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This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5282-07T35282-07T3
THOMAS DECAMILLO,
Plaintiff-Appellant,
v.
ALLSTATE NEW JERSEY INSURANCE
COMPANY,
Defendant-Respondent.
Argued October 20, 2009 - Decided
Before Judges Parrillo and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1018-05.
Phillip B. Linder argued the cause for appellant.
Kenneth N. Lipstein argued the cause for respondent.
PER CURIAM
In this personal injury automobile negligence action, plaintiff Thomas DeCamillo appeals from a judgment
incorporating a jury verdict denying him recovery for non-economic damages, and from court orders denying his
motion for judgment at trial, for judgment notwithstanding the verdict, and for a new trial. We affirm.
Plaintiff was involved in an automobile accident on May 29, 2003. He complained of pain in his lower back,
shoulders, knees and neck, and sought treatment. Because he was subject to the lawsuit threshold, in order to
sustain his damages claim, other than lost wages, it was necessary for him to prove a permanent injury by objective
medical evidence. 55 N.J. 2, 5 (1969); Pressler, Current N.J. Court Rules, comment 1 on R. 4:40 (2010). In making this
determination, "the court must accept as true all the evidence which supports" the party opposing the motion and
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"must accord that party the benefit of all legitimate inferences which can be deduced therefrom." Pressler, supra,
comment 1 on R. 4:40 (citing Dolson, supra, 55 N.J. at 5-6). Therefore, "if reasonable minds could differ, the motion
must be denied." Ibid.
In a lawsuit threshold case such as this, to qualify for non-economic damages, a plaintiff must prove a
permanent injury has been sustained as a result of a motor vehicle accident. Davidson v. Slater, 189 N.J. 166, 186
(2007). For present purposes, an injury is 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." 183 N.J. 477,
489 (2005); Serrano v. Serrano, 183 N.J. 508, 518 (2005).
Plaintiff argues on appeal that there is "no evidence" that could support a "finding that plaintiff did not suffer
a permanent injury as a result of this accident." He contends that, based upon the testimony of both medical
experts, there were "only two alternatives for the jury," namely that plaintiff suffered a permanent injury either
solely from the accident, "or in combination with a pre-existing latent condition," and therefore under both
scenarios, the permanent injury resulted from the May 29, 2003 motor vehicle accident. Defendant, on the other
hand, maintains that the evidence reasonably supports a third alternative, namely that "the protrusions were not
caused by the accident and had no impact on the injury sustained by plaintiff, and that the low back injury was
nothing more [than] a non-permanent lumbar sprain, as testified to by Dr. Lopano." We agree with defendant.
Here, Dr. Lopano offered, as an explanation for plaintiff's lower back protrusions, his expert opinion that the
normal aging process causes disc desiccation, which in turn leads to protrusions that are exacerbated by an
individual's excess weight. The fact that Dr. Lopano did not state within a reasonable degree of medical certainty
that plaintiff's protrusions did in fact pre-date the accident, does not preclude the jury from considering the opinion
in its assessment of plaintiff's contrary medical proofs and whether plaintiff has met his burden of proving that the
protrusions were caused by the car accident. In point of fact, Dr. Lopano's testimony offered the jury a sound basis
to question and discredit Dr. Haidri's opinion as to both causation and permanency. Thus, confronted with differing
expert opinions, the jury was obviously free to reject that of plaintiff's expert. Because, based on the record proofs,
reasonable minds could differ as to either causation, permanency or both, a rational jury could find that plaintiff
failed to prove that the automobile accident caused him to suffer a permanent injury, thus barring him from an
award of economic damages under N.J.S.A. 39:6A-8(a).
For this very same reason, the court properly denied plaintiff's motion for a new trial. Such a motion is
governed by Rule 4:49-1, which states, "[t]he trial judge shall grant the motion if, having given due regard to the
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opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there
was a miscarriage of justice under the law." On appeal, "[t]he trial court's ruling on such a motion shall not be
reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.
We, of course, defer to the trial judge with respect to "intangibles" not conveyed by the written record, such
as credibility, demeanor, and "feel of the case," but otherwise make our own determination of whether a
miscarriage of justice occurred. Dolson, supra, 55 N.J. at 6-8; Baxter v. Fairmont Food Co., 74 N.J. 588, 597-600
(1977); Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Pressler, supra, comment 4 on R. 2:10-1. In making this
determination, we "must accept as true the evidence supporting the jury's verdict and all permissible inferences
therefrom." Pressler, supra, comment 4 on R. 2:10-1 (citing Bell Atlantic Network Services, Inc. v. P.M. Video Corp.,
322 N.J. Super. 74, 83 (App. Div.), certif. denied, 162 N.J. 130 (1999); Boryszewski v. Burke, 380 N.J. Super. 361, 391
(App. Div. 2005), certif. denied, 186 N.J. 242 (2006)); Dolson, supra, 55 N.J. at 5.
Thus, accepting as true the evidence supporting the jury's verdict, the clear impact of Dr. Lopano's testimony
is that plaintiff's disc protrusions, which are common in individuals of plaintiff's age and weight, pre-dated the car
accident, as they develop over a long period of time. Moreover, the lumbar sprain that may have resulted from the
accident was, in Dr. Lopano's expert opinion, neither a permanent injury, nor related to the pre-existing
protrusions. Thus, we conclude that the jury's use of such evidence to discredit that offered by plaintiff, and to
conclude he came up short of satisfying his burden of proof, was not a miscarriage of justice under the law.
Affirmed.
(continued)
(continued)
11
A-5282-07T3
November 10, 2009
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