LINDA M. SOMMELING v. VANESSA CATALANO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7076-03T37076-03T3

LINDA M. SOMMELING,

Plaintiff-Appellant,

v.

VANESSA CATALANO and THOMAS

CATALANO,

Defendants-Respondents.

______________________________________

 

Argued November 16, 2005 - Decided

Before Judges Stern and Grall.

On appeal from Superior Court of

New Jersey, Law Division, Ocean County,

L-3514-00.

Robert M. Anderson argued the cause for

appellant (Hanna & Anderson, attorneys;

George W. Conk, of counsel and on the brief;

Mr. Anderson, on the brief).

Robert A. Ballou, Jr. argued the cause for

respondents (Garvey, Ballou & Van Dyke,

attorneys; Mr. Ballou and Robin J. Gottilla,

on the brief).

PER CURIAM

Plaintiff Linda M. Sommeling appeals from a final judgment in this negligence action arising from a car accident. Defendant Vanessa Catalano stipulated to liability, and plaintiff dismissed her claim against Thomas Catalano, Vanessa's father. Questions of causation and damages were tried to the jury pursuant to a high-low agreement fixing damages between $1,250,000 and $400,000. The jury found that plaintiff failed to establish causation. The trial judge denied plaintiff's motion for a new trial and defendant's motion to enforce the high-low agreement. This appeal followed.

We affirm the trial judge's decision to deny plaintiff's motion for a new trial. Given defendant's concession that the parties' high-low agreement entitles plaintiff to damages in the amount of $400,000, we remand for entry of judgment in favor of plaintiff in that amount.

The evidence relevant to plaintiff's motion for a new trial follows. The accident occurred on September 1, 1999. Plaintiff was forty-one years old and working for the United States Postal Service. At the time of the accident, she was in a mail truck that was struck by defendant's car from the rear.

Plaintiff was taken to the hospital from the scene of the accident. In the emergency room, she complained of "pain in the back of her head, buttock and left calf." The emergency room doctor ordered x-rays of her left leg but no other diagnostic tests. She was released from the emergency room on the same day.

At trial plaintiff elaborated on her post-accident complaints, explaining that she had a headache and pain in her neck, shoulders, arms and hands immediately following the accident. Although pain in her lower back and leg resolved soon after the accident, other symptoms appeared. In the days following the accident, she became dizzy, had ringing in her ears and developed problems with her eyesight. She fell from a stool.

Plaintiff had suffered from occasional migraine headaches prior to the accident, but after the accident she had headaches "[e]very single day." "[She] had to put [her] head down. [She] couldn't carry [her] head. It was extremely heavy."

Following the accident and her fall, plaintiff was treated by Dr. Kennard, an orthopedic surgeon, and Dr. Gray, a chiropractor. In November 1999, plaintiff was referred to a neurologist, and MRI and EMG studies were performed. The results of both studies were normal, except for some indication of mild carpal tunnel syndrome. In December 1999, Dr. Kennard noted that he had found "very little objective evidence to support" plaintiff's significant complaints. He reported that she had no radicular symptoms and had full range of motion in her cervical spine.

In April 2000, upon recommendation of a friend, plaintiff saw Dr. Clemmons, a dentist specializing in headache and facial pain. She complained to Dr. Clemmons about pain in the back of her forehead, temple, around her eyes and in her neck. She also complained of dizziness, blurry vision, ringing in her ears, blocked ears, nausea and pain in her jaw joint, shoulders, arms, hands and back. She also reported chronic fatigue and difficulty with thinking, remembering and sleeping.

Dr. Clemmons treated plaintiff's "muscles, ligaments, tendons and joints of the head, face neck and shoulders as they related specifically to her headaches, face pain and

dizziness . . . ." He fashioned an appliance, or brace, designed to reduce pressure on her temporomandibular joint (TMJ). He also administered heat treatments and gave her trigger-point injections. In March and July 2001, Dr. Clemmons operated on plaintiff to deaden some of her nerves and thereby alleviate her pain.

Plaintiff acknowledged that the operations performed by Dr. Clemmons helped her at first. New problems developed, however. She explained that after the surgery the right side of her face had become "numb" and "paralyzed."

Dr. Clemmons testified on plaintiff's behalf at trial. He was not aware of her complaints about paralysis and numbness.

Dr. Seligman, a board certified oral and maxillary surgeon, examined plaintiff at defendant's request. He also reviewed her medical records. Dr. Seligman concluded that plaintiff did not have the TMJ problems Dr. Clemmons diagnosed. He described his observations of plaintiff's jaw movement, overbite and the condition of her teeth as inconsistent with TMJ. He also explained that the nerve deadening procedure Dr. Clemmons performed was not an approved or recognized treatment for TMJ disorders.

Before Dr. Clemmons discharged plaintiff from his care in January 2002, he became concerned that she might suffer from thoracic output syndrome. He referred her to Dr. Karas, a thoracic surgeon with offices in Towson, Maryland. In 2002, plaintiff had two thoracic surgeries. She was hospitalized for two days and one night for each operation. According to plaintiff, after the surgery her chest pain was alleviated and her hands seemed to work better.

Dr. Mark, a board certified neurologist, examined plaintiff prior to trial at defendant's request. Although he saw plaintiff between her first and second thoracic surgeries, he did not find evidence that supported a diagnosis requiring the surgery. His physical examination of plaintiff revealed no weakness, other than weakness that could be attributed to either physical condition or a lack of effort on her part during the testing. Because plaintiff told him she was in too much pain to permit it, Dr. Mark did not test the range of motion in her neck.

Dr. Mark also reviewed plaintiff's medical records. He found no evidence of symptoms or test results consistent with thoracic-outlet syndrome and "no evidence to suggest that diagnosis." He explained the basis for his conclusion in detail during his testimony at trial.

Based upon plaintiff's subjective complaints and her medical records, Dr. Mark concluded that plaintiff may have suffered sprains and strains of the neck and lower back as a result of the accident. Other than medical records documenting the bruise on her leg, Dr. Mark found no objective evidence to substantiate any of her complaints.

At the request of the defense, Dr. Sacks, an orthopedic surgeon, also examined plaintiff and her medical records. He reached the same conclusion as Dr. Mark.

Plaintiff described her current condition. She said that no two days are alike for her. She illustrated this by noting that during the two days preceding trial, she had a severe headache in the left portion of her head and her hands went dead, making it impossible for her to pick things up. She was unable to do anything other than sit on the couch. She described her ongoing and long term problems as an inability to drive more than a short distance, hold things without dropping or reach above her head. She complained of a limited range of motion in her neck, pain through her shoulders and arms that disrupts her sleep and intermittent numbness and weakness in her hands and arms.

The experts disagreed about plaintiff's ability to work. Plaintiff's employability expert concluded that she could not be employed in any job. That opinion was based on plaintiff's description of her physical limitations. Defendant's employability expert reviewed plaintiff's medical records and interviewed plaintiff. He concluded that she had the skill and ability to perform jobs that were available.

Plaintiff acknowledged that the Postal Service had cleared her for return to work and offered her a "light duty" assignment. She explained that she declined reemployment because there is no real "light duty" at the post office.

Judge O'Brien explained his denial of plaintiff's motion for a new trial as follows:

Plaintiff's position is that even the defense medical witnesses, Dr. Mark and Dr. Sacks, conceded the plaintiff had some injuries from the motor vehicle accident, i.e., strain/sprain of the cervical and lumbar spine and contusion on the leg. . . .

. . . .

. . . It must appear clearly and convincingly that there was a miscarriage of justice under the law. R. 4:49-1(a).

. . . [T]he court cannot substitute its judgment for that of the jury . . . [the question is whether after considering the evidence] a manifest injustice has occurred.

This court listened to the testimony. . . . It was a hotly-contested trial. There was a line-up of plaintiff['s] medical witnesses. . . . [T]hey all testified differently and in exact opposite terms from the defendant's expert[s]. [Dr.] Seligman, he is the oral surgeon. Dr. Mark is the neurologist, and Dr. Sacks was the orthopod.

Testimony was contrary in all

respects. . . .

. . . .

. . . [T]he defense witnesses, Mark and Sacks, said the plaintiff received a leg contusion and there [were] cervical and lumbar strains and sprains. But they also stated that those injuries resolved themselves and that their opinions were based on the history the plaintiff gave

them . . . .

. . . .

But [plaintiff's doctors' testimony] was suspect to me, and I guess it was to the jury, too. [The jurors did not] believe that the treatment the plaintiff received was necessary. That is obvious. They did not believe that she was seriously injured in the accident, and they apparently believe that she was amplifying her injuries and, I guess, that [her] doctors over-treated her.

. . . [T]hey said we're not going to give her any quarter; we're not even going to find that she got a sprain in the accident because we did not believe any of the testimony. They had demeanor and credibility issues to decide, and they did it.

. . . .

In weighing all the testimony . . . I'm not only not shocked by the verdict, but I find it is supported by the record. . . .

The jury apparently believed that the plaintiff could do work; that her TMJ problem was amplified, over-treated by Dr. Clemmons; that the leg contusion healed; that the low back healed; and that the neck pain was a late starter and resolved; and that the whole thoracic outlet syndrome was suspect.

And as I said before, we cannot forget that a jury is instructed that it can believe all, some, or none of an expert's opinion or a lay witness' testimony. And that goes for both the plaintiff and the defense. . . . The jury does not have to believe the defense doctors when they say there was a strain or sprain, either.

On review of an order denying a motion for a new trial, the verdict is sustained "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. While this court makes an independent assessment of the trial record, it gives "deference to the trial judge regarding the intangible aspects of the case including witness credibility and 'the feel of the case.'" Okulicz v. DeGraaff, 361 N.J. Super. 320, 329 (App. Div. 2003) (citations omitted). The question on appeal is whether considering the proofs, demeanor evidence and feel of the case, "reasonable minds might accept the evidence as adequate to support the jury verdict" or "whether the result strikes the judicial mind as a miscarriage of justice." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (citations omitted). Giving all due deference to the trial judge's opportunity to assess credibility and to his feel for the case, we see no miscarriage of justice warranting our intervention. We affirm substantially for the reasons stated by Judge O'Brien.

The order denying plaintiff's motion for a new trial is affirmed. Because defendant and plaintiff agree that their high-low arrangement survived the verdict, motion for a new trial and plaintiff's appeal, we remand for entry of judgment in accordance with that agreement.

 

Plaintiff's opening brief does not include argument on the trial court's denial of her motion for a new trial. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417, 420-21 (App. Div. 1983). Nonetheless, because plaintiff raised that issue in her notice of appeal and defendant fully briefed the issue, we relax our general practice and consider the claim. See In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442-43 (App. Div. 2001). We do not intend to signal approval or tolerance of appellate litigation that "saves" arguments for a reply brief.

(continued)

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A-7076-03T3

December 9, 2005