Opinion
DOCKET NO. A-4699-13T2
02-01-2016
ATINSOLA MARTINS, Plaintiff-Appellant, and LOLA MARTINS, Plaintiff, v. MATHEW K. HEITZENRATER and MCCAULEY TRUCKING, Defendants-Respondents.
Atinsola Martins, appellant pro se. Law Offices of Viscomi & Lyons, attorneys for respondents (Mario C. Colitti, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Higbee. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0143-11. Atinsola Martins, appellant pro se. Law Offices of Viscomi & Lyons, attorneys for respondents (Mario C. Colitti, on the brief). PER CURIAM
Following a three-vehicle accident occurring on March 18, 2010, plaintiff, Atinsola Martins, filed a complaint seeking compensatory damages. After a six-day trial, the jury determined defendant Mathew K. Heitzenrater was 100 percent negligent. The jury awarded $5,000 for Martins' pain and suffering, $29,000 in lost wages, $9,400 for damage sustained to his motor vehicle, and $0 for per quod damages of his wife, the co-plaintiff.
On December 19, 2013, Martins moved for a new trial on damages, or in the alternative, an additur. On January 31, 2014, the trial judge heard oral argument and denied Martins' motion. The court also ordered Martins to provide the court his social security award letter within ten days to determine what amount of collateral benefits should be deducted from Martins' lost wages award. Because Martins failed to comply with the court's order, the judge entered a final judgment on April 25, 2014, totaling $14,400. The judge excluded the $29,000 lost wages award from the judgment without prejudice, indicating once Martins provides the court with his social security award letter, he could file a motion to amend the judgment, and at that point, the court would make a determination whether he is entitled to any of his $29,000 lost wages award. We affirm for the reasons that follow.
We ascertain the following facts from the trial record. In 2010, Martins was driving his 1999 Mercedes Benz to work, which he conceded at trial was valued at $9,400. As Martins approached a construction zone on Route 78 East, he came to a stop behind a pickup truck when he was rear-ended by a tractor trailer driven by defendant, pushing his car into the pickup truck driven by Robert Machado.
Shortly thereafter, Martins was taken via ambulance to the emergency department at University Hospital in Newark. X-rays taken at the hospital revealed no broken bones or fractures. After a few hours, Martins was given pain medication and discharged. That same day, Martins visited Dr. Scott Reisler, who previously provided treatment to Martins following a car accident on December 23, 2005. On the day of the 2010 accident, Martins complained of "right wrist sprain, cervical sprain, right knee pain, headache, multiple trauma . . . [and] right shoulder pain."
Martins filed a lawsuit in connection with the 2005 accident alleging "serious and permanent injuries to [his] neck, back . . . right knee, and right shoulder." That claim was settled.
Martins had a long medical history before the 2010 accident. As far back as 2008, there are records from another doctor suggesting that Martins had "obvious tearing of the superior and anterior labrum with signs of impingement." Prior to the 2010 accident, a Dr. Kasim performed a surgical procedure on Martin's right knee and gave him a cortisone injection into his right shoulder. Dr. Kasim also recommended physical therapy for the shoulder.
About six months after the 2010 accident Dr. King, an orthopedic surgeon, performed arthroscopic surgery on Martins' right shoulder to repair a "tear." King later performed surgery in March 2011 on Martins' wrist to repair a "tear." Martins also met with Dr. Parvez of Columbia Pain Management to receive lumbar epidural injections into his lower back on December 16, 2010 and February 3, 2011, without alleviating the condition.
Dr. Kevin Egan, a defense expert, testified at trial he reviewed x-rays and MRIs on Martins' right shoulder, right wrist, and right knee taken within a month of the 2010 accident and opined that they showed "degenerative involvement." Dr. Egan described degeneration as a "wearing out with time" that includes "bone spurs and osteophyte formation and end plate ridging, and annular bulging, facet arthropathy and . . . spinal stenosis." In fact, Dr. Egan found there was no difference in MRI findings before and after the 2010 accident and concluded the degeneration took multiple years to develop. Moreover, Dr. Egan's review of Dr. King's post-operation records indicated Martins recovered well from his surgery. Dr. Egan described that during his medical examination of Martins on November 27, 2012, Martins had "excellent mobility" in the shoulders, neck, elbows, and wrists. Dr. Egan found all the nerves of Martins' upper extremities were "intact" as well. During the examination, Martins was able to walk without any difficulty without use of his cane. In fact, his gait was "normal with reciprocal stride." Martins' lower back or lumbosacral spine had "excellent mobility" as Martins was able to arch his back and look at the ceiling, bend down laterally and touch his knee, and rotate his waist without spasm or tenderness.
Dr. Egan was qualified as an expert in the field of orthopedics and orthopedic surgery.
Dr. Egan gave his opinions within a reasonable degree of scientific certainty regarding whether Martins suffered injuries from the 2010 accident. First, he found Martins had a "temporary soft tissue injury" to his neck and lower back which "had resolved" by the time Dr. Egan examined Martins. Second, "there was no new injury to the right shoulder as a result of the motor vehicle accident." Finally, with respect to Martins' right wrist, "there is nothing in the medical documentation that says it's due to the motor vehicle accident."
Martins own testimony about his injuries included numerous statements that raised issues about his credibility for the jury to consider. When discussing his treatment after the 2010 accident on cross-examination, Martins admitted to withholding portions of his prior medical history while consulting with Dr. King. Specifically, Martins failed to inform him of a 2008 MRI on his right shoulder or his prior injuries to his neck, back, and right shoulder. In fact, Martins consulted with three other doctors - Dr. Chen, Dr. Varela, and Dr. David Idank - all of whom he admittedly failed to inform of his prior neck, back, and right shoulder injuries. Martins claimed his neck was in "excellent condition" prior to the 2010 accident, although he conceded having a "new condition" with his back in the months prior to the 2010 accident. When Martins met with Dr. Egan, he stated "the only thing that was involved [in the 2005 accident] was his right knee," which needed arthroscopy.
Martins also told Dr. Egan that he did not have headaches before the 2010 accident. After being asked during cross-examination, "[a]nd you never had any problems with headaches before the 2010 car accident," Martins responded, "No, everything okay." However, Martins would later admit to receiving a CT scan in 2006 for head trauma and headaches following the 2005 accident. He also admitted having an MRA test for headaches on July 13, 2009. The jury awarded him only $5,000 for pain and suffering.
Martins and his wife, Lola provided testimony regarding alleged economic and per quod damages in addition to describing his claimed pain and suffering. Following the 2010 accident, Martins did not work for five months. Martins was a sixty-four-year-old engineer who was earning a $90,915 salary from the New Jersey Board of Public Utilities, with a take home pay of approximately $1,005 per week. He had been married to his wife, Lola Martins, for approximately twenty years. For the first month, Martins was able to use his accrued sick leave time and was paid $1,621.65. For the remaining four months, Martins received $561 per week in "New Jersey Temporary Disability Benefits." Martins then returned to work in August 2010, but again went on disability for four months following his March 2011 wrist surgery. During that time period, Martins was receiving $559 per week in disability benefits. On July 11, 2011, Martins again returned to work and remained there until October 2012. From October 2012 to April 2013, Martins did not work and received $572 per week in disability benefits. However, Martins exhausted his available disability benefits in April 2013. For the thirty-three weeks leading up to trial, Martins did not work and did not receive disability benefits.
Martins only earned $53,450.98 in gross salary in 2010. He explained on cross-examination that he did not receive his full salary because he was not compensated by his employer for the time he was on disability. --------
Martins stated his return to work was prevented by continued pain, which was exacerbated by the "toll on [his] body" from the "gyration" and "vibration" of the train tracks during his commute. Notably, Martins admitted on cross-examination that he did not perform any manual labor at his job. Martins claimed he planned to work until he was eighty. After deducting disability payments, Martins sought $58,000 in lost wages. As stated above, the jury awarded $29,000 in lost wages.
As to the per quod claim there was testimony that (1) he could not assist Lola with domestic tasks such as vacuuming, taking out the garbage, or grocery shopping; (2) he needed the assistance of Lola to take baths; and (3) his conjugal relationship with Lola had suffered. Moreover, there was testimony that prior to the accident Martins and Lola went on vacation, attended social gatherings, and would go out to dinner, but they no longer engage in those activities. The jury awarded no per quod damages.
In addition to his challenge to the amount of the damage awards plaintiff also asserts he was entitled to a new trial because during the trial the defendant and the driver of the third vehicle in the accident testified they did not sustain injuries in the accident. There was no objection or request for a curative instruction by Martins' attorney at the time of that testimony. However, defendant was also asked whether the driver of the third vehicle sustained any injuries, and before he could answer, the question was objected to by plaintiff's counsel and the objection was sustained. No curative instruction was sought by plaintiff's counsel.
We have reviewed the issues raised on appeal in light of the record. A motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1; See also R. 4:49-1(a). We must provide "'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)). Similarly, after giving deference to the trial court's "opportunity to develop a 'feel of the case,'" a motion for an additur should not be granted unless it "clearly and convincingly appear[s] that there was a miscarriage of justice . . . ." London v. Lederle Labs., 290 N.J. Super. 318, 332 (App. Div. 1996), aff'd as modified sub. nom., Batson v. Lederle Labs., 152 N.J. 14 (1997).
Therefore, the judge's role in a motion for new trial is not to substitute his or her judgment for the jury's, "but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict . . . ." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). In making its determination, "a trial court must consider the evidence in the light most favorable to the prevailing party in the verdict." Caldwell v. Haynes, 136 N.J. 422, 432 (1994).
In this case, we agree with the trial judge that the evidence was "adequate to support the jury verdict." Anastasia, supra, 55 N.J. at 6. Martins mischaracterized his injuries to multiple doctors on multiple occasions. Martins also exaggerated the extent of his work-related responsibilities and ultimately, on cross-examination, admitted he performed no manual labor at all. Dr. Egan, an expert in orthopedic surgery, testified that Martins suffered from a pre-existing right shoulder injury that was not exacerbated by the 2010 accident, and that Martins only suffered a "temporary soft tissue injury" to his neck and lower back which "had resolved" by the time Dr. Egan examined him.
Finally, Dr. Egan concluded there is no evidence that injuries to Martins' right wrist were caused by the 2010 accident. With respect to pain and suffering, Dr. Egan determined that Martins had good mobility in his upper and lower extremities, as well as his back, and that he was able to walk without any difficulty. For these reasons, the jury could reasonably find Martins deserved the small pain and suffering damages awarded to him and that Lola Martins was not entitled to any per quod damages.
Martins also requests additur as an alternative remedy to a new trial. Such a remedy "may be employed only in cases where a new trial as to damages is proper." Tonelli v. Khanna, 238 N.J. Super. 121, 132 (App. Div.), certif. denied, 121 N.J. 657 (1990). Here, as stated above, a new trial on damages is not proper. Therefore, additur may not be employed. Ibid.
Next, we address Martins' claim that the jury delivered a quotient verdict on the wage loss claim. A quotient verdict occurs when the jurors preliminarily agree that "each will select a figure as representing his opinion of value or damage and [] the sum of said amounts divided by the number of jurors will be accepted by each as his or her verdict, and is in fact so accepted." Shankman v. State, 184 N.J. 187, 198 (2005) (quoting Marks v. State Rd. Dept., 69 So. 2d 771, 773 (Fla. 1954)). Generally, proof of such an averaging methodology alone is "insufficient to have unearthed an illegal quotient verdict." Ibid. However, the "advance agreement to be bound by the averaged amount, whatever it may be, . . . renders a 'quotient verdict' objectionable." Id. at 198. Whenever the issue of a quotient verdict arises, "the trial judge [should] specifically inquire whether there was a prior agreement." Id. at 201 (alteration in original) (quoting Cavalla v. Hughes, 235 N.J. Super. 393, 398 n.2 (App. Div. 1989)).
Under the facts in Cavalla, we stopped short of requiring the trial court to inquire into the prospect of a prior agreement, noting the party claiming the existence of a quotient verdict "failed to request any follow-up questions." Cavalla, supra, 235 N.J. Super. at 398 n.2. In Shankman, the Supreme Court similarly put the onus on the party alleging a quotient verdict to request further inquiry by the trial judge. Shankman, supra, 184 N.J. at 203.
Here, the jurors made no mention of using an averaging methodology in reaching its verdict. There is no evidence that they engaged in this type of plan. Nor did any party raise the issue of a potential quotient verdict or request further inquiry into the matter by the trial judge. Instead, Martins simply argues the jury rendered a quotient verdict because the $29,000 wage loss award was exactly one-half of his claimed wage loss. We find nothing in the record which indicates the existence of a "prior agreement" between the jurors to be bound by an averaged value of damages. Therefore, we find Martins' claim that his lost wages award was a quotient verdict to be without merit. There was substantial evidence to support a finding by the jury that not all his work-loss was necessary or causally related to the accident.
Next, we address Martins' claim, raised for the first time on appeal, that defense counsel's questioning of defendant and the third driver regarding the absence of injuries sustained by them in the accident "tainted the jury."
Here, defense counsel asked defendant and the third driver if they were individually injured as a result of the accident. Martins' attorney did not object after both witnesses responded in the negative, and he did not request a curative instruction. Moreover, although defendant was additionally asked whether the other driver sustained any injuries, plaintiff's counsel's objection was sustained before defendant could respond. Again, no curative instruction was sought by plaintiff's counsel. A failure to object to evidence at trial means our review is concerned with whether there was plain error. "Plain error is that which is 'clearly capable of producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting R. 2:10-2).
There was substantial evidence in the record supporting the verdict. This included testimony suggesting that Martins suffered from pre-existing injuries that were not exacerbated by the 2010 accident, and the extensive impeachment of Martins' credibility by defense counsel. Therefore, we do not find that the limited questioning on the lack of injuries sustained by the other drivers was clearly capable of affecting the result.
The remainder of Martins' arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We note that Martins may still provide the trial court with his social security award letter and potentially receive an amended judgment which includes any amount owed after proper offsets of his lost wages award.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION