MEGAN SAGUI v. WILLIAM C. DEVINE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6710-02T16710-02T1

MEGAN SAGUI,

Plaintiff-Appellant,

v.

WILLIAM C. DEVINE,

Defendant-Respondent.

_______________________________

 

Argued September 26, 2005 - Decided

Before Judges Alley and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-0770-01.

Donald J. Maizys argued the cause for appellant (Feitlin, Youngman, Karas & Youngman, attorneys; Mr. Maizys, on the brief).

Floyd F. Lombardi argued the cause for respondent (De Sevo Lombardi, attorneys; Mr. Lombardi, on the brief).

PER CURIAM

Megan M. Sagui filed a complaint against William C. Devine on January 26, 2001, to recover for injuries she allegedly sustained when defendant's car rear-ended the car she was driving on February 5, 1999.

In the trial, held before Judge Miller and a jury in June 2003, defendant admitted negligence and his fault thus was not at issue. At the close of all the evidence, plaintiff moved for a directed verdict on the issues of whether she had established proximate causation of her injuries and whether she had met the verbal threshold. The judge denied the motion and the jury returned a verdict in favor of defendant. Plaintiff's motion for judgment notwithstanding the verdict, a directed verdict in regard to the tort threshold issue, a new trial on the issue of the quantum of damages or, in the alternative, for a new trial as to proximate cause, the tort threshold, and the quantum of damages, was denied on July 11, 2003.

The accident occurred when plaintiff was driving home from school in a car owned by her father and was rear-ended by a car operated by defendant and owned by his father. Plaintiff had stopped behind another vehicle that in turn had stopped directly behind a stalled car. It was about a minute later when defendant struck the rear of plaintiff's car. Plaintiff claimed that the impact caused her to hit her chest on the steering wheel, as well as her face, and caused her glasses to break. Plaintiff alleged that at the time she experienced pain in her face, neck, shoulders, and back.

We do not review the proofs in detail except as is necessary to address particular points of law. It suffices to say that plaintiff's claims as to her injuries and her claims for damages were sharply contested. There was even a conflict in the evidence as to whether the damage to plaintiff's vehicle was slight or substantial. Her treatment ranged from massage therapy to epidural block procedures. Among the injuries sustained as a result of the accident, she asserted, were numbness, dizziness, headaches, disk herniation and disk bulge, migraine headaches, spasms, and deterioration of tempera mandibular joints.

At the time of her trial testimony in June 2003, plaintiff complained that the injuries she sustained in the accident had affected her life in the following ways: she could not walk for too long, for example, taking a trip to the mall would cause her lower back pain; she could not sleep on her stomach, sometimes would get spasms in her right calf that would wake her up at night; in the mornings she would awaken with a migraine and back pain that would prevent her from getting out of bed. In addition, plaintiff contended, she cannot run because it would hurt to do so; she cannot cross her legs because she cannot uncross them; she cannot sit all the time when she goes out with her friends, or stand up very long without being in pain; her migraines affect her production level at work "more than anything"; she cannot eat a bagel or chew gum anymore because her jaw gets stuck; she cannot carry a pocketbook over her shoulder; she cannot play sports or rollerblade anymore; and she cannot sit in the car or drive for a long time.

We first address plaintiff's contention that the court should have directed a verdict in her favor because there can be no doubt that she proved she sustained at least some injuries as a result of the accident.

The provision governing such a motion is set forth in R. 4:40-1:

A motion for judgment, stating specifically the grounds therefor, may be made by a party either at the close of all evidence or at the close of the evidence offered by an opponent. If the motion is made prior to the close of all the evidence and is denied, the moving party may then offer evidence without having reserved the right to do so. A motion for judgment which is denied is not a waiver of trial by jury even if all parties to the action have so moved.

The standard for determining a motion for judgment according to R. 4:40-1 is the same standard as applies to a motion for judgment notwithstanding the verdict (JNOV) which we discuss below, namely, whether:

'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in favor' of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can be reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied.

[Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (quoting Bozza v. Vornando, Inc., 42 N.J. 355 (1964)); See also Verdicchio v. Ricca, 179 N.J. 1, 30 (2004).]

We construe plaintiff's argument as to the denial of her directed verdict motion, as well as the argument concerning the denial of her motion for JNOV motion, to contend that she proved defendant's negligence was the proximate cause of her injuries because defendant admitted negligence, and that her Pascack Valley Hospital emergency room records illustrate that she sustained injuries to her neck and back. Furthermore, plaintiff contends, defendant did not refute the manner in which these injuries were caused. She argues, in addition, that the jury misread and misunderstood the verdict sheet in regard to proximate cause so that the jury did not reach the verbal threshold issues.

The first interrogatory on the jury verdict sheet asked, "Was the negligence of the defendant, William C. Devine, a proximate cause of the injuries to plaintiff?" The jury answered in the negative and ceased deliberations.

Plaintiff argues that "[t]he only way the jury could have read this question to reach the verdict that it reached was to interpret the question as whether all of the plaintiff's injuries were proximately caused by the defendant's negligence." In other words, plaintiff contends the use of the word "injuries" as opposed to "injury" misled the jury. Thus, she argues, the jury misunderstood the first interrogatory to mean that she could not recover unless the jury found defendant's negligence to be the proximate cause of all of her injuries.

Defendant, on the other hand, notes that although plaintiff presented to Pascack Valley Hospital Emergency Room with complaints of neck discomfort, chest pain, and slight facial discomfort, those injuries are subjective. He argues that there are no objective findings to support her complaints, especially since x-rays of the neck and chest were negative, so the hospital records are not conclusive evidence.

Plaintiff argues that her directed verdict motion should have been granted because plaintiff satisfied the requirements of the verbal threshold, N.J.S.A. 39:6A-8, with respect to at least one of her injuries, so she is entitled to recover non-economic damages.

In New Jersey's no-fault automobile insurance system, those who sustain certain injuries in automobile accidents are compensated irrespective of who was at fault. Oswin v. Shaw, 129 N.J. 290, 295 (1992). The accident in this case predates the Automobile Insurance Cost Reduction Act (AICRA), which became effective on March 22, 1999, and under which the Oswin "serious impact" showing is no longer required. DiProspero v. Penn, 183 N.J. 477, 506 (2005).

Plaintiff alleged injuries to her neck, back, and jaw. In particular, Judge Miller charged the jury that her alleged permanent bodily injuries were to:

[t]he L4-5, L5/S1 herniations and resultant surgeries thereby for those injuries; Bulges, C4-5, C5-6 and resultant radiculopathy or poly radiculopathy - therefore, hence, radiating down the arms and shoulders at this point from this cervical spine or lumbar, down to the legs and down to the feet. In conjunction therewith, with the neck, TMJ, migraines, related injuries, as I said, radiculopathy, poly radiculopathy to wit and I would refer succinctly to the - subsequently in the context of the jaw, neck and back, but those are the ones, and I'll say again, L4-5, L5/S herniations, bulges, S-5 - 4-5, C5-6, TMJ, migraines, related injuries, radiculopathy, poly radiculopathy in that context. In the case, the plaintiff must allege permanent loss of use of her neck, back, and jaw.

Plaintiff argues that she only had to prove she sustained "an" injury to meet the verbal threshold, and this is correct. In Puso v. Kenyon, 272 N.J. Super. 280, 292-293 (App. Div. 1994), we addressed an issue that had been raised during the oral argument of that appeal, namely, whether partial summary judgment was applicable regarding alleged verbal threshold injuries where some injuries met the threshold and others did not. Puso, supra, 272 N.J. Super. at 292. In Puso, we stated:

. . . Our statute exempts tortfeasors from suit for noneconomic loss unless a tort claimant has sustained "a" personal injury which falls within the nine enumerated types of injury delineated in the statute. The use of the word "a" clearly reflects a legislative intent that a singular injury meeting the tort threshold will permit a claimant to sue for noneconomic loss causally related to all injuries sustained in an automobile accident.

[Id. at 293.]

Plaintiff argues that it is "abundantly clear" that she sustained "injuries to her lumbar spine, migraines, a TMJ injury, concussion, chest contusion and whiplash, among others, as a result of defendant's negligence."

Plaintiff's argument erroneously presupposes that she met the threshold. The jury must first determine, however, whether defendant's negligence was the proximate cause of her injuries, and only then does it determine whether one or more of those injuries alone met the threshold.

Moreover, plaintiff failed to provide the trial court with the requisite comparative analysis of plaintiff's injuries in relation to the subject accident and a subsequent accident she sustained in Florida. In Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993), we held,

[a] diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with an objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

As we held in Sherry v. Buonansonti, 287 N.J. Super. 518, 522 (App. Div. 1996), certif. denied, 144 N.J. 588 (1996), the Polk test applies to subsequent motor vehicle accidents as well.

In fact, plaintiff was in a subsequent accident in late January of 2002, and her neck and back were x-rayed afterwards. The accident occurred when the car plaintiff was traveling in, as the front passenger, was struck by another vehicle on her side. She did not even inform Dr. Sabato, her treating physician, of this accident. There is no physician's comparative analysis submitted to evaluate her injuries in respect to each accident.

We are satisfied that the trial court did not err in denying a directed verdict in plaintiff's favor in regard to her satisfaction of the verbal threshold. Accepting as true all evidence supporting plaintiff, and according defendant the benefit of all reasonable and legitimate inferences, it is manifest that reasonable minds could differ, and consequently the motion must be denied. Ibid.

We further reject her argument that the court erred in denying her motion for JNOV on the issue of defendant's negligence because the verdict was against the weight of the evidence. As noted, the standard for determining the trial court's error in denying plaintiff's motion for JNOV is set forth in Dolson, supra, 55 N.J. at 5. And because plaintiff's motion for JNOV argument overlaps her directed verdict argument, we note again that the standards are the same.

In denying plaintiff's motion for JNOV, the trial court found that plaintiff claimed "there could be no doubt in the mind of the jury that plaintiff sustained injuries," but that "these issues were more likely a question of credibility and believability that the jury had to determine when reviewing the testimony of both plaintiff's and defendant's expert witnesses and evidence submitted by both parties."

The trial court also ruled that, "from the credible evidence and [the] feel of the case, [the] motion must be denied." It emphasized that the jury was charged as to believability and credibility. For example, the charge properly indicated that the case, "like many cases, will turn on credibility and this applies for lay witnesses and expert witnesses . . . you will have to decide which witnesses to believe and which witnesses not to believe. You may believe everything a witness says or only part of it or none of it."

The trial court noted, for example, that plaintiff testified she was in a subsequent motor vehicle accident in Florida and did not pursue medical attention for two years, or inform Dr. Sabato of her injuries. During oral argument on the motion, Judge Miller stated that "[c]redibility was key in this issue," in reference to the subsequent accident. He acknowledged that the jury was "very informed," because the jurors asked plaintiff questions about her subsequent accident and course of treatment.

Dolson mandates that we view the evidence in the light most favorable to defendant. Dolson, supra, 55 N.J. at 5-6. And while plaintiff argues that it is "abundantly clear" that she sustained injuries in the form of and to her "lumbar spine, migraines, a TMJ injury, concussion, chest contusion and whiplash, among others, as a result of defendant's negligence," she fails to recognize that the jury first had to determine whether she actually sustained those injuries, and then determine whether defendant proximately caused them. It is undisputed that defendant admitted negligence, but there was a sharp dispute as to whether a causal connection existed between defendant's negligence and plaintiff's injuries.

A brief review of some of the evidence illustrates that the jury had a number of instances in which to question plaintiff's credibility. These are only illustrative examples. First, plaintiff told Dr. Sabato that her car was totaled, although the pictures of the vehicle after the accident reveal only a dent above the left rear wheel. Second, she moved to Florida for approximately two years, where she did not treat with any physicians although she had the same complaints of neck pain, shoulder pain, back pain, and migraines. Third, plaintiff testified that while in Florida, she traveled back to New Jersey every few months to treat with Dr. Sabato, although his office records indicate he did not see her for a year.
And fourth, plaintiff complained to Dr. Sabato of migraines in August of 2001, almost three years after the accident. When she presented to the emergency room, however, she had only slight "facial discomfort."

In brief, based on these and other issues, reasonable minds well could have differed in resolving conflicting and disputed proofs, and Judge Miller applied the Dolson standard properly in denying the motion for JNOV.

Next we address plaintiff's contention that she is entitled to a new trial because the verdict was against the weight of the evidence.

Our standard of review on a motion for a new trial is that the trial court's decision on such a motion should not be reversed unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. "The trial judge shall grant the motion, if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a).

It is firmly established that the trial judge does not become the "decisive juror," but should search the record to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict. Dolson, supra, 55 N.J. at 6 (citing Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). If the verdict strikes the judicial mind as a miscarriage of justice, then the new trial motion must be granted.

We apply "essentially the same" standard as the trial judge. Dolson, supra, 55 N.J. at 6-7. It is "essentially the same" because the appellate court defers to the trial court with respect to "intangibles" not transmitted by the record, such as credibility, demeanor, "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Id. at 6-8; Baxter v. Fairmount Food Co., 74 N.J. 588, 597-98 (1977); Carrino v. Novotny, 78 N.J. 355, 360 (1979).

Plaintiff contends that the trial court speculated about what the jury considered and ignored evidence of plaintiff's injuries. Additionally, she argues that the jury was confused as to the first interrogatory on the verdict form, voted "no," ceased deliberating, and was "improperly stopped" from deliberating when it should have proceeded to the tort threshold and damages issue.

Defendant refers to credibility issues and several inconsistencies in plaintiff's case to argue the verdict was consistent with the evidence because it was the product of "genuine and reasonable assessment." For example, defendant notes the injuries were subjective complaints, the force of the impact of her head on the steering wheel was unknown, the status of the vehicle after the accident was disputed as totaled versus slightly dented, the existence of a second herniation after her move home from Florida, and the subsequent accident of which she did not inform Dr. Sabato.

In denying the motion, the trial court articulated the issues of plaintiff's credibility and stated, "[c]redibility was key in this issue."

We agree. As we have shown, there were inconsistencies in plaintiff's case that contradict her claims of a "clear and convincing" miscarriage of justice, especially when we accord deference on matters of credibility, as we should.

We thus reject plaintiff's argument that there was a clear and convincing miscarriage of justice and affirm the denial for a new trial.

We further address plaintiff's assertion that photographs of her vehicle taken after the accident were erroneously admitted into evidence. Plaintiff makes this argument in the context of her verbal threshold argument, but it seems to be in reference to her motion for JNOV. In any event, we address this issue separately at this point. We conclude that the court did not abuse its discretion in admitting the photographs.

Plaintiff contends that the admission of the photographs swayed the jury because they revealed minimal property damage to plaintiff's vehicle; namely, a small dent above the left rear wheel. She submits that without the admission of an engineering expert's testimony to correlate the force of an impact and possible injuries sustained, the photographs were prejudicial.

Plaintiff relies on Suanez v. Egeland, 353 N.J. Super. 191, 196 (App. Div. 2002), where we found that scientific evidence is generally admissible if accompanied by expert testimony. Defendant, on the other hand, asserts that Suanez is inapplicable.

Plaintiff had the opportunity to submit expert testimony to explain the causal connection between the impact and plaintiff's injuries, and we find that the admission of the photographs was not an abuse of discretion.

In Gambrell v. Zengel, 110 N.J. Super. 377, 381 (App. Div. 1970), we reiterated that the chance that photographs will have an inflammatory effect on the jury in comparison to the photographs' relevance is an admissibility question best left to the sound discretion of the trial court. In that case, the parties were involved in a motor vehicle collision in which defendants admitted liability and tried the issue of damages to a jury. Id. at 379. The defendants contended that the trial court abused its discretion in admitting photographs of the intersection where the accident occurred, photographs of the vehicles after the collision, and a police officer's testimony about the debris found at the scene and the distance the cars traveled after the impact. Ibid. The photographs were admitted to illustrate the force of the impact that allegedly caused plaintiff to sustain injuries. Ibid. We noted the admissibility of such evidence "where there is an issue as to the seriousness of plaintiff's injuries." Gambrell, 110 N.J. Super. at 380.

In this case, although negligence was admitted, the severity of plaintiff's injuries was at issue. When, as here, evidence of impact is relevant to the seriousness of alleged injuries, it is within the sound discretion of the trial court to admit the evidence.

Plaintiff instructs us to "[s]ee Suarez [sic]" in regard to the photographs' admissibility, without applying that case to the instant facts. Plaintiff, however, refers to this case in its contention that the photographs "spoke[] volumes by acting as a substitute for expert testimony" on the effect of the force of impact." As Judge Miller noted, however, plaintiff had every opportunity to submit expert testimony.

Furthermore, at issue in Suanez was whether there was a reliable scientific foundation for proffered expert testimony by a biomechanical engineer who opined that a low impact automobile crash cannot cause a herniated disc. Suanez, supra, 353 N.J. Super. at 194. The defendant had not established the necessary reliable scientific foundation for the testimony, and because the testimony was a critical part of the case, we remanded the case for a new trial. Id. at 203. Suanez plainly is not determinative of the present dispute, however. The photographs were not admitted to show that the alleged injuries could not result from a low impact collision. They were admitted because the severity of the injuries was directly at issue; and, as Judge Miller articulated, "credibility was key" in the case. Thus, it was neither an abuse of discretion nor legal error by the trial judge to allow the photographs into evidence.

The judgment appealed from is affirmed.

 

We note that the briefs of both parties violate the Rules. R. 2:6-2(a)(4) provides that an appellant's brief shall contain "[a] concise statement of the facts...in the form of a narrative chronological summary incorporating all pertinent evidence and shall not be a summary of all of the evidence adduced at trial, witness by witness." R. 2:6-2(a) (emphasis added). Similarly, R. 2:6-4(a) provides that respondent's brief must conform to R. 2:6-2(a). The parties' briefs, however, each contain statements of facts organized chronologically by trial testimony, witness by witness, in violation of the Rules. We have elected on this occasion, in the interest of justice, not to suppress the non-conforming briefs sua sponte, notwithstanding these violations.

In the predecessor to AICRA, N.J.S.A. 39:6A-8a, passed in 1988, recovery for noneconomic losses was restricted to nine types of injuries:

TYPE 1: death;

TYPE 2: dismemberment;

TYPE 3: significant disfigurement;

TYPE 4: a fracture;

TYPE 5: loss of a fetus;

TYPE 6: permanent loss of use of a body organ, member, function or system;

TYPE 7: permanent consequential limitation of use of a body function or system;

TYPE 8: significant limitation of use of a body function or system;

TYPE 9: a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment . . . .

[Oswin, supra, 129 N.J. at 314-15.]

We do so in the interests of justice, although generally we will not consider an argument that a jury verdict is against the weight of the evidence unless the appellant moved for a new trial on that ground. R. 2:10-1; Fiore v. Riverview Medical Center, 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973); aff'd, 65 N.J. 45 (1974). Here, plaintiff moved for a new trial on the issue of the quantum of damages, proximate cause, and the tort threshold, but not expressly because the verdict allegedly was against the weight of the evidence.

(continued)

(continued)

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A-6710-02T1

October 25, 2005