COLLEEN TROY-MILLETTE v. CAROL J. HYNES v. RICKY MILLETTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2724-08T32724-08T3

COLLEEN TROY-MILLETTE,

Plaintiff-Appellant/

Cross-Respondent,

v.

CAROL J. HYNES,

Defendant-Respondent/

Cross-Appellant,

v.

RICKY MILLETTE,

Third-Party Defendant-Respondent,

and

JOANN B. RECHT,

Third-Party Defendant.

________________________________

 

Submitted: November 18, 2009 - Decided:

Before Judges C.L. Miniman and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-1189-04.

Drazin & Warshaw, P.C., attorneys for appellant/cross-respondent (John R. Connelly, Jr., on the brief).

Campbell, Foley, Lee, Murphy & Cernigliaro, attorneys for respondent/cross-appellant (Stephen J. Foley, Jr., on the brief).

Connell, Connell, Camassa & Yuro, P.C., attorneys for respondent (Ronald S. Yuro, of counsel; Kristen A. Zebrowski, on the brief).

PER CURIAM

Plaintiff Colleen Troy-Millette appeals from a December 15, 2008, judgment in favor of defendant Carol J. Hynes and third-party defendant Ricky Millette and from a December 19, 2008, order denying her motion for a new trial. Hynes cross-appeals from a February 16, 2007, order denying summary judgment. We affirm the orders of December 15 and 19, 2008, which moots the cross-appeal.

On September 17, 2002, Hynes was driving westbound on Industrial Way in Eatontown when she was involved in an intersection accident with a vehicle owned by third-party defendant Joann B. Recht and driven by Millette, who was traveling northbound on Hope Road. Plaintiff, who was wearing her seatbelt at the time of the accident, was a passenger in the Millette vehicle. Both drivers were ultimately held responsible for the happening of the accident.

Plaintiff's face hit the inside of the car after impact. When paramedics arrived, she reported pain in her head, neck, and face. The paramedics took plaintiff to Jersey Shore Medical Center, where she was examined, x-rayed, and discharged with back and neck braces. The next day, plaintiff saw her primary-care physician, Dr. Joanna Dennis, because her wrist was swollen, but x-rays did not reveal any fractures. She underwent physical therapy at Jersey Shore Rehabilitation Center for a few months after the accident. The physical therapy helped relieve some of the pain in her neck.

Plaintiff received no other medical treatment, although she consulted a number of other physicians, including Dr. Paul Gilson, a neurologist; Dr. Robert Grossman, an orthopedist; Dr. Scott Woska; Dr. Lucyna Lupicki; and Dr. David Yazdan, a neurosurgeon, who testified on plaintiff's behalf at trial. Plaintiff testified she had pain in her right arm; swelling in her wrist, fingers, and neck; hand tremors; headaches; poor motor function in her hand; two herniated discs in her neck; and an inability to assist in household tasks. Plaintiff testified she never had neck or right-arm problems before the accident. Plaintiff also testified she elected not to have corrective surgery due to a fear of becoming paralyzed.

Dr. Yazdan testified that he examined plaintiff on July 22, 2003. She complained of headaches, neck pain, and abnormal sensations in her upper extremities, especially her right hand. Dr. Yazdan found decreased hand strength and depressed tendon reflexes in plaintiff's upper and lower extremities. Dr. Yazdan interpreted a cervical MRI from June 2003 as consistent with a herniated disc at C5-C6 and to a lesser extent a herniated disc at C6-C7 with spondylitic changes, which he described as very common in most people. Dr. Yazdan found no indication of prior neck or back injury. Dr. Yazdan concluded that plaintiff had posttraumatic cervical radiculopathy, which is an irritation of the nerve route. He recommended an anterior discectomy, a relatively common procedure. Dr. Yazdan opined that the herniated discs were caused by the accident. Plaintiff's prognosis was guarded because she needed surgery. When asked whether plaintiff's injuries were permanent in nature, Dr. Yazdan replied:

You cannot say that permanency right now because her treatment is not completed.

. . . .

Now once the treatment is completed and she has gone through therapy and we prepare them to go back to their previous job, then we can evaluate them to see how much disability they have at that time.

Right now when she is not even gone through a complete treatment it is very, very, difficult to make the statement like that.

Dr. Yazdan continued to say that plaintiff would not get better and would only get worse without surgery. He acknowledged that other doctors had recommended more conservative treatments. Dr. Robert Warren, an orthopedic surgeon, testified on behalf of defendants. He examined plaintiff on October 14, 2004. Plaintiff reported to him that she had neck pain, tremors and decreased motor function in her right hand, and pain and numbness radiating down her right arm. Dr. Warren noted that plaintiff did not appear to be in pain when he saw her, although she reported tenderness from the base of her skull down to her scapula. Dr. Warren stated that disc problems in the neck present as pain radiating into the extremities, changes in muscle tone, or weakness, but not as tenderness. Plaintiff's range of motion in the lumbar spine was good and somewhat variable in the neck. Dr. Warren thought plaintiff did not give her best effort based on his other observations.

Dr. Warren found plaintiff had inconsistent hand tremors; that is, they disappeared when she was distracted, which was not a sign of a disc problem. Additionally, she had normal reflexes in her upper and lower extremities. Dr. Warren was "not able to provoke any sign that there was pressure on the spinal cord anywhere along the path." Her neurological examination was normal in the lower extremities. Plaintiff's CT scan from the day of the accident was normal with no indications of an acute injury. Dr. Warren did not see any physical limitations attributable to any injury.

Dr. Warren testified that plaintiff's MRI revealed a protruded disc in her neck, which did not press on any nerve root, and showed some desiccation, which is a degenerative change in disc water levels. Dr. Warren opined that the accident was not likely to have caused the disc problems, saying "[in] all probability, the findings of the discs that we were seeing were of a degenerative nature and not something that happened as a one time instance." Dr. Warren stated that plaintiff had suffered a neck strain and disc protrusion at C5-C6 and C6-C7, but there was "no way to apportion that to a specific date or time." Dr. Warren concluded that plaintiff had not suffered any permanent injury and was capable of performing all the normal activities of daily living.

The medical records moved into evidence included a letter dated January 16, 2003, in which Dr. Gilson recommended that plaintiff return to physical therapy. There was also a letter dated June 26, 2003, in which Dr. Ketang Modi diagnosed a mild degenerative condition, disc desiccation, and disc herniations at C5-C6 and C6-C7. Finally, there was a report dated August 26, 2003, from Dr. Bruce Rosenblum in which he diagnosed plaintiff with posttraumatic cervical and lumbar radiculopathy.

After considering the testimony and other evidence, the jury determined the comparative fault of both drivers, whose negligence caused the accident, but concluded that plaintiff failed to prove by objective, credible, medical evidence that she sustained a permanent injury proximately caused by the accident. Accordingly, the trial court entered a judgment dismissing plaintiff's complaint with prejudice.

Subsequently, plaintiff moved for a new trial on the ground that the verdict was against the weight of the evidence. The judge, in ruling on her motion, noted that plaintiff's own doctor testified he could not opine that her injuries were permanent because her treatment was not completed. The judge also observed that defendants' expert opined that the abnormalities in her cervical spine were not causally related to the accident. As a result, the judge, citing Baumann v. Marinaro, 95 N.J. 380, 389 (1984), concluded he could not exercise his discretion to overturn the verdict under Rule 4:49-1 because the verdict "was not clearly against the weight of the evidence." This appeal followed.

Plaintiff contends that the jury verdict constituted a miscarriage of justice under the law because her expert's testimony established a permanent injury, "[n]otwithstanding Dr. Yazdan's idiosyncratic understanding of the word permanency." She urges that "[a] reasonable jury would have understood that either course of action undergoing surgery and permanently altering one's body or not undergoing surgery and suffering with a herniated disc forever constitutes a permanent condition." Plaintiffs concludes that "[t]he jury's failure to recognize this constitutes a miscarriage of justice."

The scope of our review of an order denying a new trial is limited. "The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also, Dolson v. Anastasia, 55 N.J. 2, 5-7 (1969) (holding that the scope of appellate review is the same as that applied by the trial judge on a motion for a new trial under Rule 4:49-1). That rule provides that a "trial judge shall grant the 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." R. 4:49-1(a).

To decide if there was such a miscarriage, we defer to the trial court with respect to "intangibles" not transmitted by the record but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson, supra, 55 N.J. at 6-8. We thoroughly "canvass the record to determine if 'reasonable minds might accept the evidence as adequate to support the jury verdict.'" Klawitter v. City of Trenton, 395 N.J. Super. 302, 324 (App. Div. 2007) (quoting Borngesser v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001)). "'[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino, supra, 78 N.J. at 360).

We are satisfied no such miscarriage of justice occurred in this case, which is governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. AICRA allows automobile insurance policyholders to secure lower premiums in exchange for limiting their right to sue for noneconomic damages if injured in an accident. DiProspero v. Penn, 183 N.J. 477, 480-81 (2005). This option, known as the "limitation on lawsuit" or "verbal threshold," precludes recovery of noneconomic damages unless the victim "sustain[s] a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). AICRA further provides that "[a]n injury shall be considered permanent when the body part . . . has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.

Here, plaintiff presented evidence that her injuries have not healed to function normally as required by N.J.S.A. 39:6A-8(a). Dr. Yazdan opined that she suffered at least one herniated disc as a result of the accident, that it would not get better without surgery but, in fact, would get worse over time. However, Dr. Yazdan would not testify that her injuries "will not heal to function normally until further medical treatment." Ibid. This missing piece of evidence was an essential element of a prima facie case of a permanent injury under AICRA. DiProspero, supra, 183 N.J. at 481-82. Because plaintiff did not make out a prima facie case, there is no merit to her appeal.

Even if she did make a prima facie case, her appeal still lacks merit. There was a sharp dispute of fact respecting the nature of the injuries she sustained in the accident, with defendant's expert opining she had no more serious injury than a fully healed neck sprain. The jury obviously credited Dr. Warren's opinion that the condition of the discs in her neck was unrelated to the accident. This opinion is even corroborated with the very minimal treatment plaintiff received for her injuries. We find no error in the trial judge's denial of plaintiff's motion for a new trial. As a result, Hynes's cross-appeal is moot.

Affirmed.

The claims against Recht were dismissed on summary judgment by order of May 27, 2005. No party has appealed from that order.

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A-2724-08T3

January 21, 2010