Opinion
DOCKET NO. A-1938-13T4
01-22-2015
MARYANN ZIMMERMAN and ARNOLD ZIMMERMAN, Plaintiffs-Appellants, v. ARIF KHAN, Defendant-Respondent.
Michael R. Hobbie argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Corrigan and Justin Lee Klein, on the brief). John M. Lago argued the cause for respondent (Law Offices of Cascio & Callegher, attorneys; Mr. Lago, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-0084-10. Michael R. Hobbie argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Corrigan and Justin Lee Klein, on the brief). John M. Lago argued the cause for respondent (Law Offices of Cascio & Callegher, attorneys; Mr. Lago, on the brief). PER CURIAM
In this personal-injury verbal threshold case, Arnold and Maryann Zimmerman (hereinafter "plaintiffs") appeal from an October 15, 2013 judgment of no cause of action entered after a jury trial, and a November 8, 2013 order denying plaintiffs' motion for a new trial. We affirm.
Plaintiffs alleged that they sustained injuries as a result of a car accident (the "2009 accident" or the "accident") between their vehicle and the vehicle operated by defendant Arif Khan. The parties stipulated to liability and tried the case over three days on damages. The issue at trial was whether plaintiffs' alleged injuries were permanent and proximately caused by the accident.
The order entering the no cause of action also dismissed plaintiffs' claims against co-defendant Saif U. Kahn, who apparently owned the vehicle that Arif Khan operated. Saif U. Khan did not file a brief and has not participated in this appeal.
Maryann Zimmerman ("Mrs. Zimmerman"), fifty-nine years old, testified that she sustained the following injuries in the accident: bruising on her back, left arm, left eye and forehead; and head and neck pain. She did not receive medical attention at the scene of the accident, and although she drove her car to the hospital that day, she was not treated.
Mrs. Zimmerman went to a neurologist a couple of weeks after the accident, who ordered an MRI of her neck, but she did not follow up with that doctor. Instead, approximately three months later, she saw Dr. Mandeep Othee, underwent an MRI of her neck, but sought no medical treatment from him.
Mrs. Zimmerman testified that her symptoms worsened about six months from the date of the accident. She underwent about six weeks of physical therapy ("PT") and went to Dr. Scott Metzger, an expert in the field of pain management. He recommended that she continue on PT and gave her an epidural injection, which helped. She had no recollection of following Dr. Metzger's recommendation that she continue on PT. Mrs. Zimmerman decided to live with headaches and numbness in her arm.
Plaintiffs' counsel produced videotaped trial testimony from Dr. Metzger. He testified that Mrs. Zimmerman's MRI showed degenerative conditions that could have been present before the accident. The doctor said that not all disc herniations cause pain, and he admitted that pain is a subjective complaint. Dr. Metzger did not use the MRI films during his testimony.
Arnold Zimmerman ("Dr. Zimmerman"), seventy-three years old, testified at the trial. He acknowledged his long-standing history of polio, and indicated that he had medical problems before and after a prior motor vehicle accident (the "2006 accident"), such as dizziness, muscle spasm, and pain in his head, neck, and shoulders, requiring pain medication and neck injections. He also suffered from radiculopathy before the 2009 accident.
Dr. Zimmerman is a dermatologist.
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Dr. Zimmerman testified that he injured his neck in the 2009 accident. He testified that he saw Dr. Joel Lehrer, an expert in the field of otolaryngology and neurotolgy, for the first time about one and a half years after the accident. Regarding Dr. Zimmerman's alleged injuries, plaintiffs' counsel produced videotaped trial testimony from Dr. Lehrer and Dr. Metzger.
Contrary to Dr. Zimmerman's testimony that he had lost consciousness as a result of the 2009 accident, Dr. Lehrer confirmed that Dr. Zimmerman made no mention of head trauma from the accident. Dr. Lehrer confirmed that Dr. Zimmerman had six concussions before the 2009 accident. Dr. Metzger also verified that before the 2009 accident, Dr. Zimmerman suffered from dizziness, vertigo, upper neck and shoulder pain, and received epidural and trigger point injections. And Dr. Metzger was unable to apportion Dr. Zimmerman's pre-existing injuries from those he allegedly sustained in the 2009 accident.
