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William Carr v. Evergreen Equities


June 7, 2012


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5200-08.

Per curiam.


Argued January 31, 2012

Before Judges Messano and Espinosa.

Plaintiff William Carr sued defendants Evergreen Equities, LLC (Evergreen), Allstate Realty Associates (Allstate) and Harden Urban Development Corporation (Harden) alleging personal injuries as a result of a fall on ice in a parking lot in East Orange owned, operated, maintained or controlled by defendants.*fn1

At trial, the jury concluded that the negligence of Evergreen and plaintiff were proximate causes of the accident and apportioned their respective responsibility -- sixty percent to Evergreen and forty percent to plaintiff. In considering the damages proximately suffered by plaintiff as a result of the accident, the jury awarded him $6250 in past lost wages, but made no award for past medical expenses or pain and suffering. The judge molded the verdict and entered judgment in favor of plaintiff in the amount of $3750, plus pre-judgment interest in the amount of $316.36.

Plaintiff moved for a new trial on damages. R. 4:49-1. Following oral argument, the trial judge denied the motion and this appeal followed. We have considered plaintiff's arguments in light of the record and applicable legal standards. We affirm.


The testimony at trial revealed that plaintiff arrived at work on the morning of March 21, 2007 at approximately 8:00 a.m. The parking lot had been plowed, but there was "a lot of ice and . . . residual snow on it." After exiting his car, he "took a couple of steps[] and fell." Plaintiff's knee struck the pavement, he immediately felt pain, and his knee became swollen. After going home to change his torn pants, plaintiff returned to work. The following day, plaintiff saw a doctor who x-rayed the knee, told him that "she [saw] problems" and advised plaintiff to return if the pain continued.

Plaintiff next saw a doctor eleven months later in February 2008 after experiencing pain on a regular basis whenever he "use[d] [his] knee extensively." An MRI was conducted and arthroscopic surgery was performed by Dr. Alan R. Miller in June 2008.

Plaintiff used accumulated sick time to cover the twenty-five days of work he missed following surgery. Plaintiff had retired since the surgery, and testified that he would have been compensated for unused sick days upon retirement at a "[n]et" rate of $250 per day.

Plaintiff's expert at trial, Dr. Andrew Carollo, a board-certified orthopedic surgeon, examined plaintiff, the MRI studies, Miller's operative report, inter-operative photos from the arthroscopy and other medical records. Carollo noted that the MRI demonstrated a "tear through the degenerative lateral meniscus as well as [a] tear of the medial meniscus," and "degenerative changes on the lateral tibial plateau on the MRI." Carollo opined that as a result of the fall, plaintiff suffered a "severe contusion dash sprain of the right knee," "tears of [the] medial and lateral menisci," and "aggravation of pre-existing degenerative changes of the right knee." Carollo reviewed various medical bills and further opined that the total amount, $18,106.44, represented "treatment" that "was both reasonable and necessary in light of the injuries" plaintiff suffered in the fall.

Evergreen's expert, Dr. Edward Decter, also a board-certified orthopedic surgeon, testified that after examining plaintiff, his initial opinion was plaintiff suffered tears of the medial and lateral meniscus "as a result of the fall." However, Decter changed his opinion after reviewing the "inter-operative photographs" taken during the surgery. Decter agreed that plaintiff's knee revealed two torn menisci; however, he disputed Corollo's conclusion that only one was degenerative. Reading from his final report, Decter testified,

These are obviously degenerative changes in the knee, degenerative meniscal tears. These are not acute in nature, meaning they didn't happen right away.

These are not caused by the accident in question. They are chronic and longstanding. They are diffuse, degenerative meniscal changes which in no way are related to this fall . . . .

Decter acknowledged that plaintiff suffered "some aggravation of a pre-existing degenerative change of his right knee," and "may have temporarily contused his knee . . . ."

After summations, the jury was charged. In his instructions regarding plaintiff's claim for past medical expenses, the judge told the jury that $18,106.44 was the "upper limit of the award you may make for medical expenses." He also instructed the jury that "the upper amount you may award plaintiff for lost accumulated sick time is $6,250." Shortly after it began deliberations, the jury sent out a series of written questions to the judge. In particular, the jury asked: "Why were the medical bills $18,106.44? Were these out-of-pocket expenses? Can we see them?"

Plaintiff's medical expenses had been paid by his employer's workers' compensation insurer, which, in turn, had asserted a lien on plaintiff's recovery in this litigation. After some discussion with counsel, the judge provided the jury with a "print-out of the medicals, who the provider was and the payments that were made." He then told the jury:

Why were the medical bills $18,106.44? That resulted from these payees. Okay? Were these out-of-pocket expenses? These bills were paid for by the worker[s'] compensation carrier who receives reimbursement from plaintiff's award in this case. If there's no award plaintiff has no obligation to make reimbursement.

There was no objection to these instructions. The jury returned the verdict referenced above.

Plaintiff moved for a new trial on damages. He argued that the instruction in response to the jury's question regarding medical expenses was capable of confusing the jury into believing "that if no medical bills were awarded they did not have to be paid back." Plaintiff also argued that the jury's verdict was inconsistent because it awarded plaintiff compensation for sick days used as a result of the surgery that followed the accident, but made no award for medical expenses attributable to the fall and no award for pain and suffering.

The judge noted that "[t]he damages dispute totally involved whether the torn meniscus and the arthroscopic surgery were causally related to the fall." The judge continued:

I thought the plaintiff testified well . . . . But there was [sic] a couple of things he couldn't overcome in the case.

[T]here was a real, very real dispute on liability. And there was a very real dispute as to the fall down, the amount of snow, the amount of ice out there, contested. So there was an issue as to his credibility as to the fall down. But I think that the main problem he had was . . . this [eleven] month gap in treatment.

And . . . I think the defendant won the battle of the experts. I think . . . Dr. Carollo . . . was not as effective as Dr. Decter was. And when Dr. Decter gave his opinions on the inter-operative [sic] photographs . . . taken from inside the plaintiff's knee during the surgery, [he] explained the degeneration.

I also think Dr. Carollo hurt the plaintiff's case when he backed off. Originally his diagnosis was there were two meniscal tears, then it was one.

And I don't necessarily agree with the jury verdict, but that's not the standard. The standard is whether it clearly and convincingly appears there was a miscarriage of justice under the law and whether the jury's verdict is clearly the result of passion, mistake, prejudice, or partiality.

The causal relationship of the injuries to the fall was always in dispute. The jury was free to believe that the plaintiff sustained a contusion which healed without treatment and didn't incur any pain and suffering. They were free to determine that there should be no pain and suffering award based upon that. [T]he surgery and the meniscal tears were not causally related.

And I think the jury verdict is consistent in the extent that they felt . . . the medical bills relating to the MRI, the arthroscopic surgery, the surgical bill, the physician's bill, regarding the arthroscopic surgery [were] not causally related to the accident.

They found that. . . . [M]aybe $17,500 out of the $18,000 was related to the surgical procedure. And since they found that it was not causally related to the accident[,] they gave no award for the medical bills.

Analyzing their award for the sick time, which they believed was . . . contractual, they didn't want to harm the plaintiff. Look, he's not out-of-pocket for the medicals. He's not out-of-pocket for his sick time. I think it's a verdict that can be sustained.

The judge also decided to "extinguish[] the worker[s'] comp lien because this jury found that the medical expenses that were paid for by the comp carrier were not causally related to the accident." He entered the order under review and this appeal followed.


Pursuant to Rule 4:49-1(a), a motion for a new trial shall 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." The Court recently reiterated the standards applicable to such motions in Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 521-22 (2011):

A jury verdict is entitled to considerable deference and "should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977). That is, a motion for a new trial "should be granted only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court." Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962). In fact, in Carey v. Lovett, 132 N.J. 44, 66 (1993), we expressly stated that a "trial court should not disturb the amount of a verdict unless it constitutes a manifest injustice . . . ." Thus, a trial judge is "not [to] substitute his [or her] judgment for that of the jury merely because he [or she] would have reached the opposite conclusion . . . ." Dolson v. Anastasia, 55 N.J. 2, 6 (1969).

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 undervaluation 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). [(Alterations in original) (parallel citations omitted).]

We apply the same standard of review on appeal. Id. at 522. "However . . . an appellate court must give 'due deference' to the trial court's 'feel of the case.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)).

Plaintiff contends that the jury's failure to award any damages for pain and suffering must be set aside because there was no dispute that he suffered some injury from the fall. In this regard, he notes Decter acknowledged that plaintiff suffered a contusion. Plaintiff argues, "[w]hile a verdict of a few thousand dollars may have been sustainable, a verdict of $0 is clearly inadequate, against the weight of the evidence and a miscarriage of justice."

In Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 322-23 (App. Div. 2010), the plaintiff alleged injuries to his back and leg following a slip and fall on ice outside the defendant's store. Although the jury found the defendant liable, it awarded no damages. Id. at 323. The trial judge denied the plaintiff's motion for a new trial. Ibid. In affirming, we said:

We agree with the trial judge that the evidence was susceptible to an interpretation that minimized the monetary equivalent of plaintiff's pain and suffering to its vanishing point. Given the long history of plaintiff's related prior injuries, the jury was free to conclude either that plaintiff's current complaints stemmed from that legacy, or that the fall at Starbucks was inconsequential in affecting plaintiff's lifestyle and quotient of pain and suffering. [Id. at 325.]

Distinguishing our prior holding in Chamberlain v. Sturma, 94 N.J. Super. 1, 4 (App. Div. 1966), aff'd o.b., 48 N.J. 556 (1967), in which we overturned a verdict awarding no damages for pain and suffering in spite of a liability finding against the defendant, we noted:

In the case before us, there was ample evidence from defendant's expert . . . that plaintiff's symptomatology was consistent with pre-existing conditions and that the fall neither did further damage nor permanently aggravated any pre-existing arthritic condition. In other words, the evidence presented to the jury was not as one-sided as plaintiff wants us to believe. [Kozma, supra, 412 N.J. Super. at 327.]

So, too, in this case, defendant's expert opined that plaintiff suffered from significant degenerative changes in his knee that pre-existed the fall. He acknowledged that plaintiff may have suffered a contusion. However, plaintiff returned to work the same day, was seen by a doctor the next and did not seek further medical treatment for nearly a year thereafter. The jury could reasonably have found "that the fall . . . was inconsequential in affecting plaintiff's lifestyle and quotient of pain and suffering." Id. at 325.

Plaintiff also contends that the award of zero damages for his medical expenses must be set aside because "there was no evidence or testimony by defense doctor that they were not reasonable, medically necessary, or causally related to the accident in question." However, "a 'jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary.'" Kozma, supra, 412 N.J. Super. at 327 (quoting Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985)). The argument requires no further discussion in this opinion. R. 2:11-3(e)(1)(E).*fn2

We come then to the crux of plaintiff's appeal, i.e., that the verdict was inconsistent because the jury made an award compensating him for past lost wages proximately caused by the fall, but made no award for the other categories of damages. In large part, plaintiff relies upon our decision in Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355 (2004), which he contends "is on all fours" with this case.

In Love, the parties stipulated to liability and tried only the issues of causation and damages. Id. at 527. The jury awarded the plaintiff $65,000 in lost wages, but zero for pain and suffering. Ibid. We ordered a new trial, concluding "we [could not] countenance the patent inconsistency between the one part of the award that recognized a loss as a result of the incident and the other that rejected the idea of any damages at all . . . ." Id. at 534.

Plaintiff overreads our holding in Love. There, the plaintiff underwent continuous medical treatment for a period of nearly three years after the accident, during which he received epidural injections, underwent multiple knee surgeries, leading to the replacement of both knees, a decompression laminectomy and was eventually unable to return to work. Id. at 529-31. The defendant introduced no contrary medical or vocational evidence. Id. at 532. Noting the jury's award for lost wages, we said "[g]iven the finding of a medically causal connection between plaintiff's injuries and the on-the-job incident, and considering the extended medical treatment that resulted, including a series of surgeries, it follows that plaintiff was entitled to an award, as well, for any pain and suffering that could be established." Ibid.

However, we also recognized:

We do not consider jury verdicts such as those returned here to be necessarily inconsistent. In fitting circumstances, a jury might well -- and quite rationally -- determine, on the one hand, that a showing of medical causation had been made and that a plaintiff's loss of income was a direct consequence of the accident, while at the same time concluding that the plaintiff had not discharged his burden of proving the pain and suffering adequate to support a damages verdict therefor. [Id. at 528.] In our opinion, this is such a case.

As the trial judge noted, the issue of liability was hotly contested. Indeed, the jury determined plaintiff was forty percent responsible for the accident. As to causation and damages, the judge noted that Decter's testimony was more persuasive and supported the conclusion that plaintiff's condition was most likely attributable to pre-existing arthritic changes that pre-dated the fall. Plaintiff's own testimony in which he acknowledged a lack of any medical treatment for nearly a year supported the jury's conclusion that plaintiff suffered no pain, suffering, disability, impairment or loss of the quality of life as a result of the fall.

We acknowledge that the evidence supporting the wage loss award was limited to the time during which plaintiff used accumulated sick time after the operation. However, any inconsistency between the award of lost wages and the failure to award medical expenses does not undermine the jury's assessment of plaintiff's claim for pain and suffering. See Ming Yu He v. Miller, 207 N.J. 230, 259 (2011) (noting "there is no necessary correlation between a sizeable lost wage award and non-economic damages"). In other words, based upon the full record in this case and despite awarding him lost wages, the jury's conclusion that "plaintiff had not discharged his burden of proving the pain and suffering adequate to support a damages verdict," Love, supra, 366 N.J. Super. at 528, does not constitute a miscarriage of justice under the law. R. 4:49-1.


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