TRACEY A. JOHNSON et al. v. BENEDICT A. SCACCETTI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4708-04T14708-04T1

TRACEY A. JOHNSON and CHRISTOPHER

JOHNSON, her husband,

Plaintiffs-Respondents/

Cross-Appellants,

v.

BENEDICT A. SCACCETTI,

Defendant-Appellant/

Cross-Respondent.

_____________________________________

 

Submitted May 15, 2006 - Decided June 13, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County,

L-157-03.

Parker McCay, attorneys for appellant/cross-respondent (Anthony Young, of counsel; Stacy L. Moore, Jr., on the brief).

Levinson Axelrod, attorneys for respondents/ cross-appellants (David T. Wheaton, on the brief).

PER CURIAM

Following a four-day damages-only trial, a jury awarded plaintiff, Tracey Johnson, $2,500,000 for personal injuries she sustained in an automobile accident, and her husband, Christopher, $500,000 on his per quod claim. Defendant moved for new trial or, in the alternative, remittitur. The judge denied defendant's motion for new trial, but remitted Tracey's jury award to $1,500,000 and Christopher's to $250,000. Defendant appeals from the adverse judgment, asserting that the judge erred in determining that plaintiffs' proofs vaulted the Automobile Insurance Cost Reduction Act (AICRA) limitation on lawsuit threshold and in not granting a new trial. Plaintiff cross-appeals the order remitting the jury damage award. We reverse the order of remittitur, reinstate the jury verdict, and remand for entry of judgment.

The following relevant facts were developed at trial. On November 12, 2001, Tracey, age 39, was traveling southbound in the left lane on Route 130 proceeding through its intersection with Crosswicks Street when defendant failed to stop for a red light and his vehicle struck Tracey's Ford Windstar minivan in the middle of its passenger side. Tracey's vehicle was caused to flip onto its driver's side, slide down the road, hit the median, flip onto its roof, and then over again onto its four tires. As Tracey's minivan was sliding on the road, "all [she] could see was glass and pavement" and "was worried [her] arm was going to be . . . chewed off." Lieutenant Matthew James Simmons of the Bordentown Township Police Department responded to the scene. Tracey complained to Simmons of pain throughout her body. While she was still in her vehicle, emergency personnel applied a cervical collar and placed Tracey on a backboard. Tracey was removed through the driver's side door, placed into an ambulance, and transported to the emergency room at Robert Wood Johnson University Hospital in Hamilton. X-rays taken of her neck showed that it was not broken. She was told to see her doctor the following day, and released with a cervical collar.

Tracey called Christopher's coworker to pick her up because her husband, a network engineer in the United States Air Force, 305th Communications Squadron, was on assignment in Qatar. Tracey went to McGuire Air Force Base (McGuire) to call Christopher on a government telephone. She spoke to him and then went to her home on the Base.

When she arrived home, she noticed that her two front canine teeth were chipped, with the tips of both missing. The following day, she visited the dentist, Dr. Alina Lyons, who filed the uneven edges of the teeth and capped them. The left cap fell off during trial and the right is sensitive to cold and biting into hard foods. Lyons later certified that Tracey's dental injuries consisted of twelve chipped and/or fractured teeth, two of which were displaced. At trial, defendant stipulated, and he concedes on appeal, that Tracey's dental injuries were caused by the accident.

The day after the accident, Tracey went to the Base hospital where she saw Dr. Stock of the 305th Medical Group and complained of everything hurting and specifically of pain in her neck, her entire back, head, hands, arms, and legs. He prescribed medication including Valium, Tylenol, and Vicodin, a neck brace, hand braces, and physical therapy.

Tracey's parents arrived from Oregon soon after the accident to help her care for her two daughters, ages fifteen, and thirteen. Approximately one week following the accident, Christopher was released from duty in Qatar and returned home to care for his wife. He observed that Tracey was "in a lot of pain," could not move or lift things, and walked very slowly and meticulously. He stayed home for three to four weeks, after which he returned to an office position at McGuire.

Tracey continued to complain about her neck, shoulder, back, and hands. On December 28, 2001, she underwent an MRI of her cervical spine, which revealed a cervical herniated disc at the C6-C7 level. On May 3, 2002, Tracey had an MRI of her low back, which revealed grade one spondylolisthesis at L5-S1.

Tracey was referred by the Base doctor to Dr. Portman, a pain management specialist. Dr. Portman suggested that Tracey have steroid injections and trigger point injections with acupuncture in the back of her neck. Tracey testified that her neck pain "got better," but she has "flair-ups" at least twice each month, especially when she works because she uses her arms to do nails, skin tone, and waxing. She also received the steroid and trigger point injections for her back pain. Although the steroids gave her temporary relief, the trigger point injections were of no help because her back pain was not muscle-related.

Dr. Portman referred Tracey to Dr. Vresilovic at the University of Pennsylvania Medical Center for surgery. Dr. Vresilovic referred her to Dr. Slipman, another pain management specialist, for a discogram and another MRI, which was performed on January 19, 2003. Tracey described the discogram as a "God-awful test." She was awake, without any sedation, and required to be strapped on her side to a board as the doctors partially inserted five thick guider needles into her discs at L1 through L5 and then "other needles in to [her] actual disc" to insert dye. She testified that she "cr[ied] through the test trying to get through it." She was able to view the procedure on a television used by Dr. Slipman.

The discogram showed disc disease at two levels, L3-4 and L5-S1, due to the dye material leaking out in a pattern indicative of a herniated disc. After those tests, Dr. Vresilovic performed spinal fusion surgery, which included placing screws into her spine between L5 and S1 to stabilize the vertebrae and insert a carbon fiber box with a bone chip from her pelvis in the L5-S1 disc space. Tracey was left with a four and one-half inch surgical scar on her back.

After the surgery, Tracey was required to wear a customized fiberglass thoracal lumbar brace from just underneath her bust line down to her right thigh for sixteen weeks. Under the body brace, she wore a body sock to prevent her from getting sores. The brace prevented Tracey from bending or sitting. A bed was set up in the living room where she slept because she could not walk up the stairs while she wore the brace. She needed help into and out of bed because she could not bend. She had trouble sleeping. During the first week after the surgery, she would wake up every hour to one and one half hours and walk around with her walker for thirty minutes to an hour because she was in pain. She had to eat standing up or leaning on a high bar stool, with her plate on a small chair atop the table. When traveling to her doctors' appointments during those sixteen weeks, Tracey had to lie flat on a pillow while her husband drove. She was unable to drive until September 2003.

She was allowed to remove the cast for thirty minutes per day to move her bowels and to shower. During the first two weeks after surgery, Tracey's mother bathed her in the bathroom downstairs because she could not walk upstairs. Subsequently, she was allowed to walk upstairs to shower, where her husband bathed her because she could not move her arms. Christopher also had to wipe her after she moved her bowels and shave her legs. She described the pain that she endured post-surgery as "a ten." She experienced severe nerve pain down her legs after she left the hospital. She was not permitted to take pain medication for her nerve pain because it would interfere with the fusing process. Christopher would rub her feet in an attempt to alleviate her pain.

After the body brace was removed, Tracey went to physical therapy at the Base until December 2003. She described the physical therapy as "very painful" and she "took pain medication." Prior to the accident, Tracey described herself as "[h]appy-go-lucky." She gardened, jet skied with her family, had season passes to amusement and water parks, went on vacations, went hiking, fishing and camping, "visit[ed] with [her] husband . . . [i]n the bedroom" two or three times per week, and did most of the housework. Presently, she no longer gardens, she tried to jet ski, but had to stop within five minutes because of her back pain, the "intimacy with [her] husband . . . hasn't stopped, but it's totally different and very much slowed down," she can no longer go on rollercoasters, but still goes to the amusement parks to see the shows. The family no longer goes hiking or camping. She rented an electric wheelchair to move around at Disney World when she vacationed there with her family. She had to fly to Florida, her doctor's preference, while her husband and daughters drove. Although her low back pain is somewhat better, she has gotten to a point where her back hurts every day and she does not feel as if she is getting any better.

When the family drove to Virginia for her daughter's national cheerleading competition, they had to stop every hour so that Tracey could stretch her back and legs, and she had to remain in the hotel where she would lie down, except during the scheduled times when her daughter competed.

Tracey injured her lower back in 1991 while lifting a child when she was doing home day care at Minot Air Force Base in North Dakota. Her doctor took X-rays and diagnosed grade one spondylolisthesis at L5-S1. He prescribed medication and physical therapy, but, at first, the treatment did not alleviate the pain. An MRI was taken and the doctors diagnosed a herniated disc in her lower back at the L5-S1 level. After additional physical therapy, however, "it got better." She also experienced lower back pain following a hysterectomy operation in 1993, but after physical therapy, she "was fine." After these instances, but prior to the accident, if Tracey "overdid things," such as gardening, she would "[j]ust take some Motrin and, usually, within a day or two, it was better . . . ." On April 8, 1997, Tracey fell while rollerblading, hurting her left knee, pelvis, and lower back at L5-S1. The pain in her lower back, however, got better. She also informed a physical therapist on May 15 and May 19, 1998, that she was experiencing low back pain and pain behind her knee after weeding in the garden.

Plaintiff's expert witness, Dr. David Lessing, a board certified orthopedic surgeon, testified at a de bene esse deposition on December 10, 2004. Dr. Lessing examined Tracey on March 15, 2004, and prepared a report dated June 12, 2004. He opined that Tracey had a cervical disc herniation in her neck at C6-7, which was confirmed by the MRI and Dr. Portman's diagnosis. He testified that Tracey's cervical disc herniation was caused by the accident and based his conclusion "on the lack of any medical complaints about her neck prior to the accident and also the force and the nature of the accident." He also testified that it was permanent and made a "poor prognosis" because the damaged cervical disc "will deteriorate at a faster rate and to a more severe endpoint than you would have expected had the disc not been damaged." Additionally, he stated that Tracey would experience pain. Because the disc is already damaged, Dr. Lessing explained it "can herniate again in the future" with "[m]ore material . . . com[ing] out causing renewed pain and renewed radicular symptoms of that pins and needles feeling in the arms."

Dr. Lessing admitted that the MRI from Tracey's 1991 low back injury and the post-accident MRI taken on May 3, 2002, "read almost identically, grade 1 spondylolisthesis L5 on S1 with a small disc herniation, and that was the same words [sic] in both cases." The January 19, 2003, MRI, however, showed a moderately-sized disc herniation or protrusion. The radiologist who read the MRI noticed the enlarged disc herniation in the May 2002 MRI, and concluded that the change was due to the accident. Dr. Lessing agreed, testifying that within reasonable medical probability, the change resulted from "the trauma of the car accident," which "accelerated the deterioration of that disc," a process he described as not instantaneous and thus did not appear on the May 2002 MRI. He opined that Tracey's spondylolisthesis and disc herniation at L5-S1 were aggravated by the accident. He based his opinion on the increased deterioration of the disc as shown on the post-accident MRI studies. He also opined that the fusion surgery was necessitated by the accident.

Dr. Lessing gave Tracey a "poor prognosis" because there have been "massive permanent changes in her back" due to the surgery. He believed her condition will worsen due to the fusion because the vertebral disc at the adjacent higher level is likely to deteriorate, herniate, and cause radicular pain. Based on the life expectancy tables at the time of trial, Tracey will live for another thirty-four years.

Dr. Irving Ratner, a board certified orthopedic surgeon, testified as defendant's expert. Dr. Ratner examined Tracey on March 10, 2004, and wrote an initial report dated March 22, 2004. Dr. Ratner did not find anything on the December 28, 2001, MRI study that he considered pathologic, nor anything "related to the injury or the accident" because "all of [the changes] were preexisting degenerative changes that every one of us gets along the way." He testified that he saw the "tiny central disc herniation" at C6-C7 described by the radiologist, but because "it wasn't big enough to be pushing or touching any of the structures that were next to it," he concluded, "it was a normal finding." He explained, "I would not consider that pathologic and I did not consider it even a tiny herniated disc. I thought it was overread and exaggerated in the [radiologist's] report."

Addressing the May 3, 2002, MRI of Tracey's lower back, Dr. Ratner noted a "slipping . . . vertebra and . . . the degenerative changes," but opined, "there were no acute injury changes, there were no disc herniations." He also believed that the grade one spondylolisthesis mentioned by the radiologist who initially read the MRI was exactly the same as prior to the accident. According to Dr. Ratner, the January 19, 2003, MRI showed exactly the same conditions that existed on the May 2002 MRI: "[t]he slippage, the spondylolisthesis [and] the degenerative disc changes . . . ." He compared the two studies, stating, "[t]hey were identical." He opined that Tracey "had an inherent or preexisting defect at L5-S1 . . . which was producing symptoms for at least [ten] or [eleven] years before this accident . . . ." Dr. Ratner conceded, however, that the accident accelerated the need for surgical intervention. Although he found Tracey had no residuals to her neck or low back "from the accident," he admitted that she had residual scarring and limited motion as "leftovers" from the surgery.

With these facts in mind, we consider first defendant's claim that the judge erred by not allowing the jury to determine factually whether Tracey's injuries vaulted the AICRA threshold. During Tracey's testimony, the issue arose concerning her two chipped teeth and whether they constituted displaced fractures under AICRA as a matter of law. During the colloquy, plaintiff's counsel indicated that if the judge agreed that those injuries amounted to displaced fractures as a matter of law, then it would be unnecessary to have Dr. Lyons testify. Defense counsel stipulated that Tracey sustained two chipped teeth as a result of the accident and accepted the judge's ruling that they represented displaced fractures. However, he voiced his objection, arguing that the fractured tips of Tracey's teeth did not vault the AICRA threshold because they were very minor fractures. The judge then advised plaintiffs' counsel there was no need to call Dr. Lyons to testify that Tracey sustained displaced fractures to her two canine teeth.

While this appeal was pending, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), resolving the divergent appellate decisions concerning the need to establish either a serious injury or significant life impact to vault the AICRA threshold. The DiProspero Court noted that the statutory language under AICRA required proof "that the defendant caused 'a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.'" DiProspero, supra, 183 N.J. at 493 (quoting N.J.S.A. 39:6A-8a). Recognizing that "[t]he statutory language places no burden on plaintiff other than to prove that the injury meets one of the threshold categories," the Court concluded that the "Legislature did not include a serious life impact requirement . . . as an added condition . . . ." Ibid.

Defendant argues that chipped teeth are not displaced fractures under AICRA. He maintains that the Legislature never intended a chipped tooth to be considered a displaced fracture. We disagree. "'Displacement'" is defined as "'[r]emoval from the normal placement or position.'" Villanueva v. Lesack, 366 N.J. Super. 564, 566 n.1 (App. Div. 2004) (quoting Stedman's Medical Dictionary, 528 (27th ed. 2000)). Thus, a displaced fracture is "a more serious type of fracture involving a complete separation of a broken bone." DiProspero, supra, 183 N.J. at 488. Under the previous 1988 version of the statute, any fracture qualified to meet the verbal threshold. Id. at 500. Thus, AICRA established "threshold categories [that] have fewer subjective characteristics" that allow "for seeking pain and suffering damages." Id. at 501.

The dental injury, conceded by defendant to be two chipped canine teeth, qualified as "a complete separation" and thus met the AICRA objective standard as displaced fractures. Id. at 488. Moreover, it was appropriate for the judge, rather than the jury, to determine the issue. "'[I]n the absence of any factual dispute the court shall resolve the question of whether plaintiff's injuries meet the verbal threshold.'" Puso v. Kenyon, 272 N.J. Super. 280, 294 (App. Div. 1994) (quoting Oswin v. Shaw, 129 N.J. 290, 313 (1992)). Defendant did not dispute Dr. Lyons's conclusions, indeed, defendant did not produce an expert to contradict Dr. Lyons's certification that plaintiff suffered a displaced fracture of her two canine teeth. Thus, there was no need for Dr. Lyons to testify and no factual issue for the jury to decide. Accordingly, the judge correctly determined that there was no need for the jury to be instructed on the AICRA threshold issue and correctly decided the issue as a matter of law.

Plaintiff, relying on Puso, supra, 272 N.J. Super. at 293-94, argues that once she established that she sustained a displaced fracture, she was permitted to present proof as to all of her other injuries regardless of whether they independently vault the threshold. Puso, decided under the 1988 verbal threshold legislation, held that N.J.S.A. 39:6A-8a, which exempts tortfeasors from suits for pain and suffering unless the claimant has sustained "a" personal injury of the type enumerated in the nine former categories, "reflects a legislative intent that a singular injury meeting the tort threshold" permits claims for all injuries sustained in the accident whether or not they independently meet the threshold. Id. at 293. The language in the AICRA version of N.J.S.A. 39:6A-8a also uses the word "a" with respect to the limitation on lawsuit option.

Defendant conceded at oral argument before us that if Tracey's dental injuries do qualify as a displaced facture under AICRA, Puso would apply. We note, additionally, that Dr. Ratner confirmed the objective existence of spondylolisthesis of the lower back and that the fusion surgery resulted in permanent residuals. Therefore, although the extent of the injury caused by the accident was at issue, the proofs conclusively established that Tracey suffered an objective and permanent soft tissue spinal injury to meet the applicable AICRA threshold. Thus, even if Tracey's dental injuries did not qualify to meet the AICRA threshold, her causally-related spinal injury did. DiProspero, supra, 183 N.J. at 489.

Defendant, however, maintains that under Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), plaintiff failed to demonstrate, by an appropriate comparative analysis of objective medical evidences, a causal relationship between the accident and her present condition, given her chronic pre-existing spinal condition. We disagree. The Polk requirement of a comparative analysis grows out of the Oswin requirement mandating an expert to provide supporting objective data tied to a discussion of a causal relationship between a patient's subjective complaints and a traumatic event. Polk, supra, 268 N.J. Super. at 575. Thus, when a plaintiff alleges aggravation of a pre-existing injury or condition as a basis for overcoming the verbal (AICRA) threshold, an analysis differentiating a pre-existing injury from that caused by the current accident is required.

A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

[Ibid.]

The viability of Polk under AICRA has been called into question recently by the decision in Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005), certif. granted, ___ N.J. ___ (2006). See also Hardison v. King, 381 N.J. Super. 129, 133-34 (App. Div. 2005); cf. Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005); Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). We are satisfied on the record before us, however, that a Polk analysis was not required in this case.

At the end of Dr. Ratner's direct examination, in an attempt to summarize the doctor's opinion, defense counsel asked, "Is it your opinion that there is no causal relationship between the plaintiff's involvement with the accident . . . and her surgery?" Dr. Ratner responded, conceding that there was indeed a causal relationship:

No, I think that there is a relationship between the accident and the surgery. I think that the accident and the symptoms that developed brought her to the operating room at a point in her life somewhat sooner than she would normally have come to. It accelerated the timing of the operation. It didn't cause the operation to be needed, that was [there] from way back in the 1990's and probably well before then.

Dr. Ratner's opinion, albeit somewhat contrary to Dr. Lessing's respecting direct causation, eliminated the need for a Polk analysis by admitting that the accident exacerbated Tracey's spinal condition by aggravating her pre-existing low back spondylolisthesis and causing her to undergo surgery at an earlier time in her life. Of course, the extent of the injury caused by the accident remained a question of fact for the jury to decide.

We turn to plaintiffs' cross-appeal and their contention that the judge erred in reducing their jury awards. Defendant argues that the remitittur was insufficient, that the jury's damage verdict a "run a way," and that he is entitled to a new trial. We focus first on defendant's assertion that he is entitled to a new trial. A party is entitled to a new trial "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." R. 4:49-1(a). This same standard is applicable in assessing whether a jury damage verdict is against the weight of the evidence. Fertile v. Saint Michael's Med. Ctr., 169 N.J. 481, 499-500 (2001). Defendant argues that remittitur was not appropriate because there was a lack of proximate cause and a failure on the part of the judge to require a Polk comparative analysis. We have already addressed and disposed of these same issues. Suffice it to say, defendant's contention in this regard lacks merit. Defendant does not point to any trial error amounting to attorney misconduct or some other indicia of bias, passion, or prejudice supporting a clear and convincing miscarriage of justice to warrant a new trial. Accordingly, we assess the propriety of the remittitur imposed.

Generally, the "principal goal of damages in personal- injury actions is to compensate fairly the injured party." Caldwell v. Haynes, 136 N.J. 422, 433 (1994). More specifically, the purpose of personal injury compensation is to replace actual loss. Ruff v. Weintraub, 105 N.J. 233, 238 (1987). The assessment of a remittitur "not only involves the conclusion that the damages award cannot stand because it constitutes a manifest denial of justice but also a determination that the remitted amount is what a reasonable jury, properly instructed, would have awarded." Fertile, supra, 169 N.J. at 500. When dealing with the question of excessiveness, the "trial judge should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate to the injuries and resulting disabilities shown as to shock his [or her] conscience and to convince him [or her] that to sustain the award would be manifestly unjust." Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971). In other words, it must "'clearly and convincingly appear[] that there was a miscarriage of justice under the law.'" Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977) (quoting R. 4:49- 1(a)). Jury verdicts should be reduced as excessive "only in clear cases." Id. at 596. As such, the "judgment of the initial factfinder . . . is entitled to very considerable respect." Id. at 597 (citations omitted).

When deciding whether to remit a jury award and determine the proper amount of damages, a trial judge is required to fully and carefully explain how the jury verdict was excessive and "how it reached the remitted number." Fertile, supra, 169 N.J. at 501. The trial court should rely on the evidence seen and heard and base its determination "on its own common knowledge, as well as its experience with other injury verdicts, and particularly on" the life expectancy of plaintiff. Ibid. An appellate court must adhere to essentially the same standard when reviewing a trial judge's action on a new trial motion. R. 2:10-1; see also Dolson v. Anastasia, 55 N.J. 2, 7 (1969). The scope of review of jury damage awards for alleged excessiveness is generally the same for the trial and appellate court. Baxter, supra, 74 N.J. at 600; Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970).

Assessing the jury award, the judge made the following pertinent remarks regarding his initial reaction, the lack of passion, sympathy, or prejudice on the jury's part, the duration of the trial, and comparison of the verdict with others rendered in the courthouse:

This court finds that the jury made its determination based upon the evidence that was presented and not based upon the comments of [c]ounsel.

It is significant, in this [c]ourt's mind, that this was a rather short trial. This was only a few days. . . .

The global amount of time in which this jury considered evidence in this case, although the [c]ourt doesn't have the precise number to draw upon . . . was somewhere around ten hours. . . . [B]y any calculation any measure, it was a quick trial.

. . . .

The [c]ourt must weigh these verdicts in light of judicial and human experience. The balance of the verdict against all other verdicts which have been rendered in this courthouse, may very well be one of the highest verdicts . . . rendered here in Burlington County.

. . . .

This [c]ourt determined, therefore, [after] careful consideration that the jury's determination was so wide of the mark, that it compels this [c]ourt to [lop] off the excess amount of the verdict.

While the [c]ourt was shocked by the amount of the verdict and remains of the belief that manifest injustice would result if the [c]ourt allowed the verdict to stand, I do not believe that the verdict was tainted by sympathy or prejudice.

. . . .

The [c]ourt finds that the jury did make a good faith attempt to render justice in this case. [Despite] their unbias[ed] efforts, the [c]ourt is constrained to modify the damage award.

The judge then articulated the following factors that he considered in reaching his decision to modify the damage award:

The court, in so doing, looks at the factors which were placed into evidence in an attempt to articulate a factual basis for the modification. The [c]ourt notes that there was no appearance of any great physical disability. That the plaintiff was able to walk into the courtroom, unassisted, that she had no great difficulty in ambulating, that she was able to sit through the trial proceeding with the use of a comfortable chair, that the outward sign of her disability was limited to a four and a half inch scar on her back.

There was no wage loss which the jury was asked to consider.

The [c]ourt considers that the amount of damages was vastly out of proportion to the impact upon her lifestyle.

Commenting on the nature and extent of her injuries, the judge continued:

That she did suffer fractured teeth which have now been repaired without any significant disability. She was caused to endure a body cast for four months.

That she did have constant pain which limits her ability to engage in her previously active lifestyle. That she no longer goes to amusement park rides or jet skis. The [c]ourt does . . note, however, that she did attempt to jet ski after her surgery.

The [c]ourt recognizes that sexual relations have been diminished, that her personality has becomes [sic] more cautious, although there was no psychiatric treatment or diagnosis placed before this jury.

The amount of damages also, in this [c]ourt's mind, [is] vastly out of proportion to the physical injuries suffered.

The plaintiff . . . suffered a herniated disc at C6, 7. It is a condition which will continue to deteriorate at a faster rate and at a more severe end point than had there been an absence of a motor vehicle accident.

That there was a laminectomy at L5, with an L5, S1 posterior fusion, using an iliac crest bone graft with titanium cage. . . .

The per quod claim, the [c]ourt also finds is out of proportion with the injuries suffered. That [he] was transferred from Qatar to McGuire Air Force Base. That he can no longer camp and hike with his wife and she can no longer engage in an active lifestyle with him, specifically jet skiing.

That he did have to assist his wife during the four months when she needed to wear the body cast, had to sleep in the living room with his wife during that period of rehabilitation, and that the [c]ourt recognizes that the wife's injury has adversely impacted their sexual relations and that [he] now does more household chores.

The judge then summed up his reactions respecting the nature of plaintiff's continuing disability, and reduced the verdicts.

In our view, the judge relied on certain factors other than those which would fairly and adequately compensate the injured parties. Instead of explaining his particular experience with similar personal injury verdicts, the judge voiced his concern that the verdict might be one of the highest, if not the highest, returned in the County. Moreover, he relied heavily on his initial reaction, and the brevity of the trial. Likewise, the lack of evidence of economic lost wages would not apply to a non-economic claim for pain and suffering.

We are convinced that a remitittur was not clearly warranted under the facts, and the verdict, although on the generous side, was not so disproportionate to Tracey's injuries and resulting disabilities to warrant reduction. Tracey's stoic appearance during trial influenced the judge to a great degree. The judge's description of Tracey's appearance at trial and his initial shock upon hearing the verdict, however, stand in stark contrast to the following telling remarks he made toward the end of his oral decision when he summed up his reaction to the disabilities suffered by both plaintiffs as a result of Tracey's condition, which resulted from defendant's negligence:

In considering all of the evidence submitted by the plaintiff, the [c]ourt does find that the injuries sustained by [Tracey] have been life altering. That these are not insignificant injuries. She is in constant pain and has suffered a change in her lifestyle. She caters to the pain and discomfort that is now part of her daily routine.

. . . .

This court also recognizes that the pain she now endures, as a woman in her early forties, is permanent in nature and it is likely to become more severe over time."

Tracey . . . is left with the prospect of further pain and disability in her neck. Virtually, every motion [she] is required to perform involves some bending or twisting of the neck and back. To immobilize these portions of [her] body would deprive her of any meaningful quality of life.

Her ability to see herself as a vibrant woman, who can keep pace with her active husband, has been snuffed out by this accident . . . .

Commenting further on the deprivation that Christopher has experienced concerning the joys of Tracey's companionship, the judge said:

The prospect of [Tracey's] life that she will return to so she can enjoy an active lifestyle with her husband and her family are medically unrealistic.

The defendant's negligence has deprived Christopher . . . of the joys of his wife's companionship. A young woman left to ride in pain has become a concern and a worrisome burden to her husband. [Despite] the brave face that Tracey . . . paints on anticipation of her husband's arrival, over time the strain and anguish wears through.

Through the course of the next three decades, there will be countless moments of laughter and thrills which will be held at bay by the decomposition of [Tracey's] spine.

While these are lost opportunities for happiness, they cannot be logged or calculated. Christopher . . . has been robbed of these family treasures nonetheless.

The above-described life-altering changes experienced by both plaintiffs as a consequence of Tracey's permanent neck and back condition, together with the evidence of her terrible pain, degrading recovery, and poor prognosis convince us that the jury's award was not so disproportionate to Tracey's injuries and resulting disabilities so as to be manifestly unjust. We come to the same conclusion on Christopher's per quod claim. Accordingly, we vacate the order of remittitur and remand for entry of a judgment in the full amount of the jury's award.

Reversed and remanded.

 

Defendant's name was improperly spelled below as Scacetti. The notice of appeal denotes the correct spelling as Scaccetti.

Lieutenant Simmons was a Detective Sergeant at the time of the accident.

A discogram is a test where

needles go directly into the discs themselves and they're injected with a dye or a contrast material that shows up on X-ray studies.

And the purpose of this is twofold. One is used to determine . . . the internal anatomy of the disc by seeing where the dye goes. If the dye gets to places it is not supposed to get to, then the implication is that there's a torn structure within the disc that has allowed the dye to pass through it.

The other portion of the test is to see if the additional pressure on the disc from the injection reproduces the patient's pain.

It is unclear from the record whether the MRI was taken on January 9, 2003, or January 19, 2003.

Testimony referred to the brace as a body cast.

Dr. Ratner also submitted a corrected report dated August 22, 2004, because he had discovered an error in the initial report. He also noticed two additional errors in the report, but testified, "They don't change any of my opinions and they're not material to the case . . . ."

At oral argument on appeal, both parties agreed that there was no question of fact concerning the nature of Tracey's dental injuries and that the issue presented was a question of law.

The only evidence presented at trial of the plaintiffs' lost time from work was that Tracey did not return to work until February 2002 and Christopher stayed home from work for three to four weeks to care for her. No evidence was presented concerning their wages or whether they received any benefits while out of work.

(continued)

(continued)

28

A-4708-04T1

June 13, 2006