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Carolyn Watts v. Michele J. Procopio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 18, 2012

CAROLYN WATTS, PLAINTIFF-APPELLANT, AND DAVID WATTS, PLAINTIFF,
v.
MICHELE J. PROCOPIO, DEFENDANT-RESPONDENT, AND LEONARD PROCOPIO, DEFENDANT.*FN1
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT/INTERVENOR-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2622-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 22, 2012

Before Judges Payne and Hayden.

On January 16, 2008, plaintiff, Carolyn Watts, was involved in a head-on motor vehicle collision with defendant, Michele J. Procopio, as the result of which plaintiff claimed injury to her a finger, her right wrist and her neck and right shoulder. At trial, Procopio's liability was admitted, and the jury found plaintiff to have been injured, but in a case to which the verbal threshold was inapplicable, it awarded zero damages. Plaintiff moved for a new trial or additur, and her motion was denied. This appeal from the denial of plaintiff's new trial motion followed. We affirm.

I.

At trial, plaintiff testified that, on the day of the accident, she was driving a conversion van at a curve on the roadway when she saw defendant's vehicle approaching on the wrong side of the road. Although plaintiff sought to avoid defendant's vehicle by turning off the road into a driveway, she was not successful. Defendant's vehicle hit hers, knocking off the wheel on the driver's side of the van and causing other significant damage. The van was totaled. A passing motorist was able to open the driver's side door sufficiently for plaintiff to get out. After the police came, plaintiff declined medical assistance. A neighbor drove plaintiff home. It was established that, because plaintiff's car was going to be towed and could not be locked, before leaving the accident site, plaintiff unloaded multiple Christmas gifts from the rear of the van and transferred them into the neighbor's car so that they could later be returned.

Thereafter, plaintiff informed her husband of what had occurred. He returned home from work and took plaintiff to Monmouth Medical Center, where she presented at the emergency department with complaints of pain in the right wrist, left hand and head that she stated had commenced at the accident scene. X-rays and a CT scan of the head were performed. Plaintiff was instructed to follow up with an orthopedist, and she was discharged with splints on both wrists.

Following her discharge, plaintiff, a hand therapist, contacted Christopher D. Johnson, M.D., an orthopedic hand surgeon with whom she had no business relationship. Dr. Johnson replaced the splints with "better" ones, prescribed over-the-counter anti-inflammatory drugs and scheduled a follow-up appointment in six to eight weeks.

By the time of the second appointment, plaintiff's complaints regarding her left hand had resolved, but those regarding the right hand had not. As a result, Dr. Johnson ordered an MRI of plaintiff's right arm and wrist. According to plaintiff, following review of the MRI, the doctor diagnosed a torn ligament and recommended surgery. Plaintiff testified that, instead, she self-treated. However, after experiencing continuing complaints, she scheduled an appointment with Joseph

T. Barmakian, M.D., a hand specialist that she had known professionally for "years," who maintained an office in the building in which plaintiff practiced and referred patients to her. Dr. Barmakian reviewed plaintiff's MRI and performed an evaluation, concluding that plaintiff could either have surgery or live with her condition.

Plaintiff testified additionally that she was seen by physiatrist Dr. Swick for unresolved pain in her right shoulder. Physical therapy for one month was authorized, but plaintiff's insurer declined to authorize any additional treatment. At the time of trial, plaintiff's complaints of pain in the left hand had "pretty much resolved." Similarly, her right shoulder and upper back were "okay," particularly in comparison to her right wrist. In that connection, plaintiff testified that her wrist clicks around and it's a little unstable. There's not a lot of strength in my hand. And when it clicks a lot, then it hurts.

If I use it a lot one day I'll wake up with a lot of pain the next day. If I just leave it still, then it has a little bit of a dull ache but it's not terrible. But it's always there. And if I use it, then I pay for it.

Plaintiff, who was forty-one years of age at the time of the accident, claimed that her wrist injury affected her ability to give certain physical therapy treatments, her ability to perform household chores, and her ability to engage in sports such as biking and water skiing and to exercise at the gym. She had gained twenty pounds, which she attributed to her inactivity following the accident.

On cross-examination, plaintiff stated that she owned three hand therapy offices employing four to six people. At the time of trial, plaintiff was spending approximately seventy-five to eighty percent of her time conducting "hands on manipulation," and twenty to twenty-five percent of the time performing managerial duties. Although these percentages did not differ from those applicable before the accident, plaintiff testified that she now had to delegate certain cases to other people.

