ZAIDA LEBRON v. ZAIDA LEBRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0004-05T10004-05T1

ZAIDA LEBRON,

Plaintiff-Appellant,

v.

DR. STEVEN RODIS,

Defendant-Respondent,

and

THE EYE PROFESSIONALS, P.A., THE

EYE SURGICENTER OF NEW JERSEY, INC.,

Defendants.

_____________________________________

 

Argued October 3, 2006 - Decided October 27, 2006

Before Judges Lintner and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County,

L-829-02.

Paul R. Melletz argued the cause for appellant.

Timothy M. Crammer argued the cause for respondent (Crammer, Bishop Marczyk & O'Brien, attorneys; Mr. Crammer, on the brief).

PER CURIAM

Plaintiff, Zaida LeBron, appeals from the denial of her alternative motions for a new trial on damages only or additur, following a jury award of $35,000 in her medical malpractice action against Dr. Steven Rodis. On appeal, plaintiff contends that the judge erred in denying her motion for a new trial on damages. We disagree and affirm.

We need not recount the testimony in detail. Plaintiff, age thirty, underwent LASIK surgery and two enhancement laser surgeries to improve her vision so that she would not have to wear eyeglasses. Although contested by the expert witnesses, the jury found that defendant negligently performed plaintiff's LASIK surgery using a laser that had not been approved by the U.S. Food and Drug Administration to treat patients with astigmatism. Prior to the surgery, plaintiff's visual acuity was 20/200 in the right eye and 20/400 in the left eye correctable with glasses to 20/25 in each eye. Following the surgeries, plaintiff's uncorrected vision improved to 20/150 in the right eye and 20/100 in the left eye, correctable with hard contact lenses, which plaintiff claimed she had difficulty tolerating, to 20/40 in the right eye and between 20/30 and 20/40 in the left eye. There was no dispute that after surgery plaintiff suffered from laser-induced irregular astigmatism, a condition causing blurred and double vision.

Plaintiff eventually came under the care of Dr. Harry Grossman, an ophthalmologist, for treatment of her irregular astigmatism. Dr. Grossman opined that the irregular astigmatism caused by the surgery presented "significant problems visually" causing plaintiff to have double vision, to see ghost images, and to have problems with glare, nighttime vision, and reading. However, Grossman conceded that there is "no way to quantify" whether a patient is seeing double and that it is dependent upon what the patient tells you.

Plaintiff testified that her vision is constantly blurry; she sees double; and that lights cause glare, especially at night. Prescription glasses are of no help, and she wears non-prescription sunglasses because bright lights bother her.

Plaintiff's credibility was called into question several times on cross-examination. Plaintiff testified that she left her job at Santa's Best making Christmas garlands because the machine she used was dangerous. She then attempted to work at a hospital where she read menus, a collection agency, and a daycare center for migrant workers' children. She claimed that she left those subsequent jobs because she could not see. However, on cross-examination, plaintiff was shown her W-2 forms, which established that she went back to work at Santa's Best. When asked why she left the subsequent safe jobs and went back to Santa's Best, plaintiff responded that she "wasn't going to hurt nobody except myself."

On direct examination, plaintiff testified that a Spanish-speaking employee at defendant's office, named Eva, told her after surgery, "we were all expecting the worst," and that she "was supposed to come out blind out of there." On cross-examination, the defense brought out that plaintiff failed to mention the conversation with Eva, although asked specifically in interrogatories whether she had any discussions with employees at defendant's office.

On direct examination, plaintiff testified that she drove even though the doctors told her she should not, because she had nobody to drive her. On cross-examination, plaintiff admitted lying to her family physician. Plaintiff conceded that she told her physician that she could not drive and needed her driver's license for identification when the doctor informed her that if her vision was bothering her to the extent she claimed, he was going to call the Department of Motor Vehicles. Plaintiff also admitted to lying at depositions when she testified that she needed her license for identification. The defense then explored the frequency with which plaintiff drove and the fact that she had not been in any accidents and was able to see and obey traffic signals.

Denying plaintiff's motion for a new trial on damages, the trial judge found that, although the verdict "was a very low number" and the jury was not aware of the litigation costs, plaintiff's case was somewhat troublesome because everyone acknowledged that there is a possibility of a loss of vision following LASIK surgery. He pointed out:

[S]itting here and watching the case unfold, I felt there were credibility issues on both sides of the fence to a large extent.

. . . .

The problem is . . . that there's a possibility of some loss of vision. But . . . none of them acknowledged exactly what [plaintiff's] loss of vision would be. That really was left to her to have to prove to a jury what her loss of vision was. And it's very hard to explain to another person what you see or can't see. And that was her problem that she was saddled with.

And there are two major aspects to it, which was her inability to drive and her inability to read, along with just discussions of halos or double vision . . . .

But to me what it really boiled down to was this jury had testimony from a lady saying that she shouldn't drive, but that she had to drive. Coupled with the realization that she virtually drove all the time. And then her discussion of not being able to read very well. But, you know of course -- reading relatively well in front of the jury. So she had these complaints that are not objectively provable. In other words, you had to hear her explain what they are. . . .

And it's my sense that the jury was not particularly impressed with the position of the doctor or of [plaintiff], in terms of the claims -- the extensiveness of the claims that she made.

The principles are well settled. A motion for a new trial should be granted only where it clearly and convincingly appears that there was a miscarriage of justice under the law. R. 4:49-1; R. 2:10-1. We are obliged to defer to a trial judge's findings respecting "intangible[s]" not transmitted by the record, such as "witness credibility and demeanor and the 'feel of the case.'" Carrino v. Novotny, 78 N.J. 355, 360-61 n.2 (1979) (quotation omitted); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977).

Likewise, the scope of review of jury damage awards for alleged excessiveness is generally the same for the trial and appellate court. Baxter, supra, 74 N.J. at 600; Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970). The jury verdict "is entitled to very considerable respect." Baxter, supra, 74 N.J. at 597. "[A] trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injur[ies] . . . as to shock [the court's] conscience and . . . [clearly] convince [the court] that to sustain the award would be manifestly unjust." Id. at 596.

Applying these principles, we are satisfied that the judge's denial of plaintiff's motion for a new trial was justified. Although he noted that the damage award was "very low," he found that it did not "shock [the court's] conscience." We agree. Here, plaintiff's credibility was called into question, and her medical expert acknowledged that the extent of visual problems resulting from irregular astigmatism is subjective and the ability to make a diagnosis is dependent upon the patient's honesty. Indeed, although plaintiff argued, and the jury agreed, that defendant's consent form was deficient for not advising plaintiff that irregular astigmatism was a risk of LASIK surgery, the jury found that the undisclosed risk did not actually occur. The evidence did show that the LASIK surgery did not improve plaintiff's vision as expected and plaintiff lost a small degree of correctable visual acuity. Thus, there was ample evidence to support the jury's verdict. The trial judge did not abuse his discretion in denying plaintiff's post verdict motion.

Affirmed.

 

Plaintiff's complaint also named Dr. Rodis's medical practice, The Eye Professionals, P.A. and The Eye Surgicenter of New Jersey, Inc., as well as several fictitious defendants. The trial proceeded against Dr. Rodis and the judgment was entered against him alone. We, therefore, refer to Dr. Rodis as defendant.

Plaintiff's proofs established that because of her prior astigmatism condition, she was not a candidate for LASIK surgery and the laser used was not approved for patients with astigmatism. Plaintiff also claimed lack of informed consent. Although the jury found Rodis negligent for failing to inform plaintiff that there was a risk involved, it found that the undisclosed risk did not actually occur.

Plaintiff's examining physician testified that, although plaintiff's astigmatism prior to surgery was a severe form, the irregular astigmatism caused by the surgery was an irregular format that is more severe in terms of visual effect.

(continued)

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8

A-0004-05T1

October 27, 2006