                                                       Supreme Court

                                                       No. 2012-59-Appeal.
                                                       (PC 06-650)


       Donna Rose                   :

            v.                      :

Christopher Cariello et al.         :




      NOTICE: This opinion is subject to formal revision before
      publication in the Rhode Island Reporter. Readers are requested to
      notify the Opinion Analyst, Supreme Court of Rhode Island,
      250 Benefit Street, Providence, Rhode Island 02903, at Telephone
      222-3258 of any typographical or other formal errors in order that
      corrections may be made before the opinion is published.
                                                                   Supreme Court

                                                                   No. 2012-59-Appeal.
                                                                   (PC 06-650)


                Donna Rose                     :

                     v.                        :

         Christopher Cariello et al.           :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court.        The defendants, Christopher Cariello and James

Cariello (defendants or Cariellos), appeal from a judgment of the Superior Court granting the

plaintiff’s motion for a new trial and/or additur, after a jury trial in this negligence action. This

case came before the Supreme Court for oral argument on January 23, 2014, pursuant to an order

directing the parties to appear and show cause why the issues raised in this appeal should not be

summarily decided. After carefully considering the written and oral submissions of the parties,

we are satisfied that this appeal may be resolved without further briefing or argument. For the

reasons set forth in this opinion, we affirm the judgment of the Superior Court.

                                                   I

                                         Facts and Travel

       This case arises out of an automobile accident that occurred on September 30, 2003, near

the former exit 19 1 on Route 95 in Providence, Rhode Island.




1
 The roads and the highway exit in that area have since been changed and no longer reflect the
configuration of roads at the time of the accident.


                                              -1-
       At approximately 10:30 a.m., plaintiff Donna Rose was driving south on Route 95 in the

vicinity of the Rhode Island Hospital exit. She was slowing down in order to change lanes 2

when her car was struck from behind by a car operated by defendant Christopher Cariello. 3 The

plaintiff testified that, after being struck, “[her] car lunged forward” and that “[her] head went

way back.”

       Immediately after the accident, plaintiff was brought to the emergency room of Rhode

Island Hospital but was released to return to her home later that day. A few days after, she went

to the emergency room of Memorial Hospital in Pawtucket, Rhode Island, because of pain in her

back and legs. The plaintiff’s back pain persisted without improvement, leading her to consult a

series of doctors and chiropractors in the years following the accident. 4 The plaintiff underwent

two surgical procedures on her spine, the first in April 2005 and the second in March 2008.

       The plaintiff filed the instant suit on February 2, 2006. A jury trial was held in the

Providence County Superior Court between October 19 and 25, 2011. At trial, state police

officer Simon Liu, who investigated the accident, testified that the accident occurred when

defendant’s vehicle struck plaintiff’s vehicle from the rear while traveling in the right lane of

Route 95. The plaintiff then testified as to the circumstances of the accident. She explained that

she “was in the right most [sic] lane of the * * * two lanes that were through traffic,” not

counting the exit lanes, when the accident occurred.




2
  There is some dispute as to which lane the accident occurred in, as will be discussed hereafter.
3
  The vehicle was registered to James Cariello, Christopher’s father, but it was used by
Christopher, with his father’s permission, as Christopher’s primary vehicle.
4
  The plaintiff’s extensive medical records from her ongoing treatment were submitted into
evidence at trial as full exhibits.


                                             -2-
          She testified that, prior to the accident, she had been largely self-sufficient, able to do her

own shopping, house-cleaning, and laundry, as well as working full-time in a mailroom. 5 She

explained that, after the accident, she was no longer able to be self-sufficient and was not able to

return to work because of the pain. Kevin Cordeiro, a longtime friend of plaintiff’s, corroborated

plaintiff’s testimony, averring that, before the accident, plaintiff had been an active person but

that now she was unable to perform everyday tasks, could no longer drive, and was in pain. The

plaintiff’s sister, Linda Shippee, also testified that “she [plaintiff] can’t walk and exercise. She

used to go shopping more. She used to get out more.” The plaintiff’s brother-in-law, Willie

Detonnayo, summarized plaintiff’s life after the accident as being “helpless and hopeless.” 6

          In addition, plaintiff submitted the testimony of two expert witnesses. The first, Dr.

Allan Feldman, an economist, testified as to plaintiff’s economic loss as a result of her injury.

He estimated that plaintiff’s economic losses, assuming part-time employment, amounted to

$99,000 and, if full-time employment were assumed, would be $284,000.

          The plaintiff’s second expert witness, Dr. Edward Feldmann, a neurologist, testified as to

plaintiff’s injuries. He stated that he reviewed plaintiff’s medical records and also examined her

professionally on April 30, 2011. He summarized plaintiff’s medical history, noting that she had

no history of lower back pain prior to the accident in 2003 and that her back pain, as a result of

damage to a disc of her spine, prevented her from working. He further stated that her medical

records revealed that plaintiff had degenerative disc disease, which he characterized as being

common to the general population and often asymptomatic, and which likely preexisted the

accident. Doctor Edward Feldmann also explained that asymptomatic degenerative disc disease

could be made symptomatic as a result of trauma. He diagnosed plaintiff as suffering from an


5
    The plaintiff has been legally deaf since birth.
6
    John Birchall, an automobile appraiser, also testified on behalf of plaintiff.


                                                 -3-
injury to the spinal disc and nerve roots, a condition called radiculopathy, as well as from

lumbosacral disc disease. He opined, to a reasonable degree of medical certainty, that the injury

was caused by the accident in September 2003. He also concluded it to be more likely than not

that plaintiff’s injury was permanent and that it would be unlikely that plaintiff would ever be

able to return to work.

       The plaintiff also submitted into evidence her extensive medical records as well as

affidavits from four medical professionals all of whom had provided medical services to her in

the years following the accident. Each of the affiants stated that plaintiff’s various medical

treatments were necessary as a result of the September 2003 accident.

       The defendant, Christopher Cariello, testified that he was merging onto the on-ramp

when he saw plaintiff “driving * * * in the right lane erratically, slowly, not following along at

50 miles an hour with traffic * * *.” He stated that his speed at impact was about ten miles per

hour and that his speed on the on-ramp was twenty miles per hour.

       The defendants then offered the expert testimony of Dr. Thomas Morgan, a neurologist.

Doctor Morgan had not examined plaintiff himself but he conducted a medical records review, as

well as a review of the accident reports, and rendered his opinion as to her medical condition.

He agreed that plaintiff had a preexisting “moderate advanced degenerative disc disease.” He

opined that plaintiff suffered pulled neck muscles as a result of the accident, which he

characterized as “a typical whiplash scenario” from a rear-end motor vehicle accident. He stated

that generally whiplash injuries are minor and have an average healing time of a few days to a

few weeks, as long as there is no neurological damage associated with them. He testified that his

review of the medical records and his experience with rear-end motor vehicle accidents do not

support a finding that the accident aggravated plaintiff’s preexisting degenerative disc disease.




                                             -4-
Doctor Morgan did agree that an asymptomatic condition could be rendered symptomatic as a

result of trauma but disagreed with Dr. Edward Feldmann’s testimony and the opinions of

plaintiff’s treating physicians that the accident caused plaintiff’s back problems.

        After the parties rested, the jury returned a verdict for plaintiff, awarding damages to her

in the amount of $193,584 and finding that defendant was 75 percent at fault in causing the

accident. Judgment was entered to that effect on October 25, 2011.

        On October 27, 2011, plaintiff filed a motion for a new trial and/or additur on the grounds

that the verdict was against the weight of the evidence and that the jury’s award of damages

failed to adequately compensate plaintiff for her injuries so as to shock the conscience. After

oral argument on November 15, 2011, the trial justice issued a written decision on January 26,

2012.

        In his decision, he summarized the evidence at trial, noting that the trial took place eight

years after the accident occurred. The trial justice recognized the discrepancy in the testimony as

to the lane in which the accident took place but stated that he was “inclined to believe that this

[discrepancy] resulted from the lengthy span of time between the day of the accident and the

trial” and further, that “there might have been confusion in the witnesses’ recollection regarding

a nearby exit lane and whether or not to count this as a travelling lane.” Notwithstanding those

inconsistencies, the trial justice found plaintiff’s testimony to be credible. The trial justice also

stated that the apportionment of negligence between the parties was not against the

preponderance of the evidence and would, therefore, not be disturbed.

        The trial justice went on to review the conflicting expert testimony of Dr. Edward

Feldmann and Dr. Morgan both as to plaintiff’s medical condition and whether the accident had

caused it.   He also considered the evidence of plaintiff’s primary treating physician, Dr.




                                              -5-
Frederick Harrington, although he noted that Dr. Harrington had not given an opinion as to the

causation of plaintiff’s injuries.

        The trial justice found that “[t]he jury’s award of $193,584 shock[ed] the conscience of

this [c]ourt in its failure to respond to the merits of this issue and in its failure to administer

substantial justice.” He noted that the award failed to “cover [p]laintiff’s medical bills, lost

wages or any pain and suffering.” 7      The trial justice went on to suggest reasons for the

inadequacy of the award, finding it likely that either the jury erroneously considered plaintiff’s

health insurance coverage or that the jury disregarded the testimony as to the potential for

exacerbation of a preexisting condition and, consequently, undervalued the severity of the

injuries sustained by plaintiff. Accordingly, he granted an additur of $428,416 to the jury award

for a total award of $622,000 and alternatively, if defendants rejected the additur, granted

plaintiff’s motion for a new trial on the issue of damages only. An order to that effect entered on

February 10, 2012.

        The defendants filed a notice of appeal to this Court on February 10, 2012, and thereafter,

on February 23, 2012, rejected the additur granted by the Superior Court. 8 Because defendants

rejected the additur, it is not an issue on appeal before this Court. Accordingly, we will address

only defendants’ appeal of the trial justice’s grant of the motion for a new trial on the issue of

damages.




7
 The plaintiff’s total medical expenses amounted to $269,000.
8
 The defendants filed a motion to stay the judgment of the Superior Court with this Court on
February 21, 2012. This Court granted the stay conditioned upon the filing of a supersedeas
bond in the Superior Court.


                                             -6-
                                                 II

                                       Standard of Review

       Our standard for reviewing a trial justice’s decision in a motion for a new trial is well

settled. “A trial justice’s role in considering a motion for a new trial is that of a superjuror, who

must weigh the evidence and assess the credibility of the witnesses.” Gomes v. Rosario, 79 A.3d

1262, 1265 (R.I. 2013) (quoting McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012)). He or she

must exercise his or her independent judgment in considering all the material evidence in the

case, pass on the weight of the evidence and the credibility of the witnesses, and decide whether

the jury verdict responds to the evidence presented and does justice between the parties. See id.

“If the trial justice is persuaded that ‘the verdict is wrong because it fails to respond truly to the

merits and to administer substantial justice between the parties or is against the fair

preponderance of the evidence, he [or she] should set aside the verdict and order a new trial.’”

McGarry, 47 A.3d at 280 (quoting Morgera v. Hanover Insurance Co., 655 A.2d 698, 698 (R.I.

1995) (mem.)). “If the trial justice has carried out the duties required by Rule 59 of the Superior

Court Rules of Civil Procedure and our decided cases, his or her decision is accorded great

weight by this Court and will not be disturbed unless the plaintiff ‘can show that the trial justice

overlooked or misconceived material and relevant evidence or was otherwise clearly wrong.’”

Gomes, 79 A.3d at 1265 (quoting McGarry, 47 A.3d at 280).

       “Although the fixing of damages is normally a function of the jury, it may be rejected by

a trial justice on a motion for a new trial.” Bonn v. Pepin, 11 A.3d 76, 78 (R.I. 2011) (quoting

Reccko v. Criss Cadillac Co., 610 A.2d 542, 545-46 (R.I. 1992)). “A trial justice may disregard

an award of damages * * * ‘only if the award shocks the conscience or indicates that the jury was

influenced by passion or prejudice or if the award demonstrates that the jury proceeded from a




                                              -7-
clearly erroneous basis in assessing the fair amount of compensation to which a party is

entitled.’” Murray v. Bromley, 945 A.2d 330, 333-34 (R.I. 2008) (quoting English v. Green, 787

A.2d 1146, 1150 (R.I. 2001)).

                                                III

                                            Discussion

       On appeal, defendants argue that the trial justice erroneously substituted his own

judgment for that of the jury in considering the facts of the case. The defendants emphasize the

discrepancies in the testimony as to which lane the accident occurred in, arguing that the jury’s

verdict finding plaintiff to be 25 percent at fault could only be explained by the jury’s not finding

plaintiff to be credible. The defendants also assert that plaintiff’s medical records, in particular

those of her primary treating physician, Dr. Harrington, contradict plaintiff’s own testimony as to

her medical condition.

       We begin by noting, as defendants acknowledge, that the trial justice accepted the

apportionment of liability between the parties. The issue of liability is, accordingly, not before

this Court. To the extent that defendants rely on the discrepancies in the testimonies as to which

lane the accident occurred in to challenge the determination of plaintiff’s overall credibility, we

will briefly address defendants’ argument. We note that the trial justice explicitly recognized

these inconsistencies but ultimately concluded that plaintiff was a credible witness. We do not

ordinarily second-guess a trial justice’s credibility determination of a witness’s testimony. This

Court is limited to reading from an inanimate transcript of the record. As we have stated, “it is

the trial justice who has the opportunity to observe the witnesses as they testify and therefore is

in a better position to weigh the evidence and to pass upon the credibility of the witnesses * * *.”




                                              -8-
Harvard Pilgrim Health Care of New England, Inc. v. Gelati, 865 A.2d 1028, 1034 (R.I. 2004)

(quoting Lembo v. Lembo, 677 A.2d 414, 417 (R.I. 1996)).

       The defendants also assert that the trial justice improperly substituted his own judgment

for that of the jury. This argument overlooks the fact that it is the explicit duty of the trial justice

in deciding a motion for a new trial to “exercise his or her independent judgment in passing upon

the weight of the evidence and the credibility of the witnesses.” Connor v. Schlemmer, 996 A.2d

98, 114 (R.I. 2010) (quoting Seddon v. Duke, 884 A.2d 413, 413 (R.I. 2005) (mem.)). In his

decision, the trial justice summarized the expert testimony and carefully considered the evidence

of Dr. Harrington as to plaintiff’s surgeries and the fact that Dr. Harrington characterized

plaintiff’s symptoms when she returned to him for treatment after the first surgery as being

“debilitating, unremitting and severe” pain. We are of the opinion that the trial justice more than

adequately set forth sufficient record evidence to support his independent judgment.

       The defendants make much of some discrepancies between plaintiff’s testimony at trial

about her physical condition and the evidence in plaintiff’s medical records, in particular the fact

that Dr. Harrington’s report on plaintiff’s progress after her first surgery was that she had very

little pain and an excellent range of motion while plaintiff testified that she was still in pain after

the surgery. We are not persuaded by this argument. We note that her testimony that she

obtained no relief from her first surgery appears to be supported by the fact that plaintiff’s

medical records clearly establish that she needed and underwent a second back surgery within

three years of her first one.     The trial justice deemed plaintiff’s testimony to be credible.

Moreover, the trial justice explicitly clarified that Dr. Harrington’s report on plaintiff’s progress

was for the period “about or around the time of the surgery.” In any event, we have made it clear

that “the trial justice need not engage in an exhaustive review and analysis of all of the evidence




                                               -9-
and testimony presented at trial * * * [but] need only make reference to such facts disclosed by

the testimony as have motivated his or her conclusion.”           Bonn, 11 A.3d at 78 (quoting

Bourdon’s, Inc. v. Ecin Industries, Inc., 704 A.2d 747, 758 (R.I. 1997) (emphasis in original)).

Our review of the record leads us to the conclusion that the trial justice engaged in the proper

analysis in passing on the weight of the evidence and we agree with his conclusions.

       The defendants finally contend that “[t]he mere fact that the jury award is less than the

plaintiff’s total claimed damages is * * * an insufficient and incorrect reason to grant an [a]dditur

or a [m]otion [f]or [n]ew [t]rial.” The defendants also ascribe error to the trial justice’s surmise

regarding the basis of the inadequacy of the jury award.

       We will accord great deference to a trial justice’s finding that a jury’s award of damages

“shocks the conscience of the court.” See English, 787 A.2d at 1150. Here, the trial justice

stated that the award was “inadequate,” explaining that it “does not cover [p]laintiff’s medical

bills, lost wages or any pain and suffering.” Although the trial justice did not expressly discredit

the expert testimony of Dr. Morgan, his findings and discussion of the damage award make it

clear that he did not accept Dr. Morgan’s assessment of plaintiff’s injuries and the cause of

plaintiff’s ongoing back problems. We note that the trial justice specifically added that Dr.

Morgan acknowledged that a preexisting condition can be exacerbated due to trauma inflicted by

an accident and did not completely discount that possibility. We cannot conclude based on our

review of the evidence that the trial justice was clearly wrong in his determination that the jury’s

award of damages was inadequate. Accordingly, we will not disturb his decision on review.

       We are further satisfied that the trial justice’s surmises as to the basis of the inadequacy

of the award were not error. Having already concluded that the jury award was so inadequate as

to shock the conscience of the court, it was within his discretion to grant a new trial as to




                                             - 10 -
damages for that reason. He was not required to further support his decision. While he might

have refrained from such suppositions, we cannot and will not overturn his decision based on

what amounted to mere dicta.

                                                 IV

                                            Conclusion

       For the foregoing reasons, the judgment of the Superior Court is affirmed. The record in

this case shall be returned to that tribunal for a new trial on the issue of damages.




                                              - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Donna Rose v. Christopher Cariello et al.

CASE NO:              No. 2012-59-Appeal.
                      (PC 06-650)

COURT:                Supreme Court

DATE OPINION FILED: March 4, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Brian P. Stern

ATTORNEYS ON APPEAL:

                      For Plaintiff: Lauren E. Jones, Esq.

                      For Defendants: Peter A. Clarkin, Esq.
