ERIC GONZALEZ v. FRANCIS SIPALA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6354-04T16354-04T1

ERIC GONZALEZ,

Plaintiff-Appellant,

v.

FRANCIS SIPALA,

Defendant-Respondent,

and

JOSEPH SIPALA and FRED PITTMAN, JR.,

Defendants.

_______________________________________

 

Submitted April 4, 2006 - Decided August 1, 2006

Before Judges Axelrad, Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-7391-02.

Joseph Chaiken and Associates, attorneys for appellant (Lee S. Bender, on the brief).

Green, Lundgren and Ryan, attorneys for respondent (Francis X. Ryan and Alexa J. Nasta, on the brief).

PER CURIAM

Plaintiff Eric Gonzalez appeals from a no-cause verdict rendered at the conclusion of a one-day trial on damages in this automobile personal injury case, and the trial judge's subsequent denial of plaintiff's motion for a new trial. We affirm.

On November 9, 2000, plaintiff was a front-seat passenger in a Plymouth Acclaim sedan driven by his former roommate. He was wearing a seat belt. While at a full stop at an intersection, the Acclaim was struck in the rear by a Plymouth Neon driven by defendant Frances Sipala. Testimony at trial indicated that the Neon was traveling at about five to ten miles per hour when the impact occurred.

The parties keenly disputed the severity of the impact. Plaintiff described it as a "very hard hit" to the rear of the car, which caused his head to propel "very far forward." Defendant testified that the impact felt "sort of like a bump" to him.

The physical damage caused by the accident was indisputably minor. The parties agree that the accident caused a crack in the Acclaim's rear tail light. Plaintiff also contended that the Acclaim's rear bumper became detached and that there was a dent shown in the front of the Neon. Both cars remained operable after the collision and were driven from the scene.

Prior to trial, defendant stipulated to liability. The ensuing trial was solely on damages for plaintiff's alleged pain, suffering and lost enjoyment of life allegedly caused by the accident. The verbal threshold statute, N.J.S.A. 39:6A-8, was inapplicable, plaintiff not being subject to the lawsuit limitation option under his automobile insurance policy.

The damages proofs at trial revealed that plaintiff's physical complaints and his course of treatment following the accident were limited. Plaintiff went to a local emergency room immediately following the accident with complaints of neck and back pain and was released that day. Four days later, plaintiff had an initial visit with a chiropractor, William H. Bromley, D.C., and was diagnosed with sprain and strain of the cervical, thoracic and lumbar spine. After a one-month interval with no medical attention, plaintiff returned to Dr. Bromley on December 13, and treated with him sporadically for fifteen visits over the next five months.

Plaintiff's spinal x-rays were normal, and there were no other imaging studies performed reflecting abnormalities. His treatment concluded on March 21, 2001, he having reached maximum medical improvement. Plaintiff then moved to Florida and obtained full-time work as a painter. He did not resume treatment in the four years leading up to the May 2005 trial.

The medical testimony at trial was presented through the respective videotaped de bene esse depositions of Dr. Bromley for the plaintiff, and Dr. Ronald Gerson, an orthopedic physician retained by the defense. Dr. Bromley opined that plaintiff had sustained permanent injuries to his lumbar spine, with "residual weakness" in the lower back. On the other hand, Dr. Gerson concluded from his examination of plaintiff in July 2003 and his review of the medical records that plaintiff's condition had fully healed, and that there were "no objective findings of any permanent effects from [the] accident." However, Dr. Gerson did concede that plaintiff had sustained at least temporary neck and back injuries from the accident. At the request of plaintiff's counsel, the trial court instructed the jury that they were bound to accept such temporary injury as fact. Nonetheless, the compensability of that injury remained subject to the jury's assessment.

At the conclusion of the proofs, the jury returned a unanimous verdict in which it awarded plaintiff zero damages as the amount of money that "would fairly and reasonably compensate [him] for his injuries from [the] accident," inclusive of "pain, suffering, disability, impairment [and the] loss of enjoyment of life." Plaintiff thereafter moved for a new trial or, alternatively, for additur. The motion was denied.

Plaintiff raises two arguments on appeal, contending (1) the trial judge improperly admitted into evidence, over his counsel's objection, several photographs depicting the minimal damage to the two vehicles, and (2) the verdict denying him a damages award constituted a miscarriage of justice, warranting a new trial or additur. Having carefully considered those arguments in light of the record and the applicable law, we discern no basis for setting aside the judgment in favor of the defendant.

We first address the admission of the photographs. Both counsel aqree that the photographs, which were not supplied to us on this appeal and which we find no need to review in light of the nature of the arguments, show only minimal physical impact to either vehicle. In summations, defense counsel intimated that the photographs corroborated that the impact of the collision, and plaintiff's resultant injuries, were not severe. Specifically, defense counsel stated to the jury, without further emphasis, that "you've had an opportunity to see the pictures of the cars so you can judge for yourselves the extent of the accident." Plaintiff's counsel, on the other hand, argued in his summation that photographs alone cannot accurately depict the extent of a vehicle's impact. In particular, he noted that Dr. Gerson was not a biomechanical expert qualified to comment on physical forces, and also reminded the jury of the sworn proofs of his client attesting to the strong forces that had moved his body within the passenger compartment of the car. He argued that the photographs were irrelevant, urging the jurors to use their "common sense" in assessing such evidence.

Plaintiff contends to us that the trial judge should not have admitted the photographs in the absence of expert testimony from a biomechanical engineer commenting about the likely physical forces involved in the collision and the probable effects of those forces on plaintiff's body within his car. Recently, we addressed that very issue in Brenman v. DeMello, 383 N.J. Super. 521 (App. Div. 2006), in which we considered the defense's use of vehicle photographs to show that a so-called "low-impact" collision could not have caused the serious personal injuries claimed by plaintiff, a driver of a car struck from behind in stop-and-go traffic. We acknowledged in Brenman that "[p]hotographs alone cannot provide definitive evidence that the physics of a particular accident . . . did or did not cause a particular injury to a particular individual." Id. at 535. Accordingly, we held that, in the absence of appropriate expert testimony, such photographs generally should not be presented to jurors as proof of the absence of causation. Id. at 535-36. We cautioned, however, that "our holding should not be construed broadly to require expert testimony in every case in order for jurors to be permitted to view photographs of vehicles involved in an accident," and that such evidence "is neither automatically admissible nor excludable, but rather subject to the sound exercise of the trial court's discretion." Id. at 538.

While recognizing in Brenman the potential dangers of routinely admitting "minimal damage" photographs as evidence on matters of causation, we also noted, however, that such photographs ordinarily would not pose equivalent dangers if offered to corroborate the severity, or lack of severity, of plaintiff's injuries. Id. at 536; see also Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993) (allowing vehicle photographs to refute the "seriousness and permanency" of plaintiff's injuries); Gambrell v. Zengel, 110 N.J. Super. 377, 380 (App. Div. 1970) (applying, in reciprocal fashion, the same principles to a plaintiff, allowing her to use photographs showing substantial physical damage to the vehicles as corroborating proof of the "seriousness" of plaintiff's injuries). In Brenman, we noted that there was no "real conflict over the severity of plaintiff's condition following the accident." Id. at 536. Objective medical evidence indisputably showed that plaintiff had, at the very least, a cervical disc ridge complex cutting off two nerve roots, and he underwent an anterior cervical fusion post-accident involving the removal of three cervical discs. Ibid. The heart of the dispute in Brenman was not about whether plaintiff had sustained a serious injury, but rather what had caused it. In that context, we found it impermissible for the defense to present the vehicle photographs without tying them to competent expert testimony on those causative issues. Ibid.

Here, unlike Brenman, the severity of plaintiff's injuries was hotly disputed. Indeed, severity was the pivotal issue at trial, and it remains so on this appeal because of the jury's determination that plaintiff was entitled to no damages. The defense counsel did not make use of the photographs in a histrionic manner, or overstate their significance to the jury. Plaintiff's counsel ably offered a competing interpretation of the photographs. The trial judge was not asked to give a special instruction about the photographs, and plaintiff does not contend on appeal that the absence of such an instruction was plain error. In sum, we perceive no reversible error in the admission of the photographs in these circumstances, and defer to the "sound exercise of the trial court's discretion." Id. at 537.

As to plaintiff's second argument concerning the weight of the evidence, we discern no "manifest injustice that shocks the judicial conscience," see Carey v. Lovett, 132 N.J. 44, 66 (1993), in the jury's failure to award damages and no error in the trial court's denial of plaintiff's post-trial motion. Our scope of review of such matters is limited, and we must consider the evidence in a light most favorable to the prevailing party on the verdict. See Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Bearing in mind that deferential review standard, we are satisfied that the jury had a rational basis in the evidence to conclude that plaintiff's injuries from the accident were only temporary and did not rise to a severity or duration warranting compensation. In this regard, we note, among other things, plaintiff's short-term chiropractic treatment, the absence of any imaging studies showing spinal abnormalities, and plaintiff's resumption of heavy labor within six months of the accident.

We also reject plaintiff's claim that an award of damages is mandated by our decision in Love v. Nat'l Railroad Passenger Corp., 366 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355 (2004), which involved a distinguishable scenario where a jury had awarded $65,000 in lost wages to an injured railroad worker who underwent several post-accident surgeries, but inexplicably denied that plaintiff any compensation for his attendant pain and suffering.

Affirmed.

 

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A-6354-04T1

August 1, 2006