NARIO R. WRIGHT JR v. ROBERT J. BOYLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1249-08T31249-08T3

NARIO R. WRIGHT JR.,

Plaintiff-Respondent,

v.

ROBERT J. BOYLE,

Defendant-Appellant.

 

 
Submitted September 23, 2009 - Decided

Before Judges Graves, Lyons, and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-822-06.

Parker, Young & Antinoff, LLC, attorneys for appellant (Anthony Young, on the brief).

Lowenthal & Abrams, attorneys for respondent (Dennis M. Abrams, on the brief).

PER CURIAM

Defendant appeals the denial of his motion for a new trial, for judgment notwithstanding the verdict, and for a remittitur after a jury awarded plaintiff $400,000 in damages for injuries sustained in an automobile accident. The trial judge reduced the verdict to $150,000, which was accepted by plaintiff in lieu of a new trial on damages. Notwithstanding this relief from the verdict, defendant pursues his appellate remedies seeking a new trial on damages. We are unable to agree with any of defendant's arguments as to why the remitted verdict below deserves adjustment. Accordingly, we affirm.

I.

On April 8, 2004, plaintiff and defendant were involved in an automobile accident that left plaintiff with complaints concerning his shoulders, back, neck, and left knee. Plaintiff previously was involved in automobile accidents in 1966, 1987, and 1994, all of which were known to defendant and explored at length through the discovery process.

Plaintiff had initiated litigation regarding the 1994 accident, which involved injuries to some of the same parts of the body that plaintiff claims were injured in the 2004 incident. Plaintiff settled his claims that revolved around the 1994 accident several years ago. Here, the parties fully explored or had the opportunity to do so the circumstances involved in all four of plaintiff's accidents over the previous thirty-eight years.

Prior to jury selection, the trial court determined that the defendant could not directly question plaintiff about any lawsuits arising out of his prior accidents. However, to the extent necessary to allow the jury to understand the nature of any of plaintiff's statements made in the prior actions, the defendant was allowed to discuss at trial the earlier litigational landscape. Defendant was not barred from addressing all of plaintiff's prior accidents, treatment, and recovery. As the trial progressed, this in limine determination played virtually no role in defendant's presentation of evidence to the jury or the cross-examination of plaintiff and his expert witness. Indeed, the jury was treated to an expansive exploration of plaintiff's prior history of accidents and injuries. Nevertheless, defendant claims that the in limine ruling "had a chilling effect on counsel for the defendant and curtailed his asking questions which would have demonstrated that Plaintiff was not truthful."

Plaintiff's treating physician and expert witness opined that plaintiff suffered an injury in the form of an aggravation of a pre-existing arthritic condition in his right shoulder that was caused by the 2004 accident. Additionally, the testimony of plaintiff's expert witness expressed the view to a reasonable degree of medical probability that plaintiff suffered the following permanent injuries as a result of the 2004 accident:

"That he had a full thickness rotator cuff tear of his left shoulder with AC joint arthrosis; medial meniscus tear of the left knee; biceps tendonitis of the right shoulder with rotator cuff tear of the right shoulder and exacerbation of AC joint arthrosis; exacerbation of cervical, thoracic, and lumbar spondylosis, and sprain and strain."

Defendant's expert witness unsurprisingly had a different opinion. Distilled to its essence, the defense expert witness opined that plaintiff "has not suffered any permanent injury as a result of this accident."

A unanimous jury, given the full spectrum of facts, found that defendant was fully responsible for the happening of the accident and ascribed permanent injury to plaintiff as a result thereof. It awarded $400,000 in damages to plaintiff, which was reduced by the trial court on defendant's request to $150,000.

II.

We view defendant's arguments on appeal to be of insufficient merit as to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following observations.

Rule 4:49-1(a) requires the trial judge to grant a motion for a new trial "if, 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." An appellate court will not reverse a trial court's ruling on a new trial motion "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Deference to the trial court with respect to intangible effects not contained in the record such as credibility, demeanor, and the feel of the case is appropriate; otherwise, we make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360, 366 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

In denying defendant's motion for a new trial, the trial judge properly pointed out that "[c]ounsel was free to explore all of the injuries, and did so, both with the plaintiff and with Dr. Ross questioning Dr. Ross as to what she was told as to prior accidents which the plaintiff may have been in and questioning the plaintiff about his answers or his yes, his answers to either depositions or interrogatories in this case omitting prior accident or accidents that he was in." The judge concluded the there was no curtailment of the ability of defendant to adequately defend this matter. We find no basis to reverse the trial judge's conclusion and we do not independently conclude that the in limine ruling or the verdict represents a "miscarriage of justice" because it was contrary to law or against the weight of the evidence.

Defendant also argues that various rulings by the court constituted prejudicial error. "Because the determination made by the trial court concerned the admissibility of evidence, we gauge that action against the palpable abuse of discretion standard." Brenman v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We find nothing in this record that suggests such an error is present that would compromise our confidence in the jury's determinations.

Defendant complains about the submission to the jury of plaintiff's alleged aggravation of his pre-existing arthritis. Defendant did not object to the presentation of this evidence either during trial or in the vetting process of jury instructions. Defendant can hardly complain now of strategic decisions made during trial that he wishes were made differently.

A proper jury charge is a prerequisite for a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). "Jury instructions should correctly state the applicable law in clear and understandable language." Boryszewski v. Burke, 380 N.J. Super. 361, 374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). The charge also must be based on the evidence. Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 13-14 (2000). In evaluating an erroneous jury charge, we consider whether the error "is clearly capable of producing an unjust result." R. 2:10-2; Pressler, Current N.J. Court Rules, comment 3.3.2 on R. 2:10-2 (2009). We will reverse a verdict due to an error in the charge only if "it led the jury to a result that it would have otherwise not reached." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2009). In light of all of the injuries claimed by plaintiff as analyzed by both expert witnesses, it has not been persuasively argued especially in the absence of a specific request by defendant for a limiting instruction that plaintiff's aggravation injury should have been removed from the jury's consideration.

A trial judge is authorized to remit a jury's damage award where the damage verdict is so disproportionate to the injury as to shock the court's conscience and convince it that the award is manifestly unjust. The court's authority to reduce damages awarded by a jury is limited to cases in which "the quantum of damages assessed by a jury . . . is so disproportionate . . . as to shock [the] conscience" and require a new trial because "'it clearly and convincingly appears that there was a miscarriage of justice under the law.'" Baxter, supra, 74 N.J. at 596 (1977) (quoting Rule 4:49-1(a)); see Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970).

As a reviewing court considering a claim that the trial court erred by granting a remittitur, we give deference to the trial court's feel for the case and opportunity to assess credibility but otherwise apply the same standard as the trial court, namely, whether the damages awarded were so clearly excessive in light of the evidence, the jurors must have made a mistake that resulted in a miscarriage of justice. Baxter, supra, 74 N.J. at 596-600 (citing Fritsche v. Westinghouse Elec. Corp., supra, 55 N.J. at 330). "In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, and must articulate its reasons for reducing a damages award by reference to the trial record." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (citations omitted). However, a trial judge must not act as "a thirteenth and decisive juror." Dolson, supra, 55 N.J. at 6; see also Johnson, supra, 192 N.J. at 281-82. We are satisfied that the remittitur ordered by the trial judge easily withstands scrutiny under these standards.

Affirmed.

 

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A-1249-08T3

October 8, 2009