                        NOT FOR PUBLICATION WITHOUT THE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-5082-16T3


CRAIG HELFGOTT,

        Plaintiff-Appellant,

v.

JOSEPH KONOPKA FUNERAL HOME,
LLC, and MANK REALTY, LLC,

     Defendants-Respondents.
____________________________________

              Argued May 22, 2018 – Decided July 9, 2018

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-5346-15.

              Gregg Alan Stone argued the cause for
              appellant (Kirsch, Gelband & Stone, PA,
              attorneys; Gregg Alan Stone, of counsel and
              on the brief; Ronald J. Morgan, on the brief).

              Clifford J. Giantonio argued the cause for
              respondents (Law Offices of Viscomi & Lyons,
              attorneys; Clifford J. Giantonio, of counsel
              and on the brief).

PER CURIAM
       Plaintiff Craig Helfgott appeals from an order of judgment

entered by the trial court on June 6, 2017, and an order dated

July    7,    2017,   which     denied   his     motion   for    a    new   trial    or,

alternatively, for additur. We affirm.

                                           I.

       Plaintiff filed a complaint against Joseph Konopka Funeral

Home, LLC (JKFH), alleging that on January 10, 2014, he suffered

severe and permanent injuries when he slipped and fell on the

sidewalk abutting certain property on Palisade Avenue in North

Bergen. Plaintiff later filed an amended complaint, naming Mank

Realty, LLC (Mank) as an additional defendant. Plaintiff alleged

that JKFH and Mank (collectively, defendants) were negligent in

failing to inspect and maintain the subject sidewalk free of any

dangerous conditions, including accumulated snow and ice.

       At trial, plaintiff testified that on January 10, 2014, while

walking on the sidewalk adjacent to the JFKH property, he slipped

and    fell    on   the   icy   pavement       and   injured    his   ankle.    Police

responded to the scene, and plaintiff was transported to a medical

center.       The   following    day,    plaintiff     underwent      surgical      open

reduction with internal fixation to his right ankle. The surgeon

inserted an eight-hole metal plate with eight screws. Plaintiff

was thirty-six years old at the time.



                                           2                                   A-5082-16T3
      Plaintiff remained at home and was non-weight bearing for

about a month. In that time, plaintiff only took one prescribed

medicine, Vicodin, for pain. Plaintiff remained out of work until

mid-February 2014. He began physical therapy and continued to be

non-weight bearing except during physical therapy. He was on

crutches through February and March 2014.

      In April 2014, plaintiff started to place weight on his

injured ankle when he was not in physical therapy. Initially,

plaintiff used a "walking boot," but he removed the boot when he

went to sleep. He testified that he had pain while trying to sleep

because he had to elevate his foot to keep it from swelling.

      On March 28, 2014, plaintiff underwent a second surgical

procedure to remove two screws from his ankle. After the second

surgery, plaintiff was able to flex his foot. He had physical

therapy three times a week for sessions that lasted an hour and a

half. Plaintiff continued physical therapy until late May 2014.

He also performed certain exercises at home.

      Plaintiff testified that he had made "a decent recovery," but

his   ankle   was   not   fully   recovered.   He   "had   a   fair   bit    of

flexibility back," but his ankle still got fatigued, and at those

times, the ankle did not feel stable. He was still experiencing

pain.



                                     3                                A-5082-16T3
     Plaintiff said that in July 2014, members of his family

noticed he had an irregular gait. His right foot was "lagging a

little bit." After receiving an MRI, his doctor said his foot was

"pronating," which is like "tilting." At the doctor's suggestion,

plaintiff obtained orthotics, which are orthopedic inserts. At the

time of trial, plaintiff was still using the orthotics.

     Plaintiff described his complaints. He has regular stiffness

in his ankle when he wakes up and at the end of the day. During

the day, plaintiff's ankle stiffens up if he does not flex and

exercise it regularly. Plaintiff said he is not able to walk as

much as he used to, and if he walks a lot, his foot gets tired and

starts to hurt.

     Plaintiff admitted, however, that he did "a fair bit of

walking" on a recent vacation. He told his doctor that during the

vacation, he walked up to twelve miles each day, but had pain

afterwards. During his deposition, plaintiff said he walked a

"decent amount" on that trip.

     Plaintiff also testified that he has difficulty running.

Although his gait has evened out, his right foot lags when he

attempts to run. Plaintiff told his doctor that after he runs, his

ankle is sore. Plaintiff described the pain as a two out of ten,

with one the lowest amount of pain and ten the highest.



                                4                          A-5082-16T3
     Plaintiff stated that his ankle hurts a lot when he climbs

steep hills, and he is not able to go hiking. Plaintiff said that

after the screws were removed, he has not done any hiking. However,

at his deposition, plaintiff testified about climbing in a hilly,

wooded area, but he insisted he had not been talking about hiking.

     Plaintiff testified that the physical therapy had helped, and

by mid-May 2014, he had recovered to the extent expected. Plaintiff

did not feel any pain while he was testifying, but he said he

feels pain "underneath the ankle bone on the inside." At his

deposition, plaintiff did not specifically identify the place

where he feels pain.

     Plaintiff testified that he feels pain generally in his ankle.

He takes over-the-counter medication, specifically Advil, "maybe

a couple [of] times a week," to help with the soreness. He stated

that his ankle still is stiff and does not "flex up and down."

     Plaintiff was asked the last time he saw a doctor for his

ankle. He could not recall, but testified he saw a doctor in

January 2015. He also testified he may have seen a doctor once

since that time. According to plaintiff, the doctor told him he

could not do anything more for him.

     Dr.   Sean   Lager,   an   orthopedic   surgeon,   testified   for

plaintiff. Dr. Lager diagnosed plaintiff with: (1) status post-

right ankle fracture of the lateral malleolus and dislocation; (2)

                                   5                           A-5082-16T3
status post-open reduction with internal fixation of the right

lateral malleolus and syndesmosis; (3) status post-removal of the

right ankle syndesmotic hardware; (4) posterior tibial tendinitis

and pronation; and (5) injury to the peroneal tendon and deltoid

ligament. Dr. Lager testified that plaintiff had suffered "a high

energy   injury."   He   said   it   was   as   though   the   "energy   [had]

exploded" and "a small bomb" had gone off. He stated that the bone

that sits at the bottom of the ankle "slammed" into the tibia.

     Dr. Lager further testified that in April 2015, plaintiff had

an x-ray, which showed osteoarthritis in the ankle joint. The

doctor stated that the arthritis would worsen as plaintiff ages.

He opined to a reasonable degree of medical probability that

plaintiff's injuries are permanent. He said plaintiff's future

prognosis included three options: (1) an ankle fusion; (2) total

ankle replacement; or (3) continued conservative treatment.

     Dr. Lager acknowledged that when plaintiff returned to see

him on February 26, 2014, he only had occasional soreness after

therapy. Plaintiff reported that the pain was a one out of ten.

Plaintiff also had some tenderness when his incision was touched.

     Plaintiff returned to see Dr. Lager on May 27, 2014, and he

was full weight-bearing. On July 8, 2014, plaintiff also was full

weight-bearing, but he complained of some difficulty with running

and stiffness. He said the pain in his ankle was a two out of ten.

                                      6                              A-5082-16T3
The doctor recommended an anti-inflammatory, but he was unsure

whether plaintiff followed his recommendation.

     Dr. Lager noted that on July 29, 2014, plaintiff complained

of right ankle pain, especially after a lot of activity. Plaintiff

did not experience pain when the doctor pushed on the right deltoid

ligament.   According   to   the   doctor,   the   deltoid   ligament   was

stretched out and the ankle or foot was more pronated. The doctors

recommended orthotics to balance the ankle so plaintiff would be

anatomically correct while walking. Plaintiff obtained orthotics

shortly thereafter.

     Dr. Lager also discussed the report of plaintiff's physical

examination, which another doctor performed on September 15, 2016.

The report indicated that plaintiff had no swelling, bruising,

asymmetries, or deformities in the ankle. The examination report

indicated that plaintiff reported no pain to his ankle when it was

pressed or squeezed. He had a full range of motion.

     The examination report noted that plaintiff had taken an

extended vacation, during which he walked up to twelve miles each

day. Plaintiff reported he had pain afterwards, but at the time

of the examination, he was pain-free. Plaintiff was diagnosed with

a deltoid ligament sprain. Dr. Lager testified that this meant the

ligament "likely healed in with some scar tissue," but he did not

think it was functioning the way it was supposed to function.

                                     7                             A-5082-16T3
     Dr. Lager noted that as of March 31, 2016, plaintiff was not

taking any pain medications. Plaintiff reported pain, stiffness,

and soreness. He was taking Advil, and said the pain was a one or

two out of ten. In the report, the doctor wrote that plaintiff

would probably never be one hundred percent, "but there is medical

treatment he may be able to [have] in the future that could help

with some of [his] symptomatology."

     Defendants presented testimony from Dr. Charles Carozza, who

is also an orthopedic surgeon. He testified that plaintiff had

suffered a permanent injury, and the plate and the screws are

permanently in plaintiff's ankle. Dr. Carozza said plaintiff's

injuries had resulted in residual disability, meaning a functional

impairment to the ankle that is "going to last."

     Dr. Carozza performed a physical examination of plaintiff on

May 31, 2016. He stated that plaintiff had no apparent distress,

and he walked with a normal gait. The doctor said this was a good

indication that plaintiff did not have any pain. He noted that

plaintiff reported he occasionally feels some medial pain or

palpation over a tendon, rather than the ankle itself. Dr. Carozza

found that plaintiff had some discomfort in the posterior tibialis

tendon.

     Dr. Carozza also noted that he found plaintiff had no real

discomfort over the medial or lateral operative site. The doctor

                                8                          A-5082-16T3
did not feel any screw heads; they were buried in place. Plaintiff

had full "dorsiflexion, which means he could cock his foot all the

way back up." Plaintiff had full "plantarflexion," which means he

"could put his foot down like a ballerina."

     Plaintiff also had full "inversion" and "eversion." There was

no pain on all range of motion. The doctor found no "ligamentous

[in]stability," and he found no "effusion of the ankle," or "actual

fluid in the joint." The doctor explained that effusion is an

early sign of post-traumatic osteoarthritis.

     Dr. Carozza opined that plaintiff did not suffer a tear of

the peroneal tendon. In his examination, he saw no indication that

plaintiff's   deltoid   ligament   was   attenuated    or   stretched.    He

testified that plaintiff had an excellent surgical procedure and

an excellent result. Although he said plaintiff might develop

osteoarthritis,   Dr.   Carozza    saw   no   sign   that   plaintiff    was

developing that condition. Dr. Carozza noted that arthritis is not

always caused by trauma.

     Dr. Carozza further testified that plaintiff might not need

fusion surgery. His condition could worsen, but he could also be

healthy and have the same complaints he had at that time. There

were no signs of a significant loss of motion, and the muscle tone

was good. Plaintiff has flat feet, but "that's the way he's made."



                                    9                              A-5082-16T3
The doctor acknowledged that plaintiff had some scarring from the

surgery, which was minor.

     Dr. Carozza opined to a reasonable degree of medical certainty

that plaintiff has some mild, subjective complaints. The only

positive   finding   was    an   incision   and   some   circumference

enlargement of the ankle. He said plaintiff has reached maximum

medical improvement from treatment, and further treatment is not

necessary. He opined that plaintiff has a "minimal amount of

residual disability."

     The jury found that defendants were negligent and solely

responsible for plaintiff's fall and his resulting injury. The

jury awarded plaintiff $35,000 for pain and suffering, disability,

impairment, and loss of the enjoyment of life. The trial judge

molded the verdict to include the stipulated amount of plaintiff's

medical expenses, which totaled $56,725.85.

     Plaintiff thereafter filed a motion for a new trial or, in

the alternative, additur. The trial judge denied the motion, and

this appeal followed.

                                  II.

     On appeal, plaintiff argues that the jury's award of $35,000

is grossly inadequate, shocks the conscience, and results in a

miscarriage of justice. He further argues that the judge's decision

denying his motion for a new trial was based on the judge's

                                  10                           A-5082-16T3
mistaken belief that both medical experts did not find that he

suffered a permanent injury. Plaintiff contends the trial judge

should   have     granted    his    motion    for   a   new   trial     or,    in   the

alternative, additur. We disagree.

      "A jury's verdict, including an award of damages, is cloaked

with a 'presumption of correctness.'" Cuevas v. Wentworth Grp.,

226 N.J. 480, 501 (2016) (quoting Baxter v. Fairmont Food Co., 74

N.J. 588, 598 (1977)). That presumption is not overcome unless the

party    "clearly    and    convincingly"      establishes       that    the     award

represents a "miscarriage of justice." Ibid. (quoting Baxter, 74

N.J. at 596); see also R. 4:49-1(a). Furthermore, in deciding

whether to grant a motion for a new trial, the court must give

"due regard to the opportunity of the jury to pass upon the

credibility of the witnesses." Ibid. (quoting Ming Yu He v. Miller,

207 N.J. 230, 248 (2011)).

      Moreover, a jury's damages award should not be overturned

unless it "shock[s] the judicial conscience." Id. at 503 (quoting

Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)). An award meets

that standard if it is "wide of the mark," "pervaded by a sense

of wrongness," and is "manifestly unjust." Ibid. (quoting Johnson,

192   N.J.   at   281).     The    standard   is    "objective    in    nature      and

transcends any individual judge's personal experiences." Ibid.



                                        11                                     A-5082-16T3
     It is well-established that in deciding a motion for a new

trial under Rule 4:49-1(a), the judge

          may not substitute his judgment for that of
          the jury merely because he would have reached
          the opposite conclusion. . . . "[The trial
          judge must] canvass the record, not to balance
          the persuasiveness of the evidence on one side
          as against the other, but to determine whether
          reasonable minds might accept the evidence as
          adequate to support the jury verdict. . . ."
          [T]he trial judge takes into account, not only
          tangible factors relative to the proofs as
          shown by the record, but also appropriate
          matters of credibility, [which are] peculiarly
          within the jury's domain, so-called "demeanor
          evidence," and intangible "feel of the case"
          which [the judge] has gained by presiding over
          the trial.

          [Dolson v. Anastasia, 55 N.J. 2, 6 (1969).]

      The standard of review for determining whether a damages

award shocks the judicial conscience is the same for trial and

appellate courts. Cuevas, 226 N.J. at 501. However, in reviewing

the trial court's determination, "an appellate court must pay some

deference to a trial judge's 'feel of the case.'" Ibid. (quoting

Johnson, 192 N.J. at 282).

     Here, the trial judge determined that the jury's verdict did

not shock the judicial conscience and was not a miscarriage of

justice. In the written statement appended to the order denying

the motion for a new trial or additur, the judge wrote that the

jury had the right to reject the credibility of any fact or expert


                               12                          A-5082-16T3
witness and to accord the trial testimony whatever weight it deemed

appropriate. The judge noted that his role was not to second-guess

the jury's credibility assessments, or weigh the persuasiveness

of the evidence, but rather to determine whether a reasonable jury

could accept the evidence presented as support for its verdict.

The judge found that there was no evidence the jury's verdict was

the product of misunderstanding, bias, or prejudice.

     The record supports the judge's determination that plaintiff

did not meet the standard under Rule 4:49-1(a) for a new trial.

He did not "clearly and convincingly" establish the damages award

was "a miscarriage of justice." Ibid. Plaintiff notes that both

medical experts testified that he has sustained a permanent injury.

However, the experts disagreed regarding the impact of the injury.

     As we have explained, Dr. Carozza testified that when he

examined plaintiff, he found plaintiff had a normal gait. There

were no lingering abnormalities with the ankle, which was a good

indication plaintiff was not suffering any pain. According to Dr.

Carozza,   plaintiff   had    full   range      of   motion   with   no     pain.

Plaintiff's expert, Dr. Lager, also testified that in September

2016, plaintiff had full range of motion. Plaintiff had some

scarring from the surgery, but it was minor.

     Furthermore, based on plaintiff's testimony, the jury could

reasonably   find   that     plaintiff    did    not   have   a   substantial

                                     13                                   A-5082-16T3
disability or impairment, and the injury did not have a substantial

adverse impact on his ability to engage in his normal activities.

Plaintiff initially denied that he could go hiking, but at his

deposition, he testified about walking up hills. He also testified

that after the accident, he went on an extended vacation during

which he walked up to twelve miles each day.

      The record therefore supports the trial judge's determination

that the jury could reasonably            find, based on the testimony

presented and its assessment of the credibility of the witnesses,

that a damages award of $35,000 was sufficient to compensate

plaintiff for his pain and suffering, disability, impairment, and

loss of the enjoyment of life.

      The judge also correctly determined that because plaintiff

did not meet the standard for a new trial under Rule 4:49-1(a),

additur could not be considered. See Ming Yu He, 207 N.J. at 248;

Caldwell v. Haynes, 136 N.J. 422, 443 (1994). See also Pressler &

Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:49-1(a) (2018)

(noting that "neither additur nor remittitur can be ordered unless

a new trial, at least on the damages issue, would be warranted").

      Plaintiff argues that in denying his motion for a new trial,

the   judge   erroneously   stated    that   both   medical   experts   had

testified that his ankle repair was successful and caused no

"lasting impact" upon him. Plaintiff correctly notes that both

                                     14                            A-5082-16T3
medical experts testified that plaintiff had sustained an injury

that was permanent. However, based on plaintiff's testimony and

the testimony of both doctors, the jury could reasonably find that

although the injury had a "lasting impact" upon plaintiff, the

impact was minimal and warranted an award of $35,000 for pain and

suffering, disability, impairment, and the loss of the enjoyment

of life.

     Affirmed.




                               15                          A-5082-16T3
