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Damage-Smithson v. Garcia- (A2222-08T2)


DOCKET NO.  A- ASK  docket "Enter Docket Number"  * MERGEFORMAT 2222-08T22222-08T2

MICHAEL SMITHSON Plaintiff-Appellant,


CARLOS GARCIA   Defendant-Respondent.


Argued December 15, 2009 – Decided May 7, 2010

Before Judges Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8350-04.

Howard H. Sims argued the cause for appellant (Spevack & Cannan, P.A., attorneys; Mr. Sims, on the brief).

James C. Nelson argued the cause for respondent (Litvak & Trifiolis, attorneys; Mr. Nelson, on the brief).


            This matter is before us for the second time.  It arises out of an automobile accident on December 18, 2002, when plaintiff Michael Smithson was a passenger in an automobile that was struck by a motor vehicle operated by defendant Carlos Garcia.  Defendant conceded liability, and an expedited jury trial was held solely on the issue of damages.  The jury rendered a verdict finding that plaintiff had sustained a permanent injury, N.J.S.A. 39:6A-8, but awarded only nominal damages of one dollar.  Plaintiff filed a motion for a new trial, contending that the damages award was against the weight of the evidence; plaintiff requested oral argument on this motion.  Defendant filed opposition and, on May 25, 2007, the trial judge denied plaintiffs motion on the papers.

            Plaintiff appealed, and in a decision of July 22, 2008, we remanded to afford plaintiff the right to oral argument on his motion pursuant to Rule 1:6-2(d).  Smithson v. Garcia, No. A-5623-06 (App. Div. July 22, 2008) (slip op. at 2).

            Pursuant to our remand, the trial judge heard argument on plaintiffs motion on November 21, 2008, and at the conclusion, entered an order denying the motion.  In her oral opinion from the bench, the judge noted that plaintiff was the only witness at trial; there was no medical testimony, but medical records were submitted to the jury.  The judge summarized plaintiffs testimony as follows:

            His only testimony as to his complaints of what he was unable to do was . . . I think he said, I can play basketball, but I dont play full court. . . .  That he couldnt walk as far on the boardwalk. . . .  Those were his only complaints of what his limitations from his daily activities were.

The judge disputed plaintiffs argument that the jury found that "he had . . . herniated discs[,]" stating:  "[N]o, they did not.  The . . . question was whether there was a permanent injury causally related.  You keep saying that, and thats not what was on the verdict sheet."  The judge further stated that plaintiffs "articulation in oral argument that the jury found  . . . herniations [wa]s not part of the record."

            The judge noted that there were "volumes of medical records . . . submitted," and the jury "had about an hour to review them."    The judge concluded:

[U]nder the circumstances of [plaintiffs] own testimony, on the subject of his pain[,] suffering, discomforts and inability to pursue [his] normal pleasures, the only thing the jury heard is, I cant play full court basketball and I cant walk along the promenade. . . .  Those were the only two things. And the jury saw [plaintiff], observed him and awarded $1 in damages.

            . . . .

            Under those circumstances[,] the [c]ourt cannot find that the award was against the weight of the evidence as the jury heard and saw it.


            On appeal, plaintiff contends that (1) the trial judge erred in finding that the jurys damages verdict was not against the weight of the evidence; and (2) the damages award of one dollar should have been set aside and a new trial held as to the issue of damages only.  We agree and, therefore, reverse.

            Our rules provide that a motion for a new trial shall be granted "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."  R. 4:49-1(a).  The jurys verdict is entitled to "very considerable respect" and will be overturned only in "clear cases."  Baxter v. Fairmont Food Co., 74 N.J. 588, 596-97 (1977).  Accordingly, a new trial on damages is warranted only where the amount awarded is so disproportionate to the injuries incurred that the award shocks the conscience of the court and allowing the verdict to stand would be manifestly unjust.  Monheit v. Rottenberg, 295 N.J. Super. 320, 328 (App. Div. 1996).

            When deciding whether the quantum of damages awarded by the jury was inadequate, the court must "consider the evidence in the light most favorable to the defendant[]."  Id. at 327.  "On a motion for a new trial, all evidence supporting the verdict must be accepted as true, and all reasonable inferences must be drawn in favor of upholding the verdict."  Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).  In reviewing the denial of a motion for a new trial, we apply the same standard as the trial judge except that we must give due deference to the trial judges "feel of the case including credibility."  Monheit, supra, 295 N.J. Super. at 327-28 (quoting Feldman v. Lederle Labs, 97 N.J. 429, 463 (1984)).

