Queen L. Bates v. Lori A. Robson ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3185-21
QUEEN L. BATES, Guardian
Ad Litem for TEKHI
BARNETT, and QUEEN L.
BATES, individually,
Plaintiffs-Appellants,
v.
LORI A. ROBSON,
Defendant-Respondent,
and
GERALD W. ROBSON,
Defendant.
__________________________
Submitted December 11, 2023 – Decided April 10, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-7347-19.
McHugh & Imbornone, PA, attorneys for appellants
(Salvatore Imbornone, Jr., on the brief).
Flanagan, Barone & O'Brien, LLC, attorneys for
respondent (Michelle Mary O'Brien, of counsel and on
the brief).
PER CURIAM
Tekhi Barnett (Tim) was struck by an SUV driven by defendant Lori
Robson (Robson) on May 10, 2019. His mother, Queen Bates (Bates), filed a
Complaint on his behalf, as his guardian ad litem, asserting negligence and
individually, asserting medical expenses and loss of services. Following trial, a
jury found that Tim and defendant were equally responsible for the accident ,
Tim suffered permanent injuries, for which the jury awarded $10,000 for future
medical expenses, but that Tim suffered no permanent scarring or disfigurement.
The trial court subsequently denied plaintiffs' motion for a new trial on damages.
Plaintiffs now appeal from the order denying their motion for a new trial . We
affirm.
I.
When he was nine years old, Tim left his friend's house riding a non-
motorized scooter. When he rode into the street, he was struck by an SUV driven
by Robson. Tim was taken to the hospital and treated for cuts and lacerations
to his lip, mouth, right knee, and right arm. A jury trial was conducted in April
2022, during which Bates, Tim, and Robson all testified. Plaintiffs also called
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two expert witnesses concerning Tim's injuries and alleged scarring. Defendant
called an expert in dentistry.
Tim testified that on the evening following the accident he felt "like, a
little bit in pain and numb." In contrast, Bates testified he missed an entire
season of track meets due to his injury. This assertion was belied by the record,
which reflected Tim missed only a single-track meet the day after the accident.
Both dental experts acknowledged Tim lost a tooth and another tooth was
chipped. Both experts also acknowledged those injuries would require future
medical treatment, including braces. Plaintiffs' dental medical expert opined the
cost would be approximately $84,000, while defendant's dental expert testified
the cost of plaintiffs' expert's proposed future dental work, which he opined was
unnecessary, would be in the range of $26,000. Defendant's expert testified Tim
had no disfigurement of the lower lip, the lip color was normal, and there was
no scar visible. He admitted Tim sustained an injury, but determined it healed
with no disfigurement, scarification, or loss of sensory or motor function.
Although plaintiffs' dental expert opined dental reconstructive surgery
would cost $84,600, he conceded that figure was on the high end of the
spectrum. He also admitted the calculation included temporary treatment he
would have expected Tim to have undergone shortly after the accident and until
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he became old enough to obtain braces, but that treatment had not yet occurred
at the time of trial. The jury was able to look at photographs after the accident
and examine Tim's teeth and lips at trial.
The jury found: (1) Tim and Robson were both negligent in causing the
accident and they apportioned liability fifty percent as to each; (2) Tim sustained
a permanent injury; but (3) Tim did not sustain permanent disfigurement or
scarring. It awarded zero damages for pain and suffering and awarded $10,000
in damages for future medical expenses.
Plaintiffs filed a motion for a new trial on damages. The trial court denied
that motion, finding the verdict was supported by the evidence at trial.
Accordingly, the court entered an order memorializing that decision on June 16,
2022. That same day, the trial court entered an order molding the verdict to
reflect that no damages were being awarded because the amount awarded by the
jury for future medical expenses did not exceed Tim's personal injury protection
medical expense insurance coverage.
On appeal, plaintiffs argue the trial court erred in denying their motion for
a new trial. Specifically, they contend (1) the jury award of zero damages for
pain and suffering is shocking, inconsistent, and against the weight of the
evidence; (2) the jury's award of $10,000 for future medical expenses is against
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the weight of the medical evidence presented at trial; and (3) the jury's finding
that Tim did not suffer a significant disfigurement or scarring is inconsistent
with and against the weight of the evidence. We disagree as these arguments
are belied by the testimony and evidence at trial.
