SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-2780-96T1
JOHN D. DOMBROSKI, MARILYN DOMBROSKI,
h/w,
Plaintiffs-Respondents/Cross-Appellants,
-v-
CITY OF ATLANTIC CITY,
Defendant-Appellant/Cross-Respondent,
and
FREDERICK V. MAXSON, LION CORPORATION, INC.,
Defendants.
_________________________________________________________________
Argued January 21, 1998 - Decided February 23,
1998
Before Judges Long, Kleiner & Kimmelman.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County.
Daniel A. Griffith argued the cause for
appellant/cross-repondent (Marshall, Dennehey,
Warner, Coleman & Goggin, attorneys; Richard
L. Goldstein, of counsel and on the brief).
Paul R. D'Amato argued the cause for
respondents/cross-appellants.
The opinion of the court was delivered by
LONG, P.J.A.D.
On July 28, 1993, plaintiffs John and Marilyn Dombroski filed
this negligence action as a result of injuries sustained when
plaintiff, John Dombroski was struck by a bus while crossing an
intersection in Atlantic City. His wife sued per quod.See footnote 1
Defendants are Frederick V. Maxson, the driver of the bus; Lion
Corporation, Inc., Maxson's employer; and the City of Atlantic
City. Plaintiffs charged Maxson and Lion Corporation, Inc. with
the negligent ownership, operation and control of the bus as well
as negligent hiring. Atlantic City was charged with improper
design and negligent maintenance of the crosswalk.
Atlantic City filed an answer denying the allegations of the
complaint, asserting several defenses, and seeking contribution and
indemnification from the other defendants. Maxson and Lion
Corporation, Inc. subsequently settled with plaintiff for two
million dollars.
The case against Atlantic City was tried before Judge Michael
W. Winkelstein and a jury on March 18, 1996. The following facts
were established at trial: On August 5, 1991, plaintiff was
visiting Atlantic City. He was dropped off by a bus at the
Atlantic City Bus Terminal and then walked from the terminal to the
intersection of Atlantic Avenue and Missouri Avenue. He started to
cross Atlantic Avenue on the green light. At this intersection
there is a diagonal crosswalk that leads from the corner where
plaintiff was standing to the opposite corner. In crossing,
plaintiff walked to the left of the diagonal crosswalk. He was
approximately halfway across when the bus operated by Maxson, which
was turning left onto Atlantic Avenue, struck him.See footnote 2 The bus rolled
over plaintiff's legs and ankles. After plaintiff twice yelled to
the bus driver, the bus backed off his legs. Plaintiff never lost
consciousness.
Five physicians testified on behalf of plaintiff at the first
trial. Dr. John Esterhai, an orthopedic surgeon treated plaintiff
for the injuries he sustained from the accident which were a
fractured left shoulder, right tibia and left ankle. Esterhai
testified that: 1) plaintiff has to restrict walking as much as
possible, and if walking for longer than ten minutes he must use a
wheelchair; 2) plaintiff is at risk for further injury because of
the injuries to his lower extremities; 3) plaintiff experienced
"severe physical pain" associated with the crush injury to his leg,
the acute fracture to his shoulder and the damage to his ankle; 4)
plaintiff continues to have pain as he is unable to move his upper
left extremity and continues to have pain in his ankle; and 5)
plaintiff has "permanent partial physical impairments."
Dr. Seth Braunstein, a physician at the Hospital of the
University of Pennsylvania, testified that: 1) he has treated
plaintiff for diabetes since 1982, but this condition was under
control; 2) the injuries plaintiff sustained in the accident
aggravated his diabetic condition since he is unable to exercise,
resulting in weight gain; 3) there is a "high probability" that
sometime in his life plaintiff will require an amputation of his
left lower extremity; 4) had the accident not occurred it is "very
unlikely that he would require amputation of his lower extremity;"
and 5) prior to the accident plaintiff was an upbeat active
individual but now is more introverted, less outgoing and less
joyful.
Dr. Lloyd Brotman, a psychologist, testified that: 1) he first
saw plaintiff three years after the accident; 2) plaintiff had
become depressed, had gained weight because he was unable to
exercise and had difficulty sleeping; 3) plaintiff was experiencing
an "adjustment disorder with a depressed mood;" and 4) plaintiff
had undergone the process of psychosocial acceleration.See footnote 3
Dr. David Sagransky, a specialist in internal medicine and
rheumatology evaluated plaintiff two times after the accident and
testified that: 1) plaintiff suffered severe damage to three of his
four extremities since only his right arm was uninjured; 2)
plaintiff was in constant pain and will always be in pain; 3)
plaintiff has limited mobility of his left arm which is a permanent
condition; 4) plaintiff's left ankle joint has been destroyed due
to an infection leaving it permanently inflamed; 5) plaintiff's
right ankle and knee are arthritic; and 6) plaintiff should be
restricted to a wheelchair because the weight bearing on his knees
and feet will wear out his joints.
Dr. Frederick Nahas, a general and vascular surgeon, discussed
all the medical procedures plaintiff underwent during his
hospitalization. Nahas testified that: 1) plaintiff's liver and
spleen were repaired; 2) a fasciotomy was performed on his right
leg to remove dead muscle tissue; and 3) skin grafts were
performed. Nahas also testified that there is a reduced blood flow
to plaintiff's legs which is associated with crush injuries to the
lower extremities and that plaintiff is "quite likely" to undergo
an amputation. In total, plaintiff was hospitalized 58 days.
The effect of the accident on plaintiff's life was also
established at trial. Prior to the accident, he was an active
individual who enjoyed playing the guitar, hiking and other outdoor
activities, and overall had an active social and work life. Since
the accident he is more introverted, less outgoing and less joyful.
Not only is he unable to use his left arm effectively, he must wear
a brace to support his ankle, use a cane to help him walk and
utilize a wheelchair if he is to walk longer than ten minutes.
Plaintiff's wife testified as to her loss. She and plaintiff
used to take martial art classes, hike and walk the beaches
together. Since her husband no longer can function in the same
manner, the accident has had a dramatic effect on her.
Prior to the accident plaintiff was employed by Cigna
Insurance Company as an audio-video production manager. Thirteen
months after the accident he returned to the same position. Cigna
has provided reasonable accommodations for him by allowing him to
sit for most of the day. Plaintiff has received positive reviews
since returning to work. Despite his impairments, he not only has
returned to his previous position with no decrease in earnings, but
in fact, has received periodic increases in wages since the
accident. At trial, plaintiff attempted to adduce the opinion of
an expert to support his claim for diminished earning capacity.
After N.J.R.E. l04 hearing, the evidence was disallowed.
The jury returned a verdict assessing liability for the
accident as follows: plaintiff (5"), Maxson and Lion Corporation,
Inc. (80"), and Atlantic City (15"). Plaintiff was awarded
$150,000 for his pain and suffering and his wife was awarded
$50,000 for her consortium loss. The verdict was then molded to
reflect the fact that Atlantic City had been found 15" responsible
with a final judgment entered for $22,500 and $7500, respectively.
Plaintiffs then filed a motion for a new trial on damages or
additur which Atlantic City opposed. The trial judge granted this
motion on April 12, 1996 as to both plaintiff's pain and suffering
damages and his wife's consortium damages. Atlantic City then
filed a motion for leave to appeal from this order which was denied
on May 31, 1996. Atlantic City also filed a motion for stay of the
damages trial pending appeal which was denied on June 7, 1996.
Prior to the second trial, plaintiffs filed two motions with
Judge Carol E. Higbee before whom the retrial on damages was to
take place. The first motion sought an order permitting an expert
to offer testimony as to John Dombroski's diminished earning
capacity which testimony had been precluded at the first trial.
The judge denied this application. Plaintiffs' second motion
sought an order that the jury be informed of the assessment of
percentages of liability from the first trial. The judge granted
this motion. In response, Atlantic City filed an emergent
application for leave to appeal from this order. Another panel of
this court granted the motion for leave to appeal on November 1,
1996 and summarily reversed the trial judge's order with
instructions that the jury not be informed of the prior allocation
of liability.
The second damages trial commenced on November 4, 1996 before
Judge Higbee and a jury. The evidence adduced as to damages at the
second trial mirrored that which was adduced at the first except
that Dr. Sagransky's testimony was omitted. The jury returned a
verdict of $975,000 for plaintiff and $120,000 for his wife which
was entered as a final judgment on November 18, 1996. Judgment was
molded to reflect the prior assessment of liability for Atlantic
City at 15%. Thus, Atlantic City was assessed at $164,250.
Plaintiffs then filed a motion for a new trial on damages or
additur which the court denied.
Atlantic City filed a notice of appeal, challenging the grant
of plaintiffs' original motion for a second trial on damages.
