MIAH C. CROSBY v. MARTIN GOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MIAH C. CROSBY,

Plaintiff-Appellant,

v.

MARTIN GOOD,

Defendant-Respondent.

Argued June 3, 2014 Decided August 5, 2014

 
Before Judges Alvarez, Ostrer and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1232-11.

Benjamin Goldstein argued the cause for appellant (Drinkwater & Goldstein, L.L.P., and Law Office of Christian A. Pemberton, P.C., attorneys; Mr. Goldstein, on the briefs).

Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief).

PER CURIAM

On December 24, 2009, defendant Martin Good's vehicle rear-ended plaintiff Miah Crosby's car while she waited in a line of traffic. Since liability was not in dispute, the matter was tried only as to damages. The jury made no award. Plaintiff now appeals, contending that the verdict was against the weight of the evidence and that the judge erred by denying her new trial motion. We affirm.

In 2003, six years earlier, plaintiff was seriously injured in a motor vehicle accident. As a result, she underwent several surgeries, including one on her shoulder in 2004, a cervical discectomy in 2005, and carpal tunnel release surgeries in 2004 and 2005. As a result of the 2003 injuries and the ongoing treatment, which included daily pain medication, in 2007 plaintiff was awarded retroactive disability benefits. She never worked after the 2003 accident. Plaintiff continued to actively treat with a pain management specialist to the time of trial.

When this 2009 accident occurred, plaintiff hit the back of her head on the headrest. She was taken by ambulance to a local emergency room, complaining of neck and lower back pain, as well as numbness in her hands and feet. Plaintiff alleged that, after that accident, her pain, which was already quite significant, worsened. She also testified that her activity level declined.

Key to our decision and, no doubt, to the jury's verdict was the de bene esse deposition of Gregory Maslow, M.D., the defense medical expert. He had evaluated plaintiff, coincidentally, in 2007 and 2008 related to the 2003 accident, in addition to his examination after the 2009 accident.

In formulating his opinion, Maslow reviewed plaintiff's medical records,1 including her pain specialist's file notes, made during an office visit two days prior to this accident. She reported chronic and continuing neck pain radiating down her right arm and atrophy of her right calf. A month before the accident, plaintiff was evaluated by an orthopedic surgeon, who recorded her complaints of chronic neck pain, low back pain, problems with the left shoulder, and constant pain at a level of nine on a scale of one to ten.

Maslow also described in detail his physical exam of plaintiff after the 2009 accident. Regarding her neck, she reported no tenderness up to the back of the skull despite complaining of pain in that area. Plaintiff was able to "go through full motion in all planes" with her neck, though she told Maslow that the range-of-motion test hurt. Maslow found "no evidence of neck spasm," which would have been an objective indication that the muscles or nerves in her neck were injured. Additionally, Maslow performed a vertex compression test, looking for nerve impingement by "squeezing the neck" at various points to see if it provoked a complaint. The test results were negative. Plaintiff had no shoulder complications either, which often point to a neck injury.

While examining plaintiff's arms and hands, Maslow found her reflexes and sensory responses were normal. Further, her strength was normal, and, despite the prior carpel tunnel surgery, "[t]here was no evidence of a tunnel problem."

Maslow also examined plaintiff's back. Plaintiff manifested no tenderness or muscle spasms around the thoracic spine. Maslow did find tenderness in plaintiff's lower back. Plaintiff's lower back range of motion was "about half . . . in all planes."

As for plaintiff's legs, Maslow found normal strength and reflexes. He checked for atrophy, or "a loss of muscle bulk," but found none. Maslow conducted a straight leg raise test, which indicated that "there was some nerve irritation" in both of plaintiff's legs; however, when Maslow gave a "sitting root test" to confirm those results, the test indicated "negative on both sides." Additionally, plaintiff "walked normally" and "[t]here wasn't any sign that she had a limp or was dragging her left leg."

Although Maslow acknowledged that plaintiff "did suffer injury[,]" as a result of the accident, he described it as a "soft tissue injury, muscle and ligament overstretch," in other words, a sprain. He also acknowledged that she undoubtedly had some exacerbation of her nerve-related complaints and lumbar radiculitis but opined that there was no objective evidence of a worsening of her condition. Maslow saw no evidence of herniated discs. He noted that she had radiculopathy before the 2009 accident, and he did not consider the condition to have worsened after the 2009 accident.

Despite acknowledging that, as a result of the 2009 accident, plaintiff may have suffered some exacerbation of her symptoms, ultimately Maslow concluded that there was no "evidence that she suffered on an objective basis a worsening of her condition." Given the medication that she was taking after her surgeries, her ongoing treatment, and that she was classified as totally disabled as a result of the 2003 accident, he did not think "anything additional or more for this accident of 2009" was required by way of treatment. He testified contrary to plaintiff's experts, who opined that the 2009 accident substantially worsened the injuries that plaintiff suffered as a result of the 2003 accident.

The written decision denying plaintiff's application for a new trial includes the trial judge's initial observation that a jury's verdict is not set aside unless failure to do so would result in a manifest denial of justice or a verdict so disproportionate as to shock the judicial conscience. She added that, although everyone agreed that plaintiff suffered "some injuries" from the 2009 accident, the extent and nature of plaintiff's injuries were not such that the proofs were disproportionate to the jury's verdict, given that a jury has the option to accept or reject the expert's testimony in whole or in part. Furthermore, plaintiff's own "testimony was not so strong and decisive, that credibility issues could not have played a significant role during the jury's total evaluation process."

Rule 4:49-1(a) describes the standard that a trial court employs in deciding an application for a new trial. The rule states that a "trial judge shall grant the motion 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." A jury's damage assessment is entitled to a presumption of correctness, "unless it is so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [the trial court] that to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). We recently reiterated that a jury "need not give controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010) (internal quotation marks omitted). Indeed, as has been so frequently expressed, a jury may accept or reject an expert's testimony, in whole or in part. State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff d, 130 N.J. 484 (1993).

On the appeal from the denial of a motion for a new trial, we accord substantial deference to the trial judge, who observed the same witnesses as the jurors and developed a "feel of the case." Baxter, supra, 74 N.J. at 600 (internal quotation marks omitted). We only disturb a trial court's decision on the application if we conclude that "a miscarriage of justice under the law" had occurred. Caldwell v. Haynes, 136 N.J. 422, 432 (1994) (internal quotation marks omitted). We accord substantial deference to the trial judge's decision "with regard to the assessment of intangibles, such as witness credibility" in other words, to the court's feel of the case, a vantage point missing from a cold record. Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 230 (2008). Here, the trial judge considered the weight of plaintiff's testimony to have potentially been of particular importance to the jury.

The trial court, before deciding the motion, "reviewed in detail the trial testimony and the videotaped de bene esse deposition of both doctors." It was the trial judge's considered opinion that the injuries were "not so disproportionate . . . as to shock this [c]ourt's conscience."

This plaintiff was so seriously injured from the earlier automobile accident as to have undergone multiple surgeries, suffered from chronic pain, and basically continuously received treatment since 2003. During that time, she was declared completely disabled. And, the injuries that she claimed from the 2009 accident involved the same areas of her body injured in the 2003 event.

Finally, the judge observed that "[p]laintiff's testimony was not so strong and decisive, that credibility issues could not have played a significant role during the jury's total evaluation process." The judge was suggesting that, having seen plaintiff testify, heard about her pre-existing injuries, and listened to the testimony of the experts, the jury's decision was not a miscarriage of justice.

In this case, plaintiff's unique medical status made "the evidence [] susceptible to an interpretation that minimized the monetary equivalent of plaintiff's pain and suffering to its vanishing point." See Kozma, supra, 412 N.J. Super. at 325. Plaintiff said that, after the collision, she went to the emergency room and was discharged after a few hours. She acknowledged that the impact only caused her to strike the back of her head on the headrest. In sum, the jury could have believed that, even if plaintiff suffered more after the 2009 accident, her injuries were transitory and minimal in light of the substantial chronic pain and suffering that she experienced as a result of the 2003 accident. We therefore agree that the jury's verdict did not result in manifest injustice. The jury could have rationally found that the nature of the exacerbation did not warrant compensation. The verdict was not "so distorted and wrong . . . as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (internal quotation marks omitted).

Affirmed.

1 We recognize that Maslow's recitation of plaintiff's medical records did not constitute substantive evidence. However, we briefly describe the testimony in order to illustrate that Maslow credibly concluded that plaintiff had substantial pre-existing, chronic injuries for which she was actively treating. In any event, plaintiff's testimony corroborated the essential extent of her pre-existing injuries and scope of her treatment for those injuries.