VALENTINA HEDVAT et al. v. EUGENE MERWIN et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5868-04T35868-04T3

VALENTINA HEDVAT and

NEJAT HEDVAT,

Plaintiffs-Appellants,

v.

EUGENE MERWIN and

BARBARA MERWIN,

Defendants-Respondents.

_____________________________________________

 

Argued March 8, 2006 - Decided March 28, 2006

Before Judges Stern, Fall and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Docket No. L-3896-02.

Louis J. DeVoto argued the cause for appellants

(Rossetti & DeVoto, attorneys; Mr. DeVoto, on

the brief).

Robert H. Gardner argued the cause for respondents

(David E. Rehe & Associates, attorneys; Mr. Gardner,

on the brief).

PER CURIAM

After entry of a "corrected order of judgment" on June 1, 2005, following a second jury trial, plaintiffs appeal from an interlocutory order of September 17, 2004, following their first jury trial, which granted plaintiffs' motion for new trial "as to the issue of damages relating to plaintiff's temporary neck and back injuries only." The first jury returned a verdict based on a unanimous finding that plaintiff did not prove "by a preponderance of the evidence that her injuries were proximately caused by the . . . accident." At the second trial, the jury returned a verdict for both plaintiffs in the aggregate amount of $15,500. The defendants cross-appeal from the same September 17, 2004 order.

On this appeal, plaintiffs assert that "the trial court properly granted plaintiffs' motion for [a] new trial on damages but committed plain error by limiting the new trial to temporary injuries," as "[t]he jury answered 'no' to proximate cause thus requiring a retrial on all damages." Defendants assert that the first verdict was based on determinations of credibility, there was no "miscarriage of justice under the law," and the court should not have "overturned the verdict," even "partially." Defendants further contend that their radiological expert should not have been barred by a different judge for purposes of the first trial, and he should be able to testify at any new trial.

Liability was "stipulated." Plaintiff's treating physician, Dr. Thomas Erico, testified that her neck injuries were caused by the accident and that she would not fully recover. According to Dr. Erico, "there was an abnormal curvature to the cervical spine with reversal of the curvature from C 3-4 to C 5-6 . . . three subligamentus (phonetic) herniations at C 3-4; C 4-5 and C 5-6 [a]nd there was some spinal stenosis . . . at C4-5 and C5-6." He also concluded that "the accident exacerbated the condition in her neck, resulting in the mild cervical myelopathy."

The defense expert, Dr. Edward Decter, testified that plaintiff had a degenerative "arthritic condition . . . not consistent with an acute traumatic event," and that she "did not sustain a permanent orthopedic injury to either her neck or her back as a result of this accident." However, Dr. Decter also said that "this patient may have sustained some temporary soft tissue injury to her neck and to her back," although "she did not sustain a permanent orthopedic injury" as a result of the accident. He concluded that "she had pre-existing arthritis of her cervical spine - her neck - and had some temporary soft tissue injury to her neck." As already noted, the jury found no proximate causation.

Plaintiff argues that "[t]he jury's verdict was a miscarriage of justice since the undisputed testimony demonstrated that Mrs. Hedvat sustained injuries caused by the crash," even if there was a pre-existing condition, and that defendants presented "no evidence that [she] had any prior pain or symptoms." The plaintiff further contends that the limited nature of the new trial granted "was flawed since proximate cause does not distinguish between the degree of damages but rather whether any damages occurred." She therefore argues that an entire new trial as to damages was required because "some injury, regardless of how little, must be found by the jury when both medical experts agree that some injury was sustained," and "that a complete retrial on all damages is the proper remedy to cure the error." As the jury found no proximate cause, the issue of damages was never reached, even though there had to be some, due to Dr. Decter's opinion, irrespective of how small.

In granting the new trial, the judge properly noted:

In reviewing a Motion for a new trial, this Court cannot substitute its judgment for that of the jury. Rather, this Court is required to canvass the record and weigh the evidence to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict. [Dolson v. Anastasia, 55 N.J. 2, 6 (1969)]; [Hacker v. Statman, 105 N.J. Super. 385, 391 (App. Div.), certif. denied, 54 N.J. 245, (1969).]

A jury's verdict can only be disturbed when on examination of the evidence, the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it was the result of mistake, passion, prejudice, or partiality. [Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965)].

Applying the above standard of review, this Court must canvass and weigh the evidence presented to the jury on the issue of causation.

The judge then detailed the evidence, and particularly the medical expert testimony, and concluded:

The plaintiff argues that it was undisputed that at least some amount of injury resulted from the accident and reasonable persons could not differ as to that. The plaintiff also argues that the jury was required to find causation for any pain from her underlying condition because the undisputed evidence showed that the condition was latent and only became symptomatic after the accident.

However, as previously stated, the issue of the plaintiff's credibility arose when evidence was produced showing that she did not report her prior injuries to either Dr. Erico or Dr. Decter, regardless of whether those injuries were minor or not.

In canvassing the record and weighing the evidence to determine whether reasonable minds might accept the evidence as adequate to support the jury's verdict, this Court finds that there was more than sufficient evidence to support the jury's finding that the plaintiff's alleged permanent injuries were not proximately caused by the accident.

The jury obviously accepted the testimony of Dr. Decter on the issue of plaintiff's permanent injuries and the causal relation of those alleged injuries to the accident.

Therefore, the plaintiff's Motion for a new trial on the issue of her alleged permanent injuries is denied.

With respect to the plaintiff's temporary injuries, however, this Court finds that the jury could not reasonably have found that the plaintiff did not suffer temporary neck and back injuries as a result of the accident. Dr. Decter clearly testified that the plaintiff sustained temporary injuries to her neck and back as a result of the accident. Thus, the plaintiff is entitled to a new trial on the issue of damages relating to her temporary neck and back injuries from the accident.

Plaintiff's Motion is therefore denied in part and granted in part.

Had Dr. Decter merely stated that plaintiff suffered from "an arthritic condition that['s] not consistent with an acute traumatic event," or that the "degenerataive conditions were not caused by the accident," a new trial would not have been warranted. But as the judge noted, the doctor also stated that she "sustained some temporary soft tissue injury to her neck and to her back." Accordingly, a new trial was warranted, and the trial judge did not abuse her discretion in granting it. See R. 2:10-1 (the grant of a motion for new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law"); see also Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997). However, because even the defense expert found some injury attributable to the accident and there had to be some damages, plaintiff was entitled to a new trial on that subject. Given the defense expert testimony, the issue of proximate cause should have been presented to the jury only in the context of damages flowing from the accident.

In Chamberlain v. Sturma, 94 N.J. Super. 1, 2-3 (App. Div. 1966), aff'd o.b., 48 N.J. 556 (1967), the plaintiff appealed from an adverse judgment and denial of a motion for a new trial after the jury returned a verdict finding that defendant Ward's negligence caused the accident but that the plaintiff was not entitled to damages. The proofs revealed that "there was a history of physical involvements which antedated the accident and could, to some degree, be related to residuals claimed at the trial to have been produced by it." Id. at 3. On appeal, the plaintiff argued that "the jury had a right 'to discount the quantum of permanent disability'" but that "the verdict must be set aside because 'the jury was mistaken as to temporary disability' in that it disregarded undisputed facts." Ibid.

We reversed and remanded for a new trial on damages, concluding that "the jury could not reasonably have found . . . that the plaintiff suffered no compensable injuries whatever" because "defendants' only medical witness acknowledged that plaintiff sustained a back injury which was causally related to the incident." Id. at 4. We did not distinguish between a new trial on permanent or temporary injuries, stating:

With due regard for the opportunity of the trial court and the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears to us that the jury's determination that plaintiff was "not entitled to damages" was so contrary to the weight of the evidence as to be the result of mistake, partiality, prejudice or passion. Denial of plaintiff's motion for a new trial was a manifest denial of justice.

[Ibid. (citation omitted).]

We reverse for a new trial. `The discovery issue is moot as a new trial date must be scheduled, and the trial judge should conduct a management conference to review the issue of discovery.

The order granting a new trial is affirmed, but the scope thereof is reversed, and the matter is remanded for a new trial consistent with this opinion.

 

We refer to plaintiff-wife as "plaintiff." Her husband sued per quod.

We have not been presented with a copy of the transcript of the second trial.

This was not a threshold case. See N.J.S.A. 39:6A-8a.

The judge charged the jury:

Now, in this case, the parties have stipulated liability. So, you do not have to determine whether or not the defendant was negligent. That's already been decided. But it's the plaintiff's duty to establish by a preponderance of the evidence the injury -- that their injuries were proximately caused by the accident.

So, the basic question that you have to resolve is whether the plaintiff's damages are so connected with the defendant's negligent -- negligent actions that you decide that it's reasonable that the defendant should be wholly or partially responsible for the damages.

The judge thereafter charged on the issue of damages at length.

(continued)

(continued)

9

A-5868-04T3

March 28, 2006