DONALD CAMPBELL VS. ZACHARY STARK (L-9092-17, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1366-19
DONALD CAMPBELL,
Plaintiff-Respondent,
v.
ZACHARY STARK,
Defendant-Appellant,
and
MELVIN J. STARK and
NEW JERSEY PROPERTY-
LIABILITY INSURANCE
GUARANTY ASSOCIATION,
Defendants-Respondents.
__________________________
Argued April 21, 2021 – Decided May 26, 2021
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-9092-17.
Colin Gibson argued the cause for appellant (Law
Offices of Viscomi & Lyons, attorneys; Colin Gibson,
on the briefs).
Gregg D. Trautmann argued the cause for respondent
(Trautmann & Associates, LLC, attorneys; Gregg D.
Trautmann on the brief).
PER CURIAM
Defendant Zachary Stark appeals from a unanimous jury verdict awarding
plaintiff Donald Campbell $500,000 for the injuries he sustained in a motor
vehicle accident. Having reviewed the record, and in light of the applicable law,
we affirm.
On appeal, defendant raises the following arguments for our
consideration:
POINT I
THE TESTIMONY OF THE PLAINTIFF BEING
PINNED AGAINST A WALL, FROM DR.
GLUSHAKOW SHOULD HAVE BEEN BARRED.
POINT II
PLAINTIFF'S FAILURE TO MITIGATE INJURIES
SHOULD HAVE BEEN CONSIDERED ON THE
JURY SHEET.
POINT III
THE JURY AWARD WAS SO GROSSLY
EXCESSIVE AS TO WARRANT A NEW TRIAL.
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We discern the following facts from the record. At approximately 11:45
a.m. on December 28, 2015, plaintiff was walking on the sidewalk of East
Northfield Road in Livingston. Defendant was operating a motor vehicle,
owned by his father, 1 in the left lane. While he was driving, defendant suffered
a seizure and lost consciousness. Defendant side-swiped a vehicle in the lane to
his right, struck a utility pole, and then struck plaintiff. Plaintiff was propelled
backward into a rock wall adjacent to the sidewalk.
Plaintiff was subsequently transported to Saint Barnabas Medical Center
where a CAT scan and x-rays were taken. At the hospital, plaintiff complained
of pain in his back, both shoulders and elbows, his left wrist and thumb, and left
knee. He was discharged that same day.
Almost three years earlier, plaintiff sustained injuries to his back and neck
after he was struck by a vehicle while crossing a street. Following the earlier
accident, plaintiff underwent physical therapy, epidural injections, and a lumbar
percutaneous discectomy and facet block on his L-5/S-1 disc, performed by Dr.
Allen Glushakow. After the surgery, plaintiff's pain dissipated, and he resumed
most of the activities he enjoyed prior to the accident.
1
Defendant's father was dismissed from the case prior to trial.
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In the weeks leading up to the accident, plaintiff felt "excellent" and was
not experiencing pain in his back, neck, or shoulders. After the accident,
however, plaintiff had recurrent pain in his back, shoulders, knees, and neck.
He returned to Dr. Glushakow for treatment. After conservative treatment
failed, Dr. Glushakow offered several treatment options including epidural
injections and possible surgery, which plaintiff chose not to pursue.
In December 2017, plaintiff filed a complaint in the Law Division alleging
negligence against defendant. At trial, plaintiff testified that the injuries and
pain from the December 2015 accident prevented him from engaging in any
meaningful physical activity. For example, he indicated he had difficulties
being intimate with his wife, which contributed to the deterioration of their
marriage. He is now completely unable to pursue activities such as jogging and
fishing, which he had successfully resumed after his surgery and recovery after
the 2013 accident. Plaintiff also testified his relationship with his daughters has
suffered because of his pain and loss of mobility. Finally, plaintiff requires
accommodation at work and has been unsuccessful in maintaining long-term
employment.
Dr. Glushakow testified on behalf of plaintiff. Prior to his testimony,
defendant moved to bar him from using the phrase "pinned . . . against a wall,"
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which was notated in the doctor's records as part of the history provided by
plaintiff. Defendant argued that because plaintiff testified that he was thrown,
not pinned, against the wall, the statement should be barred as unsupported by
the evidence. The trial judge denied the request, concluding there was no basis
to bar the inconsistent statements. He indicated defense counsel was free to
cross-examine Dr. Glushakow and address the discrepancy during summation.
Dr. Glushakow's initial diagnostic impression, following a physical
examination, was that plaintiff suffered from lumbar sacral radiculitis,
radiculopathy, and soft tissue injuries. Dr. Glushakow opined that, based on the
MRI, plaintiff suffered from a herniated disc at L-5/S-1 and a torn annulus,
which were attributable to the December 2015 accident. He also concluded that
the injuries to plaintiff's knee, hand, and shoulder were causally related to the
December 2015 accident. Dr. Glushakow's prognosis was "extremely guarded,"
and he maintained that plaintiff would have permanent loss of bodily function
with respect to his back and neck.
Dr. Kevin Egan, defendant's medical expert, testified that his physical
examination revealed that plaintiff moved well, did not report any discomfort,
and had excellent forward flexion. Dr. Egan opined that his physical
examination and review of the imaging tests did not reveal any disc herniation.
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He also disagreed that plaintiff suffered from an annular tear. Dr. Egan
concluded that plaintiff sustained only non-permanent soft tissue injuries as a
result of the December 2015 accident.
At the close of trial, the jury awarded plaintiff $500,000. In September
2019, defendant moved for a new trial. In October 2019, the judge denied
defendant's motion, concluding that, "[a]lthough the verdict may be somewhat
high for a non-surgical case, [it did] not shock the [conscience]."
First, we reject defendant's claim that the trial judge erred in denying the
motion to bar Dr. Glushakow's reference to the phrase "pinned against a wall."
A trial judge's decision to admit or exclude expert testimony in a civil case is
reviewed under "a pure abuse of discretion standard." In re Accutane Litig., 234
N.J. 340, 391 (2018). Here, we discern no abuse of discretion. The history
plaintiff provided to his treating physician for purposes of diagnosis and
treatment was admissible. See N.J.R.E. 803(c)(4). To the extent that history
differed from plaintiff's description of the accident at trial, defense counsel was
free to exploit those differences on cross-examination and in summation. As the
judge aptly advised defense counsel, "[s]uch matters are properly the subject of
exploration and cross-examination at a trial." Rubanick v. Witco Chem. Corp.,
242 N.J. Super. 36, 55 (App. Div. 1990).
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We also reject defendant's argument that the trial judge committed
reversible error because he did not include a sample interrogatory for mitigation
of damages on the verdict sheet. "[I]n reviewing an interrogatory for reversible
error, we should consider it in the context of the charge as a whole." Ponzo v.
Pelle, 166 N.J. 481, 491 (2001) (citing Sons of Thunder, Inc. v. Borden, Inc.,
148 N.J. 396, 418 (1997)). If the judge's oral instructions "were sufficient to
convey an understanding of the elements [of the cause of action] to the jury, and
. . . the verdict sheet was not misleading, any error in the verdict sheet can be
regarded as harmless." State v. Gandhi, 201 N.J. 161, 197 (2010). Indeed,
generally a verdict sheet is not grounds for reversal unless it was "misleading,
confusing, or ambiguous." Sons of Thunder, Inc., 148 N.J. at 418.
Here, the judge instructed the jury pursuant to the Model Jury Charges
(Civil), 8.11B, "Duty to Mitigate Damages by Medical and Surgical Treatment"
(rev. Oct. 2000). The charge instructs the jury that:
A defendant is liable only for that portion of the injuries
attributable to the defendant's negligence. If you find
that the plaintiff did not act reasonably to avoid or to
alleviate injury, you shall assess in terms of percentages
the degree to which the injuries were the result of the
plaintiff's own unreasonable failure to minimize or to
avoid further injury.
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[Model Jury Charges (Civil), 8.11B, "Duty to Mitigate
Damages by Medical and Surgical Treatment" (rev.
Oct. 2000).]
Because the charge informed the jury about how to assess mitigation in relation
to damages, the error, if any, of declining to include the same instruction on the
verdict sheet was harmless.
Finally, contrary to defendant's contention, we conclude that the jury
award was not excessive. "A jury's verdict, including an award of damages, is
cloaked with a 'presumption of correctness.'" Cuevas v. Wentworth Grp., 226
N.J. 480, 501 (2016) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598
(1977)). A new trial is warranted only if "it clearly and convincingly appears
that there was a miscarriage of justice under the law." R. 4:49-1(a). In other
words, "[o]ur cases emphasize that a jury verdict should not be disturbed 'unless
it constitutes a manifest injustice that shocks the judicial conscience.'" Mahoney
v. Podolnick, 168 N.J. 202, 229 (2001) (quoting Carey v. Lovett, 132 N.J. 44,
66 (1993)). We conclude, as the judge did, that while the jury's verdict was high
for a non-surgical case, it was not a miscarriage of justice nor sufficient to shock
the judicial conscience.
Affirmed.
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