TAMMIE EASTERLING, Plaintiff–Appellant, v. JEANETTE BRANTLEY and ONE BUS COMPANY, Defendants–Respondents, CHARLES SMITH, NEW JERSEY TRANSIT CORPORATION, DISCOVER PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants.
DOCKET NO. A–5763–11T3
-- September 25, 2013
On June 16, 2009, plaintiff, Tammie Easterling, was a passenger on a public bus that was rear-ended by a bus leased by defendant Bus One Company and operated by defendant Jeannette Brantley. As a result, plaintiff sued, among others, Brantley and Bus One, claiming severe injury resulting in permanent disability and pain and suffering. At the trial, defendants 1 stipulated to their liability, and the sole issue was damages, not including lost wages and medical treatment. The jury returned a unanimous verdict of “zero” damages. Plaintiff moved for a new trial and the judge denied the motion. This appeal followed. We affirm.
The evidence showed that when the bus driven by Brantley hit the bus in which plaintiff was riding, plaintiff was thrown forward and jostled from side to side. An ambulance transported plaintiff to the hospital, where she complained of pain to her abdomen, right side of her pelvis, and her back. She missed one and one-half weeks from her employment as a home health aide.
Plaintiff first sought treatment from her primary care physician, who prescribed medicine for pain and muscle spasms. Next, she received chiropractic treatments for about three months, due to her complaints of back pain, muscle spasms, and numbness in her right leg. In March 2010, she commenced treatment with Dr. Anil K. Sharma, board certified in both anesthesiology and pain management, who testified at the trial. He found that plaintiff had right-sided low back and hip pain with spasms in her groin, buttocks, and right hip, and numbness into her right leg. The radiologist who read plaintiff's MRI film found a bulging disc at L5–S1; Dr. Sharma interpreted the MRI film as showing a herniated disc. Dr. Sharma also found degenerative changes in plaintiff's lumbar facet joints as well as stenosis, which indicated arthritis. Dr. Sharma treated plaintiff with a series of epidural injections, lumbar nerve blocks, and radio frequency ablations.
As of November 24, 2010, Dr. Sharma concluded that plaintiff had reached the maximum benefit for treatment of her low back condition. In 2011, he continued to treat her for neck and upper extremity problems, which the doctor opined were unrelated to the accident. Dr. Sharma's final diagnosis was a herniated disc with lumbar radiculitis, which, in his opinion, was causally related to the June 16, 2009 accident.
Dr. David Wolkstein, an orthopedic surgeon who evaluated plaintiff in June 2011 on the recommendation of Dr. Sharma, also testified for plaintiff. Plaintiff's chief complaints to the doctor related to her upper extremities, but she did complain about pain radiating into her low back as well as headaches. He recommended acupuncture and suggested that plaintiff consider surgery for the herniated disc in her thoracic spine.
Defense expert, David J. Greifinger, an orthopedic surgeon, evaluated plaintiff in January 2011. He testified that plaintiff complained of intermittent pain in her lower back with pain, numbness, and tingling radiating from the thigh to the top of the foot. In Dr. Greifinger's opinion, plaintiff might have sustained a temporary injury in the accident, but her orthopedic complaints were not related to the accident. He found stenosis, arthritic changes, and bulging discs, all related to the aging process or “wear and tear.” He pointed out that the x-rays taken the day of the accident showed arthritic bone spurs, which take years to develop, at both the thoracic and lumbar level.
Plaintiff testified that she had ongoing complaints of severe back pain and muscle spasms as well as the diminished ability to shop, clean, sit, walk fast, or bend her right leg. She reported that she stopped working three months before the trial because she was unable to walk due to her lower back problems. On cross-examination, she acknowledged that she also stopped working due to problems with her neck, shoulder, and arm, which Dr. Sharma testified were not related to the accident. She also admitted that she had applied for unemployment and certified that she was able to work, which she testified was false. She denied that prior to the accident she had been treated for neck, shoulder, and upper back problems despite being shown the treatment records from her family doctor, which reported such treatment. She also denied that Dr. Sharma had told her that her neck and upper back problems were not related to the accident.
On appeal, plaintiff contends that the jury's failure to award her at least minimal damages for her acknowledged accident-related injuries was so manifestly against the weight of the evidence that it constituted a miscarriage of justice warranting a new trial. Plaintiff further contends that the judge's failure to extend discovery and admit a new treating doctor's report, which opined that plaintiff needed lower back surgery, was reversible error. Finally, plaintiff argues that the verdict was tainted by the trial court's constant expressions of disbelief and hostility toward plaintiff. We do not find plaintiff's arguments persuasive.
