GARY S. GEORGE VS. LIBERTY INSURANCE CORPORATION (L-7152-13, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-2123-15T1
GARY S. GEORGE,
Plaintiff-Appellant,
v.
LIBERTY INSURANCE
CORPORATION,
Defendant-Respondent.
____________________________
Argued September 20, 2017 - Decided January 17, 2019
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-7152-13.
Mario Apuzzo argued the cause for appellant.
Sarabraj S. Thapar argued the cause for respondent
(Law Offices of Viscomi & Lyons, attorneys; Patricia
R. Lyons, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
Plaintiff Gary S. George was involved in an automobile accident with an
underinsured motorist in which he injured his shoulder, knees, and hands. After
settling with the tortfeasor, plaintiff filed an underinsured motorist (UIM) action
against his automobile insurance carrier, defendant Liberty Insurance
Corporation. The parties in this UIM action stipulated that the tortfeasor was
100% liable. The question of damages was presented to a civil jury. Plaintiff’s
auto policy contained a "limitation on lawsuit" option, commonly referred to as
the verbal threshold. This required plaintiff to prove he sustained a "permanent
injury," as defined in N.J.S.A. 39:6A-8(a), which was proximately caused by
this accident. After a three-day trial, the jury unanimously found plaintiff did
not suffer a permanent injury proximately related to the accident and returned a
no cause verdict in favor of defendant.
Plaintiff filed a motion for a new trial pursuant to Rule 4:49-1, arguing
the verdict was against the weight of the evidence because defendant's expert
conceded plaintiff suffered a permanent injury proximately caused by this auto
accident. The trial judge denied plaintiff’s motion and expressly found
defendant’s expert witness did not concede this material issue. The trial judge
also denied plaintiff's motion for reconsideration pursuant to Rule 4:49-2. In
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this appeal, plaintiff argues the trial judge erred in denying his motion for a new
trial. We disagree and affirm.
I
The automobile accident occurred at approximately 6:45 a.m. on February
1, 2008. At the time, plaintiff was fifty-three years old and worked as a self-
employed barber. The trial began on September 21, 2015. When the trial judge
asked counsel: "What took so long?" Defense counsel responded: "Well, it's a
UIM matter so there's a six-year statute [of limitations]."
Plaintiff was the only witness who testified live before the jury. The two
medical witnesses called by the parties testified via de bene esse depositions.
See R. 4:14-9. Plaintiff testified that while on route to his barbershop, the
tortfeasor "made an abrupt left turn into [his] path. . . [.]" Although he forcefully
applied his brake, the two vehicles collided. Plaintiff testified that he was able
to unbuckle his seatbelt, step out of his car, and sit on "the grass divider." The
only injury he noticed immediately after the accident was that his knees were
"bleeding" from hitting the dashboard of his car.
At about 8:30 a.m. that same day, plaintiff drove to St. Peters Hospital
complaining of pain in his upper neck, shoulders, knees, lower back, and slight
irritation in his hip. The medical staff who examined him also took x-rays of
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his body. Plaintiff testified he was given a "band-aid and an ice pack" for his
knee, and a prescription for an anti-inflammatory medication. He testified this
treatment "was very helpful" and relieved "a lot of the pain." Plaintiff also
testified that he was still in pain after he was released from the hospital.
On February 20, 2008 plaintiff consulted Dr. Timothy M. Hosea, an
orthopedic surgeon with a specialty in sports medicine. Plaintiff complained to
Dr. Hosea of pain in his ankles, knees, shoulders, left hand, elbow, and entire
back. According to Dr. Hosea, plaintiff complained of "abrasions of his left
hand and a contusion on his left elbow." Dr. Hosea also noted plaintiff had
"superficial abrasions" on the right knee. This was the same knee plaintiff
claimed he hit against the dashboard of the car twenty days earlier. Dr. Hosea
also found that plaintiff's left hand and elbow retained their "full range of motion
without any problems," his left knee was "ligamentously stable meaning . . . no
ligamentous injury," and his knees showed no sign of nerve damage.
When asked if he reached a diagnosis, Dr. Hosea stated:
He had a right medial meniscus tear in addition to the
right patellofemoral chondromalacia and a contusion.
He had a contusion on his right shoulder with what we
call mal impingement syndrome or also known as site
rotator cuff tendonitis and he had a contusion of his left
hand.
Q. Okay. Did you prescribe a treatment plan for him?
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A. We gave him a prescription for Naprosyn. We
recommended he obtain an MRI [magnetic resonance
imaging study] of his right knee to rule out possible
meniscus tear and I . . . sen[t] him for physical therapy.
Q. Okay. Do you have a prognosis at this point?
A. Well, we were just initiating treatment and I was
hoping he would do fine.
Dr. Hosea was deposed on May 28, 2015.
Plaintiff testified he had a total of six MRI studies of his knees and
shoulders during the time he was treated by Dr. Hosea. Ironically, Dr. Hosea
testified that he did not rely on the MRI studies to support his findings and
diagnosis that plaintiff suffered from a degeneration of his knees.
Q. You did not review any MRIs or any x-rays of Mr.
George's knees prior to this accident that indicated
there were any, but you don’t know what the condition
--
A. Correct.
Q. - - of his knees were - -
A. Correct
Q. - - prior to this accident?
A. You're right.
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Q. And basically your diagnosis is . . . based partly on
Mr. George's testimony that he was involved in a motor
vehicle accident?
A. Correct.
Dr. Hosea repeatedly ordered physical therapy as a mode of treatment for
plaintiff's shoulder pain. Plaintiff admitted, however, that he waited more than
four years before beginning therapy "[b]ecause of work and I was hoping that
the pain would go away." He began physical therapy in May 2012, attended
seventeen sessions, and stopped going in August 2014 because he believed the
therapy did not help.
Dr. Hosea did not order an MRI of plaintiff's shoulder until four and one-
half years after the accident occurred. Ultimately Dr. Hosea concluded: (1)
"[t]he MRI of 2012 revealed degenerative changes of the patella and the femoral
trochlea[,] [i.e, the knee,] . . . directly related to the motor vehicle accident[;]"
and (2) "[w]ith respect to his chronic impingement syndrome [in his shoulder,]
within a reasonable degree of medical certainty[,] the accident [exacerbated] his
problems with performing his activities as a barber[.]" Dr. Hosea also opined
that plaintiff's occupation as a barber may have contributed to his problems with
his rotator cuff.
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On July 10, 2014, Dr. Richard A. Rosa, a board certified orthopedic
surgeon and medical director at St. Barnabas Medical Center, examined plaintiff
on behalf of defendant. His testimony was also presented to the jury via de bene
esse deposition. Dr. Rosa reviewed plaintiff's MRI studies, physical therapy
reports, and Dr. Hosea's case notes as plaintiff's treating physician. Dr. Rosa
testified plaintiff complained of pain and weakness in his right shoulder, which
"was localized laterally, which is the outer aspect of the shoulder[.]" According
to Dr. Rosa, on a scale measuring the severity of pain from one to ten, plaintiff
reported his pain severity level on an average day was seven. Plaintiff
complained that his right knee had "some clicking" and rated the severity of his
pain level as fluctuating between five and six. His left knee only had mild pain.
Dr. Rosa testified plaintiff did not report experiencing any pain when he tested
his knees to determine his range of motion. Although his right knee was more
tender than the left knee, Dr. Rosa opined plaintiff's knees were "stable".
Based on his review of plaintiff's medical record as supplemented by his
own medical evaluation, Dr. Rosa opined that "the strains on [plaintiff's] right
knee contusion . . . were causally related to the accident." However, "[t]he
arthritis was not related to the accident." Dr. Rosa characterized the arthritis as
an "age appropriate . . . permanent condition," unrelated to the car accident. The
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contusion or bruises were related to the accident. As in most cases, Dr. Rosa
opined these bruises would heal by themselves over time. Dr. Rosa also found
plaintiff had "tearing and fibrillation of . . . a piece of cartilage in the knee . . .
consistent with degenerative meniscal disease[.]"
