The opinion of the court was delivered by
FUENTES, P.J.A.D.
On June 2, 2008, a car driven by Earl Smith rear-ended plaintiff
Unable to reach a resolution of his UIM claims, plaintiff filed suit against NJM. The matter was tried in the Law Division before a jury over a period of three days in January 2014. After deliberating for approximately twenty minutes, the jury returned a unanimous verdict finding plaintiff did not prove, by a preponderance of the evidence, he sustained a permanent injury that was proximately related to the June 2, 2008 accident. The trial court thereafter denied plaintiff's motion for a new trial.
Plaintiff now appeals arguing the trial judge erred in denying his motion to preclude the jury from having to find he suffered a permanent injury that is proximately related to the June 2, 2008 accident. Plaintiff claims the evidence presented at trial indisputably established this element of his cause of action as a matter of law. Alternatively, plaintiff argues the brevity of the jury's deliberations is per se indicative of bias and constitutes a clear miscarriage of justice. Finally, in the course of her opening statement to the jury, NJM's counsel referred to the tortfeasor as "defendant." Plaintiff argues the court's curative instructions to the jury in response to his counsel objection were insufficient to cure NJM's counsel's misleading characterization of the trial and constitutes reversible error.
We reject these arguments and affirm. We derive the following facts from the evidence presented at trial.
Plaintiff was forty-nine years old when the Subaru Tribeca SUV he was driving was struck from behind by a 1970 two-seater Volvo driven by Earl Smith, a retired New Brunswick firefighter. The parties were travelling westbound on Route 22 in Bridgewater Township. According to Smith, as he attempted to stop his car, he inadvertently "caught the gas
Plaintiff testified the Volvo was travelling approximately twenty miles per hour at the time it collided with his Subaru. Plaintiff also claimed he was wearing his seatbelt and had both of his hands on the steering wheel at the time of the accident. As a result of the collision, plaintiff's left elbow struck the closed driver-side car window, causing a "small abrasion" visible as a "pinkish spot." Plaintiff stepped out of his car and walked to the side of the road to speak with Smith. They each asked the other if he was "okay" and both responded they were not injured.
An officer from the Bridgewater Township Police Department responded to the scene. Plaintiff told the officer he was not injured and did not need medical attention or an ambulance. After providing the officer with his driving credentials, plaintiff returned to his car and drove away. At trial, NJM's counsel introduced into evidence two photographs depicting the damage sustained by plaintiff's Subaru Tribeca as a result of the accident.
Before addressing the injuries related to the 2008 accident, plaintiff's counsel questioned him about his medical history. Plaintiff testified he injured his left shoulder three years earlier in a 2005 car accident. His treatment included a cortisone injection, which was effective in relieving his pain. In overcoming this injury, plaintiff particularly noted his high pain threshold:
Plaintiff testified that on January 19, 1984, he "broke his neck" in a surfing accident on the island of Martinique. "I was body surfing and I caught by a wave [sic] and it slammed me head first into the ground." According to plaintiff, he was diagnosed with a "C-7" fracture, which is located in the cervical area of his spinal cord. As plaintiff explained, "[t]here was a lateral fracture that ended up one millimeter away from my spine."
In addition to these traumatic injuries, plaintiff was diagnosed with diverticulitis and colitis approximately one year before the June 2008 accident. He had abdominal surgery to address these gastrointestinal problems. However, plaintiff emphasized that none of the medical incidents he experienced before the June 2008 accident interfered with or affected his ability to perform his job as a "legal videographer."
Despite being asymptomatic immediately after the June 2, 2008 accident, plaintiff
Plaintiff saw his general practitioner, Dr. Scott Yeager, on Monday June 9, 2008, a week after the accident. According to plaintiff, his "chest was on fire and my back was on fire." He consulted an orthopedist and received treatment from a chiropractor after his consultation with Dr. Yeager. The orthopedist administered a cortisone injection in his left shoulder. He did not recall whether he also received physical therapy during this time period.
On March 2, 2009, plaintiff consulted with orthopedic surgeon Dr. Jeffrey S. Abrams, who recommended physical therapy consisting of electrical stimulation and heating pads. The therapy improved the range of motion of his left shoulder. Despite this improvement in his physical condition, he was still unable to swim. He told Dr. Abrams that "no matter how hard I tried to build my muscles again I thought my muscles would be strong enough where I could keep it in place, but it's not how it works."
Dr. Abrams ordered plaintiff to undergo a magnetic resonance imaging (MRI) test. According to Dr. Abrams, the MRI test revealed plaintiff had "damage to his rotator cuff ... not a tear." Dr. Abrams diagnosed plaintiff as suffering from "a rotator cuff tendinopathy, which means inflamed tendons." Following his standard practice, Dr. Abrams first recommended a conservative non-operative approach. In this case, he directed plaintiff receive therapy and resume exercising.
Dr. Abrams saw plaintiff again approximately six weeks later. At that time, plaintiff reported constant pain without any improvement. Under these circumstances, Dr. Abrams opted to perform a surgical procedure known as an arthroscopy. As explained by Dr. Abrams, this procedure involves drilling "a little hole in the bone;" the physician places a hollow screw into the bone, and stitches it through the screw. Once the screw is in place, the instrument is retrieved leaving the screw behind attached by the stitches. The stitches are then passed through the tissue. On June 3, 2009, Dr. Abrams performed the surgery in an outpatient surgical center, commonly referred to as "same day surgery." Dr. Abrams testified the surgery was performed as expected without complications.
Plaintiff testified he was confined to a recliner chair for nine weeks after the surgery. He also claimed the surgery did not completely restore him to his pre-accident physical condition. He still experiences pain and feels "absolutely damaged." His left hand "trembles" and he does not have the same grip strength. He feels "pain shooting down [his] arm in the weirdest ways," as if he is having a heart attack. Comparing his physical condition before and after the accident, plaintiff testified:
Finally, with respect to his job as a legal videographer, plaintiff testified on direct examination that he has been unable to resume the physical activities required to perform his job. On cross-examination, plaintiff agreed with Dr. Abrams's medical assessment that he has recovered complete range of motion on his left shoulder. Plaintiff also conceded that his shoulder is completely stable and no longer falls out. As to his ability to work, plaintiff acknowledged that in a form he completed for his chiropractor dated on July 11, 2008, he answered "yes" to the following question: "Have you been able to work since this injury?"
Plaintiff also acknowledged on cross-examination that between 2003 and the accident on June 2, 2008, he sought medical treatment for "an abnormal sensation" in his left arm. Defense counsel also presented plaintiff with documentation indicating that in the summer of 2003 he had seen his family physician "complaining of weakness in [his] upper left extremity[.]" These records also showed plaintiff consulted his primary care physician in July 2003 for "left upper extremity pain for at least a year." The 2003 report also stated plaintiff had "chronic upper back and left superior shoulder pain with abduction."
In addition to his role as plaintiff's treating physician, Dr. Abrams also testified as an expert witness in plaintiff's case in chief. The jury heard his testimony in a de bene esse videotaped deposition taken on May 21, 2013. After he described the surgery he performed on plaintiff on June 3, 2009, Dr. Abrams opined, within a reasonable degree of medical certainty, that "[t]he most symptomatic injury here was his biceps symptoms, and his biceps symptoms were a direct result of a superior labrum tear. A superior labrum tear is a traumatic event. And the traumatic event in this particular case was a result of an accident because it's a traumatic etiology."
When asked whether the surgery was successful, Dr. Abrams responded:
Plaintiff last saw Dr. Abrams for a post-surgical consultation on January 14, 2013, approximately six months before Dr. Abrams's de bene esse deposition, and one year before the start of the trial. Based on this examination, Dr. Abrams testified plaintiff "continue[d] to have some symptoms in his upper extremity." Plaintiff also complained about "pain along the shoulder blade[,] ... some pain radiating up and down his left upper extremity[, and] some weakness in his actual grip and side of the neck." Plaintiff told Dr.
With respect to whether plaintiff's injuries or symptoms were permanent, Dr. Abrams expressed the following opinion, within a reasonable degree of medical certainty:
However, Dr. Abrams also noted that plaintiff's "range of motion of his shoulder [had] improved. It [was] very close to what his range of motion would be on his other shoulder. His strength [was] better. And he did not have any crepitus or grinding or area of concern." According to Dr. Abrams,
Dr. Abrams admitted he had not reviewed certain records pertaining to plaintiff's medical history prior to arriving at his diagnosis. Specifically, Dr. Abrams was not aware that: (1) a neurologist and chiropractor had examined plaintiff in 2003; (2) plaintiff received physical therapy in 2005 at the Kessler Institute for Rehabilitation; (3) plaintiff had an MRI test on his shoulder in 2003; (4) office notes and medical records pertaining to this medical consultation were available; and (5) plaintiff underwent "EMG/NCV testing of his upper extremities in 2003." Finally, Dr. Abrams testified plaintiff did not explain the "mechanics of the injury to him." Plaintiff only told him a car rear-ended his car; he was wearing his seatbelt at the time.
NJM called orthopedic surgeon Dr. Edward M. Decter as an expert witness. He examined plaintiff on September 17, 2010, and again on September 13, 2012. Dr. Decter reviewed the reports describing plaintiff's previous injuries, as well as those relating to this accident. After examining plaintiff on September 17, 2010, Dr. Decter opined plaintiff's left shoulder was "symmetrical and equal" to his right shoulder. He found plaintiff had a normal internal and external rotation with no evidence of instability. According to Dr. Decter, the surgery was intended to address "some instability of his shoulder where the labrum was torn." Dr. Decter opined that "Dr. Abrams corrected the shoulder instability by his operation." He also found a causal relationship between the shoulder surgery and the torn labrum attributable to the June 2, 2008 accident.
Dr. Decter gave the following testimony with respect to the issue of permanency:
He also did some other things in the shoulder. He —
NJM also called Dr. Eric L. Fremed, who testified via a videotaped de bene esse deposition as an expert in neurology. Based on an examination he performed on October 14, 2012, Dr. Fremed found plaintiff's motor function and range of motion in his left shoulder to be completely normal. In fact, plaintiff had full functional use of both his arms. However, Dr. Fremed noted atrophy of plaintiff's left arm. He opined the atrophy was not related to the June 2008 accident because plaintiff had reported this same condition in 2003. Dr. Fremed opined, within a reasonable degree of medical certainty, that plaintiff had not suffered any permanent neurological injury related to the June 2, 2008 accident.
After NJM concluded its presentation, plaintiff moved to "bar the defense from raising the verbal threshold defense in their summation as well as removing it [from] the jury charge and the jury verdict questionnaire." Defense counsel objected, arguing the evidence presented to the jury clearly established a disputed issue of fact as to the permanency of plaintiff's injuries as defined in N.J.S.A. 39:6A-8(a). The trial judge agreed with defense counsel's argument and denied plaintiff's motion.
Against this record, plaintiff now argues the trial court erred in denying his motion to preclude the jury from deciding whether plaintiff proved, by a preponderance of the evidence, that he sustained a permanent injury proximately related to the June 2, 2008 accident. Stated differently, relying on the Supreme Court's holding in Gilhooley v. County of Union, 164 N.J. 533, 753 A.2d 1137 (2000), plaintiff argues the orthopedic hardware implanted by Dr. Abrams to surgically repair the injury to his left shoulder constituted sufficient evidence to satisfy, as a matter of law, the "permanent injury" threshold under N.J.S.A. 39:6A-8(a).
In response, NJM argues the evidence presented to the jury was not so one-sided that it precluded a reasonable juror from finding the injuries plaintiff sustained, proximately related to the June 2008 accident, have sufficiently healed to enable him to regain his normal function. NJM also notes that plaintiff's own testimony conflicted at times, creating a clear issue of credibility for the jury. Finally, NJM emphasizes that plaintiff's reliance on Gilhooley is misplaced because the Court in that case addressed the plaintiff's injury in the context of the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 59:12-3, not AICRA.
The record here is replete with evidence from which a rational jury could find plaintiff did not present sufficient evidence to satisfy his statutory burden. Under N.J.S.A. 39:6A-8(a), "[a]n 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."
In reviewing a trial court's decision on a motion for a directed verdict, this court "appl[ies] the same standard that governs the trial courts." Frugis v. Bracigliano, 177 N.J. 250, 269, 827 A.2d 1040 (2003). The standard for a motion made pursuant to Rule 4:40-1 is akin to the standard applicable to a motion for summary judgment under Rule 4:46-2(c). We must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995)).
Indeed, "[a] motion for a directed verdict, made pursuant to [Rule] 4:40-1... `shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in [the non-movant]'s favor.'" Edwards v. Walsh, 397 N.J.Super. 567, 571, 938 A.2d 934 (App. Div.2007) (quoting R. 4:37-2(b)). Otherwise, where "the evidence and uncontradicted testimony is `so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury.'" Frugis, supra, 177 N.J. at 270, 827 A.2d 1040 (quoting Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494, 126 A.2d 323 (1956)).
Here, the trial judge made the following findings in support of his decision to deny plaintiff's motion:
In cases where the question of permanency under N.J.S.A. 39:6A-8(a) is hotly contested, such as it was in this case, the jury, acting within its fact-finding role, must determine whether plaintiff has satisfied his statutory burden by a preponderance of the evidence. Ames v. Gopal, 404 N.J.Super. 82, 85-86, 960 A.2d 765 (App. Div.2008), certif. denied, 198 N.J. 316, 966 A.2d 1080 (2009). Here, the trial judge's analysis and ultimate conclusion is amply supported by the evidence presented at trial and properly applied the statutory standard established by the Legislature in AICRA.
Plaintiff next argues the fact it took the jury approximately twenty minutes to reach a unanimous verdict finding plaintiff did not prove, by a preponderance of the evidence, he sustained a permanent injury that is proximately related to the June 2, 2008 accident constitutes a per se miscarriage of justice. Plaintiff's appellate brief devotes a total of two and one half pages to this argument. A half of one page contains a verbatim recitation of the Model Civil Jury Charge, through which a trial judge admonishes jurors to decide the case impartially and not permit "sympathy, passion, bias, or prejudice," to influence their decision. Model Jury Charge (Civil), 1.12P, "No Prejudice, Passion, Bias or Sympathy" (2007). Plaintiff does not cite any legal authority to support the extraordinary relief he seeks from this court. Plaintiff merely equates the brevity of the deliberations with a miscarriage of justice. Under these circumstances, plaintiff's argument lacks sufficient merit to warrant any further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Finally, plaintiff argues the trial judge committed reversible error when he failed to give a proper curative instruction to the jury in response to a remark made by defense counsel in the course of her opening statement to the jury. Plaintiff's counsel devoted a total of one and a quarter pages in his appellate brief to this argument. Here again, plaintiff's counsel did not cite any legal authority in support of his client's legal position on appeal. Although this argument is completely devoid of merit, we will nevertheless address it in some detail because it is predicated on an alleged misstatement of law or fact by defense counsel, compounded by an alleged erroneous or inadequate response by the trial judge.
When defense counsel addressed the jury for the first time in her opening statement, she introduced herself as follows:
At the conclusion of defense counsel's opening statement, plaintiff's counsel requested to be heard outside the presence of the jury. At this N.J.R.E. 104 hearing, plaintiff's counsel argued that since this suit was an UIM claim against NJM, it was improper and misleading for defense counsel to refer to the tortfeasor as "defendant."
The trial judge denied plaintiff's application and instead instructed the jury as follows:
Plaintiff argues the judge's rejection of his trial counsel's proposed curative instruction constituted reversible error. Specifically, plaintiff's appellate counsel states in the brief before us: "When one combines this element of the trial with the fact that the jury rendered a no cause verdict on the threshold in only twenty-one minutes, one must seriously question the validity of the jury's verdict." Here again plaintiff's appellate counsel did not cite any legal authority to support this position.
Had plaintiff's appellate counsel taken the time and effort to conduct even a modicum of research of this legal issue, he would have discovered our Supreme Court addressed this precise contentious question in Bardis v. First Trenton Ins. Co., 199 N.J. 265, 971 A.2d 1062 (2009), an opinion released by the Court five years before the start of this trial. As framed by Justice Hoens on behalf of a majority of the Court in Bardis, "[W]e are called upon to answer ... whether, in a jury trial arising out of Underinsured Motorist (UIM) coverage, the insurer should be identified as the defendant."
We acknowledge that reasonable minds can differ on this question. Indeed, in Bardis, Justice Albin wrote a passionate and compelling concurrence expressing his belief
We cannot, in good conscience, conclude this opinion without finding that the brief submitted by plaintiff's counsel in this appeal warrants the imposition of monetary sanctions pursuant to Rule 2:9-9. Because we are keenly aware of the extraordinary nature of this action, we want to clearly explain the reasons underpinning our decision. Our reproach is not based on counsel's failure to adhere to the format requirements delineated in Rule 2:6-2. Plaintiff's appellate brief was neatly printed and the point headings clearly identified the legal issues raised therein. Furthermore, although we have rejected plaintiff's arguments, we do not claim plaintiff's counsel raised frivolous arguments, completely lacking any reasonable basis in law or equity.
The attorney's failings here are not based on the type of conduct proscribed pursuant to Rule 1:4-8(a) and N.J.S.A. 2A:15-59.1 as "frivolous litigation." As our colleague Judge Lyons made clear in Alpert, Goldberg, Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J.Super. 510, 545, 983 A.2d 604 (App.Div.2009), certif. denied, 203 N.J. 93, 999 A.2d 462 (2010), while "Rule 1:4-8 has a punitive purpose in seeking to deter frivolous litigation, it also seeks to compensate a party that has been victimized by another party bringing frivolous litigation." (Citing Deutch & Shur, P.C. v. Roth, 284 N.J.Super. 133, 141, 663 A.2d 1373 (Law Div.1995)). By contrast, a sanction imposed under Rule 2:9-9 is intended to deter the improper prosecution or defense of an appeal and prevent the misuse of judicial resources that result from such derelictions. In re Tenure Hearing of Cowan, 224 N.J.Super. 737, 752-53, 541 A.2d 298 (App.Div.1988), Judge Brody explained how an attorney's failure to adhere to Rule 2:6-2(a)(4) (which requires an appellant's brief to include "[a] concise statement of the facts material to the issues on appeal supported by references to the appendix and transcript") profoundly undermined the court's ability to comprehend the material facts in the case.
Here, the brief submitted by plaintiff's counsel must be censured and sanctioned because it displayed an utter indifference to the standards of professional competence a tribunal is entitled to expect from an attorney admitted to practice law in this State. Even a cursory review of
The first argument in plaintiff's appellate brief states the trial court erred in denying plaintiff's motion to preclude the jury from considering the question of permanency. We have stated the reasons for rejecting this argument in Part II of this opinion. However, it bears repeating that plaintiff's brief cited only Gilhooley v. County of Union, supra, as support for this argument. The brief did not discuss or even identify the relevant standard we must apply in reviewing the trial judge's decision, nor did it include an analysis of how the Court's reasoning in Gilhooley applied to the facts of this case, or to the verbal threshold requirements in AICRA.
Plaintiff's second argument sought to overturn the jury's verdict. Counsel again failed to cite any legal authority in support of this argument; he did not articulate the relevant standard of review, or identify the specific incidents of impropriety that irreparably tainted the jury's verdict. The only legal reference included as support for vacating the jury's verdict consisted of a verbatim recitation of the standard model jury charge the trial judge gave the jury describing its obligation to decide the case without bias or prejudice.
Plaintiff's third and final argument point sought the reversal of the jury verdict based on defense counsel's alleged misrepresentation in her opening statement before the jury. As part of this argument, plaintiff's counsel also questioned the efficacy of the trial judge's response to the alleged misstatement by defense counsel. Plaintiff's counsel did not cite any legal authority to support this argument. Counsel's unsupported assertions covered a total of one and one quarter pages.
Thirty-nine years ago, this court repudiated the same type of shoddy, unprofessional submission, and in the process endorsed the following standards of professionalism that must be followed in the presentation of legal analysis in appellate briefs:
We now reaffirm our commitment to the enforcement of the professional standards our colleagues expressed in Hild. Lawyers who take on the responsibility to represent clients before this court are expected to: (1) familiarize themselves with the record developed in the forum of origin; (2) research and analyze the competent
As appellate judges, we review hundreds of briefs every year.
Plaintiff's appellate counsel failed to conduct even a modicum of legal research or attempt to present any reasonably competent analysis of the law as it related to the facts of this case. By submitting a shoddy, professionally unacceptable brief, plaintiff's appellate counsel displayed a disrespect for the work of this court and for the legal profession itself. The indifference to the fundamental tenets of the legal profession displayed here by plaintiff's appellate counsel warrants the imposition of a monetary sanction under Rule 2:9-9.
Rule 2:9-9 authorizes this court to impose sanctions against an attorney who fails "properly to prosecute or defend an appeal." These sanctions may include, but are not limited to, dismissal of the appeal, "imposition of costs or attorney's fees[,] or such other penalty as may be assessed personally against the attorney." In this respect, our Supreme Court has admonished that "if it is at all possible, the litigant should not be burdened with his attorney's derelictions." Paxton v. Misiuk, 34 N.J. 453, 458, 170 A.2d 16 (1961).
Plaintiff's appellate counsel is ordered to issue a check from the firm's business account payable to the Treasurer of the State of New Jersey in the sum of $200. The check shall be remitted to the Clerk of the Superior Court, Appellate Division within ten calendar days of the release of this opinion.
Affirmed.
GILSON, J.S.C. (temporarily assigned) concurring.
I concur in the well-reasoned opinion of the court, except for section III. I agree with my colleagues in encouraging professional standards of advocacy. Attorneys should strive to make reasoned arguments based on the facts and law and should candidly cite supporting or opposing precedent. I write separately because I believe a monetary sanction is not warranted here. Admittedly, plaintiffs' appellate counsel could have done more, but I do not find their brief so lacking in thought and preparation as to manifest a disrespect to professional standards. I take this position because I believe that sanctions should be reserved for appropriate limited situations. In my opinion, this is not such a situation.
