska.

In addition to describing the happening of the accident, plaintiff testified about the changes in her physical condition following its occurrence in July 2003. She asserted that before the accident, she was able to cut her patrons' hair without any difficulty, and that, in general, she was pain-free. She stated that she used to maintain a garden with flowers and vegetables. After the accident, however, plaintiff experienced what she termed as "[t]otal changes."

In particular, plaintiff asserted that due to her injuries, she is no longer able to work at LA Hair. She remained employed at Riverside Salon, but claimed that after the accident, she could no longer "do the shampoos . . . sweep the hair, fill the bottles, fold the towels," and that she "would drop [her] scissor[s] . . . [.]" Plaintiff recalled that prior to the accident, she would work from "eight o'clock in the morning . . . till six [p.m.]." By comparison, as of the time of trial in the summer of 2008, she could no longer work the same hours and she still has difficulty holding scissors. Even so, plaintiff asserted no economic claims for lost wages, restricting her damages claims to an award for pain and suffering.

Plaintiff contended that she can no longer garden. In addition, her recreational trips with defendant to Atlantic City have ceased.

On cross-examination, plaintiff did not dispute that she had not received additional treatment from May 2005 through the time of trial in July 2008. She admitted that she was able to resume some gardening activity. She also acknowledged that the pains in her neck and back had been "improving."

In Dr. Woska's videotaped testimony, he indicated that, after reviewing plaintiff's MRI, he had initially recommended physical therapy for plaintiff and an epidural injection into her spine. He also noted that, after a physical examination, plaintiff "showed restricted range of motion with pain, which is generally a sign of some underlying pathology from the trauma." He recalled that he placed plaintiff on "a number of medications to treat nerve[-]related pain." Dr. Woska further testified that on "a scale from zero to ten," with "ten being excruciating pain," plaintiff "provided a number of eight[,] suggesting moderate to severe pain present on a daily basis."

Dr. Woska noted that plaintiff had "no prior history of neck problems, never had an accident before . . . and suddenly after the accident she is having all of [this] pain . . . [.]" In his opinion, plaintiff's "disc trauma, nerve trauma, and her complaints at that time were causally related to [the instant] car accident."

Following Dr. Woska, the jury heard testimony from defendant's expert, Dr. Gordon, a board-certified orthopedic surgeon. Plaintiff did not challenge Dr. Gordon's expert credentials.

Dr. Gordon informed the jury that he reviewed plaintiff's records and, thereafter, in September 2005, examined her. Based upon that review, Dr. Gordon determined that plaintiff suffered from "arthritic changes at C4-5, C5-6, and to a lesser degree, C6-7." He attributed some of those changes to plaintiff's age. Dr. Gordon further noted that plaintiff suffered from degenerative disc disease. He ultimately opined that plaintiff had a sustained a "cervical sprain or strain" related to the motor vehicle accident, but that it was not a permanent injury.

The last witness presented to the jury was defendant. His very brief testimony was essentially limited to the mechanics of the accident itself. He was not asked questions about plaintiff's pre-accident condition or her post-accident injuries by either counsel. Defendant testified that he had been distracted by a vehicle encroaching on his lane and thus did not see the vehicle in front of him come to a stop. Defendant further testified that he never applied the brakes before striking the vehicle in front of him. He also confirmed that the airbags in his car were deployed.

The following day, the trial judge administered the jury charge. He included in his charge the following instruction pertaining to plaintiff's claims for damages:

Damages. Disability, impairment, loss of enjoyment of life, pain and suffering. That's what she's entitled to recover if you find she's entitled to damages. . . . If you find [plaintiff] is entitled to recover fair and reasonable money damages for the full extent of the harm caused, if you find for [plaintiff], then she's entitled to recover fair and reasonable money damages, for the full extent of the harm caused, no more, no less. [(Emphasis added).]

In conjunction with his oral delivery of the charge, the judge simultaneously displayed to the jurors a PowerPoint slide presentation. The presentation closely tracked the judge's oral instructions, except for the following text contained on one of the slides:

A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent injury resulting in disability to or impairment of her faculties, health or ability to participate in activities as a proximate result of the defendant's negligence.

[(Emphasis added).]

This slide describing the nature of non-economic harms varied from the judge's spoken charge, in that it omitted the conditional reference that an award for such losses would only be appropriate "if" the jury found plaintiff entitled to damages. Instead, the slide unconditionally suggested that once the jury "awarded a verdict" to plaintiff, she would be "entitled to" compensation.

The court provided the jurors with a five-question verdict sheet. The verdict sheet asked: (1) whether defendant was negligent; (2) whether his negligence was a proximate cause of the accident; (3) whether plaintiff's injuries were proximately caused by the accident; (4) whether plaintiff had proven a permanent injury and thereby had surmounted the verbal threshold; and (5) what amount of damages was appropriate.

Shortly into the deliberations, the jury foreperson forwarded a note to the judge with the following question: "In the event that we reward [sic] the plaintiff an amount of money, and we are uncertain of an amount, or [sic] what factors should be considered in discussing an amount?" After a brief discussion with counsel, the judge re-called the jury and gave them the following description of the factors to consider, tracking the language of Model Civil Jury Charge 8.11E:

Here are some factors you may want to take into account when fixing the amount of the award for disability, impairment, loss of enjoyment of life, and pain and suffering because those are the things you can award money for. Disability, impairment, loss of enjoyment of life, and pain and suffering. . . . Here they are, you may consider plaintiff's age, usual activities, occupation, family responsibilities, and similar relevant facts in evaluating the probable consequences of the injuries you find she has suffered. You have to consider the nature, character, and seriousness of any injury, discomfort, or disfigurement. . . . The law does not provide you with any table, schedule or formula by which a person's pain and suffering, disability, impairment, loss of enjoyment of life may be measured in terms of money. That amount is up to your sound discretion.

The jury then returned to the jury room to deliberate.

After their deliberations concluded later that same day, the jury returned the following verdict:

1. Was the defendant negligent in his operation of his automobile on the date of the accident?

Answer: Yes.

2. Was defendant's negligence a proximate cause of the accident?

Answer: Yes.

3. Was the accident a proximate cause of plaintiff's alleged injuries?

Answer: Yes.

4. Do you find that plaintiff has shown by objective, medical, credible evidence that, as a result of the accident, she sustained a permanent injury as a result of which her neck has not healed to function normally and will not heal to function normally with further medical treatment?

Answer: Yes.

5. What amount of money would fairly compensate plaintiff for the injuries caused by the accident?

Answer: Zero.*fn4

[(Emphasis added).]

Thereafter, plaintiff filed a motion for a new trial, or in the alternative, additur. After hearing oral argument, the trial judge denied plaintiff's application. The judge relied, in part, on his analysis of Chamberlain v. Sturma, 94 N.J. Super. 1 (App. Div. 1966), aff'd, 48 N.J. 556 (1967), and Love v. National Railroad Passenger Corp., 366 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355 (2004), and an unpublished opinion in another automobile accident case, Gonzalez v. Sipala, No. A-6354-04T1 (App. Div. August 1, 2006).*fn5

The judge determined that Chamberlain and Love were factually distinguishable from the present matter because of the serious nature of the injuries in those cases and the plaintiffs' associated treatments, as contrasted with the less severe nature of the instant plaintiff's injury and her limited treatment history. The judge went on to add that Gonzalez, where only temporary injuries were involved, provided a comparable factual scenario, noting that the jury's denial of damages in that case was affirmed on appeal.

On the whole, the trial judge concluded that the jury's decision was supported by the record. He denied a new trial and also denied additur.

Plaintiff thereafter filed the present appeal. She argues that the jury verdict is inconsistent and unjust in denying her an award of damages, and that trial judge erred in denying her a new trial and additur.


We begin with a recognition of the fundamental principle that jury trials are a bedrock part of our system of civil justice, see N.J. Const. art. I, ¶ 9, and that the factfinding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "'impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).

Consequently, the Rules of Court provide that a jury's verdict should not be set aside and a new trial granted, unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1. "[J]ury verdicts should be set aside in favor of new trials only with reluctance and then only in the cases of clear injustice." Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997) (citing Goss v. Am. Cyanamid, Co., 278 N.J. Super. 227, 239 (App. Div. 1994)).

Moreover, on appeal from a denial of a motion for a new trial or for additur, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Such deference is particularly appropriate in the present case, which turned substantially on credibility factors, as well as a subjective assessment of plaintiff's injuries and the degree of pain and suffering associated with her post-accident complaints.

