Opinion
DOCKET NO. A-5945-09T1
11-10-2011
DENNIS J. KNITOWSKI, Plaintiff-Respondent/ Cross-Appellant, v. FRANK M. GUNDY, JR., Defendant, and STATE OF NEW JERSEY and JOHN GLOVER, Defendants-Appellants/ Cross-Respondents.
Rahat N. Babar, Deputy Attorney General, argued the cause for appellants/cross-respondents (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Babar, on the briefs). Ned I. Miltenberg of the Washington D.C. bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Stark & Stark, P.C. and Mr. Miltenberg, attorneys; Mr. Miltenberg, Anthony Z. Roisman of the Washington D.C. bar, admitted pro hac vice, and Bruce H. Stern, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Baxter and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0182-07.
Rahat N. Babar, Deputy Attorney General, argued the cause for appellants/cross-respondents (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Babar, on the briefs).
Ned I. Miltenberg of the Washington D.C. bar, admitted pro hac vice, argued the cause for respondent/cross-appellant (Stark & Stark, P.C. and Mr. Miltenberg, attorneys;
Mr. Miltenberg, Anthony Z. Roisman of the Washington D.C. bar, admitted pro hac vice, and Bruce H. Stern, on the briefs). PER CURIAM
Defendants State of New Jersey and John Glover appeal from a July 14, 2010 Law Division order that denied their motion for judgment notwithstanding the verdict (JNOV) and for a new trial. By denying their motion, the judge permitted the jury's $1,440,000 economic damages award to stand. We reject defendants' argument that plaintiff's expert rendered an inadmissible net opinion and that the judge erred by failing to exclude the expert's testimony.
On plaintiff's cross-appeal, we affirm the Law Division's January 22, 2010 order striking plaintiff's claim for non-economic damages, as we are satisfied that the judge correctly determined that plaintiff had not satisfied the standards established by N.J.S.A. 59:9-2(d) for an award of non-economic damages against a public entity.
I.
On June 5, 2005, defendant Frank Gundy, Jr., whose car had a flat tire, was instructed by defendant John Glover, who was an employee of the Department of Transportation, to remain with his vehicle in the grassy median while awaiting the arrival of the State Police. Ignoring Glover's instructions, Gundy abruptly pulled into the travel lanes of westbound Route 78 to reach the shoulder on the right side of the roadway. At the same time, plaintiff was traveling west on Route 78, and was forced to swerve to avoid Gundy's vehicle. As a result of swerving, plaintiff's vehicle collided with a tractor trailer.
Gundy settled with plaintiff prior to the commencement of trial. All references to "defendants" throughout this opinion shall signify the State of New Jersey and its employee Glover.
At the scene, while being treated by emergency medical personnel, plaintiff became unresponsive and suffered violent seizures for approximately two minutes. Plaintiff was taken from the scene by helicopter to Morristown Memorial Hospital, where he remained for two days, and was diagnosed with multiple facial fractures, traumatic brain injury and post-traumatic seizures. In the weeks following the collision, plaintiff complained of dizziness, insomnia, poor concentration and faulty memory.
On July 13, 2007, two years after the collision, plaintiff was evaluated by Edward A. Maitz, Ph. D., a licensed psychologist and diplomate in clinical neuropsychology. After reviewing plaintiff's medical records, and administering a battery of tests, Dr. Maitz found plaintiff to be "impaired" with regard to "immediate" and "delayed memory skills." According to Dr. Maitz, plaintiff also "demonstrated a tendency to become easily overwhelmed when presented with lengthy verbal information, which resulted in difficulty learning and remembering new information."
Plaintiff reported to Dr. Maitz that his problems affected him in his daily life. For example, he had difficulty recalling names, conversations or events; he would forget where he parked his car or why he went to the store and would write lists, notes or reminders to compensate; he sometimes became momentarily confused while driving, even in familiar places; and would often lose or misplace things and coped by "be[ing] very conscious of where he put[] things." At work, plaintiff "found that he would often ask his supervisor the same questions over and over again." Plaintiff continued to have difficulty with "word finding," and did not write as clearly or concisely as he had prior to the collision.
Dr. Maitz issued a report in which he found that plaintiff suffered a "moderate traumatic brain injury from which he has made a partial but incomplete recovery." Dr. Maitz continued:
[Plaintiff] has excellent verbal skills, which has allowed him to mask or cover up some of the cognitive impairment that he continues to experience. In addition, he has reasonably good problem-solving skills and has been able to independently develop some compensatory strategies that have allowed him to work around or compensate for his cognitive deficits. Nevertheless, it is clear that [plaintiff] is not functioning atDr. Maitz opined that plaintiff's brain impairment was the direct result of the June 2005 motor vehicle collision. Dr. Maitz's trial testimony, offered in the form of a de bene esse deposition, was consistent with the opinions he expressed in his earlier expert report.
his previous level of cognitive capability. . . . Fortunately for [plaintiff], he has been able to develop some effective coping strategies that have allowed him to be successful in his work despite the difficulty he has with concentration, memory, and communication.
Given the amount of time that has elapsed since [plaintiff's] injury, it is not expected that he will experience any additional improvement as a result of spontaneous recovery, and the areas of impairment that were evident on the neuropsychological evaluation are permanent in nature.
Three and one-half years after the collision, plaintiff was examined by Brian D. Greenwald, M.D., medical director of the Brain Injury Rehabilitation Program at Mount Sinai Hospital in New York. After reviewing various records, including Dr. Maitz's report, Dr. Greenwald opined that plaintiff had sustained a traumatic brain injury. He testified that plaintiff continued to suffer from impairments in his attention, concentration, memory and expressive language skills. He also testified that plaintiff's "processing speed" and "mathematical skills" had been adversely affected as the result of the traumatic brain injury he suffered in the collision.
As an example, Dr. Greenwald commented on the significance of plaintiff's report that he experienced difficulty calculating the tip at a restaurant, explaining that this particular impairment demonstrated the extent of plaintiff's brain injury. He testified:
[O]ne of the things that had happened to him which was shocking to him given his mathematical skills was that he couldn't calculate a tip at a restaurant, which for him seemed extremely unusual, considering he's a particularly high achiever in math and gotten 700 on the math scholastic aptitude test, and that his employment requires very high level mathematical skills.
He opined that all of the impairments and deficits suffered by plaintiff were permanent and would not remit with the passage of time. Dr. Greenwald further testified that plaintiff's brain injuries would cause him to experience cognitive decline faster than an individual who had not suffered a brain injury:
Over the years, as we all get older, you have heard of the senior moments. . . . [T]here is a cognitive decline . . . that just generally occurs as we get older. And people who have less cognitive reserve just in general, like someone who's had a traumatic brain injury . . . are going to see more of an [e]ffect as they get older. So those senior moments are going to come on earlier . . . .
At trial, plaintiff listed the problems the brain injury had caused in his work and personal life. He described difficulty with concentration, reading comprehension, reading retention, writing, sleeping and word recall. At work, he frequently lost his train of thought. He described his frustration when giving a presentation to a client or to a rating agency, stating "you know where you are, . . . you know who's there, you know what you are there to talk about, but you completely lose your train of thought. And after that happened . . . , you don't feel so good. And ultimately I think it impacts how you perform, it weighs on you." He also described his need to proofread everything he wrote because when writing quickly, his work "had blocks of text that just made no sense." Unlike in the past, when he was "always super fast at processing" math, he found after the collision that people at work "would approximate . . . much, much quicker than [he] could. . . ."
After describing the effects the collision had on his life, plaintiff explained the nature of his employment. Asked his profession, plaintiff responded, "I am an accountant by training and banker by profession," noting that he holds a Bachelor of Arts in accounting and a Masters in Business Administration. Licensed as a certified public accountant, plaintiff also holds other finance-related licenses and certifications.
From 1999 to June 1, 2005, plaintiff worked at JP Morgan in the field of "structured finance." On June 1, 2005, four days before the collision, plaintiff resigned his position at JP Morgan after accepting an offer from Deutsche Bank for a position as Director, which was to start on June 15, 2005.
Plaintiff worked at Deutsche Bank from the summer of 2005, until January 2009, when he resigned for family-related reasons. Plaintiff's work at Deutsche Bank involved trading asset-backed securities, and initially required him to travel back and forth between New York and Japan. In March 2006, he agreed to move to Japan as part of his employment with Deutsche Bank, and in 2008, was promoted to Managing Director.
Describing his income, plaintiff testified that in 2004, which was the last full year that he worked at JP Morgan, he earned $816,181. In 2005, plaintiff earned $502,715 from JP Morgan for the five months that he worked there prior to resigning on June 1. In 2006, 2007 and 2008, plaintiff earned $1.2 million, $1.3 million and $1.4 million, respectively. In 2009, plaintiff earned an income of approximately $1 million, which reflected one month's salary, stock options from prior years and a severance package.
Plaintiff's final witness was Dr. Anthony Gamboa, Jr., Ph. D., who testified as an expert in the field of "vocational economic analysis," which he described as:
a blending of two disciplines. One discipline is vocational in nature, the other discipline has to do with economics. In cases of partial disability, vocational experts are often times brought in to the court to define the kind of work a person can still perform as a person with a disability, what the person can expect to earn, and what the work—life would look like as an individual with a disability . . . . He would be followed by an economist who would come in and deal basically with the issue of the present value of the future loss of earning capacity. So a vocational economic assessment involves those two disciplines.
Prior to trial, defendants moved in limine to bar Gamboa's testimony on the grounds that Gamboa's opinion concerning the likelihood of plaintiff's worklife being shortened by his cognitive disability was a net opinion, as it was based on Census Bureau data that was so general as to be invalid for predicting plaintiff's future earning capacity. The judge rejected defendants' motion, concluding that Dr. Gamboa's testimony concerning plaintiff's reduced worklife expectancy was based upon an accepted methodology and reliable data. The judge further concluded that any possible shortcomings in Dr. Gamboa's opinion went to the weight of his opinion, not to its admissibility.
Dr. Gamboa's testimony began with a description of his educational background and employment history. He holds a Ph. D. in vocational counseling, and has completed "three separate rounds of postdoctoral study" in the fields of vocational rehabilitation counseling, economic assessment of earnings, and financial and cost accounting. During his postdoctoral work on the economic assessment of earnings, Dr. Gamboa, in partnership with an econometrist, "developed the first work-life expectancy tables for persons with disability," which estimate "the total number of years in [the] aggregate in that an individual is likely to be alive and employed."
From 1998 to the time of trial, Dr. Gamboa devoted his practice to vocational economic analysis, determining the effect of a disability on an individual's earning capacity, having conducted "thousands" of such analyses. He has also published "over a hundred articles, chapters in books, a couple of books, [and] papers presented at national conferences" on the subject of vocational economic assessment. He also received a Masters of Business Administration from the University of Chicago, which required him to master a considerable amount of economic material and develop a proficiency in statistical analysis.
At plaintiff's request, Dr. Gamboa performed a vocational economic assessment of plaintiff's future earning capacity. As part of that task, Dr. Gamboa interviewed plaintiff and reviewed various records, including plaintiff's medical records, the reports of Drs. Maitz and Greenwald, and plaintiff's W-2's. Based on a review of plaintiff's medical records, Dr. Gamboa concluded that plaintiff sustained a permanent cognitive impairment. After considering plaintiff's age, then 38, education and previous work experience, Dr. Gamboa calculated that had plaintiff not been injured, he would have earned $1,438,914 per year over the course of his remaining worklife. Dr. Gamboa utilized data from the United States Census Bureau's American Community Survey (ACS), which demonstrates that male workers of plaintiff's age with a professional degree and a cognitive disability, earn an average of 6.1% less per year and work an average of 7.1 fewer years than their non-disabled counterparts. Applying that data, Dr. Gamboa calculated plaintiff's total loss of earning capacity at $6.4 million stated in terms of present (2010) value.
At trial, Dr. Gamboa acknowledged that plaintiff was in the 99th percentile of wage earners both before and after the collision, and that "[h]e is earning more after the injury than he was earning before the injury. And that has been fairly consistent." When asked if he, nevertheless, believed that plaintiff had "sustained an earning capacity loss," Dr. Gamboa answered, "I do, very definitely." He explained:
[T]o be very candid, we don't know a lot about what effect disability has on earnings or work-life, but what we do know is this, persons with cognitive disability . . . . experience lower levels of employment than persons without any disabilities. And most of those reductions in employment come in the later years, into the fifties. . . . So what we know is persons with cognitive disability, they have a reduced work-life expectancy on average than persons with no disability at all. . . . One of the reasons is that we go through the aging process. . . . [W]hen you are interacting the aging process with a cognitive disability, the decline is much more precipitous. . . . In addition . . . [y]ou have persons with cognitive disability exiting the labor market or retiring earlier than their nondisabled counterparts.
Regarding the ACS data he had used to estimate the decrease in plaintiff's future earnings, Dr. Gamboa acknowledged that such data is not broken down by occupation:
That's not possible to do. It has to be done with a much wider grouping. It has to be done by a grouping that examines persons by, let's say gender, level of education attainment, and age, and examine the employment levels in that manner as opposed to examining employment levels for a specific occupation.
Dr. Gamboa also conceded that the category of cognitive disability he selected as the best "fit" for plaintiff contained data regarding people with more — as well as less — cognitive impairment than plaintiff. Dr. Gamboa insisted that "[e]very serious researcher in the country involved in disability research . . . use[s] the ACS data."
The State presented the expert witness testimony of David J. Gallina, M.D., a physician board-certified in psychiatry and neurology. Dr. Gallina testified that he performed a two-hour medical evaluation of plaintiff and reviewed various records, including plaintiff's medical records, answers to interrogatories, and photographs of the collision. Dr. Gallina testified that he could find no objective evidence of psychiatric impairment or cognitive difficulties.
At the close of plaintiff's case, the State moved for a directed verdict, and the judge reserved decision. At the close of all evidence, the State renewed its motion, and the court again reserved decision. On June 2, 2010, the jury returned a verdict finding all defendants negligent and further finding that their negligence proximately caused the accident and plaintiff's injuries. The jury attributed sixty percent negligence to Gundy, and forty percent negligence to the State and Glover. It awarded future economic loss damages of $3.6 million. Because Gundy had settled with plaintiff prior to trial, the judge molded the verdict to reflect the jury's finding that the State defendants were forty percent responsible for plaintiff's damages; and entered a judgment in plaintiff's favor in the amount of $1.44 million.
On June 10, 2010, the judge decided the two motions on which he had reserved decision during trial. In particular, he denied defendants' motion for a directed verdict brought pursuant to Rule 4:37-2(b) after plaintiff rested, as well as defendants' Rule 4:40-1 motion for judgment at the close of all the evidence. The judge concluded that the testimony offered by Dr. Gamboa satisfied the standards for admission of expert opinion testimony. In particular, the judge concluded that Dr. Gamboa was qualified by education, experience and training to offer expert testimony, that the opinion offered by Dr. Gamboa was sufficiently grounded in facts and scientific studies to warrant its admission, and that any perceived defects in his methodology or conclusions were a proper subject for cross-examination, but did not affect the admissibility of his testimony. For those reasons, the judge denied defendants' motions for judgment.
Subsequently, defendants moved for judgment notwithstanding the verdict, for a new trial, and for remittitur. The court denied those motions on July 14, 2010, for the same reasons he had denied defendants' earlier motions for judgment. On appeal, defendants raise a single claim:
BECAUSE [PLAINTIFF] DID NOT DEMONSTRATE THAT HE WOULD SUFFER A LOSS OF EARNING CAPACITY, THE TRIAL COURT IMPROPERLY ALLOWED [PLAINTIFF'S] EVIDENCE TO BE PRESENTED BEFORE A JURY.
II.
We apply a deferential standard of review to a party's claim that a trial judge wrongly decided to admit expert testimony. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). We review the judge's decision for an abuse of discretion. Ibid.
An injured person has the right to recover damages for diminished earning capacity from the tortfeasor, "provided there is sufficient proof both to establish that the injury will impair his future income and to quantify the lost income." Donelson v. DuPont Chambers Works, 206 N.J. 243, 258 (2011). To that end, "plaintiff must present evidence that there is (1) a reasonable probability that his injuries will impair his future earning capacity and (2) sufficient factual matter upon which the quantum of diminishment can reasonably be determined." Frugis v. Bracigliano, 177 N.J. 250, 285 (2003) (quoting Coll v. Sherry, 29 N.J. 166, 176 (1959)) (internal quotation marks omitted). Ordinarily, expert testimony is required to establish these elements. Ibid. (citing Lesniak v. Cnty. of Bergen, 117 N.J. 12, 31 (1989)).
Admission of expert testimony is governed by N.J.R.E. 702 and 703. Pomerantz, supra, 207 N.J. at 372. A trial court may permit opinion testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education" in situations where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." N.J.R.E. 702. The opinion must be based on "facts or data . . . perceived by or made known to the expert at or before the hearing"; the facts must be "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." N.J.R.E. 703.
We turn first to defendant's contention that Dr. Gamboa was not qualified by education to offer the expert testimony in question. Defendants argue:
[Dr. Gamboa's] opinion rested entirely on the interpretation of statistical data derived from Census information. As his testimony demonstrates, Dr. Gamboa's academic focus and education background primarily revolved around vocational counseling and rehabilitation with only some tangential experience with economics. In the absence of any significant educational emphasis on the field of economics and its interplay with statistics, Dr. Gamboa was not qualified to opine on these matters and his testimony should have been excluded.
His educational history focused on vocational counseling and rehabilitation, with no formal specializations in either economics or statistics.
As we have noted, a witness may qualify as an expert based on "knowledge, skill, experience, training or education." N.J.R.E. 702 (emphasis added). "The requirements for expert qualifications are in the disjunctive." Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (citation and internal quotation marks omitted).
Our courts adopt a liberal approach when assessing an expert witness's qualifications. State v. Jenewicz, 193 N.J. 440, 454 (2008).
[C]ourts allow the thinness and other vulnerabilities in an expert's background to be explored in cross-examination and avoid using such weaknesses as a reason to exclude a party's choice of expert witness to advance a claim or defense. That the strength of an individual's qualifications may be undermined through cross-examination is not a sound basis for precluding an expert from testifying as part of a [case], even if it likely will affect the weight that the jury will give the opinion. Rather, a court should simply be satisfied that the expert has a basis in knowledge, skill, education, training, or experience to be able to form an opinion that can aid the jury on a subject that is beyond its ken.The credibility of an expert and the weight to be accorded his or her testimony is a decision best left to the trier of fact, and any weaknesses in that testimony are best exposed by cross-examination. See State v. Frost, 242 N.J. Super. 601, 615 (App. Div.), certif. denied, 127 N.J. 321 (1990).
[Id. at 455 (citing State v. Kelly, 97 N.J. 178, 208 (1984)).]
Here, contrary to defendants' contentions, Judge Buchsbaum did not abuse his discretion by qualifying Dr. Gamboa as an expert witness in vocational economic analysis. While the majority of Dr. Gamboa's education was in vocational counseling, he participated in multiple postdoctoral studies involving economics and received his M.B.A. in 1993. Moreover, he developed the first work-life expectancy tables for persons with disability during one of these postdoctoral studies. For over twenty years, Dr. Gamboa has worked full-time performing vocational economic analysis, during which time he has performed thousands of such analyses and published on the subject of vocational economic assessment over 100 times. Dr. Gamboa has also been qualified to testify as an expert in this same field on numerous occasions. See Thakore v. Universal Mach. Co. of Pottstown, 670 F. Supp. 2d 705, 730 (N.D. Ill. 2009) (noting "[Dr.] Gamboa has been allowed to testify 35 times in the past two years"). As the court explained in Thakore:
While [D]r. Gamboa does not have a background in economics, he does have his
MBA from the University of Chicago and has completed postdoctoral study in economics and finance at various universities. He has training in the area in which he will be testifying. He is a Senior Analyst and CEO of a forensic vocational economic consulting company. He formerly worked at the United States Department of Health and Human Services as a Vocational Expert. In addition, [D]r. Gamboa's testimony will be based on his knowledge and experience working for the past twenty years using statistics to determine how disabilities will impact a person's ability to work. This is enough to qualify him as an expert for purposes of this case.
[Id. at 730.]
Contrary to defendants' arguments, N.J.R.E. 702 does not make education a prerequisite for qualifying a witness as an expert. Nor does the Rule require the "formal specializations in either economics or statistics" that defendants demand. Notably, defendants cite no statute, rule, opinion, treatise or other authority to support the proposition that a person needs "formal specializations" in a given field of education to qualify as an expert. To the contrary, the expertise of a witness may be derived strictly from his occupational experience. Correa v. Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984). As the Court succinctly stated more than a half century ago, "an expert may be qualified by study without practice or practice without study." State v. Smith, 21 N.J. 326, 334 (1956). See also Wilde v. O'Leary, 374 N.J. Super. 582, 585 n.1 (App. Div.), certif. denied, 183 N.J. 585 (2005) (rejecting the appellant's argument that the expert was required to have engaged in the business that was the subject of the litigation).
Ultimately, we need not decide whether Dr. Gamboa's work experience in conducting "thousands" of vocational analyses compensates for any asserted lack of educational background, as we are satisfied that he possessed both. In particular, Dr. Gamboa engaged in full-time postdoctoral studies in economic and statistical analysis, culminating in his receiving an M.B.A. in 1993 from one of the most acclaimed business schools in the country, the University of Chicago. Dr. Gamboa's studies at the University of Chicago School of Business are of particular relevance because, as he noted in his testimony, his M.B.A. studies included course work in economics and statistics. Additionally, he has worked for the past twenty years conducting "thousands" of the very same analyses that he performed here concerning plaintiff's future earning capacity. Judge Buchsbaum did not abuse his discretion when he concluded that Dr. Gamboa was qualified by experience, education and training to offer expert testimony in the field of vocational economic analysis. We reject defendants' arguments that Dr. Gamboa was not qualified to offer expert opinion.
III.
We turn next to defendants' argument that Judge Buchsbaum erred by permitting Dr. Gamboa to offer testimony that constituted a net opinion. As the Court observed in Pomerantz, supra, 207 N.J. at 372, "an expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible. . . . The admissibility rule has been aptly described as requiring that the expert 'give the why and wherefore' that supports the opinion, rather than a mere conclusion." (citations and internal quotation marks omitted).
However, as plaintiff correctly argues, expert opinion testimony is not inadmissible simply "because it fails to account for some particular condition or fact which the adversary considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989)).
Here, the trial court did not abuse its discretion in permitting Dr. Gamboa to testify. Dr. Gamboa wrote a detailed report and testified at length regarding not only his conclusions but also the reasons he reached those conclusions. In coming to his conclusions, Dr. Gamboa interviewed plaintiff, reviewed plaintiff's medical records and W-2's, and referenced ACS data matching as closely as possible to plaintiff's situation. Dr. Gamboa's testimony satisfied the Pomerantz standard.
Defendants' reliance on Haywood v. Harris, 414 N.J. Super. 204 (App. Div.), certif. denied, 204 N.J. 38 (2010), is misplaced. In Haywood, we upheld a trial court's decision to reduce the verdict from $75,000 to $27,878 because the plaintiff failed to present at trial sufficient evidence of future lost wages. Id. at 210, 215. However, in Haywood, unlike the present matter, the only evidence the plaintiff presented "as to the quantum of lost earnings" was plaintiff's W-2's and his own testimony that he earned less money after the accident. Id. at 214-15. He presented no expert testimony quantifying his future lost earnings. For those reasons, Haywood is distinguishable.
Here, the expert testimony from Dr. Gamboa was supported by facts and data concerning individuals of an educational background similar to plaintiff who had sustained a cognitive injury. The tables on which Dr. Gamboa relied are well-accepted, broadly-based census data that correlate the worklife expectancy of two similarly-situated groups of wage earners matching plaintiff's age, gender and level of education attained, the only distinction between the two groups being the absence or presence of a non-severe head injury. While it is true that some people within the ACS data may have sustained injuries greater than the injuries that plaintiff sustained, the ACS data also includes individuals who suffered a lesser injury. In light of Creanga, we reject defendants' contention that Dr. Gamboa's testimony was rendered inadmissible simply because the ACS data upon which he relied was not based on data that was identical to plaintiff's occupation and precise injury. Indeed, defendants' arguments more closely resemble the arguments that have been advanced by other parties and rejected by the Supreme Court:
According to plaintiff, an expert would be required to rely on a study that precisely mirrored the type of injury sustained by a similarly featured plaintiff before a court could admit the testimony of an expert who relied on such testing and related scientific literature as a basis for the opinion. That position is clearly inconsistent with existing law, however.Nearly fifty years earlier, the Court similarly observed:
rHisenaj v. Kuehner, 194 N.J. 6, 21 (2008) (citing Clark v. Safety-Kleen Corp., 179 N.J. 318, 338 (2004)).]
Some accommodation must be made between the inability to foresee what will eventuate in the future and the principle that a plaintiff may not bring successive actions to recover for the results of a tortious personal injury as they unfold. . . . If the prospective consequences may, in reasonable probability, be expected to flow from the past harm, plaintiff is entitled to be indemnified for them. The amount to beThe weight and credibility of the data upon which Dr. Gamboa relied are best challenged though traditional tools for testing the validity of expert testimony, such as cross-examination. See Thakore, supra, 670 F. Supp. 2d at 730 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S. Ct. 2786, 2798, 125 L. Ed. 2d 469, 484 (1993)) (holding that testimony by Dr. Gamboa, who relied on ACS tables in forming his opinion, was admissible as to the plaintiff's lost earning capacity). Any defects in his testimony therefore went to the weight of his opinion, not to its admissibility.
awarded must largely be left to the good judgment of the jury. [Coll v. Sherry, 29 N.J. 166, 174-75 (1959).]
As further support for their argument, defendants point to the judge's order barring plaintiff from proceeding with his claim for non-economic loss, which plaintiff described as the emotional pain and suffering that he would incur from being forced to prematurely shorten his worklife as a result of the accident. Defendants maintain that the expert opinion of Dr. Gamboa, which the judge permitted, was "merely . . . a disguised claim for [the very] pain and suffering" that the judge had already excluded. We disagree.
As plaintiff correctly argues, the fact that he unsuccessfully attempted to advance an entitlement to pain and suffering damages using the same injury does not negate his claim for economic damages. Kelly v. Cnty. of Monmouth, 380 N.J. Super. 552, 565 (App. Div. 2005). Dr. Gamboa's opinion was properly supported by statistical data; he explained why he had selected the particular ACS tables upon which he relied; and he incorporated considerable portions of plaintiff's medical records and the opinions of Drs. Maitz and Greenwald into the formation of his opinion. Unquestionably, the lengthy and thoughtful opinion offered by Dr. Gamboa explained the "why and wherefore," Pomerantz, supra, 207 N.J. at 372, of his opinion. We reject defendants' claim that Judge Buchsbaum erred when he refused to accept their contention that Dr. Gamboa's opinion was an inadmissible net opinion.
IV.
We turn to plaintiff's cross-appeal, in which he argues that the judge improperly dismissed his claim for non-economic damages. Specifically, he argues that the judge erred when he concluded that plaintiff did not satisfy the applicable damages threshold of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3 (Act). In granting defendants' motion for partial summary judgment, Judge Buchsbaum held that plaintiff had not satisfied the injury threshold established by N.J.S.A. 59:9-2(d), as applied by the Supreme Court in Knowles v. Mantua Township Soccer Ass'n, 176 N.J. 324, 330 (2003), Gilhooley v. County of Union, 164 N.J. 533, 541 (2000), and Brooks v. Odom, 150 N.J. 395, 403 (1997). The judge held that plaintiff had not sustained a permanent loss of a bodily function that was substantial. See Gilhooley, supra, 164 N.J. at 541. In reaching that conclusion, the judge reasoned:
Here the plaintiff's report from Dr. Maitz indicated he was "not functioning at his previous level of cognitive capability," and this was a permanent change due to the accident. However, the report also noted that plaintiff developed "effective coping strategies." Furthermore, the report does not demonstrate a substantial limitation on the plaintiff's activities. Although the plaintiff may suffer from cognitive problems, he still possesses overall concentration skills in the "average range." In addition it does not appear that his memory problems substantially impair his ability to perform his previous functions in contrast to the plaintiff in Knowles.
The plaintiff . . . described his injuries when he went to see Dr. Maitz as "trouble with computational matters and . . . trouble remembering things." These symptoms and Dr. Maitz's diagnosis do not indicate a substantial permanent loss of bodily function even if the findings are considered objective. A "moderate traumatic brain injury" followed by partial recovery, and compensating strategies that enable plaintiff to work . . . does not vault the substantial permanent loss of bod[ily] function threshold. The [c]ourt has reviewed, and re-reviewed the evidence . . . . It cannot find that the lists of items set forth therein . . . singly or in combination . . . constitute a
substantial loss of functioning. While [plaintiff] may have some impairment, neither plaintiff nor his doctor ever said he can no longer do what he formerly did. His job loss had nothing to do with his condition and he has a new job. Even Dr. Gamboa's testimony of a 6.1% decrease in earning capacity suggests impairment, but not the substantial impact on functioning demanded by the Tort Claims Act.
In reviewing the judge's grant of partial summary judgment to defendants, we recognize that it is not our function to weigh the evidence and determine the truth of the matter, "but only to determine whether there is such a dispute. It is only when the evidence is so one-sided that a judge may decide that one party should prevail as a matter of law" that summary judgment should be granted. Gilhooley, supra, 164 N.J. at 544. In reviewing the grant of summary judgment, we apply the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 3 07 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In relevant part, the Act provides:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3,600.00.
[N.J.S.A. 59:9-2(d).]
This limitation "reflects the policy judgment that in view of the economic burdens presently facing public entities a claimant should not be reimbursed for non-objective types of damages, such as pain and suffering, except in aggravated circumstances[]. . . ." Gilhooley, supra, 164 N.J. at 539 (quoting Harry A. Margolis and Robert Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:9-2 (Gann 2000)).
To meet the threshold established by N.J.S.A. 59:9-2(d), plaintiff must show "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Id. at 541. The Act does not specify what constitutes a substantial loss of bodily function. "Each case is fact sensitive." Ibid. Also, "there is no per se rule that would preclude finding a permanent and substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and at home, irrespective of the nature or degree of the impairment." Ponte v. Overeem, 171 N.J. 46, 53 (2002).
All three of the opinions relied upon by the judge concern orthopedic injury. Gilhooley, supra, 164 N.J. at 536-37 (fractured knee requiring surgery, resulting in extensive scarring, pins and wires, satisfied N.J.S.A. 59:9-2(d)); Knowles, supra, 176 N.J. at 333 (lack of feeling in the plaintiff's left leg and the inability to stand, sit or walk comfortably for a substantial period of time, engage in athletics, and complete household chores were sufficient to satisfy the Act); Brooks, supra, 150 N.J. at 406 (finding that the plaintiff's injuries did not satisfy the threshold established by N.J.S.A. 59:9-2(d) where although the plaintiff experienced pain and permanent limitation of motion in her neck and back, she could nonetheless "function both in her employment and as a homemaker").
The orthopedic injuries analyzed in Gilhooley, Knowles and Brooks do not neatly fit the cognitive impairments experienced by plaintiff. Nonetheless, certain broad principles can be distilled from those opinions. Notably, we are obliged to focus our attention on the extent of the injury. Although the loss of a bodily function need not be "total," Brooks, supra, 150 N.J. at 406, a plaintiff may not recover damages for pain and suffering against a public entity unless the loss in question is "substantial," ibid. Stated differently, even if a plaintiff's injuries are "permanent," the Act's statutory threshold is not satisfied unless the impairment is substantial. Ibid.
Here, we agree with Judge Buchsbaum's well-reasoned opinion that although plaintiff cannot perform some of life's tasks as readily as he was able to accomplish them before the collision, he is nonetheless able to function quite well in his chosen profession and in the tasks of his everyday life. It bears repeating that plaintiff has been able to function, and has functioned very well in the demanding and intense world of securities trading, whereupon, his income has climbed in the years since the collision. While it is true that he may continue to experience difficulty selecting the correct word, calculating a tip at a restaurant and may sometimes lose his train of thought, plaintiff continues to function at an extremely high level. His impairment does not satisfy the requirement of the "substantial" loss required by Gilhooley, Knowles and Brooks. We affirm Judge Buchsbaum's order barring plaintiff from proceeding with his claim for non-economic loss. Affirmed on both the appeal and the cross-appeal.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION