Opinion
DOCKET NO. A-1614-11T4
03-11-2013
MATTHEW and SUSAN CONLON, Plaintiffs-Appellants/Cross-Respondents, v. THE HOME DEPOT U.S.A., INC., WOODED ACRES, INC.,Defendants-Respondents/Cross-Appellants, and WOOD GREENHOUSES, Defendants.
Steven I. Greene argued the cause for appellants/cross-respondents. Douglas S. Schwartz and Lane M. Ferdinand argued the cause for respondents/cross-appellants (Law Offices of Sisselman & Schwartz, L.L.P., attorneys for The Home Depot U.S.A., Inc. and Law Offices of Lane M. Ferdinand, attorneys for Wooded Acres, Inc.; Mr. Schwartz and Ms. Ferdinand, on the joint brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Harris and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-8993-08.
Steven I. Greene argued the cause for appellants/cross-respondents.
Douglas S. Schwartz and Lane M. Ferdinand argued the cause for respondents/cross-appellants (Law Offices of Sisselman & Schwartz, L.L.P., attorneys for The Home Depot U.S.A., Inc. and Law Offices of Lane M. Ferdinand, attorneys for Wooded Acres, Inc.; Mr. Schwartz and Ms. Ferdinand, on the joint brief). PER CURIAM
In this personal injury case, plaintiffs Matthew and Susan Conlon appeal from a paragraph of a November 18, 2011 order vacating a $325,000 jury award for future medical bills. Defendants Home Depot U.S.A., Inc., and Wooded Acres, Inc., cross-appeal from other paragraphs of the order awarding plaintiffs approximately $734,000 in damages for past medical expenses, pain and suffering and loss of consortium.
We will refer to Matthew Conlon as "plaintiff."
On their appeal, plaintiffs present the following points for our consideration:
I. THE NOVEMBER 4, 2011 REMITTITUR SHOULD BE VACATED, AND THE VERDICT AS TO FUTURE MEDICAL EXPENSES SHOULD BE REINSTATED BECAUSE THE JURY HAD AN EVIDENTIARY AND LOGICAL BASIS FOR THE AWARD. THERE WAS A REASONABLE PROBABILITY THAT PLAINTIFF WOULD INCUR FUTURE MEDICAL EXPENSES TO TREAT THE INJURY SUSTAINED AS A RESULT OF THE DEFENDANT'S NEGLIGENCE.
II. THE NOVEMBER 4, 2011 REMITTITUR SHOULD BE VACATED AND THE VERDICT AS TO FUTURE MEDICAL EXPENSES SHOULD BE REINSTATED BECAUSE THE VERDICT AS TO FUTURE MEDICAL EXPENSES WAS PROPORTIONATE TO THE EVIDENCE OF PLAINTIFF'S INJURIES AND RESULTING DISABILITIES.
Defendants, who filed a joint brief, raise the following issues on their cross-appeal:
I. THE TRIAL COURT ERRED BY PERMITTING PLAINTIFF[S'] LATE AMENDMENT TO DISCOVERY TO INCLUDE THE LIABILITY EXPERT REPORT AND THE TESTIMONY OF [THEIR] LIABILITY EXPERT MICHAEL NATOLI.For the reasons that follow, we affirm on defendants' cross-appeal, but we reverse on plaintiffs' appeal and reinstate the award for future medical expenses.
II. THE TRIAL COURT ERRED BY FAILING TO STRIKE MR. NATOLI'S TESTIMONY WHICH WAS CLEARLY AN INADMISSIBLE NET OPINION AS HIS CONCLUSIONS WERE UNSUPPORTED BY ANY FACTUAL EVIDENCE OR DATA.
III. THE TRIAL COURT ERRED BY FAILING TO GRANT THE DEFENDANTS' MOTION TO DISMISS AT THE CONCLUSION OF THE CASE AND BY FAILING TO GRANT THE DEFENDANTS' MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.
IV. THE VERDICT OF THE JURY CLEARLY DEMONSTRATES CONFUSION, MISUNDERSTANDING, AND AN INCONSISTENT VERDICT WHICH CONSTITUTES A MISCARRIAGE OF JUSTICE NECESSITATING A NEW TRIAL.
I.
We begin by summarizing the most pertinent trial evidence. On May 16, 2007, plaintiff was standing in front of his parked car after shopping at a Home Depot store. According to plaintiff, it was a windy day. As he waited for a store employee to load some merchandise into his car, plaintiff was struck by a large display cart, loaded with "bright flowers," that was rolling loose through the store's parking lot. The heavy cart, which was about "six feet tall," knocked plaintiff onto the hood of his car. He then fell off the hood onto the surface of the parking lot. Plaintiff's left foot and his back were injured in the accident.
An eyewitness, Mary Ellen Sorensen, testified that she was walking toward the Home Depot store through the parking lot, when she saw a "giant" cart full of potted plants rolling away from the garden center on the left front side of the store. She saw the cart roll down a slight incline from the store into the parking lot. She then observed the cart "pick[] up speed" and hit plaintiff, who went up on the hood of his car and then fell off. Sorensen approached plaintiff and found him "kind of like all twisted up" on the ground.
Plaintiff, who had made a full recovery from spinal surgery performed in December 2006, was severely injured in the May 2007 cart accident. He presented expert medical testimony that the accident re-injured his back, necessitating a series of epidural injections and then some additional spinal surgery performed in November 2007. When the November surgery did not relieve plaintiff's pain, he had more epidural injections, a disk decompression procedure on February 20, 2009, spinal fusion surgery on September 21, 2009, and additional epidural injections in 2010. Plaintiff testified that he incurred $15,000 in out of pocket medical expenses, and that his total expenses for the medical treatments associated with the accident were approximately $220,000. Plaintiff, who was born in 1963, was forty-eight years old at the time of the trial in 2011.
During the trial, the parties presented conflicting expert testimony as to whether the three back surgeries in 2007 and 2009 were attributable to injuries caused by the cart accident, or whether they were required because the 2006 surgery failed. On this appeal, however, defendants do not challenge the jury's findings that plaintiff's injuries were caused by the accident, his pre-trial medical treatment was necessitated by the accident, and plaintiff was not negligent. The defense did not present expert medical testimony to contradict the opinion of plaintiff's medical expert that plaintiff would need another spinal fusion surgery, and other medical treatment, in the future.
Plaintiff presented the videotaped de bene esse deposition of his treating physician, Dr. David Matusz, an orthopedic surgeon specializing in spine surgery. Dr. Matusz performed the 2006 surgery to correct two herniated disks, at L-4/L-5 and L-5/S-1. He testified that plaintiff recovered "[e]xceptionally well" from that surgery. However, in September 2007, plaintiff came to the doctor with new complaints of radiating leg pain, and an MRI performed in October 2007 revealed a recurrence of a large herniated disk at L-4/L-5.
When epidural injections failed to relieve the pain, Dr. Matusz performed a "revision discectomy" at L-4/L-5 on November 19, 2007. During the surgery, Dr. Matusz found a fracture of the pars interarticularis, a "very strong portion of the vertebral body that connects one joint above and one joint below." That fracture did not exist at the time of the 2006 surgery. Dr. Matusz opined that the pars fracture, which was typically associated with hyperextension injuries, was caused when plaintiff was struck by the rolling cart and thrown backward onto the hood of his car.
The pars fracture eventually required a spinal fusion operation, which was "a large reconstructive operation." Dr. Matusz explained that he held off performing the surgery as long as possible, because, while it would relieve plaintiff's ongoing pain, a spinal fusion would also inevitably lead to degeneration of the adjacent spinal disks and facet joints. "And in patients as young as Matthew, that basically means 100 percent chance of need for another operation in his lifetime based on the likelihood that one of the neighboring [disks] will degenerate." He also explained that one out of five patients required further surgery within eight to ten years after a spinal fusion operation.
However, due to plaintiff's worsening symptoms, including developing another herniated disk and being unable to work, Dr. Matusz performed the fusion surgery on September 21, 2009. He testified that by November 2010, plaintiff was already having "symptoms at the L-5/S-1 inner space adjacent to the fusion that I just did." The symptoms included "left-sided leg pain." While plaintiff was "very resilient," and lived a healthy lifestyle, the doctor opined that it was only a matter of time before he would need yet another operation. Neither defense counsel cross-examined Dr. Matusz at all on his opinion that plaintiff would require future back surgery. All of the cross-examination was directed at whether plaintiff actually injured his back in the cart accident.
Plaintiff also presented testimony from Michael Natoli, a licensed civil engineer, specializing in safety engineering. Natoli had prior experience in designing shopping centers and parking lots. Natoli testified that he examined the display carts and measured the slope of the pavement in front of the Home Depot. He explained that the asphalt surface in front of the Home Depot, leading to the parking lot, needed to be sloped to provide drainage; however, the incline made it unsafe to keep rolling display carts in front of the store without blocking the wheels. He testified that
within that pitch or that slope, if you have anything on there like carts [that] are freewheeling, in other words, there's no brakes, nothing blocking it, when you put a freewheeling object on a slope it's just going to start sliding downhill. It's like a soapbox derby.Natoli also researched the weather conditions prevailing on the day of the accident and found there were heavy gusts of wind. He explained that the accident was likely caused when a gust of wind set one of the freewheeling carts in motion. The cart, weighing four- to five-hundred pounds, would have picked up speed as it traveled downhill, which in turn would have greatly increased the force of the impact when it struck plaintiff.
Natoli testified that the industry standard for parking lots called for preventing "uncontrolled cart movements," and defendants violated that standard. Natoli opined that the accident could have been prevented in several ways: by installing posts or constructing a curb between the display area and the parking lot, to prevent carts from rolling into the lot; by blocking the cart wheels with a block of wood; or by chaining the carts together. He testified that wood blocks and chains were sold at Home Depot, and they could easily have been obtained and applied to the carts.
Home Depot presented testimony from a former employee, Matt Lembo, who in May 2007 was the head of the store's garden department. He explained that the garden department included flower carts and other merchandise displayed on "the front apron" outside the store. Home Depot contracted with vendors, including Wooded Acres, to provide the plant carts and set up the plant displays. Wooded Acres' employees would perform that work four hours a day, each morning. However, Home Depot employees were responsible for inspecting the entire garden department, including the plant displays. Among other things, the Home Depot employees were responsible to inspect for and correct hazardous conditions, including plant carts that might be placed in a fire zone. Lembo agreed that there was a slight slope between the area in front of the building and the parking lot. On cross-examination, he admitted that, when he arrived at work after the accident happened, he saw plant carts in the fire zone, an area that sloped toward the parking lot.
Lembo testified that Home Depot was aware of the risk that a plant cart could roll off the apron and into the parking lot, and its employees would try to block the wheels with stones or wooden blocks. He testified that he did not know how the accident happened but stated that on the day of the accident, "it was . . . pretty windy." He admitted that Wooded Acres provided the plant cart that struck plaintiff. He also admitted that Home Depot directed Wooded Acres and the other vendors as to where to place the display carts in front of the store. At his deposition, which was later read to the jury, Lembo admitted that "the final responsibility, the final say" over where to place the carts "fell to the store manager."
Lembo also confirmed that if no Wooded Acres employees were present, Home Depot employees were responsible for ensuring the safety of the displays, including securing the carts. However, they did not routinely inspect the carts, to make sure the wheels were blocked. Lembo further confirmed his deposition testimony, that the carts were actually constructed with "a little hitch" that would allow them to be locked together or "daisy chain[ed]" to prevent them from rolling.
Matt Wood, the owner of Wooded Acres, testified that his company supplied plants at several Home Depot stores, but 2007 was the first year that Wooded Acres supplied plants at the Home Depot where the accident occurred. Wooded Acres employed merchandisers, who would arrive at the store and arrange the plants on the carts. However, Wood testified that at the time of plaintiff's accident, the merchandisers had not yet arrived at Home Depot for that day; a Wooded Acres employee, Diana Mejia, corroborated that testimony.
Wood testified that he did not instruct his merchandisers to chock the wheels on the carts at this Home Depot, because he did not think there was "any risk of a cart taking off." He had seen the wind cause a cart to move, where there was a "grade," but he did not believe there was enough of a grade in front of this Home Depot to create a risk. Wood also testified that he had never heard of chaining the carts together as a precaution against a cart rolling away.
Based on this evidence, the jury awarded plaintiffs $375,000 for pain and suffering, $235,000 for past medical expenses, $325,000 for future medical expenses, and $40,000 for loss of consortium. In responding to questions 1 through 4 on the verdict sheet, the jury found that both defendants were negligent but that only Home Depot's negligence was a proximate cause of the accident. The jury found that plaintiff was not negligent.
Although it was not necessary to apportion liability between the defendants, because the jury had not found Wooded Acres liable, the jury answered question 7, apportioning 80% liability to Home Depot and 20% to Wooded Acres. Apparently, the jury did so because the instructions for question 7 were incorrectly worded. The instructions directed the jury to apportion liability if it found both defendants "negligent," without specifying that the jury need not answer the question unless it also found that each defendant's negligence was a proximate cause of the accident.
In ruling on defendants' post-judgment motion to set aside the verdict as inconsistent, the judge reminded both defense counsel that prior to trial, defendants had entered into an agreement as to what percentage each would pay toward any damage award. The trial judge further reminded them that, immediately after the verdict was rendered, defense counsel had represented to him at sidebar that "well, we'll work this out" and "Judge, you can mold this verdict." Accordingly, the judge molded the verdict to find Home Depot 100% liable.
However, the judge set aside the verdict for future medical expenses, because plaintiff had not presented any specific testimony concerning the cost of the future medical procedures that Dr. Matusz testified he would probably need.
II.
We begin by addressing plaintiffs' appeal from the decision vacating the award for future medical expenses. Plaintiffs refer to the court's action as a "remittur," but the judge did not set aside the award because it was so excessive as to shock the conscience. See He v. Miller, 207 N.J. 230, 252 (2011). Rather, he found there was no evidence to support the award. Consequently, we employ the standard of review applicable to a motion for judgment notwithstanding the verdict (JNOV), Rule 4:40-2(b).
That standard is the same whether applied by the trial or appellate court:
[T]he test is . . . whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor" of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. . . . The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.Applying that standard, we conclude that, viewed in the light most favorable to plaintiffs, there was sufficient evidence to sustain the verdict.
[Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997) (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969)) (citations and quotations omitted in original).]
In Coll v. Sherry, 29 N.J. 166 (1959), the Court held that the trial court erred in preventing the plaintiff from presenting evidence of his future medical treatments and expenses. While recognizing the uncertainty associated with future damages, the Court held that an injured plaintiff must be permitted to submit evidence on the issue:
It is well settled that damages may be recovered for the prospective consequences of a tortious injury. And this rule applies to future medical care and treatment as well as to anticipated pain and suffering. In Work v. Philadelphia Supply Co., 95 N.J.L. 193, 196 (E. & A. 1920), the Court of Errors and Appeals approved an instruction that plaintiff was entitled to recover "such reasonable outlay in the future as may be necessary to heal herself and her injuries."
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. Accordingly, while allowing recovery for future damages, the courts have adopted various formulae to restrict the element of speculation and conjecture which may enter into a jury's assessment of them. . . . [W]e think that "reasonable probability" or its equivalent is sufficient. 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 be awarded must largely be left to the good judgment of the jury.
[Id. at 174-75 (citations omitted).]
Coll did not address the specific evidence that a plaintiff must introduce on the issue of future medical expenses. In a later case, involving a claim for loss of future income for an injured infant, the Court reasoned:
We recognize a plaintiff's obligation to furnish the jury with "some evidentiary and logical basis for calculating or at least, rationally estimating a compensatory award." At the same time we must keep in mind the need to balance the risk of jury speculation against a general tort-law goal of full compensation for an injured plaintiff.
[Lesniak v. Cty. of Bergen, 117 N.J. 12, 26 (1989) (citation omitted).]
Given the evidence of plaintiff's past medical expenses and Dr. Matusz's very specific testimony concerning the types of medical problems plaintiff was likely to develop in the future and likely treatments required, we conclude that there was more than the required scintilla of evidence on which the jury could base its verdict. In reaching our conclusion, we also consider the litigation strategies employed by the parties and the interests of justice.
At the trial, defendants stipulated to plaintiff's past medical costs, but then sought to bar his claim for future medical costs, asserting the claim was an unfair surprise to them. We find no merit in defendants' claim that they were "sandbagged" by the trial judge's decision to submit the issue of future medical expenses to the jury. Notably, during pre-trial arguments on September 21, 2011, defense counsel admitted that, at Dr. Matusz's de bene esse deposition on May 26, 2011, the doctor testified that it was "100 percent certain" that plaintiff would need future surgeries. It should have come as no surprise to the defense that plaintiff would seek to recover the costs of his future medical treatments. Further, during the argument of additional in limine motions on September 22, 2011, plaintiffs' counsel stated on the record that "[t]here is a claim for future [medical expenses], because the doctor says that he needs future surgery." Defense counsel objected that "no amount" had "been provided in discovery or by the doctor as to what [those expenses] would be."
After the deposition, the defense had moved before Judge Francine Schott for leave to present additional medical evidence to rebut Dr. Matusz's testimony. She denied that motion as untimely. Defendants did not present us with the record of that motion, and Judge Schott's ruling is not at issue on this appeal. The case was eventually tried before a different judge (the trial judge) whose rulings are the subject of this appeal.
However, at least a year before the trial, plaintiffs' counsel provided defense counsel with detailed summaries of all of the surgical procedures and other treatment plaintiff had already undergone, and the cost of each procedure. Plaintiffs' attorney also represented that he was prepared to produce "all underlying [medical] bills at trial" and was prepared to have plaintiff's medical experts "testify as to the necessity of all treatment and reasonableness of all charges." Prior to the trial, the defense stipulated to the reasonableness of the medical bills and stipulated that plaintiff's prior medical expenses totaled $235,000. As a result, plaintiff did not introduce the medical bills, which would have specifically demonstrated the cost of spinal surgery, among other procedures. Nor did plaintiff elicit from Dr. Matusz any testimony concerning the reasonable cost of any individual medical procedure.
Those documents are in the record, because they were submitted to the trial judge as part of the parties' post-judgment motions.
That sum included $15,000 in out of pocket costs and $220,000 subject to insurance liens.
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During the charge conference, there was an objection from Wooded Acres' counsel to submitting to the jury the issue of future medical expenses. The judge observed that there had been testimony as to the probable need for future medical care, and that the jury could base the cost of that care on the cost of "past medical care." The court also observed, "I thought [the parties] stipulated" to the reasonableness and necessity of the past medical costs.
When Wooded Acres' attorney began to respond, plaintiff's attorney stated to him, "we have the summaries from the lienholders in terms of every nickel on the two hundred and twenty [thousand dollars in past medical expenses]. If you want the jury to see every nickel that was in the two hundred and twenty, we can give that to you." Home Depot's attorney observed that "you have a big lien here. I think everyone agrees that 99 percent of this lien is for the back. . . . It's all on the back." Wooded Acres' counsel later clarified that defendants had stipulated that plaintiff's past medical costs were reasonable and necessary for the treatments that plaintiff received, but they did not stipulate that this accident caused plaintiff to need the treatments.
At the continuation of the charge conference on October 4, 2011, Wooded Acres' attorney conceded that he had reviewed all of the past medical bills and found only $20,000 out of the $2 00,000 that might be in controversy. Those were amounts that might have been associated with epidural injections administered to an area slightly above the disks plaintiff allegedly injured in this accident. Wooded Acres' counsel acknowledged that, as plaintiff's counsel had offered, "one alternative would have been to give [the jury] the tally sheets, which has more danger associated with it." As a matter of litigation strategy, in order to avoid having plaintiff's attorney present the jury with a breakdown of the individual medical bills, Wooded Acres' attorney agreed that he would stipulate to the $235,000 in medical costs and argue to the jury that the injury was not caused by this accident.
Later in the charge conference, both defense attorneys objected to the court submitting the issue of future medical costs to the jury, because Dr. Matusz had not specified exactly what medical procedures plaintiff would need in the future and what each procedure would cost. Plaintiff's counsel argued that the doctor had described all of plaintiff's prior treatment and had confirmed that plaintiff would probably need similar treatment in the future, although it was not possible to predict precisely what treatments he would need or when; the jury could reasonably predict the future costs from the past costs.
The jury's award of $325,000 for future medical expenses amounted to approximately $8,600 per year for thirty-eight years, which was plaintiff's estimated future life expectancy. The record contains a detailed summary of plaintiff's medical bills, which were submitted to the trial court with the parties' post-trial motions. Those documents would have been submitted to the jury, but for defendants' stipulation that the past medical treatment was necessary and the bills were reasonable. While it certainly would have been preferable for plaintiff's counsel to submit the bills to the jury in support of the claim for future medical costs, there was clearly an element of litigation strategy in defendants' decision to stipulate to the reasonableness of the costs.
It should have come as no surprise to the defense that plaintiffs' counsel asked the jury to extrapolate plaintiff's future medical costs from his past costs. That strategy was particularly unsurprising in light of Dr. Matusz's testimony that plaintiff would need the same types of treatment in the future, and that there was a "100 percent" certainty that he would need future spine surgery. Further, Dr. Matusz described in considerable detail the types of future medical problems that would befall plaintiff, and the types of treatment he would likely require. There was clearly "some evidentiary basis" for the jury's award. See Haywood v. Harris, 414 N.J. Super. 204, 215 (App. Div.), certif. denied, 204 N.J. 38 (2010).
As the trial judge aptly noted, there is nothing unusual in asking a jury to estimate future medical costs based on past costs, provided the future medical treatments are likely to be similar to the past treatments. See Green v. General Motors Corp., 310 N.J. Super. 507, 535-36 (App Div.), certif. denied, 156 N.J. 381 (1998); Marchetti v. Ramirez, 688 A.2d 1325, 1328-30 (Conn. 1997); Hartt v. Wiggin, 379 A.2d 155, 157 (Me. 1977). That is the case here. And, as the judge noted, the $325,000 verdict was in no way facially excessive in light of plaintiff's severe medical issues and the amount of the past medical costs.
Were we convinced that the verdict was even potentially a miscarriage of justice, we might well remand this case for a re-trial limited to the issue of future medical costs. See Wenner v. McEldowney & Co., 102 N.J. Super. 13, 22 (App. Div.), certif. denied, 52 N.J. 493 (1968). However, at oral argument, counsel candidly advised us that none of their clients wanted a remand. And with good reason. Apart from the added expense to all parties that a remand would entail, the detailed list of plaintiff's past medical expenses, together with Dr. Matusz's un-rebutted testimony, convinces us that a re-trial would almost certainly produce either the same result or a higher verdict for plaintiff. Accordingly, we reinstate the verdict for future medical expenses.
III.
Turning to the cross-appeal, defendants challenge the trial judge's decisions denying their motion to bar Natoli, plaintiff's engineering expert, from testifying, because his expert report was allegedly submitted late and contained a net opinion. We review the trial judge's decisions on these issues for abuse of discretion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). On this record, we find none. Defendants' arguments require no discussion beyond the following comments. See R. 2:11-3(e)(1)(E).
More than a year before the trial commenced, Judge Schott, who was then hearing motions in the case, granted plaintiffs' motion to extend discovery to May 21, 2010. Plaintiffs served defendants with Natoli's expert report on May 21, 2010. Defendants waited until September 11, 2011, shortly before the trial, to file their motion to bar the report as untimely and as a net opinion.
The trial judge denied the motion to bar the report as untimely, considering the unfairness of defendants waiting until the eve of trial and then "using the [Court Rules] to say, I got you":
Now you're here for trial. There were alternatives that you could have respectfully undertaken. One was to file the motion to bar back in June or late May of 2010. The other would have been [to] enter into a consent order to allow [you] to obtain [an] expert, had you wanted to do that.We agree with the trial judge.
But to allow [defendants] when the plaintiff presented proof 16 month ago . . . to sit back and just say well, I've got him, now I know where I have him. . . . I just find that . . . the purpose of the rules and the case law [is] to hear [a case] on its merits, [and] that [purpose] is better served to . . . allow the report and I'm going to deny your motion.
We likewise find no merit in defendants' alternate argument, that Natoli's report expressed a net opinion. The report was relatively uncomplicated, because the liability issues in the case were not complex. Natoli, an engineer with experience in designing parking lots, examined the rolling display carts and the layout and slope of the parking lot. He also researched the weather conditions on the day of the accident. He opined that the carts, one of which struck plaintiff, were dangerous under the circumstances because they had no braking mechanism and therefore could easily roll away from the front of the store, down the slope, and into the parking lot. With the help of his research into the gusty wind conditions on the day of the accident, Natoli opined that the lack of brakes on the cart wheels, combined with the wind and the slope of the parking lot, was the likely cause of the accident.
At a N.J.R.E. 104 hearing held prior to his trial testimony, Natoli gave a more detailed explanation about the measurement of the slope in front of the store, and the mechanics of how the cart could be set in motion by a gust of wind. He also testified that defendants were negligent in failing to block the cart wheels or chain the carts together so that they could not roll away.
In addition to his own experience, Natoli relied on industry guidelines, albeit old ones, concerning the proper use of rolling carts in shopping center parking lots, and the danger of inclined surfaces in those lots. He testified that defendants' conduct violated those industry standards. While the industry report on which he relied was written in 1967, its common-sense recommendations may have required no later updates. In short, we agree with the trial court that the expert's report did not set forth a net opinion. See Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981).
Reasonable jurors might have determined, even without expert testimony, that it was negligent to place heavy rolling display carts at the top of an incline, with nothing to restrain them from rolling off into the parking lot. However, the expert's testimony could have been helpful in drawing together the relevant information, and explaining the industry standards and the impact of the wind on the carts. See N.J.R.E. 702(1). We find no error in permitting plaintiff to present Natoli's testimony.
IV.
Defendants' remaining arguments require little discussion. R. 2:11-3(e)(1)(E). We find no merit in defendants' argument concerning the motions to dismiss at the close of the plaintiff's evidence and for JNOV. We agree with the reasons stated in the trial judge's oral opinions of October 3, 2011 and November 4, 2011. There was sufficient evidence that Home Depot, which controlled the premises, breached a duty of care in failing to ensure that the four-to-five-hundred pound display carts could not roll away from the front of the store and into the parking lot. There was also sufficient evidence from which reasonable jurors could have inferred that a gust of wind caused the cart to start rolling down the incline into the parking lot, where it struck plaintiff.
We conclude that defendants' argument concerning the inconsistent verdict is barred by the doctrine of invited error. See N.J. Div. of Youth & Family Servs. v. M.C., III, 201 N.J. 328, 340 (2010). The jury initially found that Home Depot and Wooded Acres were both negligent but only found that Home Depot's negligence was a proximate cause of the accident. The jury should not have answered a later question on the verdict sheet, apportioning liability between the two defendants, but it did so, finding Home Depot 80% liable and Wooded Acres 20% liable.
Immediately after the jury returned its verdict, plaintiff's counsel asked the judge to address the issue with the jury to clarify the verdict. Defense counsel insisted that the judge did not have authority to do so. Clearly that was incorrect. See Roland v. Brunswick Corp., 215 N.J. Super. 240, 244 (App. Div. 1987). According to the judge's later oral opinion deciding defendants' new trial motion, counsel also told him they would "work it out" because the defendants had agreed in advance on a split of any damage award, and they told him he could "mold the verdict." Once the judge dismissed the jury, however, defense counsel immediately argued that the verdict should be reduced by twenty percent.
To the extent the verdict appeared to be inconsistent, the judge could have re-charged the jury and sent it back to continue its deliberations and return a consistent verdict. The court's failure to do so was directly attributable to defense counsels' litigation tactics. Defendants are therefore barred from raising the issue here. M.C., III, supra, 201 N.J. at 340.
However, even if we consider the issue, we note that the verdict as molded by the judge was entirely consistent with the evidence and was in no way a miscarriage of justice. On this record, there was evidence that both defendants were negligent in the way they handled the plant carts. However, there was testimony from Home Depot's former manager that Home Depot was ultimately responsible for the placement of the carts on the apron in front of the store, and there was testimony that Wooded Acres' employees were not present at the store at the time of the accident. Hence, there was a clear basis for the jury to find that only Home Depot's negligence was a proximate cause of the accident. Further, since the jury found that plaintiff was not negligent, and defendants agreed in advance on the percentage each would pay should the jury award damages, any error by the jury in allocating liability between defendants would be harmless.
To summarize, plaintiff suffered severe and life-changing injuries as the result of the cart accident. The damage award, totaling slightly over $1 million, was supported by sufficient evidence and was not excessive, and the verdict was not a miscarriage of justice. See R. 4:49-1.
Affirmed in part, reversed in part, and remanded for the limited purpose of entering an amended judgment consistent with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION