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Tufaro v. Headquarters Plaza

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Aug 31, 2015
DOCKET NO. A-3737-13T3 (App. Div. Aug. 31, 2015)

Opinion

DOCKET NO. A-3737-13T3

08-31-2015

RICHARD L. TUFARO and SHARON M. TUFARO, his wife, Plaintiffs-Respondents, v. HEADQUARTERS PLAZA, THE OLNICK ORGANIZATION, FISHER DEVELOPMENT, INC., 5TH ROC-JERSEY ASSOCIATION, CB RICHARD ELLIS COMPANY, HEADQUARTERS PLAZA SECURITY SERVICES, GLOBAL HYATT CORPORATION and HYATT MORRISTOWN, Defendants, and SCHINDLER MANAGEMENT, LTD., Defendant-Appellant.

Ronald J. Riccio argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Richard E. Brennan, of counsel; Walter R. Krzastek, on the brief). Andrew A. Fraser argued the cause for respondents (Laddey, Clark & Ryan, LLP, attorneys; Mr. Fraser, of counsel; Timothy E. Dinan and William B. Thayer, on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-0945-07. Ronald J. Riccio argued the cause for appellant (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Richard E. Brennan, of counsel; Walter R. Krzastek, on the brief). Andrew A. Fraser argued the cause for respondents (Laddey, Clark & Ryan, LLP, attorneys; Mr. Fraser, of counsel; Timothy E. Dinan and William B. Thayer, on the brief). PER CURIAM

This matter is before us a second time. In Tufaro v. Headquarters Plaza, No. A-4153-11, (App. Div. Mar. 8, 2013) (slip op. at 2), certif. denied, 214 N.J. 118 (2013) (Tufaro I), we reversed a $4.8 million judgment in favor of plaintiffs Richard and Sharon Tufaro against defendant Schindler Elevator Corporation that followed a jury trial conducted in 2012. Although defendant had admitted negligence, we concluded that the judge's failure to adequately explain the issue of proximate cause as it related to the claimed damages, as well as a confusing jury interrogatory form, was "fully capable of engendering an unjust result." Id. at 19.

Although citing an unpublished opinion is generally forbidden, we do so here to provide a full understanding of the issues presented and pursuant to the exception in Rule 1:36-3 that permits citation "to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121, 126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).

A second trial took place in early 2014, approximately two years after the first, and based largely on the same testimony, the jury returned a more favorable verdict for plaintiffs totaling in excess of $8 million dollars in damages for pain and suffering, medical expenses and loss of consortium. The judge entered judgment, including prejudgment interest, in the amount of $10,262,985.92. Defendant's subsequent motion for a new trial, or in the alternative remittitur, was denied, and this appeal followed.

Plaintiff Sharon Tufaro's claims are wholly derivative of her husband's. Throughout the opinion, therefore, we shall use the singular, "plaintiff," and, unless otherwise noted, refer to Richard Tufaro.

Before us, defendant argues that, even though it had stipulated to liability before trial, the judge permitted repeated references to defendant's negligence, and the judge's charge and the jury verdict sheet "improperly required the jury to deliberate and decide the issue of negligence," thereby "unfairly den[ying defendant] the benefit of its stipulation." Defendant also claims that plaintiff's counsel invoked the "golden rule," i.e., suggesting that in their deliberations jurors should place themselves in the shoes of plaintiff, and that the judge permitted two of plaintiff's experts, James Filippone, a mechanical engineer, and Dr. James Dwyer, an orthopedic surgeon, to provide net opinion testimony, while at the same time limiting proper questioning of defendant's witnesses. Defendant argues that based upon these errors, individually or cumulatively, a new trial is required. Additionally, defendant argues that the damages awarded are "grossly excessive, shock[] the conscience, and require[] a new trial or remittitur."

We have considered these arguments in light of the record and applicable legal standards. We affirm the judgment finding that, to the extent there were trial errors, they were not "clearly capable of producing an unjust result." R. 2:10-2. However, we also conclude that the analysis conducted by the judge on defendant's motion in the alternative for a remittitur was inadequate under the Supreme Court's most recent guidance. We therefore remand the matter so the trial judge may conduct a new hearing on defendant's request for a new trial or alternatively, remittitur, and to engage in a complete analysis of the jury award in this case in accordance with the guidance provided in He v. Miller, 207, N.J. 230 (2011).