Plaintiffs then filed a notice of cross-appeal, challenging 1) the
denial of their motion to admit their expert's testimony; 2) the
denial of their request to instruct the second jury as to the prior
assessment of liability; and 3) the denial of their motion for a
new trial on damages or additur. We will deal with these issues
serially.
We turn first to Atlantic City's argument that the original trial judge erred in granting plaintiffs' request for a new trial. More particularly, Atlantic City contends that the jury's damage verdict was "not so disproportionate to the injury as to shock the conscience." The basis for Atlantic City's argument is that plaintiff's award was limited to pain and suffering and $150,000 was reasonable considering that all past and future medical expenses were paid for by third parties. Plaintiffs counter that the trial judge properly granted their motion since the injuries were "catastrophic" and the initial award was "shockingly low."
A trial judge may order a new trial when, "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). In making this decision the trial judge "may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). Therefore, a jury's verdict "is entitled to very considerable respect. It should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Baxter v. Fairmont Food Co., 74 N.J. 588, 597-598 (1977).
A trial judge should thus 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
conscience and to convince him that to sustain the award would be
manifestly unjust." Taweel v. Starn's Shoprite Supermarket,
58 N.J. 227, 236 (1971); R. 2:10-1.
In reviewing a trial judge's decision to interfere with the
quantum of damages awarded by a jury, we "must be concerned with
the same norm of decision." Baxter, supra, 74 N.J. at 599.
However, we must accord due deference to the trial judge with
respect to "intangibles" not transmitted by the record (e.g.,
credibility, demeanor, feel of the case) but otherwise make our own
independent determination of whether a miscarriage of justice
occurred. Carrino v. Novotny,
78 N.J. 355, 360 (1979); Baxter,
supra, 74 N.J. at 597-598; Dolson, supra, 55 N.J. at 6-8.
Judge Winkelstein carefully canvassed the record and weighed
the evidence as reflected in his written decision to overturn the
jury's verdict. He stated:
I am satisfied from my review of my trial
notes and all of the exhibits admitted into
evidence, as well as my feel of the case, that
the jury made a mistake and its award was so
disproportionate to plaintiff's injuries and
resulting disabilities as to shock the
conscience of the court. To sustain the award
would be manifestly unjust.
In so concluding, the judge noted the severity of the accident and
the physical injuries plaintiff suffered. Further, he considered
how plaintiff "was previously an active person, engaging in camping
and hiking" but now "[h]e can no longer engage in the types of
activities that he did prior to the accident." In addition, he
pointed out that
The overall affect of the accident on Mr.
Dombroski's life has been devastating.
Problems with either leg, or even his left
shoulder, individually, would require
reasonable compensation in excess of the
$150,000 awarded by the jury. Moreover, his
disabilities when considered in their entirety
are far worse than the injury to each
individual body organ, member or function. It
is the resultant loss and disability which are
the key.... His past, present and future
disabilities, being permanent and disabling,
warrant reasonable compensation far in excess
of the $150,000 award. The total effect of
plaintiff's injuries will have a significant
and serious impact on the rest of his life.
We think these findings and conclusions are fully supported by the
record. We thus affirm as to the appeal substantially for the
reasons expressed by Judge Winkelstein in his letter opinion of
April l2, l996.
On cross-appeal plaintiffs contend it was error for the judge to bar the testimony of their expert, Dr. Wolf, on the subject of diminished earning capacity. Defendant counters that both Judge Winkelstein and Judge Higbee correctly barred the proposed testimony because the expert's opinion was an inadequate basis upon which the jury could quantify the loss. We agree with defendant.
New Jersey recognizes that an injured party has the right to recover damages for diminished earning capacity. Caldwell v. Haynes, 136 N.J. 422, 433 (1994)(citing Smith v. Red Top Taxicab Corp., lll N.J.L. 439, 443 (E. & A. l933)). It is well-established that damages are recoverable "for the prospective consequences of
a tortious injury." Coll v. Sherry, 29 N.J. l66, 174 (l959).
However, it has been recognized by our Supreme Court that some
accommodation is required in awarding future damages in order "to
restrict the element of speculation." Ibid. Thus, "there can be
no recovery for possible future consequences; they must be
`reasonably probable to follow.'" Marty v. Erie Railroad Co.,
62 N.J. Super. 458, 469 (App. Div.) (quoting Budden v. Goldstein,
43 N.J. Super. 340, 346 (App. Div. 1957)), certif. denied,
33 N.J. 387
(1960).
The Coll court established a two prong test for determining
when a jury may hear evidence regarding diminished earning
capacity. Plaintiff must introduce evidence "showing there is a
reasonable probability that his injuries will impair his future
earning capacity, and sufficient factual matter upon which the
quantum of diminishment can reasonably be determined...." Coll,
supra, 29 N.J at 176.
The Coll test was revisited by the Supreme Court in Lesniak v.
County of Bergen,
117 N.J. 12 (1989). In Lesniak, damages for
diminished earning capacity were sought for an injured infant. As
to the first prong of the test, Lesniak noted that "reasonable
probability" exists when "there is a permanent or lasting injury
that would obviously impair the ability to earn." Id. at 22.
Holding that the second prong is inapplicable to an infant, the
court went on to recognize that, generally, plaintiffs have a duty
to "furnish the jury with `some evidentiary and logical basis for
calculating or at least, rationally estimating a compensatory
award.'" Id. at 26 (quoting Huddell v. Levin,
537 F.2d 726, 743-44
(3d Cir. 1976)).
As all parties and the trial judges recognized, plaintiff
easily satisfies the first prong of the Coll test. The nature of
plaintiff's injuries are permanent and debilitating, and in
Lesniak's words, "would obviously impair his ability to earn," thus
meeting the first prong of Coll.
It was up to plaintiff's expert, Dr. Wolf, to meet the second
prong of Coll: to give the jury some evidentiary and logical basis
for rationally estimating a compensatory award. Defendants made a
motion in limine to bar Wolf from testifying on the basis that
plaintiff was, at the time of the hearing, earning more than he was
earning before the accident. Plaintiff countered that if he lost
his job he would actually see the results of the accident on his
earning capacity which would be much less than it was before the
accident. The judge correctly recognized that the mere fact that
plaintiff had his old job back with an increased salary did not
foreclose diminished earning capacity damages. He ordered a
N.J.R.E. l04 hearing to determine what the expert's" methodology
was in coming to his conclusion that the earning capacity is
reduced and that there is a reasonable determination as to what
that diminishment is."
At the hearing Wolf opined that plaintiff has experienced a
diminished earning capacity. He testified that there can be a loss
of earning capacity even where actual earnings remain the same.
Wolf arrived at this conclusion by looking at what would happen if
plaintiff was to lose his job and seek other employment. His
report calculated plaintiff's pre-injury expected earnings and
fringes as $728,56l and his post-injury expected earnings and
fringes (if forced to seek other employment) as $353,837. The
difference is $374,724. With other adjustments, the report
concluded plaintiff's loss, if he sought other employment, would be
$4l6,357. However, Wolf acknowledged that he never performed a
statistical analysis of the probabilities of plaintiff losing his
job or seeking other employment.
When the judge asked Wolf to quantify plaintiff's alleged lost
earning capacity, Wolf opined that it was
The difference between what he would be
earning at Cigna versus his earnings in
alternative employment that represents the
loss of power to earn even though as long as
he continues to be employed at Cigna, that's
not resulted in actual out of pocket loss. I
guess the best example I can give is if I have
a Corvette that can go 160 miles an hour and
someone does some damage to the engine and it
can only go 80 miles an hour, as long as I
don't want to go more than 80 miles an hour,
the damage to the engine has no consequence to
me. But if I wanted to go faster, if I had to
go faster, then it would be a consequence.
If there's no need for him to use his skills outside of Cigna, there is no actual loss, but there is that loss of capacity which may translate into an economic loss in the future given the lack of employment at Cigna.
Judge Winkelstein found there were no facts upon which to reasonably assess the possible damages because plaintiff failed to demonstrate to some reasonable degree of probability that he was going to lose his job.
The only evidence is that he went back to work
and he's doing his job. He's getting paid for
the work that he's doing. He's a valued
employee. He's doing a good job. And he's
getting paid and he's getting raises and he's
getting good personnel notes in his file.
There really is no evidence before a Court
from which I could conclude that there is any
type of probability that he's going to lose
his job. There's no evidence as when he would
lose his job. If he lost his job tomorrow or
if he lost his job in ten years, certainly
that would affect the amount of diminishment,
of earning capacity if you were to quantify
that in terms of dollars. And it has to be
quantifiable in terms of dollars or it can't
go to the jury.
A net opinion is an opinion that's a
conclusion unsupported by factual evidence and
that's inadmissible. The law's clear that the
weight to which an expert opinion is entitled
can rise no higher than the facts and
reasoning upon which that opinion is
predicated. And what we have here, we have a
plaintiff who is seriously injured, but he
went back to work. He's earning as much or
more now than he was before. There was no
evidence to show that his company is down
sizing. There is no evidence to show that he
is not doing his job. There is no evidence to
show that he's doing a bad job. The evidence
is to the contrary.
I'm satisfied that there aren't sufficient
facts to show the quantum of diminishment.
Prior to the second trial on damages plaintiff again sought an
order permitting Wolf's testimony. Judge Higbee also denied this
application. She determined that in order for a witness to testify
about lost earning capacity "there has to be a reasonable
probability of loss...." She found "there has to be some testimony
of a statistical analysis that under the facts of the particular
case it's likely or probable that at some point in the future the
person's going to become unemployed or change jobs or need to
change jobs...." Thus, the judge barred Wolf's testimony because
he was unable to testify with regard to the probability of loss.
Diminished earning capacity encompasses many things beyond
loss of a particular job. It has been said that the issue is
whether the worker's economic horizons have been shortened as a
result of the tortfeasors negligence. Ruzzi v. Butler Petroleum
Co., 588 A.2d l, 7, 527 Pa. l, l3 (l99l) (allowing an expert's
testimony regarding diminished earning capacity as to the
statistics of what plaintiff would earn if forced to compete in an
open job market). Thus, it can be approached from many different
directions by an expert. In this case, the focus was on the result
if plaintiff lost his job because that was the only phase of
diminished earning capacity for which Wolf supplied any
quantification. Unfortunately, Wolf neglected to provide what we
(as did the trial judges) view as the lynchpin of such an analysis:
evidence as to the probability of plaintiff leaving his job either
by choice or involuntarily. This evidence could be adduced
generally through unemployment statistics as to those in
plaintiff's age bracket, job title and industry or through an
analysis of upward mobility patterns of employees within
plaintiff's industry. It is this number which would have to be
applied to Wolf's projected loss figure to give the jury a basis
for quantifying the diminution in plaintiff's earning capacity.
Without it, Wolf's partial quantification is of no value. Contrary
to plaintiffs' argument, this is not a discount to present value.
It is the application of a probability factor to a gross projected
loss. In the absence of such evidence or any other meaningful
evidence of diminished earning capacity from which a jury could
quantify such a loss, a jury verdict on this subject would have
been sheer speculation. As such, the judges did not err in denying
plaintiff's motion to present Wolf as a witness.
We turn next to the so-called ultimate outcome charge. We agree with plaintiff that the second jury should have been made aware of the first jury's assessment of liability under Roman v. Mitchell, 82 N.J. 336 (l980). This was not a bifurcated trial. See Chavanne by Chavanne v. Clover Fin. Corp., 206 N.J. Super. 72 (App. Div. l985). It was a joint trial of liability and damages, the damages portion of which had to be retried. The first jury in this joint trial of liability and damages obviously was possessed of the liability breakdown and we see no reason why the second jury should not have been so instructed. See Fischer v. Canario, l 43 N.J. 235 (l996). However, our painstaking review of the record, including the substantial damages awarded, has led us to conclude that the absence of the first jury's assessment of liability did not lead the second jury to a result which it otherwise would not have reached and that it constituted harmless error. R. 2:l0-2.
Plaintiffs' last contention is that Judge Higbee erred by denying their motion for a new trial on damages or additur after the second trial. We disagree. In reaching her conclusion, Judge
Higbee carefully canvassed the record and weighed the evidence. In
our view, she correctly found that the damages awarded were not so
disproportionate to plaintiff's injuries as to shock the conscience
and that the jury verdict was not against the weight of the
evidence such that there was a miscarriage of justice under the
law. R. 2:10-1. On a complete review of the record, and according
deference to the trial judge with respect to the intangibles not
transmitted by the record, we are satisfied that no miscarriage of
justice occurred. Carrino, supra, 78 N.J. at 360; Baxter, supra,
74 N.J. at 597-598; Dolson, supra, 55 N.J. at 6-8.
In sum, we affirm.
Footnote: 1 Reference to plaintiff or the singular Dombroski is to John Dombroski. Footnote: 2 Liability issues are not being contested, therefore only a cursory description of the accident is provided. Footnote: 3 This process occurs when one goes from being a "40-year-old, to having a capacity to function of maybe someone in their 70's or 80's ... needing to use a wheelchair, needing help to get around, being unable to function in the manner that you did earlier." It's like "[waking] up one day and 30 or 40 years were added to your life."