DANIELLE L. YEOMANS v. PIA L FRAZIER

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2628-03T22628-03T2

DANIELLE L. YEOMANS,

Plaintiff-Respondent,

v.

KAREN A. GIBSON,

Defendant,

and

PIA L. FRAZIER,

Defendant-Appellant.

_____________________________________

 

Argued: September 26, 2005 - Decided May 1, 2006

Before Judges A. A. Rodr guez and Alley.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7875-00.

Craig J. Compoli argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Compoli, of counsel and on the brief).

Maurice J. Donovan argued the cause for respondent (Benjamin M. Delvento, attorney; Mr. Donovan, of counsel and on the brief).

PER CURIAM

Defendant, Pia L. Frazier, appeals from a jury verdict, which found her seventy-five percent at fault for the happening of a two-vehicle accident and awarded plaintiff, Danielle L. Yeomans, $1,250,000 in damages, consisting of $800,000 for pain and suffering, $50,000 for past lost income and $400,000 for future lost income. We vacate the awards for past and future lost income. Those issues are remanded for a new trial. In all other respects, the judgment is affirmed.

These are the salient facts. On September 9, 1998, Yeomans was driving her vehicle in a northbound direction on High Street in Orange. At the same time, Frazier was driving a vehicle owned by her sister, Karen A. Gibson, on the same street in a southbound direction. At the intersection, Frazier made a left-hand turn onto Park Avenue. Her vehicle was struck by the vehicle driven by Yeomans. Yeomans was taken from the scene of the accident by ambulance to St. Barnabas Medical Center.

Yeomans, who was twenty-two years old, alleged that as a result of the September 9 accident, she suffered an exacerbation of a disc herniation at L5-S1, which she sustained on July 22, 1998 in another vehicular accident. After the July accident, an MRI study of Yeomans's spine, which was conducted at the St. Barnabas Ambulatory Care Imaging Center, revealed a "moderate-sized" herniated disc "on the left at L5-S1 with S1 nerve root compression."

After the September accident, Yeomans suffered from neck and lower back pain as well as numbness and tingling in her leg. Another MRI was taken, and she attended physical therapy at Health South, in Livingston, for four to five months, three to four times a week. Yeomans did not work while she was attending physical therapy. Within two weeks following the accident, Yeomans began to suffer from incontinence. Episodes of incontinence would occur frequently during the day, in the evening, and during sexual activity.

Bruce Lefkon, M.D., a urologist, who performed several tests on Yeomans, prescribed different types of medication. Over time, Yeomans was not able to take these medications because of their side effects, including blurred vision and stomach pains.

Burgess L. Berlin, M.D., an orthopedic surgeon, also treated Yeomans. He diagnosed a permanent injury, a herniated disc in the lumbar spine. Giovanni Ramundo, M.D., a pain specialist, gave Yeomans epidural block injections to alleviate the pain. This procedure was performed seven or eight times over the course of the last five years. Dr. Ramundo also referred Yeomans to a surgical consult with Joseph M. Koziol, M.D., who recommended surgery. William Levine, M.D., an orthopedic surgeon from Columbia Presbyterian Hospital, and Mark Weidenbaum, M.D., another orthopedic surgeon, also treated Yeomans. Both took MRIs and recommended that Yeomans undergo back surgery. Yeomans declined initially. However, on February 11, 2002, Yeomans underwent surgery by Dr. Giordano. Her symptoms had persisted to the point that she could barely walk, was having difficulty sleeping, and sometimes could not get out of bed. Dr. Giordano performed L5-S1 spinal fusion.

Yeomans sued Frazier for injuries arising out of the accident. Frazier answered and moved for summary judgment based upon the threshold set by N.J.S.A. 39:6A-8a. The judge denied the motion.

In answers to interrogatories, Yeomans certified that she was employed as a bartender at Smiles in Ledgewood, with average weekly wages for the past year in the amount of "$300 per week." The next questions and answers are as follows:

10. If employed at the time of the accident, state:

. . .

d) period of time lost from employment, giving dates;

Approximately five weeks 9/9/98 to approx. 10/15/98 and then 10 weeks intermittently thereafter.

e) amount of wages lost, if any.

Approximately $4,500.00

11. If there has been a return to employment or occupation, state:

a) name and address of present

employer;

Same as above

b) position held and nature of work

performed;

part time bartender

c) present weekly wages, earning,

income or profit.

$200

12. If other loss of income, profit or earnings is claimed:

To be supplied if so alleged.

There was no subsequent amendment to these answers.

On the first day of trial, Yeomans moved in limine to preclude both evidence of her psychiatric and emotional history and any reference to the fact that Smiles is a go-go bar. Frazier objected. The judge denied Yeomans' application about Smiles and reserved on the application regarding her history. The judge indicated that he would address the matter again as the proofs warranted.

Despite her pretrial discovery answers on the subject of past and future lost wages, Yeomans testified at trial that, prior to the accident, she earned a net income of approximately $30,000 to $32,000 per year (or $800 to $1000 per week). Since the accident, she has only been able to earn a net income of approximately $15,000 per year (or $300 to $500 per week) because her disabilities have prevented her from working more regularly. Prior to the accident, Yeomans worked full-time. Since the accident, she had not worked a full-time schedule. Currently, she works only two nights a week. Following the surgery in 2002, she was out of work for four to five months.

Frazier objected to the introduction of such evidence, sought to limit Yeomans' claim for past lost wages to $4,500 and sought to bar her claim for future lost wages. The judge denied Frazier's application and permitted the jury to consider a future lost wage award. The judge ruled that R. 4:17-7, dealing with amendments of answers to interrogatories, does not require the exclusion of evidence in this case because the parties had notice of a continuing wage loss.

Following this ruling, Frazier's counsel advised the judge that he would service a notice in lieu of subpoena on Yeomans for relevant tax and payroll records. Yeomans's counsel objected. The judge sustained that objection.

Yeomans' orthopedic expert was one of her treating physicians, Dr. Berlin. He testified that Yeomans was asymptomatic at the time of the September accident. However, he acknowledged that Yeomans' herniated disc pre-existed this accident. Dr. Berlin opined that Yeomans would not have required surgery due to injuries from the July accident. Dr. Berlin acknowledged that the MRI taken prior to the September accident as well as that taken afterwards, show a herniated disc and nerve compression. However, following the July accident, there was a space between the disc protruding and the nerve. As a result, Dr. Berlin would not expect Yeomans to have symptoms such as "pain down the leg, reflex changes, sensation changes such as numbness, or motor changes."

Based on the MRI following the September accident, Dr. Berlin noted that the disc had slipped further out and a piece of disc had come apart and was in the canal. The disc was pressing against the dural sac, which contains nerve roots. This would lead to urinary incontinence, pain and numbness. Dr. Berlin noted that such herniations can hinder the electricity going down the nerves into the organs, including the bladder. Because the disc is towards the left, Yeomans suffers from pain, sensory deficiency, and loss of reflex in her left leg and foot. According to Dr. Berlin, in the MRI following the second accident, there is "a full blown neurologic, pathologic picture compared to her first accident, where she had no leg pain." It was Dr. Berlin's opinion that her condition "definitely did worsen . . . [to] a major significant degree . . . where now her life is significantly compromised."

Dr. Berlin's final diagnosis was that Yeomans' injuries "comprised cervical and lumbar myosites with a herniated and extruded disc in her lumbar spine with neurologic deficit." His prognosis was "very guarded regarding that." There is a likelihood that Yeomans will have to undergo surgery again due to hardware irritation. In Dr. Berlin's opinion the injuries that were sustained in the September accident were permanent and "[h]er compromised lifestyle is something not expected to change to any beneficial degree. It can only deteriorate."

During Dr. Berlin's testimony, Frazier moved to cross-examine him on Yeomans' emotional history. The judge denied the motion, ruling that the probative value of such evidence was substantially outweighed by the prejudice that its admission would cause.

Frazier presented as a medical expert, Steven Cohen, M.D., a urologist. Dr. Cohen was not a treating physician in this case and did not perform a physical examination on Yeomans at the time of their meeting. Based on the results of prior testing, Dr. Cohen opined that Yeomans suffers from urinary stress incontinence, a form of incontinence not related to nerves. Further, Dr. Cohen found that the urological condition complained of by Yeomans is not causally related to her disc injury.

