KWEKU AFRIYIE-ADDO v. DANIEL R. FORD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0032-09T30032-09T3

KWEKU AFRIYIE-ADDO,

Plaintiff-Respondent,

v.

DANIEL R. FORD,

Defendant-Appellant,

and

JIMMY TOM,

Defendant.

_______________________________

 

Argued April 13, 2010 - Decided

Before Judges Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-0323-07.

Edwin J. McCreedy argued the cause for appellant (McCreedy and Cox, attorneys; Mr. McCreedy, on the brief).

Patrick J. Mangan argued the cause for respondent (Rabb Hamill, P.A., attorneys; Mr. Mangan, on the brief).

PER CURIAM

Defendant Daniel R. Ford appeals from a jury verdict finding him negligent and awarding damages of $250,000 to plaintiff Kweku Afriyie-Addo, who suffered personal injuries in an August 31, 2006 automobile accident. On appeal, defendant seeks a new trial arguing:

POINT I

THE TRIAL JUDGE ERRED IN HIS REFUSAL TO STRIKE THE TESTIMONY OF DR. HALIOUA AS "NET OPINION."

POINT II

THE TRIAL COURT ERRED IN ITS REFUSAL TO GRANT A NEW TRIAL ON THE ISSUE OF DAMAGES OR APPLY REMITTITUR, AS THE JURY VERDICT WAS EXCESSIVE IN AMOUNT.

We have considered these arguments in light of the record and applicable law. We affirm.

These facts surrounding the automobile accident are not disputed. At approximately 7:30 to 8:00 p.m., plaintiff was driving his pick-up truck southbound on the Garden State Parkway in Cranford at approximately milepost 136.6, when his vehicle was struck in the rear by the vehicle driven by defendant forcing his truck into the rear of the vehicle ahead of him, driven by Jimmy Tom. Defendant explained he was in the right lane when an unidentified vehicle went off the side of the road onto the grass. Because defendant was watching the phantom vehicle, he did not observe plaintiff slowing. When he looked ahead, defendant was unable to stop his vehicle before it struck plaintiff's vehicle. Defendant stated the phantom car left the scene.

At trial, Tom confirmed the existence of the phantom vehicle. He described he saw the car go across five lanes and off the road, striking the reflectors on the shoulder and then left the scene.

Defendant concedes the evidence supports the jury's finding that he was negligent. He disputes the sufficiency of the evidence of plaintiff's damages. In this regard, plaintiff admitted he declined medical assistance and felt no discomfort at the scene. The video from the dashboard mounted camera on the patrol car of the State Trooper who responded to the accident was played for the jury. The video shows plaintiff entering his truck a couple of times to remove items and at one point he is jogging a short distance to speak to someone. Plaintiff testified he experienced pain in his back and neck the day following the accident. On September 2, 2006, plaintiff went to the emergency room, where he was x-rayed and prescribed medication for pain. Afterward, he consulted counsel. Three weeks after the accident, on September 18, 2006, he commenced treatment with Victor Fano, D.C., a chiropractor.

Dr. Fano stated plaintiff complained of headaches, low back, neck and chest pain. A spinal x-ray revealed a "decrease in the normal curvature" and "tilting" of the spine. Dr. Fano performed chiropractic adjustments and hot pack therapy three times each week for two months. Because of plaintiff's continued complaints, Dr. Fano recommended he undergo MRIs.

Dr. Fano was not qualified to read the MRIs but referred to the results. A cervical MRI showed a disk herniation at C6-7, along with a slight disk desiccation and mild disk bulge at C5-6. A lumbar MRI showed a "moderate disk bulge" at L5-S1. Dr. Fano treated plaintiff for cervical and lumbar disk syndrome with resulting cervical radiculopathy, which he stated was a permanent condition, caused by the August 31, 2006 accident. Dr. Fano referred plaintiff to Solomon Halioua, M.D., a board certified anesthesiologist and specialist in pain management. Plaintiff presented Dr. Halioua's de bene esse expert testimony for the jury.

Dr. Halioua first examined plaintiff on January 26, 2007. Plaintiff presented with complaints of radiating neck and non-radiating back pain. Based on his examination, he concluded plaintiff had pain radiating down his right arm with localized pain in his lower back.

