MARY PATTERSON v. THE TJX COMPANIES, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1834-07T21834-07T2

MARY PATTERSON and JOHN

PATTERSON,

Plaintiffs-Respondents,

vs.

THE TJX COMPANIES, INC., d/b/a

T.J. MAXX, T.J. MAXX HOMEGOODS,

and THE MARMAXX GROUP,

Defendants-Appellants.

__________________________________

 

Submitted: January 30, 2009 - Decided:

Before Judges Cuff, Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4973-05.

Psak & Associates, attorneys for appellants (Robert A. McLarty, Jr., on the brief).

Post, Polak, Goodsell, MacNeill & Strauchler, P.A., attorneys for respondents (Frederick B. Polak and Julia S. Epstein, on the brief).

PER CURIAM

Plaintiff Mary Patterson was injured while shopping at a T.J. Maxx store. A jury awarded her $20,000 in medical expenses, $200,000 for lost income, and $275,000 for pain and suffering. The jury awarded plaintiff's husband John Patterson $25,000 for his per quod claim. In its appeal, defendant argues that the lost wage and medical expenses awards are against the weight of the evidence, that the trial judge erred in molding the medical expense award, and that the trial judge should have granted its motion for a new trial on damages. We affirm in all respects except the treatment of the medical expense award.

On August 29, 2003, plaintiff and her daughter, Margaret Caruso, were shopping at defendant's T.J. Maxx store in Paramus. Plaintiff had leaned over to inspect a piece of luggage on display on the store floor. Directly behind plaintiff was a triangular display on which hung framed wall art. While plaintiff was bent over, she heard a noise "like things hitting against each other" and then immediately felt an object strike her back with such force that she fell to the floor on her hands and knees and struck her head on a piece of luggage. Plaintiff noticed small pieces of the artwork lying on the floor around her.

Plaintiff was unable to move and felt "dazed." Other shoppers removed the object from plaintiff and then she rose from the floor. Defendant's employees sat plaintiff in a chair and provided ice for her pain.

Plaintiff then accompanied her daughter home. Plaintiff experienced "shooting pains" through the afternoon and evening. The next morning, plaintiff went to Hackensack University Medical Center Emergency Room, where she received injections of pain medication. Plaintiff then returned to her home.

After the accident, plaintiff continued to experience pain. Within a few days of the accident, plaintiff sought treatment from a chiropractor, Dr. Marc Snyder. He treated plaintiff three to four times per week for approximately eighteen months. Concurrently, plaintiff underwent physical therapy at another facility for approximately three to four months after the accident.

In April, 2004, plaintiff's chiropractor referred her to an orthopedist, Dr. Barry Simmonson, to treat her persistent right shoulder pain. Dr. Simmonson injected steroids into the back of plaintiff's shoulder. She reported the steroids alleviated the pain for "a short period of time." Dr. Simmonson recommended plaintiff undergo surgery for a tear in her shoulder. At the time of trial, plaintiff remained undecided about the recommended surgery.

A few months later, Dr. Snyder referred plaintiff to a neurologist, Dr. James Liguori, for "severe headaches." Plaintiff described the headaches as "shoot[ing] up from [her] shoulders into [her] head continuously." Dr. Liguori treated plaintiff with two sets of two "trigger-point injections." Plaintiff reported the shots alleviated the headaches, but "after a while [the pain] starting coming back, easing back again."

By early 2005, plaintiff complained of back pain so severe that she had to sit in a chair and apply ice to her back on a "nearly constant" and daily basis. Plaintiff also complained of headaches and shoulder pain. Plaintiff described the pain in her shoulder as so severe that she "would almost pass out" if she moved it the wrong way.

In March 2005, plaintiff's primary physician, Dr. Guzman referred plaintiff to a new orthopedist, Dr. Paul Kuflick, because of plaintiff's continued pain. Dr. Kuflick examined plaintiff and recommended a spinal fusion of her lower back to alleviate the pain. Plaintiff, wishing to avoid surgery, sought a second opinion from Drs. Katzman and Morala. Drs. Katzman and Morala cautioned plaintiff about the risks of surgery, including a risk that plaintiff could be paralyzed. Plaintiff elected not to undergo surgery.

Drs. Katzman and Morala referred plaintiff to a pain management specialist, Dr. Barry Mann, who prescribed plaintiff pain medication. Plaintiff reported the pain medication made her unable to stand up for an entire day. Plaintiff was also treated by another pain specialist, Dr. Alexander Lee, for back pain. Dr. Lee treated plaintiff with two or three injections to her lower back and recommended she continue physical therapy. She did so throughout 2005.

By February, 2006, plaintiff reported no change to the pain in her lower back. Pain in plaintiff's upper back had improved "a little" and pain in her shoulder was "bearable." Plaintiff's headaches persisted; she suffered from them eight to ten times per day. Plaintiff treated the headaches with ice, heat, or Motrin multiple times per day. Plaintiff continued to perform physical therapy at home throughout 2006.

It was undisputed that plaintiff accrued total medical bills of $61,349.23. Insurance covered most of the expenses. Nevertheless, unreimbursed medical expenses totaled $10,189.84.

At the time of the accident, plaintiff was employed as a registered nurse at the Orleans Nursing Home. Plaintiff had worked there for thirty-one years. She worked four days a week but the hours varied. At the time of the accident, plaintiff had no plans to retire. She reported that many nurses at Orleans Nursing Home worked beyond age sixty-five, and even beyond age seventy. Plaintiff was eligible for a pension and began collecting it in April 2004.

Dr. Mitityahu Marcus, an economist, testified regarding plaintiff's lost wages. He calculated plaintiff's annual income at $35,760. Accounting for many factors, including life expectancy, disability payments, and pension, Dr. Marcus calculated the present value of plaintiff's net loss of future income was $77,000. He assumed plaintiff would work to age seventy. The jury awarded plaintiff $200,000 for lost wages.

Defendant argues that the evidence adduced at trial simply does not support the lost wage award and that its variance from the evidence is so extreme as to call into question the entire damage award. We disagree.

We commence our discussion of these contentions recognizing our standard of review. Rule 2:10-1 prescribes that a trial court ruling on a motion for a new trial "shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." We apply essentially the same standard as the trial court as outlined in Dolson v. Anastasia, 55 N.J. 2 (1969). We must, however, "defer[] to the trial judge only with respect to those intangible aspects of the case not transmitted by the written record." Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2009). The trial court must "'canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict'" Dolson, supra, 55 N.J. at 6 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)).

[I]n ruling on a motion for a new trial, the trial judge takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called 'demeanor evidence', and the intangible 'feel of the case' which he has gained by presiding over the trial.

[Ibid. ]

This court applies the same standard of review, but gives deference to the trial court's "feel of the case" because it is often not conveyed by the written record. Id. at 7. The trial court's ruling, "however, 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 [the trial judge] is no more peculiarly situated to decide than the appellate court." Ibid.

When reviewing a trial court's grant or denial of a party's motion for a new trial, the reviewing court must "accept as true all evidence supporting the jury's verdict and to draw all reasonable inferences in its favor whenever reasonable minds could differ." Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 83 (App. Div.) (citing Harper-Lawrence, Inc. v. United Merchants & Mfrs., Inc., 261 N.J. Super. 554, 559, (App. Div.), certif. denied, 134 N.J. 478 (1993)), certif. denied, 162 N.J. 130 (1999). "[T]o justify judicial interference, '[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness.'" Jastram v. Kruse, ___ N.J. ___, ___ (2008) (slip op. at 15) (internal quotation omitted) (quoting Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)).

Defendant compares the jury award in this case to the award in Caldwell v. Haynes, 136 N.J. 422 (1994). In Caldwell, the Court affirmed the trial court's grant of defendant's motion for a new trial on damages where the jury had awarded future lost income in an amount that would have required plaintiff to work at a construction job every day until he turned eighty years old, or 2083 weeks straight. 136 N.J. at 439. The Court found the award "clearly excessive." Ibid.

Nevertheless, a jury has wide discretion to calculate a plaintiff's lost income. For example, in Woodger v. Christ Hospital, 364 N.J. Super. 144 (App. Div. 2003), this court emphasized the discretion of the jury in calculating an award when it affirmed an award that reflected the jury's belief that the plaintiff, who was fifty-six years old at the time of the injury, would have only worked an additional two years. Id. at 149. In Woodger, the defense had introduced evidence that the plaintiff, who worked as a nurse, suffered from progressive knee problems and would have been unable to work longer than an additional two years even if she had not been injured. Ibid. The panel wrote "[w]e are satisfied that the verdict was fair when viewed against the record and was hardly so insufficient as to shock the conscience of the court or engender a sense of wrongness." Ibid.

Here, unlike the plaintiff in Woodger, it is undisputed that plaintiff was in excellent health before her accident. Plaintiff stated a clear intention to work indefinitely and had a life expectancy of 18.1 years. It was uncontested that others in similar positions worked past the age of seventy, and plaintiff worked a reduced work week and was not engaged in a profession or trade that required the physical strength and environmental challenges of working outdoors in a variety of weather conditions unlike the plaintiff in Caldwell.

Although the lost wage award is two and one-half times the figure rendered by plaintiff's economist, the jury was free to reject his basic supposition that plaintiff would cease work at age seventy. The record is replete with evidence that plaintiff was a healthy, vibrant and active woman prior to the accident. She also was fortunate to work in a place that apparently valued older and experienced workers. The jury may also have questioned the interest figure the economist used to discount to present value the gross amount of lost wages. In short, the award is not without any record support, particularly if the jury substituted certain basic suppositions, which it is free to do. DeHanes v. Rothman, 158 N.J. 90, 96 (1999).

Defendant also contends that the award of $20,000 for medical expenses is unsupported by the record. We disagree.

The parties stipulated that plaintiff had incurred $61,349.23 in medical expenses, of which $10,189.84 was not covered by insurance. The record also reveals that the cost of chiropractic care, $39,884.53, comprised the bulk of the medical expenses. The contested issue was the necessity of the medical care and the reasonableness of its cost.

Plaintiff presented the testimony of Wendell Scott, M.D., a board certified orthopedist. He examined plaintiff and reviewed her voluminous medical records. He testified that many of the physicians who had treated plaintiff recommended that she continue chiropractic care, and he opined that these were reasonable recommendations. He also opined that the cost of the chiropractic care was reasonable. On cross-examination, the doctor conceded that he based his opinion about the reasonableness of the chiropractic treatment cost on information he received from his staff. He conferred with staff because he had no professional knowledge to evaluate the costs.

Based on this evidence, it is entirely plausible that the jury found the evidence in support of the reasonableness of the cost insufficient and determined that plaintiff should receive no reimbursement for her chiropractic care. If the jury eliminated the chiropractic costs, the remaining medical expenses are quite close to the $20,000 awarded by the jury. On this record, we cannot identify any basis to interfere with this aspect of the jury award.

The judge, however, was required to adjust any award for medical expenses to account for benefits received through insurance to avoid duplication. Defendant asserts that the judge improperly molded the medical expense award; plaintiff contends that the judge properly adjusted the verdict.

N.J.S.A. 2A:15-97 provides:

In any civil action brought for personal injury or death . . . if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits, other than workers' compensation benefits or the proceeds from a life insurance policy, shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff, less any premium paid to an insurer directly by the plaintiff or by any member of the plaintiff's family on behalf of the plaintiff for the policy period during which the benefits are payable. Any party to the action shall be permitted to introduce evidence regarding any of the matters described in this act.

This court described the legislative intent behind the statute as to "abrogate the common-law collateral-source, that is, the rule that permitted 'a tort victim to retain collateral benefits that is, benefits that do not come from a defendant in addition to any amount that the victim might recover from that defendant.'" Woodger, supra, 364 N.J. Super. at 150 (quoting Kiss v. Jacob, 138 N.J. 278, 281 (1994)).

Plaintiff relies on Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569 (App. Div.), certif. denied, 142 N.J. 574 (1995), to support the trial court's molding of the jury's award to plaintiff's out-of-pocket cost. Plaintiff points to the Thomas court's molding of the jury's less than one-hundred percent award to "presumably the amount of the actual out-of-pocket costs incurred by Thomas." In Thomas, however, the trial court reduced the jury's award, not the plaintiff's total medical expenses, by eighty percent to reflect the plaintiff's employer's co-payment rate. Id. at 586-87. We upheld the trial court's calculations. Ibid.

Here, as in Thomas, the trial court's molding of the jury's award to plaintiff's out of pocket expenses has "the effect of requiring the tortfeasor to pay a portion of a medical expense that the jury apparently did not find was reasonably connected to the accident." Id. at 587. Applying this rule, the trial court should have molded the award to reflect the portion of plaintiff's total medical expenses the jury found fair and reasonable, or thirty-three percent. Thirty-three percent of plaintiff's out of pocket cost is $3,362.65.

 
The adjustment required to effectuate the rule does not require a remand because it is a simple arithmetic adjustment. We, therefore, modify the medical expense portion of the judgment from $10,189.84 to $3,362.65.

Affirmed as modified.

All references to plaintiff are to Mary Patterson.

Plaintiff was sixty-five years old at the time of the accident with a life expectancy of 18.1 years. Pressler, Current N.J. Court Rules, Appendix I (2009).

We refer to defendants The TJX Companies, Inc., d/b/a T.J. Maxx, T.J. Maxx Homegoods and the Marmaxx Group collectively as defendant.

(continued)

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A-1834-07T2

February 24, 2009