June 6, 2011
JOSEPH INGRAO, PLAINTIFF-RESPONDENT, AND PAULA INGRAO, PLAINTIFF,
DANIEL GONCALVES AND SOUSA HARDWOOD FLOOR REFINISHING, INC., DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2263-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 23, 2011
Before Judges Lisa, Sabatino, and Alvarez.
After a jury trial in this personal injury case arising out of a motor vehicle accident, plaintiff Joseph Ingrao*fn1 was awarded $250,000 in compensatory damages, plus prejudgment interest. Defendants now appeal the award and seek a new trial on damages because of various asserted trial errors. We affirm.
We briefly state the pertinent facts. In doing so, we say little about the conduct of the respective motorists, as defendants before trial stipulated their negligence and their liability for causing the accident.
On the morning of March 27, 2008, defendant Daniel Goncalves was driving a Ford Econoline owned by his employer, defendant Sousa Hardwood Floor Refinishing, Inc., when he failed to stop at a red light. Defendants' van struck a Toyota Camry owned and operated by plaintiff Joseph Ingrao. Plaintiff, an electrical engineer for the United States Army, was driving his Toyota on his way to work at Fort Monmouth.
In his trial testimony, plaintiff described the mechanics of the accident as follows:
What happened was the light had turned red for the other side. It's one of those delayed lights. And this light van came flying -- well, came going through the red light, hit a car that had started out of Wyckoff Road which did a 360[-degree spin] and went about three cars behind me which projected him straight on to me, took out the light post that I was looking at for the red light. Thank goodness, that [post] didn't hit the car. And it came head on to me, which I went into the guy behind me, and there were seven cars [that were damaged] at the end of the day.
An ambulance arrived shortly thereafter, but plaintiff declined medical treatment at the scene.
Four days after the accident, on March 31, 2008, plaintiff went to his primary care physician, principally complaining of shoulder and neck pain and also numbness or tingling in his right hand. Plaintiff's symptoms did not abate. Consequently, eighteen days later, on April 18, 2008, plaintiff had an appointment with Cary Glastein, M.D., a Board-certified orthopedic and spinal surgeon.
Dr. Glastein testified that, at the time of plaintiff's initial visit in April 2008, he was of the opinion that plaintiff "had some radiculopathy of the cervical or lumbar spine. There [were] symptoms of pain radiating into his arm, pain radiating into his legs. There certainly was clinical suspicion of disk herniations and [he] felt that MRI[s], which were imaging studies[,] were appropriate."
Dr. Glastein ordered MRIs of plaintiff's cervical and lumbar spine. According to the radiologist's written findings and Dr. Glastein's personal review of the MRI films, the studies showed that plaintiff had two disc herniations: one in his cervical spine at C5-6 and a second in his lower thoracic spine at T11-12. Dr. Glastein concluded that plaintiff, who denied having previous neck or back injuries, had sustained the disc herniations as a proximate result of this motor vehicle accident. Dr. Glastein also opined that the films did not indicate to him that the herniations were the result of a degenerative condition.
Dr. Glastein referred plaintiff for treatment with a local chiropractor. The chiropractor treated plaintiff for about six months. Meanwhile, plaintiff had several more appointments with Dr. Glastein. On plaintiff's fourth and final visit with Dr. Glastein in September 2008, the surgeon observed that plaintiff "did seem to be improving," and consequently discharged him from his care.
Despite having been discharged by Dr. Glastein, plaintiff continued to have pain in his neck, back, and hand, which he claims affected his daily life activities. According to his testimony, plaintiff would experience pain when sitting for prolonged periods on airplanes, which was unavoidable because his job frequently required him to travel overseas. He also felt pain when lifting more than fifteen pounds with his right hand. He could no longer mow the lawn, and found it painful to carry buckets while doing house and yard work at home. He was unable to help his son move to a college apartment, as he had done in the year before the accident, because the luggage was too difficult to lift.
Dr. Glastein's expert testimony was presented to the jury in a videotaped de bene esse deposition. In his testimony, Dr. Glastein confirmed his diagnosis that plaintiff has two herniated discs and that the herniations were caused, within a reasonable degree of medical probability, by the motor vehicle accident. Dr. Glastein described a disc herniation as "a very serious injury," which "becomes more symptomatic as the patient ages." His prognosis for plaintiff's neck and thoracic region was that the injuries were permanent, and that plaintiff will have them "for the rest of his life." Dr. Glastein noted that, for patients with a herniated disc, "even though they improve with treatment, in all probability some pain in the neck and mid to lower back will always be present."
Defendant's sole witness at trial was a competing medical expert, Francis DeLuca, M.D., also a Board-certified orthopedic surgeon. Dr. DeLuca examined plaintiff on November 11, 2009.
Based on his examination and his review of various medical records of plaintiff, including the radiologist's MRI report, Dr. DeLuca concluded that plaintiff had not sustained any permanent injury as a result of the motor vehicle accident.
Dr. DeLuca found no objective basis to substantiate plaintiff's claims of injury. The defense expert characterized plaintiff, upon physical examination, as "totally normal with no evidence of any neurologic deficit or radioculopathy[.]" Dr. DeLuca found absent the kinds of objective indicia that commonly would accompany a permanent injury from a herniated disc, such as muscle spasm, radiating pain or headaches, weakness, atrophy, tenderness, changes in reflexes or changes in sensation and feeling. Dr. DeLuca also explained that discs can be herniated for reasons other than trauma, for instance, degeneration.
After receiving the customary jury charges for a damages-only auto negligence case (with a no-limitation-on-lawsuit option under N.J.S.A. 39:6A-8b), the jurors rendered a verdict unanimously concluding that defendants' negligence was the proximate cause of plaintiff's injuries. The jurors, also unanimously, awarded plaintiff $250,000 in compensatory damages. The trial judge issued a corresponding final judgment on September 2, 2010, awarding plaintiff $250,000 plus prejudgment interest.
Defendants then moved for a new trial on various grounds, which we shall discuss, in Part II, infra, of this opinion. The trial judge, Craig Wellerson, denied the motion in all respects, concluding that the verdict was "reflective of the damages that the plaintiff placed before the fact finder[s]," "that it was [within the jurors'] purview to come to that conclusion[,]" and that "the verdict amount does not shock [the court's] conscience."
This appeal followed.
In seeking to set aside the verdict, defendants argue on appeal that: (1) plaintiff's counsel prejudiced the jury by referring, during his summation, to defendant Goncalves' absence from the trial; (2) the court erred in allowing plaintiff to testify about his treatment by a chiropractor in Maryland; (3) the court improperly precluded Dr. DeLuca from testifying about the enlargements of the MRI films presented by plaintiff; (4) the jury was tainted because the MRI enlargements were inadvertently brought into the deliberations room; (5) plaintiff's counsel improperly referred to a letter from defense counsel when cross-examining Dr. DeLuca; (6) the verdict was the product of cumulative errors; and (7) the damages award was clearly excessive.
None of these arguments, either singularly or in combination, mandates reversal and a new trial. We discuss each of them in turn. Before doing so, we recite some overarching principles concerning the limited scope of our review and the stringent requirements for granting a new trial.
The scope of review of a trial court's decision to grant defendant a new trial is narrow. It is well settled under our case law that the decision whether to grant or deny a motion for a new trial is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. Baumann v. Marinaro, 95 N.J. 380, 389 (1984); Greenberg v. Stanley, 30 N.J. 485, 503 (1959); see also R. 2:10-1 (a court's ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law").
Under Rule 4:49-1, a motion for a new trial should only be granted "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 under the law." That rigorous standard applies whether the motion is based upon a contention that the verdict was against the weight of the evidence, or, as here, "based upon a contention that the judge's initial trial rulings resulted in prejudice to a party." Hill v. N.J. Dep't of Corrs., 342 N.J. Super. 273, 302 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002); see also Crawn v. Campo, 136 N.J. 494, 510-12 (1994). If the new trial motion is predicated upon a claim that the court erred in making an evidentiary ruling, the appellate court must accord particular deference to the trial court's conclusion regarding whether any prejudice flowed from that ruling. Hill, supra, 342 N.J. Super. at 302.
These authorities reflect that, on the whole, courts have an exceedingly narrow scope of review of jury verdicts. We should not set these verdicts aside and order a new trial unless there has been a clear miscarriage of justice. See R. 4:49-1; Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 324-25 (App. Div. 2010).
