JOHN DOLAN v. ERNEST GRAHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4417-07T34417-07T3

JOHN DOLAN,

Plaintiff-Appellant,

v.

ERNEST GRAHAM,

Defendant-Respondent.

_______________________________

 

Submitted: March 4, 2009 - Decided:

Before Judges Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3224-03.

Drazin & Warshaw, PC, attorneys for appel lant (John R. Connelly, Jr., on the brief).

Barry & Prindiville, P.A., attorneys for respondent (John C. Prindiville, on the brief).

PER CURIAM

Plaintiff John Dolan appeals from the denial of his motion for a new trial following a verdict of no cause for action on his claim of permanent injury arising out of a motor vehicle accident where liability was stipulated. We affirm.

The circumstances of the accident on May 13, 2003, are not relevant to our review of this damages-only trial. Suffice it to say that defendant Ernest Graham lost control of his vehicle and crashed into a building containing a pizzeria. Plaintiff was standing at the counter and was propelled to the rear of the building by the crash. Plaintiff's experts opined that plain tiff suffered disc herniations in his cervical and lumbar spine as a result of the accident, which we note was clearly capable of producing such injuries, and that his injuries were perma nent. Defendant's expert opined that the disc herniations were degenerative in nature and preexisted the accident in question and that his other injuries were not permanent.

On March 19, 2008, the jury concluded that plaintiff had not proven by objective, credible medical evidence that he sus tained a permanent injury that was proximately caused by the accident. Plaintiff filed a motion for a new trial, which was decided on April 25, 2008. The judge placed his decision on the record and con cluded that the verdict was not a miscarriage of justice because plaintiff had been involved in prior accidents, including a work-related injury in California. He also noted that the defense expert interpreted the MRIs as showing only disc bulges and opined that they were not caused by trauma. The defense expert also opined that he found no objective signs of a permanent injury. As a result, he denied the motion.

Rule 4:49-1(a) provides in pertinent part that a judge shall grant a motion for a new trial "if, 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." In contrast with a motion for involuntary dismissal under Rule 4:37-2, this is not a mechanical function. Kita v. Borough of Lindenwold, 305 N.J. Super. 43, 49 (App. Div. 1997). Rather, the judge must consider both tangible and credibility factors as well as his feel for the case when deciding whether the jury's verdict was clearly erroneous or mistaken. Ibid.; see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969) (A motion for a new trial "calls for a high degree of conscientious effort and diligent scrutiny" and the verdict should only be disturbed when "it clearly and convincingly appears that there was a manifest denial of justice under the law." (internal quotations omitted)); Satellite Entm't Ctr., Inc. v. Keaton, 347 N.J. Super. 268, 275 (App. Div. 2002) ("[A] jury verdict should be set aside only when it 'clearly and convincingly appears that there was a miscarriage of justice under the law.'" (quoting R. 4:49-1)). Jury verdicts should be set aside sparingly and only in cases of clear injustice. Baboghlian v. Swift Elec. Supply, 393 N.J. Super. 187, 200 (App. Div. 2007), rev'd on other grounds, 197 N.J. 509 (2009); Boryszewski V. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

We may only reverse the trial judge's ruling on a motion for a new trial where "it clearly appears that there was a mis carriage of justice under the law." R. 2:10-1. We have, thus, concluded, "The standard for our setting aside a verdict already sustained by the trial judge is high." Horn v. Vill. Super markets, Inc., 260 N.J. Super. 165, 178 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993).

At the same time, a trial court's determina tion is "not entitled to any special defer ence 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."

[Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (quoting Dolson, supra, 55 N.J. at 7).]

Plaintiff's own expert, Jerlyn Jacob, D.C., acknowledged that the x-rays taken at the hospital after the accident referred to degenerative changes in the cervical and lumbar regions of plaintiff's spine. She further admitted that the disc degeneration existed prior to the accident. Dr. Jacob also tes tified that disc degeneration can lead to a herniation, which can occur even in the absence of trauma, and that a herniation may or may not cause pain. She further testified that she eliminated degeneration as causing the herniations because plaintiff had no reported symptoms prior to the accident and had not been under her care since the 1990s.

Plaintiff then testified that he had returned to New Jersey from California about four weeks prior to the accident and, while he was living in California in 2002, he was injured at work when a replacement window fell on him from the second story shelf of the warehouse and knocked him to the ground. He injured his neck and shoulder and was offered a cervical collar, but refused. He was also in an automobile accident that same year when he struck a car that was fishtailing in front of him, suffered a whiplash injury, and received chiropractic care.

Defendant's expert testified that the MRI of plaintiff's cer vical spine taken on October 24, 2003, showed bulges and spurs from C3 to C7 that were degenerative in nature and not related to trauma or injury. The MRI of his lumbar spine taken on May 5, 2005, showed blackened, desiccated discs at L4-5 and L5-S1. The disc at L3-4 was darkening. All three discs were degenerating and were losing or had lost their water content. All three showed degenerative bulging. None of the MRIs showed compression of any nerves.

We have carefully considered the written arguments made by the parties in light of this evidence and conclude that plaintiff has failed to clearly demonstrate "that there was a miscarriage of justice under the law." R. 2:10-1. Although the opinions of the experts differed, the jury was well within its province in accepting the opinions of the defense expert based on the factual evidence before it.

 
Affirmed.

(continued)

(continued)

6

A-4417-07T3

April 28, 2009