NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2866-16T2
HELEN R. GODDARD and MALCOLM S. GODDARD, husband and wife,
Plaintiffs-Appellants,
v.
JOSEPH I. FINK, JR. and ATLANTIC CITY ELECTRIC COMPANY, d/b/a ATLANTIC CITY ELECTRIC, a PHI Company, a New Jersey Corporation,
Defendants-Respondents. __________________________________________
Argued September 24, 2018 – Decided October 4, 2018
Before Judges Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0865-14.
Evan S. Goddard argued the cause for appellants.
Ethan A. Hougah argued the cause for respondents (Montgomery, McCracken, Walker & Rhoads, LLP, attorneys; Gerald J. Corcoran and Ethan A. Hougah, on the brief). PER CURIAM
After a trial in this personal injury case, a jury found defendant Joseph I.
Fink, Jr., fully liable for causing the collision of his employer's truck with
plaintiff Helen R. Goddard's car and awarded her $3,000 in damages. One of
the key disputed issues at trial was the severity and duration of the bodily
injuries plaintiff 1 allegedly sustained as a result of the collision. Plaintiff's
medical experts opined that she sustained right shoulder and mild traumatic
brain injuries in the accident. Conversely, defendants and their medical expert,
orthopedic surgeon Dr. Brian Zell, attributed any lingering complaints to
plaintiff's age and pre-existing arthritis and other conditions. Following the
verdict, plaintiff moved for additur or, alternatively, a new trial, which the trial
court denied.
On appeal, plaintiff argues she was unfairly surprised at Dr. Zell's de bene
esse deposition when he was then shown, for the first time, surveillance
photographs of plaintiff, and modified his opinions from his earlier expert report
about plaintiff's condition and whether she would benefit from surgery. Plaintiff
1 The jury found plaintiff's spouse Malcolm S. Goddard was not entitled to recovery on his per quod claim. For ease of discussion, the references to "plaintiff" in this opinion shall mean Helen R. Goddard, unless otherwise indicated by the context. A-2866-16T2 2 argues the defense expert's change of opinion – without first issuing a
supplemental expert report – was material and unduly prejudicial. She asserts
the trial court erred in allowing the jury to hear those modified opinions.
Plaintiff further argues the trial court erred in its references during the jury
charge to concepts of permanency, since defendant drove a commercial vehicle
and her claims therefore are not subject to the lawsuit limitation threshold
pursuant to N.J.S.A. 39:6A-8(a). Lastly, plaintiff contends the jury's award
severely undercompensated her for her injuries and should be either enhanced
by additur, or at least set aside pending a new trial on damages.
As elaborated in this opinion, we conclude the defense acted improperly
in eliciting opinions from Dr. Zell at his de bene esse deposition concerning the
medical significance of the surveillance footage without providing advance
notice of those opinions during the discovery period. We reject defendant's
argument that the new opinions elicited from Dr. Zell were properly admitted
pursuant to N.J.R.E. 703, regardless of any violation of the Court Rules. The
defense should have alerted plaintiff to the new opinions before the defense
expert's de bene esse deposition. Even so, we discern no reversible error arising
from the lack of such advance notice because plaintiff was well equipped to
counter Dr. Zell's views with the testimony from plaintiff's two testifying
A-2866-16T2 3 medical experts opining on the surveillance evidence, and in light of the
vigorous cross-examination of Dr. Zell conducted by plaintiff's counsel. In
addition, plaintiff has not demonstrated the error was harmful in light of the
record as a whole.
We reject plaintiff's claims of error respecting the references to
permanency in the jury instructions. The concept of permanency was
appropriately included in the instructions in light of plaintiff's allegations and
medical proofs that her injuries were unremitting and expected to continue after
trial. Moreover, we are satisfied the curative instruction issued by the court, to
which plaintiff did not object, sufficiently clarified the durational concepts for
the jurors.
Finally, we decline to set aside the jury's assessment of damages, in light
of the great deference owed to the jurors' valuation and the principles of Cuevas
v. Wentworth Grp., 226 N.J. 480, 501 (2016). No new trial was warranted.
