STEPHEN SHARKEY v. SHAKIMA K. HAGAN

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2820-07T32820-07T3

A-2849-07T3

STEPHEN SHARKEY, substituted

administrator CTA of the ESTATE

OF FRANCIS M. SHARKEY, deceased,

Plaintiff-Respondent,

v.

SHAKIMA K. HAGAN,

Defendant-Appellant,

and

THERESA A. WELLINGTON, THOMAS

BUDINGTON, and VIOLET BUDINGTON,

Defendants.

 

MAUREEN P. HOLT, executor of the

ESTATE OF PATRICIA M. SHARKEY,

deceased,

Plaintiff-Respondent,

v.

FRANCIS M. SHARKEY,

Defendant-Appellant,

and

THERESA A. WELLINGTON, THOMAS

BUDINGTON, VIOLET BUDINGTON,

and SHAKIMA K. HAGAN,

Defendants.

________________________________________________

 
Argued April 30, 2009 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-2338-04 and L-4418-04.

Raymond S. Gurak argued the cause for appellant Hagan in A-2820-07T3 (Mattson, Madden & Leith, attorneys; Mr. Gurak, of counsel and on the briefs).

David A. Weglin argued the cause for appellant Francis Sharkey in A-2849-07T3 (Baumann & Lynes, attorneys; Mr. Weglin, of counsel and on the brief).

Timothy L. Barnes argued the cause for respondent Francis Sharkey in A-2820-07T3 (Porzio, Bromberg & Newman, P.C., attorneys; Mr. Barnes, of counsel; Mr. Barnes and Geoffrey T. Phelan, on the brief).

Andrew J. Renda, Jr. and John S. Voynick, Jr. argued the cause for respondent Patricia M. Sharkey in A-2820-07T3 and A-2849-07T3 (Renda & Voynick, attorneys; Mr. Renda and Mr. Voynick, of counsel and on the brief).

PER CURIAM

In these consolidated personal injury cases, defendant Shakima Hagan appeals (1) from a final judgment, entered after a jury verdict, finding her 80% liable and awarding plaintiff Patricia Sharkey $1.5 million and her husband plaintiff Francis Sharkey (Frank), who was found 20% liable, $500,000, and (2) from an order denying her motion for a new trial or, in the alternative, remittitur. Frank Sharkey, who was named a defendant in his wife's separate complaint, appeals from the order denying his motion for a new trial on the basis of Patricia's excessive damage verdict or, in the alternative, remittitur. We affirm.

At about 10:30 a.m. on Labor Day, September 1, 2003, Frank and Patricia were traveling north on the Garden State Parkway, returning to their home in West Orange from their son's vacation home at the shore. It was "pouring rain" and seventy-seven-year old Frank was driving at about 45-50 miles per hour in the middle of three lanes. According to Frank, as he moved over to the right lane to exit, a Dodge Durango truck, driven by Hagan, entering from the entrance ramp "drove [him] over, hit [him] in the rear, and drove [him] into a concrete embankment" in the left lane where a car driven by Thomas Budington, unable to avoid Frank's vehicle, struck him in the rear, and was, in turn, sideswiped by Hagan's Durango truck. Frank never saw Hagan's vehicle either before or after impact.

According to Hagan, who originally told the investigating State Trooper she could not recall the accident, as she tried to enter the Garden State Parkway from the entrance ramp in East Orange, there was a vehicle on her right side of which she was mindful, but then that car fell away. At the time, she was in the "fifth lane," with four lanes to her left. She accelerated to about fifty-five miles per hour to get into the flow of traffic. She looked into her right side mirror, then her rear view mirror, then her left mirror, then heard a crash. She never saw Frank's car moving into the lane ahead of her.

After an investigation of the scene of the multi-car accident, the trooper determined that after hitting the concrete divider, the Sharkey vehicle rotated clockwise and hit the Budington vehicle, and then hit the Hagan vehicle again. In all, the Sharkey vehicle suffered four to five impacts.

The trooper did not issue any summonses to Frank. He issued summonses to Hagan for: 1) careless driving; 2) being unlicensed to drive; and 3) driving an unregistered vehicle. He issued the careless driving ticket because Hagan did not "give up room" to the Sharkey vehicle, and there was no indication that Frank had entered the right lane after Hagan was already in it. He admitted, however, that Frank had a duty to make sure that the lane was clear before he moved into it, and there was no information as to who was in the right lane first.

As a result of the accident, Frank suffered a right femoral hip fracture. His orthopedic traumatologist, Dr. Michael Sirkin, decided not to operate due to Frank's pre-existing pulmonary fibrosis, as it could lead to Frank's death. Consequently, his fracture was left to heal on its own. Thus, after eight days in the hospital, Frank was transferred to Kessler Institute for Rehabilitation, where he remained for several weeks. Upon discharge, Frank continued with his therapy on an outpatient basis. Unable to return to his second-floor home, he went to live with his daughter. At the time of deposition, Frank was still experiencing pain from his knee back to his hip, and he could not sleep on his right side due to the pain. Although he functioned with a walker for a few months, he could no longer use it and was forced to use a wheelchair. Eventually, Frank became bedridden due to his fibrosis, which had been worsening since the accident.

According to his children, both Frank's personality and quality of life after the accident seriously declined. Although he seldom complained, his leg pain was "excruciating." He could no longer shower or shave by himself and lost his "independence." He became quiet and subdued and he simply "threw in the towel."

His wife Patricia, who was seventy-four years old at the time, was also injured in the accident. Her entire body was bruised, her eyes were black, and she had a three-inch laceration on her forehead, which left a permanent scar. She suffered multiple broken ribs. Her most serious injury, however, was to her ankle, where she suffered a binomial fracture, which meant that two different bones were broken. Four days later, Dr. Sirkin operated on the ankle and inserted five screws and a plate to stabilize it. Thereafter, Patricia went to Kessler for rehabilitation, only to be readmitted to University Hospital for three days when she contracted pneumonia. She returned to Kessler until her discharge on October 11, 2003, although she continued at Kessler as an outpatient. She had various casts for several months, and for six weeks after the surgery, she could put no weight on her ankle. Patricia could see and feel the hardware in her ankle, a fact confirmed by Dr. Sirkin. She also had a surgical scar and one-quarter-inch visible circular marks on the outer side of her ankle.

Patricia claimed to have had no health issues prior to the accident. Indeed, she drove, cooked, cleaned the house, paid the bills, babysat her twelve grandchildren, and worked about thirty-three hours a week at her hostess job at the Maplewood Country Club, where she was employed for thirty-one years. After the accident, however, she too was forced to live with her daughter because of the stairs in the home that she had shared with Frank. She never returned to the job she had always enjoyed because she was unable to stand for more than twenty minutes and needed to take care of her husband. At time of trial, she was still experiencing ankle pain when it rained or snowed and could not be out in the cold for long. According to her daughter, Patricia became a "changed person" and depressed.

The extent to which Patricia suffered a lack of consciousness and closed head injury as a result of the accident was contested. Her hospital discharge diagnosis stated, "concussion, closed head injury with loss of consciousness and retrograde amnesia." Her medical records contained five physician notes relating that she had suffered a "positive loss of consciousness." In addition, Violet Budington, a passenger in the third vehicle involved in the accident, believed that Patricia was unconscious at the scene of the accident, as she was not moving or responding when people called her.

Dr. Marvin Ruderman, who reviewed Patricia's medical records, CT scans and MRIs, explained that a concussion is a head injury with a temporary disturbance of neurological function, due to movement of the brain inside the skull, which causes "stretching and shearing of nerve fibers." The disruption varies with the severity of the concussion. Subsequent results of a concussion can be headaches, dizziness, difficulty sleeping, irritability, personality changes and difficulty concentrating. He explained that a "closed head injury" is injury to the head without the skull being disrupted, fractured or opened. In other words, there are no skull pieces dislodged. Ruderman then explained that retrograde amnesia is a loss of memory prior to the traumatic event, and that Patricia's amnesia could account for her lack of recall about her loss of consciousness.

Dr. Ruderman noted that Patricia's CT scan revealed large soft tissue swelling overlying the frontal calvarium "with air and hemorrhage." That meant there was bleeding in the soft tissue. The CT scan also noted "periventricular lucencies," which were thought to be occlusions of small blood vessels that, in Ruderman's opinion, could be a product of aging or high blood pressure. However, a diagnosis of dementia could not be made from either a CT scan or MRI, and there was no indication that Patricia had suffered strokes prior to the accident. Ruderman did acknowledge that the MRI of the brain, which revealed moderately severe periventricular white matter and deep white matter microvascular disease, showed that "in all probability," the brain changes pre-existed the accident and were only discovered afterward. He denied, however, that difficulty thinking was a symptom of periventricular white matter or deep microvascular disease.

Dr. Ruderman saw Patricia on January 12, 2004, when her daughters reported personality changes in their mother, including unhappiness, anxiety and depression. After examination, Dr. Ruderman concluded that Patricia exhibited a "mild degree of some loss of intellectual function," and that the personality changes were a post-traumatic result of the accident. In his opinion, Patricia's episodes of confusion and altered mental state, as reported by her daughters, were related to the head injuries.

Dr. Ruderman saw Patricia again on September 26, 2006, when she complained of headaches and depression. Her daughters reported that she was less active, had stopped driving, stopped handling the checkbook, and was "somewhat forgetful." Since Frank died, Patricia had become a recluse, lacking interest in her appearance and personal hygiene. Dr. Ruderman concluded that Patricia suffered post-concussion syndrome with depression, adjustment reaction and cognitive difficulties. He believed her condition was permanent.

Dr. Ivan Dressner, a neurologist who testified on behalf of defendant Hagan, concluded that Patricia did not lose consciousness at the time of the accident. Even if only briefly, she could not have lost consciousness for long, because she was alert when the first responders arrived.

But even assuming Patricia had lost consciousness, Dr. Dressner explained that any associated problems, such as headache and memory loss, would improve over time, and that if the patient's condition deteriorated, it would be from another cause. Thus, any difficulty in thinking three years after a head trauma was not attributable to the trauma. Dr. Dressner opined there was no evidence of brain damage from head trauma, but rather of brain disease. He also did not attribute Patricia's depression to head trauma, noting that the percentage of people whose depression started with a minor head injury is "tiny."

Dr. Dressner noted that her CT scan showed cortical atrophy and deep white matter changes to the brain, and that the MRI showed periventricular white matter disease. According to Dr. Dressner, such brain changes take "years to develop" and were not the result of trauma. Indeed, the ring of white around the ventricle indicated longstanding microvascular change, and the atrophy indicated that Patricia had unknowingly suffered a stroke in the past. Forgetfulness, unsteady gait, irritability, psychomotor slowness, apathy, and changes in speech could be symptoms of periventricular disease. Dr. Dressner concluded that Patricia suffered from mild dementia, and that her smoking (i.e., a pack of cigarettes a day) was an increased risk factor for the progression of dementia and periventricular disease.

On appeal, defendant Hagan raises the following issues:

I. A NEW TRIAL ON ALL ISSUES IS NECESSARY, GIVEN TRIAL ERRORS, ERRONEOUS APPORTIONMENT OF NEGLIGENCE AND EXCESSIVE QUANTUM OF DAMAGES AWARDED TO THE ESTATE OF FRANCIS M. SHARKEY AND TO PLAINTIFF PATRICIA SHARKEY.

II. MANIFEST DENIAL OF JUSTICE OCCURRED WHEN DEFENDANT HAGAN WAS DENIED HER RIGHT TO EXPLAIN THE ABSENCE OF A CIVIL RESERVATION ON REDIRECT EXAM.

III. AS PLAIN ERROR, THE PROXIMATE CAUSE CHARGE TO THE JURY WAS ERRONEOUS, AS A MATTER OF LAW.

IV. AS PLAIN ERROR, THE PROXIMATE CAUSE CHARGE DID NOT STATE SPECIFIC FACTS AND IDENTIFY SPECIFIC PARTIES IN SUCH CHARGE AND THUS, THE CHARGE WAS ERRONEOUS, AS A MATTER OF LAW.

V. AS PLAIN ERROR, IMPROPER AND SURPRISE COMMENTS DURING SUMMATION BY COUNSEL FOR PLAINTIFF CAUSED BIAS AND PREJUDICE AGAINST DEFENDANT HAGAN.

Defendant Frank Sharkey raises the following issue:

THE TRIAL COURT ERRED IN NOT GRANTING THE DEFENDANT, APPELLANT'S MOTION FOR A NEW TRIAL ON DAMAGES, OR IN THE ALTERNATIVE, REMITTITUR.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Hagan's overriding argument on appeal is that the judge erred in denying her motion for a new trial on liability and damages to both Frank and Patricia, while Frank's claim of error on appeal is limited to the damages awarded to his wife, Patricia.

Rule 4:49-1(a) states in part:

A new trial may be granted to all or any of the parties and as to all or part of the issues on motion made to the trial judge. . . . The trial judge shall grant the motion if, 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.

Under Rule 2:10-1, an appellate court can only reverse a trial judge's decision to deny a motion for a new trial where it "clearly appears that there was a miscarriage of justice under the law." "That inquiry requires employing a standard of review substantially similar to that used at the trial level, except that the appellate court must afford 'due deference' to the trial court's 'feel of the case,' with regard to the assessment of intangibles, such as witness credibility." Jastram v. Kruse, 197 N.J. 216, 230 (2008). A verdict that is "a miscarriage of justice" is one that "shock[s] the conscience of the court and convince[s] it that to sustain the verdict would be manifestly unjust." Carrino v. Novotny, 78 N.J. 355, 366 (1979). In other words, a pervading sense of "wrongness" is necessary to justify overturning a jury verdict. Baxter v. Fairmont Food Co., 74 N.J. 588, 599 (1977). "Wrongness" can only be demonstrated when the trial court finds that the jury "went so wide of the mark, a mistake must have been made." State v. Johnson, 42 N.J. 146, 162 (1964).

(I)

Hagan first argues that a manifest denial of justice occurred when the judge prevented her from explaining the absence of a civil reservation on her guilty pleas in municipal court. By way of background, Trooper Rigolosi testified on direct that Hagan did not enter her plea with a "reservation that it could not be used in a later proceeding." On his direct of Hagan, counsel tried to elicit that she was unaware that she could plead guilty with a civil reservation; otherwise, he argued, the jury might infer that she entered her plea without reservation by choice because she believed "she was guilty of having caused the accident." The judge, however, disallowed any response, reasoning that her state of mind was irrelevant. Hagan's counsel then proceeded to elicit that defendant pled guilty to "downgrade the tickets" and that she believed she was operating her vehicle in a careful manner at the time of the accident.

Under N.J.R.E. 402, "all relevant evidence is admissible" unless otherwise provided in the rules. "Relevant evidence" means "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevancy is tested by the probative value the evidence has with respect to the facts in issue. State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). The test is "whether the thing sought to be established is more logical with the evidence than without it." Ibid.

"[E]vidence of a defendant's guilty plea is admissible as an admission in a civil action," and "[i]n particular, guilty pleas to traffic offenses are admissible in civil suits to establish liability arising from the same occurrence." Eaton v. Eaton, 119 N.J. 628, 643-44 (1990). However, "[a] guilty plea is merely evidence, not conclusive proof, of the facts underlying the offense." Id. at 644. "Because such a plea is entered without litigation of the underlying facts, it does not estop the pleading party from contesting the admitted fact." Ibid. The party who entered the plea may "rebut or otherwise explain the circumstances surrounding the admission" by "persuad[ing] the jury that the plea was merely a compromise, or less a reflection of guilt than a balancing of the costs of contesting the charge with the burden of the conviction." Ibid. The explanation does not affect the admissibility of the plea. Id. at 644-45.

However, under Rule 7:6-2(a)(1), when a defendant pleads guilty in a municipal proceeding, "[o]n the request of the defendant, the court may, at the time of the acceptance of a guilty plea, order that the plea shall not be evidential in any civil proceeding." In State v. LaResca, 267 N.J. Super. 411, 421 (App. Div. 1993), the court held that such an order should be entered "as a matter of course on the request of a defendant, unless the State or a victim . . . shows good cause to the court why the order should not be entered."

In our view, evidence of the circumstances surrounding defendant's plea, including her awareness of its use in a later civil proceeding, is clearly relevant, especially since the trooper had "opened the door" on his direct, and would have logically explained the absence of the civil reservation feature. Allowing her to so testify would neither have misled or confused the jury, consumed an undue amount of time, nor prejudiced any party to the proceeding. N.J.R.E. 403; see State v. Deatore, 70 N.J. 100, 116-17 (1976). Under the circumstances, then, it was error to preclude its admission.

However, "reversal is required only when an unjust result occurred[,]" Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991), and we perceive none here. Clearly, Hagan's guilty pleas were admissible as evidential of her guilt, but not dispositive. A defendant has the right to explain the circumstances surrounding a guilty plea, Eaton, supra, 119 N.J. at 644, and Hagan was given that opportunity here. She testified that she pled guilty to "downgrade the tickets" and that she believed she was operating her vehicle carefully. Thus, she had the opportunity to dispel whatever idea the jury might have gotten from the absence of a civil reservation that she pled guilty because she believed she was guilty.

Further, in the jury instructions, the judge thoroughly explained that Hagan's guilty plea was evidence, but not conclusive proof, of guilt:

If you recall, Shakima Hagan pled guilty to New Jersey Statute 39:4-97.2. A guilty plea is merely evidence, not conclusive proof, of the facts underlying the offense. You are not bound by but may consider the guilty plea. You may also consider any explanation Miss Hagan offered for her plea. Independent of the plea, you have the right to make a determination as to whether or not there was unsafe driving [by] Shakima Hagan. Likewise, you are not bound by the fact that the careless driving charge against her was dismissed. You may or may not depending upon your factual findings determine whether or not Shakima Hagan was driving carelessly.

Thus, the judge appropriately explained how the jury should consider both her plea and her explanation for the plea. Therefore, we conclude there was no unjust result and no miscarriage of justice upon which to have granted a new trial. R. 2:10-1.

(II)

Hagan next argues that the judge erred in charging the traditional "but for" proximate cause standard rather than the "substantial factor" test applicable where concurrent causes are alleged, and further that the court's charge did not state specific facts and identify specific parties as required. These deficiencies, in our view, do not amount to reversible error.

Prior to the jury charge, the judge provided a "draft charge" and met with the parties to give them an opportunity to comment on it. Although the record is less than clear, it appears that Hagan's counsel addressed the proposed proximate cause charge, and made suggested changes that did not involve the substance of the instruction. On the next court date, the judge again gave the parties an opportunity to comment on the charge and no comments were made.

In giving the jury instructions, the judge first explained that in order to prevail the plaintiffs had to prove negligence, and if that was proven, they had to prove that "such negligence was a proximate cause of the accident and of their respective injuries and losses that they allege." He then gave an ordinary proximate cause charge based on Model Jury Charge (Civil) 6.11 (1999):

By proximate cause I refer to a cause that in a natural and continuous sequence produces the accident and the resulting injury and without which the resulting accident and injury would not have occurred. A person who is negligent is held responsible for any accident or injury that results in the ordinary course of events from his or her negligence.

This means that you must first find the resulting accident or injury would not have occurred but for the negligent driving. Second, you must find the negligent conduct of those drivers that you found were negligent was a substantial factor in bringing about the resulting injury -- the resulting accident and injury. And by substantial I mean that the cause is not remote, trivial or inconsequential.

If you find that the negligent conduct of those drivers that you found were negligent was a cause of the accident and such negligence was a substantial factor in bringing about the injury, then you should find the negligence of that driver was a proximate cause of . . . the plaintiff's [sic] injuries.

The judge then explained comparative negligence principles:

If you find that Francis Sharkey or Patricia Sharkey has established his or her burden of proof as to negligence as defined by the Court as to more than one defendant, and that includes Francis Sharkey, you must then compare the negligence of those defendants that you find have been proven negligent. The total amount of negligence is a hundred percent. The figure that you arrive at should reflect the total amount of negligence attributed to each defendant who has been proven negligent with respect to the happening of the accident. A comparison of negligence is to be made only if the negligence of one or more defendants has caused the accident.

The judge then reviewed the verdict sheet with the jury and again explained that the total negligence was one-hundred percent and that the "comparison of negligence is made only if the negligence of . . . more than one defendant proximately caused the accident." He went through each defendant by name and told the jury that it had to determine first whether each was a proximate cause of the accident before it should compare their negligence.

Because Hagan's counsel did not object at the close of the charge, we must view the claimed error under the "plain error" standard. R. 1:7-2; R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). See also R. 2:10-2. In this regard, instructions to a jury "must be examined in their entire context and a decision reached whether in the light of all that was said on the particular subject the charge was erroneous or misleading or prejudicially ambiguous." State v. Brown, 46 N.J. 96, 101 (1965).

"When instructing a jury on proximate cause, trial courts must distinguish between the routine tort cases and cases where concurrent causes of harm are present." Camp v. Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App. Div.), certif. denied, 156 N.J. 386 (1998). The "routine" tort case has been described as one in which "the plaintiff's injury can be traced to a single cause." Scafidi v. Seiler, 119 N.J. 93, 101 (1990). In routine tort cases, "'the law requires proof that the result complained of would not have occurred 'but for' the negligent conduct of the defendant.'" Conklin v. Hannoch Weisman, 145 N.J. 395, 417 (1996) (quoting Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 295 (App. Div.), certif. denied, 122 N.J. 333 (1990)).

In cases involving concurrent causes, the law requires consideration of the "substantial factor" test, which recognizes that a tortfeasor will be liable if its negligent conduct was a substantial factor in causing the injuries, even where other intervening causes are foreseeable incidents of the risk created. Conklin, supra, 145 N.J. at 419. Thus, in situations where the conduct of more than one tortfeasor is implicated in the causation of an accident, a charge based on concurrent negligence, as reflected in the model jury charges, should be given. See ibid.; Freund v. Cellofilm Props., Inc., 87 N.J. 229, 245 (1981); Melone v. Jersey Cent. Power & Light Co., 18 N.J. 163, 175-76 (1955). The proximate cause charge based on concurrent negligence is found in Model Jury Charge (Civil) 6.12 (1999), which states:

To find proximate cause, you must first find that [name of defendant or other party]'s negligence was a cause of the accident/incident/event. If you find that [name of defendant or other party] is not a cause of the accident/incident/event, then you must find no proximate cause.

Second, you must find that [name of defendant or other party]'s negligence was a substantial factor that singly, or in combination with other causes, brought about the accident/incident/event or injury/loss/harm claimed by [name of plaintiff]. By substantial, it is meant that it was not a remote, trivial or inconsequential cause. The mere circumstance that there may also be another cause of the accident/incident/event or injury/loss/harm does not mean that there cannot be a finding of proximate cause. Nor is it necessary for the negligence of [name of defendant or other party] to be the sole cause of accident/incident/event or injury/loss/harm. If you find that [name of defendant or other party]'s negligence was a substantial factor in bringing about the accident/incident/event or injury/loss/harm, then you should find that [name of defendant or other party]'s negligence was a proximate cause of the accident/incident/event or injury/loss/harm.

Reference to the "but for" test in a jury charge has been disapproved in New Jersey where there are concurrent causes of harm, Conklin, supra, 145 N.J. at 419; Scafidi, supra, 119 N.J. at 101-02, because of the "inapplicability of 'but for' causation to cases where the harm is produced by concurrent causes." Scafidi, supra, 119 N.J. at 109. The standard "but for" charge could confuse or mislead a jury because it "assumes that the defendant's negligence began a chain of events leading to the plaintiff's injury." Id. at 102.

Although the appropriate standard here was the substantial factor test, the court's use of the traditional proximate cause language did not prejudicially affect Hagan's substantial rights nor have the clear capacity to bring about an unjust result. As acknowledged in Anderson v. Picciotti, 144 N.J. 195, 208 (1996), "the standard 'but for all-or-nothing' causation charge that was given is more stringent than the Scafidi 'substantial factor' charge." Indeed, the development of the "substantial factor" test represented a relaxation of the plaintiff's burden of proof in certain situations in which the "but for" test would prove an "insurmountable obstacle" to plaintiffs. Verdicchio v. Ricca, 179 N.J. 1, 24 (2004). Thus, here, use of the stricter "but for" test actually heightened plaintiffs' burden by making them prove that "but for" Hagan's negligence, and "but for" Frank's negligence, the accident would not have happened. Under the substantial factor standard, plaintiffs would have had to show only that Hagan's negligence was a substantial factor that singly, or in combination with other causes, brought about the harm.

Contrary to defendant's contention, the court's charge did not focus the jury's attention on the allegation that Hagan was the sole proximate cause of the accident. The jury was instructed that a defendant could have proximately caused the accident if he or she was a proximate cause of the accident, not the proximate cause, and the judge clearly and repeatedly instructed that there could be more than one proximate cause of the accident. The jury was also instructed on apportioning liability, once in a standard charge and again as the judge reviewed the verdict sheet with them. The jury's apportionment of liability between Hagan and Frank, and assigning no liability to Budington, indicates that it understood that in order to be held liable, each party had to be a proximate cause of the accident, and that there could be more than one proximate cause of the accident. Clearly, the charge as given did not have the capacity to bring about an unjust result.

Nor did prejudice inure because the court failed to specifically name the actors. Instead, the judge referred to "drivers" to identify Hagan, Frank and Budington. In particular, the judge charged that "[i]f you find that any driver was negligent you must find that such negligence was a proximate cause of the accident before you can find that any of them were responsible." He further charged that it was the duty of "both Francis Sharkey and Patricia Sharkey in the course of proving their individual claims for damages to establish by a preponderance of the evidence . . . the negligence of the drivers or the other drivers in the case of Francis Sharkey." He further charged:

The basic question for you to resolve is whether or not any of the injuries suffered by Patricia Sharkey or Francis Sharkey, as the case may be, are so connected with the negligent actions or -- or inactions of the other drivers that you decide it's reasonable in accordance with the instructions that I now give you that one or both of them should be held wholly or partially responsible for the injuries that Francis Sharkey and Patricia Sharkey claim.

The judge also instructed on how the jury should react if the negligence of two or more persons combined to produce an injury and damages, noting that the parties would be jointly and severally liable. The judge advised the jury what to do "even though the negligence of one driver was more or less than that of another driver."

In our view, the judge's repeated references to the "drivers" of the vehicles was specific enough to allow the jury to easily understand the legal principles involved and how they applied to the facts of the case. This was not a complex matter involving numerous theories, multiple parties, or pre-existing or intervening injuries. Rather, it was a routine automobile accident case in which the jury had to decide whether each driver was negligent, and if so, to what extent. We see no merit to the argument that referring to defendants as "drivers," as opposed to mentioning their names, had the capacity to lead the jury to reach a result it otherwise might not have reached.

(III)

Hagan next argues that the damages awards to both Frank and Patricia were excessive, and Frank argues that the damages award to Patricia was excessive. Although the trial judge deemed both awards "high," he refused to reweigh the evidence and substitute his judgment for that of the jury. We agree. In our view, neither damages awards required a new trial or remittitur.

"Assigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is 'not gauged by any established graduated scale.'" Caldwell v. Haynes, 136 N.J. 422, 442 (1994) (quoting Cermak v. Hertz Corp., 53 N.J. Super. 455, 465 (App. Div. 1958), aff'd, 28 N.J. 568 (1959)). Nevertheless, pain and suffering awards must be reviewed to determine whether they are fair and reasonable. Ibid.

Recently, the Supreme Court summarized the law regarding a court's role in reviewing a jury verdict for excessiveness:

Our role in assessing a jury verdict for excessiveness is to assure that compensatory damages awarded to a plaintiff "encompass no more than the amount that will make the plaintiff whole, that is, the actual loss." Although "[t]he judicial role in reviewing jury verdicts . . . is essential to a rational system of justice," the authority to set aside damages awards on grounds of excessiveness is "limited." "Verdicts should be upset for excessiveness only in clear cases." "It is only upon the predicate of a determination that there has been a manifest miscarriage of justice, that corrective judicial action is warranted."

[Jastram, supra, 197 N.J. at 228 (internal citations omitted).]

In analyzing whether a damages award is excessive, a trial judge's review must be grounded in the "totality of the evidence" in the record, Baxter, supra, 74 N.J. at 598, which is viewed in a light most favorable to the plaintiff. Johnson v. Scaccetti, 192 N.J. 256, 281 (2007). The Court in Jastram explained further:

In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future. The court may look beyond the record to judicial "experience with other injury verdicts." However, "if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared."

[Jastram, supra, 197 N.J. at 229-30 (internal citations omitted).]

After this analysis, if the jury's award has reasonable support in the record, even if it is generous, it should be upheld. Id. at 230.

"[W]hen a defendant moves for a new trial, successfully claiming that a jury awarded excessive damages, the trial court has the option of denying the motion on the condition that the plaintiff consent to the reduction of 'the award to a specified amount.'" Johnson, supra, 192 N.J. at 281 (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001)). In the absence of consent, a new damages trial is ordered. Ibid. Remittitur is encouraged to avoid the "unnecessary expense and delay of a new trial." Fertile, supra, 169 N.J. at 492.

Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a remittitur is high. Johnson, supra, 192 N.J. at 281. "In deciding whether to grant a remittitur, the court . . . must articulate its reasons for reducing a damages award by reference to the trial record." Ibid. A court utilizing remittitur should remit the "award to the highest figure that could be supported by the evidence" and not substitute its own judgment for that of the jury. Fertile, supra, 169 N.J. at 500.

Measured by this standard, we find no warrant for interference with either damages award. Frank suffered a hip fracture that could not be surgically repaired. He spent several weeks in the hospital and rehabilitation center. When he was released, he underwent a steady decline from walker to wheelchair to bed. He was in near constant pain, and was unable to sleep through the night comfortably. Moreover, his emotional state declined as his abilities and condition deteriorated. While Frank had some health issues prior to the accident, he had led an active life, playing golf several times a week and working part-time as a bartender, a position that involved standing on his feet for prolonged periods. After the accident, however, he could do little, and needed help caring for his basic needs such as shaving and bathing. He was unable to return to his own home due to his inability to mount the stairs, and was forced to spend the rest of his life in his daughter's home. In sum, the accident rendered the last fifteen months of Frank's life physically and emotionally painful and in a very real sense marked the beginning of his demise.

By all accounts, Patricia suffered a displaced fracture of the ankle and lifestyle limitations, and in her expert's opinion at least, a loss of consciousness and closed-head injury. Her ankle was broken in two places, she underwent surgery and lived the remainder of her life with screws and plates protruding from her ankle. She suffered pain in her ankle upon too much walking or changes in the weather. After the accident, Patricia spent six weeks in the hospital and rehabilitation center, and contracted pneumonia while a patient. She was unable to return to her own home due to the stairs, and was forced to live the rest of her life with her daughter. She also was unable to return to the hostess job she enjoyed so much. Although it may be argued that her subsequent depression was rooted in the loss of her family members, it was also reasonable to conclude that Patricia's loss of independence as a result of the accident contributed to her emotional condition.

There was no dispute that Patricia also suffered a gash to the forehead that resulted in a significant scar. Although there was conflicting evidence concerning her other head injuries, there was evidence from which a jury reasonably could have found that she suffered a cerebral concussion, post-concussion syndrome, and cognitive deficits as a result of the accident.

"Some losses in life cannot be measured in dollars and cents. No expert can properly aid a jury in determining what is just compensation for non-economic damages such as pain and suffering." DeHanes v. Rothman, 158 N.J. 90, 97 (1999). Here, although Patricia and Frank suffered real physical pain and losses, they also suffered a substantial change in their lifestyle, most notably their inability to live independently in their own home. Given their physical ailments and lifestyle changes as a result of the accident, the jury's verdict cannot be said to be so excessive as to shock the judicial conscience.

(IV)

We have reviewed defendant Hagan's final contentions concerning certain allegedly prejudicial comments of plaintiffs' counsel in summation and conclude they are of insufficient merit to warrant comment in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

Technically, plaintiff is Stephen Sharkey, substituted administrator CTA of the Estate of Francis Sharkey, who died on December 17, 2004, prior to trial.

Patricia Sharkey died on May 13, 2008, after final judgment and filing of the appeals. On September 10, 2008, we granted a motion to substitute the executor of her estate as the party in the appeal.

Frank's videotaped deposition, taken about six weeks before his death, was played at trial.

Hagan eventually pled guilty to amended charges of unsafe driving and failure to exhibit documents. She did not, however, enter the plea subject to a reservation that it not be used against her in a subsequent suit. The unregistered vehicle charge was either dismissed or merged. Hagan explained that she pled guilty to the charges so that she could "downgrade" the tickets.

The pulmonary fibrosis made it difficult for Frank to undergo anesthesia, as a tube is put down one's throat and into the lungs to assist breathing during the induced coma.

On the mobile intensive care patient report, Patricia denied losing consciousness, and the report described Patricia as "alert" upon arrival.

(continued)

(continued)

31

A-2820-07T3

A-2849-07T3

June 10, 2009