Opinion
DOCKET NO. A-4892-12T3
09-30-2015
TERESITA UNGARIAN, Plaintiff-Appellant, v. MYRA J. JACOBSON, Defendant-Respondent.
Angela M. Roper argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Kenneth S. Thyne, of counsel and on the brief; Erica A. Barker, on the brief). Floyd F. Lombardi argued the cause for respondent (DeSevo Lombardi, P.A., attorneys; Mr. Lombardi, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3375-10. Angela M. Roper argued the cause for appellant (Roper & Twardowsky, LLC, attorneys; Kenneth S. Thyne, of counsel and on the brief; Erica A. Barker, on the brief). Floyd F. Lombardi argued the cause for respondent (DeSevo Lombardi, P.A., attorneys; Mr. Lombardi, of counsel and on the brief). The opinion of the court was delivered by SIMONELLI, J.A.D.
Plaintiff Teresita Ungarian was injured when she was struck by a vehicle operated by defendant Myra J. Jacobson as she was crossing the street in a pedestrian crosswalk. Defendant admitted liability, and the trial was limited to the issues of contributory negligence and damages. The jury determined that plaintiff was not negligent, and awarded her $244,000, which was below defendant's $350,000 offer of judgment.
Plaintiff appeals, contending that: (1) the verdict was against the weight of the evidence; (2) the trial judge erred in his evidentiary rulings and jury instructions; (3) the trial judge erred in denying plaintiff's motion for a new trial, or alternatively, additur and granting defendant's motion for fees pursuant to the offer-of-judgment rule, Rule 4:58-1 to -3; and (4) defense counsel made improper comments requiring a new trial on damages. For the following reasons, we affirm.
I.
We derive the following facts from the record. The accident occurred on July 8, 2008. Plaintiff was hospitalized for four days following the accident and was treated for a concussion, thoracic contusion, nausea, vomiting, dizziness and headaches. Her hospital records showed that all of her objective test results were negative for any abnormality or injury and that she was neurologically intact. The records also showed that plaintiff was discharged with a diagnosis of neck and low back strain, concussion, contact dermatitis and intractable headaches. The records did not show that she suffered any other injury or blackouts. Nonetheless, plaintiff claimed that as a result of the accident, she suffered from blackouts, headaches and permanent injuries to her right wrist, lower back, neck, and both shoulders and knees, and could no longer drive or work. She was treated post-accident by a neurologist, Nabil Yazgi, M.D., a psychiatrist, Roberto Sozzi, M.D., and an orthopedist, Sammy I. Masri, M.D., all of whom testified at the trial.
Plaintiff had a chest x-ray, CT scans of her head, cervical spine, chest, abdomen and pelvis, and an MRI of her brain.
Dr. Yazgi testified that he saw plaintiff shortly after the accident and she had no medical history, except for gallbladder removal and an EMG/NCS test that he performed five months prior to the accident, which he believed was related to plaintiff's complaint of arm pain. He testified that after the accident, plaintiff complained of headaches, neck pain, pain in both arms with numbness and tingling, right shoulder pain, mid- and low-back pain, pain in both legs with numbness, dizziness, and blackouts. He testified that he treated plaintiff with medication and injections, referred her for physical therapy and chiropractic treatment, and that throughout his treatment, plaintiff continued to complain of daily headaches, blackouts and short-term memory loss and said she was unable to drive due to the blackouts.
Dr. Yazgi testified that he diagnosed plaintiff with post-traumatic stress syndrome, post-traumatic headaches, recurrent syncope episodes, and neck and back pain. He acknowledged that in his expert report, he stated that "[t]hese diagnoses were supported by plaintiff's history, physical findings, and subjective and objective findings, and lack of symptoms prior to the accident." (Emphasis added). The doctor opined that all of plaintiff's injuries were causally related to the accident and were permanent.
Syncope is defined as "loss of consciousness resulting from insufficient blood flow to the brain." Merriam-Webster Collegiate Dictionary (10th ed. 1997).
On cross-examination, defense counsel produced Dr. Yazgi's pre-accident office notes from January to March 2008 flatly contradicted his testimony. The notes showed that prior to the accident, plaintiff complained she had: headaches since approximately October 2007, for which she sought treatment in an emergency room; migraines; numbness, tingling and pain on the left side of her face, left shoulder pain; right shoulder pain radiating down her arm; left arm pain and weakness; neck pain radiating down to her mid-back; and lower back pain. The notes also showed that throughout her treatment plaintiff complained that: her pain intensity was eight on a scale of one to ten, with the worst pain reaching a ten; lifting, bending forward, moving her back, and twisting, moving her neck aggravated her pain; the pain was "nagging, sharp, cramping, stinging" and "pins and needles;" her neck and left arm pain had worsened and prevented her from doing her work; her right shoulder pain had worsened; and she was unable to hold a cup or lift anything with her right hand. The notes further showed that Dr. Yazgi preliminarily diagnosed plaintiff with "disk displacement cervical," "nerve root injury cervical," and "pain in spine, cervicalgia." The doctor testified that he did not recall treating plaintiff prior to the accident.
In addition to admitting the content of his office notes, Dr. Yazgi admitted that on February 5, 2008, five months before the accident, he wrote to plaintiff's employer that she was under his professional care and could not work from January 23, 2008 through February 19, 2008. He admitted that when he wrote his expert report stating that plaintiff had no pre-accident symptoms, he was unaware of her pre-accident complaints and that he had treated her. He also admitted that his post-accident office notes showed that plaintiff had the same complaints and descriptions of pain and aggravating factors as she had pre-accident, and that plaintiff's two post-accident EEGs were normal, meaning she had no seizure disorder or organic brain problem that would cause her blackouts.
Dr. Sozzi testified that when he first saw plaintiff on August 6, 2008, she complained of daily headaches with dizzy spells, blurred vision, and memory lapses, among other complaints. He diagnosed her with post-traumatic stress disorder, major depressive disorder, recurrent conversion disorder with seizures or convulsions, occipital head contusion with severe concussions and post-concussion symptoms. He opined that plaintiff's psychiatric injuries were permanent, prevented her from working in the future, and required ongoing psychiatric supervision on a monthly basis.
On cross-examination, Dr. Sozzi testified that he reviewed the report of plaintiff's lumbar MRI, not the actual MRI films, and concluded she had disc herniations. However, plaintiff did not claim this type of injury and the MRI report from the radiologist who had read the MRI films did not mention any herniations. The doctor acknowledged that by including these herniations in his report, he was suggesting that they added to all the other woes plaintiff had. He also admitted that plaintiff's EEGs were normal and his office notes incorrectly stated that the EEGs confirmed she had an underlying seizure disorder. He further admitted that plaintiff's complaints to him were self-reported, and he only discussed the matter with Dr. Yazgi once or twice during his four and one-half years of treating plaintiff.
Dr. Sozzi was also confronted on cross-examination about plaintiff's complaints of blackouts. Plaintiff testified that on October 25, 2010, she fell down a flight of stairs at her home as a result of a blackout, lost consciousness, and was taken by ambulance to the hospital. However, the hospital records showed that plaintiff denied any loss of consciousness or having fallen in the "last six months," and said there were "no previous episodes," and that this was a "new problem" that she never had before. Dr. Sozzi was unable to reconcile those hospital records with his office notes showing plaintiff's many complaints of blackouts sometimes occurring two to three times a week during the months prior and subsequent to October 25, 2010.
Dr. Masri testified that he treated plaintiff post-accident for injuries to her right shoulder, right wrist, both knees and lower back. He referred plaintiff for several MRIs, which revealed that plaintiff had: torn scapholunate ligaments in her right wrist; a tear of the lateral meniscus in her left knee; a disc bulge at the L5-S1 level; and a labral tear of the right shoulder. Plaintiff also had an EMG/NCS test, which revealed a pinched nerve along the left side of her lower back at the L5 level. Dr. Masri testified that plaintiff developed chondromalacia in her right knee as a result of compensating for the injury to her left knee, and she had surgery on her right shoulder and left knee, but continued to have pain in her shoulder and significant discomfort in her knee. He opined that all of plaintiff's injuries were causally related to the accident and were permanent.
Dr. Masri testified via videotape. --------
On cross-examination, Dr. Masri admitted that in forming his opinions, he relied solely on plaintiff's self-reporting, did not review any of her pre- or post-accident medical records, and was unaware of her pre-accident complaints or treatment with Dr. Yazgi for conditions similar to those she claimed were caused by the accident. The doctor testified that this information would not change his opinions.
Plaintiff fared no better on cross-examination. She acknowledged that she had testified at her deposition that prior to the accident, she never treated with Dr. Yazgi and never complained of headaches or pain in her lower back, right wrist, knees or right shoulder. She was then confronted with Dr. Yazgi's office notes, which flatly contradicted her deposition testimony. She was also confronted with medical records from another doctor, which showed that she began treating with that doctor six months before the accident for neck pain that radiated to her shoulder and weakness in her left upper arm. Plaintiff then testified that she did recall treating with Dr. Yazgi, she did not know the second doctor and she could not recall any pre-accident treatment with the second doctor.
Regarding her injuries, plaintiff testified that she received injections from Dr. Yazgi in her neck and lower back that did not alleviate her pain; her left knee was not much better despite the surgery, was still swollen, and she was still receiving physical therapy for the left knee; and that after surgery on her right shoulder, she still had trouble raising her arm, could not sleep on her right side, could not carry anything heavy with her right arm, and had numbness. She testified she lost strength in her right wrist, could not write for a long period of time, could not carry anything heavy, and had difficulty chopping things while cooking. She testified about problems with her right knee and said she was receiving injections in that knee. She also testified that she was still receiving physical therapy for her left knee and was still receiving treatment for her right shoulder, neck and head injuries.
Regarding the effects on her daily life, plaintiff testified she suffered from blackouts, anxiety and memory loss, she could not perform everyday chores or help her children, and her blackouts prevented her from driving. She also testified she can no longer work.
On cross-examination, plaintiff admitted that all but one of her blackouts occurred at home, and that at her deposition she testified that "no one in the entire world," except her children, witnessed a blackout episode. She also admitted that she testified at her deposition that she had a valid driver's license.
Plaintiff testified at her deposition that she could not drive due to her blackouts. On cross-examination at trial, defense counsel confronted her with her driver's abstract, which showed that her driving privileges in New Jersey had been suspended from about one month after the accident until July 2013. Plaintiff testified she was unaware of the suspension at the time of her deposition, but did not dispute that her driving privileges were suspended between August 2008 and July 2013.
Plaintiff's forensic economic expert testified about her past and future lost wages and past and future lost household services. He opined that plaintiff's total loss as a result of the accident was $783,460.
Defendant presented three medical experts: Eric Fremed, M.D., a neurologist; David Gallina, M.D., a psychiatrist; and Irwin Cohen, M.D., an orthopedic surgeon. Dr. Fremed testified that Dr. Sozzi diagnosed plaintiff with pseudoseizures, meaning fake, not real, seizures that did not constitute a neurologic event, and this condition was "imminently" treatable and curable and was not a permanent injury. The doctor also testified that plaintiff had two normal EEGs after the accident, and had no organic brain disease or blackouts.
Dr. Fremed testified that plaintiff's MRIs revealed a disc bulge in her neck and lower back, which were common incidental findings that even people never involved in an accident could have and "[i]t's very common, it's part of the degenerative aging process." He also testified that his physical examination of plaintiff contradicted her claimed injuries. He stated that during the examination, plaintiff was "trying to impress [him] with a deficit that clearly [was not] consistent and clearly not real. She [was] exaggerating, she [was] faking the deficit, there's no questions about it." He explained, medically, how he reached this conclusion and opined that plaintiff "had no reliable objective findings on examination. Her responses did not fit the wiring diagram, they made no sense. I did not put any credence, and believability into those responses. She's trying to pull a fast one here." The doctor opined that plaintiff suffered no permanent neurologic injury as a result of the accident and required no further neurologic investigation or treatment.
Dr. Gallina testified that plaintiff had some difficulties that affected her emotionally, "which had nothing to do with the accident." He acknowledged that plaintiff's chronic pain syndrome by history and adjustment disorder were related to the accident, but opined that she had extensive treatment, reached maximum medical benefit from that treatment, and the treatment should be decreased over a period of time.
Dr. Cohen testified that plaintiff's cervical and lumbar MRIs showed a neck and lower back disc bulge that was a result of the "normal aging process," was not caused by trauma, and was chronic and longstandng. He also testified that plaintiff's right shoulder MRI showed a cyst of the labrum, which implied that the labral tear "was an old problem," and that the tear was degenerative and "chronic and longstanding." He opined that plaintiff's right shoulder complaints were not causally related to the accident. He further testified that plaintiff's left knee injury may or may not have been caused by the accident, but was nevertheless resolved by surgery.
By a six to one vote, the jury found that plaintiff was not negligent. By a seven to zero vote, the jury awarded plaintiff a total of $244,000 as follows: $120,000 for pain, suffering, disability and impairment and loss of enjoyment of life; $65,000 for past lost wages; $35,000 for future lost wages; $12,000 for past lost household services; and $12,000 for future lost household services.
II.
Plaintiff filed a motion for a new trial on damages or additur. In denying both requests, the judge found as follows:
It appears from the jury's rendition of [its] award that they considered all of the evidence, and there was contradictory evidence concerning her physical capacities, cognitive capacities, ability to work, or inability thereto, in the form of multiple expert witnesses of a medical nature, who disagreed as to her condition.On appeal, plaintiff challenges the judge's decision, arguing that because the verdict was against the weight of the evidence she was entitled to a new trial or additur. We disagree.
The jury clearly did not accept all the plaintiff's testimony concerning her condition, her inability to work in the past or in the future and made their award accordingly.
I will say that it's been my experience that in cases similar to this an award of pain and suffering of $120,000 is not at all unusual, and has not been unusual in my experience. And that I further believe that juries view that as a generous award, unlike the attorneys who view it as an insubstantial award. That's my observation based on the jury verdicts that we had in trials over which I presided.
The economic damages reflect, I believe, the jury's finding that plaintiff has not borne a burden of proof with regard to the extent of economic damages her expert testified to . . . [and] the fact that plaintiff did not get what she was claiming does not mean that the jury misunderstood
the instructions or the evidence. I think to the contrary.
Granting a motion for a new trial rests with the sound discretion of the trial court and the motion should only be granted if, "'having given due regard to the 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.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting R. 4:49-1(a)); see also R.2:10-1 (stating we will not reverse a trial court's decision to deny a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law"). We must apply the same standard of review applied by the trial court, except that we "must afford 'due deference' to the trial court's '"feel of the case,"' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984)).
Because juries have broad latitude to determine damages, "'the standard for granting a new trial . . . is necessarily high.'" Caicedo v. Caicedo, 439 N.J. Super. 615, 628 (App. Div. 2015) (quoting Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)). A trial court should not order a new trial or change a jury's damages award as against the weight of the evidence "unless it is so clearly disproportionate to the injury and its sequel . . . that it may be said to shock the judicial conscience." Ibid.; see also He v. Miller, 207 N.J. 230, 249 (2011). A court "must be 'clearly and convincingly' persuaded that it would be manifestly unjust to sustain the award." Johnson, supra, 192 N.J. at 281 (quoting R. 4:49-1(a)).
Additur may be used only in cases in which a new trial as to damages alone is proper. Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 326 (App. Div. 2010). We review a trial judge's decision on a motion for additur or remittitur for abuse of discretion. Teonolone v. Palmer, 224 N.J. Super. 92, 104 (App. Div. 1988).
Applying the above standards, we discern no reason to disturb the judge's decision. This case is not similar to Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525 (App. Div.), certif. denied, 180 N.J. 355 (2004), on which plaintiff relies. In Love, the jury awarded the plaintiff no damages for pain and suffering despite evidence of the plaintiff's periods of pain and suffering caused by surgeries for injuries caused by the accident. Id. at 527. We explained that, even though the jury might have been justly skeptical of the extent of Love's claimed pain and suffering, "there can be no question that [Love] experienced some transitory pain and suffering, at the very least, as a consequence of each of the surgeries required, for the period of recovery, if not before and beyond." Id. at 532. We held that awarding no money at all "for those logically inescapable periods of pain and suffering" connected to injuries the jury found were proximately caused by defendant rendered the verdict "fatally inconsistent and clearly the result of mistake, compromise, passion or prejudice." Id. at 532-33.
In this case, as in Love, the evidence could support the jury's rejection of the nature and extent of plaintiff's claimed pain and suffering and permanency. However, unlike the jury in Love, there was no "logically inescapable" element of damage the jury in this case refused to compensate. To the contrary, the jury awarded plaintiff damages entirely consistent with its assessment that plaintiff, although injured as a result of the accident, was not as severely or permanently injured as a result of the accident as she claimed.
This case is far more similar to Kozma, where we declined to set aside a jury's verdict of no damages for slip-and-fall injuries. In Kozma, the plaintiff argued he was entitled to a new trial on damages because of "the jury's disregard of the undisputed evidence" that he sustained an "injury to his left knee" as a result of the accident for which the defendant had been found sixty percent at fault. Kozma, supra, 412 N.J. Super. at 321 (internal quotation marks omitted). The trial judge denied the motion, stating that the jury was free to believe that the plaintiff's knee had healed without treatment based on evidence that after the injury, the plaintiff played thirty-six holes of golf in two days, drove seventy-five percent of a trip to Orlando, Florida and walked around Disney World for seven days. Id. at 323-24.
We noted in Kozma that "[w]hile it is true that plaintiff presented expert testimony that could support a jury determination that a permanent injury was sustained, the jury was not required to reach that conclusion." Id. at 325. We also noted that the plaintiff's "argument [was] implicitly based on the assumption that the jury was required to accept all of the evidence favorable to him," but really on a motion for a new trial the trial judge "must view the evidence in the light most favorable to the party opposing the motion for relief." Ibid. We "agree[d] with the trial judge that the evidence was susceptible to an interpretation that minimized the monetary equivalent of plaintiff's pain and suffering to its vanishing point." Ibid.
Moreover, it is well-settled that the jury "need not give controlling effect to any or all of the testimony provided by experts even in the absence of evidence to the contrary." State v. Spann, 236 N.J. Super. 13, 21 (App. Div. 1989), aff'd, 130 N.J. 484 (1993). In evaluating expert testimony, "[t]he jury may adopt so much of it as appears sound, reject all of it, or adopt all of it." Ibid. (internal quotation marks omitted). "Satisfied that the jury was properly instructed, we should trust its judgment." Kozma, supra, 412 N.J. Super. at 321.
Here, the parties hotly disputed the nature and extent of plaintiff's claimed injuries. The jury was not required to accept all of the evidence favorable to plaintiff. Rather, the jury was free to accept substantial evidence that called into question plaintiff's credibility and that of her medical experts and from which the jury could have concluded that all of plaintiff's claimed injuries were not causally related to the accident or were not as severe and permanent as she claimed. The jury awarded damages entirely consistent with its assessment of the evidence and properly awarded plaintiff what it deemed to be fair and reasonable compensation for her injuries.
We are satisfied there was no abuse of discretion in the denial of plaintiff's motion for a new trial or additur. The jury verdict was clearly proportionate to plaintiff's claimed injuries and its sequel and the verdict does not constitute a miscarriage of justice or shock our judicial conscience.
III.
Plaintiff argues that the judge erred in permitting use of her pre-accident medical records because defendant produced this evidence just prior to the trial, prejudicing her ability to respond. Plaintiff also argues she was unduly prejudiced by evidence of her pre-accident medical condition, which defendant did not use for impeachment purposes, but rather, to prove, without supporting expert evidence, that she had a pre-existing condition. Both of these arguments lack merit.
We review a trial court's evidential ruling for abuse of discretion. Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div. 2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). We give substantial deference to the trial judge's discretion on evidentiary rulings, Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and reverse only where the judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). We discern no abuse of discretion here.
Although both sides bear some fault for the discovery delays in this case, the record is replete with evidence of plaintiff's delay in providing authorizations for her medical records even when court-ordered to do so. Coupled with plaintiff's deposition testimony disclaiming any pre-accident complaints or medical treatment, the judge was well within his discretion to permit use of the pre-accident medical records.
Moreover, plaintiff's claim of prejudice is without merit. Plaintiff was well-aware of the pre-accident medical records in June 2012, and was on notice from that point that defendant would pursue this issue and seek to make her pre-accident condition and treatment an issue at trial. She could have obtained those records herself and had sufficient time before the start of trial on January 7, 2013 to address the issue.
Further, pre-accident health records have been held admissible to test a plaintiff's credibility. See Ocasio v. Amtrak, 299 N.J. Super. 139, 155-59 (App. Div. 1997) (holding that the plaintiff's history of drug abuse and other personal issues was relevant to credibility of a damage claim arising from personal injury); Allendorf v. Kaiserman Ent., 266 N.J. Super. 662, 674 (App. Div. 1993) (holding that where the plaintiff claimed that she was "in perfect health" and had never had a blackout prior to the accident, the defendant could properly impeach her credibility with evidence of pre-accident episodes of passing out); see also N.J.R.E. 607 (providing, subject to exceptions not relevant here, that "any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility[]").
There was no error in the judge's decision to permit use of plaintiff's pre-accident medical records. Those records were relevant to the question of the credibility of plaintiff and her experts and defense counsel properly used the records on cross-examination for that purpose.
IV.
Plaintiff contends that because defendant did not produce her driver's abstract prior to trial, the judge erred in permitting defendant to use it on cross-examination. We disagree.
Plaintiff did not request her driver's abstract during discovery and she points to no affirmative discovery obligation that would have required defendant to produce it. If documents exist that were never requested in the course of discovery, Rule 4:25-7 may require that they be identified as part of the pretrial exchange of information. However, that exchange only obligates a party to list all "exhibits to be offered in the party's case in chief." Pretrial Information Exchange, Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII(2) to R. 4:25-7(b) (2015).
The cases plaintiff cites regarding the elimination of the element of surprise are inapposite, as they all concern evidence that was required to be disclosed in discovery and/or was used to establish an affirmative claim or defense, not simply credibility on cross-examination. See Saia v. Bellizio, 103 N.J. Super. 465, 467 (App. Div.), aff'd, 53 N.J. 24 (1968) (the defendants improperly introduced testimony on the affirmative defense of contributory negligence at trial, despite a statement in the pretrial order that they "can assert no facts in support" of that defense); Caparella v. Bennett, 85 N.J. Super. 567, 571 (App. Div. 1964) (the defendant was served with interrogatories asking for facts supporting defense of contributory negligence, but he "deliberately withheld and concealed his factual contention that the fall really occurred while [the plaintiff] was returning home at 2 A.M., apparently in an intoxicated condition" until the defendant's case-in-chief at trial); Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 338 (1951) (addressing appropriate sanctions for failure to disclose material requested by discovery); D'Agostino v. Schaffer, 45 N.J. Super. 395, 402 (App. Div. 1957) (trial court should have excluded testimony of person not identified in plaintiffs' answers to interrogatories and whose testimony was contrary to those answers). Accordingly, we find no error regarding plaintiff's driver's abstract.
V.
Plaintiff contends that the judge misapplied the law in not permitting her expert economist's charts, which were made available to the jury during his testimony and plaintiff's counsel's closing, to be introduced into evidence and sent into the jury room. Plaintiff cites DeHanes v. Rothman, 158 N.J. 90 (1999) for the proposition that "it is permissible to 'allow experts to introduce into evidence the exhibits that they have prepared.'" Plaintiff's legal argument is based on a snippet from DeHanes taken out of context.
In DeHanes, our Supreme Court altered the then-existing practice that allowed an economic expert to testify as to various components of economic loss but precluded testimony as to the aggregate sum of those losses. Id. at 98-99. Concluding that the rationale underlying the aggregate-sum prohibition, namely that "jurors will be psychologically lulled into unquestioning acceptance of an expert's testimony," was incorrect and that jurors "are far more sophisticated," the Supreme Court noted, "[a] jury's common knowledge and experience is always available to help it assess whether an aggregate sum or 'bottom-line' figure presented by counsel or an expert represents fair and just compensation." Id. at 99-102. The Court concluded:
Accordingly, we hold that it is permissible to allow properly qualified experts to testify to the aggregate net sums of the economic losses that they have calculated and subject to the same qualifications concerning cautioning the jury against uncritical acceptance, to allow experts to introduce into evidence the exhibits that they have prepared.
[Id. at 103.]
In context, the Court's statement that "it is permissible . . . to allow experts to introduce into evidence the exhibits that they have prepared" points to the now-accepted practice of having experts create demonstrative exhibits with numbers, calculations and aggregate sums that can be shown to the jury during testimony and summation, as was done in this case. DeHanes does not support plaintiff's contention that a trial court is obligated to send such demonstrative exhibits into the jury room.
Further, there was no reason to presume that the jurors in this case would have been confused simply because they did not have the actual charts in the jury room to refer to. There was only one economic expert, the jury was permitted to see the charts during the expert's testimony and during closing, and the jury was permitted to take notes. As a result, jurors had several opportunities to see the numbers and understand the expert's methodology. There was no error in the exclusion of the expert's charts.
VI.
Plaintiff contends that the judge erred in charging the jury regarding the existence of a statute requiring a physician to notify the Division of Motor Vehicles when a patient has a seizure disorder or related condition. Although not specifically cited at trial or on appeal by either party, the statute at issue is presumably N.J.S.A. 39:3-10.4, which provides as follows:
Each physician treating any person 16 years of age or older for recurrent convulsive seizures or for recurrent periods of unconsciousness or for impairment or loss of motor coordination due to conditions such as, but not limited to, epilepsy in any of its forms, when such conditions persist or recur despite medical treatments, shall, within 24 hours after his determination of such fact, report the same to the Director of the Division of Motor Vehicles. The director, in consultation with the State Commissioner of Health, shall prescribe and furnish the forms on which such reports shall be made.Given her own testimony regarding recurrent blackouts too numerous to detail, plaintiff's contention on appeal that her condition did not fall within the statutory criteria has no merit. It was plaintiff who insisted that, for the entire four- and-a-half years between the accident and the trial, she had "recurrent periods of unconsciousness" that persisted "despite medical treatments."
Even if there was error, it was harmless. Without objection, defense counsel queried Dr. Yazgi and Dr. Sozzi about their familiarity with the statute, and plaintiff's counsel continued the inquiry on Dr. Sozzi's re-direct examination. In context, the judge told the jury, "I'm just informing you that there is such a statute, that the doctors were bound to follow it, and you heard the testimony." This charge was not likely to confuse or mislead the jury as to any of the questions it actually had to decide, on which the judge specifically and clearly instructed the jury. It was accurate for the judge to state that "there is such a statute" and "the doctors were bound to follow it," and the reference to "you heard the testimony" leaves the question to the jury whether or not to believe the reasons the doctors gave as to why they did not report plaintiff's recurring blackouts to the Division of Motor Vehicles. Accordingly, we find no reversible error on this point.
VII.
Plaintiff contends that the judge erred in awarding defendant fees pursuant to the offer-of-judgment rule. She argues the award imposed an undue hardship on her.
"The offer-of-judgment rule is 'designed particularly as a mechanism to encourage, promote, and stimulate early out-of-court settlement . . . without trial.'" Schettino v. Roizman Dev., Inc., 158 N.J. 476, 482 (1999) (quoting Crudup v. Marrero, 57 N.J. 353, 361 (1971)). "Its purpose is . . . to encourage defendants to settle worthy cases." McMahon v. N.J. Mfrs. Ins. Co., 364 N.J. Super. 188, 192 (App. Div. 2003).
"To fulfill its purpose, the rule imposes financial consequences on a party who rejects a settlement offer that turns out to be more favorable than the ultimate judgment." Schettino, supra, 158 N.J. at 482. The offer-of-judgment rule "serves the unique and particular purpose of imposing financial consequences on parties who unwisely reject an offer of settlement and insist on a trial." Wiese v. Dedhia, 188 N.J. 587, 593 (2006). In fact, the Court found that "all costs as a result of the rejection of an offer of judgment, including those incurred in Appellate Division and Supreme Court proceedings, fall within the scope of Rule 4:58-2." Id. at 593-94.
Rule 4:58-1(a) states:
Except in a matrimonial action, any party may, at any time more than 20 days before the actual trial date, serve on any adverse party, without prejudice, and file with the court, an offer to take a monetary judgment in the offeror's favor, or as theRule 4:58-1(b) provides that "[i]f the offer is not accepted on or prior to the 10th day before the actual trial date . . . it shall be deemed withdrawn[.]"
case may be, to allow judgment to be taken against the offeror, for a sum stated therein (including costs). The offer shall not be effective unless, at the time the offer is extended, the relief sought by the parties in the case is exclusively monetary in nature.
Rule 4:58-3(b) explains the consequences to a plaintiff who does not accept a defendant's offer of judgment and then obtains "a money judgment in an amount, excluding allowable prejudgment interest and counsel fees, that is 80% of the offer or less." In such cases, "the offeror shall be allowed, in addition to costs of suit, the allowances as prescribed by [Rule] 4:58-2, which shall constitute a prior charge on the judgment." R. 4:58-3(a). The prescribed allowances are (1) "all reasonable litigation expenses incurred following non-acceptance;" (2) certain pre-judgment interest, and (3) "a reasonable attorney's fee for such subsequent services as are compelled by the non-acceptance." R. 4:58-2(a).
Moreover, the consequences of non-acceptance under Rule 4:58 are mandatory. Wiese, supra, 188 N.J. at 592 (holding that "[t]he rule is cast in mandatory and not exhortatory terms, and, thus, accords judges no discretion regarding whether or not to award attorney's fees and costs of suit in an offer of judgment case").
Rule 4:58-3(c) provides limited exceptions to the application of the offer of judgment rule, providing, "[n]o allowances shall be granted if (1) the claimant's claim is dismissed, (2) a no-cause verdict is returned, (3) only nominal damages are awarded, (4) a fee allowance would conflict with the policies underlying a fee-shifting statute or rule of court, or (5) an allowance would impose undue hardship." Regarding undue hardship, the Rule further provides, "[i]f, however, undue hardship can be eliminated by reducing the allowance to a lower sum, the court shall reduce the amount of the allowance accordingly." Ibid.
Here, plaintiff raises the final exception and contends that, as the amount awarded by the jury was already far too low, leaving her "with a pittance to support her for the rest of her life . . . [t]o deduct further the amounts sought by [d]efendant under the Offer of Judgment Rule would certainly impose an undue hardship."
We discern no reason to disturb the judge's award of fees and costs under the offer-of-judgment rule, as plaintiff has shown no more than conclusory assertions regarding hardship. In this regard, we have noted that when evaluating a claim of undue hardship, the court should first fix a reasonable fee and then "consider whether an award of that fee will constitute an 'undue hardship' on the payor." Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 562 (App. Div.), certif. denied, 200 N.J. 476 (2009). "If the answer to the second part of that question is in the affirmative, then the judge has the discretion to reduce the allowance to remove the hardship." Ibid. However, we did not reach the question of whether an undue hardship existed in that case.
We have found no published appellate court opinions actually applying the undue hardship standard. While we are not bound by lower court opinions, S & R Assocs. v. Lynn Realty Corp., 338 N.J. Super. 350, 355 (App. Div. 2001), we find Reid v. Finch, 425 N.J. Super. 196 (Law Div. 2011), considering the application of the undue hardship exception, to be useful here. There, court said that "[u]nder the rule, a reasonable fee will be fixed, and the court will then consider whether the award of that fee will constitute an 'undue hardship' on the paying party." Id. at 206. The reasonable fee the court fixed in the first step was actually about $5,703 more than the award the plaintiff had received and, after paying expenses incurred in the suit, plaintiff actually stood to lose nearly $23,000.00 even though she had won her lawsuit and was found by the jury to be permanently injured. Id. at 207. The court noted that "[i]t could not have been the intent of the Supreme Court that a party should lose money simply because the party brought a non-frivolous suit" and it held that "[a] loss of nearly $23,000 as a result of bringing a meritorious lawsuit is an insurmountable hardship." Ibid. Nevertheless, the court was sensitive to the mandatory nature of the Rule and the instruction to reduce the amount of an award, if possible, in order to avoid undue hardship, and concluded that it did "not have discretion to eliminate the costs altogether." Ibid. Accordingly, the court awarded defendant $3,620.96, the amount that reduced plaintiff's recovery to zero but would not obligate her to affirmatively pay money out of pocket. Id. at 208.
Here, even after the offer of judgment allowance is paid, plaintiff will have over $220,000 remaining, considering the award and pre-judgment interest. Consequently, we hold there was no undue hardship and no error in the award under the offer-of-judgment rule.
VIII.
We have considered plaintiff's remaining contentions, that the judge erred in barring evidence of her financial indebtedness as an element of her economic damages, and that defense counsel made improper comments, in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION