GLORIA LEDERER v. FRED LAMA et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5047-05T35047-05T3

GLORIA LEDERER,

Plaintiff-Appellant,

v.

FRED LAMA and KEVIN LAMA,

Defendants-Respondents.

_________________________________

 

Submitted March 8, 2007 - Decided March 30, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

MON-L-4409-03.

Drazin & Warshaw, attorneys for appellant (John R.

Connelly, Jr., on the brief).

Sherman & Viscomi, attorneys for respondents (Evan S.

Rosen, on the brief).

PER CURIAM

In this "no threshold" automobile negligence action, plaintiff Gloria Lederer appeals from entry of judgment in favor of defendant Kevin Lama after a jury verdict finding that plaintiff suffered no damages as a result of defendant's negligence, and from denial of plaintiff's motion for a new trial or additur. We affirm.

On July 3, 2003, plaintiff was rear-ended by defendant's vehicle while driving on a ramp leading to Route 9 South in Sayreville. She sued defendant for damages and at the close of evidence in a two-day jury trial, the court directed a verdict in her favor on negligence and proximate cause, leaving for jury resolution only the issue of damages, since both the nature and extent of plaintiff's injuries were disputed.

Immediately after the accident, plaintiff drove herself home and only sought medical treatment the next day with her primary care physician, complaining of pain in her neck, shoulders and low back. On July 8, 2003, plaintiff consulted Dr. Ben-Ezra, a chiropractor who had previously provided plaintiff "maintenance care" for "whiplash" injuries sustained in an earlier motor vehicle accident in 1985 but which, according to plaintiff, had since resolved. In any event, Dr. Ben-Ezra diagnosed neck sprain and lumbar disc herniations resulting from the instant accident and oversaw a course of treatment involving manipulation of the spine through mid-2004. During this time, plaintiff also consulted with a neurologist, Dr. Neil Pelman, who performed an EMG, which was positive for lumbar radiculopathy, and a pain management specialist, Dr. Harris Bram, who administered a caudal epidural block, which was effective. By Fall 2004, plaintiff was doing well. Shortly thereafter, on November 16, 2004, plaintiff was involved in another automobile accident, which she denied in deposition testimony only a month later, on December 21, 2004.

Defendant's medical expert, Dr. Kevin Egan, read the October 1, 2003 MRI and concluded that plaintiff's pathology consisted of mild diffuse bulges in the lumbar spine. His examination revealed that plaintiff sustained only soft tissue injuries to her neck and back that were temporary and since resolved.

Obviously crediting the defense version, the jury awarded plaintiff no damages. Thereafter, plaintiff moved for a new trial or additur. In denying the motion, the judge reasoned:

In this case I find that the record supports the jury award amount and does not shock the conscience. The evidence presented at trial supports a decision that the plaintiff's injuries required no compensation from the defendant. There were credibility issues and there were also issues for the jury as to the depth of the preexisting condition. The jury took ample time to consider these issues and gave a verdict based upon a rational interpretation of the evidence. There was a second accident after this accident that we are talking about that the [plaintiff] did not mention.

On appeal, plaintiff contends that the verdict of no damages constitutes a miscarriage of justice. We disagree.

The standard that controls our disposition is well-settled. We do not reverse a trial court's ruling on a motion for a new trial under Rule 4:49-1 "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; Baxter v. Fairmont Food Co., 74 N.J. 588, 598-99 (1977). We accord the utmost regard to a jury's evaluation of factual issues. Id. at 597. We also defer to the trial court's determination of a witness' credibility and demeanor. Dolson v. Anastasia, 55 N.J. 2, 7 (1969); see also Carey v. Lovett, 132 N.J. 44, 66 (1993) (noting that appellate courts defer to the trial court's "feel of the case"). As do trial courts, we also defer to the quantum of damages that a jury assesses "unless it is so disproportionate to the injuries and resulting disabilities shown as to shock [the] conscience and to convince [the judge] that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971); see also Ryan v. KDI Sylvan Pools, Inc., 121 N.J. 276, 297 (1990); Baxter, supra, 74 N.J. at 596; Sweeney v. Pruyne, 67 N.J. 314, 315 (1975); Tonelli v. Khanna, 238 N.J. Super. 121, 130 (App. Div.), certif. denied, 121 N.J. 657 (1990); Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988). In other words, a trial judge intervenes only to correct an injustice when a damage award is patently inadequate or excessive, i.e., the result of mistake, compromise, bias, or prejudice. See Von Borstel v. Campan, 255 N.J. Super. 24, 31 (App. Div. 1992). On appeal, we apply the same standard to review the trial judge's disposition of a motion for a new trial. Id. at 28-29.

Here, the verdict awarding no damages to plaintiff was reasonably based in the evidence, which, according to the defense expert, admitted of only a minor, temporary soft tissue condition, amid both pre-existing and post-accident injuries. Indeed, even plaintiff's expert and treating physician, Dr. Ben-Ezra, testified that plaintiff no longer needed the maintenance care for injuries sustained in the instant accident that she apparently required before due to injuries sustained in the 1985 motor vehicle incident. Given this prior history, the jury could have reasonably attributed any pain or suffering that plaintiff may have experienced after the July 3, 2003 accident to her pre-existing condition or, alternatively, determined that any injury presently sustained neither worsened nor aggravated her pre-existing injuries, entitling her to no recovery in either event. Similarly, the jury may have reasonably attributed any of plaintiff's present complaints to the subsequent accident in November 2004.

Furthermore, the fact that both experts diagnosed some injury is not dispositive of the issue of damages since "[r]easonable men could find, on the evidence, that [plaintiff's] injuries . . . were so slight as not to be compensable, in which event a verdict denying [her] damages would be proper." Brennan v. Biber, 93 N.J. Super. 351, 358 (Law Div. 1966), aff'd, 99 N.J. Super. 247 (App. Div. 1968). And, of course, the jury was free to reject the entirety of plaintiff's expert's testimony. "A jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). "The jury may adopt so much of [the evidence] as appears sound, reject all of it, or adopt all of it." State Highway Comm'n v. Town of Dover, 109 N.J.L. 303, 307 (E. & A. 1932). In this regard, the jury here could have reasonably rejected plaintiff's expert's findings of the nature, extent and severity of her injuries, particularly to the extent the findings were based on the subjective complaints of plaintiff whose credibility the jury could reasonably have negatively assessed and the trial judge herself seriously questioned in her denial of plaintiff's new trial motion. We especially defer to these determinations. Dolson v. Anastasia, supra, 55 N.J. at 7; see also Carey v. Lovett, supra, 132 N.J. at 66.

 
Plaintiff additionally contends the verdict of no damages was the result of bias or prejudice engendered by references to her inconsistent testimony, the 1985 lawsuit award, and the failure of settlement negotiations in this case. This claim is without merit. Suffice it to say, defense cross-examination into the 1985 and 2004 motor vehicle accidents was proper, and in any event, the court cautioned the jury to disregard any comment about the prior jury award. Moreover, the reference to failed settlement negotiations, standing alone, simply did not have the capacity for prejudice and, quite the contrary, may even have signaled to the jury the viability of plaintiff's claim for damages. Here too, the court instructed the jury not to consider the reference to prior settlement efforts. Rather, under the circumstances, we are satisfied that there was sufficient evidence from which the jury could have reasonably concluded that plaintiff's injuries were de minimus and temporary, not deserving of an award of damages. There being no miscarriage of justice, neither a new trial nor additur was warranted.

Affirmed.

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A-5047-05T3

March 30, 2007