JOANNE FLIS v. MAINCO ELEVATOR COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4268-07T24268-07T2

JOANNE FLIS and RAYMOND FLIS,

Plaintiffs-Respondents,

v.

MAINCO ELEVATOR COMPANY t/a

MAINCO ELEVATOR SERVICE

COMPANY, a New York Corporation,

Defendant-Appellant,

and

TAUBMAN CENTERS, INC., trading

as and/or doing business as

The Taubman Company, a Michigan

Corporation; TAUBMAN REALTY

GROUP LTD. PARTNERSHIP,

individually and/or as a subsidiary

employee, agent and/or servant of

Taubman Centers, Inc.; FEDERATED

DEPARTMENT STORES, INC., a Ohio

Corporation; BLOOMINGDALES, INC.,

a New York Corporation and subsidiary

corporation of Federated Department

Stores, Inc.,

Defendants.

______________________________________

BEVERLEE ROLLERI and RONALD

ROLLERI,

Plaintiffs-Respondents,

v.

MAINCO ELEVATOR COMPANY t/a

MAINCO ELEVATOR SERVICE COMPANY,

a New York Corporation,

Defendant-Appellant,

and

TAUBMAN CENTERS, INC. trading

as and/or doing business as

The Taubman Company, a Michigan

Corporation; TAUBMAN REALTY

GROUP LTD. PARTNERSHIP, individually

and/or as a subsidiary, employee,

agent and/or servant of Taubman

Centers, Inc.; FEDERATED

DEPARTMENT STORES, INC., a Ohio

Corporation; BLOOMINGDALES, INC.,

a New York Corporation and

subsidiary corporation of Federated

Department Stores, Inc.,

Defendants.

_____________________________________

 

Argued: October 15, 2009 - Decided:

Before Judges Axelrad, Fisher and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-5855-03 & L-5858-03.

Edward J. DePascale argued the cause for appellant Mainco Elevator Company (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. DePascale, of counsel and on the brief; Sandra D. Lovell, on the brief).

Michael DuPont argued the cause for respondents Joanne and Raymond Flis and Beverlee and Ronald Rolleri (McKenna, DuPont Higgins & Stone, attorneys; Edward Washburne, of counsel and on the brief).

PER CURIAM

Following a remand after we reversed summary judgment dismissal of plaintiffs' action seeking damages for injuries sustained as a result of the female plaintiffs being trapped in a runaway elevator maintained and serviced by defendant, a jury verdict was entered in plaintiffs' favor. Defendant Mainco Elevator and Electrical Corp. (Mainco) appeals from the judgment, arguing, among other things, that the trial judge erred in charging res ipsa loquitur and in several evidentiary rulings, and that the verdict was excessive and against the weight of the evidence. We affirm.

This is a consolidated personal injury action brought by plaintiffs Joanne Flis and her husband Raymond, and Beverlee Rolleri and her husband Ronald, arising from an elevator incident occurring in Bloomingdale's at the Short Hills Mall on October 8, 2001. The doors failed to open to let plaintiffs out and the elevator repeatedly jerked up and down between the fourth floor and basement for over two hours before security personnel were able to release the trapped plaintiffs. Suit was instituted against the corporate owner of Bloomingdale's, who settled prior to trial, and Mainco. At the time of the accident, Mainco was party to a contract requiring it to provide elevator maintenance services to Bloomingdale's. Plaintiffs contended they sustained physical and psychological injuries and lost earnings, and their husbands asserted losses of consortium, resulting from Mainco's negligent maintenance of the malfunctioning elevator.

The action was originally dismissed by way of summary judgment on the ground that the liability report of plaintiffs' expert was a net opinion, the doctrine of res ipsa loquitur did not apply, and thus plaintiffs could not establish their claims without an expert opinion. Plaintiffs' motion for reconsideration was denied. A panel of our court reversed by way of an unpublished opinion. Flis v. Mainco Elevator Co., No. A-1674-05T2 (App. Div. Nov. 6, 2006). Although agreeing with the trial court that Patrick Carrajat, plaintiffs' vertical transportation expert, had rendered only a net opinion, the panel concluded that the expert should still have been permitted to testify about the maintenance records and what Mainco's obligations were under the service contract, as a basis for suggesting Mainco's negligence. We stated:

Although we agree that the expert's opinion was a net opinion, we believe, nevertheless, the trial judge should have allowed plaintiffs' expert to testify at trial as to what his review of the maintenance records disclosed, i.e., Mainco's obligations under the service contract, the lack of monthly maintenance as required thereunder, the elevator's "running wild" the day of the incident, and the replacement of the relay switch by Mainco's mechanic the following day, properly limited so as not to include net opinion statements about negligence or fault. Plaintiffs would thus be able to present testimony that by virtue of its contract, Mainco had a duty to perform maintenance in accordance with its contractual obligations and exercised exclusive control over the elevator.

[Id. (slip op. at 8-9)].

The panel also noted the likely applicability of a res ipsa loquitur theory against Mainco for injuries incurred by the malfunctioning of the elevator.

In discovery following the remand, Carrajat fleshed out his report. In his deposition and de bene esse deposition presented at trial in January 2008, Carrajat testified that a review of Mainco's records disclosed the elevator had not been serviced for at least three months before the incident despite the service agreement between Mainco and Bloomingdale's which required monthly maintenance, and that the day after the accident the "LR" (late call response) relay was replaced and the elevator was placed back in service without further incident. Thus identifying the source of the malfunction as an LR relay that had "burned out" or otherwise gone bad, Carrajat was of the opinion that Mainco's faulty or non-existent maintenance was the cause of the erratic behavior of the elevator and plaintiffs' resulting injuries. Carrajat's testimony also included in cross-examination the acknowledgement that a relay failure could occur spontaneously and in the absence of negligence. The trial court permitted the testimony that spontaneous failure could occur but ruled that the statement referencing "absence of negligence" would be deleted from Carrajat's trial testimony. The court's ruling was based on its interpretation of our remand opinion as precluding Carrajat from mentioning negligence or its inherent counterpart, absence of negligence. However, the entire section was inadvertently played to the jury. Accordingly, the court informed the jurors of the error and instructed that the phrase "absence of negligence" be stricken from the record and they were not to consider that testimony in their deliberations.

Mainco presented two of its servicemen as fact witnesses and did not present any expert testimony on the issue of liability. Daniel Donlin, Mainco's mechanic who inspected the elevator the day after the incident, testified that he traced the problem to a burnt out or bad coil in the LR relay by use of a fault meter, replaced the part, and threw out the failed relay. He could not recall seeing any evidence of malfunctioning contacts, broken shunt or discolored wiring insulation on any of the relays during his inspection. Nor did he observe any physical abnormalities or obvious burn marks, noting that "[m]ost of the time those things are not visible."

On the issue of damages, plaintiffs testified, as did their husbands. They also produced examining medical providers, including physicians, a psychologist, a psychiatrist, and an economist, by live and de bene esse deposition testimony. Plaintiffs presented evidence of injuries resulting from the accident; Flis presented proof of an injury to her left big toe requiring surgery and Rolleri claimed a compression fracture of her thoracic spine. Both plaintiffs also presented evidence of psychological injuries, and Rolleri presented evidence of lost earnings. The jury awarded Flis $415,000 and Rolleri $615,000, and Raymond and Ronald $30,000 and $185,000 on their respective per quod claims; and apportioned negligence as 33% against Mainco and 67% against Bloomingdale's. The final judgment order was entered on March 28, 2008. Following denial of its motion for a new trial, Mainco appealed, challenging rulings affecting the liability verdict and challenging the amount of the damages verdict.

I.

Plaintiffs, who were fifty-five years old at the time of the incident, testified that they were shopping at Bloomingdale's on October 8, 2001. Between 7:00 and 7:15 p.m., they entered the elevator on the lower level as the sole occupants and pressed the button for the fourth floor. The elevator stopped at the fourth floor but the doors did not open. Flis testified that "all of a sudden the floor just collapsed" beneath them as the elevator began descending and stopping in a jerky motion. She explained that the second time the elevator jerked, she fell backwards and hit her back and head, and also jammed her foot where the doors closed to keep from falling as the elevator continued to drop again and again. Rolleri testified that when the elevator first ascended and came to a halt with a "violent jolt," it caused her to fall to the floor, and the continuous erratic descending and stopping caused her to fall repeatedly, striking her back and head. Rolleri described the force of the impact as "being in a car accident and somebody hitting your car . . . with their car, again and again and again," and it felt as if the elevator were "running wild."

