ROBERT LOVE v. NATIONAL RAILROAD PASSENGER CORP.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1611-05T31611-05T3

ROBERT LOVE,

Plaintiff-Appellant/

Cross-Respondent,

vs.

NATIONAL RAILROAD PASSENGER

CORPORATION (d/b/a "AMTRAK"),

Defendant-Respondent/

Cross-Appellant.

__________________________________

 

Submitted: January 16, 2008 - Decided:

Before Judges Cuff, Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3189-00.

J. Michael Farrell, attorney for appellant/cross-respondent.

Landman Corsi Ballaine & Ford, attorneys for respondent/cross-appellant (Gerald T. Ford, on the brief).

PER CURIAM

Plaintiff Robert Love appeals from an order granting his motion for additur following a second trial at which a jury awarded him no damages for pain and suffering. Plaintiff argues that he should have received a third trial or a greater additur. We affirm.

Plaintiff commenced this action pursuant to the Federal Employer's Liability Act, 45 U.S.C.A. 51-60, in March 1997 to recover for injuries suffered on the job on September 24, 1995. Trial commenced in 2001, at which the parties stipulated liability and the evidence was confined to medical causation and compensatory damages. A jury awarded plaintiff $65,000 for lost wages and $0 for pain and suffering. This court found the verdict inconsistent and ordered a new trial. Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 534 (App. Div.), certif. denied, 180 N.J. 355 (2004). We said:

[W]e cannot countenance the patent inconsistency between the one part of the award that recognized a loss as a result of the incident and the other that rejected the idea of any damages at all, even those directly attributable to the surgeries, which were consequences, at least in part, of the incident, and were facts that could not be exaggerated.

[Ibid.]

The matter was tried for a second time over seven days in April 2005. Once again, the parties stipulated liability, the evidence was confined to medical causation and compensatory damages, and the jury found defendant's negligence, in whole or in part, caused injury to plaintiff, awarded $300,000 for past lost earning capacity and health benefits and $50,000 for the present value of future lost earning capacity and health benefits. The jury awarded $0 for past and future pain and suffering. Plaintiff filed a motion for a new trial or additur. The trial judge denied the motion for a new trial but granted an additur of $50,000 for past pain and suffering and $75,000 for future pain and suffering on the condition that defendant accept the additur. Defendant did so, the judge entered an amended judgment of $475,000, and plaintiff filed this appeal. Defendant has filed a cross-appeal in which it contends that the trial judge erred by granting plaintiff's request for an additur.

Our prior opinion contains a summary of the evidence adduced at the first trial. We incorporate that summary in this opinion because the evidence presented at the second trial is similar to evidence presented at the first trial, including the videotape depositions of Dr. Greene and Dr. Berkowitz. Love, supra, 366 N.J. Super. at 528-31. At the second trial, plaintiff also presented the recently conducted videotape depositions of Dr. Goldstein and Dr. Tria, and defendant presented recently recorded surveillance tapes of defendant's activities.

Dr. Tria, an orthopedic surgeon who specializes in knee replacements, testified that he first examined plaintiff in April 1999. From his review of medical records, Dr. Tria learned that plaintiff had six arthroscopic procedures, four on one knee and two on the other. X-rays revealed moderate osteoarthritis in both knees that may have pre-dated the September 1995 workplace injury. Plaintiff, who did not inform Dr. Tria that he had any knee problems prior to the September 1995 injury, advised the doctor that he felt knee pain immediately after the fall, and did not return to work after the accident. Dr. Tria performed bilateral knee replacements in October 1999, and reported that plaintiff had achieved a good result from the knee replacements despite immediate post-surgical complications including confusion and deep vein thrombosis. He also conceded that his opinion that the condition of plaintiff's knees was attributable to the September 1995 accident probably would change if plaintiff worked after the accident and reported knee pain months, rather than immediately, after the accident. On the other hand, Dr. Tria testified that he had no reason to believe that plaintiff misled him about when plaintiff first experienced knee pain or the extent of the pain and discomfort.

Dr. Goldstein, an orthopedic surgeon who specializes in spinal surgery, also testified at trial through a videotaped deposition. He initially evaluated plaintiff on April 16, 1998. He found that plaintiff suffered a lumbar strain in the September 1995 fall. Diagnostic exams revealed underlying spondylosis and spinal stenosis, both of which were degenerative in nature and pre-existed the accident. The September fall, however, made plaintiff's back more painful.

In June 1998, Dr. Goldstein performed a laminectomy of the L4/L5 and L5/S1 levels. He opined that the surgery was successful. Nevertheless, six and one-half months later, plaintiff reported residual discomfort at the surgical site. His pain had improved, but it had not disappeared. The doctor did not believe further conservative or surgical treatment would resolve plaintiff's complaints. Dr. Goldstein had not seen plaintiff since the final post-surgical visit.

Recent surveillance tapes showed plaintiff engaged in a variety of activities, such as yard work and lifting, that he professed an inability to perform. Plaintiff's wife explained that plaintiff was in constant pain whether he was idle or engaged in physical activity.

It is against this evidential and procedural background that we evaluate the additur ordered by Judge Pullen. In response to plaintiff's motion for a new trial or additur, Judge Pullen observed that she agreed with the jury's finding of medical causation and lost wages. She also found that the jury's treatment of pain and suffering was not in accord with the medical testimony. She noted the numerous surgical procedures performed on plaintiff following the accident and further found that plaintiff must have experienced some resulting pain. She conceded that while the September workplace accident may not have been the sole cause of plaintiff's medical condition, the various surgical procedures had some causal connection to the accident. Judge Pullen also found that this court had clearly determined that plaintiff was entitled to some award for pain and suffering assuming the second jury found that the medical treatment required following the accident was causally related to the September 1995 accident. Then, weighing all of the evidence, she awarded plaintiff $50,000 for past pain and suffering and $75,000 for future pain and suffering.

In our prior opinion, we observed that "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." Id. at 532. The evidence presented in this second trial could have and probably did evoke the same reaction. On the other hand, we had previously held that "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." Ibid. Under these circumstances, the resort to the remedy of additur in lieu of a new trial cannot be faulted. Each trial consumed several days; the second trial extended over seven days, not to mention the two days devoted to the videotape depositions of the surgeons who performed the laminectomy and knee replacements. Ten years had passed since the accident and nine years had passed since the filing of the complaint. The only issue before the court was the amount of damages due plaintiff. Additur was an entirely appropriate remedy. Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490-91 (2001).

As to the amount, our review is limited. We stated the standard for reviewing the proper amount of an additur or remittitur in Tronolone v. Palmer, 224 N.J. Super. 92 (App. Div. 1988); we said:

In determining the proper amount of an additur or remittitur, the court must attempt the difficult task of determining the amount that a reasonable jury, properly instructed, would have awarded. The court is not to resolve all factual disputes in favor of one party or the other, or try to follow the faulty reasoning of the jury, or fix the highest or lowest amount a reasonable jury could have awarded without reversal. The court must itself reach a fair damage verdict on the basis of the evidence it saw and heard, and order that amount in an additur or remittitur.

[Id. at 103-04.]

Applying this standard, we discern no basis to disturb the amount of the award. The award reflects the extensive past history of physical injury, complaints of pain, and medical treatment. It accounts for the inconsistent reports of pain and disability documented by medical records and surveillance tapes. It also reflects the reality that plaintiff must have experienced some pain and disability from the many surgical interventions that the jury found were caused in some part by the September 1995 accident. Therefore, we do not disturb this order.

We also hold that the trial judge acted well within her considerable discretion to admit or bar evidence when she barred the introduction of the invoices submitted by the surveillance videographer to defendant. Plaintiff had other means to demonstrate that the limited footage shown to the jury was the product of many hours of observation.

We, therefore, affirm the additur ordered by Judge Pullen and the August 16, 2005 amended judgment of $475,000 in favor of plaintiff.

Affirmed.

 

We reject plaintiff's contention that defendant is barred from filing a cross-appeal having agreed to accept the additur following the ruling on plaintiff's motion for a new trial or additur. While there is no case law specifically addressing the right to cross-appeal an additur ruling, the right to cross-appeal a remittitur is well-settled. Hinojo v. N.J. Mfrs. Ins. Co., 353 N.J. Super. 261, 277-78 (App. Div.), certif. denied, 175 N.J. 76 (2002); Mulkerin v. Somerset Tire Servs., Inc., 110 N.J. Super. 173, 177 (App. Div. 1970). We discern no distinction of any consequence to bar a defendant, who has accepted an additur, from filing a cross-appeal once the plaintiff has rejected the relief and filed an appeal.

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A-1611-05T3

February 6, 2008