Plaintiff argues that a confounding factor in this case is the jury's findings, pursuant to the AICRA verbal threshold, that the accident was the proximate cause of her injuries, and that, in particular, her neck injuries are permanent and that her neck "will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8a. Plaintiff contends that these findings of causation and permanent injury cannot be reconciled with the jury's failure to award her any damages.

The implication of plaintiff's argument is, in essence, that once a jury finds that a plaintiff has surmounted the AICRA requirements of permanency and proximate causation, she is automatically entitled to a positive award of compensatory damages. We do not read the AICRA statute or the pertinent case law to impose such a per se mandate.

It is well established that, under AICRA, automobile policyholders in New Jersey have the choice to make "lower premium payments in exchange for limiting their right (and the right of those covered by the policy) to sue for non[-]economic damages if injured in an accident." DiProspero v. Penn, 183 N.J. 477, 480-81 (2005); see N.J.S.A. 39:6A-8a (limitation on lawsuit option). "Non-economic loss" is defined as "pain, suffering and inconvenience." N.J.S.A. 39:6A-2i.

This well-known limitation acts to prevent lawsuits by potential plaintiffs for non-economic damages related to the car accident "unless that person has sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. "An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. A plaintiff need not prove a "serious life impact" in order to present her non-economic damage claims to a jury, as was required under a previous version of the statute. DiProspero, supra, 183 N.J. at 481-82.

Although DiProspero construed AICRA to eliminate the necessity of proving a serious life impact to present claims of pain and suffering to a jury, nothing in the Supreme Court's opinion, or in the text of the statute itself, obliges a factfinder to award compensatory damages once the verbal threshold has been vaulted. An injury may well be permanent, but still not significant enough in severity to warrant compensation. The normal subjective factors that juries must weigh in considering any claims of pain and suffering, whether in or apart from AICRA cases, still control. As the Model Civil Jury Charge on pain and suffering aptly instructs, in pertinent part:

The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience.

You are to exercise sound judgment as to what is fair, just and reasonable under all the circumstances. You should, of course, consider the testimony of [plaintiff] on the subject of his/her discomforts. You should scrutinize all the other evidence presented by both parties on this subject, including, of course, the testimony of the doctors who appeared.

After considering the evidence, you shall award a lump sum of money that will fairly and reasonably compensate [plaintiff] for his/her pain, suffering, disability, impairment, and loss of enjoyment of life. [Model Jury Charge (Civil) § 8.11E (emphasis added).]

As the Model Jury Charge reflects, the assessment of the value of pain and suffering is highly nuanced and subjective. The law provides no "yardstick" for such an assessment. Ibid. Although the Model Jury Charge does use the verb "shall" in its last sentence, the charge as a whole does not mandate a positive award of damages. In particular, if the jury concludes that it is neither "fair" nor "reasonable" to award damages and awards none, then the jury has fulfilled its duty, unless that conclusion is manifestly unjust and against the weight of the evidence. R. 4:49-1. The jury has no obligation to award positive damages where, in essence, it has determined that a plaintiff's injuries, although they may never vanish, are not sufficiently pronounced to warrant financial recovery. Otherwise stated, the law does not require a remedy for a de minimis harm. Paternoster v. Shuster, 296 N.J. Super. 544, 559 (App. Div. 1997) (citing Beseman v. Pa. R.R. Co., 50 N.J.L. 235, 237-38 (Sup. Ct. 1888), aff'd o.b., 52 N.J.L. 221 (E & A 1889)).

We recently applied these principles in Kozma v. Starbucks Coffee Co., ____ N.J. Super. ____ (App. Div. 2010). In that case, a fifty-year-old plaintiff slipped and fell on ice outside of the defendant's coffee shop. He claimed that he suffered serious and permanent injuries from the incident, and he underwent arthroscopic surgery after the accident to repair both of his knees. Id. (slip op. at 3-4). He thereafter had periodic injections of fluid into his knees. He also suffered headaches and neck and lower back problems that caused him to obtain further medical and chiropractic treatment. Id. (slip op. at 4). In addition, he complained of pain and numbness in other parts of his body, prompting him to treat with a pain management specialist. Id. (slip op. at 4-5). At trial, the plaintiff presented expert testimony supporting his claim that he had sustained permanent injuries from the slip and fall. Id. (slip op. at 8) .

