SALVATORE MODICA v. JOSEPH RUTIGLIANO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6641-03T36641-03T3

SALVATORE MODICA,

Plaintiff-Appellant,

v.

JOSEPH RUTIGLIANO and

JOSEPH RUTIGLIANO & SONS, INC.,

Defendants-Respondents.

__________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Lintner, Holston, Jr. and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-4701-01.

Lynch & Lynch, attorneys for appellant (Russell H. Rein, of counsel and on the brief; James S. Lynch, on the brief).

Vincent R. Glorisi, attorney for respondents.

PER CURIAM

Plaintiff, Salvatore Modica, was injured while working as a casual employee for Joseph Rutigliano & Sons, Inc. (company) and its owner, Joseph Rutigliano (Rutigliano) (collectively referred to as defendants). Plaintiff sued defendants in the Law Division alleging that defendants were negligent in the operation of a forklift, and that their negligence proximately caused an accident and personal injuries to plaintiff, for which plaintiff sought money damages. After a several day jury trial, the jury on April 6, 2004 determined liability in favor of plaintiff by finding defendants 80% negligent and a proximate cause of the accident, and plaintiff 20% negligent and a proximate cause of the accident.

The jury awarded plaintiff damages in the total amount of $559,898 based on its answers to special jury interrogatories in which the following categories of damages were found: (1) past lost wages $83,000; (2) past medical bills $164,898; (3) past disability impairment, loss of the enjoyment of life, pain and suffering $0; (4) future lost wages $220,000; (5) future medical bills $85,000; and (6) future disability, impairment, loss of the enjoyment of life, pain and suffering $7000. The court by Final Judgment dated June 30, 2004 molded the jury verdict to account for the plaintiff's 20% comparative negligence by reducing the jury's total award of $559,898 to $447,918, adding prejudgment interest in the amount of $23,093 in accordance with Rule 4:42-11(b), and further reducing the verdict by $181,466, for workers' compensation benefits already received by plaintiff pursuant to N.J.S.A. 2A:15-97 (Collateral Source Rule), resulting in a final judgment in favor of plaintiff and against defendants in the amount of $289,545.01.

Plaintiff appeals the Law Division's June 25, 2004 order denying his motion for additur, or in the alternative, a new trial on the issue of damages. We affirm in part and reverse and remand in part.

Plaintiff, on March 3, 2001, during his first day of work for defendants, sustained a severe crush injury proximately caused by Rutigliano's operation of a forklift to remove pallets that had been loaded onto a truck, at the rear of a warehouse on defendants' property. In order to remove the forklift that had become stuck in mud, Rutigliano attached a large chain connecting the stuck forklift and another forklift located on the downslope of the entrance ramp of the warehouse. When Rutigliano attempted to pull the stuck forklift out of the mud using the chain, the forklift that Rutigliano was operating slipped to the side of the ramp and crushed plaintiff, who was standing against the side of the entranceway to the warehouse.

Plaintiff testified that after the forklift pushed him against the building he recalled screaming, "It's squeezing me, squeezing me!" Once unpinned from the forklift, plaintiff collapsed and was taken by ambulance to Robert Woods Johnson Hospital. At the hospital, plaintiff was diagnosed with severe injuries that included an "open book" fracture of the pelvis, extensive internal bleeding and a ruptured bladder. Plaintiff initially had three surgeries: (1) to install external fixators to re-orientate the front of the broken pelvis; (2) to place a pin in the thigh bone to assist the fixation there; and (3) to install a filter in a primary vein to help avoid potentially fatal problems with blood clots traveling to the lungs and brain. A fourth surgery, several days later, permanently installed three screws in the right sacroiliac joint at the back of the pelvis.

Dr. Arthur Tiger, a board-certified orthopedist, who testified for plaintiff, opined that the long term effects of the presence of screws in the pelvis and additional bone growth are "discomfort and pain." Dr. Tiger stated that as a result of plaintiff being crushed that he was in "tremendous pain." Dr. Tiger confirmed that plaintiff suffered "a tremendous crush injury," requiring numerous surgical procedures with significant residual scar tissue, and traumatic arthritis resulting in "profound disability" that is permanent. Dr. Tiger opined that "Mr. Modica had pain from the day of the accident, had pain during his treatment, has pain now, and will always have pain." Dr. Tiger also testified that plaintiff will walk with a limp due to a hip problem, which he opined would need replacing within the next five years.

Dr. David Gross, defendants' board-certified orthopedic specialist, admitted to the severity of plaintiff's injury and his resulting pain. Dr. Gross testified:

He had a severe injury. He had a pelvic fracture, he had displacement, he had three operations. I concluded that yes, he had a terrific result for the treatment of this injury but that, nonetheless, it was a permanent injury and it was a severe injury and that there was residual and there was a disability caused by this injury.

Dr. Gross added that plaintiff would recover 80% of his mobility. However, Dr. Gross admitted that the 20% loss of function was a "significant loss" to plaintiff and that pain would still continue when plaintiff stands for too long of a period.

Plaintiff testified to having three separate surgeries over two days. On the first day, doctors placed metal braces on him hampering his physical movement for two months. Plaintiff could not get up to go to the bathroom, but instead had a catheter and a bed pan. Bruising covered the lower part of his body. The following day, plaintiff had pelvic surgery where the doctors made several cuts around his midsection. Plaintiff also had a pin placed in his knee.

Plaintiff stated that he went for rehabilitation at Seaview Hospital in Staten Island for two months until the braces were removed in another surgery. After the braces were removed, he returned to Seaview Hospital for rehabilitation for another month. After leaving Seaview Hospital in a wheelchair, plaintiff entered into home nursing care for about two months.

Plaintiff testified that he still uses a cane and has bladder problems. Additionally, he still feels pain from his pelvic and back problem. If seated too long, he feels a burning sensation and maintains that he cannot stand very long. He also asserted that he can no longer do household chores he used to be able to perform.

Plaintiff argues that the trial court erred in denying his motion for a new trial on the issue of damages, contending that the jury's verdict of zero damages for past disability, pain and suffering was inconsistent with its fully sustainable verdict for past medical expenses in the amount of $164,000 and past lost wages of $83,000. Additionally, the uncontroverted and overwhelming evidence was that plaintiff suffered significant pain and permanent disability from the moment of the accident, throughout his treatment and until trial. Further, the uncontradicted evidence was that plaintiff has pain now and will continue to have pain in the future, and his injury and resultant disability are permanent. We agree.

A trial court may order a new trial when, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1. The Supreme Court has articulated the applicable standard for a reviewing court:

In reviewing a trial court's ruling on a motion for a new trial, an appellate court shall not reverse a trial court "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. Accordingly, "The standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court except that due deference should be made to its 'feel of the case,' including credibility." Feldman v. Lederle Lab., 97 N.J. 429, 463 (1984) (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)). At the same time, a trial court's determination is "not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which he is no more peculiarly situated to decide than the appellate court." Dolson, supra, 55 N.J. at 7.

[Caldwell v. Haynes, 136 N.J. 422, 432 (1994).]

Moreover, "[i]n order to determine whether an apparent inconsistency was justified by the record, [the court] must examine and evaluate the proofs for that purpose in the light of the arguments advanced by the parties." Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 528 (App. Div.), certif. denied, 180 N.J. 355 (2004). "[I]n ruling on a motion for a new trial, R. 4:49-1, a trial judge should not substitute [his or] her judgment for that of the jury with regard to the amount of damages awarded unless the sum is so disproportionate to the injuries and resulting disability as to shock the conscience and lead to a conviction that to sustain the award as rendered would be manifestly unjust." Id. at 533 (citing Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). In the event that a damage award is patently inadequate due to mistake, compromise, bias, or prejudice, the court should intervene to rectify the injustice. Id. at 533.

In Love, the plaintiff filed an action under the Federal Employer's Liability Act (FELA) to recover for injuries sustained during his employment. Id. at 527. The parties had stipulated the issue of liability and, therefore, the only issues for the jury to consider were medical causation and compensatory damages. Ibid. The jury returned a verdict in the plaintiff's favor, awarding him $65,000 for lost wages but nothing for pain and suffering. Ibid. In holding that the verdict was fatally inconsistent and that a new trial on the issue of damages was warranted, this court considered the following factors: (1) there was a finding of a medically causal connection between the plaintiff's injuries and the on-the-job accident, and (2) there was a series of surgeries and extended medical treatment resulting from the accident. Id. at 532. We explained:

On the evidential record developed at trial, the jury might have been well warranted to take a skeptical view of plaintiff's allegations of lasting injury or long-term pain and suffering. Yet, there can be no question that plaintiff experienced some transitory pain and suffering, at the very least, as a consequence of each of the surgeries required, for the period of recovery, if not before and beyond. Nevertheless, the jury made no award whatsoever that would fairly compensate plaintiff for those logically inescapable periods of pain and suffering, however brief they may have been perceived to be, or however low a percentage of plaintiff's total pain and suffering the jury may have attributed to the incident at issue in relation to the pre-existing injuries. For this reason, even with the utmost regard that must be accorded a jury's evaluation of factual issues, we must view the verdict as rendered to be fatally inconsistent and clearly the result of mistake, compromise, passion or prejudice. Therefore, the trial court should have granted plaintiff's motion for a new trial.

[Id. at 532-33 (citation omitted)(emphasis added).]

As our recitation of the evidence at trial confirms, plaintiff suffered "a tremendous crush injury" causing an "open book pelvis fracture," requiring numerous surgical procedures with significant residual scar tissue, extensive traumatic arthritis, resulting in severe pain and "profound disability" that is permanent. The accident was a direct cause of plaintiff's injuries, and there was no evidence that plaintiff's pain or disability was caused from another injury sustained prior to or subsequent to the forklift accident. The jury unanimously concluded that the accident caused or contributed to the plaintiff's injuries. As a result, the issue of medical causation was conclusively demonstrated by the evidence set forth in the record. The zero damages verdict for past disability, impairment, loss of the enjoyment of life, pain and suffering of zero was clearly so disproportionate to the injuries and resulting disability as to shock the judicial conscience that to sustain the past pain and suffering verdict would be manifestly unjust.

We are satisfied that the jury's awards for past lost wages, future lost wages, past medical bills and future medical bills all have support within the record. Michael Soundry, an economist, testified on behalf of plaintiff as to his past and future lost wages. After examining the amount that an average mason in New Jersey would have earned and the Bureau for Labor Statistics statistical average earnings per year for a mason, Soundry determined a base yearly earning amount of $38,960 for plaintiff. From this amount he explained that he applied a 3.45% growth rate, deducted unemployment risk, job maintenance expenses and taxes to come up with a yearly loss calculation. This calculation from date of accident to date of trial calculated past wage losses of $82,934. This same calculation was also used to find a future wage loss of $220,399, assuming that plaintiff was to work until his projected retirement at age seventy. The future loss calculation was reduced to present value. The jury found plaintiff should be compensated $83,000 for past wages and $220,000 for future wages. The jury's award is supported by Soundry's testimony.

The jury was likewise justified in its award of past and future medical expenses. Regarding past medical expenses, plaintiff and defendant stipulated to the amount of $164,898. This number was specifically given to the jury both in plaintiff's summation and in the judge's charges. The jury awarded plaintiff the stipulated amount as past medical bills. Additionally, both testifying physicians agreed that the medical treatment provided to plaintiff was necessary given the severity of his injuries.

Plaintiff's future medical expenses were able to be calculated from Dr. Arthur Tiger's testimony. Dr. Tiger stated plaintiff would require physical therapy at $100 a visit every week on a permanent basis, orthopedic visits costing over $100 a visit every three months and a hip replacement costing approximately $25,000. Multiplying the weekly physical therapy visits by plaintiff's life expectancy of 19.26 years established by the economist's testimony and by an actuarial table charged by the court and adding that total to the projected orthopedic visit costs and the cost for hip replacement surgery would have permitted a jury verdict for future medical bills of $132,800.

Defendants' expert, Dr. Gross, testified that no hip replacement was needed because plaintiff's arthritis had not progressed far enough to warrant such surgery, that plaintiff's injuries were not as hampering as Dr. Tiger had intimated and that plaintiff would retain almost 80% of his original mobility.

The jury awarded plaintiff $85,000 in future medical bills. This verdict is consistent with the evidence in the record since the medical expenses projected by Dr. Tiger were decreased by Dr. Gross's testimony.

The jury's verdict for future pain and suffering in the amount of $7000 was clearly not supportable by the evidence given both physicians' testimony attesting to the permanency of plaintiff's injuries and plaintiff's projected residual pain and disability. If the jury's award of $7000 were divided by plaintiff's life expectancy of 19.26 years, the jury's award would amount to $363.44 per year. The award is clearly disproportionate to the pain, suffering and disability projected by the testifying medical experts. To sustain the award would be manifestly unjust.

We are satisfied that the jury's award for past and future lost wages and past and future medical bills was clearly sustainable by the testimony and evidence produced during the trial. The trial court, therefore, properly denied a new trial on those damages issues.

We are, however, convinced that the jury's verdict on past and future disability, impairment, loss of the enjoyment of life and pain and suffering was clearly against the weight of the evidence, inconsistent with the jury's awards for past and future lost wages and past and future medical bills, and the result of mistake, compromise, passion or prejudice. The verdict on past and future pain and suffering shocks the judicial conscience and leads to the conviction that to sustain the award as rendered would be manifestly unjust. Accordingly, the trial court mistakenly exercised its discretion in its failure to grant a new trial on the issue of past and future pain and suffering.

We reverse so much of the Law Division's June 25, 2004 order that denied plaintiff's motion for a new damages trial on the issue of past and future disability, impairment, loss of the enjoyment of life and pain and suffering and remand to the trial court for a new damages trial on those issues.

Affirmed in part and reversed and remanded in part.

 

Defendants did not file a cross-motion seeking a new trial on the issue of liability. There is, therefore, no cross-appeal of the liability verdict.

(continued)

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A-6641-03T3

November 16, 2005