BRUCE STEVENS VS. MARY K. GONZALEZ (L-649-13, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1540-15T1

BRUCE STEVENS,

Plaintiff-Appellant,

v.

MARY K. GONZALEZ AND ADRIAN
K. GONZALEZ,

Defendants-Respondents.

_____________________________________

Argued January 19, 2017 – Decided June 13, 2017

Before Judges Fuentes, Simonelli and Gooden
Brown.

On appeal from the Superior Court of New
Jersey, Law Division, Sussex County, Docket
No. L-649-13.

Richard A. Grodeck argued the cause for
appellant (Piro, Zinna, Cifelli, Paris &
Genitempo, LLC, attorneys; Mr. Grodeck, on the
briefs).

Raymond Kramkowski argued the cause for
respondents (Law Office of Viscomi & Lyons,
attorneys; Christopher S. Byrnes, on the
brief).

PER CURIAM
 In this automobile negligence action, plaintiff Bruce Stevens

appeals from a November 10, 2015 order1 of the trial court denying

his motion for a new trial following a jury verdict award of

limited damages. Following a three-day trial, the jury found that

plaintiff sustained non-permanent injuries resulting from a motor

vehicle accident. As such, the jury awarded plaintiff $4125 in

lost wages. Plaintiff argues that the limited jury award was a

direct result of an erroneous and misleading jury instruction by

the court, causing sufficient confusion in the minds of the jurors

to justify a new trial. We disagree, and for the reasons that

follow, affirm.

I.

We begin by noting that plaintiff's claims were subject to

the verbal threshold of the Automobile Insurance Cost Reduction

Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. In the circumstances of

this case, the "limitation on lawsuit option," N.J.S.A. 39:6A-

8(a), required that plaintiff prove a permanent injury caused by

the motor vehicle accident in order to recover non-economic

personal injury damages such as emotional, mental and physical

pain and suffering. Davidson v. Slater, 189 N.J. 166, 174 (2007).

1
Although the order was signed on November 5, 2015, it was filed
on November 10, 2015.

2 A-1540-15T1
 Plaintiff's personal injury action arose on December 15,

2012, when defendant Mary Gonzalez struck plaintiff's vehicle

"head on," at the intersection of Route 517 and Grist Mill Lane2

in Andover Township. Plaintiff refused medical care at the scene,

citing his only injuries at the time as pain in his "left wrist"

and "left foot primarily." However, when the pain "increased

throughout the night[,]" plaintiff went to Hackettstown Regional

Medical Center the following morning and reported having "pain

throughout [his] upper body" and "shoulders[.]" At the hospital,

plaintiff was diagnosed with sprains to his left wrist and left

foot as well as a fractured sternum.

A few days later, plaintiff saw an orthopedic surgeon who

confirmed the hospital's diagnosis of a fractured sternum.

Although the sprains and fractured sternum healed completely after

approximately eight to nine weeks, plaintiff continued to feel

pain. In January 2013, plaintiff began seeing Dr. Michael Gutkin,

a physiatrist, who has been his treating physician since the

accident. On December 2, 2013, plaintiff filed a personal injury

lawsuit and requested a jury trial, alleging he sustained permanent

2
Although the street was referred to as Route 613 by other
witnesses, Route 517 and Route 613 are the same street.

3 A-1540-15T1
injuries as a result of the accident caused by defendant's

negligent operation of her vehicle.3

Plaintiff presented his case at a trial conducted on September

16, 17, and 21, 2015, during which the State trooper who responded

to the accident scene testified that defendant admitted to him "it

[was her] fault, [she] just didn’t see [plaintiff] coming." At

the close of defendant's case, on plaintiff's motion, the court

granted a directed verdict on liability, finding that defendant's

negligence caused the accident and that defendant was 100% at

fault. R. 4:40-1. As a result, the court determined that the

case would proceed on the issue of damages only. The jury was

tasked with deciding whether plaintiff sustained permanent injury

resulting from the accident, and if so, determining the amount of

money damages plaintiff was entitled to recover.

Plaintiff testified that he suffers from constant pain on a

daily basis in his neck, shoulders, "arms and into [his] hands"

that worsens over time. According to plaintiff, he experiences

"severe headaches" and numbness in his "arms" and "hands" after

about twenty to forty-five minutes of use. He explained that the

pain in his hands and arms affects his ability to engage in

activities he once enjoyed, including playing with his grandson

3
In his complaint, plaintiff did not allege any preexisting
condition or other disability that was aggravated by the accident.

4 A-1540-15T1
and traveling. Plaintiff also testified that, since the accident,

he has not returned to work as an excavator due to his pain and

because he is not permitted to operate machinery while on narcotic

medication. Plaintiff reported a net income of $9000 in 2012,

which was the last year he worked.

Plaintiff acknowledged having multiple surgeries in the past,

including spinal surgery in 1977 and two prior shoulder surgeries

in 2009 and 2010. In addition, in 2011, to address pain in his

neck, plaintiff had a " radiofrequency ablation" which alleviated

all of his neck pain and allowed him to resume working. According

to plaintiff, after the ablation treatment in 2011, he had no neck

pain until the accident.

In addition to testifying, plaintiff presented the testimony

of Dr. Gutkin, a qualified expert in physical medicine and

rehabilitation, to prove his damages. Dr. Gutkin testified that

plaintiff sustained a "sternal fracture, pinched nerve of sorts

due to unknown etiology, but . . . probably a disk bulge or

herniation" due to the accident. According to Dr. Gutkin,

plaintiff's post-accident MRI revealed "multiple bulges, most

significant being . . . C-2, C-3, C-4, C-5, C-6, [and] C-7," and

plaintiff's EMG confirmed "pinched nerves in the neck, both

sides[.]" Dr. Gutkin acknowledged that plaintiff had "preexisting

pain in the neck from the joints[,]" which had responded to

5 A-1540-15T1
treatment in the past. Comparing plaintiff's pre-accident MRI to

his post-accident MRI, Dr. Gutkin testified "there is definite

worsening of the film in the 2011 pre accident to the 2013 film[.]"

Dr. Gutkin concluded that "back in 2011 he didn’t have a pinched

nerve and the joints . . . were a factor back in 2011, but were

not bothering him up until the accident."

Dr. Gutkin treated plaintiff's injuries through several

mediums, including physical therapy, chiropractic care, cervical

epidural shots, facet block injections, and radiofrequency

ablation; none of which provided permanent relief. To manage his

pain, Dr. Gutkin prescribed plaintiff "anti-inflammatories[,]"

"painkillers[,]" "muscle relaxers[,]" "steroids[,]" and sleep

aids. Dr. Gutkin testified "with the severe force that he had on

the sternum, I think that the force on the joints probably created

some cartilage damage in the joints that is not responding to our

treatments." Dr. Gutkin diagnosed plaintiff with "cervical

radiculopathy which is the pinched nerve probably coming from the

disk itself." Dr. Gutkin concluded that in his "medical

opinion[,]" plaintiff suffers from "facet injury and cartilage

damage" which are "100 percent permanent" because "cartilage

doesn’t regenerate." According to Dr. Gutkin, at present,

"[plaintiff] does not have full range of motion in his neck[,]"

and plaintiff's cervical spine will never function normally again.

6 A-1540-15T1
 In opposition, the defense medical expert, Dr. Edward Decter,

an orthopedic surgeon, conducted an independent evaluation of

plaintiff for trial.4 Although Dr. Decter agreed with Dr. Gutkin

that plaintiff had a preexisting condition with his cervical spine,

his examination revealed that plaintiff did not have "any medical

or neurogenic abnormalities." After administering several tests

during his examination of plaintiff, including range of motion and

reflex tests, Dr. Decter concluded that the results were normal

and plaintiff displayed "no neurological deficits."

Dr. Decter reviewed plaintiff's medical records from the

hospital visit following the accident to plaintiff's first visit

to the orthopedic surgeon and found no indication of plaintiff

complaining of neck pain from the accident. According to Dr.

Decter, "if there was acute bulging disk that occurred as a result

of this accident . . . that pain would have been described to the

emergency room . . . doctors and nurses," and on the first visit

to the orthopedic surgeon two weeks later.

Dr. Decter opined that, as a result of the accident, plaintiff

"sustained a cervical sprain superimposed on degenerative

discogenic disease" that did not constitute "a permanent

4
Dr. Decter testified that in New Jersey, independent medical
evaluations are called "medical legal evaluations where there is
no doctor patient relationship."

7 A-1540-15T1
injury[.]" Dr. Decter explained that a cervical sprain is where

"you get hit" and "strain muscles in your neck." As to plaintiff's

complaint of a loss of bodily function, Dr. Decter testified that

he did not believe plaintiff "sustain[ed] a loss of bodily function

to his cervical spine[,]" as "[t]he sternal fracture was

nondisplaced and healed."

During the jury charge conference, plaintiff's counsel

provided the court with a suggested jury charge and requested the

court to modify "certain provisions" of the model jury charge to

"customize[]" it "to the facts." Defense counsel vehemently

objected and requested that the court instruct the jury on

aggravation of a preexisting condition in accordance with Model

Jury Charge (Civil), 8.11F, "Aggravation of the Preexisting

Disability" (1997), which reads in pertinent part:

If you find that [plaintiff's]
preexisting illness/injury(ies)/condition was
not causing him/her any harm or symptoms at
the time of the accident, but that the
preexisting condition combined with injuries
incurred in the accident to cause him/her
damage, then [plaintiff] is entitled to
recover for the full extent of the damages
he/she sustained.

The court instructed the jury, in relevant part, as follows:

In this case the plaintiff has presented
evidence and made arguments that a condition
that he had before the accident is in affect
[sic] a preexisting injury which was made
further damaged by the happening of the

8 A-1540-15T1
 accident for which he seeks monetary
compensation. In other words, the plaintiff
here has claimed that he was -- he had prior
injury or condition and that it was
asymptomatic, it wasn’t giving him any problem
until this accident took place. In such a
case a plaintiff . . . if they are able to
demonstrate by a preponderance of the evidence
that the accident caused these injuries is
entitled to recover not only for the trauma
surrounding this accident but also that which
may have been made worse by the happening of
the accident. So, the plaintiff may be
entitled to monetary damages for that injury.

Obviously, the defendants in this case
are not responsible for any preexisting injury
in and of itself. You may not award any money
in this case for damages attributable solely
to the preexisting condition. . . .

To the extent that this preexisting
injury was not causing plaintiff any harm or
symptoms at the time of the accident, if the
plaintiff shows by a preponderance of the
evidence that as a result these injuries were
made aggravated or more severe, then the
plaintiff may be entitled to recover monetary
damages due to an aggravation or worsening of
that preexisting condition, but only to the
extent of that aggravation. Plaintiff has the
burden of proving what portion of his
condition is due to the preexisting injury.

After plaintiff's counsel brought the error in the charge to

the court's attention, the court re-charged the jury with the

following instruction:

If you find that [plaintiff's]
preexisting condition as claimed was not
causing him any harm or symptoms at the time
of the accident but that the preexisting
condition combined with injuries incurred in

9 A-1540-15T1
 the accident to cause him damage, then
[plaintiff] is entitled to recover for the
full amount of the damages he sustained.

There were no objections to the jury charge. The jury returned a

verdict for plaintiff on September 22, 2015, awarding him $4125

in lost wages. The jury determined that plaintiff's injuries

stemmed from the accident, but were not permanent. Thereafter,

plaintiff filed a motion for a new trial, which the court denied

by order dated November 5, 2015. This appeal followed.

On appeal, plaintiff raises the following points for our

consideration:

POINT I

THE JURY INSTRUCTIONS WERE HOPELESSLY
AMBIGUOUS AND IN THE INTEREST OF JUSTICE A NEW
TRIAL MUST BE GRANTED.

POINT II

THE TRIAL COURT ERRED IN REFUSING TO GRANT A
NEW TRIAL.
II.

"A jury verdict, although not sacrosanct, is entitled to

great deference." City of Long Branch v. Jui Yung Liu, 203 N.J.

464, 492 (2010); see also Lockley v. Turner, 344 N.J. Super. 1,

13 (App. Div. 2001) (holding that the jury's fact-finding function

deserves a high degree of respect and judicial deference), aff'd

in part and modified in part, 117 N.J. 413 (2003). Under Rule

2:10-1, this court can only reverse a trial court's denial of a

10 A-1540-15T1
motion for a new trial where "it clearly appears that there was a

miscarriage of justice under the law." "The inquiry requires

employing a standard of review substantially similar to that used

at the trial level, except that the appellate court must afford

'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)).

An erroneous jury charge is cognizable on a motion for a new

trial. It is well established that a proper jury charge is

essential to a fair trial. Reynolds v. Gonzalez, 172 N.J. 266,

288 (2002); Navarro v. George Koch & Sons, Inc., 211 N.J. Super.

558, 570 (App. Div.), cert. denied, 107 N.J. 48 (1986). "The jury

charge 'should set forth an understandable and clear exposition

of the issues.'" Mogull v. Cb Commercial Real Estate Grp., 162

N.J. 449, 464 (2000) (quoting Campos v. Firestone Tire & Rubber

Co., 98 N.J. 198, 210 (1984)). Our Supreme Court has "instructed

that '[j]ury charges must outline the function of the jury, set

forth the issues, correctly state the applicable law in

understandable language, and plainly spell out how the jury should

apply the legal principles to the facts as it may find them[.]"

Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting Velazquez

v. Portadin, 163 N.J. 677, 688 (2000)).

11 A-1540-15T1
 Thus, when examining whether mistakes in a jury charge require

intervention, we generally will not disturb a jury verdict based

upon a trial court's error "where the charge, considered as a

whole, adequately conveys the law and is unlikely to confuse or

mislead the jury, even though part of the charge, standing alone,

might be incorrect." Fischer v. Canario, 143 N.J. 235, 254 (1996)

(citing Latta v. Caulfield, 79 N.J. 128, 135 (1979); Jurman v.

Samuel Braen, Inc., 47 N.J. 586, 592 (1966)). Here, plaintiff did

not object to the final charge as required under Rule 1:7-2.

Pursuant to Rule 2:10-2, we shall disregard "[a]ny error or

omission . . . unless it is of such a nature as to have been

clearly capable of producing an unjust result." As such, an

erroneous charge not objected to will be upheld if it is incapable

of producing an unjust result and does not prejudice any

substantial rights. Boryszewski v. Burke, 380 N.J. Super. 361,

374 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006).

Plaintiff contends that the court provided an erroneous jury

charge on aggravation of a pre-existing condition and, therefore,

should have granted his motion for a new trial. We are somewhat

hampered by the court's failure to articulate its reasons for

entering the November 5, 2015 order. We have only the order

without any oral argument or an analysis of the facts or law upon

which the court's decision may have been based. Rule 1:7-4(a)

12 A-1540-15T1
requires that a court "find the facts and state its conclusions

of law . . . on every motion decided by a written order that is

appealable as of right[.]" Our Supreme Court has recognized that

the failure to comply with this obligation "'constitutes a

disservice to the litigants, the attorneys and the appellate

court.'" Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (quoting

Kenwood Assocs. v. Bd. of Adjustment Englewood, 141 N.J. Super.

1, 4 (App. Div. 1976)). "Meaningful appellate review is inhibited

unless the judge sets forth the reasons for his or her opinion.

In the absence of reasons, we are left to conjecture as to what

the judge may have had in mind." Salch v. Salch, 240 N.J. Super.

441, 443 (App. Div. 1990). While we would ordinarily "remand for

an exposition of the judge's reasoning[,] . . . because the record

overwhelmingly demonstrates the absence of any factual or legal

basis for [granting the motion,]" we will independently evaluate

the sufficiency of the court's decision to deny the motion for a

new trial. In re Farnkopf, 363 N.J. Super. 382, 390 (App. Div.

2003).

Plaintiff asserts that the charge on aggravation of a pre-

existing condition was an "absolute misstatement of the law," and

the court's additional instruction to correct the error was

insufficient because it was unaccompanied by an explanation.

Plaintiff argues that the jury's verdict demonstrates that the

13 A-1540-15T1
jury was "confused by the charge and did not understand that an

aggravated, previously asymptomatic, injury is an injury for which

the plaintiff is entitled to fully recover damages." Although we

agree that the original charge on aggravation of a pre-existing

condition was erroneous, and it may have been beneficial if the

court had made "an express statement to the jury that the original

charge was incorrect," Conklin v. Hannoch Weisman, P.C., 281 N.J.

Super. 448, 454 (App. Div. 1995), modified, 145 N.J. 395 (1996),

we review the jury instruction as a whole, not in isolation.

Because the charge given by the court after counsel's prompting

was correct and effective in providing the jury with the proper

guidelines from which to render a verdict, the error was not of

"such a nature as to have been clearly capable of producing an

unjust result[.]" R. 2:10-2. Further, there was no "miscarriage

of justice under the law" to justify reversing the court's denial

of the motion for a new trial. R. 2:10-1.

Moreover, there is no evidence to support plaintiff's

contention that the instruction caused the jury to be confused.

Rather, the verdict demonstrates that the jury did not believe

that plaintiff sustained a permanent injury. The issue of

permanence was hotly contested throughout the trial with the

parties presenting competing expert testimony. Plaintiff's

expert, Dr. Gutkin, testified that plaintiff had asymptomatic

14 A-1540-15T1
prior conditions and that the injuries plaintiff sustained in the

accident caused permanent injury. In contrast, the defense expert,

Dr. Decter, testified that his examination of plaintiff and review

of plaintiff's medical records did not reveal any permanent injury

attributable to the 2012 accident. It appears from the verdict

that the jury was not convinced that plaintiff's injuries were of

a permanent nature and was persuaded by the testimony of the

defense expert. As we have held, it is within the jury's purview

to reject or adopt any portion of an expert's testimony. Amaru

v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985) (citation

omitted).

Had plaintiff been able to persuade the jury that his injuries

sustained in the 2012 accident, which aggravated an asymptomatic

preexisting condition, were permanent, then defendant would have

been liable for such aggravating effects. However, it would be

reasonable to conclude that even if the jury found plaintiff's

asymptomatic preexisting condition aggravated by the accident, the

jury may also have concluded that the aggravated condition did not

constitute a permanent injury. Indeed, the jury would have had

to first determine that plaintiff's injury was permanent before

even addressing his entitlement to any recovery. Since the portion

of the charge defining the threshold issue of permanency was

correct and, in this case, dispositive, the erroneous charge on a

15 A-1540-15T1
preexisting condition cannot constitute reversible error because

it would only impact the entirely separate issue of damages. Cf.

Tindal v. Smith, 299 N.J. Super. 123 (App. Div.), certif. denied,

150 N.J. 28 (1997) (holding that a clearly erroneous charge on one

element of the cause of action will not constitute reversible

error where the jury's finding as to another entirely separate

element was independently dispositive of the cause of action and

was correctly charged).

Affirmed.

16 A-1540-15T1