NOVENA BROWNE v. JENNIFER SEMPEL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3873-08T2

NOVENA BROWNE,

Plaintiff-Respondent,

v.

JENNIFER SEMPEL AND

SHERWIN EDWARDS,

Defendants-Appellants,

and

FRANCIS SEMPEL,

Defendant.

______________________________

BRONWEN BROWNE,

Plaintiff-Respondent,

v.

NOVENA BROWNE,

Defendant-Respondent,

DARYLE MORRIS, FRANCIS SEMPEL,

LIBERTY MUTUAL INSURANCE COMPANY,

Defendants,

and

JENNIFER SEMPEL AND SHERWIN EDWARDS,

Defendants-Appellants.

_______________________________

 

Argued February 22, 2010 - Decided

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-2807-05 and L-2865-05.

John L. McDermott, Jr., argued the cause for appellants (McDermott & McGee, L.L.P., attorneys; Mr. McDermott, on the brief).

Frank J. Zazzaro argued the cause for respondent Novena Browne (Law Offices of Frank J. Zazzaro, attorneys; Mr. Zazzaro, on the brief).

Tracey L. Alfano argued the cause for respondent Novena Browne (Law Offices of Baumann, Lynes & Viscomi, attorneys; Ms. Alfano, of counsel and on the brief).

James J. Mahoney argued the cause for respondent Bronwen Browne.

PER CURIAM

In this intersection accident case, defendants Sherwin Edwards and Jennifer Sempel appeal from two judgments dated March 6, 2009 in favor of plaintiffs Bronwen Browne and Novena Browne. They contend that the Civil Part presiding judge erred in denying their request to adjourn the eleventh scheduled trial date; that the trial judge erred in directing a liability verdict, after the defense produced no witnesses to contest plaintiffs' testimony that defendants' vehicle caused the accident by going through a red light; and that the trial judge should have remitted the jury verdicts of approximately $500,000 for Bronwen and about $400,000 for Novena for their spinal herniated disc injuries. Finding no merit in any of these contentions, we affirm.

I

The accident occurred on May 21, 2003. At the trial, both plaintiffs testified that their vehicle was stopped at a red light and only moved forward into the intersection when the light turned green. According to Novena Browne, the driver, when her car reached the middle of the intersection, she saw defendant's van approaching from the right, but believed that he would stop because he had the red light. Instead, defendant's van went through the red light and hit her car on the passenger side. As a result, the Browne vehicle was totaled, and both sisters were taken by ambulance to the hospital.

Placing her damages in context, Novena Browne, a forty-nine year old Newark resident, testified that just prior to the accident, she was in her last semester of a course of study to become an auto mechanic. Due to the physical limitations caused by her accident injuries, she was unable to pursue that career path, and at the time of trial she was working as a clerk at a Wal-Mart store.

Novena's sister Bronwen, who lived with her, suffered a similar disastrous limitation on her career path. She testified that she missed more than a year of work due to the accident injuries. She also testified that she was trained as a registered nurse but was unable to go back to that career because of the limitations caused by her injuries. Instead, she was answering telephones at a Home Depot store.

As further discussed below, plaintiffs produced medical evidence that they incurred serious injuries in the accident, including herniated spinal discs. Both plaintiffs testified to the severe and continuing pain they suffered and their unsuccessful efforts at treatment. They also detailed the significant impact on their daily life activities caused by their daily pain and their physical limitations.

Both plaintiffs produced testimony from a chiropractor and a board certified orthopedic surgeon detailing plaintiffs' injuries, the unsuccessful efforts at treatment, the permanency of the injuries and the accompanying pain they caused, and the limitations those injuries would place on plaintiffs' life activities. Plaintiffs' experts also confirmed that the injuries, including the herniated discs, were caused by the accident.

Plaintiffs first presented the testimony of their treating chiropractor, Frank Belverio. Belverio testified he began treating Novena Browne on May 28, 2003, because she had "complaints and injuries to her neck, her right shoulder, her upper back, her lower back, and her right leg." Upon her initial appointment, Novena reported "marked headaches, neck pain, shoulder stiffness, mid back tightness, rib sprain/strain with pain, lower back pain, leg pain, lumbar spasms." After doing a full chiropractic examination, Belverio found that Novena "did have a decreased range of motion in the cervical region, also in the lumbar region." Belverio noted that "most of her spasms and pain were coming from the right side . . . and it was marked." At that time Novena reported her pain as a nine on a scale of one to ten. Belverio testified that Novena's complaints were "related to the accident" one week earlier.

Belverio treated Novena three times a week for the next few months. Her treatments included chiropractic adjustments, muscle stimulation, massage, traction, and strengthening exercises. In August 2003, Belverio reduced her treatments to twice a week. At that time, Novena was still experiencing spasms and pain, although her reported pain level had decreased to a seven out of ten. Belverio testified that Novena's radiating pain and reported arm tingling were "indicative to either a disc herniation or a disc bulge."

In September 2003, Belverio reduced Novena's treatments to once per week. At that time, she was still experiencing neck pain, back tightness, arm tingling, lower back pain, sciatica and lumbar spasms. Upon termination of her treatment with Belverio in December 2003, Novena continued to report similar symptoms.

At some point during Novena's treatment, Belverio sent her to have an MRI, which he reviewed. Belverio referred Novena to a neurologist, Dr. Nalini Prasad, to determine if Novena had any nerve damage. Belverio testified that Novena's findings on the neurological tests were "positive" for her neck and her back. Belverio referred Novena to an orthopedic surgeon because she was still in pain and had "disc injuries." Belverio testified that Novena suffered permanent injuries to her neck and lower back as a result of the accident, which will require future medical care.

Upon cross-examination, Belverio admitted that there had been some improvement in Novena's range of motion during treatment. Belverio also admitted that reading MRIs is not within the scope of chiropractic practice, and that he is not trained to do so. Belverio opined that only trauma can cause bulging or herniated discs, and that the normal aging process would not cause those conditions. Regarding his treatment of Bronwen, Belverio testified that he first saw her on May 28, 2003. Belverio detailed the complaints that Bronwen reported to him, including "neck pain, right shoulder pain, right shoulder stiffness, rhombic flare-ups, mid back pain, upper back pain, lower back stiffness, decreased cervical range of motion, cervical spasms, [and] lumbar spasms." Belverio testified that Bronwen's polymyositis, which is a muscle disease, would not affect a problem with a disc in her back. In distinguishing the conditions, Belverio gave the jury a detailed description of a bulging or herniated disc.

Belverio also referred Bronwen for an MRI and neurological testing. Belverio review the MRI, and determined that there were "disc bulges found in multiple levels," and a herniated disc in Bronwen's lower back. Belverio explained that these conditions put pressure on the spinal nerves, resulting in pain consistent with Bronwen's reported symptoms. Belverio testified that the results of neurological testing indicated that Bronwen had "nerve root irritation."

Belverio concluded that Bronwen suffered permanent injuries as a result of the accident. Upon cross-examination, Belverio acknowledged that Bronwen had some improvement during treatment. While Belverio maintained that Bronwen's polymyositis did not affect her disc injuries, he admitted that it could affect "some muscle weakness that she did have." Belverio also acknowledged that his report did not mention that Bronwen should refrain from going to work during the course of her treatment.

In response to a juror question, Belverio indicated that both patients had gotten the maximum benefit that he could provide as a chiropractor at the time they discontinued treatment, and that he referred both to an orthopedic surgeon. Belverio stated that the chiropractic treatments had probably been "60 percent, 70 percent" effective in relieving the plaintiffs' pain. Upon redirect after this question, Belverio clarified that patients with disc herniations see less successful results from chiropractic treatment than patients without disc injuries.

Plaintiffs also introduced the de bene esse videotaped deposition testimony of Dr. Jerald P. Vizzone, an expert in orthopedics and orthopedic surgery. Vizzone first saw Novena Browne on April 26, 2004, and at that time Novena reported "continued neck and low back pain," which "radiated to the left upper . . . extremity, and both lower extremities, with numbness and tingling . . . to all extremities." Vizzone stated that tingling and numbness were indicative of a pinched nerve, which was frequently related to herniated discs in the spine. After an examination of Novena's neck region, Vizzone noted that she "demonstrated some significant spasm. Her reflexes were somewhat diminished . . . . She had pain on range of motion, and the range of motion of the neck or cervical spine was restricted." Vizzone testified that the exam was "indicative of some form of neurological issue or herniated [disc]. The spasm is indicative of some injury or ongoing chronic issue that's causing the nerves to be inflamed and reacting in spasm," which were consistent with the complaints that Novena had reported.

Vizzone stated that his initial review of Novena's MRI revealed herniations in two discs and two disc bulges in her cervical spine. Vizzone treated her with anti-inflammatory medications, and referred her to Dr. Vassallo, who administered two epidural steroid injections into Novena's spine. Although Novena reported temporary relief from the injections, the pain eventually returned.

Vizzone stated that the failure of the epidural treatment meant that "she either was looking at living with this for the rest of her life or having surgery." Because he was considering surgery, Vizzone ordered another MRI to review more current information.

Vizzone examined Novena again on August 6, 2004, and noted no drastic differences. Based on the new MRI, Vizzone opined that Novena had disc herniations and disc bulges in her lumbar and cervical spine. Vizzone explained to her that "she had undergone a full course of non-operative or conservative care, and the only treatment options remaining would be surgical." Vizzone explained the risks of operating, including "pertaining to spine surgery, you always risk injuring the nerves permanently, damaging the nerves permanently, causing scar formation around the nerves that is very, very difficult to treat. Risk of blood loss, risk of blood clots, risk of death." Vizzone also explained that the risks of not operating involved "getting progressively worse."

Vizzone saw Novena again on August 27, 2004, and although she still reported pain, she was "extremely apprehensive with regards to surgery and decided not to pursue it." Vizzone saw Novena again on December 28, 2005, and he testified that she "was getting progressively worse." He again discussed surgery and referred her for new nerve tests and MRIs, which were consistent with his diagnosis. Vizzone saw Novena for the last time on March 8, 2006, where he once more discussed her options for surgery. At that time, Novena reported similar symptoms that continued to get worse.

Using Novena's MRIs, Vizzone described her injuries and explained why he concluded that they were caused by the accident rather than the normal aging process. Vizzone testified that without surgery Novena will experience permanent symptoms similar to the ones she has been reporting, that could likely worsen, and that even with surgery, her result "may be more liveable, but . . . not normal."

With regard to Bronwen, Vizzone testified that he first saw her on July 17, 2003. Bronwen complained of "neck and low back pain with numbness and tingling and pain radiating to the extremities." After reviewing MRIs of Bronwen's neck, shoulder and back, Vizzone concluded that Bronwen "had multiple disc bulges in the cervical spine secondary to the motor vehicle accident, cervical radiculopathy from the . . . disc bulges, disc herniation in the lumbar spine . . . and lumbar radiculopathy from the disc herniation of the lumbar spine following the accident." Vizzone explained radiculopathy as a "pinched nerve."

Vizzone opined that Bronwen's injuries resulted from the trauma of the accident. He explained that Bronwen was only thirty-three years old at the time he first treated her, and at that age she was less likely to have developed a disc herniation without some sort of trauma. Vizzone saw Bronwen again on April 26, 2004, and she had similar complaints at that visit. Vizzone discussed epidural injections with Bronwen, but she did not want to undergo the treatment. Vizzone also discussed surgery, but Bronwen did not want to undergo surgery because of her other medical problems. Vizzone opined that Bronwen's polymyositis was unrelated to her neck and back injuries, but that the interaction of the conditions "makes a difficult situation impossible," because he would be more hesitant to operate on someone with polymyositis.

Vizzone opined that a patient with Bronwen's conditions could require three to six months out of work for recovery. He testified that her injuries would make it difficult for her to function as a nurse because of the nature of the work, including the need for repeated bending and lifting. Vizzone further opined that Bronwen's injuries were permanent, and resulted from the car accident.

The defendants offered the testimony of Dr. Allen S. Josephs, an expert in neurology. Josephs examined Novena on February 15, 2006. She described similar complaints to those to which the other experts testified, and Josephs noted her history of diabetes and hypertension. Josephs found it significant that Novena reported sleeping well, because people with back and neck pain often report restless sleep. Josephs testified that his examination revealed that Novena had diminished reflexes and decreased sensation in her ankles, but he opined that these were caused by her diabetes.

Josephs later reviewed Novena's MRIs, and he opined that based on the MRIs she did not have any herniated discs. Josephs testified that Novena suffered from a degenerative disc in her back which was not caused by the accident, and that there was no evidence of nerve compression. Josephs explained that, contrary to testimony of the plaintiffs' experts, the disc in Novena's lower spine began to degenerate before the others because discs in the lower back do more work twisting and bending the spine. Josephs described the MRIs as demonstrating that Novena's spine was "perfectly fine for someone in [her] forties." Josephs continued to explain that the MRIs revealed that Novena's spine did not show any injuries or problems other than what happens as a result of the normal aging process.

Josephs opined that the idea of surgery for Novena would be "ridiculous," and he disagreed that it was warranted "[a]s strongly as I could possibly disagree." Josephs stated that weight loss, physical therapy and water therapy could be very helpful for back pain, and that Novena had not undergone any such treatment.

Josephs concluded that Novena did not sustain a permanent neurologic injury as a result of the accident. Upon cross-examination, Josephs acknowledged that he examined Novena once for a period of fifteen minutes. Josephs opined that Novena's weight may be responsible for her back pain, but he could not determine if the pain was caused by the accident. Josephs did acknowledge that Novena was reportedly asymptomatic before the accident, and that "if she was asymptomatic before the accident, I would have to assume that her symptoms are related [to the accident]." Josephs reiterated that while Novena's symptoms could be related to a herniated disc, his opinion was that they were more likely caused by her diabetes.

Josephs also testified that he examined Bronwen on September 13, 2005, and she described her complaints. Josephs noted that her reflexes were generally decreased, but he noted no spasms in her cervical or lumbar spine. Josephs reviewed Bronwen's MRIs, and noted that she had a herniated lumbar disc. However, Josephs opined the herniated disc "could have been from the accident," but that it "probably wasn't, only because she didn't have the symptoms of having had an acute herniation where she would get that sciatica into the appropriate leg, the right leg."

Josephs concluded that Bronwen did not sustain permanent injury as a result of the accident. Upon cross-examination, Josephs admitted that after discussing her history, his examination of Bronwen lasted twenty minutes. Josephs stated that generally, individuals in their early thirties would not have a degenerative disc, but that Bronwen's weight was an aggravating risk factor. Josephs opined that it was possible for herniated discs to improve over time.

In their summations, both plaintiffs' attorneys presented a time-unit argument, Rule 1:7-1(b), highlighting the extended future periods for which plaintiffs would likely experience pain and suffering. Evidently crediting the testimony of plaintiffs and their experts over defendant's expert, the jury returned substantial damages verdicts for both plaintiffs. Defendants moved for a new trial or for remittitur. Judge Goldman, the trial judge, denied the new trial motion as completely without merit. Citing Jastram v. Kruse, 197 N.J. 216 (2008), he also denied the remittitur motion, finding that the damages were consistent with plaintiffs' "very serious injuries," and consistent with the amount found reasonable for a similarly-injured plaintiff in Jastram.

II

On this appeal, we first address defendants' contentions that: the trial court should not have directed a liability verdict in favor of Novena Browne, the verdict was against the weight of the evidence, and the damages should have been remitted. Having reviewed the record, we conclude that all of these arguments are without merit.

The only trial evidence on the liability issue was that Novena Browne made at least a cursory observation at the intersection, she had the green light, and defendant drove through the red light causing the accident. See N.J.S.A. 39:4-105; Rekiec v. Zuzio, 132 N.J. Super. 71, 79-80 (App. Div.), certif. denied, 68 N.J. 143 (1975). There was not a scintilla of evidence that Novena Browne was negligent, and a jury would have had to speculate to find otherwise. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).

Further, the damages verdict was not against the weight of the evidence and there were no meritorious grounds on which to remit the damage awards. Giving plaintiffs the benefit of all favorable inferences to be drawn from the evidence, they suffered serious and permanent injuries which will limit their career paths and cause them a lifetime of pain. See Jastram, supra, 197 N.J. at 229. Resolution of the damages issue required the jury to determine whether to believe plaintiffs' experts or the defense expert, and whether to credit plaintiffs' testimony about their pain and suffering. We find no basis in this record to disturb the jury's evident determination to believe plaintiffs and their experts.

Like the trial judge, we cannot act as a "thirteenth juror." Id. at 231. Whether we would have awarded the same amount or a higher or lower award is not the issue. This verdict was neither shocking nor excessive. Ibid. As Judge Goldman accurately observed, plaintiffs incurred permanent injuries which were more serious than those suffered by the plaintiff in Jastram, a case in which the Court held there was no basis to remit a $500,000 damage award. Id. at 231-35. Accordingly, the trial court correctly denied the remittitur motion.

III

We next address defendants' contention that Judge Codey, the Civil Part presiding judge, should have granted the adjournment application which they first presented to the court on January 12, 2009, the scheduled day of trial. We review Judge Codey's decision for abuse of discretion, and we find none. See State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971); Vargas v. Camilo, 354 N.J. Super. 422 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003).

To put the matter in perspective, January 12, 2009 was the eleventh scheduled trial date of a 2005 case that concerned an accident that occurred in 2003. Based on defense counsel's earlier representation that he was ready for trial, plaintiffs had put their experts on notice to appear for the January 12 trial and were otherwise prepared to go forward. The defense did not file any certifications in support of the adjournment application. However, counsel represented to Judge Codey that during the preceding week, Edwards had contacted the attorney and advised him that he was going to California to work on a project for a month and would not be available to appear at the trial.

Counsel presented no information concerning any efforts his office had made to secure Edwards' presence in New Jersey or to obtain his videotaped testimony in California. Nor did counsel explain why, in lieu of Edwards' testimony on the issue of liability, he could not present testimony from the passenger who had been riding with Edwards at the time of the accident. Judge Codey denied the adjournment due to the age of the case and plaintiff Bronwen Browne's objection, but he moved the trial back one day when advised that counsel was feeling unwell.

At the pre-trial conference on January 13, and again just before the trial commenced on January 14, Judge Goldman, the assigned trial judge, urged the defense to try to produce Edwards. He noted the lack of evidence that Edwards was in California and that despite Edwards' phone call to his attorney, Edwards could be "in Hawaii" on vacation or elsewhere. Nonetheless, assuming that Edwards was working in California, the judge suggested that the defense offer to compensate Edwards for any lost work time and produce him for the trial. The defense declined to do so.

The judge next indicated that he would adjust the trial schedule so the defense could fly Edwards to New Jersey from California over the upcoming Martin Luther King Day weekend and present his testimony on the following Tuesday. Defense counsel declined this offer. Contrasting with the defense's complete inflexibility, when plaintiffs learned during the trial that one of their experts might be unavailable to testify as expected on Friday, January 16, 2009, they made arrangements to take his de bene esse videotaped deposition on Friday afternoon when the trial would not be in session.

Absent exceptional circumstances, not established here, a party seeking a trial adjournment must submit that request in writing "as soon as the need is known" but not "later than the close of business on the Wednesday preceding the Monday of the trial week." R. 4:36-3(b). Contrary to the Rule, defendants waited until the day of trial to request an adjournment.

As we stated in Vargas, supra, 354 N.J. Super. at 431, "[c]alendars must be controlled by the court, not unilaterally by the defense, if civil cases are to be processed in an orderly and expeditious manner." Defendants offered no sensible explanation for their failure to produce Edwards' testimony. This was the eleventh scheduled trial date, and the injured plaintiffs were entitled to their day in court. Under all the circumstances, we find no abuse of discretion in Judge Codey's decision to deny the adjournment.

Affirmed.

 

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A-3873-08T2

March 15, 2010