JOHN McCUTCHEN v. MENG WANG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4291-09T2

JOHN McCUTCHEN,

Plaintiff-Respondent,

v.

MENG WANG,

Defendant-Appellant.

________________________________________________________________

April 26, 2011

 

Argued April 5, 2011 - Decided

 

Before Judges Wefing, Baxter and Hayden.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1664-07.

 

Eugene M. Purcell argued the cause for appellant (Purcell, Mulcahy, O'Neill & Hawkins, L.L.C., attorneys; Mr. Purcell, of counsel and on the brief).

 

Roy H. Mossi argued the cause for respondent (Sheffet & Dvorin, PC, attorneys; Mr. Mossi, on the brief).

 

PER CURIAM

Defendant Meng Wang appeals from a $250,000 judgment against him, and from the Law Division order denying his motions for a new trial, for judgment notwithstanding the verdict (JNOV) or for remittitur. We reject his arguments and affirm.

I.

On February 10, 2005, plaintiff John McCutchen was proceeding on Truman Road in Edison Township, when the vehicle operated by defendant, Meng Wang, made a left hand turn in front of him, causing a collision. The next morning, plaintiff felt pain in his lower back and "tingling" in his shoulder, left arm and left thigh. For the first five weeks after the accident, he did not consult a physician because he "came from a family . . . [that] believed in . . . home remed[ies]." When the pain and discomfort had not subsided by March 15, 2005, plaintiff consulted Dr. Mark Friedman, who sent him for an eight-week course of physical therapy and prescribed pain medication. Although plaintiff felt better for a while, "the pain came back again."

Plaintiff's insurance carrier recommended that he consult Dr. Rangala, who, like Dr. Friedman, recommended physical therapy. When asked on direct examination at trial how many physical therapy sessions he had undergone, plaintiff responded that his insurance carrier limited the number of physical therapy sessions he could attend, and ultimately he had none at all:

Q: And how many visits did you get -- did you make there? More or less.

 

A: Well, they -- I felt that they would accept my health coverage, but they . . . didn't. So, during that time when . . . I was there . . . they wouldn't accept my health coverage.

 

Q: Did they get you therapy for some amount of time before that? Same type of therapy?

 

A: They didn't give me any -- any at all.

 

Q: They did not?

 

A: No.

 

Q: Okay. But they gave you x-rays, and at some point did you have an MRI?

 

A: That was basically Dr. Rangala. . . . But what happened, . . . they explained to me, I had to pay that out of my pocket for the -- they wrote up --

 

At that point, defendant objected and complained about the comments regarding the coverage limits imposed by plaintiff's insurance carrier. During a sidebar discussion, the judge agreed with defense counsel that because plaintiff's complaint sought damages only for pain and suffering, and not for economic loss such as medical expenses, any costs plaintiff incurred in paying for his own medical treatment were irrelevant. After instructing plaintiff to "listen carefully" and limit his answer to the question asked, the judge instructed the jurors that plaintiff was not seeking reimbursement for medical expenses, lost wages or property damage, and therefore they should disregard the testimony concerning any out-of-pocket expense plaintiff incurred.1 The judge instructed the jury:

This is a damage[s] only case. In other words, liability is stipulated to. This is a situation where the [j]ury is resolving the issue [of] damages. However, what's not before you, and what you don't need to consider or resolve, is the issue of economic damages.

 

In other words, there's not [an] issue of medical expenses, lost wages, or property damage; all right? Those issues are not before you, and are not part of this case[.]

Plaintiff testified about the problems he continued to experience three years after the accident, which included: pain on the left side of his head, shoulder and back; a tingling sensation and numbness in his left arm and leg if he sleeps on his back; difficulties in engaging in sexual intimacy with his wife; inability to mow the lawn; problems playing with and caring for his five-year-old grandson, whom he and his wife had adopted; and difficulties performing some of the strenuous tasks required of him as a maintenance mechanic at Rutgers University.

At the time of trial, plaintiff was seventy-one years old but insisted that his age was not a factor in his difficulty performing strenuous tasks at work, because before the accident, he was able to do everything that was required of him, including bending and lifting while engaged in electrical, plumbing and carpentry work. After the accident, however, when called upon "to do something that might give [him] a problem," plaintiff was forced to seek the assistance of a younger colleague who "respect[ed] [plaintiff] . . . like a father" and wanted to help plaintiff "hold on to [his] job" for another year until plaintiff would be eligible to retire with twenty-five years of service.

On cross-examination, plaintiff testified about an injury to his back sustained while "horsing around" with co-workers on the bumper of a vehicle, causing him to fall backward. He was also asked whether Dr. Rangala sent him for an MRI two years after the accident. In the course of his answer, plaintiff again referred to his insurance carrier's refusal to pay for further treatment:

Q: And it was Dr. Rangala who took the MRI[s] two years after this accident; isn't that correct?

 

A: Yes. Because I went back to Dr. Friedman to try to seek for other treatment [sic], and Dr. Friedman said he couldn't allow that because my [insurance] carrier wouldn't pay for it.

 

Defendant did not ask to have the statement regarding insurance coverage struck from the record.

Next, plaintiff presented the testimony of Arthur Tiger, M.D. by videotape. Prior to trial, defendant had moved in limine to bar the portion of Dr. Tiger's videotape testimony in which he opined that plaintiff would need future surgery. Defendant argued that such testimony was an inadmissible net opinion because there were no facts to establish whether plaintiff's pain was "real" or whether plaintiff would ever undergo, or need, the surgery. Defendant also argued that neither Dr. Friedman nor Dr. Rangala had ever recommended surgery when they treated plaintiff two years earlier. The judge denied defendant's in limine motion, reasoning that Dr. Tiger's examination of plaintiff, his review of the MRI films, his evaluation of the prior treatment rendered by Drs. Friedman and Rangala, and the history provided by plaintiff, provided a "factual basis" for Dr. Tiger's opinion that plaintiff would need surgery in the future.

Dr. Tiger testified at trial that he examined plaintiff and found that he "did not have full range of motion of his left shoulder as compared to his right," because he could not "put his arm completely behind his back and elevate it to . . . an area where he normally could." The examination of plaintiff's back revealed muscle spasms and "trigger-point tenderness in his lower back." Dr. Tiger also described "radiating pain going down into the region of [plaintiff's] left hamstring," and limited range of motion in the area of his lumbar spine. According to Dr. Tiger, the neurological exam revealed a herniated L4-5 disc, with resulting limited sensation in plaintiff's leg and weakness in his muscles. Based on his review of the MRI films, x-rays and his physical examination of plaintiff, Dr. Tiger opined that plaintiff had sustained permanent injuries to both his lower back and left shoulder as a result of the accident. He described the consequences of the herniated disc and shoulder injury as follows:

[H]e . . . has significant muscle spasm in his back, and has pain shooting down the L5 nerve root that is being pressed upon by the herniated 4-5 disc. . . .

 

In addition, . . . his shoulder . . . has what is called an impingement syndrome where there is pressure on the rotator cuff causing limited mobility, pain and discomfort.

 

Dr. Tiger also opined that plaintiff "would need further treatment in the future, including surgical decompression of his left shoulder, as well as surgery to his lower back" due to the accident. At the conclusion of the videotape testimony of Dr. Tiger, plaintiff rested.

Defendant called one witness, Joseph W. Dryer, M.D., who testified that plaintiff's present complaints were not caused by the motor vehicle accident with defendant, but were instead the result of spinal stenosis, degenerative spondylosis and a disc "protrusion" at L4-5, which were all part of "the natural aging process." Based on his review of the MRI films, x-rays and his physical examination of plaintiff, Dr. Dryer concluded that plaintiff did not have a herniated disc at L4-5, as Dr. Tiger had concluded, but instead only "disc protrusion," which was the result of aging, and not the automobile accident with defendant. Dr. Dryer also opined that although plaintiff sustained a strain of the cervical and lumbar spine, and a strain of his left shoulder and left elbow in the accident, "those were temporary injuries" from which plaintiff had "recovered fully." Dr. Dryer found "no evidence of a permanent injury or no permanent functional limitation from this accident."

In his summation, plaintiff's counsel asked the jury to consider whether they could remember "every bump, every scrape, every sprain" they had experienced over the past twenty years:

[L]et's take [plaintiff] first. And I started out in my opening by telling you that he had his share of bumps and grinds at work.

 

Now, he recalled one of them in 1999, almost 11 years ago now, where there was some horse play, and . . . with his colleagues, and I think he was jerked, and he had a little problem. And then he went back to work.

 

Now, I'm not going to ask for a show of hands, but the other incidents that were brought up quickly go from, I believe 13 to 20 years ago. And I would venture to say that if I asked each of you to raise your hand if you remembered every bump, every sc[r]ape, every sprain, you got in 1990, I bet you might not remember that.

 

And just because it's written down on a piece of paper in some employment file doesn't make it something that you would remember if you were the person. That just happens to be a record. So, think of that. Okay?

 

In another portion of his summation, plaintiff's counsel described some of the arguments advanced by defense counsel as a "smokescreen." Plaintiff's attorney stated:

[Defense counsel] went out of his way to put a chart up there to show days, time off, days here, days there. I didn't hear anything about any time taken off after all these supposed incidents that occurred 20 years ago. Why? He went back to work. There's no problem. A smokescreen.

 

Now, if . . . he's asking you to presume that . . . a bump or a grind in 1990, 93, 96 is the reason he went to a doctor or doctors, for a total, if you put them together for two years, that's farfetched. That's not credible. That's not reasonable for you to assume. That's a smokescreen.

 

Plaintiff's counsel also argued that plaintiff had not taken time off from work after the accident because "[h]e was self medicating" and chose to report to work because "he did not want to lose his job." He then asked the jurors to remember whether they had worked for fast food restaurants at some point in the past, stating:

If any of you when you were, maybe younger, worked for fast food places, or places - -

 

Defendant objected, arguing that plaintiff's counsel was impermissibly using a "golden rule" argument by asking the jurors to put themselves in plaintiff's situation. The judge sustained the objection, and instructed plaintiff's counsel that he was not permitted to "appeal to the jury's sensibilities" and there were other ways to "get the message across" without asking the jurors to remember injuries they may have sustained twenty years ago. Concerning the "smokescreen" reference, the judge warned plaintiff's counsel that he was "stepping over the line" because he was "mischaracterizing" the role of defense counsel.

After the jury was excused, defendant again raised the issue of plaintiff's counsel's statements during summation, arguing that defendant "would be well within [his] rights to ask for a mistrial," but instead of asking for a mistrial, counsel requested a curative instruction. The judge asked defense counsel to prepare such an instruction for the judge's consideration.

Before the jury returned to the courtroom, defendant withdrew his request for a curative instruction, arguing that no instruction could neutralize the prejudice. He instead argued for a mistrial, but asked the court to reserve its ruling until after the jury returned its verdict. The judge declined to defer ruling on the mistrial motion, observing that it was not appropriate to "put [the application for a mistrial] on a shelf depending on whether or not you like the verdict." The judge noted that although defense counsel was no longer asking for a curative instruction, the content of the comments was "rather innocuous," and only the form was objectionable. Overall, the judge found plaintiff's counsel's remarks to be "mundane" comments that did not rise to the level of "impassioning the jury and appealing to their individual passions." He accordingly denied defendant's motion for a mistrial. On January 13, 2010, the jury returned a verdict in favor of plaintiff in the amount of $250,000.

Shortly after the verdict, defendant moved for JNOV, for a new trial, or in the alternative, for remittitur. At the motion hearing, defendant first argued that plaintiff impermissibly used the "golden rule." The judge disagreed, finding there was nothing in counsel's argument that would "improperly impassion or inflame a [j]ury such that [its] . . . verdict should be set aside." Defendant next maintained that plaintiff's testimony about his health insurance was unfairly prejudicial, but the judge disagreed, noting that after defendant objected, he had given the jury a curative instruction. Further, the judge observed that the comments were "of no moment," and to the extent "there was any problem, it was cured."

Defendant also renewed his argument that the portion of Dr. Tiger's testimony about plaintiff's need for future surgery was a net opinion that should have been excluded. The judge disagreed and found that the opinion rendered by Dr. Tiger was based upon specific facts.

Additionally, defendant argued that the "smokescreen" statements during summation were prejudicial. After observing that defendant had not interposed an objection, the judge also noted that after he cautioned plaintiff's counsel in the middle of his summation, counsel had refrained from making any other arguments that were problematic. Ultimately, the judge concluded that the cumulative effect of all the comments in plaintiff's summation was insufficient to create a miscarriage of justice. He therefore denied defendant's motion for a new trial.

Defendant next argued that because the verdict was against the weight of the evidence, he was entitled to JNOV pursuant to Rule 4:40-2. The judge disagreed, reasoning that there was ample evidence in the record to support a finding of permanency, and whether the jury considered the injury to be a "lumbar strain and sprain" or "one herniation" did not matter so long as the evidence was sufficient to establish a permanent injury and the pain and suffering resulting from that injury. Reasoning that the jury "clearly . . . found that there was permanency here" and had "accepted plaintiff's testimony as to how . . . he was now limited," there was no basis for the granting of defendant's motion for JNOV.

Turning to defendant's request for remittitur, the judge relied on the Supreme Court's opinions in Jastram v. Kruse, 197 N.J. 216 (2008), and Johnson v. Scaccetti, 192 N.J. 256 (2007), as support for his conclusion that unless the size of the jury's verdict "shocks the conscience" a verdict of the jury, even a verdict that is "very generous," should not be disturbed. In denying the remittitur motion, the judge relied upon his conclusion that the testimony the jury heard from plaintiff "was very compelling." The judge described plaintiff as an "earnest[,] [s]traightforward, hardworking, salt of the earth kind of a guy. [A] [g]ood person." The judge reminded defense counsel that the verdict demonstrated the jury "clearly . . . found that there was permanency here"2 and "[c]learly . . . accepted his testimony as to how . . . he was now limited." The judge noted that "in addition to all the other things" that plaintiff had described, the one thing that was particularly compelling was plaintiff's account of how he and his wife had adopted their grandson and are now "mom and dad." The judge recalled that plaintiff "was visibly sobbing on the stand explaining to the jury, he can't pick up the boy anymore. He can't play with the boy anymore." The judge found that based upon all the testimony the jury had heard, the verdict of $250,000 was not "an unreasonable amount for that loss," and did not shock the conscience. For that reason, the judge denied the motion for remittitur.

On appeal, defendant argues: 1) because the verdict was both against the weight of the evidence and the result of cumulative prejudicial errors, the judge erred by denying defendant's motion for a new trial; 2) plaintiff's use of the "golden rule" argument required the granting of defendant's new trial motion; 3) plaintiff's testimony regarding his health insurance coverage was "improper and unduly prejudicial," requiring a new trial; 4) plaintiff's counsel's summation improperly disparaged defense counsel and defense witnesses, thereby denying defendant a fair trial; 5) Dr. Tiger's opinion regarding future surgery was not supported by the evidence and was therefore an inadmissible net opinion; and 6) the judge erred in refusing to grant remittitur.

II.

Defendant argues in point one that the verdict was against the weight of the evidence, and the judge therefore erred by denying his motion for a new trial. He asserts that the evidence did not support a verdict of $250,000, because it was a relatively minor car accident and plaintiff had a degenerative condition.

A judge should not grant a new trial unless "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); Dolson v. Anastasia, 55 N.J. 2, 7 (1969). The judge should weigh the evidence, but should avoid substituting his or her judgment for that of the jury. Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977). An appellate court applies the same standards used by the trial court in evaluating a new trial motion, "except that the appellate court must afford due deference to the trial court's feel of the case with regard to the assessment of intangibles, such as witness credibility." Jastram, supra, 197 N.J. at 230 (internal quotation marks and citation omitted).

Applying the standard articulated in Rule 4:49-1(a) and Dolson v. Anastasia, we are satisfied that the trial judge was correct in concluding that the verdict was not against the weight of the evidence. Plaintiff presented testimony establishing that five years after the accident, he was still suffering from considerable pain and experiencing significant limitations in his life's activities. Those limitations affected his work, his relationship with his wife and his ability to enjoy the company of his grandson. Plaintiff's proofs also established that he suffered a herniated disc as a result of the car accident with defendant. Although defendant presented evidence to the contrary, ultimately it was for the jury to decide what testimony it chose to believe. It is evident from the jury's verdict that it accepted the testimony of plaintiff and Dr. Tiger, and rejected the testimony offered by defendant's witness Dr. Dryer.

As to defendant's contention that the accident was "relatively minor," plaintiff's testimony described his body lurching violently to the right after his car was struck by defendant. Thus, viewing the testimony as a whole, we are satisfied that the jury's verdict was not against the weight of the evidence, no miscarriage of justice occurred, and the denial of defendant's motion for a new trial was proper. We therefore reject defendant's argument to the contrary in point one.

III.

In point two, defendant argues that plaintiff's use of the "golden rule" argument was prejudicial and tainted the entire proceeding. The use of a "golden rule" argument is prohibited because it encourages jurors to imagine themselves experiencing the same limitations, and suffering from the same discomforts, as the plaintiff. Geler v. Akawie, 358 N.J. Super. 437, 464 (App. Div.), certif. denied, 177 N.J. 223 (2003). Such an argument therefore creates the risk that jurors will "depart from neutrality" and decide the case "on the basis of personal interest and bias rather than on the evidence." Ibid.

Attorneys are afforded broad latitude in summation. Bender v. Adelson, 187 N.J. 411, 431 (2006). Although attorneys are "expected to be passionate" in summation, they must not "appeal[] to emotion." Jackowitz v. Lange, 408 N.J. Super. 495, 504-05 (App. Div. 2009).

Here, trial counsel asked the members of the jury to reflect on whether they would remember "every bump, every sc[r]ape, every sprain," and commented that he "bet [they] might not remember." Then, trial counsel asked the members of the jury to recall when they "were younger," or "worked for fast food places," but counsel never finished the thought because defense counsel objected. While these comments were asking the jury to imagine themselves in the plaintiff's situation, trial counsel was not asking the jury to imagine themselves experiencing the same pain and suffering plaintiff was experiencing. Nor did counsel ask the jurors to imagine themselves being forced to live with plaintiff's injury.

Rather, trial counsel was asking the jury to imagine how difficult it is to remember injuries from twenty years ago, to show that it was difficult for plaintiff to remember such events. We agree with the trial judge's determination that the substance of these comments was unlikely to inflame or impassion the jury, and that plaintiff's counsel's comments would not cause the jury to decide the case on personal interest or bias instead of the evidence.

In Geler, supra, the plaintiff's attorney encouraged the jurors to imagine themselves in the place of the child's parents and: receiving what was, in effect, a "death sentence for [their] child"; holding their child "to [their] breast one last time"; and "going to the cemetery and taking a shovel of dirt." 358 N.J. Super. at 465. Such comments "impermissibly invoked" the "golden rule." Ibid. This is not such a case. Although perhaps the comments could have been more artfully phrased, plaintiff's summation did not use a "golden rule" argument. We therefore affirm the judge's conclusion to that effect as well as his denial of defendant's motion for a new trial on that ground.

IV.

We turn to point three, in which defendant maintains that plaintiff's testimony regarding his insurance coverage was "highly prejudicial and inflammatory because of the false implication, whether intended or not, that plaintiff could not continue the medical care he supposedly needed [due to] lack of resources." As we have noted, plaintiff was asked on direct examination how many physical therapy sessions he completed with Dr. Rangala, and he was also asked whether he had had an MRI. To both questions, he responded that his insurance company would not pay for those items. When defendant objected, the judge instructed plaintiff to "listen carefully" and only answer the precise question that had been asked. The judge also provided the jury with the curative instruction that we have described, instructing them to disregard any testimony about plaintiff's out-of-pocket medical expenses in their consideration of the damages to which plaintiff might be entitled.

Although it might have been preferable for the judge to have also instructed the jury to avoid an emotional response to such testimony, we are satisfied that the judge's instruction to the jury at the end of the trial was sufficient to negate any sympathy that might have resulted from plaintiff's testimony about the difficulties he was encountering with his insurance company. In particular, during his final instructions to the jury, the judge directed the jurors "to weigh the evidence calmly, and without passion, prejudice or sympathy" because "[a]ny influence caused by these emotions has the potential to deprive both sides of what you promised them, a fair and impartial trial by fair and impartial jurors." As such, plaintiff's testimony concerning the coverage limitations imposed by his insurance company was not "clearly capable of producing an unjust result," Rule 2:10-2, nor did such testimony have the capacity to mislead the jury. We therefore reject the claim defendant advances in point three.

V.

In point four, defendant argues that the comments by plaintiff's counsel in summation impermissibly disparaged defense counsel and defendant's witnesses "and caused or contributed to denying defendant a fair trial." Personal attacks by attorneys on the opposing parties, their counsel, their witnesses and their opponents have the capacity to impermissibly affect the jury deliberations by "instill[ing] in the minds of the jury impressions not founded upon the evidence." Geler, supra, 358 N.J. Super. at 467 (quoting Botta v. Brunner, 26 N.J. 82, 98 (1958)). Counsel must avoid "wholesale disparagement through an unrestricted deluge of epithets." Ibid. In Geler, counsel's closing argument was filled with invective that included describing defendant's case as "rotten," "garbage" and "hogwash" that was designed "[t]o confuse, to muddle, put up smokescreens"; and describing defendant's testimony as an "outrage" and his expert as a "wily and wiggly" person whose opinion was "not worth a hill of beans." Id. at 468.

Our conclusion in Geler that a new trial was required was based, in large part, upon the trial judge's failure to have issued a curative instruction or to direct the offending attorney to refrain from continuing in that vein. Id. at 471. Here, in contrast, the judge offered to issue a curative instruction, but defense counsel withdrew his request for same, instead advising the judge that no curative instruction would be adequate and that only the granting of a mistrial would be a sufficient cure.

While the "smokescreen" argument advanced by plaintiff's counsel was improper because it had the capacity to unfairly denigrate defendant and his attorney, we view the remarks as harmless when viewed in the entire context of the trial. These were but isolated instances with no repetition after the judge directed plaintiff's counsel to refrain from the use of such argument. Moreover, because the comments were not sufficient to "clearly and convincingly" result in "a miscarriage of justice," the judge did not err in denying defendant's motion for a new trial. See R. 4:49-1(a). We thus reject the claim defendant advances in point four.

 

VI.

In point five, defendant argues that the judge erred by refusing to bar the portion of Dr. Tiger's testimony in which he opined that plaintiff would require future surgery on his lumbar spine and shoulder. An expert's opinion must be based on "facts, data, or another expert's opinion, either perceived by or made known to the expert, at or before trial." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). A "net opinion" is an opinion by an expert that is not supported by factual evidence, and such opinions are therefore inadmissible. Myrlak v. Port Auth. of N.Y. & N.J., 302 N.J. Super. 1, 8 (1997), rev'd on other grounds, 157 N.J. 84 (1999). An expert must give the "'why and wherefore'" supporting his or her opinion, "'not just a mere conclusion.'" Ibid. (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

Here, Dr. Tiger's opinion of plaintiff's injury and his need for future surgery was based upon his review of the x-rays and MRI films, and his examination of plaintiff. Therefore, his opinion was based on "facts, data, or another expert's opinion," and was not a net opinion. Rosenberg, supra, 352 N.J. Super. at 401.

Defendant also argues that because plaintiff never testified that he intended to undergo such surgery, the jury should not have been permitted to consider the testimony of Dr. Tiger that surgery was required, because such testimony had the capacity to "garner sympathy and improperly prejudice the jury." Our review of a trial court's evidentiary rulings is deferential, and we will not disturb a judge's refusal to bar evidence absent an abuse of discretion. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), except where the exercise of that discretion relies on an erroneous conclusion of law, in which case our review is de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We are satisfied, as was the trial judge, that the admission of Dr. Tiger's opinion that plaintiff would need surgery in the future was not an abuse of discretion even though plaintiff never agreed to undergo such surgery. Dr. Tiger's opinion must be viewed in the context in which that opinion was rendered. Dr. Tiger was simply observing that plaintiff's injury and symptoms were so serious that surgery was required, which was a method of underscoring the extent and nature of plaintiff's injuries. So viewed, the testimony at issue was not improper. We therefore reject the argument advanced by defendant in point five.

VII.

Finally, in point six, defendant argues that the trial judge committed reversible error in refusing to grant a remittitur. A trial court's authority to reduce the verdict of a jury is limited. Jastram, supra, 197 N.J. at 228. Before doing so, the judge must be satisfied that "[t]he verdict [was] 'wide of the mark' and pervaded by a sense of 'wrongness.'" Johnson, supra, 192 N.J. at 281 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). A trial judge's review of a damages award "must be grounded substantially in the 'totality of the evidence' in the record." Jastram, supra, 197 N.J. at 229 (quoting Baxter, supra, 74 N.J. at 598). Moreover, the evidence must be viewed in a light most favorable to the plaintiff. Ibid. (citing Johnson, supra, 192 N.J. at 281). "In particular, the judge is to 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." Ibid.

A trial court's role in assessing a verdict is to ensure that the damages awarded "encompass no more than the amount that will make the plaintiff whole, that is, the actual loss.'" Caldwell v. Haynes, 136 N.J. 422, 433 (1994). Even if the award is "generous," so long as it has "reasonable support in the record, the jury's evaluation should be regarded as final." Jastram, supra, 197 N.J. at 230 (internal quotation marks and citation omitted). Only when the verdict would constitute a manifest denial of justice, should a damages award be overthrown. Ibid. Applying these standards, we are satisfied the jury's verdict should not be disturbed and that the order denying remittitur should be affirmed.

While the jury award of $250,000 is no doubt generous, it does not shock the conscience. Plaintiff sustained a permanent injury from the car accident in question, as evidenced by the fact that at the time of trial in 2010 he was still suffering the same symptoms that developed immediately after the car accident in January 2005. The pain and limitations affect not only his lower back, but also his shoulder, and have resulted in pronounced limitations on his enjoyment of life, and on his ability to complete the tasks at work that he had been performing for the past twenty-four years. Under such circumstances, the award is not so excessive as to justify judicial intervention. We therefore affirm the denial of the remittitur motion.

A

ffirmed.

1 The jury was also not concerned with liability, as defendant had conceded full responsibility for the happening of the accident.

2 Because plaintiff had selected the verbal threshold in his automobile insurance policy, he was not entitled to recover damages from defendant unless he demonstrated that he suffered a permanent injury. N.J.S.A. 39:6A-8(a). The judge so instructed the jury in the jury charge.