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Dolywa v. Anderson

Superior Court of New Jersey, Appellate Division

August 20, 2013

MARIA DOLYWA and BRUCE DOLYWA, Plaintiffs-Appellants,
EUGENE ANDERSON and TRI-STATE TOP SOIL, INC., Defendants-Respondents.


Argued October 17, 2012

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-548-08.

John V. McDermott, Jr., argued the cause for appellants (Law Offices of John V. McDermott, Jr., attorneys; Mr. McDermott and Cynthia M. Collins, on the brief).

Jill B. Flynn argued the cause for respondents (Zirulnik, Sherlock & DeMille, attorneys; Ms. Flynn, on the brief).

Before Judges Fuentes, Ashrafi, and Hayden.


On July 3, 2007, plaintiff Maria Dolywa was involved in an automobile accident when a thirty-four ton dump truck, driven by defendant Eugene Anderson and owned by defendant TriState Top Soil, Inc., hit the car in which she was driving. As a result, plaintiff[1] sued defendants, claiming injury to her neck, shoulder, back, and head. At trial, the judge entered a directed verdict on the issue of liability. The jury found that plaintiff did not "prove by a preponderance of the evidence that she sustained personal injury or injuries proximately caused by the accident." Plaintiff moved for a new trial and the judge denied the motion. This appeal followed. We affirm.

The evidence showed that plaintiff was sitting in her stationary 1997 Cadillac Eldorado, which weighed 3800 pounds, when she was hit from behind on the rear passenger side by defendants' loaded dump truck, which weighed 69, 000 pounds. Plaintiff's insurance company deemed her car "totaled."

Immediately after the accident, plaintiff got out of her car and went to a nearby store to call the police, who came to the scene. Plaintiff told the police that she was not injured, then moved her car off the road and waited at the accident site for over an hour until her husband arrived. He took her to Saint Clare's Hospital, where she reported that she was suffering from "an excruciating headache, " neck pain and blurry vision, but was released from the hospital later that day. Plaintiff then went back to the accident site and drove her car to her home, about two miles away.

Plaintiff testified that she spent the next two days at home with nausea, vision problems and mounting pain in her neck, back, shoulders, and hip. Three days after the accident, plaintiff followed up with her primary care physician, Dr. Kathleen Saradarian, who diagnosed a concussion and prescribed pain medication and an anti-inflammatory. Over the next several years, plaintiff saw Dr. Saradarian twenty-four times for treatment related to issues she attributed to the accident.

Approximately two weeks after the accident, plaintiff went to see an orthopedist, Dr. David Basch. He prescribed physical therapy and a narcotic pain medication. During her third visit to Dr. Basch some months after the accident, Dr. Basch diagnosed a disk herniation at the C6-7 vertebra. Although plaintiff and Dr. Basch discussed surgery on multiple occasions, as of the time of trial, she had not undergone any surgery. Plaintiff also saw a second orthopedist regarding the possibility of spinal surgery.

Plaintiff also consulted a neurologist, who performed a brain scan and prescribed topical pain patches and antidepressants. Plaintiff testified that the neurologist had diagnosed the "pinching" in her extremities as caused by pressure in her lumbar and cervical spinal disks. She consulted a second neurologist, who was also unable to treat her. She saw a pain management specialist but turned down his proposed epidural injections. Plaintiff also consulted an "eye doctor" about her "blurred vision."

At trial, plaintiff summarized her injuries as follows: "Throbbing headaches, pain in my neck. I don't have full range of motion in my neck. I can turn to the right, not fully to the left. And I still can't put my head back to look up." She described her pain in her neck and back as "severe at times, " which kept her awake so that she slept only three or four hours a night. Plaintiff indicated that she experienced ongoing muscle spasms, including a physical protrusion on her back, approximately two inches in diameter and protruding outward approximately three-quarters of an inch. Plaintiff and her husband testified regarding the deleterious effects the pain and physical limitations had on her daily life. Plaintiff testified that she was still employed and able to drive.

Christopher Kappelmeier, a high school physics teacher and an adjunct college professor with a master's degree in engineering, testified as plaintiff's expert in the field of physics. The trial court barred him from testifying on the subject of biomechanics. Kappelmeier testified regarding the physics involved in a loaded dump truck colliding with a stationary car and, in particular, the specific effects of defendants' truck colliding with plaintiff's car. He explained in detail the substantial force to which that the truck subjected plaintiff's car, which caused her car to accelerate "from zero to fifteen in a fraction of a second."

