MARIA DOLORES OTERO et al. v. SCHINDLER ELEVATOR CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4950-05T24950-05T2

MARIA DOLORES OTERO and JUAN OTERO,

Plaintiffs-Respondents,

v.

SCHINDLER ELEVATOR CORPORATION,

Defendant-Appellant.

_________________________________

 

Argued: February 6, 2007 - Decided August 3, 2007

Before Judges Kestin and Graves.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-3580-04.

John W. Reinman argued the cause for appellant (Lamb, Kretzer, Reinman & Roselle, attorneys; Mr. Reinman, on the brief).

Steven E. Cohen argued the cause for respondents (Geoghan Cohen & Bongiorno, attorneys; Mr. Cohen, on the brief).

PER CURIAM

In this personal injury matter arising from an accident in an elevator, defendant, Schindler Elevator Corporation, appeals from a judgment, totaling $838,591.66 based upon a jury verdict and including prejudgment interest as well as costs and attorney's fees under Rule 4:21A-6(c). On appeal, defendant argues that "the trial court improperly qualified [] plaintiffs' liability expert," that "the testimony of the . . . expert was a net opinion," and that the jury's damage award was excessive.

Plaintiff Maria Otero* was injured while a passenger in an elevator that had been designed by defendant, as she engaged in her work in the housekeeping department of Montclair State University. A two-foot by four-foot "egg crate" panel suspended beneath the florescent lights in the ceiling of the elevator became dislodged and fell on Otero, lacerating the back of her right hand and severing a tendon. The injuries were treated by tendon-repair surgery the next day, followed by a two-month healing period and a succeeding four-month course of physical therapy. Plaintiff returned to work after the six-month period, only to find that she was still disabled from performing her duties. The problems with her hand persisted, and she took a disability leave of absence from her work.

Plaintiff continued to experience pain. Her loss of strength had not improved, and she also complained of numbness. Eventually, plaintiff consulted a hand surgeon, who treated the continuing condition, first, with cortisone injections. When this course of treatment resulted in limited or no relief to plaintiff, a second surgery was undertaken to relieve a build-up of scar tissue from the injury and the first surgery, to examine the condition of the nerves, and to remove a small bone spur. An additional healing period and a three-month course of physical therapy ensued, with plaintiff out of work for a total of four additional months.

When plaintiff returned to work, she was limited by the surgeon's instructions to light duty only. She was unable to perform many of the tasks she had formerly discharged. At trial, plaintiff's hand was swollen; she continued to have restricted motion and use of the hand; and she described the continuing pain she experienced. The hand surgeon opined that the conditions were probably permanent.

The matter was tried after defendant had rejected an arbitration award for plaintiffs totaling $100,000. The jury awarded plaintiff $750,000 for "her disability, impairment, pain and suffering[,] and loss of enjoyment of life[;]" $17,612 for "past lost earnings;" and $19,554 for "medical expenses." The jury awarded Juan Otero $25,000 for his per quod claim.

The action had been brought under the Product Liability Act, N.J.S.A. 2A:58C-1 to -11, and the matter was tried on a theory of defective design. Plaintiffs' liability expert was a mechanical engineer with extensive general design and risk management experience. He testified to "an expert[ise] in the maintenance and safety of elevators" and that he had run an elevator repair shop for eleven years, but he conceded he did not consider himself an expert in the design of elevators. The trial court overruled defendant's objection to the qualifications of this expert, leaving to the jury the weight to be accorded his testimony.

This ruling was unremarkable. The threshold for qualifying an expert is within the sound discretion of the trial judge. As long as the proffered witness has training or experience that will assist the jury in understanding technical subject matter, his testimony as an expert may be received. See Little Egg Harbor Twp. v. Bonsanque, 316 N.J. Super. 271, 278 (App. Div. 1998); Nesmith v. Walsh Trucking Co., 247 N.J. Super. 360, 368-71 (App. Div. 1989), rev'd on other grounds, 123 N.J. 547 (1991); Correa v. Maggiore, 196 N.J. Super. 273, 282 (App. Div. 1984). See also Landrigan v. Celotex Corp., 127 N.J. 404, 413, 421-23 (1992); State v. Kelly, 97 N.J. 178, 208, 211-12 (1984); N.J.R.E. 702; Buinno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 702 (2007). No basis for reversal exists here on account of this expert's lack of qualifications. His expertise was sufficient in the context of the questions involved, implicating the structure of the elevator compartment as distinguished from the operation of the elevator mechanism. See, e.g., Nesmith, supra, 247 N.J. Super. at 370-71; Correa, supra, 196 N.J. Super. at 282.

As regards the asserted net opinion defect, although the scope of the expert's evaluation was limited, as the trial judge noted, it was appropriate that his opinions be placed before the jury for its assessment. Defense counsel was free to stress the shortcomings of that testimony in his arguments to the jury, and he did so, explaining that the defense had no responsibility to present an expert of its own on the design defect issue. We discern no error in the trial judge's ruling regarding the admissibility of this expert witness's testimony. Our examination of the record discloses that the trial court's "net opinion" characterization referred only to the fact that this expert had not conducted any scientific tests. Notwithstanding the absence of any such tests, the expert furnished the jury with ample detail of the reasons he, based on his considerable experience, regarded the dropped-ceiling panel of the elevator that fell and injured plaintiff to have been poorly designed. He opined that it lacked structural stability and he explained, in some detail, the reasons for that opinion.

With respect to the final issue defendant raises on appeal, we are not persuaded that the jury award was excessive. We are in substantial agreement with the trial judge's denial of the motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Granting the jury's evaluation the respect and deference to which it was entitled, no miscarriage of justice occurred here. See Baxter v. Fairmont Food Co., 74 N.J. 588 (1977); Dolson v. Anastasia, 55 N.J. 2 (1969).

 
Affirmed.

* Juan Otero was also a plaintiff on a per quod claim. Our references to "plaintiff" are to Maria Otero.

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A-4950-05T2

August 3, 2007