MARK SCHIAVI v. PORT IMPERIAL FERRY CORP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2663-10T1

MARK SCHIAVI,

Plaintiff-Appellant,

v.

PORT IMPERIAL FERRY CORP.,

d/b/a NY WATERWAY, ARCORP

PROPERTIES AND BILLYBEY FERRY

COMPANY, L.L.C.,

Defendants-Respondents.

______________________________

March 14, 2012

 

Submitted February 28, 2012 - Decided

 

Before Judges Reisner, Simonelli and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-7188-08.

 

LaBarbiera & Martinez, attorneys for appellant (Luis A. Martinez, on the brief).

 

Thomas M. Rittweger (Hill Betts & Nash, L.L.P.),

attorney for respondents.

 

PER CURIAM

Plaintiff Mark Schiavi appeals from a December 8, 2010 judgment on his personal injury complaint against defendants, and from the trial court's December 17, 2010 order denying his motion for a new trial or for additur.

Plaintiff claimed that he fell and injured his ankle while boarding a ferry. Immediately after the incident, an emergency room physician diagnosed him as having a sprained ankle, but three days later another doctor found that plaintiff had a ruptured Achilles tendon that required surgery. On this appeal, plaintiff contends that the $5000 verdict returned by the jury for pain and suffering was against the weight of the evidence. He also contends that the defense was improperly permitted to argue that the rupture occurred some time after the ferry incident and was caused by defendant's gout or obesity, although the defense did not present expert testimony to support that theory. He contends that there was no proof that his gout or weight, or some later incident, caused the ruptured tendon. In a related argument, he contends there was no proof that later surgery, performed after he suffered complications from the first surgery, was unnecessary or improperly performed. Finally, he argues that the $5000 verdict was shockingly inadequate, contrary to the evidence, and justified additur or a new trial.

Having reviewed the entire record, we agree with the trial judge's conclusions that the jury could reasonably have found that plaintiff suffered only a sprained ankle in the ferry incident, and that the damage award was commensurate with that finding. We are unable to agree with any of plaintiff's additional claims of trial error. Consequently, we affirm.

I

 

Plaintiff, an attorney employed by an insurance company, had commuted by ferry from Hoboken to his job in Manhattan for nine years without incident. However, on September 25, 2006, he injured his left ankle while attempting to board the ferry LAGUARDIA at the Hoboken terminal. To board a waiting ferry, passengers cross a flat floating barge and step from the barge onto the ferry. Plaintiff claimed that as he stepped off the barge onto the ferry, the ferry suddenly dipped several inches below the level of the barge, and as a result, his left foot was caught between the ferry and the barge.1 He claimed this incident caused his Achilles tendon to rupture.

At trial, plaintiff recalled the incident:

I was stepping on the boat with my left foot and I had a visual where I was going to step. As I was stepping, I stepped on the boat, I didn't feel it there anymore, it dipped down. The boat then came back up. I was moving my right foot trying to get onto the boat. Something grabbed the back of my foot and I believe that I tugged once, it didn't come out. I tugged twice, and I think at that time felt a little twinge and was able to dislodge my foot and I went over and stopped myself, like, my hands hit the deck so I wouldn't fall. Then I felt my foot dangling. I felt like pins and needles. And I tried to put pressure on it, I couldn't. I flopped over to the front row of seats and, again, I tried to -- even put pressure on it from sitting down and I couldn't do that.

 

Plaintiff testified that after his injury one of the deck hands came over and asked if he required medical help. Plaintiff replied that he did not know but observed that he could not put "any pressure" on his foot. Plaintiff explained that he did not ask for immediate medical attention because "[a]t that point I didn't know what was wrong with me." He said that neither of the deckhands on the ferry assisted him.

Plaintiff recalled that he "hopped off the boat" before it departed to Manhattan and "went over to a bench that was sitting on the barge." He "felt a lot of pain." About ten to fifteen minutes later, a deckhand named Albert from another vessel asked plaintiff what happened. Plaintiff told him about his fall and said he was unsure if he needed help. The deckhand "went up to his captain" and "explained what happened." The captain "came down, shut his boat down and then went and he got . . . assistance." A representative from New York Waterway arrived and asked plaintiff "should we get an ambulance," and plaintiff agreed.

Plaintiff testified that he was taken by ambulance to St. Mary's Hospital in Hoboken, where an emergency room doctor diagnosed him as having a sprained ankle. While plaintiff told the doctor he had experienced a "flare-up" of gout prior to the accident, at the trial plaintiff insisted that he only had that one prior episode of gout. When asked on cross-examination if he had been taking a medication called Allopurinol "for years," plaintiff admitted that he had; asked if that medication was for gout, plaintiff claimed he took a lot of medications and had no idea why he was taking the Allopurinol.

Plaintiff testified that he was released from the hospital, and rested at home for two days before seeking additional medical care. He denied having any additional mishaps to his ankle while at home during that period.

The defense presented several witnesses who contradicted plaintiff's version of the accident. Deckhand Gerald Torres testified that not only was he present when plaintiff fell but that Schiavi, who weighed 295 pounds, fell on Torres and injured Torres' back. According to Torres

. . . I was keeping a count, and reminding people to watch their step as they board the vessel, and we were towards . . . the end of our boarding process when Mr. Schiavi came on the boat, and took a few steps onto the bow, and the next thing you know, he's falling -- it happened in a flash. Falling onto me. I caught him . . . he didn't trip . . . over anything. It was just pretty much he stumbled.

Torres was certain that Schiavi was "already on the boat" when he either tripped or stumbled. He recalled that Schiavi did not yell or scream, or make any sound of pain when he fell. Plaintiff did not respond to Torres' offer to summon medical assistance and refused to provide his name when asked. Torres testified that he saw plaintiff leave the ferry without assistance. Torres assumed that "he was okay" and "perhaps embarrassed" by the incident.

Torres then "went ahead and closed up the gates, finished up with a few passengers" as "it was rush hour." After his shift finished for the day, at approximately 10:00 a.m. that morning, Torres filled out an incident report pursuant "to company policy." He wrote the following:

Boat named LaGuardia, Terminal Hoboken, location of accident, Hoboken Terminal, New Jersey, Captain and crew, Ray Perez, Harvey Colon, Gerald Torres.

 

At 7:20, a gentlemen lost his balance, and tripped on the bow of the [boat] . . . I reached out and caught him before he fell to the ground . . . At the time, I asked him twice if he required medical attention, and both times he responded that he wasn't sure . . . Since the incident occurred, I have been experiencing pain in my lower back.

On the day of the incident, Raymond Perez was captain of the LAGUARDIA. Captain Perez testified that he has been serving as a captain of vessels for "about eight years" and had made the Hoboken-lower Manhattan run "many times." Captain Perez testified that, from his vantage point in the boat's control room about fifteen feet above the passenger entry line, he saw plaintiff fall. He testified that he "saw Gerry Torres" standing "on the bow, greeting the passengers, and taking the count" when "I saw Mr. Schiavi stumble into Gerry Torres as he got on the boat."

Captain Perez was unsure whether plaintiff "had one or two feet on the bow of the boat" when he stumbled. The captain thought he observed a height difference between the barge and the ferry when plaintiff fell; however, he was unsure whether the differential was "four or five inches" and it could have been "less" or perhaps "more." However, he was certain that there was "no movement of the boat" at the time plaintiff "stepped on board."

Captain Perez testified after plaintiff fell into Torres, he lost sight of the two men when they moved "towards the inside of the boat." However, he later saw plaintiff "walk off the boat without the assistance of Gerry Torres." He testified that on the day of the incident "it was a nice calm day on the river" and he did not see the "boat move at any time" nor did he "see any other vessel coming in."

Captain Perez testified that Torres later came to the wheelhouse to talk to him about the incident. Torres reported "that Mr. Schiavi did not give him any personal information, and he did not request any medical attention, nor did he say that he was injured." Captain Perez made a contemporaneous entry in the boat's log, where he wrote:

Heavy set man tripped on bow, caught by Gerry Torres. Did not give information and did not ask for medical attention.

Notably, both Perez and Torres explained that in order to keep the ferry boat stable against the barge, with no horizontal gap between the two, the ferry boat engine is kept revving and set on forward motion, so that the pressure of the boat s 2400 horsepower engine keeps the ferry pressed against the barge. All witnesses agreed that there was no "lip" on either the barge or the front of the ferry. Plaintiff claimed that his foot or leg above the ankle was caught between the barge and the ferry. Yet his foot and ankle showed no signs of any crushing injury.

In addition to presenting conflicting versions of the accident, the parties presented contrasting medical testimony concerning plaintiff s injury. At the hospital emergency room, plaintiff was examined by Dr. Achyut Gandhi, a board certified internist with fifteen years experience practicing emergency medicine. Defendants subpoenaed Dr. Gandhi to testify as a fact witness, rather than as a paid expert.

In describing his medical history, plaintiff told Dr. Gandhi that he had a history of gout and had "experienced a recent flare-up of gout."2 Describing his injury, plaintiff complained of pain in his left ankle. He characterized the pain as "dull, with no radiation," with a pain level of "number seven," with "ten being the highest . . . level of pain." Plaintiff also told a nurse that the pain was like "pins and needles." Dr. Gandhi testified that, on examining plaintiff s ankle,

[h]e had tenderness on flexion at forty degrees. Pain or tenderness at 20-degrees inversion, 30-degrees eversion. Tenderness in the left malleolus and posterior ankle. [Moderate] swelling, normal pulses and sensation. No ecchymosis tenderness, no break, normal toe movements.3

The doctor explained that "flexion" meant moving the foot up, "eversion" meant moving the foot to the outside, and "inversion" meant moving it to the inside. In other words, plaintiff was able to move his left ankle and foot up and down and from side to side. The doctor performed a "Thompson" test, which was "the clinically-accepted practice for determining whether or not there s been a break or rupture in the Achilles tendon." He found no rupture. He also examined the left Achilles tendon for a possible rupture by palpating it "[f]rom the calf down" to the ankle, looking for a gap or break in the tendon. His examination revealed no tenderness or any evidence of rupture.

Dr. Gandhi also ordered an x-ray of plaintiff's left foot "to make sure that there's no fracture or dislocation." The x-ray revealed only that plaintiff suffered from longstanding "degenerative changes in his left ankle." On cross-examination, Dr. Gandhi agreed that an ultrasound was "probably" the best way "to diagnose a partial tear or complete tear of an Achilles tendon" but that test was not performed.

Dr. Gandhi diagnosed plaintiff as having a sprain of the left ankle. Plaintiff was given an air cast and crutches to assist walking with his left foot, and the doctor prescribed Motrin and Tylenol with codeine for pain. The doctor told plaintiff "to keep his left foot elevated" and "to put ice on the left foot and ankle every ten to fifteen minutes." He also recommended medication to keep plaintiff s high blood pressure under control, and advised plaintiff to follow up with his private physician. Dr. Gandhi recommended that plaintiff stay home from work for "three days." After about two hours in the emergency room, Mr. Schiavi was discharged around 10:30 a.m.

Plaintiff testified that from September 25, 2006, until September 27, 2006, he remained at home lying on a couch with his foot propped up. When he did move around he relied on his crutches. Plaintiff insisted that he did not fall while at home, go running or engage in any other activity that further injured his ankle. Due to the continuing pain in his ankle, plaintiff consulted Dr. Michael Gross, an orthopedic specialist on September 27, 2006.

Called as plaintiff's expert witness, Dr. Gross testified that plaintiff came to his office on September 27, 2006, complaining of an injury to his left ankle due to a fall while he was stepping onto a ferry. Upon examining his calf and ankle, Dr. Gross discovered that plaintiff s left Achilles tendon was ruptured. He opined that Dr. Gandhi's initial diagnosis of an ankle sprain was incorrect because the emergency physician had incorrectly applied the Thompson test to the wrong location on plaintiff s leg.

Dr. Gross performed surgery to correct the injury and repair plaintiff's tendon. He testified that the surgery was "uneventful" and there were "no complications." The doctor recalled from his records the result of plaintiff's first post-operative visit:

My exams showed him to have a normal, clean and dry incision. He was intact neurovascularly, which meant his circulation was good, and he had good feeling in his foot and toes. And everything seemed to be doing well.

 

However, during plaintiff s second post-operative visit on October 16, 2006, Dr. Gross observed that he "was having . . . wound maceration," i.e., "redness" and irritation around the edges of the wound. Dr. Gross told him to "leave the splint and the bandages off . . . to allow [the wound] to really dry . . . and to come back . . . [in] one week."

On October 23, 2006, plaintiff returned to Dr. Gross for a wound examination. Dr. Gross found the surgical wound "was closing up and . . . new cells were growing in. It was healing." Dr. Gross saw plaintiff on November 13, 2006, and he observed plaintiff was again having "skin problems . . . [related to] a superficial infection . . . and put [him] on antibiotics." The doctor opined that infections of this type are "one of the most frequent complications." He prescribed medication to treat plaintiff's skin irritation. Dr. Gross testified:

The circulation in that area is very poor. You have to be very vigilant about wound breakdown.

Again, Mr. Schiavi was diabetic. He was overweight. So those put him at further risk for those complications after surgery, and that's why we were watching it very carefully.

In March 2007, Dr. Gross observed "there was a suture edge in the wound" and that a piece of free suture from the repair had broken free, and [Schiavi's] body was rejecting it, and it wore through the skin." Dr. Gross thereupon "pulled the sutures out" and started plaintiff on "antibiotics to make sure there wouldn't be an infection; and, again, watched him carefully."

Plaintiff last visited Dr. Gross on July 26, 2007. The doctor noted at the time "the wound was clean" and plaintiff "was doing fairly well," although "he still had weakness" and "some reduced motion, particularly in dorsiflexion, which is bringing the toes up towards the head, and that's typical of this injury." Dr. Gross testified that "to a reasonable degree of medical certainty," plaintiff suffered "a permanent injury to his ankle" in the form of "permanent skin changes and scarring on" his ankle as well as "some permanent pain in the back of the ankle."

On cross-examination, Dr. Gross admitted that having gout was a risk factor for developing a torn Achilles tendon, although he insisted it was highly unlikely that a rupture would develop spontaneously without an injury. He also opined that a gout attack was quite painful and if it occurred "in a specific area, it's not something you'd ever forget having." Defense counsel also confronted Dr. Gross with plaintiff's medical records from September 14 2006, which showed that plaintiff was treated on that date for an attack of gout, which caused "left ankle pain and swelling" and difficulty walking. However, Dr. Gross noted that the examining physician on September 14 did not diagnose a ruptured Achilles tendon.

On April 24, 2008, about a year and half after the ferry incident, plaintiff went to see Dr. Paul Kovatis, "an expert in the field of orthopedics and specifically ankle and the foot." Plaintiff explained to the doctor he was "having ongoing problems with his ankle." Dr. Kovatis examined him and concluded: "It was obvious . . . he had undergone a reconstructive procedure to repair an Achilles rupture and that he was having ongoing problems." He observed that "non-absorbable stitches" used during Mr. Schiavi's prior surgery were "literally coming out of the back of his heel."

On July 9, 2008, Dr. Kovatis conducted surgery on Mr. Schiavi's ankle under general anesthesia because he was "concerned that there might be something going on deeper, or there might be more stitches coming out, or maybe a process that we're just not seeing that needs to be cleaned out." While the surgery did not reveal any signs of infection, Dr. Kovatis said he found "suspicious tissue and fluid" which he sent off for analysis. Asked by plaintiff's counsel whether the first surgery performed by Dr. Gross wasn't done properly, he replied: "It's hard to say . . . Sometimes repairs just fail."

While plaintiff at first seemed to recover, by August 28, 2008, "another spitting suture" was "worming itself out of the heel." Dr. Kovatis once again "cleansed" the area and "made the ankle look nice and healthy." On December 11, 2008, plaintiff returned to Dr. Kovatis complaining of "pain on the inside part of his ankle," in an area different from where he had been treated for his ruptured tendon. After examining plaintiff's ankle, Dr. Kovatis diagnosed "tendinitis" in the "posterior tibial tendon." He recommended that plaintiff use "an orthotic or an insert in his shoe" to correct for the gait abnormalities related to the accident and subsequent surgeries that might be causing his tendon problems.

On September 3, 2009, plaintiff visited Dr. Kovatis to complain of a "large lump" on the back of his heel. An MRI revealed "a golf ball like mass that was affecting [his] ability to wear [a left] shoe." Dr. Kovatis later performed "a removal and an exploration" during which he removed "debris" collected during plaintiff's first surgery. At a post-operative examination on October 29, 2009, plaintiff was "doing well" and his "incision looked dry and intact."

However, on December 23, 2009, plaintiff complained of "foot pain," which Dr. Kovatis diagnosed as related to "fractures of his phalanges of his foot." The new problem was unrelated to plaintiff's September 25, 2006, accident or to the various surgeries he underwent to correct his Achilles tendon rupture.

When asked on direct examination whether gout can be a cause of an Achilles tendon rupture such as plaintiff suffered, Dr. Kovatis testified that "[i]t's a risk factor but . . . there has to be an inciting trauma to cause a tendon to rupture." He agreed with plaintiff's counsel that there was nothing in the record to indicate that plaintiff s gout contributed to his accident on the ferry or hampered his healing process. However, on cross-examination, Dr. Kovatis admitted that "obesity and gout further increase the odds of a middle aged man suffering an Achilles tendon rupture," although he repeated that an "inciting trauma" was required "to actually cause" a rupture. He admitted that "based on [plaintiff's] condition on September 25, 2006, he could have easily ruptured his Achilles mis-stepping at home." However, he testified on re-direct that he saw nothing in plaintiff's medical records to suggest that he had a fall at home on or around September 25.

In charging the jury, the judge gave an adverse inference charge, because the defense failed to call an expert witness, Dr. Fried, who had examined plaintiff on behalf of the defense and had rendered a report as to his injury. Dr. Fried, whose report was never presented or described to the jury, had opined that, based on the way plaintiff described the accident, plaintiff suffered a torn Achilles tendon on September 25, 2006. The judge charged the jury, in general terms, that it could infer that Dr. Fried s testimony would not have contradicted that of Drs. Gross and Kovatis.

On November 9, 2010, by a vote of 6-1, the jury rendered a verdict finding plaintiff and defendants equally liable (50%/50%) for plaintiff's September 25, 2006 injury. By a vote of 7-0, the jury awarded damages in the amount of $5,000.

On December 17, 2010, Plaintiff moved for a new trial or, in the alternative, for additur.4 After hearing oral argument, Judge Harz reasoned that she was "not sitting as an additional juror . . . on this case." Although the judge expressed "surprise[]" at the $5,000 damages award and opined that "the decision of the jury isn't necessarily what I would have rendered if the court was handling a bench trial," she gave "due regard to the jury verdict" and declined to "alter it."

Considering "the evidence . . . before this jury," the judge noted that Dr. Gandhi, who was not a "paid expert," treated plaintiff "immediately after the happening of this incident" and explained how he came to his conclusion that Mr. Schiavi "sustained a sprained ankle." The judge reasoned that it was "not for this Court to weigh the difference of the believability" of Dr. Gandhi "as opposed to Dr. [Kovatis] or Dr. Gross," because that was the jury s role.

The judge further reasoned that plaintiff's credibility was at issue and it was not for the court "to determine whether the jury believed him or didn't believe him:"

And looking at the record as a whole . . . this jury could come to the conclusion, from a preponderance of the evidence, that, based upon the testimony of Mr. Schiavi, Dr. [Kovatis], Dr. Gross, and Dr. [Gandhi] . . . the injury that he sustained at the time was that of a sprained ankle.

 

. . . .

 

[T]he record is full of evidence from which this jury could come to the determination that it did. And it's not within this court's purview or right to substitute its opinions over that of the jury.

 

And for that reason, the court is not disturbing the verdict . . . .

II

On this appeal, plaintiff presents the following points of argument for our consideration:

I. THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND A MISCARRIAGE OF JUSTICE UNDER THE LAW.

 

II. THE TRIAL JUDGE SHOULD HAVE GRANTED A NEW TRIAL TO PLAINTIFF ON THE ISSUE OF DAMAGES ONLY OR, IN THE ALTERNATIVE, THE TRIAL JUDGE SHOULD HAVE GRANTED AN ADDITUR AND INCREASED THE AMOUNT OF THE AWARD PURSUANT TO HE V. MILLER.

 

III. DEFENSE COUNSEL[ S] CONTINUED INFERENCES THAT PLAINTIFF'S GOUT WAS THE CAUSE OF PLAINTIFF'S ACHILLES INJURY WAS NOT SUPPORTED BY ANY EVIDENCE, WAS WITHOUT MERIT, PREJUDICIAL, CONTRARY TO DEFENDANTS' EXPERT AND THEREFORE ARE IMPROPER. WITHOUT SUCH PROOFS, THE JURY WAS PERMITTED TO SPECULATE THAT SOME OTHER INCIDENT OR CONDITION CAUSED PLAINTIFF'S INJURY.

 

IV. DEFENSE COUNSEL[ S] INFERENCE THAT PLAINTIFF'S SURGERY WAS IMPROPER, UNNECESSARY AND/OR NEGLIGENT WAS NOT SUPPORTED BY ANY EVIDENCE, WAS WITHOUT MERIT, PREJUDICIAL, CONTRARY TO DEFENDANTS' EXPERT AND THEREFORE ARE IMPROPER. WITHOUT SUCH PROOFS, THE JURY WAS PERMITTED TO SPECULATE THAT SOME OTHER INCIDENT OR CONDITION CAUSED PLAINTIFF'S INJURY.

 

V. DEFENSE COUNSEL['S] CLOSING ARGUMENT WAS PREJUDICIAL AND IMPROPER AND CONSTITUTES REVERSIBLE ERROR.

Having reviewed the record, including reading the entire trial transcript, we find no merit in any of these contentions. We owe considerable deference to Judge Harz s evaluation of the trial evidence, because she had the opportunity to observe the witnesses testimony first-hand. He v. Miller, 207 N.J. 230, 254-55 (2011); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). But, even on a cold record, we find nothing to suggest that the verdict was against the weight of the evidence or a miscarriage of justice. R. 2:10-1. We also find no abuse of discretion in the judge s decision to deny the additur motion. See Tronolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 1988).

While the $5000 verdict would be shockingly low if the jury had found plaintiff suffered a ruptured tendon in the ferry incident, and that the medical complications to which his experts testified were attributable to that incident, the record strongly suggests the jury found otherwise. It was plaintiff s burden to prove both causation and damages. Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309, 322 (App. Div.), certif. denied, 146 N.J. 569 (1996). We agree with Judge Harz that, in all likelihood, the jury did not find plaintiff to be a credible witness on the issue of causation and found Dr. Gandhi s testimony persuasive on both issues. Plaintiff s testimony, that his foot and lower leg were somehow caught between the ferry and the barge, was inconsistent with the configuration of the barge and the ferry and the complete absence of crushing injuries. His testimony was also contradicted by two eyewitnesses, Perez and Torres, who made contemporaneous written reports of their observations. The opinions of plaintiff s medical experts concerning causation of the rupture were based in part on plaintiff s description of the accident. If the jury did not believe plaintiff s version, that could have led them to discount the opinions of his experts.

Moreover, Dr. Gandhi, who examined plaintiff shortly after the accident, described his very thorough examination of plaintiff s leg and ankle, including the fact that plaintiff could flex his foot. If plaintiff had actually torn his Achilles tendon during the accident, he would not have been able to flex his foot. Dr. Gandhi also described performing the Thompson test, which was negative, and his palpation of plaintiff s entire calf from the top down to the ankle, looking for tenderness or a gap in the tendon. He discovered neither. Yet, three days later, Dr. Gross was able to feel a gap. And both of plaintiff s experts admitted that his pre-existing gout made it possible for even a minor "mis-step" at home to have triggered a torn Achilles tendon.

All of this evidence could well have convinced the jury that the torn tendon was not caused by the incident on the ferry. Crediting Dr. Gandhi s testimony, the jury could have found that plaintiff suffered a sprained ankle in that incident, and that $5000 was a reasonable measure of damages for that injury. We find no basis to set aside the verdict, and we find no grounds to disturb Judge Harz s decision to deny the additur motion. See He v. Miller, supra, 207 N.J. at 254-55; Jastram v. Kruse, 197 N.J. 216, 230-31 (2008).

We find no merit in plaintiff s remaining arguments, which warrant no discussion beyond the following comments. R. 2:11-3(e)(1)(E). Plaintiff s reliance on Paxton v. Misiuk, 34 N.J. 453 (1961), is misplaced. That case stands for the proposition that in a personal injury action, the defense may produce evidence that plaintiff s injuries were due to prior accidents rather than the accident that was the basis for the lawsuit. "[T]he test of admissibility is one of possibility rather than probability." Id. at 461. Here, through cross-examining plaintiff s experts, the defense adduced testimony that plaintiff s gout, which had "flared up" around the time of the ferry incident, created an increased risk of a torn Achilles tendon. The defense also elicited admissions that a "mis-step" at home could have been sufficient to cause the rupture. Naturally, if such an incident occurred, it would be entirely within plaintiff s knowledge and would probably not be something the defense could prove by direct evidence.

By producing evidence that plaintiff was diagnosed with a sprained ankle right after the incident, and that he had a medical condition that put him at risk of a rupture from a minor mishap, the defense presented a circumstantial case that the rupture was caused by something other than the ferry incident. That evidence was relevant, and the defense strategy was neither improper nor unfair.

Affirmed.

1 Plaintiff presented expert testimony that the boat dipped in the water due to wake created by another ferry approaching the terminal at the time. The expert opined that the ferry company should not have permitted this second ferry to approach the terminal while the LAGUARDIA was taking on passengers.

2 The emergency room records also reflected that plaintiff was clinically obese, based on his height, weight and body mass index.

3 An ecchymosis is the medical term for a bruise.

4 Defense counsel filed a cross-motion for a new trial or alternatively judgment notwithstanding the verdict. Defendants later withdraw their cross-motion.