PEDRO MUNOZ and MARY MUNOZ v. LANGER TRANSPORT CORP., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5192-03T25192-03T2

PEDRO MUNOZ and MARY MUNOZ,

Plaintiffs-Respondents/

Cross-Appellants,

v.

LANGER TRANSPORT CORP., JUDITH ADAMSKI,

and JOSEPH ADAMSKI,

Defendants,

and

USA TRUCKING and FREDERICK E. HORN,

Defendants-Appellants/

Cross-Respondents.

_____________________________________________

 

Submitted September 14, 2005 - Decided

Before Judges Weissbard, Winkelstein and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-2446-00.

Schoenfeld, Moreland & Reiter, attorneys for appellants/cross-respondents (Lorne M. Reiter, on the brief).

David J. Ades, attorney for respondents/ cross-appellants.

PER CURIAM

This is an appeal and cross-appeal of the trial court's denial of motions, after jury verdict, for judgment notwithstanding the verdict, a new trial, remittitur (defendants) and additur (plaintiff). Plaintiff also appeals the trial court's denial of his application to add prejudgment interest to the amount awarded for future medical costs. We affirm.

Plaintiff filed a negligence claim, and his spouse, Mary, a per quod claim, against Langer Transport Corp., USA Trucking, Inc., Judith Adamski, Joseph Adamski, and Frederick E. Horn as a result of injuries plaintiff sustained in a motor vehicle accident on March 26, 1998.

At the time of the accident, plaintiff was operating his own tractor trailer, hauling a load for Langer Bulk Transportation, a company for whom he had worked as an independent contractor for a number of years. Just before impact, through his rear view mirror, he saw Horn's truck coming up fast behind him. He braced himself and grabbed the steering wheel. Upon impact, the steering wheel was ripped out of his hands and he "went flying back into the seat." He was then catapulted forward and went over the steering wheel. Plaintiff put his hands up to keep from hitting the windshield. His knees hit the dashboard and his hands collapsed on the windshield. He bent the backrest and broke the seat. The USA truck was empty, but weighed 40,000 pounds. The damage to plaintiff's truck included a broken high air seat, ripped out bottom mounts from the truck, and damage to the trailer.

Plaintiff suffered an instant headache. His neck and back were sore. Nevertheless, he drove the truck and completed his delivery. That night, he went to bed in pain. The next day, he went to work and reported the accident to the safety department. The safety office sent him to the company doctor at a facility known as the Care Station, which plaintiff described as an open clinic. An x-ray was ordered and Motrin prescribed. He returned to the Care Station two months later because his symptoms had not improved. At that time, he complained of pain in his shoulders and arms, numbness in his fingers and a permanent headache. He was again prescribed Motrin and was told the pain would go away. The following month, plaintiff went back to the Care Station, but nothing further was done.

In May 1999, plaintiff returned to the Care Station with complaints of numbness in his upper extremities, spasms in his arms, shoulders and neck, and problems performing sexually. On this visit, he saw a different doctor from the one who had treated him a year earlier. Plaintiff did not tell the doctor about his sexual problems because this doctor was accompanied by a female doctor, and the presence of a female doctor embarrassed him. Additionally, because of comments he overheard the doctor make to the female doctor, he no longer believed the doctors at the Care Station could help him.

The following month, his company, at his request, referred him to Dr. David Gross, an orthopedist, who in turn referred plaintiff to a neurologist, Dr. James Chimenti. Chimenti ordered an MRI of his neck and spine. The test results were negative.

In December 2000, plaintiff sought treatment with another neurologist, Dr. Mark Lazar, who testified at the trial. Lazar found trigger points in the areas of the temporalis muscles (the muscles above the temples), in the forearm, and both sides of his lower back. He ordered an MRI of the cervical spine and brain. The MRI of the cervical spine showed a disc protrusion or herniation between the sixth and seventh cervical vertebrae. It was not pressing on the spinal cord or nerve root, so Lazar concluded it was not a component of radiating pain. The MRI of the brain showed one abnormal area in the left hemisphere, but Lazar could not correlate the abnormality with any particular symptom. He also ordered an EMG of the left arm, the results of which were normal.

Lazar diagnosed plaintiff with C6-7 disc protrusion, myofascial pain, post-concussion syndrome, cervical strain, lumbar strain and cervical radiculopathy. He treated plaintiff with muscle relaxants and anti-inflammatory drugs. The relief was instantaneous and lasted up to two months. Plaintiff was also given a series of trigger point injections. Lazar causally related the injuries to the accident. Further, since plaintiff had undergone years of treatment without improvement, Lazar concluded that all of plaintiff's injuries were permanent.

By the time the damages trial commenced on February 3, 2004, plaintiff had visited Lazar nineteen times and planned to continue to see him "from time to time" for trigger point injections to keep the spasms manageable. Plaintiff introduced Lazar's bill into evidence. The bill, up to the time of trial, was $12,630.

In December 2000, plaintiff saw a urologist, Dr. Ira Markman, who also testified at the trial. Plaintiff was first treated by Markman in 1997 for genital warts (condyloma) and herpes. At that time, Markman prescribed topical medications. When that treatment proved ineffective, plaintiff underwent laser therapy for his genital warts. In Markman's opinion, neither the topical medications nor the laser treatment had any role in causing plaintiff's sexual dysfunction.

When plaintiff saw Markman in December 2000, he complained of numbness in his groin and inability to get an erection. Markman performed a digital rectal exam and found that plaintiff had white blood cells in his prostate, indicating prostatitis. He also performed a penile biothesiometry, an objective test that measures sensation in the penis. The test showed a diminution of sensation. Markman prescribed Viagra for plaintiff. He also ordered blood work, but those test results showed normal levels of testosterone. Thus, a hormonal deficiency was ruled out as a cause of plaintiff's erectile dysfunction.

Plaintiff returned to Markman in May 2001. He reported that he had experienced poor erection with the Viagra and was unable to reach orgasm or ejaculation. He went to Markman again in October 2001 with the same complaints. Markman gave plaintiff a topical cream containing testosterone. Plaintiff saw Markman's partner in February 2002 and complained of numbness in his left testis. The partner ordered a scrotal ultrasound. The scrotal ultrasound showed a dilation of the veins, but it did not explain the erectile dysfunction.

In August 2002, plaintiff called Markman and told him that the Viagra was not working and asked if anything else could be done. Markman saw him in September. He had plaintiff perform a Rigiscan test, which Markman called "state of the art." This test required plaintiff to sleep with a device placed around the base and tip of his penis. The device connected to a computer that measured the frequency and length of his erections, as well as the tumescence, or hardness, of the erection.

On the first night of the test, plaintiff had six erections, which lasted from one to three minutes. There was adequate tumescence at the tip of the penis and borderline adequate tumescence at the base of the penis, but poor rigidity. On the second night of the test, plaintiff had only one erectile event, which lasted for two minutes. Again, there was poor rigidity. On both nights, the penis was not hard enough to penetrate. Markman concluded that the results of this test showed an organic erectile dysfunction, as opposed to a psychological reason for the problem.

Markman also performed a penile Doppler ultrasound. In this test, which is performed to see if there is adequate blood supply to the penis, a drug is injected into the penis to cause an erection. The findings were consistent with mild arteriogenic erectile dysfunction. Markman admitted, however, that the dosage of the drug injected may have been too low to give conclusive results.

Markman sent plaintiff to New York City to see Dr. Zafar Khan, who was one of the few doctors who performed a sophisticated pudendal nerve latency EMG/NC test. In this test, "the stimulation of the dorsum of the skin with a stimulator and the evoked potentials are retrieved from the rectal sphincter by means of a needle electrode." The test showed that plaintiff's pudendal nerve reflex time was significantly delayed, consistent with a reflex arch problem. Markman indicated this could explain plaintiff's numbness and difficulty with erections and ejaculations.

Markman testified that he last saw plaintiff in October 2003. At that time, plaintiff reported the Viagra, even at an increased dosage, was still not working. He started plaintiff on Levitra. He indicated that if the Levitra did not work, he would try plaintiff on a new drug, Cialis.

