On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9351-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012 -
Before Judges Accurso and Lisa.
Plaintiff, Sami R. Radwan, was injured on March 12, 2009, when the vehicle he was driving was struck in the rear by a vehicle driven by defendant, Cynthia L. George-Hammond. Plaintiff sued defendant. Defendant admitted that she was 100% at fault for causing the accident, and the case went to trial on the issue of damages only. However, in order to recover damages for his injuries, plaintiff was required to first prove that he suffered a permanent injury caused by the accident. See N.J.S.A. 39:6A-8a.
Plaintiff had been involved in a previous vehicular accident on May 4, 2008, in which he was struck in the rear by another vehicle. In that accident, he suffered injuries to his spine. At the time of the March 12, 2009 accident, plaintiff was still being treated for the injuries from the prior accident. Plaintiff testified that his symptoms worsened after the 2009 accident. He presented the testimony of two medical experts, whose testimony included the opinion that plaintiff's prior injuries were exacerbated by the 2009 accident and that the exacerbation was permanent.
Defendant presented the testimony of two medical experts who examined plaintiff and reviewed medical records pertaining to both accidents. Dr. Gary Alweiss, a neurologist, opined that plaintiff complained of pain after the March 12, 2009 accident, and thus may have suffered sprains and strains in his neck and back, but he suffered no permanent neurological injury from that accident. He acknowledged that plaintiff's spine exhibited degenerative changes, but opined that they were a result of the aging process for a sixty-year-old person such as plaintiff.
The other defense expert, Dr. Alan Miller, an orthopedist, also opined that plaintiff's condition was "consistent with more degenerative process than an acute process." Based on the history of the prior accident, a review of records, and his physical examination of plaintiff, he concluded that plaintiff did not suffer a permanent injury as a result of the March 12, 2009 accident. He acknowledged that there was some "aggravation or exacerbation from a previous injury," but "felt it was a temporary aggravation or exacerbation."
After hearing all of the evidence, the jury responded "No" to the following question: "Did the plaintiff, Sami Radwan, sustain a permanent injury proximately caused by the accident of March 12th, 2009[?]" Accordingly, the judge entered a judgment of no cause of action.
Plaintiff did not move for a new trial. He filed this appeal, in which his sole argument is that the verdict should be set aside because it was against the weight of the evidence and constituted a miscarriage of justice.
Pursuant to Rule 2:10-1, "the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court." This rule is subject to strict enforcement. Fiore v. Riverview Med. Ctr., 311 N.J. Super. 361, 362-63 (App. Div. 1998). We perceive no basis to relax it here. Accordingly, plaintiff's sole argument on appeal is barred because of his failure to preserve the issue by making a new trial motion in the trial court. On that basis alone, we affirm the judgment under review.
Nevertheless, we have reviewed the trial record, and we are satisfied that there was more than ample evidence to support the jury's verdict. Considering the evidence in the light most favorable to plaintiff, including all reasonable inferences, see Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006), no basis exists for setting aside the jury's verdict. Indeed, the jury had the right and obligation to assess the credibility of the respective competing medical experts and to determine the weight to be attributed to the testimony of each of them. Id. at 370. The jurors obviously found the testimony of the defense experts more persuasive than that of plaintiff's experts. They accordingly found that plaintiff failed to carry his required burden of proving permanent injury caused by the subject accident. There was no miscarriage of justice under the law.