During this time, the women pressed the alarm button, which they could hear ringing outside of the elevator, and used the emergency telephone contained in the elevator, but they received no response. Flis also tried using her cell phone but had no signal. In addition, Rolleri tried to pry the door open but it was too heavy. After about an hour in the elevator, Flis was able to speak on her cell phone with Bloomingdale's security staff who said they would send someone over. In the interim, the elevator continued to move up and down between the fourth floor and the basement. At 9:45 p.m., security staff was able to open the elevator doors and release plaintiffs after about two and a half hours of confinement. According to Rolleri, they felt dehydrated from screaming, were in shock, and were generally a "total wreck." Flis described the incident as terrifying, and she feared she was going to die. Rolleri could only think of "getting home" and "be[ing] alive." Both plaintiffs became ill on the drive home.

II.

Flis testified that at the time of the incident she was working full-time as a bookkeeper at a law firm and described herself as a "healthy person." The morning after being trapped in the elevator, she was extremely sore from the fall, and her foot, neck, and back hurt. She was "very, very nervous" and did not return to work for about a week and a half. She attempted physical therapy and chiropractic treatment, but did not get relief.

Plaintiff further testified that as a result of the incident she also bruised her left foot, which caused her difficulty walking. Dr. Jon Ark, an orthopedic surgeon, initially examined her on August 18, 2003, and testified he noted Flis' "big toe joint was swollen, and she had limited motion about her joint." Based on his examination, x-rays and Flis' medical history, Dr. Ark was of the opinion that she had "arthritis of her great toe joint."

On October 20, 2003, Flis underwent a fusion of her left big toe, metatarsophalangeal joint. Dr. Ark removed cartilage and put a plate and screws into the arthritic joint to make it rigid so there was no motion. By fusing Flis' big toe in a permanently stiff position so it could no longer move, it relieved the pain she had been experiencing. The doctor testified that the plate and screws might have to be removed over time because of future discomfort and that the fusion might put additional stress upon adjacent joints, which may cause them to become arthritic.

Dr. Ark explained that as a result of the operation, Flis was limited to wearing a shoe "no greater than an inch to an inch and a half heel height" because her toe would not bend if she wore anything higher and a shoe too flat would irritate her foot. The physician was of the opinion that Flis' symptoms were causally related to the elevator malfunction as supported by objective medical tests, and the injuries were permanent in nature. Flis testified that she was on crutches for about two months after the surgery. She also described difficulty walking or standing for periods of time. She explained that the bottom of her foot becomes very sore and that she walks unnaturally, affecting her right hip.

It appears the only medical evidence presented by the defense with respect to Flis was neurologist Dr. Eric Remed who examined her on February 26, 2004. He opined that she probably did suffer "a soft tissue sprain, stretched muscles that temporarily hurt," which is not a permanent injury, as well as chronic degenerative disease in her cervical spine that was unrelated to the accident. Based on his examination, Flis' medical history and the records he reviewed, Dr. Remed concluded that she suffered no permanent neurological injury as a result of the incident. The defense doctor did not offer an opinion with respect to any injury to Flis' toe.

Flis also presented evidence of psychological and emotional trauma as a result of the elevator incident. She testified about her recurring nightmares, which affected her sleep; avoidance of phone calls and reluctance to socialize; inability to concentrate at work; and constant fear that "there's something that's going to happen while [she was] out." She also no longer enjoyed traveling and other activities with her husband, and "bec[a]me very needy" and "depend[ent] on him to do everything now." Flis treated with therapists through January 2, 2004 and then with a psychiatrist, Dr. Kenneth Burns, until she moved out of state in May 2006. Flis explained that she moved closer to her children and grandchildren to help take her mind off of the incident but she still experiences pain and nightmares, takes pain medication, and ices her neck and back at times. Despite these lingering effects, Flis obtained full-time bookkeeping work in a law firm.

Dr. Burns testified that based on Flis' symptoms of depression, anxiety, nightmares, and avoidance, he diagnosed her as having post-traumatic stress disorder (PTSD) and major depressive disorder. He prescribed various anti-depressant and anti-anxiety medications, which were also intended to help her insomnia and fatigue. Although he could not objectively report Flis' PTSD as permanent, Dr. Burns opined that "people who experience traumatic events can have those as a life long problem."

III.

Rolleri testified that the day following the incident, she experienced pain in her neck, back, arms and legs. She also complained of a headache that, since the accident, "never . . . left." She elaborated upon the pain medication she was prescribed and the epidurals she received for pain in her lower back and severe pain in her leg caused by inflammation of the sciatic nerve, and the side effects of both treatments. She briefly pursued physical therapy, and after consulting three orthopedic surgeons, decided against surgery because she was concerned it would not be successful. Rolleri stated that as a result of her injuries she continues to experience constant pain whether walking, sitting or lying down, as well as a "radiating pain" from her left shoulder to her left elbow. She also experiences pain across her buttocks and down to her toes, including numbness, tingling and loss of sensation. Similar to Flis, Rolleri informed the jury that prior to the accident she did not experience any of these symptoms or suffer any serious physical injury.

Dr. Steven Lisser, Rolleri's treating orthopedic surgeon, testified that based on his examination, review of her medical history, February 4, 2004 MRI, and December 12, 2002 x-rays of her thoracic spine, he diagnosed her as suffering from a compression fracture of the thoracic spine as a result of this incident. On cross-examination, Dr. Lisser was confronted with the report of the radiologist who read the MRI and indicated there was no compression fracture. He explained that the reason for his disagreement was because he relied on the x-rays taken in his office, which are "usually more specifically targeted for looking at compression fractures where the MRI scans are more for the disc spaces." He elaborated that his diagnosis was based on his "specific finding on [Rolleri's] x-rays" and consistent with his testimony regarding a forward tilting of Rolleri's spine.

Dr. Remed, the defense neurologist, testified that his review of the films corroborated the radiologist's conclusion that Rolleri did not have a compression fracture, but, rather, "showed degenerative aging changes at multiple levels that were not neurologically significant." Based on his examination and a review of Rolleri's medical file, Dr. Remed opined that, like Flis, Rolleri probably suffered soft tissue injuries but did not suffer any permanent neurological injury as a result of the incident.

Rolleri, too, presented lay and expert testimony of lasting psychological damage as a result of the incident. Rolleri testified that as of trial, she had been treating with a psychologist for five years. Rolleri explained that since the incident she is afraid of loud noises and suffers from sleep deprivation, nightmares, and recurring flashbacks. Moreover, she only entered an elevator on one occasion afterwards, during which she shook "all over" could not open her eyes, and became "sick to [her] stomach." Rolleri also testified that her intimate relationship with her husband was adversely affected and she no longer enjoyed taking trips to New York or pursuing hobbies. She testified about her employment and educational history and told the jury how the incident adversely affected her ability to work.

Dr. Rhonda Rapps, Rolleri's treating psychologist, testified that Rolleri experiences continual reminders of the incident. The psychologist recounted Rolleri's initial fear in the elevator that the malfunction was related to the terrorist attacks of 9/11. She opined that Rolleri suffers from PTSD, as well as depression stemming from her "continuing physical problems" and from the fact she is no longer capable of a range of activities, either professionally or for pleasure.

The defense presented Dr. David Masur, a neuropsychologist who conducted an independent medical examination of Rolleri, reviewed various medical and psychiatric records of her treatment, and administered a Minnesota Multiphase Personality Inventory (MMPI) test. Dr. Masur was of the opinion that, based on Rolleri's clinical presentation and the test results of the MMPI, she did not currently suffer from PTSD. The court sua sponte precluded the defense expert from testifying as to the specific score and results of the MMPI, in part because the test was tabulated by a computer, not a physician. The court did, however, permit the expert to explain the nature and purpose of the test.

Rolleri offered the expert testimony of an economist, Frank Tinari, Ph.D., regarding her future lost earnings. Defense counsel objected, arguing the expert's opinion was based on an incorrect assumption that Rolleri would have a full-time job as a graphic designer. The court overruled the objection, noting that defense counsel cross-examined Rolleri regarding her employment and educational history and would have the opportunity to argue to the jury that her economist's opinion should be given no weight.

Dr. Tinari testified that due to Rolleri's late entry into college and graduation in 2000, her recent earning history was "very spotty" with only "part time earnings" and she had not established a career prior to the injury. He noted that she had worked part-time in 2001 as a graphic designer at $10 an hour and estimated that if she secured a full-time job in that field she would start out at about the same rate ($20,800 annually). The economist projected that Rolleri's earnings would increase with more experience to reach the average wage of her profession ($30,000 to $40,000 range), increasing up to about $49,000 in the current year. Dr. Tinari calculated that Rolleri's past net losses were $61,000 and the net present value of her future losses amounted to approximately $190,000. He also testified to the value of Rolleri's past and future household services. The economist presented a summary chart showing the range of 30% to 70% loss of earnings and household services as a result of the incident ($150,000 to $252,700).

IV.

On appeal, Mainco argues that the trial court erred in denying its motion for a new trial because the verdict rests on plain errors of law and results in manifest injustice to defendant. In particular, Mainco asserts error by the court in precluding Carrajat's testimony regarding spontaneous elevator relay failure; in charging res ipsa loquitur where Carrajat identified the cause of the incident as a burnt out relay and conceded that a relay failure can occur absent negligence; in barring Dr. Masur from referring to his MMPI findings, a test reasonably relied on by experts in his field; and in permitting the testimony of Dr. Tinari, even though his opinions were based on unsubstantiated assumptions. Mainco also urges that the judgments entered on the jury verdict should be overturned, arguing the award was excessive and against the weight of the evidence. Other than finding error respecting the court's ruling as to Dr. Masur, which we find to be harmless, we are not persuaded as to any of Mainco's other challenges to the trial court's rulings or to the jury verdict.

The trial judge interpreted our opinion as permitting Carrajat to testify at trial about Mainco's contractual duty to perform maintenance and its exclusive control over the elevator, as well as its failure to perform the required monthly maintenance, the incident itself, and the replacement of the relay switch by Mainco's mechanic the day after the incident. In other words, he allowed plaintiffs' expert to testify to obligations stemming from Mainco's contractual agreement but not as to negligence or the absence of negligence. Accordingly, the judge permitted the jury to consider Carrajat's acknowledgment that LR relays can spontaneously fail and only directed the jury to disregard the reference to the "absence of negligence."

We are satisfied the judge's interpretation of our remand instructions was reasonable and are not convinced the judge abused his discretion in this ruling. We fail to see how Mainco was prejudiced by the court's striking of Carrajat's legal conclusion. The jury was still informed of the fact that a relay failure could occur spontaneously. The jury was also informed by Donlin that he found no visible signs that the relay had failed when he inspected and replaced it the day after the incident. Thus, the jury could still conclude that the relay failure could occur without any prior warning and absent the required maintenance under perfectly normal circumstances unrelated to negligence.

In light of this testimony by Carrajat and Donlin, Mainco urges that res ipsa loquitur was an inappropriate charge to the jury. We disagree. Res ipsa loquitur is a longstanding evidentiary doctrine, which allows a factfinder to draw an inference of negligence from the circumstances surrounding certain accidents and against the party who was in exclusive control of the object or means that caused the accident. Jerista v. Murray, 185 N.J. 175, 191-92 (2005). For this doctrine to apply, a plaintiff must establish that: "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Id. at 192 (quoting Buckelew v. Grossbard, 87 N.J. 512, 525 (1981)).

"Whether an occurrence ordinarily bespeaks negligence is based on the probabilities in favor of negligence." Myrlak v. Port Auth. of N.Y. & N.J., 157 N.J. 84, 95 (1999). "[A] plaintiff need not exclude all other possible causes of an accident to invoke the res ipsa doctrine, provided that the circumstances establish that it is more probable than not that the defendant's negligence was a proximate cause of the mishap." Jerrista, supra, 185 N.J. at 192 (citations and internal quotation marks omitted). See also Rosenberg v. Otis Elevator Co., 366 N.J. Super. 292, 301 (App. Div. 2004).

As the trial judge discussed at length, all of the res ipsa factors were present in this case: an elevator erratically bouncing up and down and "running wild" is an event that ordinarily bespeaks negligence, the instrumentality was within Mainco's exclusive control as interpreted by the case law, and it is undisputed that plaintiffs did nothing to contribute to the occurrence and their resulting injuries. Accordingly, res ipsa loquitur was a legitimate theory to be applied in this case. Because the inference is purely permissive, the jurors were free to accept or reject it depending upon their findings of fact. See Buckelew, supra, 87 N.J. at 526.

We agree with Mainco that the trial judge erred in barring a portion of the defense psychologist's testimony regarding Rolleri's MMPI score and the specifics of her test to support his conclusion that she did not have PTSD. Contrary to the judge's ruling, the expert clearly laid a foundation demonstrating that this was a well-recognized test widely used and reasonably relied on by other psychologists to measure different aspects of personality and symptom validity. N.J.R.E. 703. Dr. Masur also testified that he routinely relies on the test in forming his opinions and that although a computer tabulates the test score, similar to an SAT, he interprets the findings using his own psychological expertise.

We are not convinced, however, that the judge's erroneous ruling had a significant bearing on the outcome of the trial. Dr. Masur gave his opinion that Rolleri did not currently suffer from PTSD. He supported this conclusion with extensive testimony about his clinical assessment of Rolleri during his three hour examination of her. Dr. Masur told the jury that the MMPI test is a 567 question true or false test covering a "very, very wide range of feelings, experiences [and] symptoms" and that after completion of the test, it is scored simply on whether Rolleri answered true or false to a particular question. The psychologist further explained the purpose of the test and that it is "very good at detecting [the] validity of responses" and "symptom validity" when the individual's score is assessed against a "legitimate control group." The jury was informed that this "largest most popular test" administered by psychologists and neuropsychologists assisted him in arriving at his opinion in this case. The only piece missing was that Dr. Masur was unable to explain exactly how these test results supported his view. We are hard-pressed to conclude that plaintiffs' counsel's single comment in summation that Dr. Masur had Rolleri "come in, put little dots on a piece of paper, stuff[] them into a computer and it's okay, yes, no, indifferent[]" would have had any greater or lesser impact on the jury had the defense psychologist been permitted to testify about Rolleri's MMPI scores.

There is no question that Rolleri's economist was qualified as an expert. His testimony contained sufficient whys and wherefores for admission. See Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). As the trial judge noted, the defense's objection was actually to the weight to be given to Dr. Tinari's testimony, not its admissibility. In assessing Rolleri's future lost wage claim, it was up to the jury to determine whether it believed her testimony that due to her injuries she was unable to pursue her chosen career and her expert's premise that, had she not been injured, she would have found a full-time job as a graphic designer.

V.

The court's 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." Caldwell v. Haynes, 136 N.J. 422, 433 (1994). The court must review the "totality of the evidence" in the record, Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), analyzed in a light most favorable to the plaintiff, Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).

Our authority to set aside damage awards on grounds of excessiveness is limited, Carey v. Lovett, 132 N.J. 44, 66 (1993), and should be done only in clear cases, Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970). A jury verdict is generally determined to be excessive only when "it is so disproportionate to the injury and resulting disability shown as to shock [the] conscience and to convince [the court] that to sustain the award would be manifestly unjust." Baxter, supra, 74 N.J. at 596. Moreover, we 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." R. 2:10-1.

In Jastram v. Kruse, 197 N.J. 216 (2008), the Supreme Court recently addressed the issue of judicial review of damage verdicts. The Court reiterated that "the evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, the verdict must be wide of the mark and pervaded by a sense of wrongness." Id. at 229 (citations and internal quotation marks omitted). The Court further noted that "where an award, even if generous, has reasonable support in the record, the jury's evaluation should be regarded as final." Id. at 230 (citations and internal quotation marks omitted). Additionally, in conducting our review of the totality of evidence presented on the damages issue, we must keep in mind the longstanding principle that a judge may not "substitute his [or her] judgment for that of the jury" nor act as a "thirteenth and decisive juror"; but rather, may correct only "clear error or mistake by the jury." Baxter, supra, 74 N.J. at 598 (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).

There were factual disputes regarding the extent of various aspects of plaintiffs' injuries. The jury assessed the credibility of the plaintiffs and their husbands, Rolleri's economist, and the competing experts regarding plaintiffs' medical and psychological injuries, as well as the factual basis for the experts' opinions. Mainco has demonstrated no sense of "wrongness" in the jury award, given that a month after 9/11 two women in their fifties were undisputedly trapped in an elevator that erratically ascended and descended between floors repeatedly for over two hours, and they presented credible lay and expert testimony of resulting permanent physical and psychological injuries and economic loss.

The jury awarded Flis $415,000 for her past medical expenses, disability, impairment, and pain and suffering. She did not assert a wage loss claim. Flis' medical bills totaled $51,196.81. The jury awarded Rolleri $615,000 in damages, which included a present and future lost wage claim. Rolleri's medical bills totaled $44,040.39. Her proof of economic losses ranged from $150,000 to $252,700, depending upon whether she lost 30% or 70% of her ability to earn and perform services.

As a result of the incident, Flis injured her left big toe and had pain in her foot with daily activity. She required a surgical procedure on the toe in which cartilage was removed and a plate and screws were placed into the joint to permanently affix it into a stiff position. While this eliminated her pain, it also caused Flis to walk unnaturally, stressing her right hip. Furthermore, she is limited to wearing shoes with an inch to an inch and a half heel height and cannot even wear a flat shoe. None of this evidence was disputed by the defense neurologist who simply testified that Flis did not suffer a permanent neurological disability as a result of the accident.

Flis also testified about significant psychological trauma following the accident, including nightmares, social and marital withdrawal, and difficulty concentrating at her job. She treated with therapists and psychiatrists for three years, and was diagnosed with PTSD and major depressive disorder for which she was prescribed multiple medications. Dr. Burns testified that Flis' psychological problems could be lifelong, and she testified that she still continues to experience nightmares.

Rolleri also testified as to the pain and suffering she experienced following the elevator incident, as she sought relief for the severe pain in her lower back and leg through epidurals, physical therapy, and prescription pain relievers. The extent of Rolleri's compression fracture was described to the jury in detail by her treating orthopedic surgeon, as was his explanation for disagreeing with the result of the MRI report. The jury had ample opportunity to evaluate this testimony, as well as the competing testimony of the defense doctor who disputed the existence of a compression fracture, and make its own determinations when awarding damages.

The jury was also presented with a considerable amount of evidence upon which to base the damage award for psychological injury. Rolleri testified concerning her current inability to use elevators, her recurring nightmares, and the ongoing adverse effect of the incident on her ability to work and participate in activities she previously enjoyed. The jury heard testimony from the psychologist who treated Rolleri for five years as to her diagnosis of PTSD and depression stemming from the elevator trauma and was able to weigh it against the contrary diagnosis of the defense psychologist.

The record further reflects lengthy testimony by Rolleri and her economist concerning lost wages and loss of household services on which the jury also could have based a portion of its damage award.

Because the trial record in this case contains reasonable evidence on which the jury could base its award for both plaintiffs, there is no basis for us to intervene. To hold otherwise would be to merely substitute our judgment for that of the jurors who were present throughout the course of the multi-day trial. As we are satisfied the jury awards were not grossly excessive or against the weight of the credible evidence, but reflected the function of the jury to determine reasonable damages based on the proofs before it, the jury's verdict must be affirmed.

 
Affirmed.

The husbands asserted per quod claims. For ease of reference, we will refer to Joanne Flis and Beverlee Rolleri as "plaintiffs" or by their surnames, and to their husbands solely by their first names.

Plaintiffs presented the de bene esse testimony of their chiropractor, Dr. Siskin, at trial, which is not part of the appellate record.

Based on the appellate record it does not appear that Dr. David Masur, the defense psychologist who testified regarding Rolleri's lack of PTSD, testified regarding Flis.

The jury verdict did not contain any breakdowns and was phrased in the general terms of the amount of money that would "reasonably and fairly compensate" each plaintiff for her injuries and losses.

(continued)

(continued)

2

A-4268-07T2

December 1, 2009