I.
The motor vehicle accident that is the subject of this appeal occurred on
the afternoon of March 8, 2012 in Pomona, at the uncontrolled intersection of
White Horse Pike and Genoa Avenue. Plaintiff was driving a yellow
Volkswagen Beetle sedan. Fink was driving a white pick-up truck for his
A-2866-16T2 4 employer, co-defendant Atlantic City Electric Company. Plaintiff had just been
with a real estate broker showing the broker a property that plaintiff and her
husband wished to place on the market for sale. Fink was returning home from
his work shift.
According to plaintiff's version of the accident, she was driving about
thirty to thirty-five miles per hour in the right lane of White Horse Pike, heading
eastbound. Fink's truck was approaching on White Horse Pike westbound from
the opposite direction. Fink made a left hand turn across plaintiff's lane of
travel, attempting to turn onto Genoa Avenue. The two vehicles collided,
damaging the right front of plaintiff's Volkswagen and the right rear of Fink's
truck. The airbag in plaintiff's car did not deploy.
According to Fink, he had proceeded to make his left turn because a large
tank truck in the left eastbound lane of White Horse Pike had been turning left
at the same time across the intersection. Fink claimed the large truck impeded
his ability to see plaintiff's sedan in the next lane.
Plaintiff did not lose consciousness from the collision. She felt chest pain,
dizziness, and pains on the right side of her body. She was taken by ambulance
to a local hospital, where she was admitted for three days. Plaintiff, who was
age seventy at the time of the accident, was concerned about the collision
A-2866-16T2 5 impairing her heart function because she had aortic valve surgery several years
earlier.
After plaintiff was discharged from the hospital, she began treatment with
Dr. David M. Anapolle, an orthopedic physician who had been recommended
by her primary care physician. Dr. Anapolle initially diagnosed plaintiff with
various contusions and a sprain of her cervical spine. He prescribed physical
therapy.
After plaintiff's symptoms persisted, particularly in her right shoulder, Dr.
Anapolle ordered an MRI study, which revealed arthritis in her right shoulder
and a rotator cuff tear. Dr. Anapolle administered cortisone injections, which
provided some temporary improvement but did not eliminate plaintiff's
symptoms. He determined that arthroscopic surgery on the shoulder would
provide plaintiff with her "best chance" of resolving her shoulder problems, but
deferred to plaintiff's concern that she did not want to assume the risks of surgery
in light of her heart condition.
Dr. Anapolle concluded the motor vehicle accident caused plaintiff's
shoulder injury, and that the condition would continue into the future. He
particularly noted plaintiff's decreased range of motion in her right shoulder.
Plaintiff discontinued treatment with Dr. Anapolle after August 2013.
A-2866-16T2 6 Plaintiff also received treatment from Dr. Jeffrey R. Boxman, a
neurologist who she had seen before the accident for unrelated neurological
ailments. Following the accident, Dr. Boxman examined plaintiff and conducted
neurological testing. He concluded that plaintiff had sustained a concussion in
the accident and recommended rehabilitation therapy to improve her balance.
Dr. Boxman continued to see plaintiff for several visits until June 2014, and
noted the therapy appeared to aid her balance and ability to walk. He opined
that the accident had caused neurological injury to plaintiff, that the injury was
permanent, and that she is at increased risk of falls and injuries.
Defendants retained as their medical expert Dr. Zell, an orthopedic
surgeon, who examined plaintiff on a single occasion in April 2015 after she
filed the present lawsuit. During his examination, Dr. Zell noted that plaintiff's
range of motion in her left shoulder was normal for a person her age. However,
plaintiff's range of motion in her right shoulder appeared to be restricted. In
particular, with respect to forward flexion, she showed an inability to raise her
right arm more than ninety degrees (i.e., a horizontal position) because she
claimed it was too painful to raise it any further, as opposed to a normal range
of about 170 degrees for a person her age. When testing the strength in plaintiff's
A-2866-16T2 7 hands, Dr. Zell noted that they dropped as soon as he applied pressure on them,
a reaction which he described in his written report as a "volitional giveaway."
Dr. Zell rendered the following expert opinions in the concluding portion
of his report:
It is the opinion of this examining physician to a reasonable degree of medical certainty on the basis of the history obtained, the physical examination performed and the medical records reviewed, that the patient sustained a strain of the right shoulder at the time of the automobile collision in question. On the basis of patient's attestation that she had no symptomatology in the shoulder predating the collision in question and has persistent symptomatology since the collision in question, the automobile collision is considered an exacerbating event of her preexisting arthritis including calcific tendonitis in the right shoulder. The automobile collision in question is not the proximate cause of the osteoarthritis of the AC joint, of the inferior osteophytes off the clavicle of the acromion, or of the partial thickness tear in the shoulder.
This patient has apparently undergone short-lived benefit from the subacromial injection. Her level of comfort and symptomatology may show some benefit from debridement of the calcific deposit and subacromial decompression. It is not anticipated on the basis of the MRI report that the patient had nor does she have a rotator cuff tear necessitating surgical repair.
[(Emphasis added).]
A-2866-16T2 8 Following Dr. Zell's report, the defense arranged for a company to conduct
surveillance of plaintiff and film her taking part in activities in public places.
The surveillance was performed on July 3 and 4, 2015. A composite video,
approximately a half hour long, was created from the filming, and was ultimately
played for the jury at trial. The video shows plaintiff pulling weeds outside of
her house, shopping alone in a supermarket pushing a cart and reaching for items
on the shelves, and bringing grocery bags into and out of her car. During the
course of these filmed activities, plaintiff is shown raising her right arm more
than ninety degrees. The video shows plaintiff walking with a slow gait and
short steps, but maintaining her balance.
The defense turned over the surveillance video to plaintiff's counsel in
discovery. Plaintiff's two medical experts, Dr. Boxman and Dr. Anapolle, each
issued a short supplemental report, stating they had reviewed the video and that
it did not change their opinions concerning plaintiff's condition. Dr. Boxman
stated the video depicts plaintiff as having gait ataxia, noting her short steps.
He also noted that when plaintiff bends forward on the video she uses a wide
base stance and holds on with one arm to the ground or her thigh for stability.
Dr. Anapolle, meanwhile, stated the video did not show plaintiff participating
in any activities inconsistent with his previous opinions concerning her
A-2866-16T2 9 orthopedic limitations. He noted the video shows that, as plaintiff leaned down
to pull weeds, she used her left arm to support her weight and did not place
significant force on her right arm. Dr. Anapolle also noted that plaintiff's actions
in carrying small shopping bags placed only a small amount of stress on her
right shoulder.
The defense did not ask Dr. Zell to provide a supplemental expert report
after the surveillance. Instead, the defense waited about six months, by which
point discovery had concluded, to show the video (or photos of plaintiff
extracted from it) to Dr. Zell for the first time at his de bene esse deposition in
February 2016. When Dr. Zell was asked about the video on direct examination
by defense counsel, plaintiff's counsel objected, claiming unfair surprise. The
objection was preserved for the trial court's consideration. Defense counsel then
proceeded to ask Dr. Zell about the significance of the surveillance to his own
opinions. Among other things, Dr. Zell provided these responses:
Q. Doctor, would you engage the computer so we can see that surveillance?
A. Sure.
Q. And then I'm going to get to a point where I'm going to ask you to stop. Stop it right there.
A. My timing isn't as good as yours so I'll back this up just a little bit I think is what you wanted me to
A-2866-16T2 10 do. Shoot. I can't get it. Now, I think that's the one you want.
Q. Now, in the picture [photo or video] let's assume that's Mrs. Goddard.
A. Okay.
Q. Does that demonstrate forward flexion?
A. Yes, it does.
Q. And can you estimate what degree of forward flexion that is?
A. 160 to 165 degrees.
Q. And, in your opinion, what is normal forward flexion for a 72-year-old?
A. 165 to 170 degrees.
Q. So in that picture it appears that she has full range of motion.
A. She has full forward flexion.
Q. And, again -- why don't we close that. And, again, just remind the jury of the amount of forward flexion that she demonstrated to you during her examination.
A. She permitted and she stopped herself at 90 degrees, right here (indicating). I'll turn sideways. Right here (indicating).
....
A-2866-16T2 11 Q. If her forward flexion had been 160 degrees instead of 90 degrees, would it have changed your opinion --
[PLAINTIFF'S COUNSEL]: Objection. Leading.
Q. -- would it have changed your opinion relative to the need for surgery?
A. Yes, actually.
Q. How would it have changed it?
A. I would have been less inclined to suggest that she needs surgery.
Q. Why?
A. Because the -- my thought process is the rationale for her as a potential surgical candidate was based on her limitation of motion which she proffered was a result of pain in the forward flex position. The consideration for surgery was also knowing that she has a calcium deposit on her rotator cuff and that she has spurs that hang down from the undersurface of the acromion and the clavicle and that those spurs do have an impinging effect or a rubbing effect on her rotator cuff. So if her motion was far better, I would have been less inclined to suggest that she need surgery.
[DEFENSE COUNSEL]: Thank you. That's all I have.
A-2866-16T2 12 Before the trial began, plaintiff moved in limine to exclude the portions
of Dr. Zell's videotaped deposition that referred to the surveillance video and
his related opinions. Plaintiff also moved to exclude other portions of the
deposition that are not raised as an issue on this appeal. The trial court denied
the motion in limine, recognizing the surveillance video had been turned over to
plaintiff in discovery and concluding that the defense expert was permitted to
comment about the significance of that evidence.
The trial proceeded, with plaintiff and defendant each presenting several
witnesses on liability and damages. The expert testimony of Dr. Boxman and
Dr. Anapolle for plaintiff and Dr. Zell for the defense was presented to the jury
on video through their recorded de bene esse depositions. The trial testimony
of those experts was substantially consistent with their respective reports, apart
from Dr. Zell's additional findings regarding the significance of the surveillance
evidence. During her trial testimony, plaintiff attempted to explain that the
surveillance video was not a fair indication of her condition because it was
filmed on days without precipitation when her symptoms tend to be less
pronounced. She also noted the hatchback door on her car is light and does not
require much strength to pull down.
A-2866-16T2 13 The jury returned a verdict finding that defendant Fink was one hundred
percent at fault in causing the accident. The jury also found that plaintiff had
proven she was injured as a proximate cause of the accident. The jury awarded
plaintiff $3,000 in damages for her claimed pain and suffering, awarding no
damages on her spouse's per quod claims. No economic damages were claimed
or awarded.
Following the verdict, plaintiff moved for a new trial or, in the alternative,
additur of the damages award. The trial court denied that motion in an oral
opinion, and this appeal ensued.
On appeal, plaintiff contends that the trial court erred in: (1) admitting Dr.
Zell's opinions concerning the surveillance video; (2) referring several times to
the term "permanency" in the jury instructions; and (3) denying the motion for
a new trial on damages or additur. Defendants have not cross-appealed, thereby
leaving the adverse liability verdict intact.
II.
The primary issue on appeal concerns Dr. Zell's videotaped testimony
commenting on the surveillance evidence. This issue implicates both the Rule s
of Court and the Rules of Evidence. In considering plaintiff's claim of error, we
recognize the substantial deference we generally afford to trial judges in
A-2866-16T2 14 applying the civil pretrial and discovery rules, see, e.g., Pomerantz Paper Corp.
v. New Cmty. Corp., 207 N.J. 344, 371 (2001) (generally applying an abuse of
discretion standard relating to matters of discovery), and admissibility rulings
concerning trial evidence, see, e.g., In re Accutane Litig., ___ N.J. ___, ___
(2018) (slip op. at 71) (reaffirming the abuse of discretion standard for reviewing
evidentiary rulings on expert testimony). If an abuse of discretion is shown, the
appellant must also generally demonstrate the error was harmful and "clearly
capable of producing an unjust result." R. 2:10-2; see also Pellicer ex rel.
Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009) (recognizing that "even a
large number of errors, if inconsequential, may not operate to create an injustice"
and require a civil judgment to be set aside).
The Rules of Court dictate the appropriate procedures for the pretrial
disclosure of expert opinions. Rule 4:10-2(d)(1) authorizes a party to obtain
discovery of the credentials and opinions of an opposing party's expert through
service of an interrogatory requesting that information. There is no dispute that
plaintiff made such a routine request in this case. Rule 4:17-4(e) specifies that
the answering party must supply "an exact copy of the entire report or reports
rendered by the expert or physician." Among other things, Rule 4:17-4(e)
requires the report to "contain a complete statement of that person's opinions
A-2866-16T2 15 and the basis therefor," as well as "the facts or data considered in forming the
opinions." (Emphasis added). Except as may be otherwise provided by Rule
4:17-4(e), if a party who has supplied interrogatory responses "thereafter obtains
information that renders such answers incomplete or inaccurate, amended
answers shall be served not later than 20 days prior to the end of the discovery
period[.]" R. 4:17-7. "Amendments may be allowed thereafter only if the party
seeking to amend certifies therein that the information requiring the amendment
was not reasonably available or discoverable by the excuse of due diligence prior
to the discovery end date." Ibid. This continuing obligation to disclose or
update material changes in discovery responses is well established and not
refuted by defendants. See, e.g., McKenney v. Jersey City Med. Ctr., 167 N.J.
359, 370-72 (2001); Amaru v. Stratton, 209 N.J. Super. 1, 11 (App. Div. 1985).
It is also well established that, as a general matter, "[a]n expert's testimony
at trial may be confined to matters of opinion contained within the expert's
report." Mauro v. Owens-Corning Fiberglass Corp., 225 N.J. Super. 196, 206
(App. Div. 1988), aff'd, 116 N.J. 126 (1989). The court is empowered to impose
sanctions for such non-disclosure, including the exclusion of the expert's
undisclosed opinions at trial. Id. at 206-07 (upholding the exclusion of facts,
data, and related opinions plaintiff's expert had not revealed until the time of
A-2866-16T2 16 trial). In calibrating the appropriate sanctions for a proven violation, courts are
to consider such factors as whether there is: "(1) the absence of a design to
mislead, (2) [the] absence of the element of surprise if the evidence is admitted,
and (3) [the] absence of prejudice which would result from the admission of the
evidence." Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd
o.b., 78 N.J. 308 (1978); see also Amaru, 209 N.J. Super. at 11 (reiterating these
factors). With respect to the "hallmark" element of surprise, "[a] party cannot
claim surprise . . . when the testimony of the expert contains 'the logical
predicates for and conclusions from statements made in the report[.]'"
Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div.
1999) (quoting McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App.
Div. 1987)), rev'd on other grounds, 163 N.J. 677 (2000).
Defendants argue they had a right to present Dr. Zell's opinions at trial
concerning the surveillance evidence pursuant to N.J.R.E. 703, which provides
that "[t]he facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert at
or before the hearing." (Emphasis added). Defendants contend the surveillance
video was such evidence "made known to" Dr. Zell "at" his de bene esse
deposition, and thus admissible. Moreover, they persuaded the trial court that
A-2866-16T2 17 the surveillance-related opinions elicited from Dr. Zell were akin to testimony
in response to hypothetical questions. We reject these legal contentions.
As this court held long ago in Mauro, 225 N.J. Super. at 207, the
predecessor to N.J.R.E. 703, former Evidence Rule 57, which allowed an expert
to refer at trial to certain facts or data not previously disclosed, did not authorize
a party to use that evidence provision to circumvent an expert's pretrial
disclosure obligations under the Rules of Court. To read the rules of evidence
in that fashion is improper, because it "essentially nullifies the purpose of R.
4:10-2(d)(1), which requires disclosure . . . of the 'substance of the facts and
opinions' to which the expert is expected to testify, as well as the expert's written
report." Ibid.
The evidence rule cannot nullify the Rules of Court in this fashion.
Logically construed, N.J.R.E. 703 appears to be designed to allow the parties'
experts to react to unanticipated evidence that emerges for the first time at trial,
and to adjust their expert opinions accordingly, such as when a fact witness at
trial revises his or her estimate of a vehicle's speed or the distances involved.