A major focus of defendants' appeal is the impropriety of a comment made by plaintiff's lawyer during his summation concerning the absence of the individual defendant, Goncalves, from the trial. Although we agree with defendants, as did the trial judge, that the attorney's comment was patently inappropriate, we are satisfied that the trial judge swiftly rectified any prejudice that could have flowed from the comment in issuing emphatic curative instructions to the jury.
The pertinent background relating to this issue is as follows. In his opening statement before the jury, defense counsel acknowledged that liability had been stipulated and therefore Goncalves would not be present at trial. He explained: "There's no reason for [defendant] to be here today. It is true that he caused the accident that brings us here. Accidents happen. He caused it one hundred percent. [Plaintiff] did not cause this accident at all." As anticipated, Goncalves did not attend the trial, and no mention of his absence was made during the testimony that was adduced.
Near the very end of his summation, plaintiff's counsel posed to the jury a rhetorical question: "And how did this [plaintiff's pain and suffering] come about?" Plaintiff's counsel answered his own question as follows:
Because some person who was very, very careless and didn't care went through a red light and smashed into [plaintiff's] car. [Plainitff]'s on his way to work at Fort Monmouth and somebody does that who doesn't even have the guts to come into [c]court. Think about it.
Plaintiff's counsel then completed his summation, stating: "Ladies and gentlemen -- ladies and sir -- excuse me -- I think I've spoken enough. I thank you very much. I pray you do the right thing, and I'm sure you will. Thank you."
Before any objection was interposed by defense counsel, the trial judge, sua sponte, immediately issued the following instruction to the jurors:
All right. Ladies and gentlemen, a comment was made about the defendant's absence in [c]court. I've indicated to you previously that he's been excused. There was a stipulation as to the liability in this case. It's not being contested. The comment made that he didn't have -- the comments made by the plaintiff['s attorney] as to why [defendant] didn't appear should be disregarded by you.
Following a break, the trial judge then heard various objections made by counsel about their adversary's respective summations. For his own part, defense counsel complained that: plaintiff's attorney had failed to give him a copy of the letter he had attempted to use during cross-examination of Dr. DeLuca*fn2 ; the jury might have overheard a comment made by plaintiff's counsel during sidebar; plaintiff's counsel had improperly alluded to why plaintiff had been referred to Dr. Glastein; plaintiff's counsel had improperly commented on defendant's failure to appeal in court; and finally, plaintiff's counsel had improperly indicated that defendant could have requested plaintiff to undergo additional objective tests, i.e., an electromyography ("EMG").
By way of remedy, defense counsel requested that the court inform the jury that the rules of court do not permit defendant to order plaintiff to undergo EMG testing. As to the remaining items, defense counsel argued that "everything else" was like "a bell that can't be un-rung[.]" He maintained that any additional curative instructions by the court about those matters could cause more harm than good.
In response, plaintiff's attorney acknowledged that his comment about Goncalves lacking the "guts" to be present during the trial was inappropriate, although he added that he had not thought that the comment was inappropriate at the time that he made it. Plaintiff's attorney maintained that his remark was "a very fleeting reference," and that it had no effect on the jury. If it did, he asserted that the harm was to plaintiff's own case, given that the trial judge had immediately admonished the comment in a curative instruction.
Judge Wellerson decided not to provide the jurors with any further instruction about the summation comment, as he was "concerned about highlighting additional issues that may just distract from the ultimate issue before the jury." Defense counsel did not request a mistrial or any other remedy. Thereafter, the jury was charged on the law of damages and about other pertinent legal principles, and the case proceeded to deliberations and the verdict.
In moving post-verdict for a new trial, defendants reiterated their claim of prejudice from the remark by plaintiff's attorney. In particular, defendants emphasized the "emotional thrust" of the comment, as compared with the "cognitive" nature of the court's curative instruction. Plaintiff, in turn, urged the trial judge not to set aside the verdict based on that single remark.
Reflecting further upon what had transpired, Judge Wellerson observed in his bench ruling that the "guts" remark in plaintiff's summation was "distasteful, inappropriate, and certainly was not an oversight." Nevertheless, the judge found it unnecessary to set aside the verdict because of the remark. In that vein, the judge noted that the trial "had more than its share of contentious moments[,]" and that this isolated event did not warrant the drastic remedy of vacating the jurors' verdict.
Defendants now argue that the trial judge abused his discretion in denying them a new trial because of the inappropriate comment by plaintiff's attorney. They presume that because the jurors returned a sizeable damages award, the jurors must have been influenced by plaintiff's counsel's comment and that the award is a manifestation of such prejudice.
We begin our analysis of this issue by expressing our firm view that the attorney's comment about Goncalves' absence from the courtroom was patently inappropriate. A civil litigant has a right to waive his or her appearance at trial. See Arrington v. Roberts, 114 F. 2d 821, 823 (3d Cir. 1940); Chapman v. Avco Fin. Servs. Leasing Co., 387 S. E. 2d 391, 392 (Ga. App. 1989). Given the fact that liability here was stipulated by the parties, there was scant reason for Goncalves to testify or to otherwise be present for the trial. The reality is that Goncalves, as an insured driver who had an accident while operating a van for his employer, could generally rely upon the trial attorney assigned to represent him and to protect his interests*fn3 as a defendant in the courtroom. Since Goncalves was not called to testify about the force of the collision, there is virtually nothing of substance that he could add to the trial proceedings.
By spotlighting Goncalves' absence from the courtroom and then pejoratively adding that Goncalves lacked the "guts" to be present, plaintiff's attorney inappropriately attempted to have the jury penalize Goncalves for his absence. The comment also implicates the public policies underlying N.J.R.E. 411, by implicitly suggesting to the jurors that the reason Goncalves is absent is that he was covered by insurance for the collision. We therefore fully endorse Judge Wellerson's immediate castigation of the remark.
Despite the wrongfulness of the attorney's comment, we agree with the trial judge that it did not require a new trial. A trial court should only grant a party's motion for a new trial arising from an improper closing argument "if the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Bender v. Adelson, 187 N.J. 411, 431 (2006) (citing R. 4:49-1(a)). This is a very high bar, which has not been surmounted in this case.
The curative instruction immediately provided by the trial judge was adequate to dispel any claim of prejudice. The instruction was appropriately swift and pointed. See State v. Vallejo, 198 N.J. 122, 134 (2009) (mandating that curative instructions must be "firm, clear, and accomplished without delay"). The jurors are presumed to follow the court's instructions. See Verdicchio v. Ricca, 179 N.J. 1, 36 (2004); see also Williams v. James, 113 N.J. 619, 632 (1989) (recognizing that juries are "capable of following a curative instruction to ignore prejudicial matter"). It was surely apparent to the jurors that the judge rebuked plaintiff's attorney summarily without an objection first coming from defense counsel. Notably, defense counsel did not seek a mistrial when the comment was made, and only sought a new trial after the verdict was returned. Although we disapprove of the attorney's comment, the remedy wisely deployed by the trial judge to deal with this isolated misstatement was adequate. The judge did not misapply his discretion in denying a new trial on this basis, and there was no miscarriage of justice.
A second issue raised by defendants concerns the trial court's qualified allowance of certain proofs concerning plaintiff's treatment by a chiropractor in Maryland. The relevant background is as follows.
As we have already noted, plaintiff's orthopedist, Dr. Glastein, referred him for care by a chiropractor in New Jersey. According to plaintiff, he continued seeing that New Jersey chiropractor through approximately May or June of 2009, continuing after his last visit with Dr. Glastein in September 2008. Plaintiff then relocated to Maryland in July of 2009, and began treating with a chiropractor there in or about April or May of 2010, apparently after the discovery period in this case had ended.
Plaintiff did not furnish defense counsel in discovery with any reports from the Maryland chiropractor. Nor did plaintiff move to lengthen the discovery period or move for leave to amend his prior discovery responses under Rule 4:17-7.
Consequently, defense counsel began the trial under an apparent supposition that plaintiff had not seen a chiropractor since May or June 2009, as plaintiff had testified at his June 2009 deposition. That supposition was not entirely warranted, given plaintiff's indication at his deposition that he was relocating out of state and that he had asked his New Jersey chiropractor to refer him to a chiropractor in Maryland. Even so, plaintiff had not updated his discovery responses to disclose any further treatment.
The admissibility of plaintiff's treatment in Maryland was raised in limine before the start of the trial. Plaintiff sought to testify that he had been seeing the Maryland chiropractor weekly during the four months prior to trial. Defendant opposed that request, and instead wanted the jury to infer that plaintiff had ceased treatment after he was discharged by Dr. Glastein in 2008.
