CHARLES PERKINS VS. RICHARD NOBLETT (L-0068-17, CAPE MAY 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NOT FOR PUBLICATION WITHOUT THE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-4128-18T4

CHARLES PERKINS,

Plaintiff-Appellant,

v.

RICHARD NOBLETT,

Defendant-Respondent.
__________________________

Argued telephonically March 5, 2020 –
Decided April 1, 2020

Before Judges Koblitz, Gooden Brown, and Mawla.

On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0068-17.

Justin D. Turner argued the cause for appellant (Barry,
Corrado, Grassi & Gillin-Schwartz, PC, attorneys;
Christopher Gillin-Schwartz, on the brief).

Eric S. Robinson argued the cause for respondent (The
Law Office of Debra Hart, attorneys; Eric S. Robinson,
of counsel and on the brief).

PER CURIAM
 Plaintiff Charles Perkins appeals from March 27 and April 4, 2019 orders

entering a no-cause judgment in favor of defendant Richard Noblett following a

jury trial, and an April 17, 2019 order denying his motion for a new trial. We

affirm.

In 2015, plaintiff was a passenger on a New Jersey Transit bus, which

collided with a vehicle defendant operated. Plaintiff alleged he was "forcefully

thrown forward, and ended up on the bus floor." He was evaluated at a hospital

and released the same day. In 2017, plaintiff filed a complaint against defendant

for negligence, seeking damages, which defendant contested.

Plaintiff's answers to interrogatories certified he sustained the following

injuries from the accident: "[l]umbar central herniation L3-4 with impingement

superimposed on a bulge at L3-4; left lumbar radiculopathy with paresthesia[]

of left lower extremity; L5-S1 broad bulge; spondylolisthesis of L4-5; grade 1

anterolisthesis L4-5; cervical spurring [C3] through T1; post-traumatic

cervicalgia; cervical spondylosis C3-4 through C7-T1." In response to an

interrogatory inquiring about prior injuries the accident aggravated, plaintiff

certified he was "not claiming aggravation or exacerbation of a previous injury,"

but "sustained a prior lumbar injury approximately [ten-to-thirteen] years ago at

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Freehold Raceway when a chair in which he was seated broke or detached from

the floor, and he fell to the ground."

At trial, plaintiff testified he could not recall whether he fell to the bus

floor after the collision. He testified he did not enjoy a vacation he took

following the accident because he "was having problems." Moreover, he

enjoyed bowling as a hobby and before the accident he experienced leg or back

pain only occasionally, but after the accident, could no longer keep his head up

to watch bowling pins. When asked about the prior incident at the raceway, he

described having "some back problems and whatever. And that was it."

Plaintiff's daughter also testified and stated his injuries from the accident

disrupted his balance when he stood, and "the biggest thing that [she] noticed

was . . . he can't hold his head up[,] . . . it bothers him almost constantly." When

asked about changes from the prior incident, she stated the following:

[Plaintiff's daughter:] Yeah. There's way more . . .
everything that I just said about how he can't hold his
head up anymore. He has pain. . . . But it's definitely a
noticeable difference now.

[Plaintiff's counsel:] How about his walks? Can you
describe that walk for the jury?

[Plaintiff's daughter:] Yeah. Well, it's a lot less now.
Where I used to . . . let him walk the . . . three miles to
McDonald's because it was good for him and

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 everything. . . . I think it's too much for him anymore.
So not as much. He . . . just does little walks now.

[Plaintiff's counsel:] And how about the bowling . . .

[Plaintiff's daughter:] Bowling, he doesn't bowl
anymore. No. That . . . definitely was affected, yeah,
a lot.

She further noted plaintiff "complains of pain constantly with me," and "[h]e's

always holding on to his neck, [and] . . . [t]hat's not how he was before."

Approximately one month after the accident, plaintiff began treatment

with Dr. Andrew Glass, a neurosurgeon. Dr. Glass testified as follows:

[Plaintiff] reported that he was facing forward
and napping at the time, and that he was not wearing
any type of restraint. When the vehicle was impacted
by the pickup truck, he experienced onset of neck pain
and back pain.

He was brought in by emergency medical
services, . . . [a]nd after that, he was complaining of
neck pain on both sides of the back of his neck going
down to his trapezius. . . .

And then he also reported low-back pain
radiating down his left leg, ending either behind his
knee or in (inaudible) region.

He specifically denied spine symptoms of a
similar nature before this accident. He reported that in
2005, he had been in a spectator seat at a motor freeway
and the chair broke. He experienced neck pain and low-
back pain. He received non-surgical care. And over
time, the symptoms resolved. And then he was pain-

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 free for multiple years and then, unfortunately, had
recurrent neck and back symptoms after this motor
vehicle collision.

Dr. Glass further noted plaintiff had a "more than [seventy-five] percent

loss of flexibility of the neck," "more than [fifty-percent] loss of his forward

bending." He reviewed a cervical MRI, which revealed "spondylosis at all the

segments in the neck going from C3 to T1," which was "appropriate for

somebody [eighty-two] years of age." Additionally, he reviewed a lumbar MRI

that showed "L3-4 central herniation, L4-5 grade one anterolisthesis and an L5-

S1 (indiscernible)."

Dr. Glass opined the collision with defendant's vehicle caused plaintiff

permanent injuries. With respect to plaintiff's prior injury from the raceway, he

stated: "Were it not for the trauma of this bus accident, [plaintiff] may never

have become painful in either of those two areas, and sitting here today might

not have any pain."

On cross-examination, the defense confronted Dr. Glass with plaintiff's

treatment records from 2005 to 2008, for neck and back pain with various

doctors subsequent to the raceway incident. Chiropractic records revealed

plaintiff presented in May 2005 with neck and back pain, radicular symptoms

into both legs, and numbness and tingling. In August 2005, plaintiff reported

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back pain and spasms, increased pain with stairs, prolonged sitting, standing,

walking, or lifting anything over five to ten pounds. These complaints persisted

as noted throughout treatment records for several months. Indeed, an April 2006

report from plaintiff's chiropractor noted he complained of neck and back pain.

May 2005 neurology records revealed plaintiff presented with low back

pain and stiffness, radiating up and down his back and into his legs. The records

stated plaintiff had occasional paresthesia to the hands and legs, along with back

spasms and difficulty sitting, standing, laying down, and walking after twenty

to thirty minutes. A July 2005 record revealed plaintiff received a back brace

after reporting pain radiating into his left leg with some weakness, neck pain

into the left arm, occasional paresthesia in both hands, and difficulty sitting,

standing, and walking.

A May 2006 treatment record from a pain management physician revealed

plaintiff reported low back pain on both sides, occasional pain in the posterior

aspect of his left leg and knee, and wore a lumbar corset. An August 2006 note

from a neurosurgeon noted plaintiff experienced low back pain into his left leg

since the raceway incident. Chiropractic treatment records in 2007 and 2008,

continued to reflect complaints of pain in plaintiff's right and left lower

extremities, neck pain into the left shoulder and arm, and occasional low back

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pain into the lower extremities with standing, walking, and laying down.

Notwithstanding, Dr. Glass testified he reviewed these treatment records and

attributed plaintiff's injuries to the 2015 incident.

At trial, defense counsel sought to read plaintiff's answer to the

interrogatory regarding aggravation of his prior injuries, which stated:

Q: If a previous injury, disease, illness or condition is
claimed to have been aggravated, accelerated or
exacerbated, specify in detail the nature of each and the
name and present address of each healthcare provider,
if any, whoever provided treatment for the condition.

Plaintiff's answer: Plaintiff is not claiming aggravation
or exacerbation of a previous injury. However, plaintiff
sustained a prior lumbar injury approximately [ten] to
[thirteen] years ago at Freehold, New Jersey Raceway
when a chair in which he was seated broke or detached
from the floor and he fell to the ground. Plaintiff recalls
having treated with physical therapy. He may have
treated with other providers whose names he cannot
recall. He filed a personal injury claim through a
Philadelphia attorney whose name he cannot recall.
Subsequent to his treatment and to the best of his
recollection, his symptoms resolved.

Plaintiff objected to: "He filed a personal injury claim through a

Philadelphia attorney whose name he cannot recall." He argued the language

was unduly prejudicial because it painted him as litigious. Defense counsel

explained the interrogatory answer was relevant because "it's one thing to say

. . . maybe I don't remember . . . going to a doctor in 2005, but if you have a

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lawsuit in 2005, I think that . . . adds more weight to the need to read the entire

interrogatory and the credibility that would be assessed against [plaintiff]."

Counsel explained the interrogatory answer was necessary to give the jury the

context of the reading. Counsel also noted he would be reading from a

deposition transcript from plaintiff's prior lawsuit. The judge overruled

plaintiff's objection.

Defense counsel then read the following portion of plaintiff's deposition

from the former lawsuit into the record:

[Question:] Do you remember the date this accident
happened?

[Answer:] I can't remember the exact date, no.

[Question:] It was April 21, 2005.

Answer: Okay right.

....

Question[:] What do you remember happening?

Answer: Happening? I remember sitting down and,
boom. And then I got all excited, and then the pain
started going in my back and then in my neck,
everything. I get really – I got really frustrated and I
went out there.

....

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[Question:] After the incident happened, did you go
over to the first aid area?

[Answer:] You want me to explain?

Question: Sure[.]

Answer: When I got disoriented there, Danny said to
me, I am taking you down to the infirmary. What I can
remember of it was Danny took me down to the
infirmary and the doctor examined me there and the
lady took my blood pressure in there.

Question: What was bothering you when you went
down there?

[Answer:] Pains up my neck ran down in my legs.

[Question:] Are you still treating with Dr. Brady?

Answer: No. He released me.

Question: Actually, he released you looks like January
of 2006.

Answer: When was it?

Question: January of 2006.

Answer: I can't remember when he did it.

Question: Did Dr. Brady's treatment help?

Answer: Yeah. It helped. Twice a week, like I said.

Question: How did it help?

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 Answer: Well, it felt good when they were doing what
they were doing to me, machinery, massages, exercises
and everything he did. I can't remember everything he
did.

Question: By the time they discharged you, apparently
in January of 2006, did you feel better than when you
started?

Answer: It was still bothering me, my neck and back. I
wouldn't lie to you. It's still bothering me.

Plaintiff's counsel also read from the deposition as follows:

Question: Is there anything that you don't do now
anymore that you were used to doing and accustomed
to doing before this accident happened at the race track?

[Answer:] No. I try to do the same stuff on account of
my psychology stuff. I have to do my walking and
things like that, my exercises. I wear this thing here,
this thing here. (Witness indicated).

The defense called its expert orthopedist Dr. Roy Friedenthal. He

evaluated plaintiff and reviewed medical records before and after the accident

with defendant. Dr. Friedenthal diagnosed plaintiff with a cervical and lumbar

strain and multi-level degenerative changes but saw no sign of an acute

structural injury or abnormality. He explained the difference between a strain

injury and a structural injury as follows: "We're all familiar with strain. You lift

something heavy and your arm aches for a few days or a week or two. That's a

strain injury. . . . If you rupture your biceps . . . that's a structural injury." He

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found plaintiff's "clinical presentation was certainly not consistent with an acute

rupture of a disc." Rather, "[t]hese are all chronic changes. These aren't trauma

changes. There's no fracture. There's no dislocation. There are no signs of

trauma. Just lots of degenerative change. . . . This gentleman is in his eighties

and he's entitled to wear-and-tear change." Dr. Friedenthal concluded

"[plaintiff] suffered a non-structural strain" from the accident and plaintiff's

medical records did not support that he was asymptomatic prior to the accident.

Plaintiff moved for a directed verdict on liability, which was denied for

reasons unrelated to this appeal. The judge then held a charge conference. The

prepared jury questions asked the following:

1. Was the negligence of the [d]efendant . . . a
proximate cause of the motor vehicle accident of June
12, 2015?

If yes, proceed to question #2. If No, cease your
deliberations.

2. Was the negligence of the NJ Transit bus driver . . .
a proximate cause of the motor vehicle accident of June
12, 2015?

If yes, proceed to question #3. If No, go to #4.

3. Apportion liability between the defendant and the NJ
Transit bus driver.

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 4. Has [p]laintiff proven by objective credible medical
evidence that he sustained an injury proximately caused
by the motor vehicle accident of June 12, 2015?

If yes, proceed to question #5. If No, cease your
deliberations.

5. What amount of money, in a lump sum, will fairly
and reasonably compensate [p]laintiff for pain,
suffering and loss of enjoyment of life?

The jury found defendant's negligence was a proximate cause of the

accident and no fault on the bus driver's part. However, on question four, the

jury answered "no" regarding whether plaintiff proved he sustained an injury

from the accident.

Plaintiff moved for a new trial. He argued the outcome was prejudiced

because the trial judge allowed defense counsel to read his interrogatory answer

regarding a prior lawsuit into the record and again during summations. Plaintiff

also objected to question four on the jury instruction sheet.

The trial judge denied the motion, explaining the prior lawsuit was

relevant to provide context for the deposition transcript from the prior suit and

plaintiff's assertion that there was no prior exacerbation or aggravation of his

prior injuries. The judge also concluded question four on the jury sheet was

appropriate. He noted liability was contested and "it was up to the jury to believe

or not believe whether there was any injury sustained by [plaintiff] that was

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purportedly or allegedly caused by the [2015 accident]." The jury could "accept

or reject all or part of the testimony of each of the witnesses that were called . . .

[which] included, but [was] not limited to, Dr. Glass and Dr. Friedenthal, in

addition to Mr. Perkins' testimony." The judge also noted plaintiff's lack of

"objection with regard to the instructions proposed during the conference or the

following day prior to closings."

The judge found the jury instructions "in the context of this case and what

was presented were sufficient, and the verdict sheet was not misleading." He

stated proximate causation remained at issue, was a separate question from

liability, and it was "within the province of the jury to believe or not believe any

of the testimony." The judge concluded the alleged errors, cumulatively, did not

amount to a miscarriage of justice.

I.

A trial judge may grant a motion for a new trial if "it clearly and

convincingly appears that there was a miscarriage of justice under the law." R.

4:49-1(a). A miscarriage of justice exists when a "pervading sense of

'wrongness'" justifies the "'undoing of a jury verdict[.]'" Lindenmuth v. Holden,

296 N.J. Super. 42, 48 (App. Div. 1996) (quoting Baxter v. Fairmont Food Co.,

74 N.J. 588, 599 (1977)). A motion for a new trial will be granted if the damages

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verdict is "so disproportionate to the injury and resulting disability shown as to

shock [the court's] conscience and convince [it] that to sustain the award would

be manifestly unjust." Baxter, 74 N.J. at 596; see also Cuevas v. Wentworth

Grp., 226 N.J. 480, 510 (2016).

"Credibility is truly an issue for the jury. . . . [T]he prevailing party is

entitled to 'the benefit of all reasonable inferences' from the proofs and 'if

reasonable minds could differ,' the verdict must stand." Doe v. Arts, 360 N.J.

Super. 492, 502-03 (App. Div. 2003).

On appeal, we apply the same Rule 4:49-1(a) standard as the trial judge.

See R. 2:10-1. However, we "defer to the trial court in those areas where the

trial court has expertise, or a 'feel of the case,' e.g., the credibility or demeanor

of the witnesses." Lindenmuth, 296 N.J. Super. at 49 (quoting Thomas v. Toys

"R" Us, Inc., 282 N.J. Super. 569, 579 (App. Div. 1995)).

Plaintiff reasserts the arguments made to the trial judge, namely: (1)

defense counsel's publication to the jury of the existence of plaintiff's prior

personal injury lawsuit resulted in undue prejudice and a miscarriage of justice,

requiring a new trial; (2) because both medical experts agreed the accident

caused an injury, question four on the jury questionnaire was "superfluous" and

its inclusion "unnecessary and plain error;" (3) the parties' agreement on

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causation requires reversal of the denial of a new trial because "the jury's 'no

cause' verdict on damages is a clear miscarriage of justice;" and (4) the

cumulative effect of the aforementioned errors warrants reversal.

A.

We owe "substantial deference to the evidentiary rulings of a trial judge."

Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 319 (2006) (citing DeVito v.

Sheeran, 165 N.J. 167, 198 (2000)). Accordingly, absent a showing the trial

court abused its discretion, we will not reverse an evidentiary determination

unless we conclude it "was so wide of the mark as to constitute a manifest

injustice." E & H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 24-25

(App. Div. 2018) (citing Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016)).

Pursuant to N.J.R.E. 607, "for the purpose of impairing or supporting the

credibility of a witness, any party . . . may examine the witness and introduce

extrinsic evidence relevant to the issue of credibility . . . ." "Although extrinsic

evidence may be admitted to impeach a witness . . . its probative value as

impeachment evidence must be assessed independently of its potential value as

substantive evidence." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 494-95

(1999).

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 Plaintiff's answers to interrogatories stated he was not claiming an

aggravation or exacerbation of a previous injury and denied prior neck injury,

pain, or treatment. The evidence from the 2005 raceway incident revealed a

prior medical condition, and plaintiff's deposition from that case noted the fall

caused immediate neck pain and required subsequent treatment. Plaintiff's

medical records showed three years of treatment with multiple medical

professionals for neck and back pain. The trial judge concluded referencing the

prior lawsuit was relevant to place in context the transcript of the deposition

read to the jury from plaintiff's prior lawsuit. The publication of plaintiff's

answer to the interrogatory was not a miscarriage of justice warranting a new

trial.

B.

Jury interrogatories "require the jury to specifically consider the essential

issues of the case, to clarify the court's charge to the jury, and to clarify the

meaning of the verdict and permit error to be localized." Wenner v. McEldowny

& Co., 102 N.J. Super. 13, 19 (App. Div. 1968). In reviewing the verdict sheet

for reversible error, the court "should consider it in the context of the charge as

a whole." Ponzo v. Pelle, 166 N.J. 481, 491 (2001) (citing Sons of Thunder,

Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997). Generally, verdict forms are not

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grounds for reversal unless misleading, confusing, or ambiguous. Sons of

Thunder, 148 N.J. at 418.

Negligence and proximate causation are separate and distinct elements,

and typically separate questions. Lancos v. Silverman, 400 N.J. Super. 258, 272

(App. Div. 2008). Negligence alone does not constitute proximate cause; rather,

the negligent act must be a "substantial factor" in bringing about the injury.

Perez v. Wyeth Labs. Inc., 161 N.J. 1, 27 (1999).

Plaintiff's counsel did not object to question four when the judge asked

for comments on the jury instructions. Even if counsel had objected timely, we

disagree that the jury should have been instructed that defendant conceded

proximate causation. Dr. Friedenthal found the accident caused only a strain

and not a permanent injury. Even though the verbal threshold did not apply, the

jury was free to reject Dr. Friedenthal's testimony that the accident caused a

strain based on the totality of the evidence presented and its assessment of

plaintiff's credibility.

Indeed, "[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. '"

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)). "'The jury

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may adopt so much of it as appears sound, reject all of it, or adopt all of it. '"

Ibid. (quoting Spann, 236 N.J. Super. at 21). Therefore, it was exclusively a

jury question whether plaintiff sustained an injury as a result of the accident.

Affirmed.

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