That is not the situation here.
Moreover, we disagree with the defense's effort to characterize Dr. Zell's
opinions concerning the significance of the surveillance evidence as mere
A-2866-16T2 18 responses to hypothetical questions. The surveillance evidence was real and not
hypothetical in nature. The defense expert's assessment of that new evidence
should have been disclosed long before his de bene esse deposition was taken,
just as plaintiff responsibly had each of his two medical experts issue
supplemental reports commenting on the surveillance proof before their own
trial testimony was videotaped. The trial court misapplied its discretion in
condoning defendants' manner of handling the situation. At oral argument on
the appeal, defense counsel asserted that his office waited to provide the
surveillance evidence to Dr. Zell until the day of his videotaped testimony for
strategic reasons. Although the lack of earlier notice to plaintiff may well have
given the defense a degree of strategic advantage, that advantage was unearned
and unjustified.
That said, we must also consider the extent to which the defense's belated
revelation of Dr. Zell's revised findings was likely to cause any actual prejudice
to plaintiff. This involves a focus on the extent to which Dr. Zell's updated
views materially diverged from his original report, and whether those views
could not have been reasonably foreseen by astute plaintiff's counsel. A fair
reading of the record reflects that Dr. Zell's testimony about the surveillance
evidence differed from his earlier report in two material respects. First, the
A-2866-16T2 19 doctor found that plaintiff's arm movements on the video showed right forward
flexion of as much as 165 degrees, in contrast to the ninety-degree limited range
she exhibited during his office examination. That is a material difference.
Second, as the deposition passages quoted above reflect, Dr. Zell explicitly
changed his opinion about whether plaintiff could benefit from right shoulder
surgery, noting that her unrestricted arm movements on the video made him "less
inclined to suggest that she need[s] surgery." This change of opinion is also
material, albeit to a lesser extent than the range-of-motion flexion percentages.
Even so, we are unpersuaded that these discrete changes in Dr. Zell's
assessment of plaintiff comprised a sufficiently prejudicial and unfair surprise
to warrant a new trial. As the trial court correctly recognized, the underlying
facts and data from the surveillance were duly turned over to plaintiff's counsel
during the discovery period, which ended in October 2015. Plaintiff does not
argue that the surveillance proof itself was improperly procured. Once plaintiff's
counsel reviewed the video proof, it could reasonably be expected that proof
would only fortify Dr. Zell's "bottom-line" conclusion that plaintiff suffered
only limited orthopedic problems from the accident and that her complaints were
objectively more attributable to other factors such as her age and degeneration.
As he phrased it, the new evidence made Dr. Zell "less inclined" to discern a
A-2866-16T2 20 need for surgery. That modification of his original opinion was reasonably
predictable, particularly given plaintiff's theme that the expert was generally
biased in favor of the defense's interests.
Plaintiff has not demonstrated that she was without effective means to
counter Dr. Zell's surveillance-related commentary. For one thing, plaintiff had
already procured supplemental opinions from her two medical experts
explaining why the surveillance evidence did not affect their own assessments.
Plaintiff's own trial testimony provided an explanation of why on the particular
days she was filmed she was feeling better than she would have felt in inclement
weather. Plaintiff's attorney also skillfully cross-examined Dr. Zell at length in
an effort to undercut the credibility and weight of the doctor's assertions.
Moreover, plaintiff did not make any application to the trial court to extend the
discovery period in light of Dr. Zell's revised opinions, or to have her own
experts' reports further supplemented. We also note plaintiff's two experts were
not video recorded until after Dr. Zell's deposition, thereby affording them the
opportunity to take his testimony into account beforehand. That diminishes the
asserted harmfulness of Dr. Zell's brief discussion of that evidence.
Further, the trial judge reasonably found in his denial of plaintiff's post-
trial motion, that the surveillance evidence itself – a form of factual proof – was
A-2866-16T2 21 particularly devastating to plaintiff's case. With their own eyes, the jurors could
evaluate plaintiff's movements while weeding, shopping, and lifting groceries,
and assess directly whether those activities were consistent with plaintiff's
claims of injury.
In sum, despite our disapproval of the defense's discourteous and
inappropriate non-disclosure, we conclude that plaintiff has not demonstrated
error that was sufficiently harmful to mandate a new trial on that basis. Nicosia
v. Wakefern Food Corp., 136 N.J. 401, 412 (1994) (declining to order a new
trial in a civil case where the claimed errors were not also shown to be
sufficiently harmful). Even so, we urge counsel in future cases to eschew the
course of action followed here. Specifically, counsel should not deliberately
hold back from providing their medical experts with surveillance evidence in
their possession until the day of the expert's post-discovery de bene esse
videotaping session.
III.
Plaintiff next contends she was severely prejudiced by the fact that the
trial court mentioned the term "permanency" several times during the jury
instructions. We discern no reversible error from these inadvertent references.
For one thing, plaintiff was clearly seeking in this case damages for both past
A-2866-16T2 22 and future pain and suffering. Although permanency was not required to be
proven in order for plaintiff to recover an award for past damages, the concept
logically was an ingredient of the case. Indeed, both of plaintiff's medical
experts testified they expected plaintiff's post-accident injuries to continue into
the future.
We also note that the trial court issued a curative instruction to the jurors,
accurately clarifying that plaintiff had no obligation to prove permanency and
that she was entitled to recover for both proximately-caused past and future
injury. Plaintiff did not object to that curative instruction after it was issued.
The law presumes that jurors are capable of following curative instructions.
Williams v. James, 113 N.J. 619, 632 (1989); see also State v. Burns, 192 N.J.
312, 335 (2007) (recognizing this presumption as to jury instructions in general).
The clarifying instruction issued by the court here was presumptively obeyed.
The fact that the jurors awarded some damages, albeit a small amount, provides
some indication that they did not misunderstand the law. If they erroneously
thought plaintiff had to prove permanent injury to recover anything in this case,
and failed to meet such a burden, they would have awarded no damages at all.
A-2866-16T2 23 IV.
Finally, we address plaintiff's argument that she was entitled to a new trial
or, alternatively, additur of the monetary award. Recently, in Cuevas, 226 N.J.
at 501, the Supreme Court underscored the deference owed to juries as the triers
of fact in calibrating non-economic damages. "[A] permissible award may fall
within a wide spectrum of acceptable outcomes." Id. at 500. In Cuevas, 226
N.J. at 503, the Court retracted its previous approach in He v. Miller, 207 N.J.
230, 251-56 (2011), which called for a more exacting post-trial review of jury
awards with the use of comparative verdict data. The principles justifying such
deference equally apply to a plaintiff's post-trial motion for additur as they do
to a defendant's post-trial motion for remittitur.
A motion for a new trial based upon a claim the verdict is against the
weight of the evidence generally rests upon the sound discretion of the trial
judge. Baumann v. Marinaro, 95 N.J. 380, 389 (1984). We are not convinced
the trial court misapplied its discretion here in leaving the jury's verdict intact.
Among other things, plaintiff's cessation of treatment, her age, her previous
medical problems, her lack of wage loss or other economic damages, and her
activities depicted on the surveillance film all provide a rational explanation for
the modest damages figure the jurors agreed upon.
A-2866-16T2 24 Ultimately, the jurors apparently found plaintiff and her experts to be less
credible about her injuries than had been anticipated from her perspective.
Guided by Cuevas, we have no reason to second-guess the jurors' decision. The
award, while no doubt disappointing to plaintiff, does not "shock the judicial
conscience." Cuevas, 226 N.J. at 503.
The balance of plaintiff's contentions, including her argument that the trial
judge did not pay sufficient attention to any reactions of the jurors as they heard
the videotaped testimony, lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E). The judge's prompt and thoughtful rulings on various objections
posed during the trial, and his references to the substance of the evidence ,
evinces a strong familiarity with the proofs and his overall attentiveness to the
case as it unfolded.
Affirmed.
A-2866-16T2 25