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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 not in the future cause pain and suffering or loss of enjoyment of life.

Again, the verdict may be somewhat unusual but the Court cannot, pursuant to Rule 4:49-1, state that it was clearly and convincingly a miscarriage of justice. Accordingly, the motion for a new trial and the motion for an additur is denied.

Plaintiff essentially argues on appeal that once the jury found that he had sustained a permanent injury to his back, the $0 award for past and future pain, disability, loss of enjoyment of life, and past and future impairment, should be set aside as against the interests of justice. Plaintiff asserts that he is entitled to a new trial on damages, or that we should remand to the trial judge for an additur to award plaintiff a reasonable and fair judgment for damages.

We begin first with the principles applicable to appellate review of jury damage awards enunciated by our Supreme Court.

[A] civil plaintiff has a constitutional right to have a jury decide the merits and worth of her case. See N.J. Const. art. I, P 9 ("The right of trial by jury shall remain inviolate."). Our civil system of justice places trust in ordinary men and women of varying experiences and backgrounds, who serve as jurors, to render judgments concerning liability and damages. Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion. That is so because there is no neat formula for translating pain and suffering into monetary compensation. [Johnson v. Scaccetti, 192 N.J. 256, 279-280 (2007).]

A jury verdict is entitled to a presumption of correctness, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), and the jury's evaluation of factual issues must be afforded "the utmost regard." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532 (App. Div.), cert. denied, 180 N.J. 355 (2004). "Once the jury is discharged, both trial and appellate courts are generally bound to respect its decision, lest they act as an additional and decisive juror." Kassick v. Milwaukee Elec. Tool Corp., 120 N.J. 130, 135-36 (1990) (citing Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

Jury verdicts should be set aside in favor of new trials only with reluctance and, even then, only in the cases of clear injustice. Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); R. 4:49-1(a). See also Dolson, supra, 55 N.J. at 6-7 (holding that a jury verdict must not be set aside "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it clearly appears that there was a miscarriage of justice under the law). A "miscarriage of justice" has been described as a "'pervading sense of 'wrongness' needed to justify [an] appellate or trial judge undoing of a jury verdict . . . [which] can arise . . . from manifest lack of inherently credible evidence to support the finding, obvious overlooking or underevaluation of crucial evidence, [or] a clearly unjust result. . . .'" Lindenmuth v. Holden, 296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter, supra, 74 N.J. at 599), certif. denied, 149 N.J. 34 (1997).

"[T]he standard for authorizing a new trial is one that requires a determination that the jury's verdict is 'contrary to the weight of the evidence or clearly the product of mistake, passion, prejudice or partiality.'" Crawn v. Campo, 136 N.J. 494, 512 (1994) (quoting Lanzet v. Greenberg, 126 N.J. 168, 175 (1991)). When correcting a clear error or mistake, a trial judge may not substitute his or her judgment for that of the jury merely because he or she would have reached the opposite conclusion. Dolson, supra, 55 N.J. at 6. Instead, a trial judge must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict.'" Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). See also Baxter, supra, 74 N.J. at 597-98.

"The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to [the trial court's] feel of the case, including credibility." Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (citation and quotation marks omitted). See also Jastram v. Kruse, 197 N.J. 216, 230-31 (2008); Johnson, supra, 192 N.J. at 280; Dolson, supra, 55 N.J. at 6-7; Giantonnio v. Taccard, 291 N.J. Super. 31, 44-45 (App. Div. 1996); Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2012). Beyond these "intangibles," we make an independent determination of whether a miscarriage of justice occurred. Carrino, supra, 78 N.J. at 360-61; Baxter, supra, 74 N.J. at 596.

Additionally, a jury's allocation of damages should be upheld "unless it is so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [one] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596 (citing Sweeney v. Pruyne, 67 N.J. 314, 315 (1975)). This inquiry requires that record evidence be viewed in the light most favorable to the opposing party. Jastram, supra, 197 N.J. at 220 n.2.

We apply these guiding principles to the arguments of the parties.

Plaintiff argues that once the jury determined he sustained a permanent injury, it was required to also award him damages for pain and suffering caused by those same injuries. He maintains that a $0 award for past and future pain and suffering demonstrates a "miscarriage of justice." We disagree.

Here, plaintiff's credibility, particularly as to his experienced injury and the resultant pain and suffering, was forcefully challenged. Plaintiff's testimony in this regard was scant, not detailed and lacking real specificity. Not only was it not corroborated, but it was contradicted, as he continued to coach football and referee basketball. The jury apparently took a highly skeptical view of plaintiff's continued complaints of unabated pain and inability to engage in normal activities. This view is supported by the record. We agree it would not necessarily be unreasonable for the jury to determine plaintiff received a permanent injury for which certain medical treatments were appropriate, while also independently concluding plaintiff failed to prove adequate pain and suffering to support a damages verdict.

We distinguish this matter from Love, supra, in which plaintiff was not awarded damages for pain and suffering. 366 N.J. Super. at 527. The plaintiff endured multiple arthroscopic knee surgeries and two knee replacements, which were described at trial. Id. at 531. The jury awarded the plaintiff $65,000 in lost wages and no pain and suffering. Id. at 527. We concluded the verdict was inconsistent because the jury failed to compensate plaintiff for "logically inescapable periods of pain and suffering" such as that experienced "as a consequence of . . . surgeries required, for the period of recovery, if not before and beyond." Id. at 532. Here, plaintiff did not endure such extensive treatment. His treatment was principally analgesic, consisting of physical therapy and over-the-counter pain medication.

Accordingly, as found by the trial court, we conclude there was sufficient credible evidence present in the record as a whole to support the jury's verdict, which did not constitute a miscarriage of justice under the law. Crego v. Carp, 295 N.J. Super. 565, 577-579 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).



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