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Annunziata Competiello and Nicolino Competiello, Her Husband v. Torre A. Pizarro

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 21, 2012

ANNUNZIATA COMPETIELLO AND NICOLINO COMPETIELLO, HER HUSBAND, PLAINTIFFS-RESPONDENTS,
v.
TORRE A. PIZARRO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6618-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued December 21, 2011 -

Before Judges Sapp-Peterson and Ostrer.

Defendant appeals from a March 2011 jury verdict awarding plaintiff $250,000 in damages suffered as a result of a rear-end automobile collision. Defendant claims the court committed various errors related to the admission of expert testimony on plaintiff's behalf; failed to cure the impact of improper comments by plaintiff's counsel; and erred in denying defendant's motion for remittitur or a new trial. As we discern no errors in the rulings of Judge John C. Kennedy, we affirm.

I.

As liability was not disputed, we focus our factual discussion on the injuries plaintiff sustained and the court's evidentiary rulings.*fn1 On September 6, 2006, as Annunziata Competiello, then fifty-five years old, was slowing for traffic on Grove Street in Montclair, she was struck from behind by a vehicle driven by defendant Torre Pizarro. Police and an ambulance responded to the scene. Competiello complained of back and shoulder pain and was placed on a backboard with a cervical collar before taken to Mountainside Hospital for treatment and evaluation. At the hospital, a cervical x-ray, and CAT scans of the cervical spine and brain were performed. The examining physician observed tenderness in Competiello's lower neck, diagnosed lumbar and cervical sprains, neck injury due to a motor vehicle accident, and discharged her with instructions to take a prescription muscle relaxant, Flexeril, and ibuprofen.

Between September 2006 and February 2007, Competiello was treated several times by her family doctor, Dr. Hamada. She first visited the physician on September 18, complaining of headaches, pain in her left shoulder and back, and pain in her knee. Her complaints of pain continued, although the exact location of reported pain varied. Over the course of his treatment, Hamada prescribed anti-inflammatory medication, muscle relaxants, and a course of physical therapy for the cervical spine.

In February 2007 plaintiff discontinued physical therapy and treatment by Hamada as she did not feel it was doing her any good. Hamada did not refer Competiello to an orthopedist or a chiropractor and Competiello did not request any referrals.

However, at the urging of her children, Competiello eventually sought treatment with a chiropractor, Dr. Esposito. Esposito ordered MRIs of Competiello's spine which were performed in April 2008. Competiello testified that she continued to obtain treatment from Esposito, up to the date of the trial.

Defendant moved in limine shortly before jury selection to bar testimony of chiropractic treatment after July 2, 2008, as plaintiff had failed to provide treatment records past that date, although plaintiff provided billing records. Defendant had expressed the intention to so move in her pre-trial exchange in December 2010. Judge Kennedy denied the motion. Noting defendant had the bills and dates of treatment, he stated, "If you need[ed] more information . . . an application should have been made for more information at that time. Having not made that application, I can't find that you're prejudiced."

Plaintiff's expert, Dr. John Owens, testified he reviewed the MRI film and agreed with the radiologist's finding, with respect to the cervical spine, of "[m]ultilevel degenerative changes of the cervical intervertebral discs. Mild C5-6 central canal stenosis, moderate left C6-7 neural foraminal narrowing." As for the findings regarding the lumbar spine, Owens agreed with the finding of "annular bulge at the L4-5 level with a small right lateral protrusion and osteophyte resulting in foraminal narrowing with mild posteriolateral displacement of the exiting right L4 nerve root," but Owens characterized the protrusion as moderate in size. Owens also agreed with the finding of "a small central to left paracentral protrusion at L2-3, that disc space, slightly flattening the anterior aspect of the thecal sac. Number three, a very small central protrusion at L1-2, and four, multilevel degenerative changes."

Owens testified that the abnormalities shown on Competiello's MRI films corresponded to the areas where the emergency room physician observed tenderness on the day of the accident.

In the summer of 2008, Competiello traveled to her native Italy to visit her father who was ill. Upon landing in Italy, Competiello's back was causing her pain and made it difficult for her to walk. She testified that she was given six injections in her back by an Italian physician during her stay.

Defense counsel had also moved in limine to exclude all testimony regarding these injections as Competiello had not provided the name and address of this Italian physician nor any medical records regarding treatment. The court denied this motion stating that the issue was "grist for cross examination."

Owens also commented on the chiropractor's records of the episode in Italy. When asked to describe his understanding as to what happened, Owens testified, without objection, "Well, more or less, it sounded like her back went into spasm and seized up, so to speak, from the long flight and she required treatment when she arrived in Italy. And I believe she had six injections in her back." Owens admitted on cross-examination that he did not know the exact nature or location of the injections Competiello received in Italy and that he had not reviewed any medical records from that incident.

Owens personally examined Competiello on September 11, 2009. Competiello complained of continued pain in her neck, low back, and right knee. Owens found she had limited mobility of the neck and low back; diminished sensation in part of her thigh and knee; and a lot of tenderness and spasm. Owens diagnosed plaintiff to have "bulging discs in the cervical spine as well as the herniated discs in the lumbar spine, along with a radiculopathy of the right lower extremity." The lumbar herniation occurred at L1-2, L2-3, and L4-5 and the cervical abnormalities were found at C5-6 and C6-7. He opined, within a reasonable degree of medical probability, that the lumbar herniations, cervical abnormalities, and radiculopathy were all permanent injuries, that is, they would never return to normal function, even with medical treatment. He opined that they were all caused by the auto accident. He explained that Competiello's pain was not due to pre-existing degenerative changes, which were asymptomatic. He noted she never required any treatment for back or neck conditions before the accident.

Owens testified Competiello had "exhausted . . . conservative measures." He initially testified that "she would be a candidate" for lumbar compression and fusion, but then clarified that he recommended the surgical procedure. He described the surgical procedure and testified that the normal recuperative timeframe is three to six months. He based his recommendation on his opinion that more conservative treatments had been ineffective in providing relief of Competiello's symptoms.

On cross-examination, Owens admitted that it might have been beneficial for Competiello to try less-invasive epidural injections prior to surgery as it is typical to undergo three rounds of epidural injections prior to surgery. Owens also stated that because it had been nearly five years since the accident, he did not believe epidurals would provide an effective solution to Competiello's symptoms. He conceded he did not review plaintiff's physical therapy records or chiropractic records after July 2008, and, to his knowledge, she had not opted for the recommended surgery.

The court denied a defense motion to bar Owens's opinion that surgery was needed. The defense argued the opinion was a net opinion and speculative, in part because he did not review all of plaintiff's treatment records. Judge Kennedy explained,

It's not a net opinion. It was his opinion based upon all of the records that he had examined. And he indicated that she still has complaints and restrictions after all these years of therapy, all the services that she's rendered.

And so, consequently, he feels that the only offer o[r] prospect of relief is a lumbar laminectomy. I don't find that to be a net opinion from a qualified orthopedic doctor who has examined the plaintiff and knows the nature and substance of the treatment that she has received since the time of the accident.

Pizarro's expert, Dr. Robert Morrison, evaluated Competiello on August 6, 2009 and testified that he did not find that Competiello had sustained any permanent orthopedic or neurological injuries as a result of the accident. Based on his review of Competiello's medical records and his physical examination of her, Morrison concluded the abnormalities found on the MRI films resulted from arthritic changes, not the 2006 accident. He found it telling that the emergency room records indicated Competiello complained of neck pain and headache, not back pain (although the ambulance report indicated back pain). He stated that someone with an acute disc herniation, such as would be caused by an auto accident, would be aware of it immediately and would not wait to get treatment. He also opined that Competiello's report of back pain in February 2007 was related to a kidney stone that was removed shortly thereafter. Morrison thought it significant that Competiello did not miss a single day of work as the school cafeteria manager.

Morrison testified that he had tested Competiello's reflexes, range of motion, and ability to walk on heels and toes and her results were normal. Morrison did find that Competiello was suffering from an active back spasm when he examined her, but it was unaffected by movement, which he considered consistent with arthritic changes. Morrison also testified that Competiello's current symptoms, which were managed by Tylenol and Motrin, did not warrant surgery.

On cross-examination, plaintiff's counsel elicited that Morrison derived his entire income as an expert witness, ninety-five percent of the time on behalf of the defendants, and, putting aside medical malpractice cases, he testified on behalf of a plaintiff at trial only once in ten years. During his opening statement, plaintiff's counsel described Morrison as "deriv[ing] his income from testifying for lawyers that work for the defense industry only." Counsel's objection to the use of the term "defense industry" was sustained and the judge ordered the statement stricken from the record.

Competiello testified, and her oldest daughter Lisa Polino confirmed, that she had never had any back pain, or received treatment for back pain before the accident. Polino described her mother, before the accident, as an energetic and take-charge person, who worked as a school cafeteria manager but was also an active homemaker. Since the accident, Polino observed her mother experience constant pain that restricted or interfered with her daily activities. Competiello testified that she had trouble sitting for extended periods, could not vacuum or garden, the pain interfered with her sleep, and her ability to play with her grandchildren as she would like.

Competiello explained that she ceased going to physical therapy because she received approval for insurance coverage for only twenty-six weeks. She stopped seeing Hamada because she did not experience any relief. After she continued to complain of pain, her children convinced her to seek treatment from a different provider, which led her to Esposito, the chiropractor. She testified that she was still seeing him, but continued to experience pain, especially when seated. During trial, she apparently felt the need to stand to relieve her discomfort. She intended to undergo the surgery Owens recommended the upcoming summer, when she was off from work.

The defense, in addition to relying on its expert's opinion regarding causation, attempted to minimize the extent of plaintiff's injuries. The defense highlighted the fact that plaintiff continued to work an eight-hour day and she did not seek medical care for a year, between the end of her treatment with Hamada, and the beginning of her chiropractic treatment with Esposito.

After deliberating less than two hours, the jury returned a unanimous verdict that Competiello sustained a permanent injury proximately caused by the accident, and a five-to-one verdict awarding damages of $250,000.

Pizarro filed a motion for a new trial, or in the alternative, remittitur. Judge Kennedy denied this motion on April 29, 2011.

Defendant raises the following points on appeal:

I. A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF AND HER MEDICAL EXPERT WERE IMPERMISSIBLY ALLOWED TO TESTIFY ABOUT SIX SEPARATE SURGICAL INJECTIONS THAT ALLEGEDLY OCCURRED WHILE PLAINTIFF WAS IN ITALY, WITHOUT PROVIDING THE DEFENDANT WITH ANY OF THOSE MEDICAL RECORDS OR EVEN IDENTIFYING THE ITALIAN PHYSICIAN.

II. A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF'S EXPERT DR. OWENS, WITH NO RECORDS FROM ITALY, WAS ALLOWED TO GIVE A SPECULATIVE DIAGNOSIS OF "SPASM" THAT WAS PROXIMATELY CAUSED BY A "LONG FLIGHT" TO ITALY.

III. A NEW TRIAL IS WARRANTED BECAUSE PLAINTIFF AND HER MEDICAL EXPERT WERE ALLOWED TO TESTIFY ABOUT ELEVEN MONTHS OF CHIROPRACTIC TREATMENT WITHOUT PROVIDING DEFENDANT WITH ANY OF THOSE MEDICAL RECORDS.

IV. A NEW TRIAL IS WARRANTED BECAUSE THE OPINIONS ABOUT A LUMBAR FUSION SURGERY GIVEN BY PLAINTIFF'S MEDICAL EXPERT DR. OWENS WERE INADMISSIBLE NET OPINIONS.

V. A NEW TRIAL IS WARRANTED BECAUSE OF PLAINTIFF'S COUNSEL'S IMPROPER COMMENTS IN HIS OPENING ABOUT THE DEFENSE MEDICAL EXPERT WORKING FOR "LAWYERS THAT WORK FOR THE DEFENSE INDUSTRY ONLY."

VI. A NEW TRIAL IS WARRANTED BECAUSE THE VERDICT OF $250,000 SHOCKS THE CONSCIENCE OR, ALTERNATIVELY, A REMITTITUR SHOULD HAVE BEEN GRANTED.

II.

A.

We turn first to points I and III, wherein defendant argues the court should have barred testimony because of plaintiff's alleged discovery violations.

An abuse of discretion standard governs our review of trial court decisions related to discovery matters. Pomerantz Paper Corp v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Bender v. Adelson, 187 N.J. 411, 428 (2006). In exercising this discretion, courts should "seek to avoid exclusion" of testimony that is "pivotal" to the case of the party offering the evidence. Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000). The Court identified factors a trial court should consider:

Factors that would "'strongly urge' the trial judge, in the exercise of his discretion to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of evidence." [Ibid. (quoting Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978)).]

We have likewise stated, "the sanction of exclusion of testimony is to be exercised cautiously and only after the court has exhausted all means of performing its shepherding function which do not terminate or deeply affect the outcome of a case."

Murray v. Nicol, 224 N.J. Super. 303, 314 (App. Div. 1988). Also, the party seeking a discovery sanction bears the burden, in the first instance, to demonstrate the predicate discovery violation. 7 Moore's Federal Practice - Civil § 37.03 (2012) ("The party seeking discovery has the burden of proving that answers are incomplete, evasive or otherwise inadequate.").

In asserting the predicate violation of a discovery obligation, defendant relies on Interrogatories 6, 7 and 15 of the form interrogatories. Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17 at 2472 (2012); see also Rule 4:17-1(b)(4) (every question on the uniform interrogatory must be answered barring a claim of privilege unless otherwise ordered by court). Interrogatory Number 6 requires a plaintiff to disclose details about diagnostic test results, and to produce copies of them.*fn2 Interrogatory Number 7 requires a party to disclose the name and address of all health care providers, but the obligation to produce is limited to "written reports" provided to the party, and then only if the provider will testify.*fn3 Interrogatory 15 generally requires a party to identify and produce "all documents that may relate to his action."

We do not interpret Interrogatory 15 to oblige a responding party to obtain all treatment records of every health care provider not already in the party's possession. That interpretation would largely render superfluous Interrogatory 6, which expressly requires production of diagnostic tests regardless of whether the party initially possessed them, and Interrogatory 7, which is limited to "written reports" to a party by a health care provider who is expected to testify.

To the extent the unproduced chiropractic records consisted of treatment notes, as opposed to diagnostic tests, it was incumbent upon defendant to obtain them, with plaintiff's reasonable cooperation. Plaintiff undisputedly disclosed the MRI, a diagnostic test, that the chiropractor ordered. According to the record before us, plaintiff also executed an appropriate authorization to enable defendant to obtain records. However, it is unclear from the record whether defendant, armed with the authorization, requested such records for the time period at issue, and the provider's response.

It also is unclear from the record whether the Italian physician conducted any diagnostic tests. However, it appears plaintiff did not disclose the name and address of the physician, which she was obliged to do under Interrogatory 7. On the other hand, it is unclear whether plaintiff possessed that information. She testified that under Italy's medical system, she did not have to pay for her treatment. Her failure to disclose the information may have been unintentional.

The record therefore does not clearly reflect the extent, if any, of an unexcused failure to respond to interrogatories. Applying the factors described in Wymbs, supra, there was no apparent intent to mislead, nor surprise, as to the chiropractic treatment or the injections in Italy. We recognize the information that plaintiff continued chiropractic treatment and was treated in Italy was obviously relevant and significant. Yet, neither plaintiff nor her expert claimed to know the specific nature of the injections she received. And while plaintiff described the nature of chiropractic treatments, neither plaintiff nor her expert attempted to convey the chiropractor's diagnosis.

Finally, the Rules of Court generally require an aggrieved party seeking sanctions to move promptly, generally before the discovery period ends. "Unless the court otherwise permits for good cause shown, motions . . . to impose or enforce sanctions for failure to provide discovery must be made returnable prior to the expiration of the discovery period." R. 4:24-2. See Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 81 (App. Div. 2007). The purpose of the rule is clear: to promote actual compliance with discovery and the determination of cases on the merits. An oral trial motion for discovery sanctions, especially if unsupported by a certification setting forth the pertinent facts, see Rule 1:6-6, places the opposing party at a significant disadvantage in responding, and makes it difficult for the court to find the essential facts and to reach a just result. The record does not reflect good cause for defendant's delay until trial to move for sanctions.

Under the circumstances, we therefore find no abuse of discretion in Judge Kennedy's denial of defendant's motion to exclude testimony regarding plaintiff's treatment in Italy, and her chiropractic treatment covered by the unproduced records.

B.

Defendant also argues it was reversible error for the court to permit Owens to testify that plaintiff apparently suffered from spasms on the lengthy plane ride to Italy, and to permit Owens to testify that spinal fusion surgery was called for. We do not agree.

Owens opined, with some uncertainty, "Well, more or less, it sounds like her back went into spasm and seized up, so to speak, from the long flight and she required treatment when she arrived in Italy." Defendant did not object. In particular, defendant made no objection that the opinion lacked foundation or lacked reasonable medical probability. See Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980) (requiring medical expert testimony to be stated "in terms of reasonable medical certainty or probability" and not mere "possibility").

We reject defendant's argument that the objection was preserved by the unsuccessful motion to bar testimony regarding the medical treatment or injections in Italy. Owens's testimony pertained to his expert assessment of the symptoms plaintiff experienced on the airplane, as she reported them to her. The court's denial of defendant's motion to bar plaintiff from testifying about her symptoms and the treatment she received did not preclude the argument that a specific diagnosis of her symptoms by Owens, long after the episode, and without the aid of medical records, lacked support. In any event, we find no error, as it would appear within the expertise of a orthopedist to determine that plaintiff's reported symptoms "sound[ed] like" spasm. Indeed, defendant's own expert witness testified that plaintiff experienced active spasm when he examined her in August 2009, and spasm was not unusual in an individual with arthritic degeneration of the spine.

We also find no error in Judge Kennedy's rejection of defendant's motion to bar Owens's surgery recommendation as a net opinion. The "net opinion" rule has been defined as "a prohibition on speculative testimony." Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007). A net opinion is one that "present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008). An expert's opinion must be based on facts, data, or another expert's opinion rather than speculation. Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). The expert must give the "why and the wherefore" of the opinion. Ibid. In general, experts must "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Koruba, supra, 396 N.J. Super. at 526 (internal quotation and citation omitted).

Defendant argues that Owens's opinion was a net opinion because (a) he lacked plaintiff's physical therapy records and several months of chiropractic records; and (b) he gave insufficient weight to the fact that plaintiff never treated with an orthopedic surgeon or neurologist, and she did not seek treatment for over a year, after she ceased treatment with Hamada. Defendant misapplies the net opinion rule. Medical opinion testimony is not inadmissible simply because it "fails to account for some particular condition or fact which the adversary considers relevant," provided the opinion is supported by other sufficient reasons. Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (internal quotation and citation omitted).

Although Owens admitted he lacked medical records from Italy and part of plaintiff's chiropractic records, he stated he had adequate information to conclude within a "reasonable degree of medical probability" that surgery was appropriate. He relied on such factors as the persistence and extent of plaintiff's symptoms, the nature of the physical injury to her lumbar and cervical discs evident in plaintiff's MRI, the failure of intermediate measures to provide relief, and his knowledge of the fusion surgery and the benefits it offered. Grounded in those facts and data, his recommendation of surgery was not a net opinion, and the trial court did not err in denying the motion to exclude it.

C.

We review under an abuse of discretion standard Judge Kennedy's denial of defendant's motion for a mistrial after plaintiff's counsel asserted in his opening statement that defendant's expert earned his living working for "lawyers that work for the defense industry." Barber v. Shoprite of Englewood, 406 N.J. Super. 32, 51 (App. Div. 2009) (trial court in "best position to gauge the effect of a prejudicial comment on the jury in the overall setting"). Defense counsel objected to the "defense industry" reference and requested a mistrial after the following argument by plaintiff's counsel:

MR. PIANTINO: The victim of the accident will be put on trial by the Defense in this case, and they will do this in order to move your attention away from certain key facts, which I will get to.

But most importantly, one of the things that I would like you [to] keep in mind as you're listening to the evidence in this case, [is that] everything that will [be] said on behalf of the Defense, will be by and through an expert who has not practiced medicine in 12 years. He has no active medical profession.

He doesn't have patients as doctors have patients. In fact, not only has he not practiced medicine for 12 years, he now derives his income, 99 percent of his income [from] testifying for lawyers. Not just lawyers, he derives his income from testifying for lawyers that work for the Defense industry only. [(Emphasis added).]

After a side-bar conference in which Judge Kennedy denied the mistrial request, he stated the following in open court:

THE COURT: I'm going to sustain the objection. The reference to the [defense] . . . industry goes, that is an improper argument, and I'm ordering that it be stricken from the record.

I'm not suggesting that there is anything purposefully done here, but I'm just suggesting that it's an improper term, and I'm going to strike it. Okay?

The reference to the "defense industry" could have been construed as a reference to the insurance industry, which would be objectionable, to the extent it was intended to convey that defendant was insured against liability. N.J.R.E. 411 ("Evidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct."). On the other hand, it is fair argument to highlight the source of an expert's compensation, to demonstrate possible bias. Williams v. Corby's Enterprise Laundry, 64 N.J. Super. 561, 567 (App. Div. 1960) (referring to a medical expert whose generally testifies on one side of workers' compensation cases, "we have no doubt that the demonstrated interest or bias of a witness is a relevant consideration in evaluating his testimony."), certif. denied, 34 N.J. 330 (1961); see also Gensollen v. Pareja, 416 N.J. Super. 585, 591 (App. Div. 2010) (referring to allowable discovery to demonstrate that an "expert possesses a positional bias").

We find no error in Judge Kennedy's assessment that counsel's "fleeting comment" to the "defense industry" did not compel a mistrial. Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009) ("Fleeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair."). Judge Kennedy acted swiftly to strike the comment and to instruct the jury that it was improper argument. We presume the jury followed his instructions. State v. Morgan, 423 N.J. Super. 453, 472 (App. Div. 2011).

A defendant needs to show more than the mere mention of insurance to establish prejudice warranting a mistrial. And in the case, the reference was an indirect one. Average jurors are likely aware that defendants in automobile cases receive a defense from insurers, given the compulsory insurance laws in our State. Roman v. Mitchell, 82 N.J. 336, 347-48 (1980); Runnacles v. Doddrell, 59 N.J. Super. 363, 369 (App. Div. 1960) (citation omitted). "We have thus said that '[s]o long as the insurance is not featured or made the basis at the trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice.'" Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 482 (App. Div. 1998) (quoting Runnacles, supra, 59 N.J. Super. at 368 (additional internal quotation and citation omitted)), certif. denied, 158 N.J. 74 (1999).

Our statement in Runnacles applies with equal force here:

[A] mistrial should be ordered only when the court in the realistic exercise of its sound discretion concludes that in the special circumstances of the case a party thereto is likely to have suffered prejudice by the mention of insurance. The mere inadvertent mention of insurance seldom meets this test[.]

[59 N.J. Super. at 368.]

Defendant has demonstrated no such "special circumstances." We therefore affirm the trial court's denial of a mistrial.

D.

Finally, we find no error in the court's denial of defendant's motion for a new trial or remittitur based on the alleged excessiveness of the jury's damage award. Because civil plaintiffs have a constitutionally guaranteed right to have a jury decide the merits and value of a case, judicial interference with a jury award must clear a high hurdle. Jackowitz, supra, 408 N.J. Super. at 503-04. To order a new trial based on the nature of a jury verdict, a judge must be "clearly and convincingly persuaded" that a manifest injustice would result from sustaining the award. Id. at 504. "Determining just compensation for an accident victim, particularly when damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion." Id. at 503 (internal quotation and citation omitted).

A jury verdict should not be vacated unless there is a "carefully reasoned and factually supported" determination following a careful review of the record and a "weighing of the evidence" that upholding the verdict would be a manifest denial of justice. Baxter v. Fairmont Food Co., 74 N.J. 588, 597-8 (1977). When presented with a motion for a new trial based on an allegedly excessive jury verdict, the judge should view the evidence in the light most favorable to the non-moving party, in this case, plaintiff. Mahoney v. Podolnick, 168 N.J. 202, 229-30 (2001).

Remittitur is a legal alternative to a new trial which allows the judge to "require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." He v. Miller, 207 N.J. 230, 248 (2011) (internal quotation and citation omitted). If a plaintiff does not agree to the reduced award, a new trial will be ordered.

However, "[t]he 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 249 (quoting Baxter, supra, 74 N.J. at 604). In determining whether to remit an award, a judge may consider common knowledge, personal experience with other jury verdicts, and the plaintiff's life expectancy. Id. at 250-51.

Viewed in the light most favorable to plaintiff, the evidence shows that she had no complaints of back or neck pain before the accident, she has suffered a great deal of pain and disruption in her daily life, and she will likely need to undergo major surgery with a long and painful recovery to enjoy any relief. In light of the applicable standards, we find no error in the court's decision denying the motions for a new trial and remittitur.

Affirmed.


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