Opinion
DOCKET NO. A-3401-11T3
08-12-2014
GLENN MARTINDELL, Plaintiff-Appellant, v. DUNHAM & ASSOCIATES OF SOUTH DAKOTA, INC.; DOTY & ASSOCIATES, INC.; and W.P. REALTY, Defendants, and DEPENDABLE CONSTRUCTION SERVICES, INC., Defendant/Third-Party Plaintiff-Respondent, v. LEGGETT & PLATT, INC., and L.A. DARLING, INC., Third-Party Defendants.
Michael H. Nieschmidt argued the cause for appellant (Nieschmidt Law Office, attorneys; Mr. Nieschmidt, on the brief). Talbot B. Kramer, Jr., argued the cause for respondent (Freidel & Kramer, P.C., attorneys; Mr. Kramer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Maven and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1195-08. Michael H. Nieschmidt argued the cause for appellant (Nieschmidt Law Office, attorneys; Mr. Nieschmidt, on the brief). Talbot B. Kramer, Jr., argued the cause for respondent (Freidel & Kramer, P.C., attorneys; Mr. Kramer, on the brief). PER CURIAM
Plaintiff Glenn Martindell appeals from the entry of judgment for defendant Dependable Construction Services, Inc. dismissing his personal injury complaint following a jury verdict that defendant's negligence did not proximately cause the injuries plaintiff sustained on May 6, 2006. On appeal, plaintiff raises the following issues:
Prior to trial, plaintiff's claims against the other defendants had been dismissed or otherwise disposed.
I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF'S MOTION FOR A NEW TRIAL ON THE ISSUE OF CAUSATION AND DAMAGES.
II. THE TRIAL COURT ERRED IN EXCLUDING ALL EVIDENCE OF THE FINDINGS OF THE WORKERS' COMPENSATION COURT AND OF THE SOCIAL SECURITY ADMINISTRATION [ADMINISTRATIVE LAW JUDGE].
III. THE TRIAL COURT ERRED IN REFUSING TO GRANT PLAINTIFF THE PRESUMPTION OF INABILITY TO ENGAGE IN GAINFUL EMPLOYMENT DUE TO THE FINDINGS AND OPINION OF THE SOCIAL SECURITY ADMINISTRATION ALJ, AND SHIFTING THE BURDEN OF DISPROVING SAME TO DEFENDANT BY CLEAR AND CONVINCING EVIDENCE.
IV. THE TRIAL COURT ERRED IN FAILING TO STRIKE THE TESTIMONY OF MR. PESSALANO AS A NET OPINION AND OTHERWISE.
V. THE TRIAL COURT ERRED IN ALLOWING DEFENDANT TO USE ISOLATED SNIPPETS OF DEPOSITION TESTIMONY ON A PROJECTOR SCREEN IN THE OPENING STATEMENT.
VI. THE TRIAL COURT ERRED IN OVERRULING PLAINTIFF'S OBJECTION TO PREJUDICIAL AND INCORRECT COMMENTS IN DEFENDANT'S CLOSING STATEMENT.
VII. THE TRIAL COURT ERRED IN EXCLUDING FUTURE MEDICAL EXPENSE TESTIMONY OF DR. [RICHARD] RUTH.
I.
The pertinent facts in this case presented during the trial are as follows. At the time of plaintiff's workplace accident on May 2, 2006, he was twenty-three years old and worked at the South Brunswick Dollar Tree Store as an assistant manager. While seated at his desk counting money from a cash register, a shelf holding a television collapsed and fell, hitting plaintiff in the chest. Several pieces of equipment also hit him, with a pile resting on his arm, which was pinned on the desk. Plaintiff was buried in his chair until coworkers uncovered him. Several coworkers witnessed the accident. Plaintiff had sustained injuries to his forearm, hand, chest, neck, and back. After several days, plaintiff returned to work with light duty restrictions. In August 2006, plaintiff suffered another injury while bending and lifting five pound boxes. Plaintiff left the job on September 27, 2006.
The evidence presented established plaintiff had previously sustained back injuries in work-related accidents with several other employers. Although the pre-existing back problems had persisted for years, plaintiff had been asymptomatic six months prior to the May 2006 accident. After the accident plaintiff sought medical treatment from Frederick J. McEliece, M.D., an orthopedist and neurosurgeon on October 17, 2006. After diagnosing degenerative disc disease, Dr. McEliece operated on plaintiff's spine to remove a calcified disc. His surgical notes did not indicate any discrete trauma to the spine. The surgery was initially successful. However, plaintiff continued to have pain, and was later diagnosed as having failed back syndrome.
Dr. McEliece gave a de bene esse deposition. He died a short time before the start of trial.
David Weiss, M.D., an expert in orthopedic medicine, testified for plaintiff. Dr. Weiss evaluated plaintiff in 2008 and 2011. He opined that plaintiff was 100% disabled, and concluded that the May 2, 2006 event aggravated and accelerated plaintiff's preexisting back condition. He explained that plaintiff could not load and unload trucks, he could not walk any distance, and his medication "fog[s] him out." He stated that prior to the May 2, 2006 incident no doctor had recommended that plaintiff needed spinal surgery. He opined that plaintiff's current pain could not be caused by the disc because the disc had been removed.
Aaron A. Sporn, M.D., an orthopedic surgeon who evaluated plaintiff in 2009 and 2011, testified for defendant and concluded plaintiff had failed back syndrome that was multifactorial in origin and partially related to the May 2, 2006 accident. He opined that even if the accident had never occurred, plaintiff at some point would have needed to have his back surgically fused. He concluded plaintiff's symptoms and functional limitations were partially, but not totally, explained by the accident.
Joseph Pessalano, a rehabilitation specialist, testified for defendant with respect to plaintiff's ability to work. He disagreed with Dr. Weiss that plaintiff was 100% disabled. Rather, he stated there were job openings suitable for plaintiff and, at a minimum, plaintiff, both after the May 2006 accident and at the time of trial, could perform sedentary work.
The jury returned a verdict finding defendant negligent. The jury, however, found plaintiff had failed to prove by a preponderance of the evidence that defendant's negligence was the proximate cause of the injuries he sustained in the May 2006 accident.
II.
We first address the court's refusal to admit into evidence the Social Security disability and workers' compensation determinations, as well as the court's limited use of these findings by plaintiff's expert. We review the trial court's evidentiary ruling for an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). An evidentiary error will not warrant reversal unless it resulted in a manifest denial of justice. Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
The facts pertinent to this claim are as follows. In October 2007, plaintiff applied for Social Security Disability Insurance benefits. Following a hearing, an administrative law judge (ALJ) found plaintiff had been disabled since May 2, 2006, and incapable of even sedentary work. Similarly, after a contested workers' compensation trial, a judge of compensation found that the May 2, 2006 shelving collapse caused plaintiff to be totally and permanently disabled and, therefore, incapable of employment.
In plaintiff's pre-trial submission, he requested the judge take judicial notice, under N.J.R.E. 201, of the findings and conclusions of the ALJ and the workers' compensation judge as conclusive evidence of plaintiff's permanent disability and need for future medical treatment. Defense counsel opposed the request and moved to bar references to these rulings. In granting defendant's motion, the judge ruled that judicial notice was not appropriate because administrative hearings were different than trial court proceedings, the two having different objectives, different evidentiary proofs, and different parties. The judge determined that while the experts in this case were permitted to review the documents from those proceedings, they were required to develop their opinions separate from the conclusions of the ALJ and the judge of compensation. The judge also found that such use by the experts did not render the findings, determinations, and conclusions of those tribunals admissible.
On appeal, plaintiff contends N.J.R.E. 703 allows expert witnesses to base their opinions on facts, including hearsay and other experts' findings, when formulating their own expert opinions. Therefore, he argues, Dr. Weiss should have been permitted to discuss his reliance on and agreement with the disability findings and conclusions from the administrative tribunals in his testimony. In addition, plaintiff argues he is entitled to bring before the jury the fact that he had been declared disabled in the Social Security and workers' compensation proceedings, and to have those determinations declared presumptive evidence of his disability and inability to work.
We begin our analysis with the Rules of Evidence, specifically the principles of judicial notice and the admissibility of hearsay statements. In this case, it is clear that the ALJ and workers' compensation determinations are hearsay statements, proffered by plaintiff for the truth of the findings therein. Plaintiff first sought the admission of the determinations through judicial notice. The common law doctrine of judicial notice is codified in N.J.R.E. 201. As to the rationale behind the doctrine, we have explained
[t]he purpose of judicial notice is to save time and promote judicial economy by precluding the necessity of proving facts that cannot seriously be disputed and are either generally or universally known. Judicial notice cannot be used "to circumvent the rule against hearsay and thereby deprive a party of the right of cross-examination on a contested material issue of fact. Because judicial notice may not be used to deprive a party of cross-examination regarding a contested fact, the doctrine also cannot be used to take notice of the ultimate legal issue in dispute.
[State v. Silva, 394 N.J. Super. 270, 275 (App. Div. 2007)(citations omitted) (quoting RWB Newton Assocs. v. Gunn, 224 N.J. Super. 704, 711 (App. Div. 1988)).]
Although a court may take judicial notice that such evidence as a certification or a report was in fact presented in another judicial proceeding, the contents of those documents are not admissible for their truth under the rules of evidence. Laffey v. City of Jersey City, 289 N.J. Super. 292, 307-08 (App. Div.), certif. denied, 146 N.J. 500 (1996). The trial judge in this case correctly declined to take judicial notice of the determinations of the ALJ and the judge of compensation. Not only were the proceedings and evidentiary requirements different, but the findings in those proceeding go to the ultimate legal issue in dispute, which the jury must consider.
Here, defendant relies upon an unpublished opinion of this court, Matthews v. New Jersey Manufacturers Insurance Co, A-2050-06 (App. Div. Dec. 28, 2007), in which the plaintiff sought the admission into evidence of her Social Security disability determination. It is well established that unreported opinions have no general precedential effect and that they may not be cited for that purpose. R. 1:36-3. We also find Matthews distinguishable from the present case because there we did not hold that the evidence was inadmissible outright. Rather, we stated that issues before the Social Security Administration did not address whether the claimant's "pre-accident injuries and disabilities contributed to her inability to work." Matthews, supra, slip op. at 11.
We have recently held that a Social Security disability determination is inadmissible as a hearsay exception where it is to be "utilized as substantive evidence in a personal injury action where plaintiff has the burden of proving she suffered an injury caused by an accident and that the injury impaired her ability to work." Villanueva v. Zimmer, 431 N.J. Super. 301, 317 (2013). In Zimmer, we reasoned that "[a] [Social Security Administration] disability determination is of dubious probative value in a personal injury action . . . . The lack of a meaningful adversarial process with respect to the cause, existence and extent of a plaintiff's alleged disability renders the [social security administration]'s conclusions on that issue unreliable." Id. at 318. Our holding in Zimmer fully supports the court's refusal to admit into evidence the Social Security disability determination.
The rationale of Zimmer also supports our conclusion the trial judge correctly ruled to exclude the findings of the workers' compensation judge because of the different issues addressed in that court. In a workers' compensation case, the judge determines whether plaintiff sustained work-related injuries that caused him to incur medical expenses and miss time from work. Here, the jury was required to address not only those issues, but also to consider the causal effects of plaintiff's pre-accident and post-accident injuries. As the finder of fact on causation and damages, the jury could have been misled by hearing the conclusions of the judge of compensation, namely that plaintiff was 100% disabled and not able to work. Thus, we conclude, the trial judge did not abuse his discretion by refusing to admit the determinations of the workers' compensation court into evidence, or by precluding plaintiff's expert from referencing those conclusions.
Plaintiff fails to support his N.J.R.E. 703 claim that these tribunal determinations are the types of hearsay statements relied upon by experts in his field. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 703 (2013). We therefore consider that argument waived. R. 2:6-2(a)(5).
Given our conclusion that the trial judge properly excluded the disability determinations, we have no need to address plaintiff's argument raised in Point III, which we determine is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
III.
We now turn to plaintiff's claim that the trial court erred by barring plaintiff's expert from testifying in regards to future medical expenses. We disagree.
We apply a "deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Pomerantz, supra, 207 N.J. at 371. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data[.]" Id. at 72. Generally, it is not a net opinion if an expert provides the "whys and wherefores rather than bare conclusions" supporting his or her analysis. Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002). An expert witness's opinions that are not reasonably supported by the factual record may be excluded as net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005); see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 703 (2013). Applying these principles, we are satisfied the trial judge did not abuse his discretion in barring the expert's report.
In a pre-trial motion, defendant sought to bar a supplemental report prepared by Richard Ruth, Ph.D., plaintiff's economic expert, as a net opinion. In his first report, prepared February 26, 2010, Dr. Ruth estimated plaintiff's economic loss to be $579,602, by totaling plaintiff's annual salaries from 2006 through age sixty-seven, his actuarial lifespan, subject to appropriate actuarial adjustments. In the August 2011 supplemental report, Dr. Ruth formulated a plan forecasting plaintiff's future medical expenses by using plaintiff's present costs for one month of prescription medications and one month of doctor visits, and projecting that expense forward through age sixty-seven.
Defendant argued Dr. Ruth's opinion regarding plaintiff's future medical expenses, calculated at $1,798,850, lacked foundational evidence of plaintiff's future medical needs. Defendant further argued the report, submitted after the end of discovery and less than one month before trial, impermissibly injected this expense as a new aspect of damages. In response, plaintiff argued the findings and conclusions of both the workers' compensation judge and the ALJ established his disability and need for future treatment, and that the court should accept those findings as dispositive support for Dr. Ruth's opinion.
The judge determined Dr. Ruth's report was not supported by evidence regarding plaintiff's future medical needs. In barring the report as a net opinion, the judge stated:
The judge did not rule on the inadmissibility of the report based on the discovery rule violation.
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[T]he jury is not free to speculate going forward and, respectfully, if the doctor
can't put a plan together as to what is needed going forward, I don't know how the jury in any way could give a reasonable estimate of future medical cost. And I understand the nature of pain management is imprecise, but here, we are, unlike most cases where there is typically a life plan, we have no plan at all here. And a life care planned specialist is not always required in [order] to bring future medical expenses in front of a jury. It certainly helps, but here we are in the complete opposite end of the spectrum with nothing substantive in terms of projected medical evidence in terms of what the future medical plan could be.
The judge correctly determined there was no basis in the record for Dr. Ruth's opinion on future costs. Although plaintiff argues on appeal the existence of medical reports addressing his need for future long-term pain management care, Dr. Ruth did not include any reference to those reports or any other medical sources as a basis for the supplemental report's projection of plaintiff's future medical needs. Additionally, no health care practitioner who testified provided a foundation for Dr. Ruth's opinion. Dr. Ruth merely extrapolated and projected plaintiff's current monthly medical expenses forward to the end of plaintiff's life, adjusting the expenses to account for inflation and discount rates, and using a tax-free portfolio to address annual investment earnings.
Moreover, Dr. Ruth's approach presumed plaintiff's condition would remain static. He did not consider any medical prognosis reports as to how plaintiff's pain management plan could change, or how long plaintiff could stay on certain medications. As the judge correctly noted, that approach would lead to a plainly speculative result. Since there was no basis in the record for this assumption, the opinion was Dr. Ruth's own, and thus, a net opinion. The judge did not abuse his discretion in concluding that Dr. Ruth's opinion was speculative.
IV.
We now address plaintiff's contention that the judge erred in allowing defendant's counsel to depict portions of Dr. McEliece's videotaped deposition on a projector screen during his opening statement. Before opening statements, plaintiff objected to defense counsel showing only a portion of the doctor's deposition and argued that defendant was "getting a jump on live testimony." The trial judge agreed with defense counsel that all openings are snippets of what the evidence at trial will be, but allowed the segments to be shown to the jury, finding no authority to bar such use of the evidence.
On appeal, plaintiff relies on N.J.R.E. 106 to argue the "completeness doctrine" entitles the jury to hear the whole testimony, not mere snippets in the opening from a witness who is scheduled to testify later at trial. Although plaintiff's statement is not incorrect, as applied here, the judge did not commit an error or mistakenly exercise his discretion.
"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). We grant substantial deference to the trial judge's discretion on evidentiary rulings. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Reversal is unwarranted unless the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). We discern no abuse of discretion here.
Under our rules of evidence, deposition testimony is generally inadmissible at trial as hearsay unless it falls under one of the enumerated exceptions. N.J.R.E. 801; N.J.R.E. 802. Rule 4:16-1 sets forth instances where a deposition may be used at trial. Specifically, Rule 4:16-1 provides, in pertinent part, as follows:
(c) Except as otherwise provided by [Rule] 4:14-9(e), the deposition of a witness, whether or not a party, may be used by any party for any purpose, against any other party who was present or represented at the taking of the deposition or who had reasonable notice thereof if the court finds that the appearance of the witness cannot be
obtained because of death or other inability to attend or testify, such as age, illness, infirmity or imprisonment, or is out of this state or because the party offering the deposition has been unable in the exercise of reasonable diligence to procure the witness's attendance by subpoena, provided, however, that the absence of the witness was not procured or caused by the offering party.
(d) If only part of a deposition is offered in evidence by a party, an adverse party may require the offering party to introduce any other part which ought in fairness be considered with the part introduced, and any party may offer any other parts.
[R. 4:16-1.]
Paragraph (d)'s notion of "fairness" is paralleled in N.J.R.E. 106's "doctrine of testimonial completeness." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E. 106 (2014). See N.J.R.E. 106 ("When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously.") The completeness doctrine allows the reading of a second writing or statement where "it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding." State v. Lozada, 257 N.J. Super. 260, 272 (App. Div.) (internal quotation marks omitted), certif. denied, 130 N.J. 595 (1992).
Here, there is no dispute that Dr. McEliece's unavailability was due to his untimely death prior to trial. There is also no dispute that his videotaped deposition would be played in full for the jury. Thus, there is no reason to apply the completeness doctrine as the jury was going to hear Dr. McEliece's entire testimony. Furthermore, as noted by the trial judge, the fundamental purpose of opening statements is to highlight the evidence that will be presented at trial. While defense counsel chose to use a visual aid to introduce Dr. McEliece's testimony, plaintiff's counsel could have done the same. Instead, he opted to verbally describe the doctor's involvement in plaintiff's treatment. Accordingly, we conclude the trial judge did not abuse his discretion in allowing this evidence during defendant's opening statement.
Similarly, we reject plaintiff's claim of judicial error for failing to give a curative instruction following defense counsel's summation in which he argued that plaintiff willfully and intentionally tried to keep Dr. McEliece's testimony from the jury. Plaintiff claims defense counsel's argument was improper and prejudicially tainted the jury verdict on causation.
In his closing, defense counsel stated:
Treating physicians were not brought here. I kept hearing a big distinction between [compensation] doctors and treating physicians. We had to bring the treating physician before you. The plaintiff was not going to bring you his surgeon. He did not want you to hear what his surgeon had to say about the surgery and why he did that surgery and where it came from. Never brought it to you. We, fortunately, before Dr. McEliece tragically passed away, took his video testimony. I was the one asking him questions and we marched right through his records, we introduced [seventeen] exhibits while he was testifying and we looked at those and we had him read it, and we have excerpts from him, as well.Plaintiff's counsel did not immediately object to this statement. After defense counsel completed his closing and the jury left the courtroom, plaintiff's counsel objected to one portion of the closing stating:
There's one piece that was brought out, a statement that plaintiff didn't want to bring Dr. McEliece. Well, you got a different situation here. We weren't even close to trial. They chose to put him on video. He wasn't a witness that was excluded, nor wasn't excluded at that point, as far as what we were doing. And I just, I thought, well, how do I deal with that. It would be one thing if we didn't put him on our pretrial statement, he was listed as a possible witness way back. We're not obligated to pick our witness list from the potential witnesses until we get close to trial. They chose to put Dr. McEliece on tape back in March. I would request some type of an instruction that they disregard that particular statement.
The trial judge ruled the video was available to both parties, and plaintiff had made a choice not to use it as part of his affirmative case. In denying the application for an instruction, the judge concluded that all defense counsel was essentially stating was that plaintiff could have used the video, but did not.
Counsel is afforded broad latitude in making a closing argument, and "may argue from the evidence any conclusion which a jury is free to reach." Colucci v. Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999), certif. denied, 163 N.J. 395 (2000). Because Dr. McEliece's testimony had been played for the jury, there was nothing inappropriate in defense counsel stating in closing argument that plaintiff chose not to call Dr. McEliece as his witness. We find no error in the judge's decision to overrule plaintiff's objection.
V.
Lastly, plaintiff maintains the judge erred in denying his motion for a new trial. We disagree.
A trial judge's decision to grant or deny a new trial, shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law. Bender v. Adelson, 187 N.J. 411, 435 (2006); see also R. 2:10-1. We will not set aside a jury verdict and order a new trial unless we are firmly convinced that there has been a manifest injustice. See Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006); see also Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 324 (App. Div. 2010).
In reviewing a trial judge's decision on a motion for a new trial, we view the evidence in a light most favorable to the party opposing the motion. Caldwell v. Haynes, 136 N.J. 422, 432 (1994). Moreover, we give substantial deference to the trial judge, who observed the same witnesses as the jurors, and who developed a "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Applying these principles here, we discern no basis for disturbing the judge's decision.
Plaintiff moved for a new trial, arguing that even with all the due deference that must be given to the jury's verdict, the jury did not properly consider what was a fairly substantial shelving collapse. Plaintiff maintained he was injured, he underwent medical treatment, and he never went back to full duty. He argued this was completely counter to the jury's finding of no proximate cause of an injury.
This case is similar to Kozma, supra, 412 N.J. Super. at 321-27, in which we sustained a trial judge's refusal to grant a new trial. In Kozma, we upheld a jury verdict finding negligence, but rejecting a monetary award where there was significant evidence of a preexisting condition and additional evidence that the plaintiff had engaged in significant physical activities following the injury at issue. Id. at 322-24, 32627. Here, there was evidence in the record that plaintiff had a significant preexisting back condition, returned to work after the May 2006 accident, and suffered further injury thereafter. We further note that plaintiff testified the top shelf gave way, and this caused a domino effect that brought the whole shelving unit down, with several pieces of equipment striking him and pinning his arm on the desk. He claimed he was buried in his chair until co-workers uncovered him. Plaintiff's co-workers did not recall such a dramatic or traumatic event. There was also conflicting expert testimony as to whether the May 2006 accident, or the August 2006 accident caused further damage to plaintiff's back. See Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985) ("A jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary.")
Following our careful review of the record, we are satisfied the jury's verdict did not cause a miscarriage of justice under the law. On the contrary, the weight of the evidence of record supported all aspects of the jury's verdict. Crego v. Carp, 295 N.J. Super. 565, 577-579 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).
The remaining argument raised in point IV is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3 (e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION