BRUCE STEVENS VS. MARY K. GONZALEZ (L-649-13, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1540-15T1
BRUCE STEVENS,
Plaintiff-Appellant,
v.
MARY K. GONZALEZ AND ADRIAN
K. GONZALEZ,
Defendants-Respondents.
_____________________________________
Argued January 19, 2017 – Decided June 13, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-649-13.
Richard A. Grodeck argued the cause for
appellant (Piro, Zinna, Cifelli, Paris &
Genitempo, LLC, attorneys; Mr. Grodeck, on the
briefs).
Raymond Kramkowski argued the cause for
respondents (Law Office of Viscomi & Lyons,
attorneys; Christopher S. Byrnes, on the
brief).
PER CURIAM
In this automobile negligence action, plaintiff Bruce Stevens
appeals from a November 10, 2015 order1 of the trial court denying
his motion for a new trial following a jury verdict award of
limited damages. Following a three-day trial, the jury found that
plaintiff sustained non-permanent injuries resulting from a motor
vehicle accident. As such, the jury awarded plaintiff $4125 in
lost wages. Plaintiff argues that the limited jury award was a
direct result of an erroneous and misleading jury instruction by
the court, causing sufficient confusion in the minds of the jurors
to justify a new trial. We disagree, and for the reasons that
follow, affirm.
I.
We begin by noting that plaintiff's claims were subject to
the verbal threshold of the Automobile Insurance Cost Reduction
Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. In the circumstances of
this case, the "limitation on lawsuit option," N.J.S.A. 39:6A-
8(a), required that plaintiff prove a permanent injury caused by
the motor vehicle accident in order to recover non-economic
personal injury damages such as emotional, mental and physical
pain and suffering. Davidson v. Slater, 189 N.J. 166, 174 (2007).
1
Although the order was signed on November 5, 2015, it was filed
on November 10, 2015.
2 A-1540-15T1
Plaintiff's personal injury action arose on December 15,
2012, when defendant Mary Gonzalez struck plaintiff's vehicle
"head on," at the intersection of Route 517 and Grist Mill Lane2
in Andover Township. Plaintiff refused medical care at the scene,
citing his only injuries at the time as pain in his "left wrist"
and "left foot primarily." However, when the pain "increased
throughout the night[,]" plaintiff went to Hackettstown Regional
Medical Center the following morning and reported having "pain
throughout [his] upper body" and "shoulders[.]" At the hospital,
plaintiff was diagnosed with sprains to his left wrist and left
foot as well as a fractured sternum.
A few days later, plaintiff saw an orthopedic surgeon who
confirmed the hospital's diagnosis of a fractured sternum.
Although the sprains and fractured sternum healed completely after
approximately eight to nine weeks, plaintiff continued to feel
pain. In January 2013, plaintiff began seeing Dr. Michael Gutkin,
a physiatrist, who has been his treating physician since the
accident. On December 2, 2013, plaintiff filed a personal injury
lawsuit and requested a jury trial, alleging he sustained permanent
2
Although the street was referred to as Route 613 by other
witnesses, Route 517 and Route 613 are the same street.
3 A-1540-15T1
injuries as a result of the accident caused by defendant's
negligent operation of her vehicle.3
Plaintiff presented his case at a trial conducted on September
16, 17, and 21, 2015, during which the State trooper who responded
to the accident scene testified that defendant admitted to him "it
[was her] fault, [she] just didn’t see [plaintiff] coming." At
the close of defendant's case, on plaintiff's motion, the court
granted a directed verdict on liability, finding that defendant's
negligence caused the accident and that defendant was 100% at
fault. R. 4:40-1. As a result, the court determined that the
case would proceed on the issue of damages only. The jury was
tasked with deciding whether plaintiff sustained permanent injury
resulting from the accident, and if so, determining the amount of
money damages plaintiff was entitled to recover.
Plaintiff testified that he suffers from constant pain on a
daily basis in his neck, shoulders, "arms and into [his] hands"
that worsens over time. According to plaintiff, he experiences
"severe headaches" and numbness in his "arms" and "hands" after
about twenty to forty-five minutes of use. He explained that the
pain in his hands and arms affects his ability to engage in
activities he once enjoyed, including playing with his grandson
3
In his complaint, plaintiff did not allege any preexisting
condition or other disability that was aggravated by the accident.
4 A-1540-15T1
and traveling. Plaintiff also testified that, since the accident,
he has not returned to work as an excavator due to his pain and
because he is not permitted to operate machinery while on narcotic
medication. Plaintiff reported a net income of $9000 in 2012,
which was the last year he worked.
