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DOCKET NO. A-4153-11T3






























Third-Party Defendants.



March 8, 2013

rgued February 12, 2013 - Decided


Before Judges Yannotti, Harris, and Hayden.


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-945-07.


Joseph M. Cerra argued the cause for appellant (Sonageri & Fallon, LLC and Forman, Holt, Eliades, Ravin & Youngman, attorneys; James C. DeNorscia and Mr. Cerra, on the brief).


Andrew A. Fraser argued the cause for respondents (Laddey, Clark & Ryan, LLP, attorneys; Mr. Fraser, Timothy E. Dinan and Jessica A. Jansyn, on the brief).


Following a very unfavorable jury verdict, defendant Schindler Elevator Company (Schindler) appeals from the $4,841,431.60 final judgment, together with the subsequent order denying its motion for a new trial and other relief. We reverse and remand for a new trial.



Plaintiff Richard Tufaro1 was a carpenter whose work life consisted of "heavy carpentry roofing, framing, drywall, [and] ceilings" at construction sites that included "hospitals, schools, police departments, sports complexes, pharmaceutical companies, [and] churches." Tufaro testified that prior to the August 19, 2005 incident that forms the centerpiece of this appeal, he had never injured his lower back, neck, or shoulder. Nevertheless, he had consulted with a chiropractor who was a family friend, receiving treatment for "stiffness [and] soreness" that he attributed to both "getting older" and cold weather. He had never been diagnosed with diabetes or high blood pressure prior to the incident in question, and never experienced intimacy issues with his wife until afterwards.

On August 19, 2005, Tufaro was working on a remodeling project in the main lobby of Headquarters Plaza in Morristown. At the end of his work day, Tufaro entered the service elevator to return to his pickup truck parked in the lowest level parking garage four stories below the lobby. He wore a tool belt, which weighed about thirty pounds, and carried his seventy-five-pound tool bag upon his shoulder. After pressing the button for the appropriate parking garage floor, the elevator doors closed and the elevator began to descend. While descending, the elevator was "shaking, [and] very bumpy." Eventually, according to Tufaro, the elevator came to "a very abrupt stop."

Tufaro testified that he "felt like [he] was going to go through the floor of the elevator, and [his] knees buckled and [he] . . . lunged forward into . . . the metal panel . . . right in front of [him]." His whole upper body struck the panel; he felt disoriented.

Tufaro immediately used the elevator's emergency telephone to inform security personnel that he was stranded in the elevator. Raymond Hoffman was dispatched to the scene. Finding the elevator car stopped between floors, Hoffman was able to "bring the thing down to another level." He opened the elevator doors, and assisted Tufaro out of the elevator.

Tufaro explained to Hoffman what had happened, and said that he was "shaken up" and in pain, particularly in his lower back. Hoffman testified that Tufaro "didn't look well, he looked like a person that was in pain." Hoffman asked Tufaro if he needed medical attention, but Tufaro declined.2 Tufaro took a few minutes to get oriented. Thereafter, he felt he was able to drive, and he eventually left Headquarters Plaza.

The next morning, after sleeping on a couch, Tufaro awoke feeling "like [he] was hit by a train." He could not move his neck. His wife had to help him get off of the couch, which took about forty-five minutes. He decided he needed to go to the emergency room, so Mrs. Tufaro drove him there.

At the emergency room, Tufaro informed the medical staff that his head, back, shoulder, neck, and left knee were hurting. He was immediately given pain medication. X-rays were taken of his neck and back. Since it was a weekend, and no orthopedic specialist was on call, Tufaro was sent home with anti-inflammatory medicine. He was told to follow up with a doctor, or to return to the emergency room if the pain persisted.

The following Monday morning, Tufaro consulted with his primary physician, who recommended that Tufaro see an orthopedist. Thereafter, Tufaro embarked upon a multi-year odyssey of visits with multiple doctors, including several orthopedic physicians, pain management specialists, a urologist, and a psychologist. He also engaged in physical therapy to relieve his pain. Even after shoulder surgery in 2008, Tufaro's improvement was limited. At one point, he had gained more than sixty pounds, which negatively affected other aspects of his general health.

Eventually, Tufaro was diagnosed with cervical and lumbar disc herniations, a labral tear to his left shoulder, and erectile dysfunction caused by a disc bulge. All of these conditions were linked by expert testimony to the elevator fall of August 19, 2005. Additionally, Tufaro was diagnosed with depression and anxiety by psychologist Seth Ersner-Hershfield, Ph.D., who opined that these mental health conditions were "[t]he consequences of the traumatic accident of August 19, 2005."


After filing suit against several defendants, Tufaro and his wife proceeded to trial against only Schindler. At trial, Tufaro presented the expert testimony of two non-treating physicians, Dr. Rebecca Johnson, board certified in radiology and neuroradiology, and Dr. Michael Ciccone, an urologist. Dr. Johnson concluded, within a reasonable degree of medical certainty, that the elevator incident caused Tufaro's cervical spine injuries. After interviewing Tufaro and reviewing Tufaro's medical records, Dr. Ciccone opined that the elevator incident was the cause of Tufaro's erectile dysfunction, ruling out other possible causes, and that Tufaro's condition was permanent.

Tufaro also presented the testimony of Colleen Rilling, a senior claims representative for Penn National Insurance, Tufaro's workers' compensation insurance carrier. Rilling reviewed Tufaro's medical bills that were submitted to the carrier in connection with the elevator incident, and testified that the amount $233,230.94 was (1) "related to Mr. Tufaro's [August 19, 2005] elevator injury"; (2) "reasonable"; and "customary and usual based upon [her] experience as an adjuster."

Schindler produced Dr. David Irwin Rubinfeld, an expert in orthopedic medicine. Dr. Rubinfeld performed a medical examination on Tufaro, prepared a report, and opined that Tufaro merely suffered a neck and lower back sprain with associated radiculopathy. He testified that "assuming this history provided by [Tufaro] is accurate, there is a causal relationship between these injuries and the work incident of [August 19, 2005]."

Schindler also produced Dr. Elliot A. Grossman, an expert in neurology, who performed a medical examination on Tufaro. Dr. Grossman testified that based on Tufaro's chiropractic visits and a review of his medical records, he believed that Tufaro's neck and back complaints were manifestations of preexisting conditions that occurred before the elevator incident.

James Filippone testified for Tufaro as an engineering expert in elevator operation and maintenance. He opined that on the elevator car in question came to an abrupt stop and imparted a force of between four and five g-forces on Tufaro, which is equivalent to 1200 to 1500 pounds of force. He further testified that the most common elevator malfunction that results in injuries to occupants is an abrupt stop.

Schindler presented John Delorenzi as its expert in elevator operation and mechanics. He testified that the "normal speed of the elevator" was 350 feet per minute, which is the equivalent of 3.98 miles per hour. He further explained that "the fastest this elevator could have gone the day of this incident" was 452 feet per minute, which is equivalent to 5.2 miles per hour. On cross-examination, Delorenzi admitted that he did not know how fast the particular elevator was descending "when the [braking system's] steel jaws were triggered in this case."


For use during deliberations, the trial court submitted to the jury a verdict summary form with two questions to answer. The entire form consisted of the following:

1. What sum of money will fairly compensate Plaintiff Richard Tufaro for his harms and losses resulting from all injuries he sustained on August 19, 2005?


A. Medical bills:


$_____________ VOTE ____


B. Pain, suffering, disability, impairment and loss of enjoyment of life:

$_____________ VOTE ____


2. What sum of money will fairly compensate Sharon Tufaro for her loss of care, services and consortium, as a result of the injuries sustained by her husband, Richard Tufaro?


$_____________ VOTE ____


During the Rule 1:8-7(a) charge conference, Schindler objected to the verdict summary form because it did not have a specific question about proximate cause. Defense counsel proposed that the jury be asked the following question: "Was the malfunction of the elevator the proximate cause of plaintiff's injuries?" The trial judge indicated that "[w]ell, we only do that with respect to the accident. . . . We never separate medical by . . . saying was it proximately caused or not." The judge emphasized,

I won't put it that way. We never ask proximate cause on the Jury Verdict Form on on damages. Never. I've never done it.


Nonetheless, the judge reassured counsel by stating, "they [the jurors] will be so charged." The judge denied the request to adjust the verdict summary form, and did charge the jury on proximate cause, modifying Model Jury Charge (Civil), 6.10, "Proximate Cause General Charge To Be Given In All Cases" (Approved 5/98), as follows:

In order to recover damages for an injury the plaintiff must show that the accident was a proximate cause of those injuries and of the harm alleged. Basic question is whether the harm alleged is so connected with the accident that you decide it is reasonable in accordance with the instructions that I've given you and will continue to give you to make your judgment.


Additionally, the judge provided instructions, largely mirroring Model Jury Charge (Civil), 8.11(F), "Aggravation of the Preexisting Injury" (Approved 1/97), which discussed Tufaro's entitlement to damages "only for that portion of his injuries attributable to the accident." Mrs. Tufaro's per quod damages were explained using Model Jury Charge (Civil), 8.30(B), "Loss of Spouse's Services, Society and Consortium" (Approved 2/96):

A plaintiff who is awarded a verdict is entitled to a fair and reasonable compensation for any loss of impairment of her spouse's services, society, or consortium because of injuries sustained by him as a proximate result of the defendant's negligence. Damages may be awarded not only for total loss of services, but for a worsening of their quality.

The judge briefly explained the verdict summary form and its questions, telling the jury that at least five jurors must agree on the amounts to be filled in for the three species of damages listed. The judge did not explicitly indicate that the jury could elect to award zero dollars for any of the categories.

During its less-than-three-hour deliberation, the jury asked four related questions concerning Tufaro's disability and workers' compensation benefits, if any. None of the questions related to proximate cause.3 At the conclusion of its consideration of the case, the jury awarded Tufaro $233,230 for medical expenses and "$2.8M" for pain and suffering; the verdict for Mrs. Tufaro's per quod damages was $950,000.


Schindler moved for a new trial, arguing several issues. It asserted that because a proximate cause question was not included in the verdict summary form, proximate cause was never considered by the jury, effectively precluding a trial by jury on that issue. Additionally, Schindler maintained that had proximate cause been considered, the jury could not have found it to exist. Thus, the failure to submit that question to the jury warranted a new trial.

Schindler further contended that if the court declined to grant a new trial, it was entitled to a remittitur to $200,000 for Tufaro and $20,000 for Mrs. Tufaro, relying on He v. Miller, 207 N.J. 230 (2011). Alternatively, Schindler requested that the court strike the medical expense award because it claimed that the medical bills were introduced at trial through Rilling, a witness who was not competent to give an opinion as to medical necessity.

The trial judge denied the entire motion. With respect to the request for a proximate cause question on the verdict summary form, the judge noted that a generalized finding would provide "absolutely no useful information at all." The judge further explained that

[l]iability was admitted clearly, completely, and totally. The only question for the jury was whether the accident for which the defendant was liable was a proximate cause of the various injuries claimed.


With respect to that the testimony was really overwhelming in favor of the plaintiff. Some of it [was] not even contradicted, like the erectile dysfunction. Some of it [was] conceded by defense experts, such as the elevator accident causing the injury and varying degrees of permanency depending on which defense expert was testifying.


The judge stated that the verdict neither shocked his conscience, nor did it surprise him. While he agreed the award was generous, that was a function of the jury's acceptance of the "essence" of plaintiffs' case. The judge specifically noted, "I have no doubt that the jury had a sound basis for finding that [Tufaro] was in fact seriously injured."

Finally, with regard to the reasonableness of the medical bills, the judge noted that the defense did not submit testimony that any of the treatment was unrelated to the incident or inappropriate. Concluding that Rilling was "very experienced in the field," as she had worked for the workers' compensation insurance company reviewing bills for many years, there was "more than sufficient expertise" to give an opinion as to the reasonableness of Tufaro's medical expenses.

On March 14, 2012, after adding pre-judgment interest of $858,200.66, the court entered a final judgment against Schindler in the amount of $4,841,431.60. This appeal followed.


A motion for a new trial will be granted "'only where to do otherwise would result in a miscarriage of justice shocking to the conscience of the court.'" Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 456 (1962)). On appeal, our standard of review hews to the same as that governing the trial judge whether there was a miscarriage of justice under the law. See Bender v. Adelson, 187 N.J. 411, 435 (2006). Nonetheless, we defer to the trial judge's assessment of intangible factors, Jastrum v. Kruse, 197 N.J. 216, 230 (2008), but we are obliged to independently determine whether a miscarriage of justice has occurred. Borough of Harvey Cedars v. Karan, 425 N.J. Super. 155, 169 (App. Div.) (citing Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)), certif. granted, 210 N.J. 478 (2012).

Schindler argues that it was effectively deprived of a jury trial on the issue of proximate cause, and the trial judge essentially granted a directed verdict in plaintiffs' favor on that challenged issue. We regard that argument as an exaggeration, but not much of one. Although the record fairly supports the view that Schindler did not contest its negligence, that concession did not amount to an admission of liability for everything that befell Tufaro. Indeed, the whole point of the trial was to determine whether Schindler was responsible to compensate Tufaro for the myriad harms he claimed were caused by the elevator's abrupt stop. The monetary valuation of Tufaro's damages, while important, could only occur if Schindler's negligent acts or omissions were a proximate cause of Tufaro's diverse injuries. And yet, the jury was never directly asked the critical question of whether plaintiff had demonstrated, by a preponderance of the evidence, that the August 19, 2005 incident was a proximate cause of the claimed harms.

Our task is to determine, nevertheless, whether (1) the one-paragraph jury instruction on proximate cause, (2) the cursory explanation of the verdict summary form, and (3) counsels' summations, made it clear to the jury, in fact, that it was obliged to resolve the contested factual issue of proximate cause. From our review of this record, we have no confidence that the jury addressed the issue, and accordingly, we lack conviction that the verdict was properly reached, thereby resulting in a miscarriage of justice under the law. R. 2:10-1.

A reviewing court applies the same standard when evaluating the adequacy of jury interrogatories or a verdict summary form, as it does for jury instructions. Wade v. Kessler Inst., 172 N.J. 327, 341 (2002). Jury interrogatories and verdict summary forms are meant to serve particular purposes: "to require the jury to specifically consider the essential issues of the case, to clarify the court's charge to the jury, and to clarify the meaning of the verdict and permit error to be localized." Wenner v. McEldowney & Co., 102 N.J. Super. 13, 19 (App. Div.), certif. denied, 52 N.J. 493 (1968). "[I]n reviewing [the verdict sheet] for reversible error, [appellate courts] should consider it in the context of the charge as a whole." Ponzo v. Pelle, 166 N.J. 481, 491 (2001). If the court's oral instructions "were sufficient to convey an understanding of the elements [of the cause of action] to the jury, and . . . the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless." State v. Gandhi, 201 N.J. 161, 197 (2010). Indeed, generally a verdict summary form is not grounds for reversal unless it was "misleading, confusing, or ambiguous." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997).

Our Supreme Court recently addressed the recurring problem of a disconnect between a verdict summary form and oral jury instructions:

A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. See State v. Reese, 267 N.J. Super. 278, 287 (App. Div.), certif. denied, 134 N.J. 563 (1993). Although a verdict sheet should list all elements of each offense, or no elements of any offense, our inquiry focuses on whether the jury understood the elements as instructed by the judge, and was not misled by the verdict sheet. See ibid. Where we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. See id. at 287-89; State v. Vasquez, 265 N.J. Super. 528, 547 (App. Div.) (finding no reversible error where verdict sheet was erroneous but jury received proper oral instruction, because "[t]he jury is presumed to have understood [the] instructions" (citation omitted)), certif. denied, 134 N.J. 480 (1993); see also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 (1997) (stating that judge's charge and interrogatories to jury do not provide grounds for reversal unless misleading, confusing, or ambiguous).


[Gandhi, supra, 201 N.J. at 196-97 (2010).]


In Gandhi, concluding that "in the absence of some showing that the jury failed to comprehend its duty," the Court held that the verdict summary form's "failure to use the word 'repeatedly' with reference to the course of stalking conduct, and its failure to list the elements of harassment, did not constitute reversible error." Id. at 198.

What happened in the present appeal is nothing akin to the inconsequential incompleteness of Gandhi. Here, the trial judge never explained the role of the verdict summary form, neglected to mention that it was separate from the jury charge, and failed to mention that its purpose was to assist in reporting the jury's work, not to be evaluated as evidence. See id. at 197. More important, we take issue with the trial judge's view that incorporating a question about proximate cause was contrary to customary practice, even if it were focused upon damages rather than liability.

In a personal injury action, a plaintiff bears the burden of proof on causation, not only regarding the mechanism of how the harm was induced, but also respecting the nature of the harm sustained. Davidson v. Slater, 189 N.J. 166, 185 (2007). Proximate cause-of-injuries theory includes the following:

One of the underlying principles of tort law is that "an actor's conduct must not only be tortious in character but it must also be a legal cause of the invasion of another's interest." Restatement (Second) of Torts 9 cmt. a (1965) (Restatement). It follows from that principle that the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury," and the resulting injury. Germann v. Matriss, 55 N.J. 193, 205 (1970).


[Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002).]


Thus, when a defendant concedes that its act or omission was negligent, a plaintiff must still demonstrate whether and how the claimed injuries were proximately caused by such negligence.4 Here, plaintiff offered such proofs, and defendant countered them. The problem is that the dispute was not properly presented for the jury's disposition.

The trial judge's jury instructions never actually asked the jury to sort out the parties' differences on proximate cause.5 Schindler asked that the jury be posed the following question: "Was the malfunction of the elevator the proximate cause of plaintiff's injuries?" Although the better question would have been to ask if the malfunction were a proximate cause, not the proximate cause, the trial judge's rejection of the proposal left the jury with only the single-minded task of admeasuring the value of damages. We view the use of the verdict summary form's fortuitous phrases "resulting from" and "as a result of" to be wholly insufficient to permit a reasonable inference that the jury actually deliberated upon and voted in favor of plaintiffs on the disputed proximate cause issue in the case.

Viewed indulgently, yet under the lens of the totality of the circumstances, we are thoroughly convinced that the trial judge's instructions and the constrained verdict summary form together created a misleading and ambiguous deliberative environment, fully capable of engendering an unjust result. R. 2:10-2.

Furthermore, a retrial on all issues other than Schindler's negligence, which was conceded is necessary. See Conklin v. Hannoch Weisman, 145 N.J. 395, 410 (1996); see also Ahn v. Kim, 145 N.J. 423, 434 (1996) (noting that the "general rule [is] that issues in negligence cases should be retried together unless the issue unaffected by error is entirely distinct and separable from the other issues"). Because a properly instructed jury may well conclude, for example, that Tufaro's neck and back injuries were not proximately caused by the events of August 19, 2005, the total quantum of damages is inextricably linked to the proximate cause calculus. Similarly, the per quod damages, albeit likely animated by Tufaro's urological sequelae, cannot be separated from the overall picture of Tufaro's spectrum of injuries. Cf. Ogborne v. Mercer Cemetery Corp., 197 N.J. 448, 461 (2009). A new trial on all issues is required.

In light of our disposition, it is unnecessary to address the balance of Schindler's arguments, except for one evidentiary issue, which may be replicated in the retrial. Among several other arguments that evidentiary rulings of the trial judge were erroneous,6 Schindler asserts that Rilling's opinions regarding the necessity of treatment and reasonableness of Tufaro's medical bills was improper because it was not provided by a medical expert.7 We disagree that the opinion must have its genesis in a medical expert, but we agree that, like all expert opinions, it must be provided by a competent, qualified expert, and not be a net opinion.

Although we are not convinced that the trial judge abused his discretion in allowing Rilling's opinion to reach the ears of the jury, we harbor reservations whether the opinion was a net conclusion, based only upon Rilling's idiosyncratic experience working for a single insurance carrier.

We review a judge's decision to admit testimony from an expert "against an abuse of discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).


[Townsend v. Pierre, ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 7)].


Using this standard, we conclude that if Rilling is asked to testify again, the trial judge must reconsider whether her opinion "'give[s] the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Pomerantz Paper Corp., supra, 207 N.J. at 371 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).

Expert opinion is not admissible if it is only a personal opinion without supporting facts or authority. Riley v. Keenan, 406 N.J. Super. 281, 295-96 (App. Div.), certif. denied, 200 N.J. 207 (2009). An expert witness must state the factual bases for his or her conclusions, explain the methodology used to reach those conclusions, and "be able to point to generally accepted, objective standards of practice and not merely standards personal to [the expert]." Ibid. A standard of conduct that is personal to the expert or idiosyncratic and not based on supporting authority in the field of expertise is "equivalent to a net opinion." Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001).

Reversed and remanded for a new trial.8


1 Plaintiff Sharon Tufaro is Mr. Tufaro's wife. She sought per quod remedies for "loss of usual services and consortium of her husband." The jury awarded her $950,000 for such damages.

2 Tufaro testified, "[T]hey were insisting that I actually go to the emergency room. And I kept saying whoa, whoa, I'll just wait, wait, wait wait, wait, wait, wait. I [said] I know I'm injured but I'm alive and that's a good thing . . . . Just give me a few minutes."

3 Before answering the questions, and outside of the jury's presence, the trial judge told counsel, "My inclination would be to tell the jury that they are not to speculate or think about the answers to any of these questions. Rather, that they are to concentrate on the issues that I gave them, which were medical bills, pain, suffering, and so on."

4 We reject as unfounded the trial judge's concern that a jury might be overwhelmed in its task of delineating those injuries proximately caused by a defendant's act or omission where a plaintiff alleges a copious number of harms.

5 For example, the court's placement of proximate cause language from Model Jury Charge 6.10 after the instruction about how to calculate pain and suffering damages was illogical, and diluted the predicate deliberation about causation. Ordinarily, a jury is told that if a defendant's negligence is not a proximate cause of a plaintiff's injury, there is no need to compute damages vis- -vis that defendant. No such instruction was provided in this case.

6 We reject all of Schindler's other evidentiary arguments as meritless. R. 2:11-3(e)(1)(E).


7 Rilling, relying upon her company's "payment ledger of everything paid out," testified to the following:


Q. In each of those cases was it determined by your company whether the bill was reasonable?


A. Yes.


Q. Whether it was related to Mr. Tufaro's elevator injuries?


A. Yes.


Q. And whether it was necessary that he get the treatment?


A. Yes.

8 After oral argument, we received an unsolicited letter brief from Schindler, and a subsequent letter of objection from Tufaro. Schindler's communication with the court is beyond the scope of Rule 2:6-11(d) and requires leave of court, which was not requested. Aside from Tufaro's proper objection, we have not considered the parties' post-brief/post-argument submissions in reaching our decision in this matter. See N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 107 n.9 (2011).

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