I.

The evidence at trial was not terribly complex or extended and varied little from the first trial. See Tufaro I, supra, at 2-8. On August 19, 2005, plaintiff, forty-seven years old at the time, was working as a carpenter at Headquarters Plaza in Morristown. At the end of his work day, he entered the service elevator to descend to the parking lot of the complex carrying a seventy-five pound bag of tools and wearing a tool belt of approximately thirty pounds. As the elevator descended, it began to shake and then came to an abrupt stop. Plaintiff lunged forward, his upper body striking the elevator panel, but he did not lose his balance or fall.

Security officers arrived in response to plaintiff's emergency call, and when the door was opened, the elevator was stuck between floors. Plaintiff was able to exit without further incident. He complained of some back pain, but denied any medical attention and left. The next day, plaintiff went to the hospital emergency room where x-rays were taken and various medications prescribed.

In the ensuing months, plaintiff was seen by various medical professionals. By the summer of 2006, plaintiff's complaints of neck and back pain, pain in his left knee and right shoulder had persisted, and he came under the treatment of Dr. Dwyer. Dwyer, in turn, referred plaintiff to another doctor, for treatment of his shoulder pain. By 2007, plaintiff had gained sixty pounds because of inactivity resulting from these various ailments, and was diagnosed with hypertension and diabetes. In 2008, plaintiff had arthroscopic surgery on his left shoulder, but still had complaints of pain and stiffness. Dr. Dwyer told him it was unlikely surgery on his neck or back would be successful.

Plaintiff developed erectile dysfunction (ED). He testified that he could no longer "get or maintain an erection and have sexual intercourse with [his] wife." Plaintiff consulted a urologist, underwent cystoscopy and was prescribed medications, to no avail. On cross-examination, plaintiff conceded that with the help of Viagra he was able to attempt intercourse.

Plaintiff continued to have pain in his neck that radiated down his arm, as well as low back pain that radiated down his leg. He was under the care of a psychologist as a result of his ailments that continued to impact his activities of daily living, and his relationships with his wife and grandchildren.

Plaintiff's wife corroborated much of her husband's account. She described his continued physical limitations and psychological struggles. Asked if she and plaintiff had problems with intimacy, she responded, "We don't have a physical relationship," and she further testified that medicines prescribed for plaintiff did not help. Defendant read a portion of plaintiff's wife's deposition testimony, however, in which she acknowledged the couple had sex once a month.

Dr. Michael Ciccone, an expert in urology, consulted with plaintiff and reviewed all his medical reports. Dr. Ciccone opined that plaintiff's ED was caused by nerve injury resulting from the elevator incident, and plaintiff's chances of recovering normal sexual functioning were "minimal to none."

Dr. Dwyer testified via videotape. He began treating plaintiff in 2006 and diagnosed plaintiff with herniated discs of the cervical and lumbar spine, traumatic cervical lumbar sprain and lumbar radiculopathy. Plaintiff's pain worsened over the course of conservative treatment, and Dr. Dwyer ultimately concluded that plaintiff's prognosis was poor and surgery would not be helpful. Dr. Dwyer opined that plaintiff's injuries were consistent with an axial load injury, likening the free-falling elevator to the equivalent of a person jumping from a height of two-and-one-half stories and landing on his feet.

Dr. James Parolie, an orthopedist, also testified via videotape regarding the arthroscopic surgery he performed on plaintiff's left shoulder. Parolie opined that plaintiff's shoulder would not return to normal functioning. Dr. Seth Ersner-Hershfield, a psychologist, began treating plaintiff for anxiety and depression in August 2011, and he also testified by way of videotape. Dr. Ersner-Hershfield opined that plaintiff suffered from anxiety and depression, both "features of post-traumatic stress disorder," resulting from the elevator accident.

The transcript of the trial does not note Parolie's videotaped deposition was played for the jury. However, a transcript of the videotape is included in defendant's appendix, and that indicates the videotape was indeed played for the jury during trial.

Defendant produced expert medical testimony in rebuttal. Dr. David Rubinfeld, an orthopedist, diagnosed plaintiff with a cervical and lumbosacral sprain, with possible radiculopathy. Dr. Elliot Grossman, a neurologist, essentially opined that the conditions of plaintiff's spine was degenerative in nature and pre-existed the elevator accident. We discuss in greater detail below the limitations the judge placed upon Dr. Grossman's testimony, as well as the exclusion of the testimony of defense witness, Monica Lynch.

Defendant also called Dr. Richard Nachwalter, an orthopedic surgeon specializing in conditions of the spine, as a fact witness. In the months immediately after the accident, Dr. Nachwalter had examined plaintiff on behalf of his workers' compensation insurance carrier, found evidence of degenerative disc disease and diagnosed plaintiff with a muscular strain. The doctor opined at the time that plaintiff's prognosis was "good," although he acknowledged before the jury that he had never seen plaintiff again and was unfamiliar with the reports of doctors that plaintiff subsequently saw and with plaintiff's current condition.

The verdict sheet submitted to the jury asked if "the elevator malfunction caused by [d]efendant['s] . . . negligence [was] a proximate cause of any of [plaintiff's] injuries?" The jury unanimously answered in the affirmative. The jury awarded plaintiff $5.5 million for pain and suffering, disability, impairment and the loss of enjoyment of life, and $267,025.30, for medical costs and expenses. The jury unanimously found that defendant's "negligence [was] a proximate cause of any of [plaintiff's wife's] damages," and awarded her $2.25 million.

Plaintiff called Colleen Rilling, the senior insurance claims representative for Penn National Insurance, plaintiff's workers' compensation carrier, as an expert witness. She testified regarding the reasonableness and amount of medical bills incurred in plaintiff's treatment.

II.

A.

We consider defendant's claims of trial error, starting with the contention that the judge permitted Filippone and Dr. Dwyer to render inadmissible net opinions, and the errors of admitting that testimony were exacerbated by limits the judge placed upon the testimony of two defense experts, Dr. Grossman and John De Lorenzi, an engineer who had retired from defendant's employ and was qualified as an expert in elevator design and mechanics. We also address the exclusion of Lynch's testimony.

Before the jury, Filippone was qualified as an expert in mechanical engineering and elevators. He explained the physics of how an elevator is brought to a stop, telling the jurors that when an elevator stops normally, passengers experience 1/10 of a G-force, a measure of gravitational pull, with one G-force being equal to the person's weight. However, when an elevator exceeds certain speeds, an emergency mechanical braking system is triggered and that was what occurred in this case.

Filippone was familiar with the model elevator in which the accident occurred. He explained that what mattered was the "abruptness of the stop," measured by "peak retardation," the "maximum deceleration rate going from full speed to full stop." Based upon his personal involvement in testing elevators with precise instruments, his participation in industry committees that set and reviewed standards for elevators and "common knowledge in the elevator industry," Filippone estimated that the emergency stop in this case created G-forces on plaintiff's body that were four or five times greater than normal. This was equivalent to approximately 1400 to 1800 pounds, the weight of a horse. There was no objection to specific questions posed to Filippone regarding the amount of G-force.

Defendant could not have been surprised by this testimony since it was contained in Filippone's 2009 expert report, and Filippone rendered a similar opinion regarding the G-forces at the first trial. Tufaro I, supra, at 7-8.

On cross-examination, Filippone conceded that he did not know the exact speed at which the elevator was descending, but that the elevator normally travelled at 350 feet per minute and the emergency braking system would be triggered if the car's speed exceeded 450 feet per minute. However, Filippone stressed the elevator's speed was not the most important factor. Filippone also conceded that he had not performed any tests on the elevator involved, nor had he performed particular calculations. However, he testified that his estimates were based upon industry standards that were well known.

After Filippone finished, defense counsel moved to strike the testimony in its entirety contending it was a "net opinion." The judge denied the motion, concluding that Filippone adequately explained the bases of his opinion, and defendant's objection went to the weight of the testimony and not its admissibility.

Before Dr. Dwyer's videotape deposition was played for the jury, defendant argued that the doctor's opinion that an "axial load" was the mechanism of plaintiff's spinal injury should be excluded because it was a personal opinion. The judge denied the request, concluding that he had ruled on the issue pre-trial after reading the entire deposition transcript, and he saw no reason to reconsider.

We have not been provided with any transcripts regarding defendant's pre-trial application to exclude portions of Dr. Dwyer's testimony. We also note that defendant apparently moved pre-trial in limine to bar Filippone's report, but that motion and any argument that resulted is not part of the record on appeal.

It is accepted that "[e]videntiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). "Under this standard, 'an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Hanisko v. Billy Casper Golf Mgmt., Inc., 437 N.J. Super. 349, 362 (App. Div. 2014) (quoting State v. Brown, 170 N.J. 138, 147 (2001)). "However, [w]hen the trial court fails to apply the proper test in analyzing the admissibility of proffered evidence, our review is de novo." Konop v. Rosen, 425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal quotation marks omitted).

We apply a similarly "deferential approach" and review the decision to admit expert testimony "against an abuse of discretion standard." Pomerantz Paper Corp. v. New Comty. Corp., 207 N.J. 344, 371-372 (2011) (citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-321 (2003), certif. denied sub nom., Kuehn v. Kerkoulas, 178 N.J. 454 (2004)). The trial court "must ensure that the proffered expert does not offer a mere net opinion." Id. at 372 (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

"The net opinion rule . . . mandates that experts be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable." Townsend v. Pierre, 221 N.J. 36, 55 (2015) (internal quotation marks omitted). "The net opinion rule . . . does not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems preferable. An expert's proposed testimony should not be excluded merely because it fails to account for some particular condition or fact which the adversary considers relevant." Id. at 54.

In this case, we find no error in the admission of Dr. Dwyer's testimony. Given the doctor's experience and training, his opinion that an axial load was a "very common mechanism of [such] injury," was not a net opinion, and his failure to calculate the amount of force necessary to cause plaintiff's injuries did not render his testimony inadmissible.

Filippone's testimony is, in our opinion, a closer question. Filippone acknowledged that he did not perform specific tests on, or make particularized calculations regarding, the elevator in question. However, Filippone cited generalized industry knowledge, his involvement in the testing and accrediting of elevators in general, and "physics," as the bases for his opinion. He described, in some detail, why the amount of G-forces on plaintiff was greater because he was alone in the elevator at the time.

The critical issue is whether the judge's decision to admit Filippone's testimony resulted in a manifest denial of justice. Hanisko, supra, 437 N.J. Super. at 362. We cannot conclude that it did. Filippone was vigorously challenged regarding his opinions. There was ample proof that plaintiff's spine injuries were occasioned by the elevator incident, regardless of the amount of G-forces generated by the elevator's abrupt stop. The verdict readily reflects the jury's disregard of defendant's attempts to prove otherwise, i.e., that they were the result of long-standing degenerative processes. In short, while Filippone did not provide in acceptable detail the "why and wherefore" of his opinion regarding the amount of G-forces generated in plaintiff's accident, Pomerantz Paper Corp., supra, 207 N.J. at 372 (internal quotation marks omitted), the omission does not justify reversal.

We next consider whether the judge's rulings regarding three defense witnesses require reversal, either singularly, collectively or evaluated with specific reference to the testimony from Filippone and Dwyer that was admitted.

Defendant called De Lorenzi who had written a report that focused generally on defendant's maintenance of the elevator, concluding that defendant was not negligent. In that report, he criticized Filippone's assertion about G-forces, stating

Filippone theorizes that the force of deceleration . . . could have significantly exceeded 1G but he does not provide any documentation or calculations of the deceleration rate at the time of the incident.
De Lorenzi did not provide any calculations in his report regarding G-forces.

Outside the presence of the jury, the judge conducted a hearing to determine the scope of De Lorenzi's testimony regarding G-forces and whether he would be permitted to say more than what was contained in his report. De Lorenzi believed Filippone's opinions were deficient because they lacked consideration of some necessary variables, however, he admitted that he had not made any calculations regarding the actual G-forces involved in the accident.

Notably, De Lorenzi also testified at the first trial. Tufaro I, supra, at 7-8.

Ultimately, the judge ruled that defendant could call De Lorenzi as a witness "for the narrow purpose of criticizing . . . Filippone for not doing what this witness says that he didn't do." He also ruled that De Lorenzi could not "go beyond" his report because he had not conducted any "calculations himself." The judge additionally prohibited De Lorenzi from testifying about the speed of the elevator, concluding that testimony was connected to the stipulated issue of defendant's negligence.

Before the jury, De Lorenzi explained that Filippone failed to "show any documentation" regarding his G-force testimony, and that "without making some sort of calculation[]," Filippone could not render any opinion "within a degree of . . . engineering certainty." Plaintiff did not cross-examine De Lorenzi.

During Dr. Grossman's testimony, repeated objections by plaintiff's counsel led the judge to conduct a hearing outside of the jury's presence. At issue was the doctor's reliance upon the reports of other medical providers, and his failure to have directly reviewed plaintiff's MRI films. When asked about his reliance upon the reports of other doctors, Dr. Grossman responded that those reports provided additional information but he did not consider them to be "authoritative." The judge largely agreed with plaintiff's counsel that Dr. Grossman could not testify as to the contents of other medical reports, including radiological reports, because they were hearsay. The doctor, however, was permitted to opine that plaintiff suffered from "longstanding degeneration" of his spine, conditions that pre-existed the elevator accident.

Dr. Grossman also testified at the first trial. Tufaro I, supra, at 7.

The judge conducted a Rule 104 hearing outside the presence of the jury before Lynch testified. She worked for Kinematics Consultants, which provided "functional capacity evaluations" of people referred by doctors, employers and insurance companies. She described the tests performed on plaintiff, and the report that was generated therefrom. Lynch acknowledged that she never examined plaintiff, and the data contained in the report was collected by two other "examiners." Defendant proffered Lynch as a "fact witness" who would testify "as to what this functional capacity evaluation consisted of, as specifically with [plaintiff] and the objective results of this examination." Plaintiff objected.

Concluding that Lynch would not qualify as an expert, the judge reasoned that the test results would be admissible if "one of the people who administered the test" was called as a witness. Citing the Court's decision in Hisenaj v. Kuehner, 194 N.J. 6 (2008), and our decision in Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002), the judge barred Lynch from testifying.

Defendant argues each of these evidentiary rulings was error and, when taken together with the judge's admission of Filippone's and Dwyer's testimony, defendant was substantially prejudiced and reversal is necessary. We disagree.

We agree with the judge's rulings regarding Lynch. Neither case cited by the judge is particularly relevant, since both deal with a proffer of expert biomechanical testimony, and Lynch was never called as an expert witness. See Hisenaj, supra, 194 N.J. at 10; Suanez, supra, 353 N.J. Super. at 194. Simply stated, however, defendant called Lynch to admit the results of tests performed on plaintiff by her company. The test results were hearsay, i.e., they were offered for the truth of the matters asserted. N.J.R.E. 801. Defendant never argued before the judge, nor has it argued before us, that the results were admissible under some exception to the hearsay rule.

We also agree that some of the limits placed upon De Lorenzi were appropriate since he never performed any calculations himself, nor were any opinions regarding the actual G-forces during the accident expressed in his report. The import of De Lorenzi's testimony was that Filippone's opinions could not be accepted because they lacked any calculations. The jury heard that criticism.

We think the judge mistakenly exercised his discretion by barring De Lorenzi from discussing the speed of the elevator because, in the judge's view, that fact was relevant to defendant's negligence, something already stipulated. This was an unduly restrictive view of the relevancy of such testimony. However, we fail to see the prejudice to defendant. De Lorenzi's report noted the regular speed of the elevator was 350 feet per minute and 452 feet per minute was the "tripping speed." Filippone agreed with those speeds when questioned by defense counsel during his testimony.

Lastly, we turn to the limits imposed on Dr. Grossman's testimony. In Agha v. Feiner, 198 N.J. 50, 62 (2009), the Court made clear that a medical expert could rely on other experts' reports if they were of the type reasonably relied upon by experts in the field. "[U]nder N.J.R.E. 703, an expert may give the reasons for his opinion and the sources on which he relies, but that testimony does not establish the substance of the report of a non-testifying physician." Id. at 64. "[W]here an expert references the report of a non-testifying expert to explain the basis of his or her own opinion, it is incumbent upon the trial judge, upon request, to instruct the jury regarding its limited use." Id. at 63.

Dr. Grossman's response that he did not view the other experts' reports as "authoritative" seemingly triggered the judge's conclusion that the doctor did not rely upon the reports in forming his own opinions. We do not agree with that conclusion. However, it is also clear that defense counsel was seeking to have Dr. Grossman essentially recite the findings contained in the other reports, which clearly was improper. In any event, to the extent the judge's ruling was in error, we conclude defendant was not prejudiced. Contrary to the assertions in its brief, Dr. Grossman was permitted to opine that plaintiff's injuries were pre-existing and degenerative in nature. The jury rejected the opinion.

B.

Defendant argues that it was error for the judge to permit plaintiff's counsel to make numerous references during trial to defendant's negligence, and for the judge to include the word "negligence" in his jury instructions and on the verdict sheet. The arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add only the following.

We have recognized "that even when liability is stipulated, there can be appropriate references to the happening of the accident as such information may be relevant to the nature of the injuries sustained and damages." Jackowitz v. Lang, 408 N.J. Super. 495, 508 (App. Div. 2009). Here, in his opening statement, during the questioning of Filippone and in his summation, plaintiff's counsel used the word "negligence." However, the written stipulation entered into by defendant and read to the jury by the judge in his closing instructions, stated defendant "was negligent in maintenance of the elevator and . . . such negligence resulted in the elevator malfunctioning." The judge's charge also included a second part of the stipulation, i.e., that defendant did not concede the malfunction was the cause of plaintiff's injuries. We cannot conclude that any references by counsel to "negligence," or the judge's use of the term in his charge or on the jury sheet in anyway confused the jury or denied defendant the so-called benefit of its stipulation.

The record includes the deposition testimony of one of defendant's employees who indicated that from March to June 2005, during an employee lock-out, defendant falsified reports of elevator inspections at Headquarters Plaza.

C.

Immediately before summations, defense counsel asked the judge to advise plaintiff's counsel's not to "reference any corporate punishment being meted out towards . . . defendant," and not to refer to the "golden rule, asking the jurors to put themselves in the shoes of . . . plaintiff." The judge refused, advising defense counsel to object if counsel said something inappropriate.

In summation, after referencing the time-unit formula, plaintiff's counsel, asked the jury to consider what would be "reasonable compensation . . . for one hour" of plaintiff's pain, suffering and restrictions:

You can . . . think of it in terms of putting a want ad in the paper. You are going to hire someone to come in. As part of your job, we are going to put you in an elevator, and the elevator is going to malfunction and it is going to drop two and a half stories and slam to a stop. The forces involved are going to be 4 to 5 Gs, which [Filippone] told us is the equivalent of 1500 pounds of force on [plaintiff's] body. 1500 pounds of force. As a result of that force, you are going to have permanent
damage to your spine, the lower part, the upper part, you are going to be thrown forward into the metal doors, damaging your shoulder and injuring your knee. You are never going to regain normal function. You are going to become depressed. There is going to be medication, surgery and all the rest . . . .

. . . [W]hat would fair compensation be for that employee for one hour.

[(Emphasis added).]
Defendant did not object to these statements. However, at a later point and in a different context, defense counsel objected to counsel "personalizing what jurors personally will experience." In his final comments, plaintiff's counsel said, "As a result of [defendant's] negligence, someone is injured, that corporation is responsible for those injuries. That is the rule. And now it is time for you to hold them accountable."

During the post-verdict motion for a new trial, plaintiff's counsel clarified that while asking this question of the jury, he had been pointing to an empty chair which represented the hypothetical employee who was hired and subjected to this painful encounter. Defendant apparently does not dispute that.

Counsel's summations are expected to be passionate, "for indeed it is the duty of a trial attorney to advocate." Geler v. Akawie, 358 N.J. Super. 437, 463 (App. Div.), certif. denied, 177 N.J. 223 (2003). "Summations must be 'fair and courteous, grounded in the evidence, and free from any "potential to cause injustice."'" Risko v. Thompson Muller Automotive Group, Inc., 206 N.J. 506, 522 (2011) (quoting Jackowitz, supra, 408 N.J. Super. at 505). We have long recognized the inappropriateness of invoking the "golden rule":

As early as 1910, our courts recognized that in determining damages, jurors were not free to adopt what they would want as compensation for injury, pain and suffering, but were instead required to base their verdict upon what a reasonable person would find to be fair and adequate in the circumstances. The Old Testament's "golden rule" that you should do unto others as you would wish them to do unto you may not be applied in this context.

[Geler, supra, 358 N.J. Super. at 464 (citations omitted).]
Here, we do not believe that plaintiff's counsel's argument was a subtle invocation of the golden rule. True, counsel repeatedly used the "you" or "your," but we do not think that was an invitation for the jury to substitute themselves for this hypothetical employee, and, in turn, for plaintiff.

Defendant also argues that counsel impermissibly referred to its corporate status in a "deliberate appeal to prejudice." Defendant cites to Purpura v. Public Serv. Elec. & Gas Co., 53 N.J. Super. 475 (App. Div.), certif. denied, 29 N.J. 278 (1959), for support. However, there, the plaintiff's counsel told the jury that the defendant was "'a big corporation worth a lot of money.'" Id. at 479. In this case, plaintiff's counsel did not make a similar comment. While we think counsel's invitation to have the jury hold defendant "accountable" was improper, we do not believe it compels reversal.

D.

Lastly, defendant argues the errors alleged cumulatively deprived it of a fair trial. In the context of a civil trial, "the cumulative error test most often arises in the context of an appeal as to which the aggrieved party has sought, and been denied, a new trial," as occurred here. Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 51-52 (2009). "As such, it is informed by the dictates of Rule 4:49-1(a), which provides that the motion is governed by the miscarriage of justice standard and evaluated in accordance with a heavy burden, that the appearance of injustice be clear and convincing." Id. at 52. To reverse on the basis of cumulative error, there must be "too many errors [and] the errors [must] relate to relevant matters and in the aggregate render[] the trial unfair." Id. at 55 (first alteration in original) (quoting Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 37 (App. Div. 1998) (internal quotation marks omitted).

For reasons already expressed, we cannot conclude that any of the errors noted materially prejudiced defendant or in any way rendered the trial unfair.

III.

Defendant moved for a new trial raising these same substantive issues and also arguing that the amount of the verdict was excessive. During oral argument, the judge asked defense counsel if he could "point to a similar case in the State of New Jersey . . . in terms of the quantum of damages for [ED]." Counsel cited He, supra, 207 N.J. at 230, and a case reported in New Jersey Jury Verdict and Analysis (NJJVA). Plaintiff's counsel asserted that, upon reviewing the various jury verdicts cited by defendant in its brief, there were no "[o]ther similar verdicts."

As to the various substantive points raised, the judge denied defendant's motion for a new trial, concluding no "individual error or the cumulative effect of any claimed error was clearly and convincingly the cause of any miscarriage of justice under the law." Turning to the issue of remittitur, the judge concluded the case before him was "sui generis because . . . no one can point to a particular case which had the same type of damages over the same protracted period of time." The judge said the "focus of the case in terms of the injury actually sustained . . . was the [ED] and the impact that that's had upon [plaintiff's] life and the life of his wife." The judge specifically noted that he generally approached such claims with a "jaundiced eye" because they are "easy to contrive." However, the jury obviously found plaintiffs to be very credible despite contradictory statements they made regarding their sexual relationship after the accident.

The judge reiterated that the Supreme Court required consideration of "comparative verdicts," but here "there [were] really no comparative verdicts." Again discussing plaintiff's ED, the judge stated without any explication that "while there's no other case like [this], the verdict in this case is not off the mark or outside the realm of reasonableness." He denied defendant's motion.

Before us, defendant contends that the combined award of $7.75 million in non-economic damages was excessive based upon the evidence, and excessive when compared to other similar factual scenarios, including that presented in He. We agree that the judge failed to conduct the necessary analysis in deciding the motion, and we therefore reverse and remand for further proceedings consistent with this opinion.

"Only if it clearly and convincingly appears that a damages award is so excessive that it constitutes a miscarriage of justice is a court empowered to overthrow the jury's verdict and grant a new trial." Johnson v. Scaccetti, 192 N.J. 256, 280 (2007) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977); R. 4:49-1) (internal quotation marks omitted). "The use of remittitur is encouraged whenever possible to avoid the 'unnecessary expense and delay of a new trial.'" Ibid. (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 492 (2001)). Remittitur, however, is not a mechanism for the trial court to substitute its judgment for that of the jury; rather, it is only intended to be used in limited, unusual circumstances. He, supra, 207 N.J. at 252. "[T]he decision to order a remittitur must spring from an overriding sense of injustice, a shock to the court's conscience, a certain and abiding belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable and appropriate." Ibid.

Although recognizing that "no two plaintiffs are identical and no two cases are identical," id. at 253, the Court in He set down guideposts for consideration of a remitittur. The judge must "create a meaningful opportunity for the litigants to be heard and to make a record," and he or she must "identify[] . . . with as much precision as is possible . . . the particular basis on which the court has made its decision." Id. at 254. The

record must include a recitation of the reasons that explain why some of the cases offered by the parties were persuasive and others were not, as well as the court's
description of the cases over which it presided or about which it was aware that it found to be relevant comparisons.

[Ibid.]
The trial judge's "'feel of the case'" is, of course, critical to the analysis, and the judge "must articulate those observations with care and precision." Id. at 255. Lastly, "the standard that . . . appellate courts must utilize is 'substantially similar to that used at the trial level, except that the appellate court must afford "due deference" to the trial court's "feel of the case," with regard to the assessment of intangibles.'" Ibid. (quoting Jastram v. Kruse, 197 N.J. 216, 230 (2008)).

In this case, the judge certainly provided both parties with an opportunity to create a complete record, and he carefully and precisely stated his observations of plaintiff during the trial and his "feel of the case," particularly as it related to the jury's assessment of plaintiff's and his wife's credibility. Unfortunately, other than to state that he believed this case was sui generis, the judge failed to explain why that was so, or why the other comparable verdicts suggested by both defendant and plaintiff, some of which involved claims of ED or sexual dysfunction, were dissimilar.

Defendant, for example, suggested that the plaintiff in He presented a similar constellation of injuries and complaints as plaintiff in this case, in that she suffered from herniated discs and continued pain, was no longer working and was no longer able to engage in sexual relations with her husband. Id. at 237-39. The He Court affirmed the trial judge's decision to remit the jury award of $1 million in non-economic damages and $100,000 in per quod damages to $200,000 and $20,000 respectively. Id. at 239, 259.

Ultimately, a second trial resulted in a jury award of $500,000 for the plaintiff and $100,000 for her husband; this award was affirmed on appeal and the Court denied certification. He v. Miller, No. A-1599-12 (App. Div. Sept. 2, 2014), certif. denied, 220 N.J. 268 (2015).

Without concluding that plaintiff's complaints were in fact similar to the plaintiff in He, we note that the judge failed to address the specific argument defendant made in this regard, except to say that plaintiff's case was "sui generis." If that was a reference to plaintiff's ED, the judge certainly did not differentiate similar claims made by the plaintiff in He. Nor did the judge address, even in passing reference, the numerous unreported cases cited by both sides, some of which included a plaintiff's claim of sexual dysfunction.

We choose not to comment directly on the use of unpublished decisions as a basis for comparison of verdicts, something our colleagues in Mickens v. Misdom, 438 N.J. Super. 531, 543 n.9 (App. Div.), certif. denied, 221 N.J. 287 (2015), criticized directly, nor do we address whether citation to NJJVA is appropriate, or less preferable to citing unpublished decisions that are affirmed on appeal. --------

There is one other glaring omission from the trial court's analysis in this particular case. As already noted, the evidence adduced at this trial was, in all material ways, the same adduced at the first trial, but for the fact that two more years had passed and presumably plaintiff's maladies continued. Yet, the first jury awarded plaintiff $2.8 million in non-economic damages and his wife $950,000 on her per quod claim. In other words, based largely on the same evidence, the second jury's award to plaintiff was nearly twice as much as the first, and the consortium award was nearly two and one-half times as large. Despite presenting the very rare set of circumstances where there were, in essence, "two plaintiffs whose injuries, medical treatment, and life circumstances so perfectly align that they can be exact comparisons," id. at 259, the judge engaged in no discussion of the disparate results of jury awards in the two trials.

In sum, we are compelled to reverse the judgment and remand the matter to the judge to conduct a hearing on defendant's motion for a new trial on the quantum of damages, including, in the alternative, remittitur. We leave the conduct of the hearing to the sound discretion of the trial judge.

In all other respects, we affirm. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Tufaro v. Headquarters Plaza

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Aug 31, 2015
DOCKET NO. A-3737-13T3 (App. Div. Aug. 31, 2015)
Case details for

Tufaro v. Headquarters Plaza

Case Details

Full title:RICHARD L. TUFARO and SHARON M. TUFARO, his wife, Plaintiffs-Respondents…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Aug 31, 2015

Citations

DOCKET NO. A-3737-13T3 (App. Div. Aug. 31, 2015)