JUAN VERGARA et al. v. WENDY REILLY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3222-05T53222-05T5

JUAN VERGARA and

DORA VERGARA, his wife,

Plaintiffs-Appellants,

v.

WENDY REILLY and

MICHAEL RYERSON,

Defendants-Respondents.

______________________________________________________________

 

Argued February 6, 2007 - Decided August 1, 2007

Before Judges Kestin and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Docket No.

L-2352-02.

August R. Soltis argued the cause for appellants

(Kenneth D. Iulo, attorney; Mr. Iulo, on the

brief).

Carl Mazzie argued the cause for respondents

(Foster & Mazzie, attorneys; Mr. Mazzie, on

the brief).

PER CURIAM

Plaintiff Juan Vergara sustained lower back and neck injuries on May 9, 2001, when the automobile he was driving was struck from behind by an automobile driven by defendant Michael Ryerson. At the time of the accident, plaintiff was subject to the "verbal threshold" of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Liability was stipulated, and the jury, on May 24, 2005, answered "yes" to the first two questions on the jury verdict sheet: (1) "Has the plaintiff, Juan Vergara, sustained a permanent injury proximately caused by the accident?"; and (2) "Has the permanent injury sustained by the plaintiff, Juan Vergara, had a serious impact on his life?" The jury awarded damages in the amount of $30,000 for "pain and suffering, disability, loss of enjoyment of life and impairment." Plaintiff appeals from an order that granted his motion for a new trial but denied his request to limit the new trial to damages, or, in the alternative, for an additur. We now reverse and remand for a new trial on damages.

Because we have been provided with abbreviated transcripts of both trials, our understanding of the nature and extent of plaintiff's injuries comes from a certification submitted by plaintiff's attorney in support of plaintiff's motion for a new trial. That certification includes the following:

3. The trial proofs clearly indicated that plaintiff's first medical treatment was obtained from Dr. Charles K. Gleason, a chiropractor, with the initial visit being May 11, 2001. At that time, plaintiff complained of severe neck and back pain, with pain radiating to his extremities. On May 12, 2001, a cervical MRI was performed at the request of Dr. Charles Gleason which showed disc bulges at C4-C5 and C5-C6. A lumbar MRI study, performed on that same date, showed a disc bulge at L4-L5 and a central and right disc herniation at L5-S1. There were no indications of any degenerative changes on any of the MRI reports.

4. Based on those reports and Dr. Gleason's clinical findings, a course of conservative chiropractic therapy was initiated which began on or about May 11 2001 and continued through approximately August 13, 2001 for approximately forty-six (46) visits.

5. Dr. Gleason completed disability papers for plaintiff and it was stipulated that plaintiff was disabled four (4) months after the accident from approximately April 12, 2001 [sic] through September 4, 2001. At the time of trial, Dr. Gleason testified that plaintiff's injuries were causally related to the accident and were permanent in nature.

6. While plaintiff was being treated by Dr. Gleason, as aforesaid, Dr. Gleason referred plaintiff to the offices of Angela Adams, M.D. and Arthur Rothman, M.D., neurologists, for various NCV and EMG studies which indicated that plaintiff was experiencing C5-C6 and S1 radiculopathies. Dr. Rothman also recommended a series of epidural injections in the cervical and lumbar spines.

7. The trial testimony also proved that plaintiff was treated by Dr. Solomon Halioua of the Saddle Brook Pain Center and that plaintiff underwent six (6) epidural injection procedures to his cervical and lumbar spines on August 8, 2001, August 14, 2001, August 21, 2001, August 28, 2001, September 4, 2001 and September 12, 2001. During those six (6) epidural procedures, at which time plaintiff was under general anesthesia, Dr. Halioua performed forty-six (46) trigger-point injections on various parts of plaintiff's body.

8. Thereafter, since the epidurals were not immediately effective, Dr. Halioua recommended that plaintiff receive physical therapy at Healthsouth Physical Therapy in Saddle Brook, N.J. Plaintiff attended physical therapy treatments for his neck and back from October 8, 2001 through December 3, 2001 for approximately eighteen (18) visits.

9. The trial testimony also indicated that after the aforesaid epidurals and physical therapy sessions had completed, plaintiff was feeling better for approximately ten (10) months to a year and was able to return to most of his normal activities. However, plaintiff became worse in approximately November, 2002, at which point, plaintiff consulted with William L. Klempner, M.D., a neurosurgeon. Again, Dr. Klempner diagnosed plaintiff with left lower extremity radiculopathy and clearly causally related all of plaintiff's lumbar injuries to the subject automobile accident.

10. On October 10, 2003, Dr. Klempner performed a spinal fusion and disketomy on plaintiff at Valley Hospital. Specifically, Dr. Klempner testified at the time of trial that he removed plaintiff's damaged discs at L4-L5 and L5-S1 and inserted four (4) bone growth cages and various hardware into plaintiff's back during the aforesaid approximate eight (8) hour operation. Thereafter, Dr. Klempner prepared the necessary papers which resulted in plaintiff's disability for a period of approximately six (6) months from the date of surgery.

11. The trial proofs also showed that Donald Frank, M.D., performed a PIP IME examination on plaintiff and Dr. Frank also causally related all of plaintiff's injuries to the automobile accident of May 9, 2001. Dr. Frank further opined that plaintiff required lower back surgery.

12. In addition to the ten (10) months of disability, plaintiff testified that he had permanent scars of approximately 3 1/2" and 5 1/2" on his abdomen and lower back as a result of the surgery by Dr. Klempner. The post-surgical x-ray of plaintiff's lumbar spine, which was admitted into evidence, vividly illustrated the permanent presence of hardware in plaintiff's back and the fact that plaintiff's L4-L5 and L5-S1 vertebrae are permanently affixed together and cannot bend, twist or rotate.

13. Dr. Klempner also testified that since the vertebral bones at L4-L5 and S1 are permanently fused and bolted together that situation places additional stress on the upper levels of plaintiff's lumbar spine. Dr. Klempner also testified that the hardware in plaintiff's back is permanent in nature and cannot be removed.

. . . .

17. Plaintiff's date of birth is November 4, 1966 and plaintiff's life expectancy, which was charged to the jury, was thirty-nine (39) plus years. If one breaks down the $30,000.00 jury award for thirty-nine (39) years, plaintiff's yearly damage award by the jury is less than $800.00/yr.

During oral argument on plaintiff's motion for a new trial on damages, the court asked defense counsel whether he was "troubled . . . by this verdict," and the following colloquy ensued:

MR. MAZZIE: Not in the least.

THE COURT: Not in the least.

MR. MAZZIE: Not in the least, and this is why. You hit on the issue. Could this jury have found that Dr. Clepner's (phonetic) surgery had nothing to do with this accident? Quite frankly, that would have been easy for this jury to find.

THE COURT: Let me ask you this then. Could the jury still have answered the question -- the two threshold questions positively?

MR. MAZZIE: Certainly.

THE COURT: What was the permanent injury then?

MR. MAZZIE: The permanent injury, Your Honor. --

THE COURT: Your guy . . . Dr. Cohen (phonetic), as good as he is, he didn't say anything was permanent.

MR. MAZZIE: No. No.

THE COURT: He made a diagnosis of a sprain or a strain.

MR. MAZZIE: Correct. Dr. -- I can't remember the chiropractor's name, Your Honor. He said it was permanent. He didn't say surgery is required. He can't say it. He's not permitted to say it. He's not qualified to say it. He said it was a permanent injury. There's nothing in this record that says this verdict is inconsistent.

Following oral argument, the trial judge indicated he would read his decision into the record on Monday, August 8, 2005, but he also stated there was "good ground for a new trial on damages" because the verdict shocked the court's conscience. On August 8, 2005, the court noted that despite the testimony of Doctors Cohen and Traflet, who testified for defendant, the jury found plaintiff sustained permanent injury. Thus, the jury rejected the "diagnosis of sprain, which was the only diagnosis offered by Dr. Cohen," and the court reasoned the jury failed to "appreciate the severity of plaintiff's injury." Nevertheless, the order entered by the court on August 15, 2005, provided for "a new trial on the issue of damages, including the AICRA."

Although the jury at plaintiff's first trial determined he sustained a permanent injury, the jury at the second trial, presided over by a different judge, found plaintiff failed to prove "the accident was a proximate cause of a permanent injury." Once again, plaintiff sought a new trial limited to the issue of damages, but the motion was denied.

Once a trial court determines a new trial is warranted, "the scope of the new trial depends on the nature of the injustice." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001). "Where trial error affecting liability occurs, the new trial will encompass all issues." Id. at 490-91. However, a new trial may be limited to damages "where that is the only question with respect to which the verdict or judgment is wrong and it is fairly separable from the other issues, and the best interests of justice will be served by granting a partial new trial." Esposito v. Lazar, 2 N.J. 257, 259 (1949).

In this case, the application of these principles compels the conclusion that the first trial court erred in including the issue of "permanent injury" in the scope of the new trial. As noted by plaintiff, defendant never alleged any error relating to the jury's assessment of damages influenced or tainted the "permanent injury" determination. In fact, during oral argument on plaintiff's first motion for a new trial, defendant's attorney stated: "I don't want to have to re-litigate the verbal issue all over again. That's been decided."

 
Thus, we are convinced there was no valid reason to retry the "permanent injury" issue because that issue had been fully and fairly tried (and decided against defendant) in plaintiff's first trial. We therefore reverse and remand for a new trial limited to only damages.

Reversed and remanded.

Because the jury awarded no damages for Dora Vergara's per quod claim, and that determination has not been appealed, we refer to Juan Vergara as plaintiff.

(continued)

(continued)

8

A-3222-05T5

August 1, 2007