GORDON GATES v. ESTATE OF VICTOR DIABO, M.D

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2515-07T12515-07T1

GORDON GATES,

Plaintiff-Appellant,

v.

ESTATE OF VICTOR DIABO, M.D.,

Defendant-Respondent.

________________________________________________________________

 

Argued February 2, 2009 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3832-05.

Milagros C. Alvarez argued the cause for appellant (Lord & Kobrin, attorneys; Mr. Alvarez, on the brief).

Thomas A. Wester argued the cause for respondent (McDermott & McGee, LLP, attorneys; Mr. Wester, on the brief).

PER CURIAM

Plaintiff, Gordon Gates, appeals from an order denying his motion for a new trial or additur. The jury awarded plaintiff $5000, reduced by his fifty percent negligence, for a shoulder injury he sustained when he fell on the icy sidewalk on defendant's premises. Plaintiff argues that the judge erred because the verdict was unreasonable, against the weight of the evidence and shocking to the conscience, thus resulting in a miscarriage of justice under the law. We reject plaintiff's argument and affirm.

On the evening of February 4, 2005, plaintiff slipped on the snow and ice-covered sidewalk outside defendant's office in Hillside. Plaintiff landed on his left shoulder. He did not seek immediate medical attention but proceeded home. The next day he went to the emergency room at Newark Beth Israel Hospital. X-rays were negative for fracture. He was released with a prescription for pain medication and his arm was placed in a sling. Although he was instructed to return in two weeks, he did not.

Plaintiff's next medical evaluation of his shoulder occurred on March 1, 2005. On that date, he attended a previously-scheduled appointment at the University of Medicine and Dentistry of New Jersey (UMDNJ). Still wearing a sling, he told the attending physician about his fall and previous treatment at Beth Israel. Plaintiff was referred to the orthopedic department at UMDNJ, where he saw Dr. Robin Gehrmann, an orthopedic specialist.

Dr. Gehrmann observed a limited and painful range of motion and mildly diminished strength in plaintiff's left shoulder. X-rays revealed no fracture or dislocation, but did reveal a well- healed clavicle fracture in plaintiff's left shoulder from a previous injury many years earlier.

Dr. Gehrmann believed plaintiff had developed a frozen shoulder, or adhesive capsulitis. Dr. Gehrmann testified that an individual who develops a frozen shoulder has "painful limitations in their shoulder motion, usually related to . . . scar tissue forming in the joint or a thickening of the actual capsule that surrounds the joint itself." Dr. Gehrmann prescribed a physical therapy plan for plaintiff. Plaintiff attended physical therapy and did home exercises for about fourteen months, although the specific times and regularity of the program were not fully detailed.

Dr. Gehrmann or someone on his staff saw plaintiff from time to time for about eighteen months, with the last visit for this injury occurring on September 5, 2006. During the course of that treatment, Dr. Gehrmann administered two cortisone injections. He reported continuing increase in plaintiff's range of motion and decrease in pain over the course of treatment. For example, his office notes for December 13, 2005 reflected, "At this point we feel that adhesive capsulitis to resolving [sic] the patient is close to reaching full motion." Plaintiff next visited Dr. Gehrmann on February 14, 2006, and then on April 18, 2006, when plaintiff reported a dramatic improvement in his shoulder in terms of his range of motion and pain. On July 18, 2006, plaintiff reported and Dr. Gehrmann observed further increase in plaintiff's range of motion. When treatment was completed on September 5, 2006, plaintiff described a dull, but occasionally sharp and intermittent, pain.

Dr. Gehrmann testified at trial that it typically takes an individual about two years or more to recover from the effects of a frozen shoulder, and some people never fully recover. However, he fell short of opining that plaintiff suffered a permanent injury. He gave this direct testimony:

Q The frozen shoulder, Doctor, you accounted in your report that a frozen shoulder could take years to improve, and sometimes it never improves; it that a fact?

A It can -- correct. It can take years to improve. And, some people will, ah, be left with residual loss of motion in that extremity.

Q Now, in the case of Mr. Gates; did you find that Mr. Gates will continue to have residuals?

A When we last saw him, he did. How he will ultimately end up is very difficult to say.

[Emphasis added.]

Trial occurred in November 2007. Dr. Gehrmann had not seen or evaluated plaintiff for his left shoulder since September 5, 2006, and could not say how he was doing since that time. Dr. Gehrmann did not recommend surgery, because it is common for people experiencing frozen shoulder to "generally end up being functional," and "we didn't think it would necessarily . . . make him any . . . better." He acknowledged that as of September 2006, plaintiff "was, basically, able to . . . continue with most of [t]he activities of daily living, but, did have some degree of pain . . . almost all of the time."

Dr. Michael James Bercik, also an orthopedic specialist, evaluated plaintiff for the defense. Dr. Bercik saw plaintiff on June 27, 2006 and again on September 4, 2007. Dr. Bercik testified that at the June 27, 2006 visit, plaintiff's shoulder appeared normal when viewed from the front and side and had a "full range of motion in four directions." Plaintiff demonstrated "good strength and no pain" in a rotator cuff test, tested negative for tendonitis, and demonstrated no shoulder tenderness. However, plaintiff said he experienced pain while going through his range of motion. Dr. Bercik concluded, "The exam of the left shoulder on June 27, 2006, was a normal exam except for the fact the patient was stating he had pain with range of motion. Ideally, he would have moved without pain."

In the September 4, 2007 evaluation, plaintiff's left shoulder again demonstrated "a normal appearance" and plaintiff "did not have any pain during the range of motion." Plaintiff tested negative for a rotator cuff tear and impingement, but presented "tenderness in the muscles along the back of the shoulder." Plaintiff described intermittent shoulder pain, which increased with activity and weather changes. Although plaintiff said he took Percocet as needed, Dr. Bercik did not feel it was indicated and would not recommend it.

Dr. Bercik concluded

that the prognosis for the left shoulder was good. The patient had complaints . . . . Objectively, there were no abnormal findings on the physical exams . . . .

In my opinion, he did not require any more treatment to the left shoulder, and I did not feel he, did not feel he had suffered any permanent injury to his left shoulder.

Dr. Bercik opined that plaintiff suffered a shoulder sprain from the fall. He disagreed with Dr. Gehrmann's diagnosis of a frozen shoulder. He acknowledged that "adhesive capsulitis and shoulder sprain are terms that can be used somewhat interchangeably." According to Dr. Bercik, plaintiff experienced an inability to move his shoulder immediately after the injury, but this is a common phenomenon with a sprain. His overall conclusion was that he agreed with Dr. Gehrmann that "a soft tissue injury occurred to the shoulder," and that even if plaintiff ever had a frozen shoulder, it was resolved by the time plaintiff saw Dr. Bercik.

According to Dr. Bercik, even the most severe cases of frozen shoulder are not considered permanent injuries, because even with very severe frozen shoulders, patients can make a complete recovery. Dr. Bercik insisted that plaintiff's "range of motion both times was full, and I would not have felt that he needed any physical therapy when I saw him for his shoulder . . . ."

Plaintiff testified at trial. He said he was taking Percocet once or twice daily for shoulder pain. He testified that he continued to experience pain and discomfort in his shoulder, and that his activities have been limited. He said he no longer weight trains or plays basketball or tennis as he previously did.

The jury determined that both plaintiff and defendant were negligent, that the negligence of each of them was a proximate cause of plaintiff's injury, and that the allocation of negligence was fifty percent to each of them. Plaintiff's claim was only for non-economic loss, and the jury found that $5000 would fairly compensate him for that loss. After molding the verdict in accordance with the jury's finding, the net award to plaintiff was $2500.

Plaintiff moved for a new trial or additur. Judge Brock acknowledged that the verdict was "a little low," but concluded that the jury was within its rights to accept the defense version of plaintiff's injury and find that plaintiff suffered only a sprain, and not a frozen shoulder. Applying the standard in Rule 4:49-1(a), the judge could not clearly and convincingly find that the jury verdict constituted a miscarriage of justice under the law, and she denied the motion.

On appeal, plaintiff does not dispute the liability verdict. He limits his appeal to the amount of damages awarded.

The standard of appellate review of jury awards is well settled. In the first instance, trial judges are admonished not to interfere with the jury's assessment of damages, unless that assessment "is so disproportionate to the injury and resulting disability shown as to shock his [or her] conscience and to convince him [or her] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). Thus, "the judge cannot validly intrude unless 'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Ibid. (quoting R. 4:49-1(a)). The judge may not substitute his or her judgment for that of the jury merely because the judge would have reached a different result, and it is thus often said that the judge cannot become "a thirteenth and decisive juror." Id. at 598 (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). Our standard of review is the same as that of the trial judge, see R. 2:10-1, except that we defer to the trial judge's "feel of the case." Baxter, supra, 74 N.J. at 600. A basic precept of judicial review of a jury's assessment of damages is that the court must view the evidence in the light most favorable to the nonmoving party. Jastram v. Kruse, ___ N.J. ____, ____ (2008) (slip op. at 13-14).

Applying these principles, we have no hesitancy in concluding that the trial judge did not err in denying plaintiff's motion for a new trial or additur. This is especially so when deferring to Judge Brock's feel of the case. She was in the best position to observe plaintiff while he was testifying, the reaction of the jurors to his testimony and that of the competing medical experts, and the like. Viewing the evidence in the light most favorable to defendant, plaintiff's injury consisted of a soft tissue sprain to the left shoulder, for which he underwent a conservative course of treatment and was left with no permanent disability. Notably, no doctor in this case opined that plaintiff suffered a permanent injury. Dr. Gehrmann testified that he could not say whether plaintiff's injury was permanent. Dr. Bercik opined that there was no permanency.

Plaintiff cites a number of cases in which this court has reversed summary judgments entered in favor of defendants and remanded for trial in verbal threshold cases. See Cavanaugh v. Morris, 273 N.J. Super. 38, 41-42 (App. Div. 1994); Cineas v. Mammone, 270 N.J. Super. 200, 212-13 (App. Div. 1994); Arencibia v. Rosas, 270 N.J. Super. 339, 348-49 (App. Div. 1994); Foti v. Johnson, 269 N.J. Super. 198, 199-200 (App. Div. 1993); Dabal v. Sodora, 260 N.J. Super. 397, 401-02 (App. Div. 1992). These cases are of no significance with respect to the issue before us. In these cases, summary judgments in favor of defendants were reversed, with specific factual determinations of injuries to be determined by the factfinder on remand. They do not involve the sufficiency of jury verdicts, which are based upon a consideration of all of the evidence presented to the jury, not only that viewed in the light most favorable to the plaintiff in the summary judgment context.

Plaintiff also argues that other verdicts in similar cases have been higher, thus entitling plaintiff to the relief he seeks. In support of this argument, plaintiff relies upon verdicts in several unreported cases. Although we recognize that courts are permitted, as one factor, to consider verdicts in similar cases, the information provided here is totally lacking in persuasive effect, and this argument does not warrant further discussion. R. 2:11-3(e)(1)(E).

Plaintiff argues that the jury rushed to judgment. He bases this argument on the fact that after the jury deliberated for about one hour, it posed a question to the court pertaining to the amount of ice on the sidewalk. After the question was answered, by informing the jury they had to rely on the trial evidence in that regard, the jury came in with its verdict about five minutes later. Plaintiff contends that because the jury had to answer six questions on the verdict sheet, it must have answered all six of them during that five minute interval. Thus, the jury did not reach a reasoned decision.

In denying the new trial motion, the judge found this assertion speculative, and so do we. There is no basis in this record to support a finding that the jury did not deliberate adequately on all of the questions presented and reach a reasoned verdict.

Finally, plaintiff argues that when the damage verdict was announced the judge's expression reflected her shock. During the argument on the new trial motion, Judge Brock denied that her expression was one that reflected a finding that her judicial conscience was shocked. When plaintiff's counsel suggested that the judge rolled her eyes, the judge responded, "No, I didn't make a finding that I was shocked. My eyes went up. Yours rolled, and mine went up."

As we have stated, the judge candidly acknowledged that she deemed the verdict on the low side, and if she were the factfinder she probably would have rendered a higher award. However, she adhered scrupulously to the correct standard of review and did not substitute her judgment for that of the jurors. Deferring to her feel of the case, and based upon our review of the trial record, we find no basis to interfere with the judge's denial of plaintiff's motion.

Affirmed.

(continued)

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A-2515-07T1

March 6, 2009