TIFFANY N. JASTRAM, by her Guardian ad Litem, DIANE JASTRAM v. SCOTT M. KRUSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0756-06T20756-06T2

TIFFANY N. JASTRAM, by her

Guardian ad Litem, DIANE JASTRAM

and DIANE JASTRAM, Individually,

Plaintiff-Respondent,

v.

SCOTT M. KRUSE,

Defendant-Appellant.

_________________________________

 

Submitted: October 15, 2007 - Decided October 30, 2007

Before Judges Rodr guez and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Monmouth County, L-4558-02.

Barry & Prindiville, attorneys for appellant (John C. Prindiville, on the brief).

Gill & Chamas, attorneys for respondent (Michael J. Hanus, on the brief).

PER CURIAM

This is an appeal from the September 8, 2006, denial of a motion for a new trial or remittitur filed by defendant Scott M. Kruse after the jury on June 20, 2006, returned a $500,000 verdict in favor of plaintiff Tiffany N. Jastram as compensation for a moderate-to-severe permanent sprain and strain of the ligaments and muscles supporting plaintiff's lumbar spine. Defendant asserted in his moving papers that the verdict was against the weight of the evidence, shocking and excessive, and a miscarriage of justice under the law. Defendant also contended that the admission into evidence of some medical illustrations was erroneous. After determining that $19,075 for counsel fees pursuant to the offer-of-judgment rule, R. 4:58-2, was reasonable, and calculating prejudgment interest, the trial judge entered a final total judgment on September 11, 2006, in the amount of $653,367.28. This timely appeal followed. We reverse and order remittitur or a new trial on damages based on this clearly excessive verdict.

Plaintiff and defendant were involved in a motor vehicle accident that occurred on January 16, 2002, in Middletown. Defendant has not raised any issues on appeal respecting the jury's verdict on liability and so we need not discuss the manner in which the accident occurred.

On the date of the accident, plaintiff turned seventeen. She obtained her driver's license that day. Plaintiff was a junior in high school who worked part-time as a hostess at the Navesink Fishery, a restaurant. She also worked at Hidden Hollow Farm six or seven days per week in exchange for horseback riding time, participating in thirty or more riding competitions per year.

After the accident, the plaintiff went about her planned activities for the day, but complained to her mother of pain in her back and legs when she returned home after dinner. When the pain did not subside after using Advil and a heating pad for a few days, plaintiff's mother scheduled an appointment for her with an orthopedic surgeon, Dr. Hausmann. When plaintiff saw him on February 1, 2002, she complained of back pain that went into her left leg and difficulty sleeping. After examining plaintiff, Dr. Hausmann took x-rays of her back, advised her that they were negative and prescribed anti-inflammatory and pain medication.

Plaintiff did not seek any further treatment from Dr. Hausmann. She continued to attend school and work as a hostess despite the pain she felt, but she could no longer ride horses or do any physical labor at the stable. She did continue to give riding lessons to younger children.

With no relief from the medication, plaintiff's mother took her to see a chiropractor, Dr. Grossman, on February 16, 2002. Plaintiff complained to him of lower back pain into her thigh and foot, an inability to sleep and muscle spasms. Dr. Grossman ordered an MRI, which the radiologist read as normal. Dr. Grossman treated plaintiff nineteen times between February 16 and May 3, 2002. When plaintiff did not obtain relief from her symptoms, Dr. Grossman recommended that she see another physician.

Plaintiff saw Dr. Del Valle on April 29, 2002. Dr. Del Valle recommended trigger point injections, which plaintiff declined, and continued chiropractic treatment. Plaintiff had no medical treatment from May 4, 2002, to December 2, 2003.

Plaintiff then returned to medical care with another orthopedic surgeon, Dr. Caponetti, on December 3, 2003. He recommended physical therapy, which plaintiff attended on three occasions. She then decided to exercise and stretch at home. She did not return to the care of Dr. Caponetti and had no further medical treatment.

At trial plaintiff testified that she continued to work at the Navesink Fishery, which provided some accommodations for her pain and spasms, until the summer of 2003. However, she quit working at Hidden Hollow Farm entirely a few months after the accident. Although she tried to ride horseback several times, the pain and spasms in her back prevented her from riding and she stopped going to the farm. Horseback riding and competitions had been her main activity for almost ten years. She testified that she remained in pain and had spasms from the time of the accident through the time of trial in 2006. She related that she still had difficulty sleeping because of the pain, stiffness and spasms, which awaken her every two or three hours. Her social activities are somewhat limited as well. She does not go to the gym with her mother or go dancing with her friends. She cannot contribute much to the household chores at her mother's house, where she continues to live. At the time of trial she worked full-time as a manager of the stable at a country club, Due Process Stables. In addition, she attends college part-time at night.

Plaintiff and defendant each retained consulting physicians to conduct independent medical examinations and testify at trial. Dr. Robert Dennis, an orthopedic surgeon, testified on behalf of plaintiff and Dr. Jay Bruce Bosniak, also an orthopedic surgeon, testified on behalf of defendant. After reviewing various medical records, Dr. Dennis examined plaintiff on March 3, 2005, and noted positive findings in the form of restricted ranges of motion, paraspinal tenderness and spasms. She had a positive straight-leg-raising test demonstrating scar tissue tethering the nerves. Dr. Dennis explained that plaintiff's spine was injured from excessive flexion or extension. He opined that she had suffered a moderate to severe sprain and strain of the muscles and ligaments supporting the lumbar spine. He explained that muscles and ligaments healed with scar tissue, which is not as flexible as uninjured tissue. He opined that she had a significant ligamentous injury causing lumbar instability. He further opined that this injury was caused by the motor vehicle accident and that her injuries were permanent and would not improve in the future. Finally, he opined that all of the limitations she described in her activities of daily living were consistent with his findings.

Plaintiff was examined by Dr. Bosniak on May 14, 2003. He found a normal range of motion without any observable spasm, but there were some areas of tenderness. All other findings were normal. Dr. Bosniak opined that plaintiff had sustained a lumbar sprain that he felt had resolved. He further opined that her prognosis was very good to excellent. Clearly, as the trial judge found, the jury rejected the testimony of Dr. Bosniak and accepted that of Dr. Dennis.

In deciding the motion for a new trial, the trial judge expressed that he did not "really know how you quantify in words the concept of shocking the conscience. I don't know how you do it." He then ruled as follows:

It's clear from their decision they weren't impressed. They bought Dr. Dennis. And this was a toss up. If they buy Dr. Bosniak's position, does the plaintiff get an award? Yes, she does. It was a no threshold case. She's going to get an award. But Bosniak said but I don't think there's permanency here. Dennis said, no I think there is permanency. Their call. Their call.

And I charged them, I'm not telling you what to decide. I am not allowed to give you this would make this job a whole lot easier if personal injury was reduced to the same standard as Workers Comp is. Here's your table. It tells you what a thumb is worth, a nose is worth, two toes, half of a foot and everything else. Go in, figure out what the law says. Come back here and tell me, we'll work it up on the table. And we'll give the plaintiff an award. It doesn't work that way.

This is an extremely imperfect science that we all practice. And the motions that I get for a new trial are the epitome of the imperfection of this practice. And I will tell you right now. Does this verdict shock the conscience? It does not. Was I surprised at the verdict? Yes. Did I think it was going to be that high? No, I didn't. Was there testimony in the record to support this verdict? Yes, there was. Does the time unit rule support the computation by the jury? It certainly does. The jury had every right in the world to disregard all the plaintiff's proof. They elected not to do so, and I am not going to disturb their verdict.

Our case law is not so lacking in guidance as the trial judge expressed.

A motion for a new trial on the ground that the verdict is excessive is governed by R. 4:49-1, which permits the trial judge to grant the motion when, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." A verdict may only be set aside as excessive in "clear cases." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970); Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993).

[A] trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injury and resulting disability shown as to shock his conscience and to convince him that to sustain the award would be manifestly unjust.

[Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977).]

See also Carey v. Lovett, 132 N.J. 44, 66 (1993).

The trial judge must accept the medical evidence and view it in a light most favorable to plaintiffs. Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971). The judge must also "accept the conclusion that the jury believed the plaintiff['s] injury claims and the testimony of [her] supporting witness." Ibid.

We may only reverse the trial judge's ruling on a motion for a new trial where "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. "The standard for appellate review of a trial court's decision on a motion for a new trial 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) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

At the same time, a trial court's determination is "not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which he is no more peculiarly situated to decide than the appellate court." Dolson, supra, 55 N.J. at 7.

[Caldwell v. Haynes, 136 N.J. 422, 432 (1994).]

Our Supreme Court has cautioned, "The judicial role in reviewing jury verdicts, although limited, is essential to a rational system of justice." Carey, supra, 132 N.J. at 66 (emphasis added) (concluding in part that awards of $1,000,000 and $500,000 for emotional distress were clearly excessive where there was no evidence of any psychiatric hospitalization or significant interference with the lifestyle or employment relationships of either plaintiff).

The Baxter Court spoke at length regarding the factors to be considered by trial and appellate judges considering remittiturs:

While sometimes difficult of application to a given factual base, these rules recognize that all judges, whether trial or appellate, are human and that the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural subjective inclinations derive from the particular background or experience of the individual judge, whether from tenure on the bench in examining or recalling other cases, from previous activity in law practice in diverse fields or, for that matter, from any human experience, such as a youthful background of poverty or wealth or the like. Such individuality of approach extends of course to the field of admeasuring damages flowing from injuries caused by negligence, as in the present case, or other wrong. It is for the merging of such individualized propensities of mind into an amalgam of common judicial experience related to the doing of justice that judges are admonished to resist the natural temptation to substitute their judgment for that of the jury.

The judgment of the initial fact-finder then, whether it be a jury, as here, or a judge as in a non-jury case is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice. The process of "weighing" the evidence is not to encourage the judge to "evaluate the evidence as would a jury to ascertain in whose favor the evidence preponderates" and on that basis to decide upon disruption of the jury's finding. "[T]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Nevertheless, the process of evidence evaluation called "weighing" is not "a pro forma exercise, but calls for a high degree of conscientious effort and diligent scrutiny. The object is to correct clear error or mistake by the jury." It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted.

 
. . . .

To us all of this means that a trial judge, before acting in derogation of the jury's fixing of damages, must be convinced, and that very clearly, of something like this: "This verdict is terribly wrong -- having canvassed the record I reach this conclusion because of substantive factors in the totality of the evidence [e.g., the incredible testimony offered by a party, the overwhelming weight of the evidence with respect to a certain fact, the failure of a party to produce any countervailing medical or other expert testimony, etc.] -- and I must therefore determine that it is so much against the weight of the evidence as to be, manifestly, a miscarriage of justice." The trial judge having acted and that action coming on for review on appeal, we think the appellate court must be concerned with the same norm of decision, since that is basic to its ultimate conclusion as to whether justice has miscarried by dint of the trial judge's invasion of the jury's province, where he was not justified in doing so.

[Baxter, supra, 74 N.J. at 596-99 (citations omitted).]

Justice Hall in State v. Johnson, 42 N.J. 146 (1964), addressed this issue as well:

While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge [the jury] went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways -- from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others.

[Id. at 162.]

In Fertile v. St. Michael's Medical Center, 334 N.J. Super. 43, 58 (App. Div. 2000), aff'd in part and rev'd in part, 169 N.J. 481 (2001), we observed that the use of remittitur "is encouraged where there is adequate support for the jury verdict and only the damages awarded were excessive." However, we cautioned that "remittitur is not appropriate when the damages award is so grossly excessive that it suggests that the entire verdict was tainted by mistake, prejudice, partiality, or passion." Ibid.

Here, defendant does not contend that the verdict was grossly excessive. As a consequence, we are not called upon to determine whether any taint affected the verdict as a whole and may remit the verdict at the appellate level. Ibid.; Caldwell, supra, 136 N.J. at 443 ("The practice of remittitur is encouraged at both trial and appellate levels in cases involving excessive damages.").

A trial or appellate court may rely on "its experience with other injury verdicts. . . ." Fertile, supra, 169 N.J. at 501. In such a case, "it must give a factual analysis of how the award is different or similar to others to which it is compared." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). A review of verdicts that have been remitted is helpful in evaluating whether the verdict before us is excessive. The trial judge in Henker v. Preybylowski remitted a $250,000 award to plaintiff for permanent soft tissue injury to his back as shockingly excessive and plaintiff agreed to accept $33,000. 216 N.J. Super. 513, 516 (App. Div. 1987). We reversed the remittitur on the ground that the verdict was so grossly excessive as to demonstrate prejudice, partiality or passion such that the verdict could not be salvaged. Id. at 517.

In Hinojo v. New Jersey Manufacturers Ins. Co., 353 N.J. Super. 261, 278-79 (App. Div.), certif. denied, 175 N.J. 76 (2002), we approved the trial court's determination that a jury verdict of $675,000 for the loss of a pinky finger was shockingly excessive, and approved the remittitur to $400,000, although we permitted plaintiff to withdraw acceptance of that amount in light of our reversal on the issue of liability.

In Conrad v. Robbi, the plaintiff suffered a compression fracture at the upper end of her lumbar vertebrae. 341 N.J. Super. 424, 434 (App. Div.), certif. denied, 170 N.J. 210 (2001). The day after the accident, her doctor performed surgery and fused seven vertebrae from T9 through L3, using bone harvested from her pelvis and metal rods. Ibid. She was required to wear a hard plastic body brace for three months and a soft body brace for another two months. Id. at 435. After the brace was removed, plaintiff attended physical therapy three times per week for almost five months. Ibid. The injury to her back limited her attire and many of her activities. Id. at 434-35. Her physician opined that her injury was permanent, that in the future she would have increasing problems with her lower lumbar vertebrae and that her problem was unsolvable. Id. at 435-36. The jury awarded $750,000 and the trial judge denied the defense motion for a new trial or remittitur. Ibid. We affirmed, finding that the award was not "manifestly excessive under the circumstances." Id. at 444.

The evidence here does not support the $500,000 verdict. Plaintiff had not seen any health care provider until two weeks after the accident when she saw Dr. Hausmann on one occasion. He took X-rays that revealed she had no bony injuries. A month after the accident she began chiropractic treatments and saw Dr. Grossman on nineteen occasions between February 16, 2002, and May 3, 2002. During that time she underwent an MRI test, which found no evidence of disc herniations and showed a normal MRI appearance to her lumbar spine. While she was treating with Dr. Grossman, she was evaluated by Dr. Del Valle, who on April 29, 2002, recommended continued chiropractic treatment and trigger point injections. Plaintiff declined the injections and stopped treating with Dr. Grossman. Plaintiff did not undergo any neurological testing and sought no further medical treatment for nineteen months. She consulted with Dr. Caponetti on one occasion and attended three sessions of physical therapy. She had no other medical care. None of plaintiff's treating doctors restricted her school, work or recreational activities.

Dr. Dennis testified that plaintiff had moderate to severe ligament and muscle injuries to her lumbar spine. She had no injury to the bones or discs. In examining plaintiff Dr. Dennis found restrictions in her ranges of motion, but did not quantify them for the jury nor establish whether the range-of-motion test was active or passive. He found tenderness in the paraspinal muscle groups, a subjective sign, and "[e]ven continued spasm," but did not quantify the spasms or identify the muscles in spasm. The only abnormality in her neurological examination was a positive straight-leg-raising test.

It is entirely possible that, had plaintiff selected the injury threshold of AICRA, N.J.S.A. 39:6A-8, she would not have survived a motion for summary judgment at the trial level for lack of objective proof of permanent injury. James v. Torres, 354 N.J. Super. 586, 590, 596 (App. Div. 2002) (chronic lumbar muscle spasm and leg and back pain did not meet verbal threshold), certif. denied, 175 N.J. 547 (2003); Rogozinski v. Turs, 351 N.J. Super. 536, 555 (Law Div. 2002) (muscle spasms one year after accident does not qualify as permanent condition); Jacques v. Kinsey, 347 N.J. Super. 112, 124 (Law Div. 2001) (objective proof of muscle spasms insufficient to meet verbal threshold under AICRA).

There is nothing about this case to distinguish it from the thousands of garden-variety lumbar strains and sprains that pass through our courts every year, most which settle for sums well under $50,000. Neither is there anything in the facts before us that distinguishes this case from the facts in Henker. Furthermore, plaintiff filed a $12,500 offer for judgment in this case, reflecting her assessment of a reasonable settlement. Defendant, of course, did not settle and the amount of the offer for judgment is not determinative. However, a verdict of $500,000 is clearly and shockingly excessive.

The order denying remittitur or a new trial is reversed, the damage award is remitted to $50,000 plus prejudgment interest. The counsel fee award remains undisturbed. If the plaintiff declines to accept the remitted verdict within fourteen days of the filing date of this opinion, a new trial on damages shall be commenced within ninety days thereafter.

In light of our disposition of the first issue on appeal, we do not reach the evidentiary issue raised by defendant. Of course, if the matter is retried, the evidentiary ruling will not be binding on the judge presiding over the new trial. An in limine motion should be filed so that this issue may be resolved in advance of trial, as it readily can be in light of the videotaped testimony of Dr. Dennis. We do not retain jurisdiction.

Reversed and remanded for further proceedings consistent with this opinion.

Defendant did argue that plaintiff's closing argument biased the jury. However, we infer from defendant's failure to object to the allegedly prejudicial statements that he did not consider the remarks to be significant in the context of the trial. State v. Macon, 57 N.J. 325, 333 (1971); State v. Wilson, 57 N.J. 39, 50-51 (1970). Indeed, they were not.

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A-0756-06T2

October 30, 2007