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Mickens v. Misdom

Superior Court of New Jersey, Appellate Division

January 7, 2015

JESSE L. MICKENS, JR., Plaintiff-Respondent,
TIMOTHY S. MISDOM and CITY OF ELIZABETH, Defendants-Appellants

Submitted November 5, 2014

Approved for Publication January 7, 2015.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4050-10.

LaCorte, Bundy, Varady & Kinsella, attorneys for appellants ( Richard M. Brockway, of counsel and on the brief).

Michael A. Percario, LLC, attorneys for respondent ( Christopher F. Struben, on the brief).

Before Judges FISHER, NUGENT and ACCURSO. The opinion of the court was delivered by FISHER, P.J.A.D.

Page 1164

[438 N.J.Super. 533] OPINION


Plaintiff Jesse L. Mickens, Jr., was injured on January 8, 2010, when his automobile was struck by a pick-up truck owned by defendant City of Elizabeth and operated by defendant Timothy Misdom. The parties stipulated defendants' liability and, at the trial's conclusion, the jury found a permanent injury, as necessitated by N.J.S.A. 59:9-2(d), and awarded plaintiff $2,400,000 in damages for his disability, impairment, loss of enjoyment of life, and pain and suffering. The trial judge later denied defendants' motion for a new trial or remittitur, and defendants now appeal, arguing, among other things, the award was so grossly excessive as to demonstrate a miscarriage of justice. In deferring to the jury's assessment of the evidence and the trial judge's " feel of the [438 N.J.Super. 534] case," we affirm the judge's determination that, although high, the verdict was not shocking to " the judicial conscience," let alone the judge's own conscience derived from his experiences as a trial judge and practicing attorney.


In examining the issues presented, we first briefly consider the evidence regarding the nature of the accident, plaintiff's injuries, and their impact on his life.

The jury heard that plaintiff was forty years of age when the accident occurred. Plaintiff was sitting in his parked vehicle when, as he " leaned over as though to retrieve something from the floor of the

Page 1165

front passenger seat," he felt an impact caused by defendants' pick-up truck, which had backed into and moved plaintiff's vehicle ten to fifteen feet from its former stopped position. The trial judge noted in his thorough written decision, which memorialized the denial of defendants' new trial motion, that photographs admitted in evidence did not reveal " severe damage" to either plaintiff's vehicle or defendants' truck, although the photographs depicted " visible damage to [plaintiff's] vehicle['s] rear end." When the police arrived, plaintiff declined medical attention but later went to an emergency room because of lower back pain. He was released the same day.

Plaintiff consulted with a chiropractor a few days later. Treatment provided no relief, and the chiropractor ordered an MRI study, which was conducted on March 1, 2010, and which revealed a herniated disc at L4-5. Plaintiff consulted a physician for pain management, and a neurosurgeon soon recommended disc-removal surgery, which was performed on August 5, 2010. According to the trial judge's written decision, plaintiff testified " that the surgery helped somewhat," but " he lives with persistent back pain and discomfort[.]" Plaintiff also testified that: he is employed as " a warehouse worker which [] involve[s] lifting and moving boxes around" ; he missed four weeks of work, but returned to work because he could not afford to miss any additional time; at the [438 N.J.Super. 535] end of each work day " his back bothers him significantly, and he cannot do the things he used to do around the house or the things he did recreationally" ; and he " can do very little except rest on evenings and weekends so he can try to keep working to support" his wife and child. By the time of trial, three years had elapsed from the date of the surgery with no change in plaintiff's daily pain, discomfort and limitations.

Plaintiff's wife, chiropractor and neurosurgeon also testified, the latter opining that accidents causing even " minor physical damage," as suggested by the photographs of plaintiff's vehicle, are not necessarily indicative of the extent of an occupant's injuries; he concluded that plaintiff sustained a permanent injury as a result of the collision. As described by the trial judge, the neurosurgeon testified that " immediately following the impact the herniated disc may not have been full blown at that time, but [] the impact caused the physical injury that evolved to the complete herniation depicted on the MRI less than 60 days post impact."

Defendants called a biomechanical engineer who testified that the herniated disc did not result from the collision, which he viewed as minor.[1] The engineer was not a physician and lacked the expertise to make a medical diagnosis. Moreover, as the trial judge noted, the engineer " conceded on cross-examination that studies he relied upon to support his opinion [about the impact] did not involve individuals who were stretched over to the side as [plaintiff] was in this collision," and the engineer conceded " different body types will respond differently to trauma."

In addition, defendants elicited testimony from an orthopedic surgeon, who recognized plaintiff had a herniated disc and sustained a permanent injury. This expert also testified that the ...

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