Plaintiff made no claim for lost wages, and she confirmed that she had seen no doctors in 2010 or 2011. No surgery had been performed.

Both Dr. Johnson and Dr. Barmakian testified by means of video de bene esse depositions. Dr. Johnson testified that he first treated plaintiff on the day following her accident and, at that time, she was complaining about pain in her left hand and the outer or ulnar portion of her right wrist. Following his examination, the doctor was of the impression that plaintiff had suffered a contusion with a ligamentous sprain to the left pinkie finger, and that she had synovitis in the right wrist, with possible injury to the ligamentous complex on the outer side of the wrist. He splinted the right wrist, placed straps on the little finger, and recommended non-prescription anti-inflammatory medication.

Plaintiff was next seen on February 21, 2008, at which time she continued to complain of pain in the right wrist. The doctor recommended an MRI to confirm a clinical diagnosis of an injury to the ligamentous complex. The doctor again saw plaintiff on September 15, 2008, but at that time, she had not obtained the recommended MRI. An examination performed then remained suggestive of an injury involving the triangular fibrocartilage complex (TFCC).

Plaintiff underwent an MRI on November 25, 2008 and returned to Dr. Johnson for her final appointment with him in March 2009. Although the radiologist interpreting the MRI found only evidence of edema surrounding the TFCC, suggesting sprain, and found the TFC and the extensor carpi ulnaris tendon to be intact, Dr. Johnson interpreted the MRI, in light of his physical examination and plaintiff's complaints, as demonstrating an "abnormal signal involving the ulnar aspect of the joint" which he found to be "consistent with" a TFCC tear. When asked his opinion regarding permanency, the doctor responded: "Based on my experience with this patient over a year's time it would be my professional opinion that without additional treatment that she would have continued problems and continued difficulty . . . out into the future."

Dr. Barmakian was consulted by plaintiff on August 27, 2009, at which time she complained of pain in the ulnar aspect of her right wrist. An examination revealed tenderness in that region and an audible click upon rotation of the wrist - symptoms consistent with injury to the TFCC complex. Like Dr. Johnson, Dr. Barmakian testified that his review of plaintiff's MRI revealed a "change of signal" which he interpreted, along with his physical examination and plaintiff's history, as "enough to diagnose" a TFCC tear.

Kevin Egan, M.D., an orthopedic surgeon, was called as an expert witness by the defense. Dr. Egan examined plaintiff in September 2009. On physical examination, the doctor noted minimal crepitus or "pops" in the right wrist, but no swelling, redness or painfulness and no loss of mobility or function. He found no evidence of a TFCC tear, but only evidence of a temporary soft tissue injury to the wrist. That plaintiff's injury did not create a significant impact on plaintiff was demonstrated by her ability to take packages out of her van immediately after the accident.

On cross-examination Dr. Egan testified that he had found temporary soft-tissue injury to plaintiff's cervical spine that might have taken "as much as four to six months" to resolve, but was no longer symptomatic when the doctor examined plaintiff in 2009. He found no shoulder impingement, despite plaintiff's complaint of pain in that region. Dr. Egan had not been furnished plaintiff's MRI, and therefore had no opinion as to its results. Nonetheless, he adhered to his diagnosis that plaintiff had suffered only a sprain to her right wrist.

As stated, following closing arguments and the charge, the jury returned a verdict finding, by a six to zero vote, that plaintiff had proven by a preponderance of the evidence that she sustained injuries that were proximately caused by the accident. The jury answered "zero," by a five to one vote, to the question: "What amount of money will fairly and reasonably compensate plaintiff for all injuries that were proximately caused by the accident?"

Plaintiff's motion for a new trial or additur was denied. The trial judge determined that there had been no miscarriage of justice under the law, and that reasonable minds could accept the evidence as adequate to support the jury's verdict. This appeal followed.

II.

On appeal, our review of an order denying a new trial is limited, as was that of the trial judge, to a consideration of whether it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969).

We accord substantial deference to the trial court with respect to witness credibility, demeanor, and abstractions not documented by the record, such as the "feel of the case," but we otherwise make an independent determination of whether an injustice did in fact occur. Carrino v.

Novotny, 78 N.J. 355, 360 (1979); Baxter v.

Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6-8. We thoroughly "canvass the record to determine if 'reasonable minds might accept the evidence as adequate to support the jury verdict.'" Klawitter v. City of Trenton, 395 N.J. Super. 302, 324 (App. Div. 2007) (quoting Borngesser v. Jersey Shore Med.

Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001)). "'[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino, supra, 78 N.J. at 360). [Kozma v. Starbucks Coffee Co., 412 N.J.

Super. 319, 324 (App. Div. 2010).

In reviewing the jury's verdict, we view the evidence in a light most favorable to defendant, the party opposing the new trial motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Moreover, in doing so, we accord the jury's damage assessment a presumption of correctness, and must affirm it "unless it is so disproportionate to the injury and resulting disability shown as to shock the conscience and convince [us] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596.

In the present case, plaintiff alleged injuries to her left pinkie finger, the ulnar aspect of her right wrist, and to her neck and right shoulder from the accident occurring on January 16, 2008. However, following an emergency department visit, plaintiff initially only sought medical treatment with respect to her hand and wrist complaints. According to plaintiff's testimony, the injury to her left pinkie quickly resolved. Although she continued to complain of pain in the ulnar aspect of her right wrist, she only saw Dr. Johnson on four occasions between January 17, 2008 and March 2009 for that complaint, and she saw Dr. Barmakian - a long time business acquaintance - only once in August 2009. No physical therapy was ordered, although plaintiff claimed to have self-treated. Further, surgery was declined. The infrequency of plaintiff's consultations with treating physicians and the absence of treatment could have influenced the jury's verdict.

Furthermore, plaintiff delayed for a considerable period in obtaining the MRI ordered by Dr. Johnson. Although she testified that the delay was caused by problems in the authorization process, it was ordered on February 21, 2008 and was not performed until November 25, 2008. The jury was free to infer that at least some of the delay was the result of a lack of effort on plaintiff's part to ensure that the diagnostic testing was performed. We likewise find it noteworthy that neither of plaintiff's experts testified that the MRI definitively disclosed the TFCC tear that plaintiff claimed to exist, testifying only that the MRI disclosed an "abnormal signal" or a "change of signal" in the ulnar wrist area that, when correlated with the experts' physical examinations and plaintiff's history, permitted the diagnosis of such a tear. As previously stated, Dr. Egan found only a soft-tissue sprain or strain to have taken place in the wrist.

Plaintiff also claimed pain in the right shoulder, for which she was seen on one occasion, some time after the accident, by Dr. Swick, who authorized one month of physical therapy. However, Dr. Swick did not testify at trial, and no medical evidence was produced to substantiate the injury that plaintiff claimed to exist in that location. Dr. Egan denied shoulder impingement.

As plaintiff notes, defense Dr. Egan diagnosed a sprain of the cervical spine that he testified would have taken four to six months to resolve. However, there was no evidence presented that plaintiff had treatment for that condition and, as a matter of law, the jury did not need to "give controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd, 130 N.J. 484 (1993). "The jury may adopt so much of it as appears sound, reject all of it, or adopt all of it." Ibid.

If we focus on plaintiff's physical complaints, she testified to an inability to do certain physical therapies that she had previously performed, to a lessening of her ability to do household tasks, to engage in recreational activities, and to exercise at the gym. Nonetheless, there was also evidence that, immediately following the accident, plaintiff was sufficiently a-symptomatic to decline medical treatment and to engage in the transfer of multiple Christmas presents from her van to the car of her neighbor. Additionally, plaintiff offered no testimony that suggested that she missed work at any of the three hand therapy locations that she owned and in which she performed therapy. Further, there was no evidence that the time spent by plaintiff actively administering therapy changed after the accident from the seventy-five to eighty percent of her time spent in that activity previously. No lost wage claim was made.

In summary, we are satisfied that the evidence was such that the jury could reasonably have found that plaintiff sustained injuries as the result of the collision at issue, but that the injuries were de minimis and did not warrant compensation. Cf. Kozma, supra, 412 N.J. Super. at 326 (sustaining a verdict finding negligence but rejecting a monetary award in a case in which there was significant evidence of a pre-existing condition and additional evidence that plaintiff engaged in significant physical activities following the injury at issue). As in Kozma, we reject the applicability of Love v. Nat'l R.R. Passenger Corp., 355 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355 (2004), regarding the inconsistency in the jury's verdict, found there, not to exist in the present matter. See Kozma, supra, 412 N.J. Super. at 326-27. We also reject plaintiff's reliance on Chamberlain v. Sturma, 94 N.J. Super. 1 (App. Div. 1966), aff'd o.b., 48 N.J. 556 (1967), determining that the jury had the right to reject as significant Dr. Egans's conclusion that plaintiff had sustained strains or sprains in her cervical spine and right wrist.

Affirmed.


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