MORGAN CALLO v. TARA BURGESS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0351-05T30351-05T3

MORGAN CALLO, BY HER GUARDIAN

AD LITEM, PETER W. CALLO,

Plaintiffs-Respondents,

v.

TARA BURGESS,

Defendant-Appellant,

and

LONNIE K. BURGESS AND SUSAN BURGESS,

Defendants.

________________________________________________________________

 

Submitted May 23, 2006 - Decided June 16, 2006

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1237-02.

Garvey, Ballou & Van Dyke, attorneys for appellant (Joseph J. Garvey, on the brief).

Shebell & Shebell, attorneys for respondents (Danielle S. Chandonnet, on the brief).

PER CURIAM

Defendant, Tara Burgess, appeals from denial of her motion for a new trial. See R. 4:49-1(a). The jury awarded plaintiff, Morgan Callo, $250,000 for personal injuries suffered when she was assaulted by defendant. The sole basis of the new trial motion was that the jury award was excessive. On appeal, defendant argues that the verdict was a miscarriage of justice and the trial judge erred for refusing to overturn it. We reject this argument and affirm.

The altercation occurred on December 15, 2000, when both parties were juniors in high school. Plaintiff was seventeen years old. While in homeroom, defendant attacked plaintiff, punching her in the face and knocking her to the floor, where she continued to repeatedly punch her in the face. Plaintiff lost consciousness for a short time. She was taken to a nearby emergency room, where x-rays and a CAT scan revealed a minimally displaced nasal fracture, soft tissue swelling of the nose and face, and a mild deviation of the septum to the right. Plaintiff was released, with Tylenol for pain and with the recommendation to follow up with an ear, nose and throat specialist.

Plaintiff went to Dr. Bruce Romanczuk, a physician specializing in ears, nose and throat, on December 20, 2000. She presented with significant swelling and two black eyes. In addition to significant pain, plaintiff's chief complaint was difficulty breathing. Upon physical examination, Romanczuk concluded that plaintiff's septum was deviated to the right. In particular, he described the deviation as "anterior, towards the front of the nose or the opening of the nose," one which, in his experience, has the capacity to compromise breathing. In his opinion, the deviation did impact plaintiff's ability to breathe.

Romanczuk also observed a mild depression of the left nasal bones. He also observed ecchymosis and hemorrhaging in the eyes. Plaintiff exhibited swelling of the septum with a mild shift to the right. He manipulated the nose, performing a closed reduction. No further treatment was indicated at that time, and he believed that most of the trauma and swelling would resolve with time.

Plaintiff was employed part-time during school, and she missed about a month from work. However, in presenting her claim to the jury, she did not make a wage loss claim. She also did not make a claim for medical expenses.

Although Romanczuk had advised plaintiff that she could consider surgical intervention for improvement of her injury, she did not obtain the surgery, primarily because she could not afford it. At trial, plaintiff indicated that she would like to have the surgery performed, although she had some reluctance because of the pain she anticipated with having her "nose cracked open." However, because of the continuing discomfort and difficulty sleeping at night, she "really would like to get it fixed because it's just that much of an annoyance to me." The injury also caused a slight deformity on the bridge of plaintiff's nose. However, plaintiff would not have the surgery done for cosmetic reasons, although some improvement might be expected in that regard as well.

Plaintiff returned to Romanczuk on March 20, 2002, for further evaluation. He observed a slight depression of the left nasal bone with a slight shift to the right. He reaffirmed that plaintiff suffered a nasal septal deviation to the right, mostly anterior. He characterized the deformity as a "moderate external deformity."

Romanczuk advised plaintiff again of a surgical option. He told her she "could have surgery to repair this, both inside surgery, which is called the septum surgery, and outside surgery for the bony portion." In Romanczuk's opinion, plaintiff's deviated septum would not improve with the passage of time, and, unless surgically corrected, was permanent in its present state. He described the surgical procedure this way: "If she had the surgery, you would be actually refracturing and relocating both the bones and the cartilage, so you could even look at that as another trauma, but that would be the only way you could really relocate things."

On January 5, 2004, plaintiff was examined at the request of the defense by Dr. S. Thomas Westerman, an ear, nose and throat specialist. Westerman acknowledged that plaintiff suffered significant trauma from her altercation with defendant. He acknowledged that she suffered a minimally displaced fracture of her left nasal bone and a significant deviated septum. Utilizing a fiber optic scope, he concluded that her left nasal chamber was unobstructed, but "her nasal septum, partially blocks the right nasal chamber." Based upon some photographs predating the assault by defendant, Westerman questioned whether the external deformity was caused by the assault or was pre-existent. He acknowledged, however, that because of the quality and angle of the photographs, he could not be certain.

Westerman agreed that the deviated septum would not improve and was permanent in its present state. His opinion was the same with respect to the external deformity. Because plaintiff's deviation was significant, as opposed to minor, he would offer the option of surgical intervention. He agreed that plaintiff's inability to breathe through her right nostril was consistent with his own physical examination and his review of the medical records. Although he believed that, to a reasonable degree of medical probability, a surgical procedure would alleviate the breathing problem, he acknowledged that there were no guarantees, that complications are always a possibility, and that, based upon his own experience and the medical literature, a deviated septum sometimes recurs after surgical correction.

Westerman described the indicated surgical procedure thusly:

Q. And can you tell the jury briefly how you would correct the deviated septum that Ms. Callo suffers from?

A. This type of deviation can be operated upon either with local anesthesia or by general anesthesia, and you make an incision in front of the deviated septum and you dissect out the deviated septum and remove it.

Q. Okay.

A. You put it back in place, the tissue back in place, you may put a small piece of the cartilage back in place and you put packing in the nose.

. . . .

Q. And you would agree that an operation such as that is a painful procedure?

A. Usually operation inside the nose doesn't have to be a painful procedure because you don't have to break any bones. Anything is possible. People can have pain due to that. It's not usually -- it's not like a tonsillectomy that is painful -- a painful procedure.

Q. Well when you've done deviated septum operations on patients in the past, haven't they complained to you that my nose hurts?

A. They certainly can, yes.

Q. In fact, don't you use a chisel when you go in the nose, a surgical chisel?

A. You can use a chisel if some of the nasal septal bone is involved as well as the cartilage. We're dealing with very thin bone. A chisel is usually used inside of a nose when you are breaking the bone of the nose to put it back in place. The wiggly part of the nose is a cartilage and the hard part here is the bone, and if you're going to have to straighten out this part of the nose, you'd have to use a hammer and chisel, but that's outside. It's not the septum. Usually you do not have to use a hammer and chisel with a septum because it's cartilage which can easily be removed.

Plaintiff described for the jury the very significant pain initially associated with the injuries, which gradually subsided over a number of weeks. At the time of trial, more than three-and-one-half years later, she explained that "[i]t's still very sensitive and I don't like people touching it still." She also described the anxiety she has suffered as a result of the incident, for which she has seen a psychiatrist. She had also reported frequent headaches since the incident.

The most significant problem was the inability to breathe through the right nostril. She described an "uncomfortable sensation at night" as a result of which "I have to lay on my right side and put my face on the very edge of the bed or pillow to push open my sinuses so I can breathe."

The jury was asked to consider damages for pain, suffering, disability, impairment and loss of enjoyment of life. At the time of trial, plaintiff's life expectancy was fifty-three years. During the course of deliberations, the jury submitted a question regarding the determination of the amount of damages, and the judge, with the consent of both counsel, reinstructed the jury on the subject. The jury ultimately returned a $250,000 verdict.

Defendant moved for a new trial, suggesting that the jury's award was punitive because of its conclusion that defendant's assaultive conduct was egregious, that it was the result of partiality, prejudice or passion, and that it was against the weight of the evidence and a miscarriage of justice. In denying the motion, Judge O'Brien noted that he had a feel of the case, having presided over the trial, and that although the award was higher than he expected, his judicial conscience was not shocked. The judge made these comments:

In the final analysis both doctors agreed she was having difficulty breathing and needed a surgery which involved chipping this nose cartilage with a hammer and chisel.

As I said earlier, she claimed she couldn't breathe for four years, she couldn't breathe at night from the right nostril, she was having trouble sleeping, so obviously the jury saw the damage issue as both of the doctors did.

Damages awarded by juries are entitled to respect and should be interfered with only if so disproportionate to the injuries suffered as to shock the judicial conscience and clearly convince the court that to sustain the award would be manifestly unjust. R. 4:49-1(a); Baxter v. Fairmont Food Co., 74 N.J. 588, 596-99 (1977). We will not reverse a trial judge's denial of a new trial motion "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Our standard of review is "substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984). A judge may not substitute his or her judgment for that of the jury merely because the judge would have reached a different conclusion. The judge "is not a thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6 (1969).

Applying these principles and according due deference to the trial judge, we find no error in the denial of defendant's new trial motion. We agree with the trial judge and with defendant that the verdict was indeed a generous one. However, we are satisfied that the award is supported by the evidence. By the time of trial, plaintiff had suffered for more than three-and-one-half years with a significant breathing problem. She was faced with the difficult choice of continuing with that problem for the remainder of her life, estimated to be another fifty-three years, or undergoing a significant and painful surgical procedure, with no assurance of a good result or lack of recurrence of the problem.

Like the trial judge, our judicial conscience is not shocked, and it does not clearly and convincingly appear to us that there was a miscarriage of justice under the law.

Affirmed.

 

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A-0351-05T3

June 16, 2006