PARASKEVIA A. ARGYROU, et al. v. BREANNE V. MARRA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3472-05T53472-05T5

PARASKEVIA A. ARGYROU and

ANTHONY ARGYROU, her husband,

Plaintiffs,

and

CHRISTINA ARGYROU,

Plaintiff-Appellant,

vs.

BREANNE V. MARRA,

Defendant-Respondent,

and

GEORGIANA FELDMAN,

Defendant.

_________________________________________

 

Submitted November 1, 2006 - Decided December 4, 2006

Before Judges Lefelt and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3835-02.

Drazin and Warshaw, attorneys for appellants (John R. Connelly, on the brief).

Salvatore A. Alessi, attorney for respondent.

PER CURIAM

Plaintiff Christina Argyrou appeals from an order for judgment in favor of defendant Marra following a jury trial in which the jury found defendant negligent and that defendant's negligence was a proximate cause of the accident but that plaintiff had failed to prove she sustained a permanent injury within the meaning of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. We affirm.

The evidence before the jury on damages was as follows. On March 9, 2002, plaintiff was stopped at a traffic signal when defendant's vehicle failed to negotiate a turn in the intersection and struck a vehicle, and that vehicle in turn struck plaintiff's vehicle. Plaintiff was transported via ambulance to Riverview Medical Center. Plaintiff complained of head and neck pain. The results of an x-ray of her neck were normal. She was discharged with instructions to follow up with her primary care physician, Dr. Stephen J. Swartz.

Plaintiff came under Dr. Swartz' care on March 18, 2002, complaining of headaches, radiating neck pain, low back pain, poor concentration, poor memory, depression and anxiety. He ordered an MRI of her cervical spine which revealed a C6-7 formaninal encroachment causing cervical radiculopathy. Plaintiff treated with Dr. Swartz for approximately one year and, at the conclusion of his treatment, he opined that plaintiff's injuries were permanent.

Plaintiff also came under the care of Dr. Alfred Greisman, an orthopedist with whom plaintiff had previously treated. Plaintiff complained of continued neck and shoulder pain, as well as back pain, headaches, dizziness and vomiting. Dr. Greisman diagnosed a disc herniation at C6-7 and thoracic outlet syndrome. He ordered physical therapy and administered a nerve block to alleviate plaintiff's shoulder pain.

At the time of the accident, plaintiff was subject to the "limitation on lawsuit option" under AICRA, commonly referred to as the verbal threshold, which limits recovery for non-economic damages. N.J.S.A. 39:6A-8(a). Under the verbal threshold, damages for soft tissue injuries are limited to those injuries which are permanent. Ibid. An injury is considered permanent, "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. Thus, in order to recover damages for the injuries she sustained in the March 9, 2002 accident, plaintiff had to prove that her injuries were permanent. On the verdict sheet, the jury answered "No" to the question of whether plaintiff proved that she sustained a permanent injury. The judge entered a judgment of no cause in favor of defendant. Thereafter, plaintiff moved, pursuant to Rule 4:49-1, for a new trial. The trial court denied the motion, finding:

This case was well-tried by both counsel and the case went before a jury and they made the determination that in their mind the plaintiff had not suffered a permanent injury. And to be blunt about it, if this had been a bench trial, I would have come to the same conclusion. I was not impressed with the plaintiff. I did not find that her testimony to a large extent was credible as far as the injuries.

Liability was, as far as I was concerned, was never an issue. It was just a question of was she badly injured. And quite frankly, it would appear that from a very, very minor collision this had become a life altering event where Dr. Warren said, as far as I'm concerned, I don't find that there's any permanent injury here at all.

I therefore find that the jury's verdict was well-supported by the evidence and there's no reason for me whatsoever to disturb this jury's verdict and I'm going to let it stand. The motion will be denied.

On appeal, plaintiff acknowledges the jury was presented with conflicting opinions relative to the permanency of her injuries, but she contends that given the medical qualifications of the three experts who testified, Drs. Swartz, Greisman, and Warren, no reasonable jury could find the testimony of Dr. Warren credible. Therefore, the trial judge erred in not granting her motion for a new trial. We disagree.

A trial judge's decision on a motion for a new trial will not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). To determine whether there was a miscarriage of justice, we defer to the trial court regarding "intangibles" not transmitted by the record, namely, credibility, demeanor, and "feel of the case," but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, supra, 55 N.J. at 6.

Here, the essence of plaintiff's argument is that jury should have believed her experts over defendant's because her experts were treating physicians with more impressive credentials. The judge instructed the jury regarding the expert witnesses as follows:

Now there has been testimony from witnesses that are referred to as experts. And the following is the charge on the issue of expert testimony. You have heard testimony from witnesses who were called as experts. Generally witnesses can testify only about the facts and are not permitted to give opinions.

However, an exception to this rule exists in the case of an expert witness. An expert witness may give an opinion on a matter in which the witness has some special knowledge, education, skill, experience or training. an expert witness may be able to assist you in understanding the evidence in this case when performing your duties as a fact finder. But I want to emphasize to you that the determination of the facts in this case rest solely with you as the jury.

In this case there were three experts, Dr. Greisman, Dr. Swartz and Dr. Warren today. They were called as experts and testified as to certain opinions. In examining each expert's opinion you may consider the person's reason for testifying, if any. You may also consider the qualifications of the individuals and the believability of the expert, including all the considerations that generally apply when you're deciding whether or not to believe a witness's testimony.

The weight of the expert's opinion depends on the facts on which the expert bases his opinion. You as jurors must also decide whether the facts relied upon by the expert actually exist. Finally, you are not bound by the testimony of an expert. You may give it whatever weight you deem appropriate. You may accept or reject all or part of an expert's opinion. It is for you the jury to resolve any conflicts in the testimony of the experts using the same guidelines in determining credibility that I mentioned earlier.

Conflicting expert testimony is not unusual and it is the jury's function to sift through the testimony, as part of the weighing process, and ascribe to the testimony the weight to which it is entitled. While that weighing process includes consideration of the qualifications of the experts, qualifications alone are not dispositive. See N.J.R.E. 702. Moreover, "'the weight to which an expert opinion is entitled can rise no higher than the facts upon which the opinion is predicated.'" Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463 (App. Div. 1988) (quoting Johnson v. Salem Corp., 97 N.J. 78, 91 (1984)).

In summary, we have carefully canvassed the record in the discharge of our task, not to substitute our judgment for that of the jury, but, rather, to conscientiously and diligently review the record to correct, if warranted, clear error or mistake by the jury. Dolson, supra, 55 N.J. at 6. Having discharged this task, we cannot conclude the trial judge was wrong in his decision denying plaintiff's motion for a new trial. To conclude otherwise would be to intrude, without any basis, into the rightful province of the jury. See Carrino, supra, 78 N.J. at 360.

Affirmed.

 

The trial court dismissed the claims of Paraskevia A. Argyrou and Anthony Argyrou at the close of plaintiffs' case. That order is not being appealed.

On July 5, 2003, summary judgment was granted as to defendant Feldman. That order is not being appealed.

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A-3472-05T5

December 4, 2006