In Markman's opinion, the accident damaged plaintiff's nerve supply to the point he was unable to achieve neurological sexual function. He acknowledged that plaintiff had suffered a pelvic fracture prior to the accident, but opined it was not a contributing factor to plaintiff's erectile dysfunction because plaintiff had no trouble with sexual activity following this fracture. Markman also acknowledged smoking can cause erectile dysfunction, but dismissed this as a contributing factor to plaintiff's sexual dysfunction, even though plaintiff smoked a half-pack of cigarettes a day.

Dr. Michael Merkin, a neurologist, testified on behalf of defendants. He examined plaintiff on October 25, 2003. He found plaintiff to be neurologically normal. Merkin did, however, find evidence of lumbosacral sprain and strain, cervical sprain and strain, and headaches related to the accident. There was no evidence of any nerve damage or anything pushing on the spinal cord to account for plaintiff's pain. He stated that normally, soft tissue injuries go away after seven to ten months, but on cross-examination, he agreed that if this had not happened in plaintiff's case, there was a medical probability that plaintiff's soft tissue injuries would be permanent.

Merkin found no causal relationship between the accident and plaintiff's erectile dysfunction. He stated that although there was an abnormality on the pudendal nerve test, such a finding was not a post-traumatic injury.

Dr. Joel Goldsmith, a urologist, examined plaintiff on November 20, 2001, at the request of defendants. Goldsmith testified that the penile biothesiometry Markman performed was not "necessarily a valid test." He claimed the test was not universally considered reliable and was controversial in the literature.

After his initial evaluation, Goldsmith was provided with further records and served a supplemental report. He opined that because the Rigiscan test is self-administered and not observed, it had the risk of being performed improperly or being improperly recorded. He recommended a sleep study where plaintiff could be observed in a controlled environment. In his opinion, the penile Doppler test was not properly performed because the tester did not use an adequate amount of injectable medicine to produce an erection. He also rejected the pudendal nerve latency test because it did not reveal a problem.

Goldsmith concluded there was no objective evidence to diagnose erectile dysfunction. He believed Condylox, the topical medication plaintiff used to treat his genital warts, could cause damage to the nerves of the penis. He also believed plaintiff's problems could be explained by his previous pelvic injury and smoking.

At the time of the accident, plaintiff was thirty-one years old and had been married about a year. He had an eleven year-old stepson. He testified that after the accident, his marriage became a "marriage without intimacy." Prior to the accident, he rode motorcycles and was active with his stepson, but since the accident, his activities have been limited. His stepson had to do more household chores due to plaintiff's condition and had become resentful, which harmed their relationship. The parties stipulated that plaintiff's life expectancy was 39.57 years. Plaintiff's spouse corroborated her husband's testimony regarding his pre- and post-accident abilities.

Prior to trial, plaintiff settled his claims against all defendants except USA Trucking, the owner of the tractor trailer that struck him, and Horn, its operator.

The case was first tried in 2003. The jury found that although Horn was negligent, his negligence was not a proximate cause of plaintiff's injuries. The trial court granted plaintiff's motion for a new trial but ordered separate trials on liability and damages. The second jury found in favor of plaintiff on the issue of liability.

At the conclusion of the damages trial, the jury awarded plaintiff $60,000 for his pain and suffering and awarded $10,000 for his spouse's consequential damages. It also awarded $17,680 for his past medical expenses and $1,100 for property damage. Finally, the jury awarded $211,210 for his future medical expenses.

Plaintiff's proposed order of judgment included prejudgment interest on the future medical expense award. Defendants filed an objection, and following oral argument, the judge refused to include prejudgment interest on that portion of the judgment.

Defendants moved for a judgment notwithstanding the verdict dismissing plaintiff's claims for future medical expenses, for a new trial on the issue of future medical expenses, and for remittitur. Plaintiff filed a cross-motion for a judgment notwithstanding the verdict, a new trial, or an additur of the $60,000 pain and suffering verdict. His spouse sought a new trial or an additur of the $10,000 per quod award.

The trial judge denied all of the motions. He found more than sufficient evidence to support the jury's award of future medical expenses and also found no basis for additur or remittitur.

On appeal, defendants contend plaintiff never asserted a claim for future medical expenses prior to trial or produced any discovery to support such a claim. They claim the only discussion about future medical treatment occurred during cross-examination of plaintiff's treating physician, Dr. Lazar, who testified plaintiff would need future trigger point injections. Further, defendants maintain it was the trial court that raised the question of future medical expenses during the charge conference. Plaintiff's counsel's inquiry to the court as to whether he was required to submit actual figures to the jury is, they urge, further evidence that a claim for future medical expenses was never contemplated. In the alternative, defendants urge the trial court erred in denying their motion for a new trial or, alternatively, remittitur because the award for future medical expenses was completely unsupported by the record and excessive.

Our review of a trial court's denial of a motion for judgment notwithstanding the verdict is limited to a determination of whether the evidence submitted to the jury can support the jury verdict. Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Thus, a reviewing court should not disturb a trial court's denial of the motion if the evidence, along with all legitimate inferences therefrom, could uphold a judgment in favor of the non-moving party. Lanzet v. Greenberg, 126 N.J. 168, 174 (1991).

A plaintiff who is awarded a favorable verdict is entitled to fair and reasonable compensation for future medical expenses. Schroeder v. Perkel, 87 N.J. 53, 69-70 (1981). The test to be applied is whether there is a reasonable probability of incurring future medical expenses to treat or cure the injury sustained as a result of a defendant's negligence. Coll v. Sherry, 29 N.J. 166, 175 (1959). In Pitti v. Astegher, 133 N.J. Super. 145 (Law Div. 1975), we explained:

In the event the jury finds from appropriate medical testimony that such future medical and hospital expenses are reasonably required for the examination, treatment and care of the injuries sustained by plaintiff as a proximate result of the negligence of either or both defendants, it may award damages for future medical and hospital expenses. The test, as enumerated in Coll v. Sherry, 29 N.J. 166, i[s] reasonable probability. To some extent the amount of such award, if the jury so finds it appropriate, is to be left to the good judgment of the finder of facts -- the jury in this case. It is not a matter of mere speculation if there is some basis in the evidence admitted at the trial that in reasonable probability such treatments may be required. Id. at 174-175.

[Id. at 149.]

Here, the trial court found:

[T]here were bills that were submitted into evidence, there was testimony of the . . . doctors that do support that the plaintiff has a chronic problem. That he has these flare-ups that he needed treatment. There was [sic] the bills that were submitted. Dr. Lazar's bills; indeed, averaged such that, I - think it's a very reasonable inference that can be drawn from the evidence that was present and - and giving the benefit of all reasonable inferences, at least on the motion for judgment notwithstanding the verdict, the - that there's sufficient - more than sufficient evidence warranting a - an award such as the jury made in this instance on the future medical bills.

Defendants' contention that no evidence or claim for future medical expenses was presented in this litigation and that the idea of future medical expenses surfaced for the first time during the charge conference is not supported by the record. Plaintiffs supplemented their answers to interrogatories with reports of Markman and Lazar. Both reports discussed the need for continuing treatment. Their bills up to the time of trial were introduced into evidence and corroborated plaintiff's continuing treatment up to that point.

At trial, Lazar testified plaintiff would continue seeing him every two to three months for trigger point injections to alleviate the pain in his neck, shoulders and back. Contrary to defendants' assertion that Lazar's testimony about future treatment only surfaced during cross-examination, Lazar testified on direct examination that plaintiff would need to continue to see him with the same frequency as in the past. Even assuming the need for future medical treatment was expressed during cross-examination, the jury, in reaching its determination, was not limited to plaintiff's evidence elicited during direct examination. The evidence a jury may consider in reaching its decision may be derived from any believable evidence, irrespective of which side presented it. State v. Martini, 131 N.J. 176, 305 (1993), overruled in part on other grounds, State v. Fortin, 178 N.J. 540 (2004).

Lazar testified his bill at the time of trial was $12,630 and that it was reasonable and customary in the field. Defendant's expert, Merkin, opined the trigger point injections were neither reasonable nor necessary so many years after the accident. He conceded, however, that if a patient of his was having muscle spasms, even several years after an accident, he would treat the patient to the extent medically necessary. Moreover, he was unable to say whether $325 per visit for trigger point injections was reasonable.

Markman also testified that he intended to see plaintiff until his problems were resolved, saying, "[w]e'll keep on trying. I'm not going to give up on him." He also stated that other treatments plaintiff might try in the future included penile implants, injections and vacuum pumps.

In summary, plaintiff provided defendants with discovery addressing his continuing treatment and the cost of that treatment, well in advance of the second trial. At trial, evidence was presented of the chronic and permanent nature of plaintiff's injuries, and the medical bills plaintiff incurred up to the time of trial were introduced into evidence. From this evidence, the jury could reasonably conclude that future medical treatment was needed. Further, the fact that the actual projected cost of such treatment was not presented did not deprive the jury of the ability to reasonably and objectively measure future medical expenses in dollars and cents. Mauro v. Owens-Corning Fiberglas Corp., 225 N.J. Super. 196, 211 (App. Div. 1988), aff'd, Mauro v. Raymark Indus., Inc., 116 N.J. 126 (1989). See also Procanik by Procanik v. Cillo, 97 N.J. 339, 352 (1984).

In light of our determination that there was sufficient evidence in the record from which the jury could reasonably determine the need for future medical treatment and to arrive at an award for future medical expenses, we find it unnecessary to address the portion of defendants' new trial motion that claimed plaintiff failed to present any evidence of the amount of future medical expenses which should be awarded.

Defendants' new trial motion, in the alternative, sought remittitur. In Tomaino v. Burman, 364 N.J. Super. 224 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004), we instructed:

Remittitur "describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001).] In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award. Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987). Remittitur is designed to bring excessive damages awarded by a jury to the level that the court knows is within the limits of a proper verdict and thereby avoid the necessity of a new trial. Fertile, supra, 169 N.J. at 491.

A remittitur is used not only to correct a miscarriage of justice but also to avoid the expense and delay of a new trial.

[Id. at 230.]

In assessing whether the quantum of damages assessed by the jury is excessive, a trial court must consider the evidence in the light most favorable to the prevailing party. Caldwell v. Haynes, 136 N.J. 422, 432 (1994).

An "excessive" verdict is one which "is so disproportionate to the injury and resulting disability shown as to shock [the trial judge's] conscience and to convince [the judge] that to sustain the award would be manifestly unjust." Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). However, "a court should not hesitate to modify a verdict which is unsupported by credible evidence [or] overlooks or undervaluates crucial evidence." Law v. Newark Bd. of Educ., 175 N.J. Super. 26, 38 (App. Div. 1980).

Here, with regard to the new trial motion, the judge stated:

[T]he motion for a new trial requires that the Court grant the motion, if having due -- given due regard to the opportunity of the jury to pass on the credibility of the witnesses, it is -- clearly and convincingly appears that there was a miscarriage of justice under the law. I cannot find, on -- on either party's motion for a new trial, that -- that there -- under that standard, that it clearly and convincingly appears that there was a miscarriage of justice. I don't believe there was. I -- I think that the jurors made a rational decision, based upon the evidence that was put before them.

With regard to remittitur (and plaintiffs' motion for additur, to be discussed in the next section), the judge stated:

With regard to additur and remittitur, I don't find any basis to do that. Again, the jury had an opportunity to pass upon the evidence that was presented to them. . . . [I] find that . . . there's no basis to disturb those -- that -- those awards. And we did break it down, so that the jury would identify the various categories of -- of pain and suffering, and medical expenses, and such, and -- and the per quod claim of the wife. And it's not the -- the Court's obligation to serve as thirteenth juror. And it's not for me to substitute my judgment for that of the jury, that I would reach a -- a different verdict. And the -- the case law provides that the Judge should not interfere with the quantum of damages, unless it is so disproportionate to the injury and resulting disability, so as to shock the conscience and -- and convince the Court that the award would be manifestly unjust. I don't find that there's any evidence that would support a finding by the Court, such as to shock the conscience of the Court or that there would be a manifest unjustice -- injustice as a result of the award of the jury.

