BARBARA STEMPLE v. THOMAS W. BORES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3623-03T33623-03T3

BARBARA STEMPLE, Administratrix

and Administratrix Ad Prosequendum

of the ESTATE OF BRUCE JOHN

STEMPLE, JR.,

Plaintiff-Respondent,

and

BARBARA STEMPLE and BRUCE STEMPLE,

SR., individually,

Plaintiffs-Respondents/

Cross-Appellants,

v.

THOMAS W. BORES, JOYCE BORES and

SELECTIVE INSURANCE COMPANY,

Defendants,

and

RICHARD E. EASSON,

Defendant-Cross-Appellant/

Cross-Respondent

and

LOUIS A. CELLIER, JR.,

Defendant-Appellant/

Cross-Respondent.

___________________________________

 

Argued November 9, 2005 - Decided July 19, 2006

Before Judges Skillman, Axelrad and Payne.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8831-01.

Stephen B. Fenster argued the cause for appellant/cross-respondent Louis A. Cellier, Jr. (Gallo Geffner Fenster, attorneys; Mr. Fenster of counsel and on the brief; Gabrielle H. Casini, on the brief).

Michael J. Perrucci argued the cause for respondents/cross-appellants Barbara Stemple and Bruce Stemple, Sr. (Florio & Perrucci, attorneys; Mr. Perrucci, of counsel; Christian M. Perrucci, on the brief).

Thomas W. Griffin argued the cause for respondent/cross-respondent Richard E. Easson (Litvak & Trifiolis, attorneys; Mr. Griffin, of counsel and on the brief).

PER CURIAM

This is an appeal from a final judgment in an automobile negligence case in which a series of cars struck a pedestrian, causing him fatal injuries.

The accident occurred on a street in Paramus around 6:50 p.m. on December 14, 1999, which was a dark, rainy and misty evening. The decedent, Bruce Stemple, Jr., who was dressed in dark clothing, attempted to cross the street in the middle of a block.

Defendant Joyce Bores was the driver of the first car that struck the decedent. The point of impact was around the side view mirror of the driver's side of the car. Bores never saw the decedent, but she heard a thud and was aware she had hit something. Consequently, she made a u-turn and proceeded back to the scene to determine what she had hit.

Defendant Richard E. Easson, who was traveling in the opposite direction from Bores, was the driver of the second car that struck the decedent. According to Easson, he saw a "dark object" come over the hood of his car and "hit the post where the windshield meets the post of the roof[.]" Easson stopped and saw a body lying on the street. Easson testified that before he could reach the decedent, Bores struck him a second time as she was returning to the scene.

Bores denied hitting the decedent a second time. According to her, an unidentified third car ran over the decedent after she had gotten out of her car and was standing next to Easson. This car then drove away without stopping.

Defendant Louis Cellier, Jr. was the driver of the last car that struck the decedent. According to both Bores and Easson, Cellier's car dragged the decedent a substantial distance before he stopped.

The scene of the accident was only a few blocks from the house where the decedent, who was twenty-five years old, lived with his parents, plaintiffs Bruce Stemple, Sr. (Stemple, Senior) and Barbara Stemple. Shortly after the accident, Mr. and Mrs. Stemple came to the scene, where they observed their son's mortally injured body.

When police officers responded to the scene, they noted that the decedent was seriously injured, but his eyes were open and he was breathing. A friend of the decedent said he heard him make a "choking sound" while lying in the street, and another witness testified that she heard the decedent moan. One of the paramedics who drove the decedent to the hospital testified that he had agonal respirations, a gasping and choking that sometimes follows a severe head injury. The decedent was pronounced dead at 9:20 p.m., approximately two-and-a-half hours after the accident.

On October 18, 2001, the Stemples filed a survivorship action against Bores, Easson and Cellier for the pain and suffering the decedent experienced before his death and a claim for wrongful death on behalf of the decedent's eight-year-old daughter. They also joined decedent's automobile insurer, Selective Insurance Company, as a defendant on an uninsured motorist claim for the hit-and-run driver who Bores alleged had struck the decedent.

On May 20, 2002, approximately five months after expiration of the applicable two-year limitations period, plaintiffs moved for leave to file an amended complaint asserting a claim for emotional distress as a result of their observations of their son at the accident scene. The trial court granted the motion, but preserved defendants' right to move for dismissal of the emotional distress claim on the ground that it was barred by the statute of limitations. The court subsequently denied defendants' motions to dismiss plaintiffs' emotional distress claims as time-barred, ruling that those claims "related back" to the timely filed original complaint.

The case was tried before a jury, which found that Bores, Easson, Cellier and the decedent all were negligent and that their negligence proximately caused the accident. The jury attributed responsibility for the accident as follows: Bores, 45%; Easson, 15%; Cellier, 15%; and decedent, 25%. The jury found no negligence on the part of the alleged hit-and-run driver. Based on this finding, the trial court dismissed the claim against Selective.

The jury awarded $100,000 for the decedent's pain and suffering before his death. The jury also awarded the Stemples $2,666,667 each for their emotional distress as a result of observing their son at the accident scene. However, the jury reduced the award to Barbara by 90% and the award to Stemple, Senior by 95% based on its findings that they had failed to mitigate damages. The jury found that the decedent's daughter did not suffer any pecuniary loss as a result of his death.

Defendants subsequent filed motions for a new trial. Plaintiffs also moved for a new trial on damages, but at oral argument requested the full amount of the jury's emotional distress awards, without any reduction based on the jury's findings that they had failed to mitigate damages. The trial court denied all the motions.

Based on the jury's findings, the trial court entered judgment in the aggregate amount of $225,000 against Bores and $75,000 against both Easson and Cellier, plus prejudgment interest.

Cellier appealed the judgment against him, and Easson filed a cross-appeal from the judgment against him. Plaintiffs cross-appealed from the part of the final judgment that reduced the awards of emotional distress damages in their favor based on the jury's findings that they failed to mitigate damages.

Cellier and Easson argue that the trial court erred in (1) holding that plaintiffs' claim for negligent infliction of emotional distress was not time-barred; (2) ruling that there was sufficient evidence of the decedent's conscious pain and suffering to support the submission of the survivorship claim to the jury; (3) allowing the testimony of plaintiffs' accident reconstruction expert; and (4) charging the jury on the contents of various motor vehicle statutes. Cellier also argues that the court erred in (5) allowing the jury to view an unredacted and unauthenticated copy of a police accident report that contained insurance company codes and policy numbers; (6) precluding his cross-examination of a police officer; and (7) excluding his argument in summation that he was not negligent because he did not violate any motor vehicle statutes.

In their cross-appeal, the Stemples argue that the court improperly charged the jury that they had a duty to mitigate their emotional distress damages and that the 90% and 95% reductions were excessive.

We reject the arguments presented on Cellier's appeal and Easson's cross-appeal. Accordingly, we affirm the judgment on liability and the award of $100,000 for the decedent's pain and suffering. However, we agree with plaintiffs' argument that the court erred in submitting the issue of mitigation of damages to the jury. Therefore, we reverse the part of the judgment memorializing the emotional distress awards to the Stemples and remand the case for a new trial as to those damages.

I

Plaintiffs' original complaint, filed on October 18, 2001, did not contain a claim for the emotional distress they suffered from observing their son's mortally wounded body at the scene of the accident and in the hospital. On June 7, 2002, approximately six months after the applicable two-year limitations period established by N.J.S.A. 2A:14-2(a) had expired, the trial court granted plaintiffs leave to file an amended complaint asserting those claims. Thereafter, the court denied defendants' motions to dismiss the claims as barred by the statute of limitations, concluding that plaintiffs' claims for negligent infliction of emotional distress "related back" to their original complaint.

The trial court's ruling was based on Rule 4:9-3, which provides in pertinent part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading; but the court, in addition to its power to allow amendments may, upon terms, permit the statement of a new or different claim or defense in the pleading.

In Harr v. Allstate Ins. Co., 54 N.J. 287, 299 (1969), the Court stated in an opinion by Justice Hall:

[This] rule should be liberally construed. Its thrust is directed not toward technical pleading niceties, but rather to the underlying conduct, transaction or occurrence giving rise to some right of action or defense. When a period of limitation has expired, it is only a distinctly new or different claim or defense that is barred. Where the amendment constitutes the same matter more fully or differently laid, or the gist of the action or the basic subject of the controversy remains the same, it should be readily allowed and the doctrine of relation back applied.

We have previously recognized that an amended complaint asserting a claim for damages inadvertently omitted from the original complaint may relate back to the original complaint. In Wimmer v. Coombs, 198 N.J. Super. 184 (App. Div. 1985), the original complaint filed by a husband and wife in an automobile negligence case asserted only a per quod claim on behalf of the wife even though she and her husband had both suffered personal injuries. We concluded that the wife's personal injury claim, asserted for the first time in an amended complaint filed after the two-year limitations period had expired, related back to the date of filing of the original complaint. Id. at 189-90. In reaching this conclusion, our opinion by Judge Pressler stated:

In the context of amended pleadings, an accommodation has traditionally been made between the defendant's right to rely on the repose afforded by the statute of limitations and the right of the plaintiff to correct pleading errors or to respond affirmatively to his acquisition of new information respecting his claim. This accommodation is based on the perception that a person who has timely notice of the pendency of an action predicated on his alleged wrongful conduct cannot reasonably object to the late assertion against him of other claims attributable to that conduct provided he is reasonably chargeable with the knowledge that those other claims would have been timely asserted against him but for plaintiff's error or lack of information and provided further that the late assertion does not prejudice him in maintaining his defense. . . .

We are satisfied that this same principle applies to the late assertion of a new and different claim pursuant to R. 4:9-3 and hence that such claims may properly relate back when the defendant is chargeable with reasonable anticipation from the outset of the controversy that that claim would be likely to be made.

[Id. at 188-89.]

We found in Wimmer that defendant was aware of the wife's personal injury claim and consequently was not prejudiced by assertion of that claim after expiration of the limitation period because his insurance carrier had received information concerning those injuries in pre-suit settlement negotiations. Id. at 190.

The facts of this case are similar to Wimmer. In both cases, the new claims asserted after expiration of the statute of limitations were based on the same allegations of negligent automobile operation as the timely filed claims. And in both cases, the new claims asserted an additional injury: in Wimmer, the wife's own personal injuries; and in this case, plaintiffs' emotional distress as a result of their observations of their son's mortally injured body. Although plaintiffs did not, as in Wimmer, engage in pre-suit negotiations with defendants' insurance carriers regarding their emotional distress claims, there were other circumstances that should have alerted defendants to the possibility that such claims had been inadvertently omitted from the original complaint. The police report on the accident noted that plaintiffs were present at the accident scene and at the hospital. Therefore, defendants had to have been aware plaintiffs had observed the mortally wounded body of their son and suffered emotional distress as a result of those observations, even though they may not have been aware of the magnitude of that distress. Moreover, the original complaint was filed not only by Barbara Stemple, in her capacity as administratrix and administratrix ad prosequendum of the estate, which would have been sufficient if the survivorship and wrongful death claims were the only claims asserted, see Gerghon v. Regency Driving Ctr., Inc., 368 N.J. Super. 237, 246 (App. Div. 2004), but also by Barbara and Stemple, Senior, "individually." Consequently, defendants should have known that plaintiffs also had individual claims that were omitted from the original complaint. Furthermore, only limited discovery had been conducted when plaintiffs filed the amended complaint asserting their emotional distress claims, and defendants have not shown that they suffered any prejudice as a result of the omission of those claims from the original complaint. Therefore, we conclude that the trial court did not abuse its discretion in deciding that those claims should relate back to the original complaint.

II

Defendants also argue that the trial court erred in denying their motions to dismiss plaintiffs' survivorship claim on the ground that there was no evidence decedent suffered any conscious pain and suffering before his death.

"Damages for pain and suffering are permitted only for pain and suffering that is conscious." Smith v. Whitaker, 160 N.J. 221, 236 (1999). However, recovery for conscious pain and suffering is allowed in a survivorship action "whenever it can be shown the injured person survived [his or] her injuries, however briefly." Ibid.

The application of these principles is illustrated by Tirrell v. Navistar International, Inc., 248 N.J. Super. 390 (App. Div.), certif. denied, 126 N.J. 390 (1991), in which a construction worker was knocked to the ground and then run over by a tractor-trailer. Id. at 394. The evidence indicated that "decedent died practically instantaneously after the truck had crushed his chest[.]" Id. at 407. However, there was testimony that "he at least raised his head before he died." Ibid. Although the defense suggested that "this motion was a spasmatic reaction after death," we concluded that since the tractor-trailer had "dragged decedent under its wheels[,] . . . the jury was free to infer that decedent had some brief but distinct anticipation of his impending death as well as physical pain and suffering." Ibid. Consequently, we upheld a $50,000 jury verdict for that pain and suffering. Id. at 394.

Plaintiffs' proofs were sufficient under Tirrell to support a jury finding that the decedent experienced conscious pain and suffering before lapsing into a coma. Evidence that pieces of Bores' driver side mirror was found at the accident scene would support a finding that her car only sideswiped the decedent, knocking him into the other lane of traffic where he was run over three more times. Consequently, the jury could find from this evidence that, as in Tirrell, plaintiff "had some brief but distinct anticipation of his impending death as well as physical pain and suffering," id. at 407, as the cars approached him lying incapacitated in the street.

Plaintiffs also presented evidence that could support a jury finding that decedent maintained some level of consciousness even after he was struck by all the cars. The first police officer to respond to the scene testified that the decedent was breathing and his eyes were open. One passerby who approached decedent shortly after the accident testified that she heard him moan, which she described as "[e]ither a moaning that he was in pain or probably he heard me." Although one of the paramedics who transported the decedent to the hospital performed a test approximately ten minutes after the accident that indicated decedent was in a deep coma, the jury could have inferred that the decedent experienced a low level of consciousness for some period of time after the accident but that his deteriorating condition caused him to lose consciousness totally by the time this test was performed. Therefore, the trial court properly denied defendants' motion to dismiss plaintiffs' survivorship claim for decedent's pain and suffering.

III

Defendants argue that the trial court erred in reading certain motor vehicle statutes to the jury that were not relevant to the parties' negligence claims. Defendants also argue that they were unfairly prejudiced by the court's decision to include most of these statutes in its charge after the charge conference.

Initially, the trial court indicated that the only statutes it would refer to in its charge were N.J.S.A. 39:4-34 and N.J.S.A. 39:4-36, which the parties agreed were appropriate and which are not challenged on appeal. Before summation, the court informed the parties that it also would refer to N.J.S.A. 39:3-46 and -49. N.J.S.A. 39:3-46 provides that headlights are required whenever "there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead[,]" and N.J.S.A. 39:3-49 provides in pertinent part that "every motor vehicle . . . shall be equipped with at least 2 approved headlamps mounted at the same level with an equal number on each side of the front of the vehicle." After summations, the court also charged the jury sua sponte regarding N.J.S.A. 39:3-58, which provides that "approved multiple beam headlamps" must allow the driver to choose either an upper distribution of light "so aimed and of such intensity as to reveal persons and vehicles at a distance of at least 350 feet ahead for all conditions," or a lower distribution of light "so aimed and of such intensity to reveal persons and vehicles at a distance of at least 100 feet ahead[.]"

We perceive no prejudicial error in the inclusion of these statutes in the court's charge to the jury. Although there was no need for the court to refer to N.J.S.A. 39:3-46 because it was undisputed that the headlights of all three defendants were activated at the time of the accident, the court's reference to this statute had no capacity to mislead the jury or prejudice defendants. N.J.S.A. 39:3-49 was properly included in the charge because there was evidence that one of Easson's highlights was not operating at the time of the accident. The court's reference to N.J.S.A. 39:3-58 was proper and could not have prejudiced defendants because Bores' reconstruction expert had previously testified about the statutory requirements regarding headlight illumination.

After summations, the trial court also charged the jury sua sponte regarding N.J.S.A. 39:4-97.2(a) and N.J.S.A. 39:4-58. N.J.S.A. 39:4-97.2(a) provides that "it shall be unlawful for any person to drive or operate a motor vehicle in an unsafe manner likely to endanger a person or property." Although the court's reference to this statute was unnecessary because it did not add anything material to the court's general negligence charge, we conclude for the same reason that this part of the charge had no capacity to prejudice the defendants.

N.J.S.A. 39:4-58 provides that "[n]o person shall drive a vehicle that is so constructed, loaded or covered in as to prevent its driver from having a clear view of the traffic following and at its sides, unless it is equipped with a device that will show the driver the road to the rear and side." The trial court should not have referred to this statute because there was no evidence that anything in any of the defendants' cars could have prevented them "from having a clear view of the traffic following and at its sides." However, none of the parties objected to the mention of this statute, and we are satisfied that, considering the charge in its entirety, the court's erroneous reference to N.J.S.A. 39:4-58 was not "clearly capable of producing an unjust result." R. 2:10-2.

We turn next to defendants' argument that the trial court failed to give them adequate notice of the motor vehicle statutes that it planned to refer to in its charge. Rule 1:8-7(a) requires a trial court to conduct a conference in which it rules upon requests to charge on the record before summations. The court's compliance with this requirement "permit[s] counsel to conform [their] summation[s] to what the ensuing charge will actually be." Pressler, Current N.J. Court Rules, comment 3.1 on R. 1:8-7 (2006).

Although the trial court conducted a charge conference during which it indicated only two motor vehicle statutes would be referred to in its charge, the court determined the following day to charge the jury regarding five additional motor vehicle statutes. The court first mentioned two of those statutes shortly before summations and then added three additional statutes to the charge after summations.

We do not condone the procedure the trial court followed in this case. The court should have taken greater care in formulating its charge at the charge conference. The court's late inclusion of additional motor vehicle statutes in its charge not only deprived the parties of the opportunity to address those statutes in their summations, but also deprived the court of the benefit of counsel's comments regarding these additions to the charge.

Nevertheless, we conclude that these procedures were not "clearly capable of producing an unjust result[.]" R. 2:10-2. Initially, we note that defendants did not seek additional time for the preparation of their summations when the trial court announced immediately before summations that it would charge the jury regarding N.J.S.A. 39:3-46 and N.J.S.A. 39:3-49, and defendants did not object or seek the opportunity to make supplemental summations after the court referred without prior notice to counsel to N.J.S.A. 39:3-58, N.J.S.A. 39:4-58 and N.J.S.A. 39:4-97.2. "The absence of an objection to [this part of] the charge . . . suggest[s] that trial counsel perceived no error or prejudice and . . . prevented the trial judge from remedying any possible confusion in a timely fashion." Ewing v. Burke, 316 N.J. Super. 287, 293 (App. Div. 1998). Furthermore, the statutes to which the court referred did not add anything material to the factual and legal issues defendants addressed in their summations, and defendants have not suggested what else they might have said in their summations if the court had given them earlier notice of its intention to read these additional statutes to the jury.

IV

Defendants also argue that the trial court erred in denying their motion to bar the testimony of plaintiffs' accident reconstruction expert because it concerned a subject on which there was no need for expert testimony and it constituted a "net opinion." In addition, Cellier argues that the trial court improperly allowed the jury to view an unredacted and unauthenticated copy of the police report of the accident that contained insurance company codes and policy numbers, improperly precluded cross-examination of the first police officer to arrive at the accident scene regarding the cause of the accident, and improperly prohibited his counsel from arguing in summation that he was not negligent because he had not violated any motor vehicle statute. These arguments are clearly without merit and do not warrant discussion. R. 2:11-3(e)(1)(E).

V

In their cross-appeal, plaintiffs argue that the trial court erred in instructing the jury that plaintiffs had a duty to mitigate their emotional distress damages by obtaining counseling or other psychological treatment and that the jury should reduce their damages by "the degree to which [their psychological] injuries were the result of the plaintiffs' own unreasonable failure to minimize or to avoid further psychological damages."

It is well-established that "[a] person injured by another's wrong is obliged to exercise ordinary care to seek medical or surgical treatment so as to effect a cure and minimize damages. Failure or refusal to do so bars recovery for consequences which could have been averted by the exercise of such care." Albert v. Monarch Fed. Savings & Loan Ass'n, 327 N.J. Super. 462, 465 (App. Div. 2000) (quoting Budden v. Goldstein, 43 N.J. Super. 340, 350 (App. Div. 1957)). The defendant bears the burden of proof with respect to a plaintiff's alleged failure to mitigate damages by medical or surgical treatment. See Lynch v. Scheininger, 162 N.J. 209, 237 (2000); Ostrowski v. Azzara, 111 N.J. 429, 444 (1988).

In Cannon v. New Jersey Bell Telephone, 219 N.J. Super. 304, 306-07 (App. Div.), certif. denied, 109 N.J. 54 (1987), we considered the applicability of these principles to a damages claim for psychological injury. The infant plaintiff in Cannon was involved in a bicycle accident that caused both an obstructed urethra, which required either painful ongoing treatment or surgery, and also serious psychological problems. The psychologist with whom plaintiff consulted recommended counseling, but plaintiff refused. A child psychiatrist testified that plaintiff was experiencing "symptoms of withdrawal from his usual activities of not apparently relating to his previous friends, of not participating actively in anything much outside of the mandatory going to class and then going home and kind of withdrawing from his family." Id. at 311. The psychiatrist also testified that "it is often difficult to get an adolescent of [plaintiff's] age to undergo treatment and to cooperate fully for effective counseling." Ibid.

We reversed the damage award on the ground that the trial court erred in submitting the issue of the plaintiff's failure to mitigate damages to the jury. Id. at 314-16. We concluded that in view of the substantial risks involved in surgery to correct the obstructed urethra, plaintiff was not unreasonable in electing not to have surgery and run the risk of permanent impotence. Id. at 315. We also concluded that even though plaintiff had rejected the counseling recommended by his consulting psychologist, he "should not be precluded from recovering full damages because of a psychological state resulting from the accident which led him to reject any needed counseling." Ibid.

In this case, defendants did not present any psychological expert to testify regarding plaintiffs' emotional distress claims. Consequently, the only expert medical opinions presented were those of plaintiffs' expert, Anthony Todaro.

Dr. Todaro, a clinical psychologist, diagnosed Stemple, Senior as suffering from post traumatic stress disorder, schizo affective disorder, somatization disorder, panic attacks, obsessive-compulsive behavior, and generalized anxiety disorders. Dr. Todaro diagnosed Barbara Stemple with post traumatic stress disorder, chronic severe and major depression, somatization disorder, and "schizoid negativistic and dependent and self-defeating personality traits," as well as colitis, gastrointestinal disorders, and alcohol dependence.

Dr. Todaro recommended counseling for both plaintiffs. He told plaintiffs to go to their family doctor to "get the necessary antidepressants."

However, Dr. Todaro testified that plaintiffs were too depressed to be willing to undergo psychological counseling:

Q. And did you recommend to both of these people that they should be under psychological counseling?

A. Yes, I did.

Q. Do you know if they have taken you up on that?

A. No. I don't think they've taken anybody up on it. I think they're too depressed to get mobilized to do anything.

Dr. Todaro also testified that even if plaintiffs had followed his advice to undergo psychological treatment, his prognosis for their recovery would not be favorable:

Q. Do you believe if they had followed your advice and gone for some treatment and perhaps medication that it could have helped them? Is that -- you referred them?

A. I -- I don't -- I -- to be honest with you -- all -- I have practically all my patients, and I see an average of probably 75 patients a week, most of them are refractory to treatment with antidepressants.

Most people with these disorders don't seem to get well. They all seem to deteriorate.

Thus, the only medical expert presented at trial testified that, as in Cannon, the emotional distress plaintiffs suffered as a result of defendants' negligence "led [them] to reject any needed counseling[,]" 219 N.J. Super. at 315, and that such psychological counseling would be unlikely to produce any significant improvement in their psychological conditions. Therefore, in the absence of any evidence that could support a finding that there was a reasonable probability that counseling or other psychological treatment would result in a cure or significant amelioration of plaintiffs' psychological conditions, we conclude that there was no factual foundation for the trial court's submission of the issue of mitigation of damages to the jury.

However, this does not mean, as plaintiffs contend, that they should be allowed to retain the full amount of emotional distress damages awarded by the jury without any reduction for their failure to mitigate. Although it is impossible to know how a jury arrives at an award for intangible damages such as emotional distress, there is a distinct possibility that the jury's assessment of the amount of those damages and its reduction of the awards based on plaintiffs' failure to mitigate damages were intertwined components of an overall determination of reasonable damage awards for plaintiffs' emotional distress. Consequently, we conclude that it would be unfair to set aside only one component of these damage awards, while preserving the other, and that a new trial is required regarding those damages.

Accordingly, we affirm the part of the final judgment memorializing the jury's liability verdict and its $100,000 award on the survivorship claim for the decedent's pain and suffering; we reverse the part of the final judgment memorializing the jury verdict regarding plaintiffs' emotional distress damages and remand for a new trial on those claims.

 

Plaintiffs have entered into a settlement with Bores, finally disposing of all their claims against her.

(continued)

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A-3623-03T3

July 19, 2006