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Carmello v. Singh

Superior Court of New Jersey, Appellate Division

July 11, 2013

TAMMY CARMELLO, Plaintiff-Appellant,


Argued May 21, 2013

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5135-10.

David A. Nitti argued the cause for appellant (Law Office of Michael A. Percario, attorneys; Mr. Nitti, on the brief).

Peter DeSalvo, Jr., argued the cause for respondents (Soriano, Henkel, Biehl & Matthews, attorneys; Mr. DeSalvo, on the brief).

Before Judges Fisher and Alvarez.


On July 26, 2008, while stopped at a red light, plaintiff Tammy Carmello was struck from the rear by a vehicle operated by defendant Mandeep Singh, an employee of defendant Rintel Distributors, Inc. As a result, plaintiff filed suit to recover for injuries to her right shoulder, neck, and lower back, for which she received surgical and other treatment. The matter was tried solely as to causation and damages. The jury was asked to answer these two questions on the verdict sheet:

1. Did the Plaintiff, Tammy Carmello, sustain an injury as I have defined it to you proximately caused by the motor vehicle accident on July 26, 2008?
Yes__ No X Vote 6-0
If you answered Question #1, "Yes, " proceed to Question #2.
If you answered Question #1 "No, " cease all deliberations and return your verdict
2. What amount of money would fairly and reasonably compensate the Plaintiff, Tammy Carmello, for the past, present and future pain and suffering, disability and impairment, and loss of enjoyment of the life suffered as a result of the injuries she sustained in the motor vehicle accident of July 26, 2008?
$ ____ Vote ___

The jury answered the first question in the negative, thereby ending the matter. Plaintiff filed a motion for judgment notwithstanding the verdict, Rule 4:40-2, and a motion for a new trial, Rule 4:49-1. This appeal followed denial of the motion. We reverse.


At the trial, plaintiff presented two experts, both board certified orthopedic surgeons, Dr. Matthew Garfinkel, plaintiff's treating physician, and Dr. Steven Nehmer. Garfinkel, who operated on plaintiff's torn right shoulder rotator cuff, testified that although plaintiff's surgery improved her condition, she will continue to have pain and permanent restrictions in the use of her arm, including limits on weight lifting or overhead movement. Based on his training and experience, he opined that plaintiff's injuries resulted from the automobile accident, based not only on her relative young age when the accident occurred, thirty-six, but the fact she had no physical complaints prior to the accident. Garfinkel did not believe her conditions stemmed from her work. Plaintiff, a married mother of two children, worked as a plumber in a family business alongside her brother and father, which she is no longer able to do when it requires physical labor.

Nehmer agreed. He added that plaintiff had also suffered a disc herniation at the C5-6 level causally related to the accident. He grounded his determination on the absence of prior complaints or treatment. Plaintiff, who saw a chiropractor some two days after the accident, has since that time complained of pain to her neck and right shoulder. Nehmer observed that the failure of MRI studies conducted in 2008 to reveal the torn rotator cuff was not dispositive of the question of causation because such studies can fail to reveal damage to a joint. He also agreed that the injuries suffered in the accident were permanent in nature and would restrict plaintiff's future activities. He categorically denied that the herniated disc or the rotator cuff were the product of the passage of time, aging, or degenerative processes.

Defendants' expert, Dr. Steven Robbins, also a board certified orthopedic surgeon, testified that plaintiff's disc herniation resulted from degenerative disc disease, and her torn rotator cuff from a long-standing congenital condition, a downward sloping acromion, which could result in tendonitis and bursitis from repetitive use. Significantly, however, Robbins said on direct examination:

So my opinion remains that she may have had a -- she was in an accident. I'm not saying the lady wasn't hurt. But she got hit from the rear and she had a soft tissue injury to her neck. There's a temporary soft tissue injury.

On cross-examination, Robbins added:

I think at the time of the accident she had sprain to her neck and it probably hurt, yes.
Q Well Ms. Carmello said she hurt her shoulder in this accident. Do you disagree with that?
A. No. I said she may have had a temporary injury, but I don't find a permanent injury.

Plaintiff's motion for judgment notwithstanding the verdict, or a new trial, on the issue of damages was heard on the papers by the trial judge and denied October 26, 2012. On the form of order the judge merely stated that "giving due regard to the jury's opportunity to consider the credibility of witnesses, the court does not clearly and convincingly find that there was a miscarriage of justice under the law. R. 4:49-1."


A motion for judgment notwithstanding the verdict or a new trial should not be granted unless the jury's verdict was a manifest denial of justice. See R. 4:40-2; 4:49-1. In deciding a motion for judgment notwithstanding the verdict, a court must consider whether the evidence, together with any legitimate inferences, could sustain a judgment in the prevailing party's favor. Reilly v. Keenan, 406 N.J.Super. 281, 298 (App. Div. 2009).

Our review of an order denying a new trial motion is limited to consideration of whether it clearly results in a miscarriage of justice under the law. R. 2:10-1; Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969). We must accord "due deference to the trial court's feel of the case." Jastram v. Kruse, 197 N.J. 216, 230 (2008). We view the evidence in the light most favorable to the party opposing the motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). We do not substitute our judgment for that of the jury, but instead grant the motion "only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962)).

In this case, even drawing all inferences in favor of defendants, it is clear that the jury could only find for plaintiff based on the testimony it heard. Defendants' own expert acknowledged that plaintiff was no doubt injured as a result of the collision, a conclusion in which he was joined not only by plaintiff's experts, but which was corroborated by plaintiff's testimony, that of her husband, and the fact that she obtained medical treatment within two days of the occurrence.

Defendants counter this argument by a line of cases regarding a jury's conclusion that minimal injuries are not compensable. We agree with that principle.

But that principle, and the line of cases which support it, does not address the miscarriage of justice that occurred here. Despite the fact that every witness acknowledged plaintiff was injured as a result of the accident, the jury's verdict was to the contrary. Because defendant's medical expert conceded that plaintiff was injured as a result of the auto accident, we reverse and remand the matter for a new trial. The jury's conclusion was clearly against the weight of the evidence, and resulted in a miscarriage of justice which affords plaintiff the opportunity for a new trial.


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