Upon assessing these proofs, the jury in Kozma concluded that the defendant was sixty percent negligent in causing the accident, and that the plaintiff's injuries were proximately caused by the accident. Id. (slip op. at 2). However, the jury concluded that the plaintiff was not entitled to monetary compensation, awarding him zero damages. Ibid. The trial court denied the plaintiff's motion for a new trial or additur, id.

(slip op. at 6), and we sustained those rulings on appeal. Id. (slip op. at 12).

Applying essentially the same principles and case law that are implicated here, we held in Kozma that "the evidence was susceptible to an interpretation that minimized the monetary equivalent of plaintiff's pain and suffering to its vanishing point." Id. (slip op. at 9). Recognizing our limited scope of review of jury verdicts, we detected no "manifest injustice" in the outcome awarding the plaintiff no damages. Id. (slip op. at 9). Among other things, we observed that the jury rationally could have found that the fall at the coffee shop "was inconsequential in affecting plaintiff's lifestyle and quotient of pain and suffering." Ibid.

Notably in Kozma, we distinguished two cases that are also primarily cited by plaintiff here--Love and Chamberlain--in holding that those cases do not compel a positive recovery of punitive damages.

In Love, supra, an injured railroad worker sued his employer under the Federal Employer's Liability Act ("FELA"), 45 U.S.C.A. §§ 51-60, "which permits railroad workers to recover for injuries suffered on the job in specified circumstances." Love, supra, 366 N.J. Super. at 527. The plaintiff, while working as a trackman, was injured when he was alerted to the presence of an oncoming train and was forced to jump out of a hole in which he was working. Id. at 528-29. The plaintiff remained at work that day, but after complaining of being "stiff," he went to the emergency room. After leaving the hospital, the plaintiff received therapy for his pain. Id. at 529. Over the next three years, he suffered from continuing pain in his back, his knees "would give out" on several occasions, and he was ultimately forced to have several surgeries to his knees, which culminated with knee replacement in both legs. Id. at 529-30. After a jury trial, in which the jury found medical causation between the incident and plaintiff's injuries, the plaintiff in Love was awarded $65,000 for lost wages, but received no compensation for pain and suffering. Id. at 531-32. We vacated the verdict on appeal, and remanded for a new trial.*fn6 In doing so, we noted the dissonance between the jury's award of lost wages to the plaintiff, who had multiple surgeries and knee replacements, and its denial of damages. Id. at 534.

We held in Kozma that the scenario in Love, which ultimately provided an award of pain and suffering to that FELA plaintiff, did not require an award of damages to Kozma for the injuries resulting from his slip and fall. The present case, in which plaintiff, unlike the plaintiffs in both Love and Kozma, has undergone no surgeries, presents a far weaker and distinguishable factual record. Plaintiff stopped treating in 2005. In contrast to the plaintiff in Love, she admittedly has no past or future wage loss claim. Moreover, as opposed to the judge who presided over the second trial in Love, the trial judge here found no basis to award pain and suffering through the device of additur.

We also distinguish, as we did in Kozma, the circumstances in Chamberlain. The latter case involved an injured plaintiff who required a month-long hospitalization after hurting his cervical spine in an accident. Chamberlain, supra, 94 N.J. Super. at 4. The jury awarded the plaintiff no damages. We vacated that outcome and remanded for a new trial, mainly because defendant's own medical expert had acknowledged that plaintiff had sustained a back injury that was causally related to the accident. Ibid. In Kozma, we found Chamberlain inapposite because the medical expert for the defendant in Kozma opined that the plaintiff's symptoms were consistent with pre-existing conditions and did not damage or aggravate his prior conditions. Kozma, supra, ___ N.J. Super. ____ (slip op. at 11). Likewise here, defendant's medical expert, Dr. Gordon, essentially ascribed plaintiff's injuries to pre-existing arthritic and degenerative conditions, not to the automobile accident, and that her injuries stemming from the accident were only temporary.

Having performed our own independent review of the record, we are satisfied that the jury had a rational basis to withhold an award of pain and suffering in this case, and that neither the jury's assessment nor the trial judge's denial of post-trial relief comprised a manifest injustice. Plaintiff treated for only a short period of time after the accident, and did not resume treatment in the three years preceding the trial. She had no surgeries. She continued working, albeit with discomfort and limitations, and she lost no wages. She resumed gardening, one of her major forms of recreation. Although she was able to persuade the jury that her injuries from the accident would not heal, the jury had a rational basis to regard them as too minor to warrant compensation.

The judgment of the Law Division is hereby affirmed.

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