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March 27, 2015


Argued December 4, 2013 Decided

Before Judges Fuentes, Simonelli and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1843-09.

Stephen H. Schechner argued the cause for appellant (Schechner Marcus LLP, attorneys; Mr. Schechner, of counsel and on the briefs; Andrea S. Glaser, on the brief).

Robert E. Margulies argued the cause for respondent (Margulies Wind, P.C., attorneys; Mr. Margulies, Jeffrey M. Rich, Dane Levy, and Steven Effres, of counsel; Jack Jay Wind, on the brief).

The opinion of the court was delivered by


In this dental malpractice case, a jury returned a verdict against defendant Howard R. Siegler, D.D.S., and in favor of plaintiff Lauren Sheets in the amount of $2,300,035. Defendant raises the following arguments on appeal: (1) the trial judge improperly denied defendant's motion for a new trial pursuant to Rule 4:49-1, or in the alternative, for remittitur; (2) plaintiff presented opinion testimony based on supplemental information provided to defendant in an untimely fashion and in violation of Rule 4:17-7; (3) the trial judge misapplied Rule 4:16-1 by permitting plaintiff's counsel to read portions of two expert witnesses' deposition testimony to the jury, thereby depriving defense counsel of the opportunity to cross-examine these two witnesses; and (4) the trial judge improperly permitted plaintiff to introduce a supplemental expert report in violation of a discovery order entered by a different judge.

After reviewing the record developed by the parties before the Law Division and mindful of our standard of review, we reject these arguments and affirm.


Plaintiff was twenty-five years old in 2007 when her family doctor suggested it may be the right time in her life to have her wisdom teeth extracted. She had an initial consultation with defendant on March 5, 2007. Defendant extracted plaintiff's four wisdom teeth a little over a month later, on April 13, 2007. Defendant performed the extraction after administering an anesthetic that plaintiff described "put [her] to sleep." She testified that when she regained consciousness, she began screaming and felt excruciating pain. Plaintiff was completely asymptomatic before the extraction. Defendant prescribed narcotic pain medication in tablet form; plaintiff testified the medication made her nauseous and caused her to vomit.

At her post-operative visit with defendant three days after the extraction, plaintiff complained of not being able to "feel" her tongue. According to plaintiff, defendant told her that her symptoms were "definitely not normal," but that "sometimes these things can resolve themselves." However, plaintiff's symptoms did not improve. She testified that her "tongue, the floor of [her] mouth and the gum line" were completely numb. She also felt a shooting "pain that came from the very back" of her "furthest tooth on the right side"; this pain would "zing forward . . . through [her] tongue." Collectively, the pain and numbness caused her "[a] lot of difficulties[.]" She had trouble swallowing, speaking, and was "drooling on the right side of [her] mouth[.]"

After consulting with several dentists and related medical professionals,1 plaintiff decided to undergo another surgical procedure to repair the damage to her right lingual nerve. This surgery was performed on September 13, 2007 by Dr. Joseph W. Foote, D.M.D., M.D., an oral surgeon affiliated with the University of Pennsylvania Health System, Penn Presbyterian Medical Center. Dr. Brian C. Harris, D.D.S., M.D., assisted Dr. Foote during the course of the procedure.

Dr. Foote's postoperative report dated September 17, 2007, indicated the following findings with respect to the cause of plaintiff's injury

As the nerve tracked posteriorly, a large amount of scar tissue was identified in the area of previously extracted tooth #32. A neuroma2 appeared to be present. At this location, there appeared to be no connection to the proximal portion of the right lingual nerve. At this point in the procedure, an attempt was made to identify the proximal segment of the right lingual nerve. Blunt dissection continued along the medial aspect of the ramus. Approximately 1.5 cm to 1 cm above the proximal segment of the right lingual nerve was identified just medial to the mandibular ramus. There was approximately a 1 cm gap between the proximal segment of the right lingual nerve and the distal segment of the right lingual nerve. The most distal extent of the proximal segment had a rounded edge. At this point, both segments of the previously separated nerve were debrided. The most distal extent of the proximal segment approximately 1 mm was cut off the most distal portion of the proximal segment in order to remove the rounded edge of the nerve. On the distal segment, the scar tissue/neuroma was excised. At this point, the proximal segment under minimal tension following repair and appeared to be stable. The surgical wound was then cleansed with copious amounts of normal saline and the incision was closed with #3-0 chronic gut in running fashion.

[(Emphasis added).]

Dr. Foote was able to repair and reconnect the lingual nerve defendant negligently severed in the course of extracting plaintiff's wisdom teeth, however, plaintiff continued to experience the same difficulties she had before the surgery. Plaintiff testified to having difficulty speaking; the drooling continued and she was not able to stop liquids from coming out of the right side of her mouth. She had pain in her gums and tongue, and could not feel sensations of cold or hot liquids.

Plaintiff continued to see Dr. Foote several more times after her surgery in September 2007 until the end of 2009. While under Dr. Foote's care, plaintiff's symptoms persisted. She also received a number of steroid injections administered by Dr. Foote to treat a painful neuroma that had grown in her mouth. She stopped seeing Dr. Foote towards the end of 2009, after he was diagnosed with a terminal illness. Dr. Foote succumbed to his illness and died sometime thereafter. Plaintiff began seeing an oral surgeon she identified at trial only as "Dr. Mooney." This was approximately two years after the surgery performed by Dr. Foote. In response to her attorney's question on direct examination, plaintiff testified that during the period of time before she consulted Dr. Mooney, her symptoms reached a "plateau . . . [i]n other words . . . they became constant and not changing[.]"

Plaintiff's symptoms became considerably more intense in December 2010. She first noticed a throbbing pain after physically exerting herself while snowboarding. She described feeling a "very, very sharp" pain. These intensified symptoms prompted plaintiff to consult with Dr. Joel S. Berger, D.D.S., M.D., an oral and maxillofacial surgeon. Dr. Berger practices medicine in San Diego, California.

Dr. Berger saw plaintiff for the first time on February 18, 2011, in his office in San Diego, California. The records of the examination reflect plaintiff complained to Dr. Berger of feeling "sharp pain on the right floor of the mouth with pain increasing." This pain had been increasing since the time of the original injury, and continued after the surgery performed by Dr. Foote to repair the lingual nerve.

Defendant's attorney deposed Dr. Berger on June 16, 2011.3 In the course of his deposition, Dr. Berger indicated that his assessment or diagnosis of plaintiff's condition was that "she had a neuroma of the right lingual nerve." Dr. Berger also described the treatment options he discussed with plaintiff

Well, Ms. Sheets was under medical management at the time of this pain and I explained to her that she could continue with medical management and that could be varied and there's different options of treatment, but if medical management wasn't successful and her symptoms were still bothering her, then the only option would be to go back in and excise the neuroma and re[-]repair the nerve.

Dr. Berger confirmed his diagnosis and recommended treatment options in his written report to plaintiff's attorney dated February 25, 2011.

Plaintiff also consulted Dr. David A. Sirois, D.M.D., Ph.D., a pain management specialist who practices in New York City. Dr. Sirois submitted a written report dated May 8, 2011, directly to plaintiff. After examining plaintiff and taking from her a medical history, Dr. Sirois indicated that he discussed with her treatment options that did not involve another surgical intervention. Dr. Sirois opined

Two classes of adjuvant medications for neuropathic pain could improve her symptoms: tricyclic antidepressants and/or selected anti-convulsant medications. In my opinion her symptoms are likely to improve with medication, but not be completely relieved.

If plaintiff enjoyed complete relief after taking the appropriate combination of medication for a period of four months without any significant side effects, she could attempt to taper her dosage with the goal of discontinuing the use of medication completely. Dr. Sirois concluded his letter-report to plaintiff with the following caveat

However, I believe complete remission is not likely and if medications do provide some measure of relief their use would be indefinite. Her decision[-]making is entirely quality-of-life based, weighing the relative benefits of medication to their common side effects of impaired cognitive performance, fatigue, weight gain, urinary retention and more. As a young woman with a future interest in having children she would be advised to stop these medications during pregnancy.

. . . .

I would advise Ms. Sheets to consider exploring medication management over the next 6-8 months so that she might better be able to evaluate the relative benefit/risk of medication management. She will give serious thought to her options and touch base with me when she is prepared to discuss her decision.

