CRAIG HELFGOTT VS. JOSEPH KONOPKA FUNERAL HOME, LLC (L-5346-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5082-16T3
CRAIG HELFGOTT,
Plaintiff-Appellant,
v.
JOSEPH KONOPKA FUNERAL HOME,
LLC, and MANK REALTY, LLC,
Defendants-Respondents.
____________________________________
Argued May 22, 2018 – Decided July 9, 2018
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-5346-15.
Gregg Alan Stone argued the cause for
appellant (Kirsch, Gelband & Stone, PA,
attorneys; Gregg Alan Stone, of counsel and
on the brief; Ronald J. Morgan, on the brief).
Clifford J. Giantonio argued the cause for
respondents (Law Offices of Viscomi & Lyons,
attorneys; Clifford J. Giantonio, of counsel
and on the brief).
PER CURIAM
Plaintiff Craig Helfgott appeals from an order of judgment
entered by the trial court on June 6, 2017, and an order dated
July 7, 2017, which denied his motion for a new trial or,
alternatively, for additur. We affirm.
I.
Plaintiff filed a complaint against Joseph Konopka Funeral
Home, LLC (JKFH), alleging that on January 10, 2014, he suffered
severe and permanent injuries when he slipped and fell on the
sidewalk abutting certain property on Palisade Avenue in North
Bergen. Plaintiff later filed an amended complaint, naming Mank
Realty, LLC (Mank) as an additional defendant. Plaintiff alleged
that JKFH and Mank (collectively, defendants) were negligent in
failing to inspect and maintain the subject sidewalk free of any
dangerous conditions, including accumulated snow and ice.
At trial, plaintiff testified that on January 10, 2014, while
walking on the sidewalk adjacent to the JFKH property, he slipped
and fell on the icy pavement and injured his ankle. Police
responded to the scene, and plaintiff was transported to a medical
center. The following day, plaintiff underwent surgical open
reduction with internal fixation to his right ankle. The surgeon
inserted an eight-hole metal plate with eight screws. Plaintiff
was thirty-six years old at the time.
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Plaintiff remained at home and was non-weight bearing for
about a month. In that time, plaintiff only took one prescribed
medicine, Vicodin, for pain. Plaintiff remained out of work until
mid-February 2014. He began physical therapy and continued to be
non-weight bearing except during physical therapy. He was on
crutches through February and March 2014.
In April 2014, plaintiff started to place weight on his
injured ankle when he was not in physical therapy. Initially,
plaintiff used a "walking boot," but he removed the boot when he
went to sleep. He testified that he had pain while trying to sleep
because he had to elevate his foot to keep it from swelling.
On March 28, 2014, plaintiff underwent a second surgical
procedure to remove two screws from his ankle. After the second
surgery, plaintiff was able to flex his foot. He had physical
therapy three times a week for sessions that lasted an hour and a
half. Plaintiff continued physical therapy until late May 2014.
He also performed certain exercises at home.
Plaintiff testified that he had made "a decent recovery," but
his ankle was not fully recovered. He "had a fair bit of
flexibility back," but his ankle still got fatigued, and at those
times, the ankle did not feel stable. He was still experiencing
pain.
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Plaintiff said that in July 2014, members of his family
noticed he had an irregular gait. His right foot was "lagging a
little bit." After receiving an MRI, his doctor said his foot was
"pronating," which is like "tilting." At the doctor's suggestion,
plaintiff obtained orthotics, which are orthopedic inserts. At the
time of trial, plaintiff was still using the orthotics.
Plaintiff described his complaints. He has regular stiffness
in his ankle when he wakes up and at the end of the day. During
the day, plaintiff's ankle stiffens up if he does not flex and
exercise it regularly. Plaintiff said he is not able to walk as
much as he used to, and if he walks a lot, his foot gets tired and
starts to hurt.
Plaintiff admitted, however, that he did "a fair bit of
walking" on a recent vacation. He told his doctor that during the
vacation, he walked up to twelve miles each day, but had pain
afterwards. During his deposition, plaintiff said he walked a
"decent amount" on that trip.
Plaintiff also testified that he has difficulty running.
Although his gait has evened out, his right foot lags when he
attempts to run. Plaintiff told his doctor that after he runs, his
ankle is sore. Plaintiff described the pain as a two out of ten,
with one the lowest amount of pain and ten the highest.
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Plaintiff stated that his ankle hurts a lot when he climbs
steep hills, and he is not able to go hiking. Plaintiff said that
after the screws were removed, he has not done any hiking. However,
at his deposition, plaintiff testified about climbing in a hilly,
wooded area, but he insisted he had not been talking about hiking.
Plaintiff testified that the physical therapy had helped, and
by mid-May 2014, he had recovered to the extent expected. Plaintiff
did not feel any pain while he was testifying, but he said he
feels pain "underneath the ankle bone on the inside." At his
deposition, plaintiff did not specifically identify the place
where he feels pain.
Plaintiff testified that he feels pain generally in his ankle.
He takes over-the-counter medication, specifically Advil, "maybe
a couple [of] times a week," to help with the soreness. He stated
that his ankle still is stiff and does not "flex up and down."
Plaintiff was asked the last time he saw a doctor for his
ankle. He could not recall, but testified he saw a doctor in
January 2015. He also testified he may have seen a doctor once
since that time. According to plaintiff, the doctor told him he
could not do anything more for him.
Dr. Sean Lager, an orthopedic surgeon, testified for
plaintiff. Dr. Lager diagnosed plaintiff with: (1) status post-
right ankle fracture of the lateral malleolus and dislocation; (2)
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status post-open reduction with internal fixation of the right
lateral malleolus and syndesmosis; (3) status post-removal of the
right ankle syndesmotic hardware; (4) posterior tibial tendinitis
and pronation; and (5) injury to the peroneal tendon and deltoid
ligament. Dr. Lager testified that plaintiff had suffered "a high
energy injury." He said it was as though the "energy [had]
exploded" and "a small bomb" had gone off. He stated that the bone
that sits at the bottom of the ankle "slammed" into the tibia.
Dr. Lager further testified that in April 2015, plaintiff had
an x-ray, which showed osteoarthritis in the ankle joint. The
doctor stated that the arthritis would worsen as plaintiff ages.
He opined to a reasonable degree of medical probability that
plaintiff's injuries are permanent. He said plaintiff's future
prognosis included three options: (1) an ankle fusion; (2) total
ankle replacement; or (3) continued conservative treatment.
Dr. Lager acknowledged that when plaintiff returned to see
him on February 26, 2014, he only had occasional soreness after
therapy. Plaintiff reported that the pain was a one out of ten.
Plaintiff also had some tenderness when his incision was touched.
Plaintiff returned to see Dr. Lager on May 27, 2014, and he
was full weight-bearing. On July 8, 2014, plaintiff also was full
weight-bearing, but he complained of some difficulty with running
and stiffness. He said the pain in his ankle was a two out of ten.
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The doctor recommended an anti-inflammatory, but he was unsure
whether plaintiff followed his recommendation.
Dr. Lager noted that on July 29, 2014, plaintiff complained
of right ankle pain, especially after a lot of activity. Plaintiff
did not experience pain when the doctor pushed on the right deltoid
ligament. According to the doctor, the deltoid ligament was
stretched out and the ankle or foot was more pronated. The doctors
recommended orthotics to balance the ankle so plaintiff would be
anatomically correct while walking. Plaintiff obtained orthotics
shortly thereafter.
Dr. Lager also discussed the report of plaintiff's physical
examination, which another doctor performed on September 15, 2016.
The report indicated that plaintiff had no swelling, bruising,
asymmetries, or deformities in the ankle. The examination report
indicated that plaintiff reported no pain to his ankle when it was
pressed or squeezed. He had a full range of motion.
The examination report noted that plaintiff had taken an
extended vacation, during which he walked up to twelve miles each
day. Plaintiff reported he had pain afterwards, but at the time
of the examination, he was pain-free. Plaintiff was diagnosed with
a deltoid ligament sprain. Dr. Lager testified that this meant the
ligament "likely healed in with some scar tissue," but he did not
think it was functioning the way it was supposed to function.
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Dr. Lager noted that as of March 31, 2016, plaintiff was not
taking any pain medications. Plaintiff reported pain, stiffness,
and soreness. He was taking Advil, and said the pain was a one or
two out of ten. In the report, the doctor wrote that plaintiff
would probably never be one hundred percent, "but there is medical
treatment he may be able to [have] in the future that could help
with some of [his] symptomatology."
Defendants presented testimony from Dr. Charles Carozza, who
is also an orthopedic surgeon. He testified that plaintiff had
suffered a permanent injury, and the plate and the screws are
permanently in plaintiff's ankle. Dr. Carozza said plaintiff's
injuries had resulted in residual disability, meaning a functional
impairment to the ankle that is "going to last."
Dr. Carozza performed a physical examination of plaintiff on
May 31, 2016. He stated that plaintiff had no apparent distress,
and he walked with a normal gait. The doctor said this was a good
indication that plaintiff did not have any pain. He noted that
plaintiff reported he occasionally feels some medial pain or
palpation over a tendon, rather than the ankle itself. Dr. Carozza
found that plaintiff had some discomfort in the posterior tibialis
tendon.
Dr. Carozza also noted that he found plaintiff had no real
discomfort over the medial or lateral operative site. The doctor
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did not feel any screw heads; they were buried in place. Plaintiff
had full "dorsiflexion, which means he could cock his foot all the
way back up." Plaintiff had full "plantarflexion," which means he
"could put his foot down like a ballerina."
Plaintiff also had full "inversion" and "eversion." There was
no pain on all range of motion. The doctor found no "ligamentous
[in]stability," and he found no "effusion of the ankle," or "actual
fluid in the joint." The doctor explained that effusion is an
early sign of post-traumatic osteoarthritis.
Dr. Carozza opined that plaintiff did not suffer a tear of
the peroneal tendon. In his examination, he saw no indication that
plaintiff's deltoid ligament was attenuated or stretched. He
testified that plaintiff had an excellent surgical procedure and
an excellent result. Although he said plaintiff might develop
osteoarthritis, Dr. Carozza saw no sign that plaintiff was
developing that condition. Dr. Carozza noted that arthritis is not
always caused by trauma.
Dr. Carozza further testified that plaintiff might not need
fusion surgery. His condition could worsen, but he could also be
healthy and have the same complaints he had at that time. There
were no signs of a significant loss of motion, and the muscle tone
was good. Plaintiff has flat feet, but "that's the way he's made."
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The doctor acknowledged that plaintiff had some scarring from the
surgery, which was minor.
Dr. Carozza opined to a reasonable degree of medical certainty
that plaintiff has some mild, subjective complaints. The only
positive finding was an incision and some circumference
enlargement of the ankle. He said plaintiff has reached maximum
medical improvement from treatment, and further treatment is not
necessary. He opined that plaintiff has a "minimal amount of
residual disability."
The jury found that defendants were negligent and solely
responsible for plaintiff's fall and his resulting injury. The
jury awarded plaintiff $35,000 for pain and suffering, disability,
impairment, and loss of the enjoyment of life. The trial judge
molded the verdict to include the stipulated amount of plaintiff's
medical expenses, which totaled $56,725.85.
Plaintiff thereafter filed a motion for a new trial or, in
the alternative, additur. The trial judge denied the motion, and
this appeal followed.
II.
On appeal, plaintiff argues that the jury's award of $35,000
is grossly inadequate, shocks the conscience, and results in a
miscarriage of justice. He further argues that the judge's decision
denying his motion for a new trial was based on the judge's
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mistaken belief that both medical experts did not find that he
suffered a permanent injury. Plaintiff contends the trial judge
should have granted his motion for a new trial or, in the
alternative, additur. We disagree.
"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)). That presumption is not overcome unless the
party "clearly and convincingly" establishes that the award
represents a "miscarriage of justice." Ibid. (quoting Baxter, 74
N.J. at 596); see also R. 4:49-1(a). Furthermore, in deciding
whether to grant a motion for a new trial, the court must give
"due regard to the opportunity of the jury to pass upon the
credibility of the witnesses." Ibid. (quoting Ming Yu He v. Miller,
207 N.J. 230, 248 (2011)).
Moreover, a jury's damages award should not be overturned
unless it "shock[s] the judicial conscience." Id. at 503 (quoting
Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)). An award meets
that standard if it is "wide of the mark," "pervaded by a sense
of wrongness," and is "manifestly unjust." Ibid. (quoting Johnson,
192 N.J. at 281). The standard is "objective in nature and
transcends any individual judge's personal experiences." Ibid.11 A-5082-16T3
It is well-established that in deciding a motion for a new
trial under Rule 4:49-1(a), the judge
may not substitute his judgment for that of
the jury merely because he would have reached
the opposite conclusion. . . . "[The trial
judge must] canvass the record, not to balance
the persuasiveness of the evidence on one side
as against the other, but to determine whether
reasonable minds might accept the evidence as
adequate to support the jury verdict. . . ."
[T]he trial judge takes into account, not only
tangible factors relative to the proofs as
shown by the record, but also appropriate
matters of credibility, [which are] peculiarly
within the jury's domain, so-called "demeanor
evidence," and intangible "feel of the case"
which [the judge] has gained by presiding over
the trial.
[Dolson v. Anastasia, 55 N.J. 2, 6 (1969).]
The standard of review for determining whether a damages
award shocks the judicial conscience is the same for trial and
appellate courts. Cuevas, 226 N.J. at 501. However, in reviewing
the trial court's determination, "an appellate court must pay some
deference to a trial judge's 'feel of the case.'" Ibid. (quoting
Johnson, 192 N.J. at 282).
Here, the trial judge determined that the jury's verdict did
not shock the judicial conscience and was not a miscarriage of
justice. In the written statement appended to the order denying
the motion for a new trial or additur, the judge wrote that the
jury had the right to reject the credibility of any fact or expert
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witness and to accord the trial testimony whatever weight it deemed
appropriate. The judge noted that his role was not to second-guess
the jury's credibility assessments, or weigh the persuasiveness
of the evidence, but rather to determine whether a reasonable jury
could accept the evidence presented as support for its verdict.
The judge found that there was no evidence the jury's verdict was
the product of misunderstanding, bias, or prejudice.
The record supports the judge's determination that plaintiff
did not meet the standard under Rule 4:49-1(a) for a new trial.
He did not "clearly and convincingly" establish the damages award
was "a miscarriage of justice." Ibid. Plaintiff notes that both
medical experts testified that he has sustained a permanent injury.
However, the experts disagreed regarding the impact of the injury.
As we have explained, Dr. Carozza testified that when he
examined plaintiff, he found plaintiff had a normal gait. There
were no lingering abnormalities with the ankle, which was a good
indication plaintiff was not suffering any pain. According to Dr.
Carozza, plaintiff had full range of motion with no pain.
Plaintiff's expert, Dr. Lager, also testified that in September
2016, plaintiff had full range of motion. Plaintiff had some
scarring from the surgery, but it was minor.
Furthermore, based on plaintiff's testimony, the jury could
reasonably find that plaintiff did not have a substantial
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disability or impairment, and the injury did not have a substantial
adverse impact on his ability to engage in his normal activities.
Plaintiff initially denied that he could go hiking, but at his
deposition, he testified about walking up hills. He also testified
that after the accident, he went on an extended vacation during
which he walked up to twelve miles each day.
The record therefore supports the trial judge's determination
that the jury could reasonably find, based on the testimony
presented and its assessment of the credibility of the witnesses,
that a damages award of $35,000 was sufficient to compensate
plaintiff for his pain and suffering, disability, impairment, and
loss of the enjoyment of life.
The judge also correctly determined that because plaintiff
did not meet the standard for a new trial under Rule 4:49-1(a),
additur could not be considered. See Ming Yu He, 207 N.J. at 248;
Caldwell v. Haynes, 136 N.J. 422, 443 (1994). See also Pressler &
Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:49-1(a) (2018)
(noting that "neither additur nor remittitur can be ordered unless
a new trial, at least on the damages issue, would be warranted").
Plaintiff argues that in denying his motion for a new trial,
the judge erroneously stated that both medical experts had
testified that his ankle repair was successful and caused no
"lasting impact" upon him. Plaintiff correctly notes that both
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medical experts testified that plaintiff had sustained an injury
that was permanent. However, based on plaintiff's testimony and
the testimony of both doctors, the jury could reasonably find that
although the injury had a "lasting impact" upon plaintiff, the
impact was minimal and warranted an award of $35,000 for pain and
suffering, disability, impairment, and the loss of the enjoyment
of life.
Affirmed.
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