Dr. Halioua read the cervical MRI, which he testified showed a bulge at C5-6 and a disk herniation at C6-7, but did not read the lumbar MRI. He diagnosed plaintiff as suffering from cervical radiculopathy due to "irritation or inflammation of the nerve root" at C7. Treatment consisted of three epidural injections of "anti-inflammatory-type medication" to "reduce the tissue inflammation around the nerve root . . . and at the spinal cord[,]" completed on February 12 and 26, 2007 and March 12, 2007. Additionally, trigger point injections were performed to relax the back muscles. Plaintiff improved with each injection such that, by the third treatment, he had gained sixty to seventy percent abatement of the localized pain. Plaintiff last saw Dr. Halioua on March 26, 2007.

At the conclusion of Dr. Halioua's testimony, plaintiff moved to strike the testimony as net opinion. The trial judge denied the motion.

Plaintiff stated he had previously injured his neck and back in a 2003 automobile accident, for which he received chiropractic treatment for five weeks, but was fine until the current accident. At trial, plaintiff explained he continued to experience neck and low back pain, but was no longer under a doctor's care and occasionally took over-the-counter pain medication. Further, plaintiff lost no time from work, although he had changed jobs after injuring his mid-back while lifting an air conditioner on July 21, 2007.

Defendant's expert, Michael J. Bercik, M.D., a Board certified orthopedic surgeon, examined plaintiff on October 16, 2007. Dr. Bercik noted plaintiff, when asked if he had experienced any other neck or back injuries or problems aside from the 2006 accident, did not reveal the 2003 automobile accident or the 2007 work injury. In addition to his examination, Dr. Bercik reviewed plaintiff's treatment records and MRIs. He found no discernable injury or condition and saw no bulging or herniated disks on the MRI films. Dr. Bercik opined plaintiff suffered a temporary cervical sprain and lumbosacral strain.

Following summations, the jury was charged. It returned a verdict for plaintiff of $250,000. Defendant's post trial motion for a new trial on damages was denied.

Defendant first challenges as error the trial court's denial of his motion to strike Dr. Halioua's opinion. In denying defendant's motion, the trial judge noted the causation testimony was "weak" but sufficient to rise above a net opinion. Specifically, Dr. Halioua took a history from plaintiff, which noted his symptoms began following the accident and he had not previously experienced any similar problems. Defendant renews the argument presented to the trial court that Dr. Halioua's testimony was nothing more than a net opinion as it failed to explain the causal connection between the accident and the diagnosed injury.

A trial judge's decision about the admission or exclusion of evidence is discretionary. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Such exercises of discretion "are entitled to respectful review under an abuse of discretion standard[.]" Serenity Contracting Group, Inc. v. Borough of Fort Lee, 306 N.J. Super. 151, 157 (App. Div. 1997), certif. denied, 153 N.J. 214 (1998).

"Qualified expert opinion is admissible to assist the jury, N.J.R.E. 702, but there must be a factual and scientific basis for an expert's opinion." Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.) (citing Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 45 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991)), certif. denied, 145 N.J. 374 (1996). N.J.R.E. 703, which governs the basis of expert opinion, states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[N.J.R.E. 703.]

Based upon this rule, "[a]n opinion lacking in foundation is worthless." Jimenez, supra, 286 N.J. Super. at 540. "An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded." Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 43 (App. Div. 2003) (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). "The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (citing Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). The Rule renders inadmissible an expert's conclusion unsupported by factual evidence or other data. Polzo v. County of Essex, 196 N.J. 569, 583 (2008); Buckelew, supra, 87 N.J. at 524. "'Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities.'" Grzanka, supra, 301 N.J. Super. at 580 (quoting Vuocolo, supra, 240 N.J. Super. at 300).

The net opinion rule also "focuses upon 'the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.'" Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting Buckelew, supra, 87 N.J. at 524). The doctrine is "a mere restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew, supra, 87 N.J. at 524. We have consistently instructed experts that their testimony and reports will be stricken as net opinions where they have failed to "give the why and wherefore" of their opinion, and have provided a "mere conclusion." Jimenez, supra, 286 N.J. Super. at 540; see, e.g., Froom v. Perel, 377 N.J. Super. 298, 317 (App. Div. 2005).

Measured by this standard, we find no abuse of discretion in the trial court's evidentiary rulings. Dr. Halioua testified plaintiff was referred to him by Dr. Fano, whose treatment was unsuccessful in alleviating plaintiff's pain. He was provided with the prior diagnostic test results. Dr. Halioua took a patient history, explaining he did so to "find out . . . when this pain condition started. What was the nexus of it[.] I wanted him to describe the symptoms and how they evolved. What treatments he underwent, and whether these treatments were successful or not, and to what extent." Although not concisely stated, Dr. Halioua understood plaintiff's complaints occurred following an automobile accident in August 2006, an event recorded in the patient chart, and that plaintiff was in good health and without pain prior to that event.

On answering questions on both direct and cross-examination, Dr. Halioua referenced the accident. The expert provided his "final diagnosis with regard to what conditions [plaintiff] sustained as a result of this accident in [] August of '06." Further, he responded affirmatively when asked, in his "medical opinion[,]" whether "the disk herniation and disk bulge . . . found in the cervical spine [was] also attribute[d] [] to this accident of August of '06."

Dr. Halioua expressed his understanding that plaintiff had not experienced the debilitating symptoms prior to the accident. Under cross-examination, he was questioned about what effect plaintiff's 2003 car accident had on the injuries he treated. Although not aware of this prior accident, Halioua stated plaintiff expressed he never had a "significant problem" before and, therefore, it was likely a small sprain. Noting plaintiff had five weeks of chiropractic treatment for the 2003 injury, Dr. Halioua stated he "wouldn't think much of the whole thing."

Following our review of the expert's direct and cross-examinations, we conclude his opinion as to plaintiff's injuries is factually based and satisfactorily linked to the August 2006 accident. Accordingly, we have no reason to interfere with the trial court's denial of defendant's motion to strike the expert testimony.

Defendant also challenges the denial of his motion for a new trial on damages. In reviewing the sufficiency of a jury verdict as to damages, we have said: "A new trial on damages should not be granted 'unless it is so disproportionate to the injury and resulting disability as to shock the court's conscience and convince it that to sustain the award would be manifestly unjust.'" Petitto v. Sands Hotel & Casino, Inc., 288 N.J. Super. 304, 308 (App. Div.) (quoting Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988)), certif. denied, 144 N.J. 589 (1996). "[T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, the verdict must be wide of the mark and pervaded by a sense of wrongness." Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 229 (2008) (quotations omitted).

"[T]he authority to set aside damages awards on grounds of excessiveness is 'limited.'" Id. at 228 (citing Carey v. Lovett, 132 N.J. 44, 66 (1993)). "Verdicts should be upset for excessiveness only in clear cases." Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970). When deciding a motion for a new trial as to damages, the trial judge must

evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future.

[Jastram, supra, 197 N.J. at 229.]

The judge must review the record in a light most favorable to the party defending the verdict. Ibid. "'It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted.'" Id. at 228. (quoting Baxter v. Fairmont Food Corp., 74 N.J. 588, 598 (1977)).

"Although an appellate court must defer to the trial judge on witness credibility, demeanor, and 'feel of the case,' it determines for itself whether the record shows that there was a miscarriage of justice." Petitto, supra, 288 N.J. Super. at 309 (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)); see R. 2:10-1 (providing that "[t]he trial court's ruling on [] a motion [for a new trial] shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law"). "The 'feel of the case' factor, while entitled to deference, is the only element distinguishing the standard governing appellate review from that controlling trial court reaction to a jury verdict." Baxter, supra, 74 N.J. at 600. "[I]nsofar as the trial judge's decision rests on determination[s] as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record, an appellate court need not defer." Jastram, supra, 197 N.J. at 230-31 (quotations omitted).

With these principles in mind and viewing the testimony in a light most favorable to plaintiff, id. at 229, we determine, as did the trial judge, that the jury believed plaintiff's evidence. The award, although generous, is sufficiently supported by the evidence that detailed the nature of plaintiff's treatment over a period of seven months, showed his conditions were permanent, and reflected he continued to experience pain. See Baxter, supra, 74 N.J. at 598 (stating the review of the damage award must be qualified by measuring the "totality of the evidence" on a case-by-case basis).

Other than dissatisfaction with the amount of the verdict, defendant points to no evidence to support his contention that the verdict was manifestly unjust. We will not re-weigh the evidence and substitute our judgment for that of the jury and the trial judge. Jastram, supra, 197 N.J. at 235; R. 2:10-1.

Affirmed.

 

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A-0032-09T3

August 18, 2010