Defendants' trial counsel produced testimony from Dr. Kevin Egan, an expert in the field of orthopedics. The doctor opined that Mrs. Zimmerman's MRI showed pre-existing degenerative conditions, rather than evidence of trauma related to the 2009 accident. He concluded that Mrs. Zimmerman suffered from soft tissue injuries that were not permanent. As to Dr. Zimmerman, Dr. Egan used his MRI films and explained to the jury that Dr. Zimmerman had significant pre-existing injuries, and that he sustained temporary soft tissue injuries related to the 2009 accident.
The jury returned a verdict of no cause of action concluding that plaintiffs had failed to show that they sustained permanent injuries related to the 2009 accident. Plaintiffs' counsel filed a motion for a new trial arguing that the verdict was against the weight of the evidence. The judge highlighted the conflicting medical testimony, concluded that it did not clearly and convincingly appear that there was a miscarriage of justice, and denied the motion.
On appeal, plaintiffs maintain that the verdict was against the weight of the evidence and that the judge therefore erred by denying their motion for a new trial.
After reviewing the record and the briefs, we conclude that plaintiffs' arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the thoughtful reasons expressed by the trial judge. We add the following remarks.
We recognize the fundamental principle that jury trials are a bedrock part of our system of civil justice and that the fact-finding functions of a jury deserve a high degree of respect and judicial deference. See, e.g., Caldwell v. Haynes, 136 N.J. 422, 432 (1994). In terms of its assessment of the relative strength of the proofs, a jury verdict is "'impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice.'" Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).
Rule 4:49-1(a) provides that a trial judge shall grant 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." Jury verdicts are thus "entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)); see also Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) (indicating that "[j]ury verdicts should be set aside in favor of new trials only with great reluctance, and only in cases of clear injustice"), certif. denied, 186 N.J. 242 (2006).
In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in a light most favorable to the party opposing the new trial motion. Caldwell, supra, 136 N.J. at 432. Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." See, e.g., Carrino, supra, 78 N.J. at 361; Baxter, supra, 74 N.J. at 597-98; Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
Applying these principles here, we are satisfied that the evidence was such that the jury could reasonably have found that plaintiffs failed to show that they were permanently injured as a result of the 2009 accident.
Mrs. Zimmerman received no medical attention at the scene of the accident and drove to the hospital following the ambulance, but received no treatment while there. She went to a neurologist two weeks after the accident, but did not follow up with him, and waited three months before seeing Dr. Othee, but had no treatment from him. She received an epidural injection and obtained PT for six weeks after waiting six months from the accident, but she was unable to remember if she followed Dr. Metzger's recommendation to get more PT. Mrs. Zimmerman also lost no time from work, had no lost wage claim, sought limited and minimal medical treatment, and produced testimony from a doctor who did not use the MRI films during his trial testimony.
Dr. Zimmerman had a long-standing history of polio, suffered from significant injuries before and after his 2006 accident, and he experienced medical symptoms of pain before the 2009 accident. He had six concussions before the 2009 accident, he had been taking medications for his pre-existing medical problems before the 2009 accident, and Dr. Metzger was unable to apportion Dr. Zimmerman's pre-existing injuries from those that Dr. Zimmerman alleged that he had sustained in the 2009 accident.
Finally, we reject as unpersuasive plaintiffs' argument that there was a miscarriage of justice because Dr. Lehrer's testimony about Dr. Zimmerman's inner ear was purportedly unrefuted. The jury was free to reject the testimony from Dr. Lehrer and was not required to accept it as if it were undisputed. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001) (noting that "[a] jury is free to accept or reject the testimony of a witness based on credibility.), certif. denied, 171 N.J. 338 (2002). It is also clear that Dr. Lehrer was unable to recall whether Dr. Zimmerman had been diagnosed with an inner ear problem before or after the 2009 accident.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION