NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0530-15T1
ISAAC J. BUCHEN and GAIL BUCHEN,
Plaintiffs-Respondents,
v.
TAYLOR R. BRANICK and JAMES S. BRANICK,
Defendants-Appellants.
____________________________________
Argued February 14, 2017 – Decided June 27, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L- 8119-13.
John V. Mallon argued the cause for appellants (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Mallon, of counsel and on the briefs; Richard W. Fogarty, on the brief).
Franklin R. Strokoff argued the cause for respondents (The Rothenberg Law Firm, L.L.P., attorneys; Mr. Strokoff, on the brief).
PER CURIAM This appeal arises from a motor vehicle accident between
plaintiff Isaac J. Buchen and defendant Taylor R. Branick. The
trial court granted a directed verdict on causation and later
ordered the jury to return a monetary amount after it submitted a
zero-damages verdict. We reverse the court's September 4, 2015
judgment and remand for the entry of judgment based on the jury's
verdict of zero damages.1
I.
Plaintiff testified as follows. On December 27, 2011, he was
driving in "stop and go traffic" when he was rear-ended by
defendant. Plaintiff was "jolted," which he said "was
significant." However, his body did not strike the steering wheel
or any other part of his vehicle. Plaintiff felt "startled" and
"shaken up" but did not experience immediate pain in his back or
elsewhere.
Both drivers pulled over. There was minor damage to
plaintiff's rear bumper and the front of defendant's car.
1 Plaintiff's wife Gail Buchen's loss of consortium claim was withdrawn. Plaintiff's claims were dismissed against defendant's father James S. Branick, the owner of the vehicle.
2 A-0530-15T1 Plaintiff did not complain of pain, declined an ambulance, and
drove home from the scene.2
Plaintiff testified that, the next morning, he felt pain in
his lower back, and "shooting pains down [his] leg to [his] toes,"
that he never experienced before. He did not seek medical
attention until about a week and a half after the accident. A Dr.
Goldenburg (or Goldenberg) had plaintiff get an MRI and prescribed
physical therapy.3 Plaintiff attended physical therapy for four
to five months. The pain "initially" improved and then improvement
"stalled," prompting him to stop attending physical therapy in
April 2012. The physical therapy was the last active treatment
plaintiff received. Dr. Goldenburg also recommended plaintiff
visit a pain management doctor, Dr. Patel, who proposed injections
for the pain. Plaintiff declined because the pain, while
persistent, "wasn't completely intolerable." He decided to "live
with the pain, since it was . . . tolerable."
Plaintiff testified he saw Dr. Jonathan Lewin in November
2014 after having not seen a doctor for treatment for roughly two-
and-a-half years. Dr. Lewin had plaintiff get an MRI and an x-
2 Defendant testified she hit plaintiff's car and was "jolted forward." She testified it was "[m]edium to light impact" and that she did not hit the steering wheel. She added plaintiff said he was okay. 3 The spelling of this name varies in the record.
3 A-0530-15T1 ray. He suggested surgery or injections, but plaintiff again
declined.
Plaintiff testified that, prior to the accident, he had "a
very active lifestyle." He enjoyed working out, hiking, biking,
skating, and spending time with his wife and eight children.
Plaintiff's activities have been limited since the accident in a
number of ways. He is no longer able to shovel snow or go on long
bike rides. He has not gone to the gym since December 2011. He
is also unable to carry his children on his back around the house
or when they go hiking. He still feels pain every day. While he
does not have the shooting pains down his legs permanently, he
does still experience them from time to time. He is still able
to travel by train and plane. He is able to walk the five blocks
in New York City from the Port Authority to his office. He will
consider injections or surgery if the pain worsens, but, if it
stays as is, he will "try to continue to live with it." He does
not wear a back brace, take any prescription medication, or walk
with a cane or a limp.4
Plaintiff played for the jury the videotaped deposition of
Dr. Lewin, who testified as follows. The MRI revealed plaintiff
"had a combination of distal bulge or herniation" in his lumbar
4 Plaintiff's wife testified similarly as to defendant's limitations since the accident.
4 A-0530-15T1 vertebrae and spondylolysis, which is "a crack . . . in the back
at the lower level of his spine." "[T]he onset of the pain was
caused by the accident," and "the bulge and the herniation and
even the spondylolysis may have been caused by the accident, but,
. . . typically speaking, it's an acquired condition, which is
more likely exacerbated by this type of accident than actually
caused by it." He expected plaintiff's symptoms to continue
forever.
Defendant called two experts. First, Dr. Alan Miller, an
orthopedic surgeon, testified as follows. Dr. Miller examined
plaintiff on September 16, 2014. The bulge identified in the MRI
could be caused by the accident but also could be degenerative,
and was not compressing the nerves. The spondylolysis "was a
preexisting condition and not related to the accident."
Dr. Miller testified plaintiff reported that "following the
accident he developed neck and lower back pain." Dr. Miller also
reviewed Dr. Goldenburg's records, which showed plaintiff
complained of lower back pain. Based on those records, Dr. Miller
conceded plaintiff was "injured" and "hurt" in the accident because
he suffered "strains and sprains," namely "a cervical sprain [and]
a lumbar sprain." However, those injuries resolved.
Second, Dr. Eric Fremed, a neurologist, testified as follows.
Dr. Fremed examined plaintiff on October 22, 2014 and found
5 A-0530-15T1 plaintiff was "left without objective evidence of any permanent
neurological injury" caused by the accident. The herniation or
bulge was degenerative and not caused by the accident. Rather,
Dr. Fremed found, "by the history [plaintiff] gave me, he suffered
a Lumbosacral sprain as a result of the accident," which later
improved. Both defense experts agreed plaintiff suffered no
permanent injury and required no future treatment.
At the close of the evidence, plaintiff moved for a directed
verdict on negligence and causation. Defendant did not dispute
she was negligent, but she contested causation and damages. The
trial court granted the plaintiff's motion. As to causation, the
court found the jurors must find at least a temporary injury,
which it found "equates . . . to causation."5
The trial court instructed the jury:
The plaintiff contends that he sustained a permanent injury as a result of the accident of December 27th, 2011. The defendant contends that the plaintiff sustained no permanent injury as a result of the motor vehicle accident and, at most, sustained a temporary injury which should have healed within a few months. . . . . Now, in this case, the Court has ruled that the plaintiff is free from fault in the happening of this accident; that the defendant was negligent in the happening of the
5 Because this case was not subject to the "[l]imitation on lawsuit option," plaintiff was not restricted to recovering for "a permanent injury." See N.J.S.A. 39:6A-8(a).
6 A-0530-15T1 accident; and that her negligence caused the accident and any injuries sustained. So, the issue for you to decide is whether the plaintiff sustained a temporary or permanent injury and what amount would constitute fair and adequate compensation for the injuries sustained? The plaintiff is entitled to recover fair and reasonable money damages for the full extent of the harm caused. . . . . . . . Now, because I have already ruled as a matter of law as to certain issues in the case the issue you'll have to decide . . . reduces itself to one question . . . . What amount of money will fairly and justly compensate the plaintiff . . . for pain and suffering, disability, and loss of enjoyment of life?
On July 17, 2015, the jury returned a verdict of "zero
dollars." Without any request by plaintiff, the trial court told
counsel "[t]he jury must have been confused" as a zero-damages
verdict "was not an option. The jury must return a verdict of a
monetary amount in favor of the plaintiff, at least, for temporary
injuries." Over defendant's objection, the court decided it was
"going to have to recharge them."
The trial court brought the jury back and instructed:
The Court feels it must have been unclear in it's [sic] instructions to you. The only options – there was an option during your deliberations to consider whether the injury sustained by the plaintiff was temporary or permanent. But the undisputed evidence was that he was injured. No medical testimony existed that the plaintiff was not injured. Under the law, therefore, the Court has determined that the jury must returned [sic]
7 A-0530-15T1 a damage award whether for temporary injury or permanent. That's within your purview. Was it temporary; was it permanent? But, even if temporary, the plaintiff is entitled to a monetary award. Which you determine in your good sense and judgment the fair and reasonable value of that award. Therefore, I'm going to recharge you on the law with respect to damages and what an award must encompass. And then I'm going to ask you to re-deliberate.
Shortly thereafter, the jury returned a $30,000 verdict. The
court denied defendant's motion for a new trial or reinstatement
of the zero-damages verdict.
II.
Defendant argues the trial court erred in entering a directed
verdict on causation under Rule 4:40-1. "'[I]f, accepting as true
all the evidence which supports the position of the party defending
against the motion and according him the benefit of all inferences
which can reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be denied.'" Smith
v. Millville Rescue Squad, 225 N.J. 373, 397 (2016) (citation
omitted); accord Dolson v. Anastasia, 55 N.J. 2, 5 (1969). "In
reviewing . . . a motion for judgment under Rule 4:40-1, [appellate
courts] apply the same standard that governs the trial courts."
Smith, supra, 225 N.J. at 397. We must hew to that standard of
review.
8 A-0530-15T1 "To recover damages for the negligence of another, a plaintiff
must prove that the negligence was a proximate cause of the injury
sustained." Scafidi v. Seiler, 119 N.J. 93, 101 (1990).
"Proximate cause is a factual issue, to be resolved by the jury
after appropriate instruction by the trial court." Ibid. Thus,
"proximate cause is generally an issue for the jury." Miller v.
Estate of Sperling, 166 N.J. 370, 386 (2001); accord Winstock v.
Galasso, 430 N.J. Super. 391, 418 (App. Div.), certif. denied, 215
N.J. 487 (2013).
Of course, whether "negligence was a proximate cause of the
injury sustained," Scafidi, supra, 119 N.J. at 101, depends on the
injury. Where a plaintiff claims multiple injuries, they each
raise a separate causation issue, and it is improper to lump them
together. See Ponzo v. Pelle, 166 N.J. 481, 491-92 (2001) (ruling
that, where the plaintiff alleged "three distinct injuries from
the accident," two of which were "hotly disputed," a "single jury
interrogatory was inadequate").
Here, plaintiff principally claimed permanent injuries, but
defendant's experts hotly disputed that they were caused by the
accident. Plaintiff's expert, Dr. Lewin, opined that the disc
herniation or bulge and spondylolysis "may have been caused by the
accident." However, he conceded they may have been preexisting
conditions which were "more likely exacerbated by this type of
9 A-0530-15T1 accident than actually caused by it." On cross-examination, he
admitted the spondylolysis was a preexisting condition. Dr. Miller
denied plaintiff had a herniated disc, believed the bulge could
be caused by degeneration and was not compressing the nerves, and
asserted the spondylolysis "was a preexisting condition and not
related to the accident." Dr. Fremed opined that the herniation
or bulge was degenerative and not caused by the accident. Because
the experts presented evidence disputing the accident caused the
alleged herniation or bulge and the spondylolysis, it was improper
to grant a directed verdict on causation regarding those claimed
injuries.
In granting the directed verdict on causation on all injuries,
the trial court improperly lumped plaintiff's claimed permanent
injuries in with lesser, temporary complaints. The court
repeatedly stressed that "all three experts including both defense
experts testified that [plaintiff] sustained an injury to his
lower back, for at least 3-4 months, that was caused by the motor
vehicle collision." That was not a reason to grant a directed
verdict on the disputed causation of the more serious, permanent
injuries which were the focus of plaintiff's claims.
The experts' testimony showed some agreement that plaintiff
may have suffered some temporary injury after the accident.
Plaintiff's expert testified plaintiff "had complaints of back
10 A-0530-15T1 pain and leg pain after" the accident. Dr. Miller testified
plaintiff was "injured" and "hurt" in the accident because he
suffered "strains and sprains," namely "a cervical sprain [and] a
lumbar sprain" which soon resolved. Dr. Fremed testified plaintiff
"suffered a [soft-tissue] Lumbosacral sprain as a result of the
accident" which soon improved.
However, that testimony was based neither on the experts'
examination of plaintiff, nor on medical testing, but solely on
plaintiff's own statements. None of the experts examined defendant
until 2014, long after the 2011 accident and years after the
temporary sprains and strains allegedly resolved. Plaintiff's
expert based his comments about plaintiff's back and leg pain in
2011 on the history he took from plaintiff.6 Dr. Miller's finding
of neck and lower back sprains came after his review of defendant's
statements to him and to Dr. Goldenburg that "following the
accident he developed neck and lower back pain." Dr. Fremed
expressly based his finding of a lower back sprain on "the history
[plaintiff] gave" him. Plaintiff gave similar testimony at trial.
6 Indeed, plaintiff's expert based his opinion that the accident caused all of plaintiff's symptoms on his statements that he "didn't have complaint[s] prior to his accident" and "he began having symptomology" after the accident. Dr. Lewin admitted that his "opinion on causation, that [plaintiff] was asymptomatic for many of these conditions before the accident, is based entirely on him telling [Lewin] that he had no pain before the accident."
11 A-0530-15T1 The jury was not required to believe plaintiff's statements.
"Jurors are free to believe some, all or none of a witness'
testimony[.]" State v. Gaines, 377 N.J. Super. 612, 622 (App.
Div.), certif. denied, 185 N.J. 264 (2005); accord Model Jury
Charge (Civil) § 1.12L, "General Provisions for Standard Charge"
(1998). The jury's verdict suggested it did not credit plaintiff's
testimony about his alleged injuries.
Similarly, the jury was not required to believe expert
opinions based solely on plaintiff's statements. "'The weight to
which an expert opinion is entitled can rise no higher than the
facts and reasoning upon which that opinion is predicated.'"
Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) (citation omitted).
"'To determine the credibility, weight and probative value of an
expert's opinion, one must [be able to] question the facts and
reasoning on which it is based.'" State v. Wakefield, 190 N.J.
397, 452 (2007) (citation omitted), cert. denied, 552 U.S. 1146,
128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Thus, jurors are
instructed:
The weight of the expert's opinion depends on the facts on which the expert bases his/her opinion. You as jurors must also decide whether the facts relied upon by the expert actually exist. . . . [Y]ou are not bound by the testimony of an expert. You may give it whatever weight you deem is appropriate. You
12 A-0530-15T1 may accept or reject all or part of an expert's opinion(s).
[Model Jury Charge (Civil) § 1.13, "Expert Testimony" (1995) (footnotes omitted).]
"A jury 'need not give controlling effect to any or all of
the testimony provided by experts even in the absence of evidence
to the contrary.' 'The jury may adopt so much of it as appears
sound, reject all of it, or adopt all of it.'" Kozma v. Starbucks
Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010) (quoting
State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd,
130 N.J. 484 (1993)). "Credibility is a jury question when people
'of reason and fairness may entertain differing views as to the
truth of testimony, whether it be uncontradicted, uncontroverted
or even undisputed[.]'" Johnson, supra, 97 N.J. at 92 (citation
omitted). "[S]imply because proofs are undisputed is insufficient
in and of itself to warrant the grant of a motion for judgment
. . . in situations in which credibility is at issue, since the
fact-finder is free to reject those uncontested proofs on
credibility grounds." Alves v. Rosenberg, 400 N.J. Super. 553,
566 (App. Div. 2008) (quoting Johnson, supra, 97 N.J. at 92).7
7 A jury is not even required to accept a stipulated fact. "A stipulation of fact is nothing more than evidence that is uncontroverted. However, a jury is free to reject any evidence, including that which is uncontroverted." State v. Wesner, 372 N.J. Super. 489, 494 (App. Div. 2004), certif. denied, 183 N.J.
13 A-0530-15T1 "Ordinarily, such a motion should be denied when the case
rests upon issues of credibility." Ibid. Thus, in Alves, we held
a directed verdict for the plaintiff would have been improper
where "several of the facts upon which the expert based his
conclusion came directly from plaintiff's testimony," whose
credibility was disputed. Ibid. The "jury could question [the
expert]'s conclusions, especially when affording defendant all
reasonable inferences to which he is entitled at that stage."
Ibid.
Thus, the trial court erred in removing the issue of proximate
cause from the jury by a directed verdict. This was not one of
"the highly extraordinary case[s] in which reasonable minds could
not differ on whether that issue has been established." Fluehr
v. City of Cape May, 159 N.J. 532, 543 (1999).
III.
Despite the mistaken directed verdict on causation, the
jury's verdict was for zero damages. The trial court committed
further error in sending the jury back to redeliberate and
requiring that it award a monetary amount.
214 (2005); see also AGS Computs., Inc. v. Bear, Stearns & Co., 244 N.J. Super. 1, 5 (App. Div. 1990); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4(a) on N.J.R.E. 101(a)(4) (2016).
14 A-0530-15T1 "[I]n our constitutional system of civil justice, the jury —
not a judge — is charged with the responsibility of deciding the
merits of a civil claim and the quantum of damages to be awarded
a plaintiff." Cuevas v. Wentworth Grp., 226 N.J. 480, 499 (2016).
"A jury's verdict, including an award of damages, is cloaked with
a 'presumption of correctness.' The presumption of correctness
that attaches to a damages award is not overcome unless a defendant
can establish, 'clearly and convincingly,' that the award is 'a
miscarriage of justice.'" Id. at 501 (quoting Baxter v. Fairmont
Food Co., 74 N.J. 588, 596, 598 (1977)); see City of Long Branch
v. Jui Yung Liu, 203 N.J. 464, 492 (2010) (applying this standard
where the damages were alleged to be inadequate). "[T]he
evaluation of damages is a matter uniquely reposed in the jury's
good judgment, and to justify judicial interference, '[a] verdict
must be "wide of the mark" and pervaded by a sense of
"wrongness."'" Jastram v. Kruse, 197 N.J. 216, 229 (2008)
(citation omitted).
"A 'judge may not substitute his judgment for that of the
jury merely because he would have reached the opposite conclusion;
he is not a . . . decisive juror.'" Cuevas, supra, 226 N.J. at
501 (quoting Baxter, supra, 74 N.J. at 598). "[A]n appellate
court must pay some deference to a trial judge's 'feel of the
case,'" but "a trial judge cannot overthrow the jury's credibility
15 A-0530-15T1 determinations and findings of fact and then substitute her own."
Id. at 501-02 (citation omitted).
Rather, "court[s] must give 'due regard to the opportunity
of the jury to pass upon the credibility of the witnesses.'" Id.
at 501 (quoting He v. Miller, 207 N.J. 230, 248 (2011)). "The
jury's views of the facts and the credibility of the witnesses as
expressed in its verdict are entitled to deference from both the
trial and appellate courts." He, supra, 207 N.J. at 251-52. Here,
the trial court mistakenly did not defer to the jury's view of the
facts and its credibility determination.
The trial court expressed concern that its instructions had
confused the jury, but there was no evidence of jury confusion.
Nor were the instructions confusing. The court gave the model
civil jury instructions, including the general instructions
allowing the jury to disbelieve the witnesses' testimony, consider
the truth of the facts relied on by experts, and to reject an
expert's opinion. The court also gave the model damage
instructions, including that the amount of damages was left to the
jury's "sound discretion." E.g., Model Jury Charge (Civil) § 8.11E
"Damages-General: Disability, Impairment and Loss of the Enjoyment
16 A-0530-15T1 of Life, Pain and Suffering" (1996). Indeed, after voiding the
jury's verdict, the court repeated those damage instructions.8
The trial court based its rejection of the jury's zero-damages
verdict on its mistaken directed verdict on causation. The court
recognized the jury was not required to award damages for
plaintiff's claimed permanent injuries, namely his alleged
herniation, bulge, or spondylolysis. However, the court stated
the jury was required to award damages at least for the temporary
injuries. However, as set forth above, the jury could disbelieve
plaintiff's testimony claiming temporary injuries, plaintiff's
prior statements claiming temporary injuries, and the experts'
opinions based on plaintiff's statements.
Even though the trial court instructed the jury that causation
had been established, the jury was not required to award damages
for temporary pain, sprains, or strains. See, e.g., Kozma, supra,
412 N.J. Super. at 327. In Kozma, we upheld a jury's zero-damages
verdict even though it found negligence and causation. Id. at
325. We ruled "the jury was free to conclude either that
plaintiff's current complaints stemmed from [his prior injuries],
8 We reject plaintiff's argument that the jury's second verdict of $30,000 is indicative of the jury's confusion and belief that plaintiff should be compensated. Rather, it appears the jury ultimately rendered a $30,000 verdict to satisfy the trial court's demand and avoid further rebuke.
17 A-0530-15T1 or that the [accident] was inconsequential in affecting
plaintiff's lifestyle and quotient of pain and suffering." Ibid.
"The jury could reasonably find that the impact of the [accident]
was so insignificant that no additional injury beyond plaintiff's
preexisting condition was sustained." Id. at 327.
The jury's zero-damages verdict was reasonably based in the
evidence. There was no significant damage to the cars. Plaintiff
himself testified the jolt from the accident did not result in his
body striking any part of his vehicle. He admittedly had no
immediate pain, went home while declining assistance, and did not
seek medical attention for a week and a half.9 Other than attending
physical therapy, he lost no time from work, and sought no further
treatment for almost three years. Plaintiff did not get injections
or surgery, was still able to travel and walk to work, and was not
on any prescription medication.
As in Kozma, "the evidence was susceptible to an
interpretation that minimized the monetary equivalent of
9 In Amaru v. Stratton, 209 N.J. Super. 1 (App. Div. 1985), we sustained a zero-damages award, finding a "jury's verdict that [an] auto accident did not aggravate plaintiff's injuries had ample support in the record." Id. at 19-20. Despite the "jolt to [plaintiff's] back," "the damage sustained by plaintiff's car was minimal and the accident minor," he was able to exit the car and function, and "the allegation that his back injury was aggravated by the collision was contradicted by his decision not to consult a doctor until four or five days after the accident." Ibid.
18 A-0530-15T1 plaintiff's pain and suffering to its vanishing point." Id. at
325. "While it is true that [there was] expert testimony that
could support a jury determination that a [temporary] injury was
sustained, the jury was not required to reach that conclusion."
Ibid. (citation omitted). Thus, "the jury's damage assessment is
entitled to a presumption of correctness and should stand" because
it was not "'so disproportionate to the injury and resulting
disability shown as to shock the conscience and to convince [the
court] that to sustain the award would be manifestly unjust.'"
Id. at 325-26 (quoting Baxter, supra, 74 N.J. at 596).
Plaintiff cites Love v. National Railroad Passenger Corp.,
366 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355
(2004). There, the jury "expressly" found medical causation, "and
it determined that plaintiff was entitled to a [$65,000] damage
award for lost wages, i.e., that he had been disabled as a result
of the incident as to be unable to work, at least for a period of
time or to a limited extent," but awarded $0 for pain and
suffering. Id. at 532. However, we emphasized the plaintiff had
"a series of surgeries" culminating in the replacement of both
knees. Ibid. We found "there can be no question that plaintiff
experienced some transitory pain and suffering, at the very least,
as a consequence of each of the surgeries required," but "the jury
made no award whatsoever that would fairly compensate plaintiff
19 A-0530-15T1 for those logically inescapable periods of pain and suffering."
Ibid. We could not
countenance the patent inconsistency between the one part of the award that recognized a loss as a result of the incident and the other that rejected the idea of any damages at all, even those directly attributable to the surgeries, which were consequences, at least in part, of the incident, and were facts that could not be exaggerated.
[Id. at 534.]
Here, as in Kozma, supra, "[p]laintiff's reliance upon Love
. . . is unpersuasive." 412 N.J. Super. at 326. First, the jury
did not issue an internally-inconsistent verdict; it simply
awarded zero damages.10 Thus, there was "no jury inconsistency
whatsoever, much less one capable of engendering the necessity for
a new trial." Id. at 327. Second, plaintiff underwent no
surgeries resulting in "logically inescapable periods of pain and
suffering." Cf. Love, supra, 366 N.J. Super. at 532.
Similarly, in Chamberlain v. Sturma, 94 N.J. Super. 1 (App.
Div. 1966), aff’d o.b., 48 N.J. 556 (1967), we ruled a jury could
not "disregard the evidence showing subsequent and substantial
medical treatment for [the] cervical injury" suffered in the
10 Because the jury's verdict was not internally inconsistent, plaintiff is mistaken in relying on Mahoney v. Podolnick, 168 N.J. 202, 222-23 (2001), which permits a court to remedy an internally- inconsistent verdict by sending the jury back for further deliberations.
20 A-0530-15T1 accident, including being hospitalized for over a month. Id. at
4. Given "[t]he reality of such a condition" that required doctors
to keep Chamberlain in the hospital for over a month, we found
"the jury's determination that plaintiff was 'not entitled to
damages' was so contrary to the weight of the evidence as to be
the result of mistake, partiality, prejudice or passion." Ibid.
Here, by contrast, plaintiff was not hospitalized, and received
no medical treatment other than physical therapy based on his
subjective complaints.11
Accordingly, the trial court committed error in voiding the
jury's zero-damages verdict.
IV.
Ordinarily, when a "directed verdict was improvidently
granted, [an appellate court will] reverse and remand the matter
for a new trial." E.g., Potente v. County of Hudson, 187 N.J.
103, 106 (2006) (granting the defendant a new trial where the
trial court mistakenly granted a directed verdict on liability and
11 In Chamberlain, supra, we also "noted that defendants' only medical witness acknowledged that plaintiff sustained a back injury which was causally related to the incident." 94 N.J. Super. at 4. While that supported our determination that the jury improperly disregarded the objective evidence of Chamberlain's hospitalization, here defendant's experts based their comments about plaintiff's temporary strains and sprains solely on his subjective complaints. Thus, the evidence "was not as one-sided as" in Chamberlain. See Kozma, supra, 412 N.J. Super. at 327.
21 A-0530-15T1 the jury awarded damages to the plaintiff). Here, although the
trial court improperly granted a directed verdict on causation,
we need not grant defendant a new trial, because the jury issued
a valid verdict in defendant's favor.
Even though the jury was instructed that defendant's
negligence caused any injuries plaintiff sustained, the jury
considered the damages issue and found that defendant did not
sustain any injuries warranting compensation. Thus, ordering a
new trial on causation would be unnecessary and a burden on the
courts. See Johnson v. Salem Corp., 189 N.J. Super. 50, 54 (App.
Div. 1983), aff’d as modified, 97 N.J. 78 (1984). "We are not
blind to litigation costs, and will not order a new trial when
[reinstating the jury's verdict] might suffice." Fried v. Aftec,
Inc., 246 N.J. Super. 245, 252 n.4 (App. Div. 1991). It is
sufficient that we "remand for reinstatement of the jury verdict,"
the traditional remedy when a trial court has erroneously voided
a jury's valid verdict. E.g., Verdicchio v. Ricca, 179 N.J. 1,
33 (2004).
Reversed and remanded to reinstate the jury's zero-damages
verdict.
22 A-0530-15T1