JULIE ANN KIMBLE v. DREW N. LAVISTA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JULIE ANN KIMBLE, FREDERICK

KIMBLE, H/W and NICOLE

KIMBLE, by her Guardian Ad

Litem, JULIE ANN KIMBLE,

Plaintiffs-Respondents/

Cross-Appellants,

v.

DREW N. LAVISTA,

Defendant-Appellant/

Cross-Respondent,

and

ANNA D. LUPO,

Defendant.

_______________________________

June 6, 2014

Argued January 27, 2014 Decided

Before Judges Harris and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-0213-10.

Richard E. Brennan argued the cause for appellant/cross-respondent (McElroy, Deutsch, Mulvaney & Carpenter, L.L.P., attorneys; Mr. Brennan, of counsel and on the brief; John W. Kaveney, on the brief).

James C. DeZao argued the cause for respondents/cross-appellants.

PER CURIAM

Defendant Drew N. Lavista appeals from a judgment for $506,301.38 entered against him following a jury verdict finding that plaintiff Julie Ann Kimble sustained a permanent injury proximately caused by a motor vehicle accident on November 13, 2008. Defendant argues that plaintiff's counsel made "improper and inflammatory" comments in his opening and summation; that the verdict was "grossly excessive" requiring a new trial on damages; and that the trial judge erred in permitting plaintiff to introduce into evidence "outstanding medical bills in violation of N.J.S.A. 39:6A-12."

Plaintiff1 cross-appeals and argues the trial judge erred in dismissing the case as against defendant Anna Lupo, Lavista's grandmother and the owner of the car he drove at the time of the collision, because the defense "stipulated liability." We consider these claims in light of the record and applicable principles of law.

I.

We discern the following facts from the trial record.

On November 13, 2008, the forty-year-old plaintiff was driving on Stanhope Road in Sparta, when defendant Lavista pulled out from a side street onto Stanhope Road and thereby caused a collision between the two vehicles. The airbags deployed in plaintiff's vehicle upon impact, which she described as "tremendous" and "very heavy."

Plaintiff said she momentarily lost consciousness upon impact, and felt "immediate pain" in her neck, back, right hip and right ankle. An ambulance squad arrived on the scene and plaintiff was immobilized on a back board and taken to Newton Memorial Hospital. At the hospital, plaintiff was examined and x-rays were taken, which revealed no fractures. She was released that day with a neck brace and was given a cane to assist her in walking.

Plaintiff was sore and in pain after she returned home and she remained "bedridden" for two days. On November 18, 2008, plaintiff began treatments for her neck and back pain with Dr. David Simon, a chiropractor. Dr. Simon referred plaintiff to physical therapy for injuries to her ankle and hip.

Plaintiff said she had no physical problems before the accident, and skied and enjoyed other physical activities without restriction. However, after the accident, plaintiff said she suffered daily pain in her neck, back, hip and ankle; was unable to undertake her usual activities; was restricted in her movements; and was unable to perform many chores she formerly performed, both at home and at the elementary school where she taught.

Plaintiff was referred to Dr. David Basch, an orthopedic surgeon, on November 26, 2008, who undertook an orthopedic examination of plaintiff and thereafter saw her six or seven times over the course of the next nine months. Dr. Basch opined that plaintiff sustained chronic cervical and lumbar strains, right ankle strain with lateral ligament instability, left knee and right hip bursitis, and "dis[c] injuries" in her neck and back, all of which are "permanent."

Dr. Basch said he "did discuss with [plaintiff], on multiple occasions, surgery for her conditions." He explained that plaintiff "would need" arthroscopic surgery to the right ankle to assess potential cartilage damage, as well as a "reconstruction of the [torn] ligaments on the outside . . . of the ankle." He added that plaintiff "would need" an anterior cervical discectomy and "fusion of the involved levels." Dr. Bach explained that such surgery entailed removal of the intervertebral discs within the "involved" part of the cervical spine, replacement of the discs with "bone" and then fusing the area with a plate and screws. He generally described the risks of surgery as including infection, nerve damage, "failure to heal," paralysis and death, among others.2 Dr. Basch last saw plaintiff on August 12, 2009, three years prior to trial.

Dr. Simon, a chiropractor, treated plaintiff from November 2008 through October 2009, and referred plaintiff to Dr. Basch and to a pain management specialist. Dr. Simon also referred plaintiff for a magnetic resonance imaging (MRI) study which was completed in January 2009. Dr. Simon examined the MRI films which he explained showed that plaintiff had three cervical disc herniations and one lumbar herniation, as well as a loss of the normal lordotic curvature of the spine. He explained that all these conditions, plus plaintiff's left carpal tunnel syndrome, were permanent injuries caused by the accident.

Dr. Ramundo, a pain management physician, testified that he first examined plaintiff on August 21, 2010, at which time plaintiff complained of pain radiating down her arm, numbness, and radiating back pain. He explained to plaintiff that given the length of time she had tried to address, without success, her pain through chiropractic adjustments and physical therapy, those modalities would likely be ineffective thereafter. Dr. Ramundo then administered epidural injections to plaintiff's spinal area to diminish her pain. He opined that plaintiff's prognosis was "not good" and that "if she doesn't respond to the injections, she is looking at spinal surgery."

Plaintiff's final expert witness was a radiologist, Dr. Brownstein, who reviewed plaintiff's MRI films and confirmed the presence of the herniations on the films. Plaintiff also was permitted to adduce evidence that she had incurred $12,744.00 in medical expenses that were "reasonable and necessary" as a consequence of her injuries.

Defendant's expert, an orthopedic surgeon, examined plaintiff and reviewed her MRI films. He opined that the MRI films showed no herniations in either the cervical or lumbar spines, but did show significant disc degeneration in those areas unrelated to the accident. He added that he found no objective medical evidence supporting the claim that plaintiff suffered a permanent injury proximately caused by the accident.

During the course of trial, the trial judge denied defendant's motion to strike plaintiff's claim for unreimbursed medical expenses of $12,744.00 in excess of the $15,000 personal injury protection (PIP) limit in her automobile insurance policy. The judge determined that such expenses as exceeded plaintiff's $15,000 PIP limit were not reimbursable and thus could be presented to the jury as part of plaintiff's damage claim.

Following deliberations, the jury returned its verdict finding that plaintiff had, in fact, sustained a permanent injury in the accident and awarding her $459,062.50 for her pain, suffering, disability, impairment and loss of enjoyment of life, as well as $12,744 in medical expenses. Judgment was thereafter entered for plaintiff on the verdict for $506,301.38 a figure that included interest.

II.

Relying largely on Henker v. Preybylowski, 216 N.J. Super. 513 (App. Div. 1987), defendant argues that remarks made by plaintiff's counsel during his opening and closing statements to the jury were so "improper and inflammatory" that a new trial is warranted. Because defendant's trial counsel did not object at any point to the statements, defendant's appellate counsel argues that the failure of the trial judge to have intervened was "plain error."

Defendant also argues that the verdict is excessive and that the trial judge erred in denying a motion for a new trial. Having reviewed these arguments in light of the record and applicable law, we affirm.

With respect to the comments of plaintiff's counsel, defendant adverts to his reference on opening that defendant "comes out" of a side street, notwithstanding that his line of travel was controlled by a stop sign, and then "doesn't make the turn in time" causing a collision. Defendant argues that because liability was stipulated, the facts attendant upon the accident had "nothing to do" with plaintiff's injuries and only served to inflame the jury.

Defendant adds that plaintiff's counsel, during both his opening and summation, stated that plaintiff "waited four years" for the defendant to "even admit" that he caused the accident, and that "they still don't admit they injured her in any way [sic]." Defendant argues that the latter statement was untrue and that, overall, the comments of plaintiff's counsel amounted to "illegitimate advocacy" warranting a new trial.

Because there was no objection to any of plaintiff's counsel's comments, we review counsel's comments only for plain error. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001). Plain error is error clearly capable of producing an unjust result. R. 2:10-2. The rationale underlying the plain error rule is that a court should not countenance an unjust result because of the oversight of the advocate. Jurman v. Samuel Braen, Inc., 47 N.J. 586, 591 (1966). If a reviewing court upon canvassing the record harbors reasonable doubt "as to whether the error led the jury to a result it otherwise might not have reached," a new trial must be ordered. State v. Macon, 57 N.J. 325, 336 (1971); Szczecina v. PV Holding Co., 414 N.J. Super. 173, 184 (App. Div. 2010).

In Henker, we reversed a plaintiffs' verdict and remanded for a new trial because of a host of improprieties by plaintiffs' counsel, including making a "golden rule" argument to the jury, and inviting them to "award damages in the amount that they would want for their own pain and suffering"; by improperly suggesting a formula for the award of damages; and by improperly disparaging defense counsel. Supra, 216 N.J. Super. at 519-20. With respect to the latter, we noted with disapproval counsel's statement that the defense "forced" plaintiffs to trial by "challeng[ing] them on liability" and "challeng[ing] us on our injuries with no evidence." Id. at 518. We explained that such an argument was improper because there was "no evidence that defendant acted in bad faith in either the liability or damages trial." Ibid.

When we view the remarks of plaintiff's counsel in the context of the entirety of the opening and summations that were made, however, we find no basis on which to conclude such isolated comments, however unwarranted, were clearly capable of producing an unjust result. The comments of plaintiff's counsel were isolated, and the trial itself was conducted with dignity and courtesy by both counsel. Moreover, the comments of plaintiff's counsel about the mechanics of the accident do not appear to us to be improper in any respect, and were the subject of direct testimony by plaintiff at trial.

At a minimum, "trials must be conducted fairly and with courtesy toward the parties, witnesses, counsel, and the court." Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003). However, "[w]hile a [litigant] is entitled to a fair trial, he is not entitled to a perfect trial." Risko v. Thompson Muller Auto. Group, Inc., 206 N.J. 506, 518 (2011) (quoting State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000)).

Attorneys have broad latitude in making closing statements, but "[s]ummations must be fair and courteous, grounded in the evidence and free from any 'potential to cause injustice.'" Risko, supra, 206 N.J. at 522 (quoting Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009)). Counsel must not say things that would undermine the jury's deliberations. Id. at 522-23. Indeed, "counsel may argue from the evidence any conclusion which a jury is free to arrive at" so long as the language used does not go beyond the bounds of legitimate argument. Spedick v. Murphy, 266 N.J. Super. 573, 590-91 (App. Div.), certif. denied, 134 N.J. 567 (1993). Moreover, "counsel may draw conclusions even if the inferences that the jury are asked to make are improbable, perhaps illogical, erroneous or even absurd." Ibid. Applying these standards, we find no plain error at trial.

We next turn to defendant's argument that the verdict was excessive. We begin by stating some general principles that guide our analysis. We will not reverse a trial court's decision to deny a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. That inquiry requires employing a standard of review 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, such as witness credibility. Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). See also Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

Because juries have broad latitude to determine damages, "the standard for granting a new trial . . . is necessarily high." Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). "A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela that it may be said to shock the judicial conscience." Ibid. A court "must be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Id. at 281 (citing R. 4:49-1(a)).

In determining whether the denial of remittitur or a new trial was proper, this court is bound by the same standards as a trial court. Jastram, supra, 197 N.J. at 228-231, 235; Baxter, supra, 74 N.J. at 598; McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 597 (App. Div. 2002). Unless a jury's award of damages is so disproportionate to the injury and resulting disability, the trial judge should not disturb the award. Jastram, supra, 197 N.J. at 230; Baxter, supra, 74 N.J. at 595. Thus, to qualify for remittitur or a new trial, as we have noted, "the jury's award must shock the judicial conscience." McRae, supra, 349 N.J. Super. at 597 (citing Baxter, supra, 74 N.J. at 596); Ming Yu He v. Miller, 207 N.J. 230, 252 (2011).

Here, the trial judge's ruling is clearly supported by the record, and does not amount to an abuse of discretion. The jury verdict in this case did not constitute a miscarriage of justice nor did the jury's award of damages "shock the judicial conscience." McRae, supra, 349 N.J. Super. at 597. Here, "the evidence in support of the jury verdict [was] not insufficient[,]" and the trial judge's decision to deny the motion for a new trial, or in the alternative, a remittitur, should not be disturbed. Crego v. Carp, 295 N.J. Super. 565, 572 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997); Amaru v. Stratton, 209 N.J. Super. 1, 7 (App. Div. 1985).

We note that plaintiff's evidence showed that a physically active forty-year-old woman without any impairments sustained three cervical disc herniations, a lumbar disc herniation, ankle and hip injuries and carpal tunnel syndrome in the accident. Plaintiff sought chiropractic treatment and physical therapy to improve her condition and reduce her pain. She then underwent epidural injections when the more conservative modalities proved ineffective in reducing her pain and restrictions, and, according to the testimony of her orthopedic surgeon,3 "would need" a discectomy and fusion as well as arthroscopic surgery as surgical alternatives to her prior treatments. Plaintiff and other lay witnesses testified to the limitations and restrictions plaintiff now faces as a consequence of her injuries, and the impact these limitations have had upon her life.

The principal goal of damages awards in personal injury actions is to compensate fairly the injured party. Deemer v. Silk City Textile Mach. Co., 193 N.J. Super. 643, 651 (App. Div. 1984). Fair compensatory damages make the plaintiff whole. Ming Yu He, supra, 207 N.J. at 249.

Assigning a monetary award to pain and suffering, however, is difficult because that kind of harm is not easily quantified. Caldwell v. Haynes, 136 N.J. 422, 442 (1994). Nonetheless, our system of justice presumes the correctness of a jury verdict, Baxter, supra, 74 N.J. at 598, which is only overcome when there is clear and convincing evidence of a miscarriage of justice. Rule 4:49-1(a). In other words, juries are "given wide latitude in which to operate." Johnson, supra, 192 N.J. at 280.

Thus, a trial court should only disturb a jury's damage award when it is "so disproportionate to the injury and resulting disability as to shock the conscience" and when to sustain the award would be "manifestly unjust." Baxter, supra, 74 N.J. at 604 (internal quotation marks omitted). The trial judge should not substitute his or her judgment for that of the jury, Johnson, supra, 192 N.J. at 281, and the verdict is to be set aside only when it is "wide of the mark" and pervaded by a sense of "wrongness[.]" Ibid. (internal quotation marks omitted). Given plaintiff's evidence at trial, which the jury was clearly entitled to accept, we do not find the verdict to be either "wide of the mark" or pervaded by a sense of wrongness.

III.

We next address defendant's claim that the trial judge erred in permitting the jury to consider as an "economic loss" $12,744 in medical costs incurred by plaintiff over the amount of the $15,000 PIP limit in her automobile insurance policy.

The statutes governing this question are N.J.S.A. 39:6A-2(k) ("Economic loss" is defined as "uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses."); and N.J.S.A. 39:6A-12 (stating that evidence of amounts collectible or paid to an injured person under a standard automobile insurance policy, or for medical expense benefits under a basic automobile insurance policy is inadmissible in a civil action for recovery of damages for bodily injury, but that "[n]othing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party"). In Wise v. Marienski, 425 N.J. Super. 110, 126 (LawDiv. 2012), the court held that N.J.S.A. 39:6A-12 does not preclude recovery of medical expenses beyond those collectible or paid under a statutory PIP plan, and noted

[i]t is incongruous that a standard policyholder, who had chosen a lower option provided for by the Legislature, and accepted the risk of indebtedness to medical providers, would be prohibited from entering his or her expenses into evidence as well. There is little evidence that the Legislature intended to make such a distinction between those who can afford maximum coverage and those who cannot. . . . [T]he provision for lesser amounts of coverage was to enable lower-income drivers to enter the no-fault system, not have them take on potentially insurmountable medical bills in the event of a serious accident, with no means of recovery.

[Ibid.]

We agree. We perceive no error in the trial court's denial of defendant's motion to restrict these proofs.

The remaining arguments raised by defendant, as well as plaintiff's arguments on the cross-appeal, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 We refer to plaintiff Julie Ann Kimble in the singular despite the fact that her husband and her daughter were also named as plaintiffs in the complaint. We do this for ease of reference, given that Ms. Kimble was the only party to whom an award was given. The jury did not award anything to plaintiff's husband on his per quod claim, and no proofs were offered on behalf of the daughter.

2 Plaintiff testified without objection that Dr. Basch "recommended that surgery be done" if after "less invasive things" plaintiff was still "having pain." However, Dr. Basch never testified that he had ever, in fact, recommended surgery to plaintiff.

3 The testimony respecting surgery was, as we noted earlier, not objected to by defendant.