During Dr. Cohen's testimony, Yeomans's counsel Maurice J. Donovan made two references to the subject of insurance. The first was in the form of a question during voir dire, which reads as follows:

Isn't it true, Doctor, that your first contact in this case was from New Jersey Manufacturer's, an insurance company, by a claims adjuster who sent you a letter asking you to schedule an appointment to examine Ms. Yeomans on their behalf?

There was an objection. The judge sustained the objection and Yeomans' counsel withdrew the question. Defense counsel asked for a limiting instruction at this time and was denied. Despite this development, there was a second incident. Donovan asked Dr. Cohen the following question on cross-examination:

Now you were contacted, as we said before, by New Jersey Manufacturers in order to investigate this case.

Again, there was an objection. The judge sustained it and told the jury to disregard the reference to "New Jersey Manufacturers or any other insurance company that has been mentioned by Mr. Donovan."

Frazier also called Stephen Heller, M.D., an orthopedic surgeon, as an expert. He contrasted the films from the MRI study done before the September accident with the films from the studies taken after the accident. He concluded that the later studies show no change in condition from the earlier study. He found no significant difference between them.

According to Dr. Heller, the physician who reviewed the September 21, 1998 MRI study made a comparison to the previous study and noted no change. Dr. Heller opined, based on the fact that there was a clear herniation and pressure on the nerve root in August of 1998, that Yeomans' lumbar condition was caused prior to the September accident. Dr. Heller opined that the effect of the September accident on the pre-existing lumbar condition was "essentially a soft tissue injury, what we refer to as a sprain/strain type of thing." Therefore, Yeomans' surgery was a result of the pre-existing injury.

Following the verdict, Frazier moved for a judgment n.o.v., or a new trial. In denying Frazier's motion, the judge found as follows:

I think the jury reacted to the very things that Mr. Donovan spoke about, the fact that she suffered from incontinence, the fact that she was a young person, and this accident had so scarred her for life during that particular period. The fact, too, that she had all this hardware put in her back from which she would have to endure for the rest of her life, I think that had a bearing on the jury's decision.

I

On appeal, Frazier contends that her motion for a directed verdict should have been granted because Yeomans failed to establish by objective, credible evidence, a nexus between her alleged injuries and the September accident as required by N.J.S.A. 39:6A-8a. We disagree. Yeomans presented sufficient evidence of proximate causation between the September accident and her disability. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 533 (1995).

We note that the September accident took place prior to the effective date of the Automobile Insurance Cost Reduction Act of 1998 (AICRA). The applicable law at the time of the accident was the New Jersey Automobile Freedom of Choice and Cost Containment Act. A 1998 amendment provided the verbal threshold standard applicable in this case. Yeomans had to satisfy a two prong test. First, she had to demonstrate that she suffered an injury in the September accident that fit into one of the nine statutory categories. Oswin v. Shaw, 129 N.J. 290, 315 (1992). Second, that she [had to] show that such injury had a serious impact on her life. Id. at 315.

Frazier's allegation is that the injuries sustained by Yeomans resulted from the July accident and not the September accident. The standard for the finding of an exacerbation of a pre-existing injury is different than the ordinary verbal threshold standard. In Polk, the court noted that a diagnosis that an accident has aggravated a pre-existing injury must involve a comparative analysis of the residual injuries following the first incident with any injuries suffered in the automobile accident in question. Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). The analysis must include an evaluation of objective medical evidence prior to and after the accident. Ibid. Furthermore, there must also be a "discussion [in which] the expert claims a cause-and-effect relationship between the patient's subjective complaints and a traumatic event." Id. (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

Here, Dr. Berlin did such a comparison. Frazier contends that her experts, Dr. Heller and Dr. Cohen established that the injury occurred prior to the September accident. However, "these arguments provide the other side to a legitimate factual dispute, which will be for the jury to resolve." Bennett v. Lugo, 368 N.J. Super. 466, 476 (App. Div.), certif. denied, 180 N.J. 457 (2004). The inquiry should be whether Yeomans has put forth objective credible evidence which, "when viewed in the light most favorable" to Yeomans, could lead a rational factfinder to reasonably find that Yeomans suffered a serious permanent injury. Brill, supra, 142 N.J. at 540. We conclude that Yeomans has met that burden. Therefore, the judge's decision to deny the directed verdict motion was correct.

Frazier also contends that the $800,000 pain and suffering award was against the weight of the evidence. We disagree. R. 2:10-1 states that a "trial court's ruling on [a motion for a new trial] shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." We intervene only if the verdict "shocks the judicial conscience." Carey v. Lovett, 132 N.J. 44, 66 (1993). We defer to the trial court with respect to such things as witness credibility, demeanor and "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969). Generally, we accept as true the evidence that supported the verdict by the jury. Bell Atlantic v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999).

We note that here, there was a clear divergence of expert opinions presented to the jury. From our review, we conclude that the proofs and opinions presented by Frazier were not so compelling as to warrant a reversal based on R. 2:10-1.

II

Frazier also contends that evidence regarding Yeomans' pre-existing emotional and psychiatric conditions should not have been excluded at trial. Frazier argues that Yeomans's emotional history is important in understanding how she perceives pain now and has had an effect on Yeomans' inability to work. We reject this argument.

N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice." N.J.R.E. 403. This rule grants the judge discretion to exclude evidence that would have otherwise been admissible. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Probative value must be "so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues in the case. State v. Thompson, 59 N.J. 396, 421 (1971). The burden of proving that evidence is unfairly prejudicial is on the person who wishes to exclude it. Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001).

We review the decision of the trial court under the abuse of discretion standard. Benevenga, supra, 325 N.J. Super. at 32. Substantial deference is given to the evidentiary rulings of the trial court. Ibid. An evidentiary decision is only overturned when the trial court is "so wide of the mark that a manifest denial of justice resulted." State v. Kelly, 97 N.J. 178, 216 (1984).

Judged against this deferential standard, we conclude that the judge's ruling should be affirmed. Yeomans's testimony on her inability to work could be challenged in many ways without delving into prior emotional and psychiatric episodes, which are not rationally connected to the lumbar injury.

III

Frazier contends that Yeomans's claim for past lost wages should be limited to her pre-trial discovery disclosure. We disagree. However, we conclude that Frazier was unfairly surprised and "misled by false information." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 376 (2001). Furthermore, any attempts to challenge Yeomans' trial testimony, in which she alleged that she lost more than ten fold the amount of past wages indicated in pre-trial discovery, was undercut by the judge's ruling. The judge did not permit a subpoena of Yeomans' tax or employment records. Therefore, her testimony could not be tested by effective cross-examination. For that reason, the past wage award is vacated and the issue must be tried anew.

Frazier also argues that the evidence was insufficient to justify the damage award for past lost earnings. We agree. Yeomans has the burden of proof regarding damages. Caldwell v. Hayes, 136 N.J. 422, 436 (1994). There must be an evidentiary and logical basis to estimate an award and it must be proven by a preponderance of the evidence. Id. at 436 (citations omitted). Even if Yeomans' testimony that her income was diminished after the accident is corroborated, she still has the burden of proving that the cause for this diminution was the physical or emotional impact of an injury sustained in the September accident. The testimony of her experts may have established pain, discomfort and limitation of motion, but it did not establish an inability to perform the duties of a bartender, let alone an inability to be employed at all.

IV

Frazier argues on appeal, that the evidence which was introduced at the trial was insufficient to support a claim for the loss of future earnings. We agree. In New Jersey, "an injured party has the right to be compensated for diminished earning capacity . . . based on the wages lost as a result of defendant's wrongdoing." Id. at 433. When the effects that the injury has on a plaintiff will extend into the future, further compensation will be given. Ibid. There is a two-prong test for determining whether a jury can hear a case based on diminished earning capacity. Coll v. Sherry, 29 N.J. 166, 176 (1959). The first prong requires a showing of a "reasonable probability" that the injuries sustained will impair one's future earning capacity. Ibid. Second, "there must be sufficient factual matter upon which the quantum of diminishment can reasonably be determined." Ibid. A "reasonable probability" exists where there is a "permanent or lasting injury that would obviously impair the ability to earn." Lesniak v. County of Bergen, 117 N.J. 12, 22 (1989). Moreover, witnesses must "give the jury some evidentiary and logical basis for rationally estimating a compensatory award." Dombroski v. City of Atlantic City, 308 N.J. Super. 459, 470 (App. Div. 1998).

Frazier contends that expert testimony was necessary with regards to the proof of damages. However, in Adamson v. Chiovaro, 308 N.J. Super. 70, 78 (App. Div. 1998), we held that no expert in economics was required. The Supreme Court in Lesniak states that, "the value of expert testimony as an aid" in establishing the two prongs of the Coll analysis cannot be contradicted. Lesniak, supra, 117 N.J. at 31. However, the Court did not set a per se requirement for expert testimony. The court in Lesniak, goes on to note that there is only a necessity for expert testimony when "the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment." Ibid.

Here, we conclude that expert testimony was required to establish a future inability to be gainfully employed in any capacity. Yeomans' lay testimony by itself does not meet her burden. Therefore, the future lost earnings award is vacated. That issue must be tried again.

V

Frazier contends that the improper injection of the existence of insurance into the case by Yeomans' counsel prejudiced the jury and warrants a reversal and a new trial. In New Jersey, efforts of counsel to bring to the attention of the jury the existence of insurance has been criticized by the courts. Krohn v. Full Ins. Underwriters Ass'n, 316 N.J. Super 477, 481 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999). N.J.R.E. 411 states:

evidence that a person was or was not insured against liability is not admissible on the issue of that person's negligence or other wrongful conduct. Subject to Rule 403, this rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, control, bias, or prejudice of a witness.

[N.J.R.E. 411].

The reason for this exclusion is that such injection will cause a jury to award larger damage awards because of the "deep pockets" of the insurance company. Krohn, supra, 316 N.J. Super. at 482; Wenz v. Allstate Ins. Co., 316 N.J. Super. 570, 574 (App. Div. 1998). With the advent of compulsory insurance, however, the prejudice caused by reference to insurance has diminished. Krohn, supra, 316 N.J. Super. at 482. And the mere disclosure of, or reference to insurance, has not been considered prejudicial error. Ibid., Roman v. Mitchell, 82 N.J. 336, 347-348 (1980), Pickett v. Bevacqua, 273 N.J. Super. 1, 4 (1994). In Runnacles v. Doddrell, 59 N.J. Super. 363, 368 (1960), we noted that "so long as the insurance is not featured or made the basis at trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice." Ibid. In order to reverse the trial court's decision, there needed to be "a clear and unequivocal manifest denial of justice." Pickett, supra, 273 N.J. Super. at 5.

Here, we are satisfied that the judge did not abuse his discretion. However, having said that, we must strongly express our disapproval of Maurice J. Donovan's conduct in this regard. His two references to insurance were gratuitous. There was no need to refer to "New Jersey Manufacturers," or a "claim adjuster." This was an obvious ploy to telegraph to the jury that any judgment against Frazier would be covered by a policy of insurance. Such conduct is outside legitimate advocacy. There should not be a repeat of this incident on retrial of this matter or the trial of any other matter.

VI

Finally, Frazier argues that remittitur should have been granted because the verdict is grossly excessive. We disagree. Remittitur is encouraged, in order to avoid the expense of having a new trial. McRae v. St. Michaels Med. Ctr., 349 N.J. Super. 583, 597. The judgment, by the jury, should not be disturbed, absent the trial judge's conclusion, given an opportunity to weigh the evidence, that there was a "manifest denial of justice." Ibid. Furthermore, the award must shock the conscience. Carey, supra, 132 N.J. at 66. Our role is more restricted in that deference must be given to the trial court's "feel of the case." Ibid.

In summary, the awards for past lost wages and future lost wages are vacated. Those issues are remanded to the Law Division, Essex County for a new trial. In all other respects the judgment is affirmed.

 
Affirmed in part and reversed in part.

The judge molded the verdict pursuant to the Joint Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5 and the set-off provisions of N.J.S.A. 39:6A-12, and entered judgment in the amount of $932,300 plus $207,141.50 in pre-judgment interest.

Yeomans also sued Gibson. However, the claim against Gibson was dismissed at the outset of the trial.

The effective date of the new provision of AICRA is March 22, 1999. Therefore, it is only applicable when the policy in question is issued after such date.

(continued)

(continued)

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A-2628-03T2

May 1, 2006