JOHN K. WILLYUNG v. WALTER T. DECKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4024-10T2

JOHN K. WILLYUNG,

Plaintiff-Appellant,

v.

WALTER T. DECKER,

Defendant-Respondent.

______________________________

Argued May 15, 2012 Decided June 20, 2012

Before Judges Baxter and Carchman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1150-09.

Eric Christopher Landman argued the cause for appellant (Law Office of Herbert I. Ellis, P.C., attorneys; Mr. Landman, on the brief).

James D. Carton, III, argued the cause for respondent (Carton Law Firm, LLC, attorneys; Mr. Carton, on the brief).

PER CURIAM

Following a jury trial for damages for injuries resulting from an automobile accident, the jury concluded that plaintiff John F. Willyung suffered a permanent injury and awarded him damages of $4700. Plaintiff's subsequent motion for a new trial or, in the alternative, an additur, was denied. Plaintiff appeals, and we affirm.

These are the facts adduced at trial. On March 7, 2007, plaintiff, sixty-nine years old at the time of trial, was involved in a motor vehicle accident when his vehicle was struck by a vehicle operated by defendant Walter T. Decker. Plaintiff was preparing to make a right-hand turn into his driveway from the northbound lane of Five Points Road in Howell when defendant's vehicle, heading south on the same roadway, suddenly entered the northbound lane and collided with plaintiff's vehicle. Defendant stipulated liability.

The right fender, undercarriage and wheel of plaintiff's car were damaged, and according to plaintiff, the impact knocked him around in the car, leaving him in a state of shock. After the accident, plaintiff experienced numbness across his back and neck and felt "woozy." An ambulance transported him to the emergency room, where x-rays were taken; plaintiff received pain medication and "an orthopedic [sic]."

Subsequently, plaintiff sought treatment from a chiropractor to treat pain in his upper back and neck. He was treated by the chiropractor for approximately three months. Plaintiff also received physical therapy at Middletown/Holmdel Physical Therapy, which consisted of exercises and manipulations of his neck, arms and back. This treatment yielded temporary relief that would last a day.

Plaintiff also consulted a pain management specialist, who administered an epidural injection into plaintiff's neck and another into his upper back. The injection provided approximately seventy-five percent pain relief for approximately one month before the pain returned. Plaintiff described the pain on a scale of zero to ten, with ten being the most pain he had ever experienced, as being an eight for his neck and a seven for his mid back. Plaintiff also consulted a neurologist, an orthopedic surgeon, Dr. Cary Glastein, and another pain management specialist, Dr. Scott Woska. Plaintiff continued to experience pain in his mid-back and pain that would radiate down his arms; his hands were numb. Woska treated plaintiff for approximately one year, until March 2010. During this time, Woska performed three procedures, including two epidurals and a radio frequency procedure to burn nerve endings. Each of these treatments provided relief that lasted for approximately one month. Woska opined as to the permanency of pain in plaintiff's neck; however, other than plaintiff's self-serving testimony, no expert proffered an opinion that there was a permanent injury to plaintiff's back.

In early 2010,1 plaintiff was diagnosed with and began treatment for non-Hodgkins lymphoma. During his treatment, plaintiff took morphine sulfate twice daily for four months. The morphine eliminated the pain related to the injuries sustained during the motor vehicle accident.

Before the accident, plaintiff was retired but remained active. He was a member of a health club, where he exercised on a daily basis; he also played racquetball five or six times a week for a few hours at a time, rode his bike and exerted himself in the upkeep of his home. Plaintiff was also actively involved in breeding Weimaraner dogs.

According to plaintiff, the accident had a profound impact on his lifestyle and activities, as he claimed that he "do[es] 20, 25 percent of what [he] used to do." His involvement with the Weimaraners consists of letting them out of the kennel and putting them back. Plaintiff no longer walks the dogs because of the pain in his neck, upper back and arms, although during cross-examination, plaintiff conceded that he continues to raise litters of puppies with the help of his son and his tenant.

Plaintiff performs physical therapy exercises at the health club, with lighter weights than he previously used; after he exercises, he requires recovery time of at least a day from pain in his neck and upper back. Plaintiff plays racquetball twice a week for thirty to forty-five minutes at a time because of pain. He requires assistance cooking and cleaning his home because of numbness in his hands,2 and since the accident, he has had to double the frequency of visits from his cleaning service. Plaintiff continues to describe his pain as "seven-eight" in his neck, shoulders and arms and as "eight" in his mid-back. He takes Extra-Strength Tylenol, Tylenol PM and sleeping medication, to treat the pain and permit him to sleep.

From 2008 to 2010, plaintiff "didn't do anything" because of his cancer. During this time, he did not play racquetball or engage in physical therapy exercises. Plaintiff indicated that he continues to have a forty percent loss of vitality and physical abilities because of cancer.

Woska opined that plaintiff had a herniated disk in his neck that was consistent with the kind of condition that usually results from automobile accidents. Plaintiff's spinal column otherwise evidenced minimal degenerative changes. Woska further stated: "Once a disk is herniated, it never goes back to normal."

Dr. Thomas Cuomo, an expert retained by the defense, opined that plaintiff had a disc osteophyte complex, which is suggestive of degenerative changes rather than an acute injury.

The jury returned a verdict by a vote of seven to zero that plaintiff had sustained a permanent injury that was proximately caused by Decker. By a vote of six to one, the jury awarded damages to plaintiff in the amount of $4700, and a judgment was entered for that amount, together with interest and costs.

Plaintiff moved for a new trial on damages or, in the alternative, an additur, on March 2, 2011. Defendant filed opposition and informed the judge of a Verdict Search3 draft for publication that contained information obtained from one of the jurors about the jury deliberations. Verdict Search personnel informed defense counsel that, during an interview with a juror about the deliberations after the jury rendered its verdict, the juror disclosed that the jurors arrived at the sum of $4700 by awarding $100 for each month between the time of the accident and the time of the trial. The judge declined to consider the Verdict Search report when deciding plaintiff's motion for a new trial, or an additur, on the grounds that the statements in the report were hearsay. The judge denied the motion, and this appeal followed.

On appeal, plaintiff asserts that the jury verdict was grossly inadequate and constituted a miscarriage of justice. He also asserts that comparable reported verdicts were all higher than the amount he received. He concludes that he was entitled to an additur, or a new trial.

We begin our analysis with a brief discussion of our standard of review when considering a challenge to a jury verdict.

Honoring the principle of deference to the findings and conclusions of a jury, Baxter v. FairmontFood Co., 74 N.J. 588, 598 (1977) (recognizing that "[i]n the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework"), the presumption of the appropriateness of a jury determination is only overcome when there is clear and convincing evidence of a miscarriage of justice. R. 4:49-1(a).

Trial courts are encouraged to use an additur when warranted so as to avoid the unnecessary expense and delay of a new trial. CarbisSales, Inc. v. Eisenberg, 397 N.J. Super. 64, 84 (App. Div. 2007) (citing Verdicchio v. Ricca, 179 N.J. 1, 38-39 (2004)). "[T]he decision to order a[n] [additur] must spring from an overriding sense of injustice, a shock to the court's conscience, a certain abiding belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable and appropriate." He v.Miller, 207 N.J. 230, 252 (2011). The determination should be made by viewing the totality of the evidence in the light most favorable to the party opposing the motion for relief. Jastram v. Kruse, 197 N.J. 216, 220 n.2 (2008). The standard of review on appeal is "substantially similar to that used at the trial level, except that the appellate court must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles[.]" He, supra, 207 N.J. at 255 (quoting Jastram, supra, 197 N.J. at 230).

With these principles in mind, we set forth similar considerations when assessing the adequacy of a damage award. The principal goal of damage awards in personal injury actions is to compensate fairly the injured party. Deemer v. SilkCity Textile Mach. Co., 193 N.J. Super. 643, 651 (App. Div. 1984). Fair compensatory damages make the plaintiff whole. He, supra, 207 N.J. at 249.

Plaintiff argues that the jury verdict was shockingly low. The jury awarded $4700; plaintiff surmises that, in light of the fact that forty-seven months had passed from the time of the injury to the time of the trial, the jury award only reflected the time between the accident and the trial. Plaintiff maintains this award runs counter to the jury's finding that plaintiff sustained a permanent injury as a result of the accident.

The judge determined that the jury award did not shock the judicial conscience and cited the following facts to support her conclusion: the evidence in the record demonstrates that plaintiff continued to have the same interests and activities he had pursued before the accident; during the years since the accident, he has received treatment for cancer, and both the disease and the treatment have caused alterations in his lifestyle; plaintiff only takes Tylenol and Tylenol PM to manage his pain. The judge characterized as mere "speculation" plaintiff's argument that the $4700 award was at odds with the permanency finding.

We note that during the period when plaintiff was prescribed morphine to manage pain associated with his cancer treatment, he did not experience any pain from the car accident-related injury. If the jury excluded this time from consideration in determining the damages award, then the amount of time between the accident and the trial during which plaintiff suffered from this injury would be less than forty-seven months. In sum, plaintiff's argument is mere conjecture and does not provide adequate grounds for overturning the jury's award.

Plaintiff asserts that the trial judge failed to perform the analysis described in He, and the judge's conclusion regarding the damages award was incorrect. Specifically, plaintiff claims that the judge failed to consider comparable case verdicts. Although the Court approved of the trial judge's analysis of comparable cases in He, that case did not change the preexisting analytical framework, wherein the Court has stated that a trial court may rely on its knowledge of other injury verdicts, and if it does so, it must provide a factual analysis of how the award is different or similar to others to which it is compared; however, the trial court is not required to do so. Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). See also He, supra, 207 N.J. at 254 (observing that it is incumbent on a trial court to state those cases, experiences, or views that inform its consideration and that give content to its decision). Cf. He v. Miller, 199 N.J. 538, 539 (2009) (remanding to the Law Division for a "complete and searching analysis," including "a factual analysis of how the award is different or similar to others to which it is compared" (quoting Johnson, supra, 192 N.J. at 281).

Even if plaintiff's interpretation of He were correct and the judge was required to consider other jury awards, we find no basis for overturning this verdict. Plaintiff was retired before the accident, and since the accident, he has received treatment for cancer. Plaintiff's lifestyle had not been substantially impaired by the accident. For instance, he has continued to breed dogs and exercise frequently. The periods of inactivity in his life since the accident correspond with his treatment for cancer, and plaintiff acknowledged the causal relationship between that illness and his lifestyle changes. Despite plaintiff's testimony about back pain, the focal point of the expert testimony was plaintiff's neck; the evidence in the record showed only that plaintiff had a neck injury, which he treated with mild painkillers.

The difficulties in the analysis urged by plaintiff and claimed to be required by He are best typified by the comparative cases urged here. In Damico v. Kovush, No. L-4963-07 (Law Div. June 15, 2010), the jury found a permanent injury and awarded $10,000 to a man in his mid-forties who suffered a C5-6 herniation as a result of a car accident. The plaintiff in that case received a lumbar epidural injection, took Advil to manage his pain and experienced lifestyle impairments that included discomfort while traveling and the need to work in a careful manner when performing household chores. The plaintiff in Damico was at least twenty years younger than plaintiff and was not retired; additionally, there is no evidence that Damico battled a life-threatening illness. The differences between the two plaintiffs highlight the reasonableness of the jury in this case in awarding plaintiff less than the damages awarded in Damico. The same logic applies in distinguishing Howard v.Lane, No. L-4838-05 (Law Div. January 8, 2009), where a nineteen-year-old plaintiff who suffered numerous permanent injuries received an award of $25,000. See also Josephv. Gillen, No. L-473-06 (Law Div. January 15, 2009) (awarding $175,000 to a thirty-four-year-old plaintiff who suffered back and neck pain and whose treating physician predicted future degeneration and pain in the area of the injury, most likely requiring future treatment).

In Davis v. Burst, No. L-4704-07 (Law Div. February 25, 2010), the jury awarded $47,800, reduced to $35,850 for comparative negligence, to a plaintiff who claimed soft-tissue back and neck injuries, aggravation of a previous lower back injury, and cervical and lumbar disc herniations. The number of injuries suffered by thirty-nine-year-old Davis was greater than plaintiff's, and the impact of those injuries on Davis' life was much more significant: he could not return to work as a home mover because he could no longer engage in heavy lifting, and he was unable to secure sedentary employment. Here, plaintiff's income was not impacted by his injury, as he was retired; his lifestyle but it continued, albeit somewhat diminished by the accident.

Similarly, plaintiff's award does not appear unreasonable when compared with awards in cases where the plaintiffs undergo surgery to treat their injuries. In Ruiz v. Cobuzzi, No. L-3039-04 (Law Div. October 2, 2008), before the parties reached an agreement, the jury would have awarded $40,000 in damages to a plaintiff who underwent surgery that left anatomical distortions and had residual complaints of pain. Here, plaintiff received a much lower award but did not undergo surgery, let alone surgery that resulted in anatomical distortions.

The rest of the verdicts plaintiff provided are based on cases that are factually distinguishable from this case for similar reasons. Rather than demonstrating that plaintiff's award was grossly inadequate, the other verdicts confirm that the jury in this case rendered a verdict that fell within the relatively wide range of what is acceptable and appropriate regarding plaintiff's damages award. The reasons the judge cited during her assessment of the record serve to distinguish other jury awards from plaintiff's.

In Baxter, the Court listed factors to consider in determining whether to grant a request for a new trial or an additur: "the incredible testimony offered by a party, the overwhelming weight of the evidence with respect to a certain fact, [or] the failure of a party to produce any countervailing medical or other expert testimony[.]" Supra, 74 N.J. at 598-99.

Here, plaintiff's characterization of his health and his impairment resulting from his injury was tempered through cross-examination and the submission of other testimony and evidence. There is no reason to grant a new trial on damages on this basis. Defendant offers no explanation for his statements that a new trial is warranted because "both doctors' testimony was presented by video-taped testimony" and because "there was a question as to whether the verbal threshold is met." As for defendant's concern about the doctors' testimony, Baxter counseled judicial scrutiny when one party fails to present expert testimony. Id. at 599. Here, by contrast, each party offered expert testimony before the jury determined that plaintiff had suffered a permanent injury, thereby reducing concern about the jury's decision-making process.

We conclude, as did the trial judge, that while the award was low, there was no miscarriage of justice in this trial.

A

1 Plaintiff presented contradictory testimony during cross-examination, when he indicated that his last chemotherapy treatment was in 2009, or two years before the trial; elsewhere, he testified that he had cancer as early as 2008.

2 Woska indicated that plaintiff "had a little bit of tingling [in his arms and hands] on occasion, but it was - it was not a predominant symptom."

3 A business enterprise that researches the details of jury verdicts.