A trial court may not grant a motion to set aside a jury verdict and grant a new trial unless “it clearly and convincingly appears that there was a miscarriage of justice under the law.” R. 4:49–1(a). “The object is to correct clear error or mistake by the jury.” Dolson v. Anastasia, 55 N.J. 2, 6 (1969). When reviewing a jury verdict, the judge must view the evidence in the light most favorable to the party opposing the motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).
The role of the trial judge in ruling on such a motion is to consider “not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility ․ so-called ‘demeanor evidence’, and the intangible ‘feel of the case’ which he [or she] has gained by presiding over the trial.” Dolson, supra, 55 N.J. at 6. Accordingly, an appellate court is deferential to the trial court with respect to these “intangible” matters, but otherwise makes its own determination as to whether a miscarriage of justice occurred. Id. at 7; Ming Yu He v. Miller, 207 N.J. 230, 250 (2011); see also Carrino v. Novotny, 78 N.J. 355, 360 (1979) (describing a jury verdict as “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”). A reviewing court's task is to “canvas the record to determine if ‘reasonable minds might accept the evidence as adequate to support the jury verdict.’ ” Klawitter v. City of Trenton, 395 N.J.Super. 302, 324 (App.Div.2007) (quoting Borngesser v. Jersey Shore Med. Ctr., 340 N.J.Super. 369, 377 (App.Div.2001)).
Our Supreme Court has recently discussed the miscarriage of justice standard:
A miscarriage of justice has been described as a pervading sense of wrongness needed to justify [an] appellate or trial judge undoing of a jury verdict ․ [which] can arise ․ from manifest lack of inherently credible evidence to support the finding, obvious overlooking or undervaluation of crucial evidence, or a clearly unjust result.
[Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (internal citations and quotation marks omitted).]
Plaintiff argues that the jury's decision to award no damages for her claimed injuries was a clear miscarriage of justice because the jury ignored the undisputed evidence that she sustained injuries in the accident. Plaintiff relies for support on Chamberlain v. Sturma, 94 N.J.Super. 1, 4–5 (App.Div.1966), aff'd o.b., 48 N.J. 556 (1967), where we found a miscarriage of justice when a jury awarded no damages and the sole defense expert expressly admitted that the plaintiff had sustained an injury directly caused by the incident.
The facts of this matter are distinguishable from Chamberlain. Here, plaintiff presented evidence showing that she suffered severe and permanent injuries as a result of the accident. In contrast, defendant offered evidence that plaintiff's medical issues were caused by the aging process 2 and substantially impeached her credibility during cross-examination, suggesting that she exaggerated any temporary injuries or discomfort caused by the accident.
Plaintiff's reliance on Love v. Nat'l R.R. Passenger Corp., 366 N.J.Super. 525, certif. denied, 180 N.J. 355 (2004), is also misplaced. In Love, we found the verdict inconsistent and ordered a new trial where the jury returned a verdict providing for a monetary award for lost wages but zero damages for pain and suffering. Id. at 534. In the present appeal, we find no inconsistency in the jury verdict.
Plaintiff's arguments assume that her experts' testimony must be accepted as fact. However, “[w]hile it is true that plaintiff presented expert testimony that could support a jury determination that a permanent injury was sustained, the jury is not required to reach that conclusion.” Kozma v. Starbucks Coffee Co., 412 N.J.Super. 319, 325 (App.Div.2010) (citations omitted). A jury is free to disbelieve any or all of an expert's testimony “even in the absence of evidence to the contrary.” State v. Spann, 236 N.J.Super. 13, 21 (App.Div.1989), aff'd, 130 N.J. 484 (1993). The jury is also free to disbelieve plaintiff's testimony, especially when numerous contradictions and inconsistencies were shown during cross-examination. State v. Saunders, 302 N.J.Super. 509, 524 (App.Div.) (citing State v. Reyes, 50 N.J. 454, 464 (1967)), certif. denied, 151 N.J. 470 (1997).
Arguing that plaintiff is ignoring opposing facts in the record, defendants highlight evidence that plaintiff missed only a week and one-half of work, then worked steadily for the next two years until stopping due to her upper back and neck issues. Additionally, defendants point to numerous inconsistencies in her testimony as well as her admission that she lied about her ability to work in order to obtain unemployment benefits. Defendants also argue that plaintiff's “performance” throughout the trial in front of the jury, while in the courtroom or nearby corridor, where she contorted her neck, leaned to one side, and walked hesitantly, suggesting symptoms which were not connected to the accident by either of her expert witnesses, was so “outrageous” that it severely undermine her entire testimony. See Kozma, supra, 412 N.J.Super. at 325 (noting that evidence may be “susceptible to an interpretation that minimized the monetary equivalent of plaintiff's pain and suffering to its vanishing point”).
Viewing the evidence in the light most favorable to defendants, we are convinced that the jury could reasonably have found that plaintiff did not sustain injuries as a result of the accident at issue. The evidence presented by the defense, through their expert witness and on cross-examination of plaintiff's witnesses, created factual support for defendants' contention that plaintiff experienced only mild discomfort and slight injury in the accident and grossly “exaggerated” her low back symptoms, which were caused by degenerative changes in her spine due to the aging process. Hence, the jury's verdict does not shock the conscience, is not a miscarriage of justice, and the motion was properly denied. Id. at 321 (“Satisfied that the jury was properly instructed, we should trust its judgment.”).
Next, plaintiff argues that the court abused its discretion in failing to reopen discovery and barring a new expert report and further discovery concerning her new treating doctor's recommendation for lower back surgery. We disagree.
The court's decision to deny a motion to extend discovery is subject to review for abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006). Because plaintiff's request came after the expiration of the discovery period and after arbitration, she was required to show “exceptional circumstances” rather than “good cause” to obtain relief. R. 4:24–1(c).
“The mandate of Rule 4:24–1(c) could not be clearer: ‘[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.’ ” Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396 (2005) (quoting R. 4:24–1(c)). “Exceptional circumstances” requires “some showing that the circumstances presented were clearly beyond the control of the attorney and the litigant seeking an extension of time.” Zadigan v. Cole, 369 N.J.Super. 123, 132 n.8 (Law Div.2004). “The moving party must demonstrate counsel's diligence in pursuing discovery, establish the essential nature of the discovery sought, explain counsel's failure to request an extension within the original time period, and show that the circumstances presented were clearly beyond counsel's control.” Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J.Super. 448, 479 (App.Div.), certif. denied, 212 N.J. 198 (2012).
Here, discovery ended on June 14, 2011. The parties participated in arbitration on August 14, 2011, and plaintiff timely requested a trial, which was scheduled for December 12, 2011. When the trial was not reached by the next day, plaintiff's attorney requested an adjournment due to the unavailability of his medical expert. Defendants attempted to amend their discovery to include a surveillance video of plaintiff but the court granted plaintiff's motion opposing reopening because the discovery deadline had long past. The court then scheduled the trial for March 12, 2012.
On March 9, 2012, plaintiff tried to amend her interrogatory answers and requested an adjournment of the trial, alleging that she had a new treating doctor who had recommended spinal surgery. Plaintiff first saw Dr. Kumar Sinha, an orthopedic surgeon, on January 5, 2012. He issued a report on February 9, 2012, stating that he found a disc herniation at L5–S1, recommended surgery to remove the disc, and estimated a twelve-week recovery period. The motion judge found that plaintiff had not demonstrated exceptional circumstances entitling her to extend discovery on the eve of trial. After the trial was adjourned until April 2012, defendants moved to preclude an amendment of plaintiff's discovery, which was granted by a different judge, who found that plaintiff had not shown exceptional circumstances to warrant re-opening discovery.
Plaintiff argues that her counsel was diligent in moving to re-open discovery as soon as plaintiff received the treatment and recommendation for surgery. Defendants argue that the record fails to show that plaintiff diligently pursued needed medical treatment. According to plaintiff's own evidence, the last treatment she received for her lower back was from Dr. Sharma in November 2010, where the result was considered beneficial. The only prior recommendation for surgery, made by Dr. Wolkstein in June 2011, was for upper back surgery due to her upper extremity problems. Apparently plaintiff elected not to have this surgery. The record contains no certification from plaintiff explaining the reason she chose to get treatment in January 2012, the reason she waited so long, and the reason she did not consult an orthopedic surgeon sooner. Additionally, the record does not contain any statement from plaintiff that she intended to follow Dr. Sinha's recommendation.