            We have reviewed the record with those standards in mind, and we are convinced that the trial judges recollection of plaintiffs testimony regarding the impact of his injury upon the quality of his life was incomplete.  For example, regarding basketball, plaintiff, who was thirty-one years old at the time of the accident, stated that he "used to play full court with young kids.  I used to take them out but not anymore . . . not like I used to."  Whereas he used to play full court games lasting up to forty-five minutes, now, he described his basketball playing now as "like shooting around a little bit."  Plaintiff also testified that he did not "swim as much[,] . . . walk as far[,] . . . [or] drive as much[,] . . . [b]ecause [his] back starts to hurt."  He testified further that cold or rainy weather triggered lower back pain, which caused him to "sleep on the floor." 

            We also question the scope of the jurys review of the medical records in evidence.  As the trial judge noted, "volumes of medical records . . . were submitted."  As plaintiff notes in his brief, the court clerks records reflect that the jury began its deliberations at 2:15 p.m. and had reached a verdict by 3:00 p.m.  Having reviewed the approximately sixty pages of medical records appended to plaintiffs brief, we question whether the jury adequately read and considered those documents.

            It appears that the trial judge was not familiar with the contents of the medical records. The judge several times corrected plaintiffs counsel in oral argument on the motion, when counsel referred to plaintiff having "herniations [in] the cervical region . . . ."  As noted, the trial judge stated that "herniations . . . [are] not part of the record."

            Several doctors reports, however, specifically state a diagnosis of "[c]ervical [d]isc [h]erniation at the C4-C5 level[,]" which was revealed by an MRI conducted on April 21, 2003, approximately four months after the accident.  That diagnosis is contained in the reports of (1) Dr. Konstantine Fotiou, plaintiffs chiropractor with whom he treated for several months after the accident; (2) Dr. Edward Lev, a physician to whom Dr. Fotiou referred plaintiff for follow-up treatment; and (3) Dr. David Weiss, who evaluated plaintiff in May 2006, in preparation for trial.

            Regarding the impact of this herniation upon plaintiffs mobility, Dr. Fotiou stated:

The diagnostic studies which include, central C4-C5 disc herniation . . . reveal objective medical evidence that in all chiropractic probability there is a causal relationship between the patients injuries and the aforementioned accident.  Furthermore, these injuries have had a direct and negative impact on the patients quality of life both at home and at work, based upon subjective complaints that continue to [the] present day. 


            Dr. Weiss report contains the following description by plaintiff:

In terms of activities of daily living, [plaintiff] notes difficulties when performing his job as a food deliveryman.  [Plaintiff] notes that his household duty of dishwashing is modified and restricted.  Posturally, [plaintiff] notes that he can sit comfortably for 10 minutes and can stand comfortably for 5 minutes.  [Plaintiff] also notes postural difficulties when sleeping.  [Plaintiff] notes difficulties when lifting weights greater than 30 pounds.  In terms of hobbies and sporting activities, [plaintiff] notes that he can no longer play basketball.  [Plaintiff] notes difficulties with prolonged driving of a motor vehicle.

At present, [plaintiff] states the pain level on a scale of 0 to 10 is 2-6/10 in cervical spine and 2-6/10 in the lumbar spine (depending on activity level) . . . .

Prior to the date of the accident, [plaintiff] denies having any pain or difficulties with activities of daily living. 

Thus, even assuming plaintiffs testimony tended to minimize or understate his physical condition resulting from the accident, the medical records document that condition in greater detail.

            In sum, given the medical evidence of record, and even considering "the evidence in the light most favorable to . . . defendant[,]" Monheit, supra, 295 N.J. Super. at 327, it is clear that plaintiffs permanent injury stems from two herniated discs directly attributable to the accident.  On this record, we conclude that allowing the one dollar damages award to stand would be manifestly unjust.  Id. at 328.  Therefore we reverse and remand for further proceedings.  On remand, the trial judge should consider additur as an alternative to a new trial.  See Verdicchio v. Ricca, 179 N.J. 1, 39 (2004) (recognizing remittitur "as a remedy to avoid the unnecessary expense and delay of a new damages trial").

            Reversed and remanded.   

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

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Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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