ROY SCONFIENZA v. DANIEL P. DEFEO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6753-04T16753-04T1

ROY SCONFIENZA,

Plaintiff-Appellant,

v.

DANIEL P. DEFEO and

DIFS ELECTRICAL SERVICE, INC.,

Defendants-Respondents.

________________________________________________________________

 

Submitted September 12, 2006 - Decided September 28, 2006

Before Judges Lisa and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2565-03.

Paul Fernandez & Associates, attorneys for appellant (Paul Fernandez, on the brief).

Philip M. Lustbader & David Lustbader, attorneys for respondents (James S. Colavito, on the brief).

PER CURIAM

Plaintiff, Roy Sconfienza, appeals the trial court's July 19, 2005 order, which denied plaintiff's motion for a new trial and/or additur pursuant to Rule 4:49-1. The jury found both plaintiff and defendant, Daniel P. DeFeo, equally negligent and the proximate cause of the January 22, 2002 accident in which plaintiff, a pedestrian, was struck by a truck driven by defendant. The jury, by its answers to special interrogatories, awarded plaintiff as damages for his pain and suffering (1) $35,000 for a Grade 3 tear of the acromial-clavicicular (AC) joint of his left shoulder; and (2) $15,000 for injuries to his lower back. We affirm.

Plaintiff filed his complaint on June 13, 2003, and defendants filed an answer on July 11, 2003. The matter was scheduled for mandatory, non-binding arbitration on October 21, 2004, and later moved to October 14, 2004. Trial was originally scheduled to take place on January 10, 2005, but was re-scheduled three times to February 14, 2005, March 28, 2005, and April 25, 2005.

Plaintiff filed a motion on April 20, 2005, five days prior to trial, seeking permission to serve a medical report dated March 3, 2005 as an amendment to the May 8, 2003 medical report previously served on defendants. The amended report included an updated evaluation as to the prognosis and permanency of plaintiff's injuries. The court denied the motion. On March 25, 2005, three days prior to the second trial date, plaintiff amended his answers to interrogatories adding his wife, Sandra Sconfienza, as a fact witness. On April 6, 2005, plaintiff further amended interrogatories naming Fred Stuart and Leenan Mann as witnesses. Defendant opposed the amendments. At the pretrial conference held April 26, 2005, the court denied plaintiff the right to call these witnesses. Trial began April 27, 2005 and continued on April 28, 2005 and May 2, 2005.

At trial, plaintiff testified that on January 22, 2002, at daybreak, approximately 6:45 a.m., he was working in the course of his employment as a sanitation worker on Central Avenue in Haledon. He was walking across Central Avenue from the back of a garbage truck parked on the side of the street, with its headlights on, in order to retrieve a garbage can. He was wearing an orange hooded sweatshirt and orange hat. Before crossing the street, he looked toward the direction from which the garbage truck had come and had an unobstructed view for 100 to 150 yards. He did not see any vehicles approaching. There were eight feet between the double yellow lines separating the lanes of travel and the garbage truck. In order to pass the garbage truck, a vehicle had to cross the center lines. While looking in the direction he was walking, plaintiff proceeded to cross the street at a slight angle toward the front of the garbage truck, and after crossing over the double yellow line was struck by defendant's truck.

Joe Schulmeister, the driver of the garbage truck, testified that he did not recall whether he tapped his brakes to force air out of the air brakes to create a loud sound as a signal to warn plaintiff that a vehicle was approaching. Schulmeister testified that he would generally give such a signal for oncoming traffic, where the vision of the driver of the oncoming vehicle and the vision of the garbage collector would not be direct. He would generally give a signal for traffic proceeding in the direction that the garbage truck was parked only if a vehicle were traveling at a high rate of speed. Schulmeister stated that he saw, through his side mirror, defendant coming around the bend fifty to seventy-five yards away and saw plaintiff step out from behind the truck.

Defendant testified that at the time of the accident it was dark and he had his headlights on. He stated that it was necessary to go to the left of the garbage truck as he was passing it. Defendant was watching the door of the truck, concerned that the driver would come out. Defendant did not see plaintiff, who was in an area of the truck that was not lit, until slightly before impact, which occurred on or near the center lane.

Plaintiff was taken to St. Joseph's hospital and was treated there from January 22 to January 28, 2002. Thereafter plaintiff continued treatment for his injuries through a course of physical therapy, until his return to work on a limited basis four months later. Plaintiff was examined by Dr. Theodora Maio, an orthopedic surgeon, on March 27, 2003. Dr. Maio opined that plaintiff sustained post-traumatic injury to his left shoulder with an AC separation with residuals of diffuse left shoulder synovitis with loss of range of motion, power, and function in his right hand. In addition, Dr. Maio found plaintiff to have a disc herniation at L1-2 and L5-S1, and disc bulging at L3-4 and L4-5 with residuals of diffuse lumbosacral myositis and fibromyositis with loss of range of motion and sciatic neuralgia on the right greater than the left.

Dr. Irwin Cohen, an orthopedic surgeon, testified for defendant. He examined plaintiff on March 25, 2004 and confirmed that an x-ray of plaintiff's left shoulder revealed a dislocation of the left AC joint that was treated with conservative means. Dr. Cohen's review of plaintiff's MRI films revealed a herniated disc at L5-S1 and L1-2. Dr. Cohen testified that he agreed with the official report of the May 7, 2002 MRI which stated there was degenerative disc disease at L1-2 and L3-4, L4-5 and L5-S1, and a large herniated disc with extrusion at L1-2 with a bulge at L3-4 and L4-5. There was a left herniated disc at L5-S1. He opined that the herniated discs were associated with degenerative spurring and that changes seen were "chronic and long, and antecedent" to the accident of January 22, 2002. Dr. Cohen testified plaintiff acknowledged that he had a prior accident in June 2000, in which he incurred a lower back injury.

Plaintiff presents the following arguments for our consideration:

POINT I

THE COURT SHOULD HAVE PERMITTED PLAINTIFF TO FILE AN AMENDED MEDICAL REPORT SETTING FORTH AN EVALUATION AS TO THE PERMANENCY OF THE INJURIES SUSTAINED BY THE PLAINTIFF IN THE ABOVE-ENTITLED CAUSE.

POINT II

A NEW TRIAL SHOULD BE GRANTED WHERE THERE IS A MISCARRIAGE OF JUSTICE UNDER THE LAW AND WHERE THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE COURT BELOW IN DENYING THE PLAINTIFF THE RIGHT TO CALL WITNESSES WHO WOULD TESTIFY AS TO HIS QUALITY OF LIFE FOLLOWING THE ACCIDENT WAS PREJUDICIAL AND, AS A RESULT, A NEW TRIAL SHOULD BE GRANTED.

POINT IV

THE COURT'S INSTRUCTION TO THE JURY REGARDING THE ISSUE OF "INTERVENING CAUSE" WAS PREJUDICIAL AND CONFUSED THE JURY IN ITS DELIBERATIONS.

I

Plaintiff argues that by failing to permit him to serve an amended medical report and to have his physician testify as to the permanency of his injuries, the jury was left with the impression that he may not have sustained any permanent injuries resulting from the accident. Therefore, he was precluded from providing the jury with an accurate picture of his current condition. Because counsel for plaintiff was substituted shortly before trial, plaintiff contends that he should have been granted an extension from the discovery deadline to serve an amended medical report due to "exceptional circumstances," pursuant to Rule 4:24-1.

The decision whether to grant a motion to extend the discovery period pursuant to Rule 4:24-1(c) is a discretionary one for the trial court. Huszar v. Greate Bay Hotel, 375 N.J. Super. 463, 471-72 (App. Div. 2005). In Huszar, we set forth the appropriate standard of review as follows:

Our standard of review is limited to a determination of whether the trial court mistakenly exercised its discretion in denying plaintiff's motion for an extension of the discovery period under R. 4:24-1(c). Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 51 (App. Div. 2003).

. . . .

In accordance with the Best Practices amendments, the discovery period may be extended by consent of the parties or by court order "for good cause shown" but only if the application for extension of time is made before the discovery period has expired. R. 4:24-1(c). The rule further provides that "[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed." (Emphasis added). Indeed, a trial or arbitration date is critical to the trial judge's determination of whether to grant an extension of the discovery period under R. 4:24-1(c). Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004) (stating "that the absence of an arbitration or trial date at the time of the trial judge's ruling is of critical significance in a court's exercise of its discretion to extend discovery.").

[Huszar, supra, 375 N.J. Super. at 471-72.]

When considering whether a request to extend the discovery period was reasonably denied after the matter has been scheduled for trial, the following factors should be considered:

First, as with motions considered within the original discovery period, any application should address the reasons why discovery has not been completed within [the] time [allotted] and counsel's diligence in pursuing discovery during that time. Any attorney requesting additional time for discovery should establish that he or she did make effective use of the time permitted under the rules. A failure to pursue discovery promptly, within the time permitted, would normally be fatal to such a request. Second, there should be some showing that the additional discovery or disclosure sought is essential, that is that the matter simply could not proceed without the discovery at issue or that the litigant in question would suffer some truly substantial prejudice. Third, there must be some explanation for counsel's failure to request an extension of the time for discovery within the original discovery period. Finally, there generally must be some showing that the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Huszar, supra, 375 N.J. Super. at 473 (quoting Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)). (emphasis added).]

In this case, plaintiff's counsel asserts that he exercised diligence in pursuing discovery during the discovery time period and that the reason for his failure to obtain an earlier extension of the discovery period for production of the medical report was because, as substituted counsel, he was not earlier in control of the case.

We are satisfied that the trial judge properly exercised his discretion when he applied the above-referenced factors and denied plaintiff an extension of discovery. There was no suggestion that the late report was necessitated because plaintiff suddenly took a turn for the worse or experienced new symptoms. Plaintiff's lone excuse was that a substitution of counsel took place shortly before trial. The original trial date, however, was postponed for approximately four months, and no motion was brought by plaintiff's counsel to submit an amended medical report until five days before trial. Allowing the late discovery sought would have either delayed the trial or prejudiced defendant or both.

Plaintiff contends that the jury's determination of damages was disproportionately low because the jury failed to take into account the permanent impact his injuries will have on him, which was addressed in the proposed amended medical report. However, we are satisfied that the jury was presented with an abundance of evidence describing the type and severity of plaintiff's injuries. The May 8, 2003 medical report of Dr. Maio previously filed, which plaintiff used in support of his worker's compensation claim, contained an opinion, although unallocated between the various levels of plaintiff's spine and left shoulder, of a permanent orthopedic disability of 66 2/3% of total.

Additionally, our review of the trial record indicates that Dr. Maio testified, based upon physical examination eleven months post-accident, plaintiff had tenderness and spasm, which went from the base of the skull throughout the muscles of the neck into the front vertebrae below the neck and had "tenderness and spasm along the sides of the back in the paraspinal ileal lumbar muscles." The jurors were permitted to see and feel the separation of plaintiff's shoulder, which Dr. Maio opined occurred as a result of the accident. Further, Dr. Maio was permitted to testify to the permanency of plaintiff's injury. When asked, if after surgical repair of plaintiff's clavicle, the clavicle ever regains the strength it once had, Dr. Maio answered.

No. Unfortunately, once it's been injured, even if it's repaired and the range of motion is improved, it's never the same as it was before. . . . [M]edically speaking, . . . there's been trauma, part of the clavicle's been excised. It will go on to develop a post-traumatic arthritis, which in itself will add to the pain and restriction of motion. So it will never be totally normal, once it's been injured and surgically repaired.

Lastly, the portions of the jury charge recited below clearly permitted the jury to make a permanency award for pain and suffering.

Now, if you find in favor of Mr. Sconfienza he's entitled to recover fair and reasonable money damages for the full extent of the harm caused no more and no less. A plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injuries resulting in a disability to or impairment of his faculties, health, or ability to participate in activities which were a proximate result of defendant's negligence. . . . The law also recognizes as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequence of the injury. . . . [Y]ou must also consider the duration and any award that you make must cover the damages suffered by the plaintiff since the date of the accident to the present time and even into the future if you find that his injuries and/or consequences have continued to the present time or can be reasonably expected to be continuing into the future.

. . . .

You should make an award for future pain and suffering, disability, impairment, loss of enjoyment of life. You may also consider the plaintiff's life expectancy. Plaintiff's life expectancy today is approximately 30.51 years.

II

Plaintiff contends the trial judge abused his discretion by denying plaintiff's motion for a new trial. We disagree. Relying on Rule 4:49-1(a), plaintiff argues that clear and convincing evidence exists to support a finding that the jury's verdict was a "miscarriage of justice."

The appropriate standard of review of the judge's denial of plaintiff's new trial motion was articulated by the Supreme Court, in Dolson v. Anastasia, 55 N.J. 2 (1969).

A process of evidence evaluation, -- "weighing" --, is involved . . . . The object is to correct clear error or mistake by the jury. . . . It was said in Kulbacki [v. Sobchinsky, 38 N.J. 435 (1962)], "[w]hat the trial judge must do is canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict * * *." 38 N.J. at 445. . . . The whole process is well summed up in the dissenting opinion in Kulbacki: "the question is whether the result strikes the judicial mind as a miscarriage of justice, * * *", 38 N.J. at 459. This is the standard intended to be conveyed by R. 4:49-1(a) . . . "The trial judge shall not, however, set aside the verdict of a jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, unless it clearly and convincingly appears that there was a manifest denial of justice under the law."

. . . .

The standard governing an appellate tribunal's review of a trial court's action on a new trial motion is essentially the same as that controlling the trial judge.

[Dolson, supra, 55 N.J. at 6-7.]

Therefore, the issue is whether the jury came to a reasonable verdict on liability and on the amount of damages based on the evidence presented to it at trial. The jury found plaintiff and defendant both 50% negligent. There was testimony that plaintiff was not engaged in a proper movement across the street, which interfered with plaintiff's line of sight to oncoming traffic. It was without dispute that plaintiff indicated that he did not see defendant's truck until the actual moment of impact. In assessing whether the quantum of damages assessed by the jury is excessive or inadequate, a trial court must consider the evidence in a light most favorable to the prevailing party in the verdict. Caldwell v. Haynes, 136 N.J. 422, 432 (1994); Monheit v. Rottenberg, 295 N.J. Super. 320, 327 (App. Div. 1996).

At the hearing on the motion for a new trial, the trial judge stated:

I'm satisfied that the jury had before it sufficient evidence to make a determination to apportion liability. . . . [c]learly this was a case in which a pedestrian was making a maneuver to cross the street in a fashion that was at variance . . . to some degree with the requirement set forth in the traffic code.

Under such circumstances the pedestrian's actions - the plaintiff's actions in this case - can be viewed as evidence of negligence. Since the issue of evidence of negligence was before the jury, it is obviously within the - the- the providence of the jury to make a determination about the degree to which negligence would be assigned to the plaintiff, if at all.

This is not a case where there was no . . . controversy as to the happening of the accident, nor the freedom of the plaintiff from any - any possible degree of negligence.

Essentially what the plaintiff is arguing, that under these circumstances the jury erred in its determination to assess a - an equal liability to the parties.

I cannot concur that that was, as a matter of law, an error.

The question of whether or not the jury properly assessed damages is also judged by the same standard. . . . [t]he jury heard the testimony regarding the - the injury to his shoulder, as well as the injury to his back.

. . . .

The jury awarded $35,000 to the shoulder, $15,000 for the lower back injury. There was controverted testimony about the nature of the back injury. The disc injury. The defense doctor, Dr. Cohen, basically considered it to be degenerative in nature, while, obviously, plaintiff's examining physician considered it to be traumatically caused.

The injury to the shoulder, while Dr. Cohen did concur that the plaintiff did sustain an injury to the shoulder, . . . the position was that the recovery was good, and that he did not receive any significant treatment for that.

It should be noted that the jury did not have the benefit of the bills, medical bills to take into account, with respect to the damages in this case as a result of decisions made during the course of the trial.

We are satisfied that the evidence presented at trial, including the legitimate question of negligence on the part of both plaintiff and defendant and the disputed medical testimony as to the nature and extent of plaintiff's injuries, supports the trial judge's determination that the jury's verdict was not clearly against the weight of the evidence and should not be disturbed.

III

Plaintiff next contends that the court erred in precluding the testimony of plaintiff's wife and Fred Steward, a co-fireman and Leeman Mann, a co-employee. Plaintiff claims that these witnesses would have been able to testify as to his quality of life subsequent to the accident helping the jury understand the full nature and extent of his injuries. Plaintiff asserts that the exclusion of testimony from these witnesses was prejudicial to him and led to an erroneous decision by the jury.

Our standard of review regarding the discretionary decisions of the trial court is governed by our decision in Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), where we stated:

N.J.R.E. 403 specifically allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. These decisions are reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). "Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998).

Plaintiff sought to name his wife for the first time as a witness by letter of February 11, 2005 just prior to February 14, 2005, the second trial date. Plaintiff sought to further amend interrogatories to add Fred Stuart and Leeman Mann for the first time by letter of April 13, 2005, two weeks before the commencement of trial. In those amendments, plaintiff failed to certify, as required by Rule 4:17-7, that the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the "discovery end" date. Certainly, plaintiff knew the identity of his wife and colleagues long before the "discovery end" date. The court denied the amendment because the lateness caused prejudice to the defendant as defendant had no ability to depose those witnesses. The court looked at the late amendments to determine whether precluding them would have an effect on plaintiff's case and the extent of that effect. The court also evaluated the testimony of the witnesses and concluded it was simply corroborative in nature and was adequately able to be provided by Joel Schulmeister, Dr. Maio, and plaintiff himself. In light of the potential prejudice to defendant and the corroborative nature of the proposed testimony, we are satisfied that the trial judge properly exercised his discretion in excluding the witnesses.

IV

Finally, plaintiff argues that the court confused the jury with regard to the comparative negligence of the parties by charging the jury on the law of intervening and superseding causes. Plaintiff contends that due to the error in the trial court's instructions to the jury, the jury mistakenly attributed whatever negligence it may have believed the driver of the truck committed to plaintiff, when in fact it should not have done so. Because there was no limiting instruction in the jury charge, plaintiff asserts that the resulting jury confusion constituted reversible error. The intervening cause at issue involved the testimony of Schulmeister, that at times he would advise his co-workers of oncoming traffic by pumping his brakes, thereby triggering a signal that there was oncoming traffic and his co-employee should not step out from behind the truck.

In reviewing claims of erroneous jury charges, "[t]his court has repeatedly held that portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). The pertinent portion of the jury instructions that plaintiff alleges confused and misled the jury, reads as follows:

Now, on the other hand, defendant has the burden of establishing by a preponderance of the evidence all the facts necessary to prove the following issues. That the plaintiff is negligent, that the plaintiff's negligence was the proximate cause of this accident, that the plaintiff's negligence is greater than any negligence that you may find on the part of defendant, and also that there was a cause related to the actions of Mr. Shumeister relating to the, to the signal that was alleged to have been needed to be given at this time. That is all of the burdens that I've placed upon the defendant. And with respect to the actions or inactions on the part of Mr. Shumeister, it is also the burden of the defendant to establish that any actions or inactions taken by Mr. Shumeister at the time if this accident were also a proximate cause of this accident.

. . . .

In this case you've heard evidence that the plaintiff and the driver of the garbage truck, Joseph Shumeister, had a procedure in which Mr. Shumeister would tap the brakes or cause them to hiss only when he felt that a vehicle was traveling at a rate of speed or was close enough to require a warning or he thought that the plaintiff did not see the vehicle and that would require a warning to be given. This is when the vehicle was approaching from the rear of the truck.

You also heard that the plaintiff testified that he heard no such hissing, brake warning being given before being struck by Mr. DeFeo. There is, of course, no evidence that any brake warning was, in fact, given.

Defendant, Mr. DeFeo, claims that if the brake warning signal had been given the plaintiff would have been warned and the accident would not have happened. The defendant -- claims of the accident and the plaintiff's injury was caused by an independent intervening cause, namely, Mr. Shumeister's failure to hit the warning brakes and therefore the defendant, DeFeo's, actions are not a contributing factor to the accident or with plaintiff's injuries.

If you find that Mr. DeFeo was negligent, then you must decide if that negligence was a proximate cause of the accident, or if Mr. Shumeister's failure to provide a brake warning was an intervening cause.

. . . .

Plaintiff offers no basis for his contention that the intervening cause charge may have confused the jurors and caused them to attribute comparative negligence to himself. There was sufficient evidence for the jury to find that plaintiff was negligent. Plaintiff was crossing a darkened street. Since there was no crosswalk, plaintiff should have crossed the street at right angles to the roadway. N.J.S.A. 39:4-36. Plaintiff and Schulmeister both confirmed that instead of walking at a right angle to the roadway, plaintiff walked at an angle with his back to defendant's oncoming vehicle.

We are satisfied that the jury instructions as a whole clearly distinguished the issues of negligence, proximate cause, and independent intervening causes. Additionally, the jury instruction on intervening causes was grounded in the evidence. We are likewise convinced that the charge on intervening cause did not prejudice the plaintiff. Had the jury found that Shulmeister's failure to tap the brakes was an intervening cause, it would have found that the negligence of defendant was not a proximate cause of the accident. The jury clearly did not do so. Therefore, the jury's verdict demonstrates that the intervening cause charge did not play a part in its verdict and plaintiff was not harmed thereby.

Affirmed.

 

The truck driven by defendant, DeFeo, was owned by co-defendant, DIFS Electrical Service, Inc.

(continued)

(continued)

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A-6753-04T1

September 28, 2006