II.
Jury verdicts should be set aside in favor of a new trial sparingly and only
in cases of clear injustice. Dutton v. Rando, 458 N.J. Super. 213, 223-24 (App.
Div. 2019); Jacobs v. Jersey Cent. Power & Light Co., 452 N.J. Super. 494, 502
(App. Div. 2017); Caicedo v. Caicedo, 439 N.J. Super. 615, 628-29 (App. Div.
2015); Boryszewski ex rel. Boryszewski v. Burke, 380 N.J. Super. 361, 391
(App. Div. 2005), certif. den. 186 N.J. 242 (2006). A trial court should grant a
motion for a new trial only 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);
Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 324 (2010). Indeed, the
court may not substitute its judgment for that of the jury. Schaefer v. Cedar
Fair, L.P., 348 N.J. Super. 223, 240 (App. Div. 2002). Instead, the court should
canvass the record to determine if "reasonable minds might accept the evidence
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as adequate to support the jury verdict." Borngesser ex rel. Est. of Borngesser
v. Jersey Shore Med. Ctr., 340 N.J. Super. 369, 377 (App. Div. 2001).
The general standard for determining whether the quantum of damages
awarded by the jury is appropriate remains, as expressed by Baxter v. Fairmount
Food Co., 74 N.J. 588, 596 (1977), whether the quantum is plainly wrong or
shocking to the conscience of the court. See Cuevas v. Wentworth Grp., 226
N.J. 480, 499-500, 510 (2016). A determination as to the inadequacy or
excessiveness of an award should be made by viewing the totality of the
evidence in the light most favorable to the party opposing the motion for a new
trial. Jastram ex rel. Jastram v. Kruse, 197 N.J. 216, 229 (2008); Caldwell v.
Haynes, 136 N.J. 422, 432 (1994); Monheit v. Rottenberg, 295 N.J. Super. 320,
327 (App. Div. 1996); Kozma, 412 N.J. Super. at 325.
We apply substantially the same standard in our review of a trial court’s
decision denying a motion for a new trial following a jury verdict, giving due
deference to the trial court’s feel of the case, including credibility
determinations. Caldwell, 136 N.J. at 431-432.
After reviewing the record in the light of the arguments advanced by the
parties and applying the law, we conclude there is sufficient support in the trial
record for the jury's verdict. Specifically, Bates' testimony contradicted Tim's
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testimony, expanding the extent of her son's injuries and pain, and allowing the
jury to find their testimony contradictory and therefore, not credible. Although
Bates did not witness the accident, she gave a statement to the police at the
hospital. At trial, Bates testified as to the cuts on Tim's lip, mouth, scars to his
right knee and right arm, loss of a tooth and one chipped tooth, but did not
present any expert testimony regarding orthopedic injuries to the knee or arm.
Bates testified Tim was hesitant to smile as a result of the accident, but his
schoolteacher contradicted that testimony. Additionally, neither party disputed
there is nothing Tim can no longer do as a result of his injuries.
Defendant's dental expert opined there was no permanent injury, the
plaintiffs' expert's treatment plan of replacing the teeth with crowns was an
unnecessary treatment, and the cost of that treatment – even if implemented –
was far "above the usual and customary" and was unreasonable. When adjusting
plaintiffs' expert's unnecessary treatment plan for usual and customary costs,
defendant's expert opined the future "extraordinary" dental work would cost
$26,900. This proposed treatment plan also included sums for temporary
treatment until Tim was old enough to wear braces, but that treatment had not
been implemented as of the date of trial, three years after the accident, despite
Bates' testimony Tim had dental insurance coverage for the treatment.
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In sum, the testimony adduced at trial provided ample support for the
jury's findings that although Tim suffered a permanent injury to two teeth, he
suffered no permanent disfigurement as a result, and the amount of $10,000 was
adequate to compensate him for future medical expenses. Indeed, the jury was
free to accept the opinion of defendant's expert and to reject the opinions of
plaintiffs' experts. Moreover, the contradictory testimony presented by Tim and
Bates, and the jury's ability to see Tim's face and mouth and listen to his minimal
complaints, also supports the jury's decision to not award for pain and suffering.
The jury's verdict and award do not shock the conscience.
Affirmed.
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