Dr. Saradarian, plaintiff's primary care physician, testified as plaintiff's family medicine expert. According to Dr. Saradarian, plaintiff presented three days after the accident with a number of complaints: "The major complaint was neck pain. But also she was complaining of feeling very lightheaded and woozy, a lot of noise in her neck, visual disturbance, numbness in her face and her arms and her fingertips and weird tingly, pinchy feelings." Dr. Saradarian had previously treated plaintiff for "some aches and pains, but nothing like this."

Dr. Saradarian diagnosed plaintiff with a "mild" concussion, since she never had loss of consciousness. The doctor explained that a concussion is a diagnosis based on a complete clinical picture, particularly the patient's complaints, and cannot be directly evidenced by an MRI or CAT scan. In Dr. Saradarian's opinion, all of plaintiff's symptoms resulted from the accident because these conditions never existed before it happened.

Dr. Saradarian referred plaintiff to an ophthalmologist, who did not find anything wrong with plaintiff's eyes, and concluded that her complaints could be a result of "the accident or her age." A neurologist who treated plaintiff reported to Dr. Saradarian that: "Despite [plaintiff]'s complaints, objectively I find no neurological deficits."

Dr. David Basch, plaintiff's treating orthopedist, testified on her behalf as an expert in orthopedic surgery. He first treated plaintiff approximately two weeks after the accident. His examination of plaintiff indicated a painful gait, hunched posture, neck tenderness, limited range of motion, muscle weakness on the right side, and back tenderness. Dr. Basch diagnosed plaintiff with a "whiplash type of injury to her neck and her lower back." In his opinion, plaintiff's injuries were the direct result of the accident as she had no preexisting conditions to explain her symptoms.

Dr. Basch stated that the MRI of the neck showed "a disk herniation with internal disk disruption at C6-7 level, which was moderate in size and causing nerve root impingement . . . ." Dr. Basch opined that the disk herniation and internal disk disruption shown in plaintiff's MRI were a result of the accident. He also described plaintiff's symptoms as "consistent" throughout his treatment.

On cross-examination, Dr. Basch acknowledged that, contrary to his testimony, the radiologist who interpreted the MRI films discussed by Dr. Basch found a moderate disk herniation but no impingement on the spinal cord, no nerve root involvement, and no disk interruption. The radiologist's report of plaintiff's second MRI indicated that the disk herniation decreased from "moderate" to "small" and may have been associated with degenerative disk disease. Dr. Basch also acknowledged that, although he found decreased range of motion in examining plaintiff, Dr. Khesin, the treating neurologist, noted normal range of motion fourteen days later.

Kenneth Betz testified for plaintiff as an economics expert. Betz testified regarding the economic losses experienced by plaintiff since the accident, as well as foreseeable future expenses. He found that she had lost wages of $49, 488. He stated that the value of the household services performed every day was $31 per day. The trial judge precluded the witness from stating that plaintiff was unable to perform a thousand hours of compensable services per year as a statement of fact, finding that it was not supported in the record.

Dr. Robert Traflet, the defense radiologist expert, testified that he reviewed plaintiff's cervical MRI, which showed a herniated disc, a condition that was degenerative in nature rather than traumatically induced. He based this opinion on the presence of bone spurs, which develop over time from a degenerative condition. Additionally, the radiologist testified that the herniation was not impinging on plaintiff's spinal cord and could not be causing her subjective complaints. Dr. Traflet disagreed with plaintiff's treating radiologist, who determined that plaintiff had a "moderate size disc herniation", contending that a "one millimeter disc herniation is not moderate."

Dr. Barry Levine testified for defendant as an expert in the field of orthopedic surgery. He reported that, at the examination, plaintiff was guarded in her movements and in her range of motion but during conversation she moved her neck normally. According to Dr. Levine, his examination did not reveal any neurological or otherwise objective evidence of injury. While there was no objective sign that the disc herniated at L3-4 was impinging on the spinal cord, Dr. Levine observed, if it were, then the pain would be radiating down her left thigh, not down her back and her legs as she claimed. He concluded that her complaints did not relate to the accident.

Defense counsel showed Dr. Levine plaintiff's exhibit P-64, a photograph of plaintiff's back taken a week before the trial. He opined that the two-inch raised area, which Dr. Saradarian described as a knot caused by a muscle spasm, was a subcutaneous tumor. He explained that benign tumors beneath the skin were very common in that area of the thoracic spine. Plaintiff's counsel objected that the opinion was beyond the scope of the doctor's report. The judge overruled the objection chiefly because plaintiff had not provided the photograph to the defendant until during the trial.

After deliberating about thirty-two minutes, the jury returned a unanimous verdict that plaintiff did not "prove by a preponderance of the evidence that she sustained personal injury or injuries proximately caused by the accident." Plaintiff subsequently brought a motion to set aside the jury verdict, which the trial court denied. This appeal followed.

On appeal, plaintiff contends that the jury's failure to award plaintiff at least minimal damages in light of the "uncontradicted" evidence that her injuries were caused by the accident was a miscarriage of justice that mandated a new trial. Plaintiff further contends that during the trial the judge made several erroneous rulings that, individually or cumulatively, were so prejudicial as to compel a new trial. Finally, she argues that the judge erred in not giving a jury charge on aggravation of a preexisting condition.

A trial court's ruling on a motion to set aside a jury verdict shall not be reversed unless "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). "The object is to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The role of the trial judge in ruling on such a motion is to consider "not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility . . . so-called 'demeanor evidence', and the intangible 'feel of the case' which he has gained by presiding over the trial." Ibid. Accordingly, an appellate court is deferential to the trial court with respect to these "intangible" matters, but otherwise makes its own determination as to whether a miscarriage of justice occurred. Id. at 6-8; Ming Yu He v. Miller, 207 N.J. 230, 250 (2011). See also Carrino v. Novotny, 78 N.J. 355, 360 (1979) (describing a jury verdict as "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"). When reviewing a jury verdict, the judge must view the evidence in the light most favorable to the party opposing the motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).

Our Supreme Court has recently discussed the miscarriage of justice standard:

[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. . . . 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.
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 under-valuation of crucial evidence, or a clearly unjust result.
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]

Plaintiff argues that the jury's decision to award zero damages for her claimed injuries was a clear miscarriage of justice because the jury ignored the undisputed evidence of all her witnesses that her injuries were caused by the accident, since none of her medical problems existed before the crash. Plaintiff relies heavily on Chamberlain v. Sturma, 94 N.J.Super. 1, 4-5 (App. Div. 1966), aff'd o.b., 48 N.J. 556 (1967), where we found a miscarriage of justice when a jury awarded no damages and the sole defense expert expressly admitted that the plaintiff had sustained an injury directly caused by the incident.

The facts of this matter are distinguishable from Chamberlain. Here, plaintiff presented evidence showing that she suffered severe and permanent injuries as a result of the accident, and defendant offered evidence that plaintiff was "not injured in this accident at all, " but instead "exaggerated" her injuries and complaints. The jury's finding of "no cause" suggests that they resolved credibility in favor of defendant.

Plaintiff's arguments assume that her doctors' testimony must be accepted as fact. However, "[w]hile it is true that plaintiff presented expert testimony that could support a jury determination that a permanent injury was sustained, the jury is not required to reach that conclusion." Kozma v. Starbucks Coffee Co., 412 N.J.Super. 319, 325 (App. Div. 2010) (citations omitted). A jury is free to disbelieve any or all of an expert's testimony "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).

Arguing that plaintiff is ignoring opposing facts in the record, defendants highlight evidence that plaintiff reported no injuries at the scene, requested no medical attention at the scene, and drove her car immediately after the accident and again after leaving the hospital. Defendants contend that "these are not the actions of a person who is supposedly dizzy and suffering from symptoms of a concussion." Defendants further contend that proof of plaintiff's "exaggerations" and lack of credibility are shown by both neurologists being unable to find objective signs of nerve damage, the ophthalmologist not finding anything wrong with her eyes or her vision, and plaintiff refusing to get surgery recommended by two orthopedists.

Viewing the evidence in the light most favorable to defendants, we are convinced that the jury could reasonably have found that plaintiff did not sustain injuries as a result of the collision at issue. The evidence presented by the defense, through their witnesses and on cross-examination of plaintiff's witnesses, created factual support for defendants' contention that plaintiff was not injured in the accident and "exaggerated" her symptoms. Hence, the jury's verdict does not shock the conscience, is not a miscarriage of justice, and the motion was properly denied. See Kozma, supra, 412 N.J.Super. at 321 ("Satisfied that the jury was properly instructed, we should trust its judgment.").

Next, plaintiff claims that the trial judge made several erroneous evidentiary rulings, which, separately or cumulatively, compel a new trial on damages. We do not agree.

Recently, our Supreme Court explained the appropriate standard of review:

We review the trial court's evidentiary ruling under a deferential standard; it should be upheld absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment. An appellate court applying this standard should not substitute its own judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted.

[State v. J.A.C., 210 N.J. 281, 295 (2012) (internal citations and quotation marks omitted).]

The first alleged evidentiary error relates to the defense radiologist using a photographic enlargement of an MRI film as a demonstrative aid. When plaintiff's counsel objected, the trial judge permitted it, noting that plaintiff had the original MRI film.

Plaintiff argues that the enlargement should not have been used at trial because it was not provided to plaintiff prior to trial and was not adequately authenticated. Defendants point out that the enlargement was not admitted into evidence but merely used as a demonstrative tool. Additionally, defendants argue that Dr. Traflet identified the image as an MRI film he had reviewed, specifying which section of the film it showed.

A party may use demonstrative or illustrative evidence that replicates actual physical evidence. Rodd v. Raritan Radiologic Assocs., P.A., 373 N.J.Super. 154, 164-65 (App. Div. 2004). Here, the record shows that plaintiff's counsel was in possession of the underlying MRI film for years before trial. Plaintiff's counsel also had ample opportunity to cross-examine Dr. Traflet regarding both the enlargement and its source. The enlargement was not inherently prejudicial, confusing, or the result of a new or complex technology. Thus, the enlargement had none of the failings that caused us to disapprove of the demonstrative aid in Rodd, supra, 373 N.J.Super. at 167-71. Further, the record shows that the radiologist sufficiently identified the MRI that the enlargement represented. In our view, the trial judge's ruling in allowing the use of the MRI enlargement was not an abuse of discretion and did not result in a "manifest denial of justice." See J.A.C., supra, 210 N.J. at 295.

The second evidentiary error plaintiff alleges concerns the trial judge permitting defendants' orthopedics expert to give an expert opinion on the raised area on plaintiff's back, based on the photograph taken a week before trial. Plaintiff's treating doctor had stated that it was caused by a muscle spasm. Dr. Levine opined that the raised area was a subcutaneous tumor.

Defendants argue that the doctor's testimony was "beyond the scope of his expertise, speculative and nothing more than a net opinion." Defendants point out that the photograph had been taken a week before trial and was not produced prior to its admission into evidence during plaintiff's case, making it impossible for Dr. Levine to address the photograph in his report. The trial court allowed this testimony based both on the late point in time in which the photograph was first presented and on the photograph's ability to "speak for itself."

In our view, plaintiff seeks to hold Dr. Levine to the formality of providing a written report when plaintiff's production of the photograph during the trial prevented the expert from properly preparing one. Moreover, the exact nature of the lump on plaintiff's back, which appeared long after the accident, while relevant, was peripheral to the issue of causation. Thus, the trial judge's ruling in allowing this testimony was not "so wide of the mark" as to result in a "manifest denial of justice." Ibid.

Plaintiff's third allegation of error challenges the trial judge's decision to bar her physics expert from testifying regarding "the physics of the force and the resultant movement of body." Plaintiff claims the judge should have held an N.J.R.E. 104 hearing before making the ruling. Defendants argue that hearing would not have produced additional relevant information, since Kappelmeier's expertise as a physicist and his lack of training or experience as a biomechanical engineer were undisputed. The record fully supports the trial judge's decision to bar him from testifying about the biomechanics of the injury. There was no evidence that he had expertise in biomechanics.

Plaintiff also argues that the magnitude of the cumulative errors shows a miscarriage of justice which requires a new trial. We agree that "[i]n the appropriate circumstances . . . a new trial may be warranted when 'there were too many errors [and] the errors relate to relevant matters and in the aggregate rendered the trial unfair.'" Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 54-55 (2009). As plaintiff has not demonstrated errors occurred, we reject this argument.

Lastly, plaintiff argues that the judge erred in not giving a jury charge on aggravation of a preexisting condition, even though neither party requested it. This argument does not merit our discussion in a written opinion. R. 2:11-3(e)(1)(E).


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