CAROLYN BONDS v. EMILY HOMLER GOJKO (2013)

In this negligence case, plaintiff claimed to have suffered injuries in two separate automotive accidents in a period of nine months.   At trial, both defendants stipulated liability.   The jury found that permanent injuries were caused by the first accident, but not by the second accident, and awarded $180,000 to plaintiff.   Defendant in the first accident appeals from the denial of his motion for a new trial or remittitur.   For the following reasons, we affirm.

I.

We derive the following facts from the trial record.

On January 14, 2008, plaintiff Carolyn Bonds was involved in an automobile accident with a car driven by defendant Antoni Plotka and owned by former defendant Teresa Plotka.¹  Plaintiff claimed that she injured her neck, back and knees as a direct result of Plotka's negligence.   On September 21, 2008, plaintiff was involved in a second automobile accident with a car driven by defendant Emily Homler–Gojko, in which plaintiff claimed to have injured her neck, shoulder, back and head as a direct result of Homler–Gojko's negligence.   Plaintiff claimed that her neck pain was worse after the second accident.

Plaintiff filed a complaint against both defendants, alleging that she sustained permanent injuries as a result of the two separate automobile accidents.   A jury trial took place in March 2012, where both defendants stipulated to liability.   Plaintiff testified about her pain and injuries, and presented expert testimony from her neurologist, Alexander M. Pendino, D.O., and orthopedists, James P. Taitsman, M.D., and Jeffrey S. Abrams, M.D.

Dr. Pendino testified that he first evaluated plaintiff on July 21, 2008.   Plaintiff presented to Dr. Pendino “with a chief complaint of neck, upper back pain, and numbness and tingling of both arms.   She also had localized lower back pain.   And she reported being fine until a car accident that occurred on January 14, 2008[.]”  After examining plaintiff and reviewing her MRI films and EMG test, he opined that “she had a cervical sprain, a lumbar sprain, and that she ha[d] a central disc protrusion or herniation at C4–5, and a disc bulge at L4–5[,]” which were permanent injuries.   Dr. Pendino examined plaintiff again after her second accident, where he noticed a change in the form of “sensory deficits[,]” but found that the repeat MRI films after the second accident essentially showed no change.   Dr. Pendino's final diagnosis was “that the disc pathology was initially caused by the first accident.   The second accident caused an exacerbation of those injuries and a new left C5 radiculopathy.”   He based the latter finding on the December EMG, which he had not been able to complete after the first accident due to “artifacts.”   He conceded that he could not know if an EMG prior to the second accident would have been different.   Dr. Pendino also testified about plaintiff's medical history regarding schizophrenia, but stated that there were no side effects of her medications relevant to her injuries.

Dr. Taitsman testified that plaintiff complained of hitting her knees during the first accident.   Based on his examination, Dr. Taitsman diagnosed plaintiff as having “[t]raumatic chonodromalacia patellofemoral joint[,]” worsening over time.   Plaintiff said she had not injured her knees in the second accident, and Dr. Taitsman opined the injury resulted from the first accident.

Dr. Abrams testified that he treated plaintiff after the second accident only.   He opined that, as a result of the second accident, plaintiff sustained a left shoulder rotator cuff tear and that was a permanent injury, but her function and range of movement were “good” and there was “improvement.”   No surgery was undertaken.

Defendant Plotka presented testimony from a neurologist, John W. Vester, M.D. Dr. Vester performed a physical examination of plaintiff, reviewed her medical records, and opined that she suffered no permanent neurological injuries.   He had no opinion about the second accident.   Irving T. Ratner, M.D., an orthopedic surgeon, also testified on behalf of Plotka.   Plaintiff was examined by Dr. Ratner on June 17, 2010.   He observed that she had some subjective complaints of pain in her knees and her shoulders, but exhibited no objective injuries.   He concluded that plaintiff suffered no permanent injuries as a result of the first accident.

Defendant Homler–Gojko presented testimony from Stanley Askin, M.D., an orthopedic surgeon, who examined plaintiff on May 7, 2010.   Based on his examination and review of plaintiff's medical records, Dr. Askin opined that plaintiff had expected imperfections with her left shoulder, neck and lower back expected for her age, but did not sustain a permanent injury as a result of the second accident.

At the end of plaintiff's case, Homler–Gojko moved for a directed verdict pursuant to Rule 4:37–2(b) on the basis that there was insufficient evidence that the second accident caused an aggravation of plaintiff's cervical and lumbar disc injuries alleged from the first accident.   Plotka did not object to the motion.   The trial judge granted the motion, and the jury later returned a verdict in favor of plaintiff in the amount of $180,000 against Plotka.

Thereafter, Plotka filed a motion for a new trial, claiming that plaintiff's counsel impugned the integrity of Dr. Vester during her closing when she indicated that Dr. Vester's opinion was a “crock”;  that plaintiff's counsel made misstatements of fact not in evidence when she referred to the examination of Dr. Vester in plaintiff's closing;  that plaintiff's counsel's closing appealed to the sympathy of the jury by discussing plaintiff's schizophrenia and arguing that “schizophrenics are people too”;  and that counsel for defendant Homler–Gojko confused the jury by arguing that whatever complaints plaintiff had after the second accident were attributable to the first accident, given the absence of a jury charge on aggravation.   The trial judge denied Plotka's motion, and denied his alternative request for remittitur.

On appeal, Plotka claims the court erred in not granting a new trial;  that plaintiff's counsel made improper argument in closing;  and that the court's instructions were erroneous in that they failed to address aggravation — a charge that plaintiff withdrew and Plotka did not object to.

II.

We first address Plotka's arguments regarding new trial and remittitur.

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 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 “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 rulings are clearly supported by the record, and do 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, 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).

III.

Next, we address Plotka's argument that he was deprived of a fair trial because of the remarks made by plaintiff's counsel in summation.   We again defer to the trial court's “feel of the case[,]” but otherwise make an independent determination of whether a miscarriage of justice occurred.   Carrino, supra, 78 N.J. at 360;  Baxter, supra, 74 N.J. at 597–98;  Dolson, supra, 55 N.J. at 6–8.

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)).

Plotka argues that plaintiff's counsel made several remarks in summation that were improper and warrant a reversal of the judgment in plaintiff's favor.   Specifically, Plotka alleges that plaintiff's counsel “impugned the integrity” of Dr. Vester when she referred to his opinion as a “crock.”   He also claims that plaintiff's summation “misstated the facts about what [was] contained in the medical records, directly contradicting the evidence and undermining defense counsel's cross-examination of Dr. Taitsman's opinion on causation.”   We do not find these comments warrant reversal of the jury's verdict.

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 v. Thompson Muller, 206 N.J. 506, 522 (2011) (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 22–23.   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.

A “trial court has broad discretion on the conduct of the trial, including the scope of counsel's summation.   The abuse of discretion standard applies to the trial court's rulings during counsel's summation.”  Litton Indus.   Inc. v. IMO Indus.   Inc., 200 N.J. 372, 392–93 (2009).   Here, Judge Richmond stated that

The complaint is about one word.   Certainly, if [plaintiff's counsel] had said that the Doctor's opinion was “wrong”, or “not true”, or not accurate defendant Plotka would have no complaint.   Simply using the word “crock” does not change the analysis.   This is not the same as the attack on the [d]efendant's expert in Rodd v. Raritan Radiologic Associates, P.A., 373 N.J.Super.   154 (App.Div.2004) and the argument was not filled with derisive and derogatory comments as in Geler [, supra ], 358 N.J.Super. at 438.   This was one poorly chosen slang word.   Additionally, Mr. Young did not ask for a curative instruction and none was given.

Unlike Geler, supra, plaintiff's counsel here did not make “a calculated determination that any means, however unfair, were justified by the goal of enlarging monetary recovery.”  358 N.J.Super. at 465 (granting a new trial where counsel impermissibly invited the jury to view themselves as parents of the deceased child, misstated material elements of the evidence in his closing statement, and consistently misrepresented witness testimony).   The attorney in Geler also used over twenty “derisive and derogatory comments[,]” id. at 468, whereas plaintiff's counsel here used one word.   As Judge Richmond correctly observed, the use of the word “crock” here does not warrant a new trial.

Plotka also claims that the trial judge erred in overruling his objections to plaintiff's summation, because plaintiff's counsel allegedly mischaracterized Dr. Vester's testimony regarding the effect of plaintiff's mental illness on her injuries.   However, the comments to which Plotka takes issue were simply a “[r]easoned analysis of the evidence and the credibility of testimony [,]” Geler, supra, 358 N.J.Super. at 467, and, as such, do not warrant reversal.

Lastly, Plotka argues that he should have been awarded a new trial because the trial judge improperly instructed the jury.   During trial, plaintiff withdrew any claim of aggravation of her injuries by the second accident, and Plotka did not object.   Thus, the trial judge instructed the jury as follows:

In order to recover damages in this case, the plaintiff must prove by a preponderance of the evidence that she sustained injuries which are permanent within a reasonable degree of medical probability.

If you find the injuries caused by the accident are not permanent, your verdict must be for the defendant.   If you find the injuries caused by the accident are permanent, your verdict must be for the plaintiff.   And, again, this legal concept applies both to the January accident and the September accident.

Undoubtedly, a proper jury charge is essential to a fair trial.  Navarro v. George Koch & Sons, Inc., 211 N.J.Super. 558, 570 (App.Div.), cert. denied, 107 N.J. 48 (1986).   However, no party is entitled to have the jury charged in his or her own words;  all that is necessary is that the charge as a whole be accurate.  State v. Thompson, 59 N.J. 396, 411 (1971);  Kaplan v. Haines, 96 N.J.Super. 242, 251 (App.Div.1967), aff'd, 51 N.J. 404 (1968), overruled on other grounds, Largey v. Rothman, 110 N.J. 204, 206 (1988).

Here, the jury was properly instructed on causation and permanency.   Plotka argues that there was “universal confusion” when Homler–Gojko's Rule 4:37–2(b) motion was granted, because a problem arose “with the lack of instruction on what the jury should do with damages if [p]laintiff has not proven a permanent injury from the second accident but has proven aggravation from the second accident.”   However, there was no confusion — if the injuries were not permanent, plaintiff could not recover.   The jury obviously found that any injury plaintiff claimed as a consequence of the second accident was not permanent and, thus, plaintiff was not entitled to compensation.   The jury thus awarded plaintiff damages in the amount of $180,000, attributing the cause of plaintiff's injuries to Plotka.   He did not object to the jury instructions at trial, and failed to make a persuasive argument on appeal that the charges were erroneous.

Affirmed.

FOOTNOTES

FN1. On November 11, 2010, defendant Teresa Plotka was dismissed by stipulation..  FN1. On November 11, 2010, defendant Teresa Plotka was dismissed by stipulation.

PER CURIAM