Judge Wellerson initially did not allow plaintiff to refer to the Maryland chiropractic treatment. The judge permitted defense counsel to discuss Dr. Glastein's discharge of plaintiff from his care, but only to the extent that Dr. Glastein did not recommend any further treatments for plaintiff as of September 5, 2008.
During his opening statement, defense counsel referred to the fact that plaintiff had not returned to Dr. Glastein since September 5, 2008: As counsel expressed it, "Fast forward to today, August 18th, 2010. Not a return visit to Dr. Glastein." Plaintiff objected, arguing at sidebar that plaintiff had been treated by a chiropractor for a year, and that defense counsel's comment had "opened the door" to admitting such proof.
After a conference about these issues in chambers, Judge Wellerson decided that he would allow plaintiff's counsel to "walk through the testimony that he moved to Maryland and he sees a chiropractor in Maryland, and he can indicate when the first time he saw the chiropractor [was] and when the last time he saw the chiropractor [was]." Defense counsel objected to that resolution, arguing that such testimony was irrelevant because there was "[no indication] that the reason why the chiropractor in Maryland is treating him is for the automobile accident." The judge nevertheless allowed the testimony regarding the additional chiropractic visits to counter defense counsel's comments during opening statements.
The judge made clear, however, that plaintiff's latitude to refer to the treatment by the Maryland chiropractor would be strictly limited. The judge instructed that plaintiff "[could not] say anything to the jury that the chiropractic treatments [were] related to the car accident." Elaborating upon his ruling, the judge directed plaintiff's attorney:
You're allowed to say he goes to the chiropractor in Maryland -- [. . .] -- that he started in May, he sees him once a week or her once a week, period. And I'm going to stand up after that comes out and indicate that there's no evidence before you that the treatment in Maryland is related to the automobile accident in June -- or in 2008 that happened in New Jersey.
That's the end of it.
Thereafter, consistent with the judge's ruling, plaintiff testified that four months prior to trial, after he relocated to Maryland, he sought chiropractic treatment again. Then, as anticipated, the judge immediately provided the jury with the following cautionary instruction: "Ladies and gentlemen, you've heard that the plaintiff has seen a chiropractor in Maryland. There's no evidence before you that the chiropractic treatment he's receiving in Maryland is as a result of the automobile accident and injuries he received in 2008."
As part of their ensuing application for a new trial, defendants argued that the court's qualified allowance of proofs concerning the Maryland chiropractor's treatment had unduly prejudiced them. Defendants stressed that there was no evidence that the treatments in Maryland were causally related to the motor vehicle accident and, therefore, the testimony about those treatments invited the jurors to speculate about such causation. The trial judge rejected that argument, finding that it did not warrant a new trial.
In his oral post-trial decision, Judge Wellerson amplified his rationale for the "balance" achieved by allowing plaintiff to refer briefly to the Maryland treatment, followed by an accompanying limiting instruction:
[S]ince the plaintiff is entitled to recover damages for pain and suffering, the plaintiff is entitled to say, "I'm still in pain." The medical doctors say there's no reason for any further medical treatment because we can't make the patient better. The patient may still have some pain for which they're entitled to recover money damages for. It would be inappropriate to suggest to the jury, "Well, you're not in pain anymore; are you? And I'm essentially going to put a lock on your testimony where you can't say, 'I got medical treatment,' because we don't have any causal relationship." So in order to balance those two factors, the thought process of the Court was I think it's appropriate for the witness to say, "I'm in pain. I'm suffering. And as evidence of that fact that I am still physically suffering with this pain I went to a chiropractor to get some temporary relief of this awful pain that I'm suffering." Was that awful pain that you suffer today causally related to the accident? We don't know and, Jury, you can't speculate on that. But what you can do is you can note of the fact that there was temporary relief of this pain that the plaintiff is suffering and took action on that by going to a chiropractor.
The trial judge further determined that "[the jurors] were told that there was no evidence that [the Maryland treatment] was causally related, that they can't use it for causal relation. If they tied that in as a factor for causal relation, then they violated my instructions. And I don't think that's safe to assume."
We concur with Judge Wellerson's fair and prudent resolution of this thorny issue. To be sure, for a plaintiff who continues or resumes medical treatment, there is often an element of artificiality in constraining the admission of evidence that develops in the real world after the court-imposed discovery end date. On the one hand, defendants are entitled to fair notice of a plaintiff's treatment so that they can have it evaluated by their own medical experts, and so that appropriate supplemental discovery may be sought. On the other hand, a testifying plaintiff who is still in pain ideally should not have to pretend that he or she is no longer seeing a doctor when the opposite is true. The court itself also has an institutional need to attain closure of the discovery process and to promote the certainty of trial dates and the expeditious disposition of civil cases. Sometimes these factors place trial judges and trial attorneys in awkward predicaments, and our court rules strive to minimize those difficulties.
Unfortunately, plaintiff's attorney did not seek to supplement discovery under Rule 4:17-7, which might have generated an order allowing both sides to address the Maryland treatment at trial. As that was not done, defense counsel was left without a fair opportunity to develop competing proofs and arguments. However, defense counsel's opening statement exhorting the jurors to "fast forward" in time from Dr. Glastein's last session to the trial date, could have implicitly suggested to the jury that plaintiff had stopped treatment -- not only with Dr. Glastein but with any medical provider -- in 2008. That was not actually the case, as plaintiff stated at his 2009 deposition.
Under these difficult circumstances, we are convinced that the trial judge fashioned a fair and thoughtful compromise: plaintiff could only refer to the Maryland treatment to corroborate his testimony that his pain was continuing, but he would be precluded from arguing that the treatment was causally linked to the March 2008 accident. To assure that the jurors would not misuse that evidence, the judge issued a pointed and clear limiting instruction under N.J.R.E. 105. We presume that the jurors obeyed that instruction. See Verdiccio, supra, 179 N.J. at 36. The judge did not misapply his discretion in handling the issue in this equitable and pragmatic fashion. There was no manifest injustice whatsoever in the judge's disposition, and we consequently reject defendant's claim of reversible error.
The next two issues raised by defendants relate to the MRI films ordered by Dr. Glastein, and the enlargements of those films that were utilized by plaintiff's attorney as a demonstrative aid at trial.
Defendants contend that Judge Wellerson erred in precluding their medical expert, Dr. DeLuca, from examining the MRI films for the first time in court, and from rendering opinions concerning those films. We discern no abuse of discretion in that ruling.
Dr. DeLuca testified that plaintiff had failed to bring the films to his appointment as requested. However, Dr. DeLuca found no need to review those films, because his physical examination of plaintiff coupled with the other medical records supplied was sufficient to support his conclusion that plaintiff had not suffered a permanent orthopedic injury in the March 2008 accident. It would have been unfair to opposing counsel to allow Dr. DeLuca to provide ad hoc expert opinion at trial that was outside the scope of his report. See Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 206 (1988), aff'd sub nom. Mauro v. Raymark Indus., Inc., 116 N.J. 126 (1989); McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987).
If it was important to defendants that Dr. DeLuca examine the MRI films to bolster his expert opinions, then defense counsel should have assured that the films were provided to Dr. DeLuca before trial. The judge acted properly within his discretion in precluding Dr. DeLuca from reviewing the films and opining upon their significance for the first time in the midst of trial.
Defendants further contend that the verdict must be set aside because court staff inadvertently brought the enlargements of the MRI films into the jury room, where they remained during the first forty-five minutes of deliberations, even though the judge had instructed that the enlargements would not be taken there. The judge promptly had the enlargements retrieved as soon as the problem was reported. At the time, defense counsel did not ask that the jurors be polled about whether they had looked at the enlargements in the jury room.
As it was, the jurors had already seen the enlargements during the trial itself, and defendants' claim of undue prejudice is totally speculative. Quite simply, the circumstances were not clearly capable of producing an unjust result, and Judge Wellerson properly denied a new trial on this basis. See Baumann, supra, 95 N.J. at 389.
Defendants next argue that a portion of the cross-examination of Dr. DeLuca was unduly prejudicial because plaintiff's attorney attempted to ask the doctor about a letter sent by defense counsel before trial seeking to obtain the MRI films. Dr. DeLuca indicated that he had not seen the letter before. At that point, the trial judge sustained defense counsel's objection, and there were no further references to the letter during the rest of the trial nor during summations.
Defendants argue that the attempt by plaintiff's attorney to refer to the letter was improper, because they had previously demanded, in a pre-trial notice to produce, that opposing counsel disclose all documents that plaintiff might seek to use on cross-examination of Dr. DeLuca, and the letter was not so identified in plaintiff's response. We have substantial doubts about whether the disclosure demand was enforceable, as Dr. DeLuca did not author the letter in question. Cf. N.J.R.E. 613 (requiring, "upon request," that "a prior statement made by the witness" and used in examining the witness "shall be shown or disclosed to opposing counsel").
In any event, we detect no harm to defendants arising from the situation. The contents of the letter were not revealed to the jurors. Defense counsel's objection was sustained by the trial court. Moreover, the doctor's willingness to opine about plaintiff's condition and the lack of causation without seeing the MRI films was already volunteered to the jury through Dr. DeLuca's own testimony. Plaintiff's effort to underscore the limited scope of Dr. DeLuca's review further, by referring to defense counsel's letter requesting the films, was aborted. In any event, the proof in that regard would have only been cumulative. There was no error and plainly no manifest injustice resulting from this brief episode.
Defendants argue that the jury's $250,000 damages award was excessive, and that the trial judge abused his discretion in declining to set the verdict aside and either remit it or order a new trial. We disagree.
As the Supreme Court has recognized, we repose enormous faith in the ability of juries to equate damages with dollars to "make the plaintiff whole, so far as money can do." He v. Miller, ___ N.J. ___, ___ (2011) (slip op. at 23) (quoting Model Jury Charge (Civil) 8.11E). "We rely on juries to perform that task while recognizing that [a]ssigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is not gauged by any established graduated scale." He, supra, ___ N.J. at ___ (slip op. at 23) (quoting Caldwell v. Haynes, 136 N.J. 422, 442 (1994) (internal citations omitted)). Unliquidated damages "are not susceptible to scientific precision . . . because there is no neat formula for translating pain and suffering into monetary compensation.") He, supra, ___ N.J. at ___ (slip op. at 23) (quoting Johnson v. Scaccetti, 192 N.J. 256, 279-80 (2007)).
A jury's role in calibrating damages is not, however, unbounded, and is subject to review by the trial court on a new trial motion. He, supra, ___ N.J. ___ (slip op. at 23-24). However, the court's post-trial review is limited: "The trial court should not disturb the jury's award unless it is 'so disproportionate to the injury and resulting disability as to shock the conscience and [convince the court] that to sustain the award would be manifestly unjust.'" Id. at ___ (slip op. at 24) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)). "[T]he verdict may only be set aside if it is 'wide of the mark' and pervaded by a sense of 'wrongness.'" He, supra, ___ N.J. at ___ (slip op. at 24) (quoting Johnson, supra, 192 N.J. at 281); see also Baxter, supra, 74 N.J. at 598-99.
Applying these standards, we sustain the trial court's rejection of defendants' argument that the damages award in this case was so excessive as to compel a new trial or a remittitur of the verdict. Plaintiff was diagnosed with two herniated discs following the motor vehicle accident. The herniations were substantiated by objective findings on the MRI films. He had no prior reported neck or back problems. His orthopedic expert, Dr. Glastein, testified that the herniations were caused by the accident and were permanent in nature. Although the defendant's medical expert, Dr. DeLuca, disagreed, the fact-finders were permitted to find one expert more credible than the other. See Brown v. Brown, 348 N.J. Super. 466, 478 (App. Div.), certif. denied, 174 N.J. 193 (2002); see also Model Jury Charge (Civil) 1.13 and 1.13(B).
Plaintiff's testimony about his continuing pain was essentially unrebutted. His attorney, permissibly suggesting the time-unit method for calculating damages, noted that plaintiff had 280,320 remaining hours of potential continuing pain, utilizing a thirty-two year remaining life expectancy. See R. 1:7-1. The judge issued the appropriate charge under Rule 1:7-1. The damages awarded, $250,000, roughly correspond to the time-unit method, compensating plaintiff at a rate of one dollar for each hour of pain.
Even if the damages awarded by the jury may have been generous, the trial judge, having a "feel for the case," did not find the award to be inconsistent with the testimony that he observed. Given our own review of the proofs that were adduced, we will not second-guess Judge Wellerson's considered assessment and his denial of a new trial.
We have carefully considered the balance of the arguments presented by defendants, including their claim of cumulative error, and conclude that they lack sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(1)(E).