In reviewing the trial court's decision on remittitur in lieu of a new trial on damages, we will not reverse "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Defendants maintain the jury's "assessment of damages for future medical treatment is not subjectively, but objectively incorrect." This, they claim, is because "a completely calculable and objective portion of evidence" was not presented at trial. There was no evidence presented concerning the cost of future medical treatment or the reasonableness of the costs, and thus, there was a manifest lack of inherently credible evidence entitling defendants to a new trial. In order to avoid a new trial, defendants argue the court should apply the remedy of remittitur to reduce the jury verdict by eliminating the award for future medical expenses, which was $211,210.

Consideration of past medical expenses in order to determine future medical expenses is not a novel concept. See Green v. General Motors, 310 N.J. Super. 507, 535-36 (App. Div. 1998), certif. denied, 156 N.J. 381 (1998); Peer v. City of Newark, 71 N.J. Super. 12, 33-35 (App. Div. 1961), certif. denied, 36 N.J. 300 (1962). Other jurisdictions, however, have considered this issue directly and have held that past medical expenses may be an indicator of future medical expenses. In Hartt v. Wiggin, 379 A.2d 155 (Me. 1977), the court stated:

It was permissible for the jury to infer from that evidence that appellee's back condition would persist as it had persisted for the preceding three and one-half years and that appellee would reasonably continue to seek the same forms of relief and treatment in the future as he had in the past. Under these circumstances the cost and frequency of past medical treatment, the average monthly cost of medication, and appellee's life expectancy were proper factors to be considered in assessing future medical costs.

[Id. at 157.]

In Williams v. Gates, 630 S.W.2d 34, 36 (Ark. 1982), the court held that it was not speculation and conjecture to calculate future medical expenses where a jury had before it a history of medical expenses that had accrued as of the date of trial. Similar holdings were made by the courts in Seymour v. Carcia, 604 A.2d 1304, 1306-07 (Conn. 1992), overruled in part on other grounds, Marchetti v. Ramirez, 688 A.2d 1325, 1328 (Conn. 1997); and Pratt v. Stein, 444 A.2d 674, 697-98 (Pa. Super. 1982).

Here, plaintiff's experts testified to the chronic and permanent nature of his injuries. They also testified as to the need for future medical treatment. Plaintiff's life expectancy was stipulated to be 39.57 years. His past medical bills were $17,680 over the course of three years, or $5,893 per year. While not suggesting the jury used this approach, dividing the award of $211,210 for future medical expenses by plaintiff's life expectancy yields a yearly amount of $5,337. This figure is less than the yearly medical expenses plaintiff incurred in the three years leading up to the trial. Given the evidence presented to the jury, it cannot be said the damages awarded for future medical expenses were so disproportionate as to shock the judicial conscience. Glowacki v. Underwood Mem. Hosp., 270 N.J. Super. 1, 14-15 (App. Div. 1994).

In the cross-appeal, plaintiff claims the motions for judgment notwithstanding the verdict, a new trial, or an additur should have been granted because the awards for pain and suffering and the per quod claim were inadequate.

As noted earlier, the trial judge denied these motions at the same time he denied defendants' motions, finding there was no miscarriage of justice, but, rather, the jurors had made a rational decision based on the evidence before them. We agree.

Additur is the converse of remittitur. Henker, supra, 216 N.J. Super. at 516. It is an order denying a plaintiff's application for a new trial on condition that a defendant consents to an increase in the damages verdict as specified by the trial judge. Tronolone v. Palmer, 224 N.J. Super. 92, 97 (App. Div. 1988). "The option to consent to an additur or risk the outcome of a new trial is defendant's. Plaintiff's choice is to accept the increased award or to appeal." Ibid.

In deciding whether the quantum of damages assessed by the jury was inadequate, the trial court must consider the evidence in the light most favorable to defendants. Monheit v. Rottenberg, 295 N.J. Super. 320, 327 (App. Div. 1996).

The principal goal of damages in personal injury actions is to award an amount of money that will make the plaintiff whole, so far as money can do so. Caldwell, supra, 136 N.J. at 433. Because the nature of pain and suffering is subjective, the amount of a monetary award necessary to accomplish the goal is left to the sound discretion of the jury with limited but important guidance. Doud v. Hous. Auth. of the City of Newark, 75 N.J. Super. 340, 346-47 (App. Div 1962). Jurors are to arrive at a fair and reasonable award of damages for pain and suffering based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. Panko v. Flintkote Co., 7 N.J. 55, 62 (1951).

Plaintiff argues that evidence was presented as to his life expectancy and the chronic and permanent nature of the injuries. He emphasizes that defendants' own expert, Merkin, admitted that plaintiff had permanent soft tissue injuries. He also notes the jury heard extensive testimony as to how his injuries impacted upon his ability to engage in daily activities and the strain those injuries placed upon his relationship with his wife and stepson. Thus, the $60,000 award for pain and suffering translated into only $1,320 a year, a result inconsistent with the evidence presented.

Further, plaintiff contends the jury's apparent lack of an award for the erectile dysfunction is contrary to the credible evidence at trial and against the weight of that evidence. He argues that objective tests showed that he suffered from organic erectile dysfunction, that as of the time of trial, his condition had been unresponsive to treatments, was expected to continue and, according to his experts, was causally related to the accident. Plaintiff's experts further opined that the accident was a proximate cause of the erectile dysfunction. Defendants' expert, Goldsmith, did not perform any tests on plaintiff, and his knowledge of the field was outdated.

Plaintiff's spouse contends evidence was presented about the change in plaintiff's personality, how it affected their relationship, and how she was forced to do many of the household chores plaintiff could no longer perform. Moreover, she argues the jury also heard testimony that there was a lack of intimacy between them due to his erectile dysfunction, whereas prior to the accident, they engaged in sexual relations four to five times per week.

The jury's award for pain and suffering was one lump sum. There is no indication that special interrogatories requesting separate assessments of damages as to the soft tissue injuries and the erectile dysfunction were ever requested by counsel. Nylander v. Rogers, 41 N.J. 236, 240 (1963). Thus, plaintiff's claim that the jury did not award him any amount for his erectile dysfunction is speculative.

When the evidence is viewed in a light most favorable to defendants, there was sufficient evidence from which the jury could reasonably conclude that plaintiff's erectile dysfunction was not proximately caused by the accident. Defendants' expert challenged the validity of the testing performed upon plaintiff and would not concede plaintiff had a problem. Although rejected by plaintiff's experts, the jury heard evidence of other causes of erectile dysfunction, including the fact that plaintiff smoked half a pack of cigarettes a day, his prior history of herpes, condyloma, and the treatment for those conditions, as well as his prostatitis and a previous broken pelvis. Further, plaintiff waited over a year before bringing his erectile dysfunction claims to the attention of any doctor, and it was over two-and-a-half years after the accident before he sought any treatment for it. From this, the jury could have reasonably concluded that if plaintiff suffered from erectile dysfunction, it was not causally related to the accident.

There was also evidence that plaintiff lost no time from work as a result of the accident, and although he initially sought treatment right after the accident and continued that treatment for the next three months, thereafter he did not seek further treatment for nearly one year. Thus, it cannot be said that the award of $60,000 to him and $10,000 to his wife was a manifest miscarriage of justice for which corrective judicial action was warranted. Baxter, supra, 74 N.J. at 596.

In his cross-appeal, plaintiff also contends the judge erroneously disallowed prejudgment interest on the future medical expenses award from the date of the filing of the complaint, March 17, 2000, until the effective date of the rule change, June 30, 2003. After carefully reviewing the record, we conclude that this issue is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

All references to plaintiff shall be to plaintiff, Pedro Munoz.

Every document and reference in the briefs, including the judgment, states that the jury awarded $211,220 in future medical expenses. However, the transcript shows that the award was $211,210. The verdict sheet was not submitted for comparison.

R. 4:42-11(b), as amended, prohibits prejudgment interest on economic losses such as medical expenses.

(continued)

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A-5192-03T2

October 3, 2005