In Helfgott v. Jospeh Konopka Funeral Home, the New Jersey Appellate Division evaluated whether the trial court correctly denied plaintiff’s motion for a new trial or, in the alternative, additur.

Plaintiff alleged that he suffered severe and permanent injuries when he slipped and fell on the sidewalk abutting a property owned by defendants.  Plaintiff alleged that the defendants failed to inspect and maintain the sidewalk from forming snow and ice.  At trial, plaintiff (age 36) testified that he slipped and fell on icy pavement and injured his ankle.  Police and emergency medical services responded to the scene, and plaintiff underwent surgical open reduction with internal fixation to his right ankle.  The treating surgeon inserted an eight-hole metal plate with eight screws.  Plaintiff was immobile for several months, received an additional surgery to his right ankle, and attended physical therapy sessions.

At trial, plaintiff testified that he made a “decent recovery,” but his ankle was not fully recovered.  Plaintiff also testified that he walked with an irregular gait and his right foot tended to lag behind his left foot.  Plaintiff further testified that he experiences stiffness and soreness in his right foot.  However, plaintiff admitted that he walked up to twelve miles in one day during a vacation.  Plaintiff’s medical expert testified at trial that plaintiff’s future prognosis included: (1) an ankle fusion; (2) total ankle replacement; and (3) continued conservative treatment.  Defendants’ medical expert testified that plaintiff had indeed sustained a permanent injury and that plaintiff’s injuries had resulted in residual disability, meaning an indefinite functional impairment to plaintiff’s right ankle.  However, defendants’ medical expert also testified that plaintiff might not need fusion surgery and although plaintiff’s condition could worsen, he could also be healthy.  Defendants’ medical expert opined that plaintiff has a “minimal amount of residual disability” and no noticeable gait.  The jury found that defendants were negligent and solely responsible for plaintiff’s injuries—awarding plaintiff $35,000 in damages for pain and suffering, disability, impairment, and loss of enjoyment of life.  Plaintiff then filed a motion for a new trial or additur, which was denied by the trial judge.  On appeal, plaintiff argues that the jury’s $35,000 award is grossly inadequate, shocks the conscience, and results in a miscarriage of justice.

The Appellate Division found that the trial judge’s determination to deny plaintiff’s motion for additur and a new trial did not shock the judicial conscience and was not a miscarriage of justice.  The trial court judge correctly found that the jury had the right to reject the credibility of any fact or expert witness and to accord the trial testimony whatever weight it determined appropriate.  It is not the judge’s role to second-guess the jury’s credibility assessment, or weigh the persuasiveness of the evidence, but rather to determine whether a reasonable jury could accept the evidence presented as support for the verdict.  Here, based on the plaintiff’s testimony and the testimony of both medical experts, the jury could reasonably find that although there was a permanent injury to plaintiff, the impact was minimal and warranted an award of $35,000.

Thanks to Ken Eng for his contribution to this post and please write to Vincent Terrasi for more information.