According to Dr. Rosa, the examination of plaintiff's right shoulder was
"unremarkable." He did not detect any signs of "heat, [or] redness, swelling, no
deformity, no obvious atrophy compared to the opposite side." Dr. Rosa
testified plaintiff only exhibited a "mild degree of tenderness in . . . front of the
shoulder and . . . the upper lateral aspect of the shoulder." He retained "full
range of motion in all plains with discomfort at the extremes[.]" Plaintiff
suffered from "subacromial impingement of the . . . rotator cuff area[,]" which
is consistent with inflammation arising out of "chronic wearing of that
tendon[.]"
Dr. Rosa concluded the reported tear "most likely represented an
aggravation of the pre-existing . . . but previously a[s]ymptomatic condition[,]
meaning that . . . the [SLAP] tear that we saw on the MRI . . . was a result of the
accident[.]" He also determined the tear was a "permanent condition." Although
a cursory review of Dr. Rosa's testimony appears to support plaintiff's claim of
a permanent injury, Dr. Rosa clarified that: "the initial condition was not
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causally related to this accident" because a single incident usually does not cause
the "grade three" tear that plaintiff possesses. Dr. Rosa opined the SLAP tear,
which is a permanent condition, existed for six years before the accident and
became symptomatic after the accident.
The three-day trial ended when the jury returned its verdict in favor of
defendant. The verdict sheet reflected that all six jurors checked the box marked
"No" in response to the following question: "Do you find that Plaintiff, Gary S.
George, has proven by a preponderance of the objective credible medical
evidence that he sustained a permanent injury as a proximate result of the
accident on February 1, 2008?"
II
Plaintiff moved for a new trial under Rule 4:49-1. The motion was heard
and decided by a different judge because the trial judge had retired by the time
the attorneys appeared for oral argument. Plaintiff argued the jury's verdict was
against the weight of the evidence because all of the evidence produced at trial,
including Dr. Rosa's testimony, established plaintiff sustained a permanent
injury to his shoulder and both knees as a proximate cause of the accident.
Plaintiff thus claimed he was entitled to a judicial finding of permanency, within
the meaning of N.J.S.A. 39:6A-8(a), as a matter of law. Defendant argued that
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Dr. Rosa made clear that plaintiff's injury originated six years before the
accident. The jury correctly found that any physical injuries plaintiff sustained
in the accident were insufficient to satisfy the permanency requirements under
N.J.S.A. 39:6A-8(a).
The judge assigned to decide this matter provided the following
explanation in support of his decision to deny plaintiff's motion for a new trial:
I have the doctor's . . . de bene esse deposition. I've
seen it, frankly. . . . [H]is opinion is that the shoulder
[injury] was not permanent. The function of the
shoulder was not permanently impaired by this motor
vehicle accident and that the supposedly permanent tear
of the shoulder would not have been caused by any
accident. It was degenerative, arthritic . . . and he also
said that the shoulder is fine.
So . . . I don't see any basis. This is the jury's
determination. They heard the doctor's testimony. The
doctor did give his opinion . . . [with a] reasonable
degree of medical certainty or probability that this is
not a permanent injury and even if . . . you have a
shoulder that's injured and the accident causes some
aggravation, this aggravation is not permanent[.] . . .
[T]herefore I don't find that there is any basis for
overturning the jury's verdict.
I find it was sound. It was supported by the evidence
and by the testimony of the doctor. The motion is
denied.
[(Emphasis added).]
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The judge also denied plaintiff's motion for reconsideration filed pursuant
to Rule 4:49-2. He found that Dr. Rosa explained that plaintiff's injuries were
"degenerative" and not related to the accident. The judge found that Dr. Rosa
testified that plaintiff's shoulder injury "didn't in any way limit the functioning
of the . . . right shoulder [.]" Dr. Rosa particularly noted plaintiff failed to follow
his own physician's treatment recommendations and waited over four years
before beginning physical therapy. All of these accident-unrelated events
contributed to plaintiff's present physical condition. The judge held that "there
was substantial evidence, factual findings by the expert on which a jury could
clearly . . . find that . . . there was no causation[.]"
Rule 4:49-1(a) provides:
A new trial may be granted to all or any of the parties
and as to all or part of the issues on motion made to the
trial judge. On a motion for a new trial in an action tried
without a jury, the trial judge may open the judgment if
one has been entered, take additional testimony, amend
findings of fact and conclusions of law or make new
findings and conclusions, and direct the entry of a new
judgment. The trial judge shall grant the motion if,
having given due regard to the opportunity of the jury
to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage
of justice under the law.
[(Emphasis added).]
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We have reviewed the standard codified in Rule 4:49-1 and held that
"[t]he standard for appellate review of a trial court's decision on a motion for a
new trial is substantially the same as that controlling the trial court except that
due deference should be made to its 'feel of the case,' including credibility." 1
Doe v. Arts, 360 N.J. Super. 492, 502 (App. Div. 2003) (quoting Feldman v.
Lederle Laboratories, 97 N.J. 429, 463 (1984)). Thus, "[a] jury verdict, from
the weight of the evidence standpoint, is impregnable unless so distorted and
wrong, in the objective and articulated view of a judge, as to manifest with
utmost certainty a plain miscarriage of justice." Doe, 360 N.J. Super. at 503(quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)).
"A jury's verdict . . . is cloaked with a 'presumption of correctness.'"
Cuevas v. Wentworth Group, 226 N.J. 480, 501 (2016) (quoting Baxter v.
Fairmont Food Co., 74 N.J. 588, 598 (1977)). A party seeking to overturn the
jury's verdict must present clear and convincing evidence establishing that the
verdict was a miscarriage of justice. Ibid. Most importantly, neither this court
nor the trial court is at liberty to substitute its judgment for that of the jury
1
Although the judge who decided plaintiff's motion did not preside over the
trial, we review his factual findings with the same level of deference. As a
unanimous Supreme Court recently reaffirmed: "Our system of justice assigns
to the trial court the role of factfinder in matters not relegated to the jury . . . .
By contrast, the task of appellate courts generally is limited to reviewing issues
of law." State v. S.S., 229 N.J. 360, 380 (2017).
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because the court would have reached the opposite conclusion. Baxter, 74 N.J.
at 598. A judge "is not a . . . decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6
(1969).
Here, the jury was charged with reviewing the evidence presented by the
parties and determining whether plaintiff:
sustained a bodily injury which results in death;
dismemberment; significant disfigurement or
significant scarring; displaced fractures; loss of a fetus;
or a permanent injury within a reasonable degree of
medical probability, other than scarring or
disfigurement. An injury shall be considered permanent
when the body part or organ, or both, has not healed to
function normally and will not heal to function
normally with further medical treatment.
[N.J.S.A. 39:6A-8(a) (emphasis added).]
We do not disturb a trial court's decision unless there has been a clear
abuse of discretion. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super.
455, 462 (App. Div. 2002). A trial court abuses its discretion when: "[(1)] the
[c]ourt has expressed its decision based upon a palpably incorrect or irrational
basis, or [(2)] it is obvious that the [c]ourt either did not consider, or failed to
appreciate the significance of probative, competent evidence.'" Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 383 (App. Div.
2015). Here, the motion judge correctly found that Dr. Rosa's testimony
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supports the jury's verdict. Plaintiff's injuries proximately related to this
accident were not permanent within the meaning of N.J.S.A. 39:6A-8(a).
Plaintiff's claims of permanent injuries related to this accident were based
only on subjective complaints that were not verifiable by objective medical
evidence. The jury was authorized to reject plaintiff's testimony as not credible.
We thus discern no legal basis to disturb the motion judge's decision.
Affirmed.
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