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Damon Toombs v. Anthony Pilato

January 20, 2012


On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1487-08.

Per curiam.


Argued September 28, 2011

Before Judges Lihotz and St. John.

Plaintiff Damon Toombs appeals from orders of the Law Division dated October 15, 2010, and October 29, 2010, entering a judgment for plaintiff in the amount of $9204.10, denying motions to set aside the jury verdict and a request for a new trial or, in the alternative, additur.

Plaintiff was involved in an automobile accident in which he was rear-ended by defendant's vehicle. Liability was stipulated by defendant. Judge Joseph L. Marczyk presided over the two-day jury trial on damages. The jury determined that plaintiff had sustained a permanent injury proximately caused by the accident and awarded him $4459.66 for medical bills, $4744.44 for lost wages, and $0 for non-economic damages. On appeal, plaintiff argues the jury verdict is inconsistent and the liability verdict requires an award for past and future pain, disability, loss of enjoyment of life, and impairment. We affirm.

We briefly review the facts elicited at trial. On the date of the accident, July 17, 2006, plaintiff was employed by the City of Atlantic City as an Omnibus driver, driving a City car, transporting senior citizens to doctors' appointments, shopping, and other locations throughout the city. Plaintiff was stopped when his vehicle was struck by defendant's vehicle. After he was hit, plaintiff characterized the impact, stating his vehicle "kind of bumped a little bit forward." He exited his vehicle to check on his two senior citizen passengers. Plaintiff had no complaints of injury at the scene and stated that he did not feel any pain at that time. He left the scene in his vehicle. Later that day, plaintiff presented to the City's workers' compensation clinic complaints of back and left shoulder discomfort. He was placed out-of-work for approximately nine weeks. During that time, he underwent physical therapy and ceased treatment in September, about two months after the accident. At trial, plaintiff testified that since the accident, he experienced daily back pain which is aggravated by inclement weather and, at times, is excruciating and lasts all day. Additionally, he is no longer able to play basketball, a sport he participated in approximately three to four times per week.

After being discharged by the City's workers' compensation clinic, he had one appointment in 2006, and a second appointment in 2008, with Dr. Andrew Glass, a neurosurgeon, who testified at trial as plaintiff's expert. Plaintiff admitted he had no other treatment. Despite his claim that he could no longer play basketball, plaintiff stated he is an assistant coach for his son's football team, and regularly referees basketball games for the Boys and the Girls Club. He has no restrictions with regard to work and confirmed that his job with senior citizen transportation regularly requires him to assist them with duties, such as carrying groceries.

The police officer who investigated the accident stated there were no complaints of injury at the scene, and he observed no visible injuries. In addition, no vehicles had to be towed, and both drivers left the scene in their respective vehicles. The police officer observed the following damage: plaintiff's trunk was somewhat dented and there was some bumper damage; the brake lights were functional; there was no air bag deployment; no leaking fluids; and no wheel damage. Defendant's vehicle's hood was crimped up slightly. Defendant's headlights were in tact and the hood was not crimped in a way that it would be able to disengage. There were no skid marks leading up to the point of impact. When plaintiff returned the City's vehicle, he observed a dent in the trunk, as well as some paint transfer on his bumper from defendant's vehicle.

When plaintiff was initially seen by Dr. Glass, he described his pain on a scale of one to ten, as between a one and a two. Plaintiff weighed approximately 300 pounds at the time of the accident. Dr. Glass testified that an M.R.I. of the lower back showed disc herniation at L4-5, with a tear in the wall of that disc, as well as a disc bulge at L5-S1. He also diagnosed a lumbar radiculopathy. Dr. Glass opined that these injuries were causally related to the accident and were permanent injuries.

Dr. Ronald Gershon, an orthopedic surgeon, was called as an expert witness for defendant. He reviewed plaintiff's medical history, which included the workers' compensation doctor's report which diagnosed plaintiff with low back sprain/strain injuries. Dr. Gershon stated that his physical examination of plaintiff indicated that plaintiff was entirely normal. He further indicated that he had reviewed plaintiff's M.R.I. studies of the low back, and found them to show degenerative loss of hydration, bone growth, and degenerative disc conditions, which would not have been caused by the accident. He further noted that if a herniation had occurred in the accident, there would have been instant noticeable pain which was not consistent with plaintiff's lack of complaints at the scene. Dr. Gershon further opined that with an abruptly herniated disc, where the annulus was violently torn, a person would have severe pain going down the leg, evidence of inflammation and bleeding on the M.R.I., which was not present here.

Once the verdict was announced, plaintiff filed motions to set aside the verdict and for a new trial or additur. In denying the motions, the trial judge appropriately set forth the legal standards he would apply in arriving at his decision. We agree with the standards he elucidated and their application to the record before him. In arriving at his decision the judge noted:

The jury very well could have determined that the plaintiff sustained no compensable injury with respect to pain and suffering because they didn't find him to be the most credible witness. They certainly considered the evidence. Their decision to break down, to award money for wages, and award money for the medicals but not the pain and suffering, again, while somewhat unusual, I can't say that it was a clear miscarriage of justice.

Would I have been shocked if the case was a no cause in general? No. The fact that they determined there was a permanent injury was not shocking to me. They could have determined that based on the evidence plaintiff sustained an injury or a disc herniation that did not or will ...

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