LATOYA C. WILLIAMS v. DANIELE A. RESTAINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1718-10T3

LATOYA C. WILLIAMS,

Plaintiff-Respondent,

v.

DANIELE A. RESTAINO,

Defendant-Appellant,

and

NISSAN INFINITI, LTD.,

Defendant.

____________________________________________________________

November 21, 2012

Argued November 30, 2011 - Decided

Before Judges Graves, J. N. Harris, and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No.

L-3527-08.

Edward J. Rebenack argued the cause for

appellant (Rebenack Aronow Mascolo Miller,

attorneys; Mr. Rebenack, of counsel; Eric

M. Miller, on the brief).

Alex Lyubarsky argued the cause for

respondent (Wilentz, Goldman & Spitzer,

P.A., attorneys; Randall J. Richards, of

counsel and on the brief; Mr. Lyubarsky,

Amy Herbold, and David P. Pepe, on the brief).

PER CURIAM

Following a four-day trial, a jury awarded plaintiff Latoya Williams $1.2 million in compensatory damages for injuries she sustained in a motor vehicle accident. Defendant Daniele Restaino appeals from an order denying her motion for a new trial or, in the alternative, remittitur. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The accident occurred at approximately 12:46 a.m., on Sunday, July 23, 2006. Plaintiff testified she had "just passed the Union tollbooth" on the Garden State Parkway when she was struck from behind by a vehicle driven by defendant. Plaintiff described "a heavy impact," which caused her vehicle to go "around in circles" until it struck "some type of steel pole" located "on the right side of the Parkway." When the State Police arrived plaintiff declined medical assistance. Plaintiff's car sustained extensive damage and could not be driven.

Plaintiff testified she stayed in bed on Sunday because she "felt pain." On Monday, the pain was worse and plaintiff went to the emergency room at Mountainside Hospital. At the hospital, plaintiff complained of stiffness and pain in her lower back, neck, and shoulders, and radiating pain into her right leg. Plaintiff received an injection for the pain and was told to follow up with Dr. Robert Firetto, a chiropractic physician, if the pain and stiffness persisted.

On July 31, 2006, plaintiff went to see Dr. Firetto.1 Dr. Firetto testified that plaintiff complained of low back pain radiating into her right leg, neck pain, headaches, dizziness, nausea, nightmares, and upper back pain radiating into both shoulders. He stated that her intake form, which requested information concerning past and present health issues, indicated no prior history of neck or back-related problems. Dr. Firetto testified that the initial visit consisted of orthopedic and neurological examinations, and a series of range of motion tests. Dr. Firetto diagnosed plaintiff with "a cervical sprain/strain," which he described as "an overstretching of the muscles, ligaments, and tendons in the neck." He gave plaintiff a back brace and started her on a treatment plan of three visits per week for four weeks. Treatment consisted of "chiropractic manipulation or mobilization, traction, decompression, electric muscle stimulation, infrared heat, ultrasound, therapeutic exercise, and deep muscle massage."

After the initial four-week course of treatment, plaintiff was still experiencing neck pain that radiated into her shoulders and upper arms, and low back pain that radiated into her right leg. Following his examination of plaintiff on September 11, 2006, Dr. Firetto recommended she undergo a cervical MRI.

The cervical MRI was conducted on September 26, 2006. Dr. Firetto testified the MRI showed "a disc herniation at the C7-T1 area." He explained that whiplash-type injuries often occur in that area "because when you're restrained in your seat with a shoulder belt, and your hips are restrained, the only thing that gets to whip forward and backwards is your neck." Dr. Firetto testified that the automobile accident caused the herniation, and that the MRI results were consistent with his own findings.

In addition, due to plaintiff's low back pain, Dr. Firetto referred plaintiff for a lumbar MRI, which was conducted on October 27, 2006. According to Dr. Firetto, the lumbar MRI showed "a broad-base posterior disc herniation at L4-L5, and at L5-S1, [plaintiff] also had a broad-based disc herniation." Dr. Firetto also ordered an EMG that confirmed "a bilateral L5-S1 lumbar nerve root irritation."

Plaintiff was treated by Dr. Firetto approximately forty-nine times between July 31, 2006 and January 9, 2007. He concluded that plaintiff sustained permanent injuries as a result of the automobile accident, and that plaintiff's "prognosis was not good." According to Dr. Firetto, plaintiff "will have recurrent symptomatology of pain and limitation in range of motion in the future," and she will be "predisposed to arthritic changes in the future."

After plaintiff was discharged from Dr. Firetto's care, she continued to experience pain, and she testified that she saw other doctors, including Dr. Vonroth and Dr. Vizzone. Plaintiff was also referred to Dr. Allen Glushakow, a board-certified orthopedic surgeon.

Following his initial examination of plaintiff and his review of her treatment records, Dr. Glushakow recommended another lumbar MRI, which was conducted on May 16, 2008. Dr. Glushakow acknowledged that the radiologist that performed the second lumbar MRI did not find any herniations. Nevertheless, after personally reviewing the MRI, Dr. Glushakow concluded there was a herniated disc at L4-L5 and L5-S1.

Dr. Glushakow testified that plaintiff suffered permanent injuries as a result of the automobile accident on July 23, 2006. Moreover, using a shadowbox, Dr. Glushakow reviewed plaintiff's cervical and lumbar MRIs in the presence of the jury, and he identified plaintiff's disc herniations for the jury. Dr. Glushakow described plaintiff's injuries as "permanent anatomical defects," and he testified that plaintiff's prognosis was "[e]xtremely guarded."

When she testified on June 23, 2010, plaintiff said she was experiencing pain in her lower back, lower neck, and shoulders "several times a week." She also testified that her injuries restricted her activities. For example, she can no longer perform routine household chores, and she is unable to participate in other physical activities that she enjoyed prior to the accident like running. In addition, she testified that she always wanted to be a nurse, but she was forced to withdraw from nursing school because she experienced "severe back pain when [she] would try to help move a patient out of bed."

Defendant retained two physicians to examine plaintiff. Joel Weinstein, M.D., an orthopedist, conducted an examination of plaintiff on December 21, 2007, and Ivan Dressner, M.D., a neurologist and neuropsychiatrist, examined plaintiff on November 12, 2009.

Dr. Weinstein testified that his evaluation included a physical examination and a series of both subjective and objective tests. Based on his review of plaintiff's records and his physical examination, he concluded "there was no objective evidence of a permanent orthopedic impairment in the cervical spine, that is, the neck, the dorsal spine, the mid back, or the lumbar spine, the lower back."

On cross-examination, Dr. Weinstein testified that his examination was completed in approximately thirty minutes, and he acknowledged that he had not treated patients since 2001. His entire practice at the time of trial was devoted to conducting medical examinations for litigation purposes. He also acknowledged he testifies in an expert capacity on behalf of patients in medical malpractice cases, but that eighty percent of the examinations he performs are independent medical examinations for defendants.

Similarly, Dr. Dressner concluded that plaintiff only "sustained soft tissue injuries in [the] accident in 2006." He stopped treating patients in 2008.

Defendant conceded liability, but argued that plaintiff did not sustain any permanent injuries. In rendering its verdict, the jury specifically found that plaintiff "sustained a permanent injury proximately caused by the motor vehicle accident on July 23, 2006." In addition, the eight deliberating jurors unanimously determined that the sum of $1.2 million would fairly and reasonably compensate plaintiff "for her past, present, and future pain and suffering, disability, impairment, and loss of enjoyment of life."

Following oral argument on October 21, 2010, the trial judge denied defendant's motion for a new trial. The judge found that the jury verdict was "overly generous." But he also found that the verdict was not "so grossly excessive" or "shocking to the conscience" that it constituted "a miscarriage of justice."

On appeal, defendant argues she is entitled to a new trial "because the jury's verdict was against the weight of the evidence, shocks the conscience, and has resulted in a miscarriage of justice." In the alternative, defendant contends that remittitur is appropriate. We do not agree.

A motion for a new trial is addressed to the discretion of the trial judge. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). A judge may order a new trial when, "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. "In other words, the trial court must be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (citing R. 4:49-1); see also Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 533 (App. Div.) (stating that a new trial should not be granted unless the amount of damages awarded "is so disproportionate to the injuries and resulting disability as to shock the conscience and lead to a conviction that to sustain the award as rendered would be manifestly unjust"), certif. denied, 180 N.J. 355 (2004).

Moreover, pursuant to Rule 2:10-1, a trial judge's ruling on the issue of whether a jury verdict was against the weight of the evidence "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." Although we defer to the trial court with respect to intangibles not transmitted by the record, such as credibility, demeanor and "feel of the case," we must make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 361 (1979).

Remittitur is an alternative to ordering a new trial. He v. Miller, 207 N.J. 230, 248 (2011). It "describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001) (internal quotation marks and citation omitted). "In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award." Ibid. (citing Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987)). "In the absence of [plaintiff's] consent, a new damages trial is ordered." Johnson, supra, 192 N.J. at 281.

Use of remittitur "is encouraged both at the trial and appellate levels to avoid unnecessary expenses and delays of new trials." McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002) (citing Baxter v. Fairmont Food Co., 74 N.J. 588, 595 (1977)). "The power of remittitur is not to be used lightly, however, because [courts] repose enormous faith in the ability of juries to equate damages with dollars to 'make the plaintiff whole, so far as money can do.'" He, supra, 207 N.J. at 248 (citing Model Jury Charge (Civil), 8.11E). Thus, there is a presumption of correctness accorded to jury verdicts. Id. at 249.

In this case, based on our independent evaluation of the record, we agree that the verdict is generous. Nevertheless, we have concluded there is sufficient credible evidence to support the jury's verdict. Accordingly, we find no miscarriage of justice and no basis for a new trial or remittitur.

Affirmed.

1 Dr. Firetto is a board-certified chiropractic rehabilitation doctor. He has been licensed to practice chiropractic in New Jersey since 1986. In addition, he has been board-certified since 1995. Defense counsel did not object to his qualifications as an expert in chiropractic care.