SANDRA VERRUSO et al. v. PHILLIP VERRUSO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4429-05T14429-05T1

SANDRA VERRUSO and

PHILLIP VERRUSO,

Plaintiffs-Respondents/

Cross-Appellants,

v.

ALBERTO ROJAS and

BRANCH BROOK CO.,

Defendants-Appellants/

Cross-Respondents.

____________________________________

 

Argued September 11, 2007 - Decided September 25, 2007

Before Judges Skillman and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3036-02.

Jeffrey B. Beacham argued the cause for appellants/cross-respondents (McGivney & Kluger, P.C., attorneys; Mr. Beacham, of counsel and on the brief; Eric M. Gernant, II, on the brief).

Steven L. Kessel argued the cause for respondents/cross-appellants (Drazin & Warshaw, P.C., attorneys; Christopher R. Brown, on the brief).

PER CURIAM

On September 18, 2001, plaintiff Sandra Verruso's car was struck from behind by a vehicle operated by defendant Albert Rojas in the course of his employment for defendant Ventrice Enterprises, Inc., trading as Branch Brook Co. Plaintiff subsequently brought this action seeking damages for the personal injuries allegedly suffered in the accident. Her husband Phillip Verruso joined in the action asserting a per quod claim. Following a four-day jury trial, the trial court entered a directed verdict on liability in plaintiffs' favor. However, the jury returned a verdict for zero damages, thus no causing plaintiffs.

Plaintiffs filed a motion for a new trial on damages or, in the alternative, an additur. The trial court denied the motion for a new trial. Nevertheless, the court awarded plaintiff Sandra Verruso an additur of $20,000. Neither party filed a motion for reconsideration or clarification of this ruling. The court entered an order on March 31, 2006 memorializing its ruling.

Defendants filed a notice of appeal from the award of the $20,000 additur to plaintiff Sandra Verruso. Plaintiffs filed a notice of cross-appeal from the denial of their motion for a new trial.

Initially, we note that there is no authorization for the grant of additur where a motion for a new trial has been denied. An "additur may be employed only in cases where a new trial as to damages is proper[.]" Tonelli v. Khanna, 238 N.J. Super. 121, 132 (App. Div.), certif. denied, 121 N.J. 657 (1990). "An additur is an order denying plaintiff's application for a new trial, conditioned upon defendant's consent to an increase in the damage verdict as specified by the trial judge." Id. at 131. An additur "serve[s] the laudable purpose of avoiding a further trial where substantial justice may be attained on the basis of the original trial." Fisch v. Manger, 24 N.J. 66, 80 (1957). Therefore, an additur may be granted only if the trial court finds, in conformity with Rule 4:49-1(a), that "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." See Tonelli, supra, 238 N.J. Super. at 130.

We reject plaintiffs' argument that the court's order granting Sandra Verruso a $20,000 additur was actually an order granting a new trial unless defendants agreed to pay that amount. In its opinion denying a new trial, the trial court stated that "I am not going to award a new trial pursuant to [R. 4:49-1], because I do not believe that there's such a miscarriage of justice with regard to that that the Court, it shocks the [conscience] of the Court, . . . that I should award a new trial," and then stated, "[t]he closer question becomes whether or not the plaintiff is entitled to an additur in this situation." Moreover, the order memorializing this ruling provided that "plaintiff be granted an additur in the amount of $20,000." In addition, the trial court struck out and wrote "[d]enied" next to the part of plaintiffs' proposed order that provided for the grant of a new trial on damages. We also note that plaintiffs' notice of cross-appeal recognized, contrary to the argument presented in their appellate brief, that the trial court had denied their motion for a new trial. Therefore, we conclude that the trial court improperly granted plaintiff Susan Verruso an additur without finding that the jury's no damages verdict constituted a miscarriage of justice requiring a new trial.

Accordingly, we proceed to consideration of plaintiffs' cross-appeal from the denial of their motion for a new trial. The principles that govern a court's consideration of such a motion are well established. "[A] trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence." Caldwell v. Haynes, 136 N.J. 422, 432 (1994). A verdict may be set aside only if it "shock[s] the judicial conscience." Ibid. Moreover, "[i]n assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Ibid.

Plaintiffs claimed that Sandra Verruso suffered injuries to her neck, a cervical disc herniation, and to her jaw, a temporomandibular disorder (TMJ), during the September 18, 2001 automobile accident. Both parties presented expert opinion testimony regarding these alleged injuries. Dr. Ian Fries, an orthopedic surgeon testified for the defendants that although an MRI of Mrs. Verruso's cervical spine conducted on March 15, 2003 showed degenerative changes, there was no objective evidence she suffered any injury to her cervical spine in the September 18, 2001 automobile accident. Dr. Joel Doner, a dentist with a specialty in oral and maxillofacial surgery, testified that Mrs. Verruso does not suffer from TMJ and that her complaints of pain in the chewing muscle related to a longstanding "apparent functional bruxing habit and clenching habit" that is unrelated to any injury suffered in the accident. We are satisfied that this testimony provided an adequate evidential foundation for the jury's finding that Mrs. Verruso was not entitled to any damages for injuries allegedly suffered in the September 18, 2001 automobile accident.

Plaintiffs also argue that the trial court's denial of a new trial should be reversed because the court erred in granting defendants' in limine motion to preclude testimony by Mrs. Verruso that her obstetrician had prescribed bedrest during the four month period following the accident. Plaintiffs assert that such testimony would have rebutted any inference that Mrs. Verruso's alleged injuries were not as serious as she claimed because she did not seek any treatment until four months after the accident. Plaintiffs argue that the court should not have entertained the motion because it was filed too late. See R. 4:25-7(b); Pressler, Current N.J. Rules, Appendix XXIII to R. 4:25-7(b), at 2453 (2007). Plaintiffs also argue that the court erred in precluding such testimony as hearsay.

The only record of defendants' motion is the transcript of a brief colloquy between counsel and the trial court following opening statements, which reads as follows:

[Defendants' counsel:] We discussed in chambers about my motion in limine, and you said that we would put that on the record before we began the trial.

THE COURT: Sure, go ahead.

[Defendants' counsel:] And it is that there would be no testimony from the plaintiff or any of the witnesses that she was confined to home, that her obstetrician told her not to leave her home.

[Plaintiffs' counsel:] Very well, Judge.

THE COURT: And you've talked to your client about that?

[Plaintiffs' counsel:] Yes, Judge.

THE COURT: Okay.

[Defendants' counsel:] Thank you, Your Honor.

As far as this colloquy indicates, plaintiffs' counsel did not object to either the timing or substance of defendants' in limine motion to preclude Mrs. Verruso from testifying that her obstetrician told her to remain in bed for the four month period following the accident. Defendants simply placed their motion on the record, and plaintiffs' counsel said "very well," without placing any objection on the record. Consequently, insofar as the record before us indicates, plaintiffs acquiesced in defendants' motion without the court making any ruling. Moreover, plaintiffs' motion for a new trial did not mention defendants' in limine motion or any purported ruling by the trial court regarding the motion.

Plaintiffs argue that evidence Mrs. Verruso's doctor had prescribed bedrest for the first four months of her pregnancy was admissible under N.J.R.E. 803(c)(3) to show her state of mind. This evidence rule provides an exception to the rule against hearsay for "[a] statement made in good faith of the declarant's then state of mind[.]" However, N.J.R.E. 803(c)(3) would not authorize admission of a statement to Mrs. Verruso by her obstetrician, because the "declarant" would be the obstetrician, not Mrs. Verruso, and only Mrs. Verruso's state of mind, not that of the obstetrician, would be relevant on the issue of why she failed to obtain medical treatment during the four-month period following the accident.

The obstetrician's alleged statement may have been admissible on the ground that it was not hearsay because it was not offered to prove the statement's truthfulness, i.e., that Mrs. Verruso had to remain in bed for four months, but only to show that the statement was made, thus providing a reasonable basis for Mrs. Verruso's failure to seek medical treatment sooner for the alleged injuries suffered in the accident. See Bonitsis v. New Jersey Inst. of Tech., 363 N.J. Super. 505, 524-25 (App. Div. 2003), rev'd on other grounds, 180 N.J. 450 (2004). ("[W]here statements are offered not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not inadmissible hearsay") (quoting Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996)).

However, even assuming that evidence of the obstetrician's alleged statement would have been admissible for this purpose, with an appropriate limiting instruction, we are satisfied that plaintiffs' failure to introduce such evidence, apparently as a result of their acquiescence in defendants' in limine motion, does not warrant a new trial. Where a party acquiesces in trial error, the error will be grounds for a reversal and new trial only if it "cut[s] mortally into the substantive rights" of the appellant. State v. Shomo, 129 N.J. 248, 260 (1992) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). And where a party invites trial error, that error "will not be grounds for reversal on appeal, even though it would otherwise be cognizable as plain error affecting substantial rights of the appellant." Brett v. Great Am. Recreation, 144 N.J. 479, 508 (1996).

Even if the obstetrician's statement would have been admissible if the issue had been properly presented to the trial court, plaintiffs are not entitled to a new trial under either of these standards of review. We note that plaintiffs' counsel elicited testimony from Dr. Doner on cross-examination that Mrs. Verruso told him she had delayed treatment after the automobile accident because she was confined to bed due to her pregnancy:

Q. Did [plaintiff] tell you that the reason that she hadn't [been] treated for the four months immediately following the accident was due to the fact that she was in the early stages of her pregnancy? That she was on bed rest for that.

A. Yes.

Moreover, plaintiffs' counsel referred to this testimony in his summation:

Now as [defense counsel] pointed out, [plaintiff] didn't treat for the first four months after she got out of the emergency room, she didn't go to Dr. Bruno for four months. And Dr. Doner said, well the reason she told me that she didn't do that was because that she was on bed rest because of her pregnancy.

Although this indirect evidence of Mrs. Verruso's reason for failing to obtain medical treatment for four months following the accident may have been less effective than Mrs. Verruso herself testifying about her obstetrician's alleged instruction to remain in bed, it did place Mrs. Verruso's alleged reason for delaying treatment before the jury. Therefore, we conclude that plaintiffs' failure to present direct evidence regarding this subject, due to their counsel's acquiescence in defendants' in limine motion, does not warrant a new trial.

Plaintiffs' argument regarding defendants' summation is without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Plaintiffs failed to object to the comments, and they were not sufficiently objectionable to require a new trial.

 
Accordingly, the part of the March 31, 2006 order granting Sandra Verruso a $20,000 additur is reversed. The part of the order denying plaintiffs' motion for a new trial is affirmed.

(continued)

(continued)

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A-4429-05T1

September 25, 2007