Not only must counsel be diligent, the litigant also must be diligent. See Zadigan, supra, 369 N.J.Super. at 133. Here, plaintiff's counsel provided only a conclusory certification in March 2011 stating that he was diligent in pursuing discovery after the discovery ended because “the report related to recent medical treatment.” He provided no explanation as to why he did not seek to reopen discovery in January when plaintiff began treatment. Moreover, the record contains no certification from plaintiff describing any exceptional circumstances that prevented her from consulting another doctor and obtaining more treatment much earlier. Plaintiff has thus failed to demonstrate the level of diligence necessary to support an application to extend discovery so belatedly. Having reviewed plaintiff's application in light of the applicable legal principles, we are satisfied that the motion judge did not abuse her discretion in barring plaintiff from extending discovery.
Lastly, plaintiff argues that during the trial the judge's remarks “tainted” the verdict by an “undue intrusion upon the exclusive province of the jury to decide questions of fact.” We find no support in the record for this contention.
Plaintiff claims that the record shows that the judge demonstrated skepticism about plaintiff's veracity, engaged in mockery of plaintiff and suggested that she was “magnifying” her injuries. Plaintiff acknowledges, however, that much of the judge's comments that plaintiff alleges were offensive were made out of the presence of the jury and were not objected to by her trial counsel.
The record showed that plaintiff had a tendency to not answer the question she was asked, and several times the judge redirected her. Plaintiff also points to two jury charges that the judge gave with the consent of both counsel, to clarify an issue that had come up about plaintiff's neck and upper back difficulties. On the second day of the three-day trial, the judge spoke to plaintiff outside of the presence of the jury and reminded her that her behavior, holding her neck to one side “as if paralyzed,” sitting at counsel table contorted and crying, and walking as if in pain with a strange gait, called the jury's attention to physical problems that were not the subject of the damage claim at the trial.
In order to avoid confusion, the judge instructed the jury to disregard plaintiff's gait and the manner she held her neck as these referred to physical problems of plaintiff that were not part of the case. The next day, out of the presence of the jury, Dr. Sharma stated that he misspoke when he testified that the neck symptoms were caused by the June 16, 2009 accident. Defense counsel moved for a mistrial. Instead, the judge gave a curative instruction to the jurors again reminding them that plaintiff's neck and upper extremity symptoms were not part of the case.
We are mindful that the trial court is vested with great discretion over the conduct of the trial. Persley v. N.J. Transit Bus Operations, 357 N.J.Super. 1, 9 (App.Div.) (citing Casino Reinvestment Dev. Auth. v. Lustgarten, 322 N.J.Super. 472, 492 (App.Div.), certif. denied, 165 N.J. 607 (2000)), certif. denied, 177 N.J. 490 (2003). “Exercise of that discretion is ordinarily not interfered with unless there is a clear abuse of discretion which has deprived a party of a fair trial.” Ibid. (citing Daisey v. Keene Corp., 268 N.J.Super. 325, 334 (App.Div.1993)). “A judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury.” Mercer v. Weyerhaeuser Co., 324 N.J.Super. 290, 297–98 (App.Div.1999) (citing Cestero v. Ferrara, 110 N.J.Super. 264, 273 (App.Div.), aff'd, 57 N.J. 497 (1971)). In reviewing prejudicial conduct by a trial judge, we consider the entire transcript. Id. at 298 (citing State v. Zwillman, 112 N.J.Super. 6, 20 (App.Div.1970), certif. denied, 57 N.J. 603 (1971)).
Our independent review of the entire record reveals that the trial judge conducted a fair and impartial trial and did not make remarks that tainted the jury's verdict. We see no partiality in the judge controlling the pace of the trial by calmly instructing plaintiff to respond to the question asked. Both of the jury instructions that plaintiff claims were inappropriate were given with plaintiff's counsel's express consent. Counsel's failure to object strongly suggests that she did not see prejudice to her client from the jury charges. See Harris v. Peridot Chem. (N.J.), Inc., 313 N.J.Super. 257, 288 (App.Div.1998) (“It is certainly possible that in the context of the entire trial, the failure to object signifies that the error belatedly claimed was actually of no moment.”). Plaintiff does not claim the jury charges were factually or legally incorrect or point to any evidentiary rulings made by the judge that were erroneous or showed bias. Accordingly, we are satisfied that the judge did not abuse her discretion in the conduct of the trial.
1. FN1. All other defendants were dismissed before trial and are not part of this appeal. We will henceforth refer to Brantley and Bus One as defendants.
2. FN2. Both parties declined to charge the jury on the issue of exacerbation of pre-existing injuries.