At the time this case came to trial in October 2011, plaintiff had decided not to undergo further surgery and was attempting to manage her pain and lifestyle limitations through medication. All of the expert physicians who examined and opined as to plaintiff's condition, including defendant's expert, agreed that she will continue to have symptoms, including pain, throughout her life. Indeed, defendant's expert witness, an oral maxillofacial surgeon named Dr. Salvatore Ruggerio, testified that her pain had increased from the time he examined plaintiff on August 3, 2010.

The following excerpt from plaintiff's counsel's cross-examination of Dr. Ruggerio illustrates this point

Q. Did [plaintiff's] symptomology change from the August 3rd, 2010 to the August 5th, 2011 examination?

A. With respect to the occurrence of more pain, yes.

Q. So in other words, she was in more pain on August 5th, 2011 than she was in on August 3rd of 2010, correct?

A. Yes.

Q. And you were able to determine that based upon your physical examination, right?

A. Yes.

Q. Now, Doctor, you would agree with me, I suppose, that depending on the nature and extent of a lingual nerve injury, people can experience a variety of altered sensations. Is that a fair statement?

A. Fair statement.

. . . .

Q. Now, Doctor, when you examined Lauren on both occasions, you determined that she has complete anesthesia to the anterior two-thirds of the right half of her tongue?

A. Correct.

Q. And, and then -- and complete anesthesia is the same thing as dense anesthesia, correct?

A. Yeah, it might -- the way I use the term, yes.

Q. I'm sorry.

A. The way I use the term, yes.

Q. They're interchangeable --

A. Yes.

Q. -- dense anesthesia and complete anesthesia are the same thing, right?

A. Yes.

Q. And, you'll agree with me, Doctor, that Lauren has an impairment of taste based upon your two physical examinations, correct?

A. Yes.

Q. And, Doctor, you would agree with me that based upon your examination of August 5th, 2011, Lauren suffers from painful neuropathy at this point. Am I right?

A. Yes.

Q. So to go back to my original question -- and we're talking about the variety of altered sensations. The altered sensations that Lauren currently suffers from, which include dense anesthesia, impaired taste and painful neuropathy, are indicative of a more serious type of lingual injury versus a more -- a less serious type of lingual nerve injury. Am I right?

A. No.

Q. Are you familiar with the medical term allodynia, doctor?

A. Yes.

. . . .

Q. Would you agree that Lauren suffers from allodynia?4

A. Yes.

Q. And that's because there's a mechanical component to her pain, correct?

A. There's a mech -- yes.

Q. That means if something touches the area where she has the lingual nerve injury, it causes a painful sensation through the tongue and through the gums on the tongue side of her jaw, correct?

A. Yes.

Q. And you confirmed that during both of your physical examinations, right?

A. Yes.


With the exception of the trial judge s denial of a motion for a new trial and the application for remittitur, defendant's remaining arguments on appeal challenge the trial judge's evidentiary rulings and various pretrial orders entered by two other judges. This requires us to briefly describe the case's procedural history. The first Case Management Order (CMO) was entered on August 9, 2010, and established a discovery end date (DED) of September 30, 2010. On October 8, 2010, the Civil Division Manager's Office sent notice to all counsel that the trial was scheduled to begin on January 4, 2011.

On December 9, 2010, twenty-six days before the trial date and seventy days after the DED had passed, plaintiff's counsel requested the trial be adjourned "because plaintiff's expert witness [was] not available on the scheduled date." Defense counsel graciously consented. Plaintiff's counsel indicated in this same letter that he had "conferred and determined that all parties, experts and attorneys will be available and ready to proceed to trial on March 14, 2011." By notice dated December 9, 2010, the Civil Division Manager's Office sent notice to all counsel confirming that the trial originally scheduled to start on January 4, 2011, was now scheduled for March 14, 2011.

On March 1, 2011, thirteen days before the agreed upon trial date, plaintiff's counsel again requested the trial be rescheduled

because plaintiff has recently developed a significant exacerbation of pain from a neuroma that is related to the injury caused by the subject incident and may require surgery. This neuroma was recently diagnosed. A decision will be made within approximately the next 60 days as to whether surgery is the only option, assuming other medical management fails. In addition, plaintiff's expert witness is unavailable prior to May 15, 2011 because his wife is undergoing treatment for cancer in Florida and is not expected to return to New York until then.

Once again defense counsel graciously consented to the adjournment request. By notice dated March 2, 2011, the Civil Division Manager's Office sent notice to all counsel confirming that the trial scheduled to start on March 14, 2011, was now scheduled for May 31, 2011.

On May 16, 2011, fifteen days before the second rescheduled trial date, plaintiff's counsel requested a third adjournment of the trial "because there have been numerous recent developments in plaintiff's dental and pain management treatments that require additional discovery and depositions of two treating doctors." This time, plaintiff's counsel represented that defendant's counsel was "join[ing] in this request for an adjournment."

In response, the Presiding Judge of the vicinage's Civil Division scheduled a mandatory Case Management Conference on May 23, 2011. As a result of this Case Management Conference, the Presiding Judge of the Civil Division entered a CMO dated June 16, 2011, providing as follows: (1) defendant shall take a "discovery deposition of Dr. Joel Berger" on June 16, 2011; (2) Dr. Berger's de bene esse deposition would be conducted in San Diego, California, pursuant to Rule 4:14-9; (3) plaintiff shall submit to a medical examination to be conducted no later than July 30, 2011, by a physician selected by defense counsel, and within thirty days from the date of the examination, this physician shall serve plaintiff's counsel with a copy of the report of plaintiff's examination; (4) plaintiff's counsel shall serve any additional expert reports by June 30, 2011; (5) defendant's counsel shall serve plaintiff's counsel with copies of any additional expert reports by August 15, 2011; (6) defendant's counsel shall take the deposition of plaintiff's pain management physician, Dr. David Sirois, on or before August 15, 2011; (7) plaintiff's counsel "will provide executed and notarized authorizations for the medical records of Dr. Joel Berger and Dr. David Sirois on or before June 6, 2011;" (8) the DED is extended to September 2, 2011; (9) the trial shall start on October 3, 2011; and (10) the parties will videotape any expert that is not available to testify during the trial that will start on October 3, 2011.

On July 22, 2011, a little over a month after the Presiding Judge of the Civil Division issued this comprehensive CMO, defense counsel appeared before a different judge requesting plaintiff's local counsel be physically present at Dr. Berger's deposition, which was ordered to take place in San Diego, California. Defense counsel argued that attorneys from California were unfamiliar with New Jersey Court Rules, and as a result depositions have been needlessly contentious. The motion judge began the argument session on defense counsel's application, stating: "And what I discerned from the responding papers is that the parties have agreed now that local counsel will appear at all future proceedings."

After extensive argument covering over thirty transcription pages, the motion judge made the following findings supporting specific relief

Since plaintiff's treatment is ongoing I cannot find a clear design to mislead on the part of her counsel.

Certainly Dr. Berger's testimony based upon the opinions of plaintiff's other experts is not a surprise. And third[,] whatever prejudice there may be can be cured by the taking of Dr. Berger's deposition.

Based upon the foregoing, at this juncture in this matter, before the Court[,] where there remains 42 days of discovery before the end date, the Court will not limit the scope of the de bene esse testimony, nor bar portions of Dr. Berger's deposition which was taken.

Thereafter, the motion judge entered an order dated July 22, 2011, denying defendant's application to strike Dr. Berger's deposition testimony, directing that Dr. Berger's discovery and de bene esse depositions "be conducted on or before September 23, 2011," requiring plaintiff's local counsel to be present during the taking of these depositions, extending the DED to September 30, 2011, and ordering plaintiff to pay the reasonable costs of "travel expenses of [taking] Dr. Berger's deposition both discovery and de bene esse." The motion judge finally handwrote the following admonition: "ORDERED nothing contained in this order shall be the basis of an application to adjourn the trial date which remains October 3, 2011."

Despite this extensive motion practice before two different judges, defense counsel filed an in limine motion to bar the discovery depositions of Dr. Berger and Dr. Harris, and a second in limine motion to preclude the introduction of any testimony concerning Dr. Sirois's report, which was served on defense counsel prior to September 30, 2011. The trial judge heard argument and denied these motions on October 7, 2011, four days after the court-ordered trial date.


Against this procedural and factual backdrop, defendant urges us to vacate the jury's verdict based on the trial judge's rulings denying the relief requested in the in limine motions. Before we address the merits of defendant's arguments, we will briefly described the relevant standard of review. We are bound to defer "to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (internal citations omitted). Stated differently, we may interfere with or overturn a trial judge's discretionary evidentiary rulings only if the judge's decision was "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Mindful of this standard of review, we discern no legal basis to overturn the trial judge's decision. We will address each issue separately. The first issue concerns the trial judge's decision to admit Dr. Sirois's two-page supplemental report, dated September 7, 2011, which estimated the anticipated future medical costs that plaintiff would incur for the duration of her life.

According to defendant, this report should have been excluded under Rule 4:17-7 because: (1) it was served after the DED; and (2) it was served without a certification of due diligence. The factual predicate of defendant's first basis for excluding this report is incorrect. Although defendant alleges the DED was September 2, 2011, on July 22, 2011 the court extended the DED to September 30, 2011. This argument is thus devoid of merit and does not warrant further discussion.

With respect to the scope of Dr. Sirois's opinion, the trial judge found

There's a difference of opinion about the scope of that extension. It clearly doesn't limit it in terms of the order . . . .

. . . .

Ultimately, it's . . . a question of surprise and prejudice to the objecting party, and whether there is a logical predicate for the supplemental report . . . . And the [c]ourt finds that there was logical predicate for the assertion of [the] expense[s].

And there's no element of -- I'm finding that there was no . . . intent to mislead or surprise [defendants] with respect to the submission of [Dr. Sirois's report]. This was just the completion of an assertion of a damage claim which was already the subject of an opinion that was rendered by Dr. Sirois [during the deposition].

[T]he criteria for imposing the discovery sanction of barring this special medical expense . . . is too stringent, it is to [sic] Draconian if you will because I don't find that any designation or design to mislead was there. And the surprise and prejudice are outweighed by the fact that this was something that was in the case, maybe not the specific number, but the element of being a damage in this case was out there well in advance of the discovery end date . . . .

We discern no legal basis to interfere or disagree with the trial judge's application of Rule 4:17-7.

Defendant next argues the trial judge improperly permitted plaintiff's counsel to read portions of Dr. Berger's and Dr. Harris's discovery deposition testimony. We disagree. Rule 4:16-1(c) provides

Except as otherwise provided by [Rule] 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party. The deposition of an absent but not unavailable witness may also be so used if, upon application and notice, the court finds that such exceptional circumstances exist as to make such use desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court.

Distilled to its basic and relevant components, Rule 4:16-1(c) authorizes a party to read the deposition testimony of a fact witness if the witness is unavailable and the witness's unavailability was not procured or caused by the party seeking the admission of this testimony. Here, it is undisputed plaintiff did not procure or cause the witnesses' unavailability. Defendant argues, however, that the "unavailability" of these witnesses does not satisfy the rule's requirement because the affidavits submitted by these two physicians were insufficient to establish their "unavailability." Specifically, as to Dr. Berger, he stated under oath

I am also the owner and only oral surgeon at my extremely busy private practice, The San Diego Center for Oral & Maxillofacial Surgery in San Diego, California.

I have already given my deposition twice in the above-captioned matter.

In order for me to appear in person to testify in Court in New Jersey at the trial in the above-referenced matter, I would need to be absent from my professional obligations set forth above for at least 3 full days.

My absence from my professional obligations would cause extreme hardship on my practice, on my staff and on my patients both in my private practice and hospital patients.

With respect to Dr. Harris, he stated under oath

I have staff affiliation at Sutter Roseville Hospital, and have extensive training in the full scope of oral and maxillofacial surgery.

I own two extremely busy oral surgery private practices in Roseville, California and Folsom, California.

I have already given my deposition in the above-captioned matter.

In order for me to appear in person to testify in Court in New Jersey at the trial in the above-referenced matter, I would need to be absent from my professional obligations set forth above for at least 3 full days.

My absence from my professional obligations would cause extreme hardship on my practices, on my staff and on my patients in both of my private practices.

Defendant argues these certifications show Doctors Berger and Harris were not "unavailable" within the meaning of Rule 4:16-1(c). Defendant maintains the trial judge was required to find "exceptional circumstances" before allowing plaintiff's counsel to read the deposition testimonies of these two physicians. Alternatively, defendant claims Rule 4:16-1(c) applies only to fact witnesses because Rule 4:14-9 authorizes the audiovisual recording depositions of expert witnesses.

We agree with defendant that different rules apply to expert witnesses. "[E]xpert witnesses are not unavailable simply because they are not subject to service of process." Thompson v. Merrell Dow Pharm., Inc., 229 N.J. Super. 230, 252 (App. Div. 1988). Conversely, fact witnesses are considered "unavailable" if they are "absent from the hearing . . . [for] cause" and "the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial[.]" N.J.R.E. 804(a)(4). There are sound policy reasons for imposing differing standards on expert witnesses and fact witnesses

[W]hen a fact witness is unavailable a unique knowledge of the facts will be lost unless the prior testimony is allowed. But, . . . an expert witness generally has no knowledge of the facts and even if one expert is unavailable, there is no need to use the previous testimony to present the evidence because there usually would be other experts available to give similar testimony orally.

[Thompson, supra, 229 N.J. Super. at 252 (citing Carter-Wallace, Inc. v. Otte, 474 F.2d 529, 536 (2d Cir. 1972), cert. denied, 412 U.S. 929, 93 S. Ct. 2753, 37 L. Ed. 2d 156 (1973)).]

In Stigliano v. Connaught Labs., Inc., 140 N.J. 305 (1995), the Court adopted an expansive view regarding the scope of questions that may be asked of a treating physician

As fact witnesses, [a] treating doctor[] may testify about their diagnosis and treatment of [a patient]'s disorder, including their determination of that disorder's cause. Their testimony about the likely and unlikely causes of [a patient]'s disorder is factual information, albeit in the form of opinion. See N.J.R.E. 701 (permitting fact witness to testify in the form of opinion to assist in determining fact in issue). Because the determination of the cause of a patient's illness is an essential part of diagnosis and treatment, a treating physician may testify about the cause of a patient's disease or injury.

[Id. at 314.]

Here, the trial judge characterized Doctors Berger and Harris as fact witnesses because they treated plaintiff for her injury. The record supports the judge's characterization. Plaintiff consulted Dr. Berger to seek a second opinion concerning whether she should submit to additional surgery or explore other options. Plaintiff likewise consulted Dr. Harris to explore the efficacy of a different treatment approach. These physicians were not retained by plaintiff to opine as to whether defendant deviated from the standard of care or to support plaintiff's claim for compensatory damages.

Defendant's remaining arguments attacking the CMO issued by the Presiding Judge of the Civil Division extending the DED and addressing other matters in the case lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Finally, defendant argues the trial judge erred in denying his motion for a new trial or alternatively for remittitur. Defendant claims the jury's award of compensatory damages was "shockingly disproportionate" to plaintiff's injuries. We disagree.

Under Rule 4:49-1(a),

[a] new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. On a motion for a new trial in an action tried without a jury, the trial judge may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. The 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.

The trial court's authority "to apply remittitur springs from the court's power to grant a new trial." He v. Miller, 207 N.J. 230, 248 (2011). As the Court explained

The corollary power to order remittitur is a special device through which the court addresses a jury's excessive award of damages. A remittitur order is actually an alternative to ordering a new trial. That is, it describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion.

[Ibid. (citations omitted) (internal quotation marks omitted).]

The exercise of this power is "limited." Carey v. Lovett, 132 N.J. 44, 66 (1993). "A trial court should not interfere with a jury's damage award unless the award is so disproportionate as to 'shock the conscience'" and would result in a consequential manifest injustice. London v. Lederle Labs., 290 N.J. Super. 318, 332 (App. Div. 1996), modified, aff'd as modified sub. nom., Batson v. Lederle Labs., 152 N.J. 14 (1997). Thus, a jury "verdict may only be set aside if it is wide of the mark and pervaded by a sense of wrongness." Miller, supra, 207 N.J. at 249 (internal quotation marks omitted).

Because we entrust "juries to perform the weighty task of making an injured plaintiff whole through a fair and reasonable award of damages," the trial court must "begin with the presumption that [a jury's] verdict is correct[.]" Ibid. (internal quotation marks omitted). See Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977) ("In 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."). Moreover, "in evaluating whether remittitur is appropriate[,]" the evidence must be viewed "in the light most favorable to plaintiff[.]" Miller, supra, 207 N.J. at 249.

Although we apply the same standards in reviewing the grant or denial of a motion for new trial or remittitur, Lederle Labs., supra, 290 N.J. Super. at 332, we "must afford 'due deference' to the trial court's 'feel of the case.'" Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)). As Justice Long eloquently stated on behalf of a unanimous Supreme Court

The "feel of the case" is not just an empty shibboleth--it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is "the feel of the case" to which an appellate court defers.


Here, the trial judge found the jury's award was "substantiated by the evidence." He found plaintiff's testimony credible and also noted the jurors both heard and accepted plaintiff's account of how this injury negatively affected the quality of her life on a daily basis. As the judge explained, plaintiff

describe[d] in agony and detail the pain and suffering that she suffers from, and the effect that it has on her life. She . . . described difficulty in eating . . . [and] talk[ed] about the fact that every time she spoke . . . [she had] to carefully articulate her words.

[And, she explained that she had] to make sure that she is always aware . . . of the position of her tongue, so that she does not slur her words . . . .

. . . .

The jury accepted the drooling element of [the] injury. And the jury accepted and didn't find it to be staged, the fact that during the course of her testimony -- she was on the stand for several hours -- that she had to take the notch of her index finger on her right hand -- I remember this very specifically -- and had to wipe the corner of her mouth with the notch [of] that finger very carefully, not in an extravagant way, a very subtle way several times during the course of her testimony.

The judge gave the following explanation for denying defendant's motion for a new trial and application for remittitur

I have the role of weighing the tangible evidence in this motion, as well as intangibles, such as the feel of the case, to determine whether there has been a clear miscarriage of justice.

. . . .

[T]he [c]ourt finds in this case under that standard and my feel of the case that the award of the damages that the [c]ourt found in this case was substantiated by the evidence, and the [c]ourt will not disturb it under the miscarriage standard . . . . I will not substitute my own judgment in this case for that [of the] jury.

. . . .

There's no need for me to explain how I find the verdict excessive because I'm finding it not to be excessive. So, therefore, I will not be ordering a remittitur. I'm not convinced by the citation of any cases[5] cited by the [defendant] . . . because I agree with plaintiff's position that in evaluating the issue of whether remittitur should be granted and including the evaluation of other cases, as suggested by the Supreme Court in the He case, I don't find as compelling what a case may have settled for, even though it involved a lingual nerve case.

So I am not convinced . . . [that] the jury in this case went beyond the pale of what they could reasonably determine to be damages as adduced by the facts. . . . [T]he pain and suffering . . . [and] projected future medical damages [evidence was] elicited primarily by Dr. [Sirois].

[(Emphasis added).]

We discern no legal basis to disturb the trial judge's carefully considered analysis. Defendant s remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).


1 Plaintiff testified she consulted an oral surgeon who referred her to a lingual nerve specialist. She was not able to be treated by this physician because he was not part of her dental insurance plan and she could not afford to pay directly for his services. She also consulted with a specialist in Boston, but was unable to arrange for an appointment that accommodated her schedule.


"A neuroma is a disorganized growth of nerve cells at the site of a nerve injury. A neuroma occurs after a nerve is partially or completely disrupted by an injury either due to a cut, a crush, or an excessive stretch." Neuromas and Complex Regional Pain Syndrome, Mass. Gen. Hosp., (last visited Mar. 11, 2015).

3 The deposition took place via Video Teleconferencing. Dr. Berger was in his medical office in San Diego, California, one of plaintiff's attorneys was in his law office in Long Beach, California, plaintiff's other attorney was in his office in Calabasas, California, and defendant's attorney was in her law office located in Springfield, New Jersey.

4 Allodynia is a condition described as "pain resulting from a stimulus (as a light touch of the skin) which would not normally provoke pain[.]" Allodynia, Merriam-Webster, (last visited Mar. 16, 2015).

5 Both parties submitted evidence of awards in other cases, some of which were higher than the award in this case and some of which were lower.