Plaintiff acknowledged having multiple surgeries in the past,
including spinal surgery in 1977 and two prior shoulder surgeries
in 2009 and 2010. In addition, in 2011, to address pain in his
neck, plaintiff had a " radiofrequency ablation" which alleviated
all of his neck pain and allowed him to resume working. According
to plaintiff, after the ablation treatment in 2011, he had no neck
pain until the accident.
In addition to testifying, plaintiff presented the testimony
of Dr. Gutkin, a qualified expert in physical medicine and
rehabilitation, to prove his damages. Dr. Gutkin testified that
plaintiff sustained a "sternal fracture, pinched nerve of sorts
due to unknown etiology, but . . . probably a disk bulge or
herniation" due to the accident. According to Dr. Gutkin,
plaintiff's post-accident MRI revealed "multiple bulges, most
significant being . . . C-2, C-3, C-4, C-5, C-6, [and] C-7," and
plaintiff's EMG confirmed "pinched nerves in the neck, both
sides[.]" Dr. Gutkin acknowledged that plaintiff had "preexisting
pain in the neck from the joints[,]" which had responded to
5 A-1540-15T1
treatment in the past. Comparing plaintiff's pre-accident MRI to
his post-accident MRI, Dr. Gutkin testified "there is definite
worsening of the film in the 2011 pre accident to the 2013 film[.]"
Dr. Gutkin concluded that "back in 2011 he didn’t have a pinched
nerve and the joints . . . were a factor back in 2011, but were
not bothering him up until the accident."
Dr. Gutkin treated plaintiff's injuries through several
mediums, including physical therapy, chiropractic care, cervical
epidural shots, facet block injections, and radiofrequency
ablation; none of which provided permanent relief. To manage his
pain, Dr. Gutkin prescribed plaintiff "anti-inflammatories[,]"
"painkillers[,]" "muscle relaxers[,]" "steroids[,]" and sleep
aids. Dr. Gutkin testified "with the severe force that he had on
the sternum, I think that the force on the joints probably created
some cartilage damage in the joints that is not responding to our
treatments." Dr. Gutkin diagnosed plaintiff with "cervical
radiculopathy which is the pinched nerve probably coming from the
disk itself." Dr. Gutkin concluded that in his "medical
opinion[,]" plaintiff suffers from "facet injury and cartilage
damage" which are "100 percent permanent" because "cartilage
doesn’t regenerate." According to Dr. Gutkin, at present,
"[plaintiff] does not have full range of motion in his neck[,]"
and plaintiff's cervical spine will never function normally again.
6 A-1540-15T1
In opposition, the defense medical expert, Dr. Edward Decter,
an orthopedic surgeon, conducted an independent evaluation of
plaintiff for trial.4 Although Dr. Decter agreed with Dr. Gutkin
that plaintiff had a preexisting condition with his cervical spine,
his examination revealed that plaintiff did not have "any medical
or neurogenic abnormalities." After administering several tests
during his examination of plaintiff, including range of motion and
reflex tests, Dr. Decter concluded that the results were normal
and plaintiff displayed "no neurological deficits."
Dr. Decter reviewed plaintiff's medical records from the
hospital visit following the accident to plaintiff's first visit
to the orthopedic surgeon and found no indication of plaintiff
complaining of neck pain from the accident. According to Dr.
Decter, "if there was acute bulging disk that occurred as a result
of this accident . . . that pain would have been described to the
emergency room . . . doctors and nurses," and on the first visit
to the orthopedic surgeon two weeks later.
Dr. Decter opined that, as a result of the accident, plaintiff
"sustained a cervical sprain superimposed on degenerative
discogenic disease" that did not constitute "a permanent
4
Dr. Decter testified that in New Jersey, independent medical
evaluations are called "medical legal evaluations where there is
no doctor patient relationship."
7 A-1540-15T1
injury[.]" Dr. Decter explained that a cervical sprain is where
"you get hit" and "strain muscles in your neck." As to plaintiff's
complaint of a loss of bodily function, Dr. Decter testified that
he did not believe plaintiff "sustain[ed] a loss of bodily function
to his cervical spine[,]" as "[t]he sternal fracture was
nondisplaced and healed."
During the jury charge conference, plaintiff's counsel
provided the court with a suggested jury charge and requested the
court to modify "certain provisions" of the model jury charge to
"customize[]" it "to the facts." Defense counsel vehemently
objected and requested that the court instruct the jury on
aggravation of a preexisting condition in accordance with Model
Jury Charge (Civil), 8.11F, "Aggravation of the Preexisting
Disability" (1997), which reads in pertinent part:
If you find that [plaintiff's]
preexisting illness/injury(ies)/condition was
not causing him/her any harm or symptoms at
the time of the accident, but that the
preexisting condition combined with injuries
incurred in the accident to cause him/her
damage, then [plaintiff] is entitled to
recover for the full extent of the damages
he/she sustained.
The court instructed the jury, in relevant part, as follows:
In this case the plaintiff has presented
evidence and made arguments that a condition
that he had before the accident is in affect
[sic] a preexisting injury which was made
further damaged by the happening of the
8 A-1540-15T1
accident for which he seeks monetary
compensation. In other words, the plaintiff
here has claimed that he was -- he had prior
injury or condition and that it was
asymptomatic, it wasn’t giving him any problem
until this accident took place. In such a
case a plaintiff . . . if they are able to
demonstrate by a preponderance of the evidence
that the accident caused these injuries is
entitled to recover not only for the trauma
surrounding this accident but also that which
may have been made worse by the happening of
the accident. So, the plaintiff may be
entitled to monetary damages for that injury.
Obviously, the defendants in this case
are not responsible for any preexisting injury
in and of itself. You may not award any money
in this case for damages attributable solely
to the preexisting condition. . . .
To the extent that this preexisting
injury was not causing plaintiff any harm or
symptoms at the time of the accident, if the
plaintiff shows by a preponderance of the
evidence that as a result these injuries were
made aggravated or more severe, then the
plaintiff may be entitled to recover monetary
damages due to an aggravation or worsening of
that preexisting condition, but only to the
extent of that aggravation. Plaintiff has the
burden of proving what portion of his
condition is due to the preexisting injury.
After plaintiff's counsel brought the error in the charge to
the court's attention, the court re-charged the jury with the
following instruction:
If you find that [plaintiff's]
preexisting condition as claimed was not
causing him any harm or symptoms at the time
of the accident but that the preexisting
condition combined with injuries incurred in
9 A-1540-15T1
the accident to cause him damage, then
[plaintiff] is entitled to recover for the
full amount of the damages he sustained.
There were no objections to the jury charge. The jury returned a
verdict for plaintiff on September 22, 2015, awarding him $4125
in lost wages. The jury determined that plaintiff's injuries
stemmed from the accident, but were not permanent. Thereafter,
plaintiff filed a motion for a new trial, which the court denied
by order dated November 5, 2015. This appeal followed.
On appeal, plaintiff raises the following points for our
consideration:
POINT I
THE JURY INSTRUCTIONS WERE HOPELESSLY
AMBIGUOUS AND IN THE INTEREST OF JUSTICE A NEW
TRIAL MUST BE GRANTED.
POINT II
THE TRIAL COURT ERRED IN REFUSING TO GRANT A
NEW TRIAL.
II.
"A jury verdict, although not sacrosanct, is entitled to
great deference." City of Long Branch v. Jui Yung Liu, 203 N.J.
464, 492 (2010); see also Lockley v. Turner, 344 N.J. Super. 1,
13 (App. Div. 2001) (holding that the jury's fact-finding function
deserves a high degree of respect and judicial deference), aff'd
in part and modified in part, 117 N.J. 413 (2003). Under Rule
2:10-1, this court can only reverse a trial court's denial of a
10 A-1540-15T1
motion for a new trial where "it clearly appears that there was a
miscarriage of justice under the law." "The 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)).
An erroneous jury charge is cognizable on a motion for a new
trial. It is well established that a proper jury charge is
essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266,
288 (2002); Navarro v. George Koch & Sons, Inc., 211 N.J. Super.
558, 570 (App. Div.), cert. denied, 107 N.J. 48 (1986). "The jury
charge 'should set forth an understandable and clear exposition
of the issues.'" Mogull v. Cb Commercial Real Estate Grp., 162
N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire & Rubber
Co., 98 N.J. 198, 210 (1984)). Our Supreme Court has "instructed
that '[j]ury charges must outline the function of the jury, set
forth the issues, correctly state the applicable law in
understandable language, and plainly spell out how the jury should
apply the legal principles to the facts as it may find them[.]"
Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Velazquez
v. Portadin, 163 N.J. 677, 688 (2000)).
11 A-1540-15T1
Thus, when examining whether mistakes in a jury charge require
intervention, we generally will not disturb a jury verdict based
upon a trial court's error "where the charge, considered as a
whole, adequately conveys the law and is unlikely to confuse or
mislead the jury, even though part of the charge, standing alone,
might be incorrect." Fischer v. Canario, 143 N.J. 235, 254 (1996)
(citing Latta v. Caulfield, 79 N.J. 128, 135 (1979); Jurman v.
Samuel Braen, Inc., 47 N.J. 586, 592 (1966)). Here, plaintiff did
not object to the final charge as required under Rule 1:7-2.
Pursuant to Rule 2:10-2, we shall disregard "[a]ny error or
omission . . . unless it is of such a nature as to have been
clearly capable of producing an unjust result." As such, an
erroneous charge not objected to will be upheld if it is incapable
of producing an unjust result and does not prejudice any
substantial rights. Boryszewski v. Burke, 380 N.J. Super. 361,
374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).
Plaintiff contends that the court provided an erroneous jury
charge on aggravation of a pre-existing condition and, therefore,
should have granted his motion for a new trial. We are somewhat
hampered by the court's failure to articulate its reasons for
entering the November 5, 2015 order. We have only the order
without any oral argument or an analysis of the facts or law upon
which the court's decision may have been based. Rule 1:7-4(a)
12 A-1540-15T1
requires that a court "find the facts and state its conclusions
of law . . . on every motion decided by a written order that is
appealable as of right[.]" Our Supreme Court has recognized that
the failure to comply with this obligation "'constitutes a
disservice to the litigants, the attorneys and the appellate
court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting
Kenwood Assocs. v. Bd. of Adjustment Englewood, 141 N.J. Super.
1, 4 (App. Div. 1976)). "Meaningful appellate review is inhibited
unless the judge sets forth the reasons for his or her opinion.
In the absence of reasons, we are left to conjecture as to what
the judge may have had in mind." Salch v. Salch, 240 N.J. Super.
441, 443 (App. Div. 1990). While we would ordinarily "remand for
an exposition of the judge's reasoning[,] . . . because the record
overwhelmingly demonstrates the absence of any factual or legal
basis for [granting the motion,]" we will independently evaluate
the sufficiency of the court's decision to deny the motion for a
new trial. In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div.
2003).
Plaintiff asserts that the charge on aggravation of a pre-
existing condition was an "absolute misstatement of the law," and
the court's additional instruction to correct the error was
insufficient because it was unaccompanied by an explanation.
Plaintiff argues that the jury's verdict demonstrates that the
13 A-1540-15T1
jury was "confused by the charge and did not understand that an
aggravated, previously asymptomatic, injury is an injury for which
the plaintiff is entitled to fully recover damages." Although we
agree that the original charge on aggravation of a pre-existing
condition was erroneous, and it may have been beneficial if the
court had made "an express statement to the jury that the original
charge was incorrect," Conklin v. Hannoch Weisman, P.C., 281 N.J.
Super. 448, 454 (App. Div. 1995), modified, 145 N.J. 395 (1996),
we review the jury instruction as a whole, not in isolation.
Because the charge given by the court after counsel's prompting
was correct and effective in providing the jury with the proper
guidelines from which to render a verdict, the error was not of
"such a nature as to have been clearly capable of producing an
unjust result[.]" R. 2:10-2. Further, there was no "miscarriage
of justice under the law" to justify reversing the court's denial
of the motion for a new trial. R. 2:10-1.
Moreover, there is no evidence to support plaintiff's
contention that the instruction caused the jury to be confused.
Rather, the verdict demonstrates that the jury did not believe
that plaintiff sustained a permanent injury. The issue of
permanence was hotly contested throughout the trial with the
parties presenting competing expert testimony. Plaintiff's
expert, Dr. Gutkin, testified that plaintiff had asymptomatic
14 A-1540-15T1
prior conditions and that the injuries plaintiff sustained in the
accident caused permanent injury. In contrast, the defense expert,
Dr. Decter, testified that his examination of plaintiff and review
of plaintiff's medical records did not reveal any permanent injury
attributable to the 2012 accident. It appears from the verdict
that the jury was not convinced that plaintiff's injuries were of
a permanent nature and was persuaded by the testimony of the
defense expert. As we have held, it is within the jury's purview
to reject or adopt any portion of an expert's testimony. Amaru
v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985) (citation
omitted).
Had plaintiff been able to persuade the jury that his injuries
sustained in the 2012 accident, which aggravated an asymptomatic
preexisting condition, were permanent, then defendant would have
been liable for such aggravating effects. However, it would be
reasonable to conclude that even if the jury found plaintiff's
asymptomatic preexisting condition aggravated by the accident, the
jury may also have concluded that the aggravated condition did not
constitute a permanent injury. Indeed, the jury would have had
to first determine that plaintiff's injury was permanent before
even addressing his entitlement to any recovery. Since the portion
of the charge defining the threshold issue of permanency was
correct and, in this case, dispositive, the erroneous charge on a
15 A-1540-15T1
preexisting condition cannot constitute reversible error because
it would only impact the entirely separate issue of damages. Cf.
Tindal v. Smith, 299 N.J. Super. 123 (App. Div.), certif. denied,
150 N.J. 28 (1997) (holding that a clearly erroneous charge on one
element of the cause of action will not constitute reversible
error where the jury's finding as to another entirely separate
element was independently dispositive of the cause of action and
was correctly charged).
Affirmed.
16 A-1540-15T1