Opinion
DOCKET NO. A-5578-14T4
01-27-2017
MICHAEL LERAKIS, deceased, by his Administratrix ad Prosequendum RENAE LERAKIS, and RENAE LERAKIS, individually, Plaintiffs-Appellants, v. JOHN P. ALUOTTO and MITCHELL C. SHADE, Defendants-Respondents, and STACY A. SHADE, Defendant.
George J. Shamy, Jr. argued the cause for appellants (Shamy and Shamy, LLC, attorneys; Mr. Shamy and Randi S. Greenberg, on the brief). Michael Chelland argued the cause for respondent John P. Aluotto (Law Offices of John Kennedy, attorneys; Mr. Chelland, on the brief). Stephen A. Rudolph argued the cause for respondent Mitchell C. Shade (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Simonelli, Carroll and Gooden Brown. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2485-13. George J. Shamy, Jr. argued the cause for appellants (Shamy and Shamy, LLC, attorneys; Mr. Shamy and Randi S. Greenberg, on the brief). Michael Chelland argued the cause for respondent John P. Aluotto (Law Offices of John Kennedy, attorneys; Mr. Chelland, on the brief). Stephen A. Rudolph argued the cause for respondent Mitchell C. Shade (Rudolph & Kayal, P.A., attorneys; Mr. Rudolph, on the brief). PER CURIAM
At approximately 7:30 p.m. on February 26, 2011, Michael Lerakis ("decedent") exited a vehicle driven by defendant John P. Aluotto, hopped a barrier, and attempted to cross three northbound lanes of traffic on the Garden State Parkway (Parkway). Tragically, he was struck and killed instantly by a car driven by defendant Mitchell C. Shade. In this appeal, plaintiff Renae Lerakis, decedent's wife, challenges a series of Law Division orders that, taken together, dismissed her complaint asserting wrongful death and survival claims against defendants. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm the dismissal of the complaint against Shade on summary judgment. As to Aluotto, we affirm the dismissal of plaintiff's claims for decedent's conscious pain and suffering and his future lost wages. However, we reverse with respect to plaintiff's claim against Aluotto for the loss of decedent's services, and remand that issue for trial.
I.
The underlying facts are essentially undisputed. On the morning of February 26, 2011, the seventy-five-year-old decedent travelled by bus to Atlantic City. While there, he played cards with Aluotto. Decedent and Aluotto were not close friends, but knew each other from playing cards together in Atlantic City.
After the card game ended, decedent asked Aluotto to give him a ride to exit 109 on the Parkway. Decedent informed Aluotto that he had missed his bus back, lost the money he needed to get a new bus ticket, and could not get an overnight room in Atlantic City because there were no vacancies. Aluotto resided in Secaucus and had to drive by exit 109 when returning home. Decedent told Aluotto "[a]ll [he had] to do is pull on the side, [for decedent to] get out, [and] walk down the road," because decedent's house was "right there."
Aluotto agreed to decedent's request, and, after dinner, the two men departed in Aluotto's car. After they passed through a toll booth near Asbury Park, decedent mistakenly told Aluotto to "stay on the left." Consequently, Aluotto entered the express lanes of the Parkway, which prevented him from taking exit 109 since it is accessible only from the local lanes.
As the car neared exit 109, decedent became "excited" and began pointing toward the exit. Aluotto told decedent to "relax" and that he would "go back around" and "drop [decedent] off." Instead, decedent removed his seatbelt and began to "open[] up the latch . . . [and] the door." Aluotto again told decedent to relax and that he would "take him back," but decedent continued to insist that Aluotto stop the car. Aluotto obliged, and stopped on the shoulder of the express lanes of the Parkway. Aluotto believed his choices were "either I stop [to let decedent exit the vehicle] or [decedent] jumps out [of the moving car]." Aluotto testified at his deposition that decedent then flung the door open and "flew out of the car."
After decedent exited the vehicle, Aluotto again implored him to get back in, but decedent responded he would "be okay." Aluotto saw decedent begin to climb over the barrier separating the express and local lanes of the highway and then drove off. Aluotto stated he did not witness the ensuing accident, but read about it in the newspaper the next day. Aluotto contacted the police about the incident, gave a video-recorded statement, and ultimately received a traffic summons for improperly discharging a passenger on the Parkway, N.J.A.C. 19:9-1.6(g).
Decedent was in the right local lane of the Parkway when he was struck by a Volkswagen Jetta driven by Shade. Attempts by first responders to obtain vital signs from decedent were unsuccessful. Decedent was pronounced dead at 8:20 p.m. A subsequent autopsy revealed he died from multiple injuries to the head, chest, and abdomen, coupled with subdural and subarachnoid hemorrhaging. The autopsy further noted that decedent sustained, among other things: a complete amputation of his right leg, a complete aortal tear, multiple skull and facial fractures, brain hemorrhaging, sixteen fractures to both the left and right ribs, a lacerated liver, a lacerated spleen, a lacerated bladder, a fractured left ankle, a fractured left humerus, and a fractured pelvis.
At the time of the accident, it was dark outside, the weather was clear, the roadway was dry and had minimal lighting, and the traffic was moderate. The Parkway is "straight and level" in that area, and has a posted speed limit of sixty-five miles per hour. Shade estimated he was traveling between sixty and sixty-five miles per hour at the time. Plaintiff's accident reconstruction expert, John Trindle, later performed a skid mark analysis and concluded that Shade was traveling between fifty-nine and sixty-one miles per hour.
Shade testified at his deposition that, at the time of the accident, he was looking straight ahead, his headlights were on, he was able to see the roadway in front of him without difficulty, and he did not observe decedent walking on the highway until immediately prior to impact. The police crash investigation report noted that the headlights of Shade's car were illuminated and "in good working order" at the time of the accident. The report further noted that headlights from cars traveling north on this stretch of the Parkway were visible at a distance of about 600 feet. After the accident, the police did not test Shade for drugs or alcohol, as he "manifested no signs of alcohol and/or narcotic impairment." Shade testified he had not consumed any drugs or alcohol, nor was he using his cell phone at the time.
No motor vehicle summonses were issued to Shade. Later, Detective David Guinan of the New Jersey State Police Fatal Accident Investigation Unit concluded "[Shade] is not at fault in this crash and there is no cause for further action by the New Jersey Motor Vehicle Commission, Fatal Accident Review Board[.]" Guinan's investigation also concluded that decedent's actions contributed to the crash and that decedent "was wearing dark, non-reflective clothing and crossing in an area that is prohibited." Detective Eric Kerecman of the Monmouth County Prosecutor's Office similarly concluded, "[a]s the actions of [decedent] were the proximate cause for the collision that resulted in his death, it is requested that this case be closed."
Decedent was employed by Monmouth University, initially as a crossing guard and, at the time of his death, a security guard. Plaintiff and decedent were married since 1965 and had recently moved from New Brunswick to Tinton Falls.
In February 2013, plaintiff filed an action against defendants pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the Survivor's Act, N.J.S.A. 2A:15-3. By way of damages, plaintiff alleged that she was dependent on decedent and sustained pecuniary loss by reason of his death, as well as the loss of his services and companionship. Plaintiff also sought damages for decedent's pain and suffering from the time he was struck by Shade's car until the time of his death.
In January 2015, after a period of discovery, Shade moved for summary judgment and to bar plaintiff's liability expert, John Trindle. Aluotto cross-moved to dismiss plaintiff's wrongful death economic claims and her claims seeking damages for decedent's conscious pain and suffering.
The trial court heard oral argument on the motions on February 20, 2015. The motion judge granted summary judgment dismissing the complaint as to Shade, concluding that Trindle's expert report was an inadmissible net opinion and that plaintiff had otherwise failed to establish a prima facie case of negligence against Shade. The judge also dismissed plaintiff's claim for decedent's conscious pain and suffering, finding there was "absolutely no evidence that [decedent] was conscious after the initial impact." Finally, the judge dismissed plaintiff's claim for "pecuniary losses as a result of [] [decedent's] inability to engage in his occupation as a security guard at Monmouth University." The judge found that "plaintiff failed to provide documentation that accounts for the loss. Plaintiff has provided no tax records, economic expert's report, or any other proof of economic losses other than [the] wife's testimony about what [decedent] earned."
The motion judge denied plaintiff's motion for reconsideration on April 24, 2015. Aluotto thereafter moved to dismiss plaintiff's complaint on the basis that there were no remaining claims against him. Plaintiff opposed the motion, contending there were still open pecuniary claims for the loss of decedent's services, assistance, guidance, and training. The judge clarified that in dismissing plaintiff's economic claims on February 20, 2015, "what I was considering . . . at the time was really the lost wage type of damages." The judge then dismissed plaintiff's remaining pecuniary claims, finding they were not supported by any expert evidence or other "measuring guidelines" that would permit a jury to quantify them. The judge entered a memorializing order on July 10, 2015. Plaintiff's appeal from that order, as well as the February 20 and April 24, 2015 orders, followed.
While not entirely clear from the record, counsel represented at oral argument before us that an earlier summary judgment motion filed by Aluotto on the issue of liability had been denied.
II.
A.
Plaintiff argues that the trial court abused its discretion in striking the report of her liability expert, Trindle, as a "net opinion." She contends that "ample factual grounds" exist to support Trindle's conclusions, including his examination of the accident scene, his review of the police investigation reports, and his analysis of the skid marks left by Shade's vehicle.
Shade in turn posits that Trindle's report constitutes an inadmissible net opinion because it conflicts with the opinions reached by the three fatal accident officers who investigated the incident and ignores Shade's deposition testimony. Shade further contends that Trindle provides no basis for his opinions that (1) Shade, who was already driving under the posted speed limit, had a duty to "reduce[] his speed slightly," and (2) decedent's injuries would have been "less severe and not resulted in [] death" if Shade drove slower or saw decedent earlier. Shade also argues that plaintiff failed to establish any negligence in the operation of his vehicle and therefore the trial court properly entered summary judgment in his favor.
We review a ruling on summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citations omitted). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
"'[A] trial court confronted with an evidence determination precedent to ruling on a summary judgment motion squarely must address the evidence decision first[.]'" Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div. 2012) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010)). "Appellate review of the trial court's decisions proceeds in the same sequence, with the evidentiary issue resolved first, followed by the summary judgment determination of the trial court." Townsend v. Pierre, 221 N.J. 36, 53 (2015) (citing Hanges, supra, 202 N.J. at 385).
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend, supra, 221 N.J. at 52. As such, we accord deference to the trial court's grant of a motion to strike expert testimony, "reviewing it against an abuse of discretion standard." Id. at 52-53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).
Expert testimony is admissible in the following circumstances:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that such an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.See also Agha v. Feiner, 198 N.J. 50, 53 (2009).
[DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)).]
Our analysis is also framed by N.J.R.E. 702 and N.J.R.E. 703. The former establishes when expert testimony is permissible and requires the expert be qualified in his or her respective field. The latter mandates that any expert opinion "be grounded in 'facts or data derived from (1) the expert's personal observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible . . . but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (quoting Polzo, supra, 196 N.J. at 583); accord Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.) (barring expert testimony "based merely on unfounded speculation and unquantified possibilities"), certif. denied, 122 N.J. 333 (1990). Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Townsend, supra, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs experts must "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both . . . are reliable." Id. at 55 (citation omitted). In short, the rule invokes "a prohibition against speculative testimony." Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998)). This results because a speculating expert "ceases to be an aid to the trier of fact and becomes nothing more than an additional juror," Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996), affording no benefit to the fact finder, N.J.R.E. 702.
In his initial July 17, 2014 report, Trindle concluded in relevant part as follows:
The action of Mr. Mitchell C. Shade who was not paying proper attention while operating his 2008 VW Jetta, northbound on the local lanes of the [] Parkway at exit [] 109 was a contributing factor in the cause of this crash. Had Mr. Shade been paying proper attention while driving and reduced his speed slightly to account for the reduced visibility he probably would have seen Mr. Lerakis and had enough distance and time to take reasonable action to stop or avoid the hazard. Had he done so the crash would not have occurred or would have been less severe and not resulted in the death of Mr. Lerakis.Two weeks later, Trindle authored a supplemental report in which he elaborated:
Mr. Shade was not paying full attention to the roadway ahead of him and did not perceive and react to the hazard of a pedestrian on the roadway in time to[] take the appropriate action to avoid striking Mr. Lerakis. A further indication of this is the skid marks from the Shade vehicle start [twelve] to [fourteen] feet after the point where the initial impact with the pedestrian occurred. Mr. Shade's inattentive driving is also demonstrated by his statements to police investigators that it was almost like he (Lerakis) just appeared on the shoulder and
took one step in front of my car it happened so fast I had no time to turn the wheel.
The action of Mr. Mitchell C. Shade who was not paying proper attention while operating his vehicle, northbound on the local lanes of the [] Parkway at exit [] 109 was a contributing factor in the cause of this crash. Had Mr. Shade been paying full attention while driving he could have and should have seen Mr. Lerakis and had enough time and to take reasonable action, such as braking or steering to stop or avoid the hazard. Had he done so the crash would not have occurred or would have been less severe and not resulted in the death of Mr. Lerakis.
We conclude that the trial court properly excluded Trindle's expert report as it was highly speculative and omitted or ignored critical, undisputed facts. Trindle's opinion that Shade had some undefined duty to slow down ignores the uncontroverted evidence that the weather was clear, the roadway was dry, Shade's headlights were properly illuminated, and Shade was already travelling below the posted speed limit according to Trindle's own skid marks analysis.
Trindle's opinion that Shade must have been distracted is speculative and similarly lacks competent support in the record. Shade exhibited no signs of impairment, was not on his cell phone, and testified that he was looking straight ahead prior to the time the crash occurred. Decedent was wearing dark clothing and was not easily visible in a location that was not well lit. He was also traversing the highway at nighttime in a prohibited area. We acknowledge that an expert's proposed testimony should not be excluded merely "because it fails to account for some particular condition or fact which the adversary considers relevant." Townsend, supra, 221 N.J. at 54 (quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Nonetheless, "[a] party's burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported by the factual record or by an expert's speculation that contradicts that record." Id. at 55. As in Townsend, "[t]his case presents such a setting." Id. at 60.
In short, we share the trial court's conclusion that Trindle rendered a net opinion and that plaintiff failed to establish a prima facie case of negligence against Shade. The mere happening of the accident did not establish Shade's negligence, see Long v. Landy, 35 N.J. 44, 54 (1961), and Trindle's opinion that Shade must have been distracted is pure speculation. The complaint against Shade was therefore properly dismissed.
B.
Plaintiff argues that the trial court erred in dismissing the claim for conscious pain and suffering. Plaintiff contends that the jury can properly infer that decedent was alive at the moment he was initially struck by Shade's vehicle and suffered for the fractions of a second it took for his body to pass up and over the vehicle until his head struck Shade's windshield.
Pursuant to the New Jersey Survival Act, N.J.S.A. 2A:15-3, damages for pain and suffering are permitted, but only if the decedent experienced conscious pain and suffering between the time of the injury and his or her death. Smith v. Whitaker, 160 N.J. 221, 236 (1999). It is essential for a successful pain and suffering claim that the pain and suffering be consciously experienced. Carey v. Lovett, 132 N.J. 44, 67 (1993). Additionally, damage awards for pain and suffering may not be based on mere speculation or conjecture. See Model Jury Charge (Civil), 1.12(O), "Damages".
In support of this claim, plaintiff relies on Tirrell v. Navistar Int'l, 248 N.J. Super. 390 (App. Div.), certif. denied, 126 N.J. 390 (1991). In Tirrell, we permitted the plaintiff to recover for decedent's conscious pain and suffering claims after he was run over by a truck and killed "practically instantaneously." Id. at 407. In affirming the jury award, we noted the plaintiff submitted testimonial evidence that the decedent survived the initial collision and suffered conscious pain and suffering. Ibid. Specifically, a witness to the accident testified that the decedent "raised his head" after being hit by the truck before dying. Ibid.
We find plaintiff's reliance on Tirrell misplaced. Here, plaintiff has offered no witness account or expert medical report that decedent survived the collision, even for a short time, or that he experienced any conscious pain and suffering. A jury award predicated on decedent's conscious pain and suffering would thus be purely speculative. Accordingly, the claim was properly dismissed.
C.
Finally, plaintiff contends that the trial court erred in dismissing her claims for pecuniary losses pursuant to the Wrongful Death Act. As noted, plaintiff asserted claims under the Act for the loss of decedent's future earnings and for her loss of decedent's services, companionship and advice.
Pursuant to the New Jersey Wrongful Death Act:
When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.Unlike the Survivor's Act, which "contains no express limitation on the types of damages recoverable," Smith, supra, 160 N.J. at 234, the Wrongful Death Act expressly limits damages to "the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased[.]" N.J.S.A. 2A:31-5.
[N. J.S.A. 2A:31-1.]
The Wrongful Death Act only permits recovery of a survivor's "calculable economic loss" that would have passed directly to his or her heirs. Aronberg v. Tolbert, 207 N.J. 587, 593 (2011). The law "abhors" damages that are based on mere speculation, although a factfinder's determination of damages premised upon a decedent's lost contributions cannot always be conducted with precision. Beim v. Hulfish, 216 N.J. 484, 503 (2014). In order to successfully seek damages pursuant to the Wrongful Death Act, a plaintiff must provide an evidentiary or logical basis for calculating or rationally estimating a compensatory award. Caldwell v. Haynes, 136 N.J. 422, 436 (1994). The burden is solely on the plaintiff to present this information because he or she is logically in the best position to provide such evidence. Id. at 437. To impose this burden on the plaintiff coincides with the plaintiff's responsibility to prove that he or she in fact sustained ascertainable damages. Ibid. Notably, the Court in Caldwell expressed its concern that a jury have sufficient evidence of damages in order to avoid speculation-based awards. Id. at 437-38.
Guided by these principles, we first address plaintiff's claim for the loss of decedent's future earnings. "The most common class of pecuniary injury under the Act is the loss of . . . financial contributions." Beim, supra, 216 N.J. at 501 (quoting Johnson v. Dobrosky, 187 N.J. 594, 607 (2006)). Plaintiff contends that she presented documentation sufficient to establish a right of recovery for this pecuniary claim. The motion judge dismissed the claim, reasoning:
[Decedent's] family claims they suffered pecuniary losses as a result of [his] inability to engage in his occupation as a security guard at Monmouth University. The intent of the Wrongful Death Act was to provide for these kind of losses. However, plaintiff failed to provide documentation that accounts for the loss. Plaintiff has provided no tax records, economic expert's report[,] or any other proof of economic losses other than [plaintiff's] wife's testimony about what [decedent] earned.
The answers to interrogatories without the required documentation to back up such claims are not sufficient. Plaintiffs must prove that there was an economic loss in order to submit such a question to the jury. Without such proof, the jury is once again asked to impermissibly speculate.
We agree with the trial court. While an expert is not necessarily required, plaintiff nonetheless bears the burden of proving decedent's net income, that is, the actual amount he would be providing absent his death. Caldwell, supra, 136 N.J. at 437. Additionally, a defendant in a wrongful death action is entitled to have the economic damages discounted to present value. Id. at 440. Here, plaintiff failed to present income tax returns, pay stubs, or other financial documentation that would provide a competent evidential basis to either substantiate or correctly quantify her claimed loss of decedent's future earnings.
Plaintiff attempted to remedy this deficiency by filing a motion for reconsideration that was supported by decedent's payroll records from Monmouth University. The motion judge noted these records were previously available and plaintiff "purposely omitted" them in her initial opposition to defendants' motions. The judge properly declined to consider this newly-presented evidence. Reconsideration is not appropriate as a vehicle to bring to the court's attention evidence that was not presented, but was available, in connection with initial argument. Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 463 (App. Div.), certif. denied, 174 N.J. 544 (2002). Accordingly, we affirm the dismissal of plaintiff's claim for the loss of decedent's future economic earnings.
We reach a different result, however, with respect to the dismissal of plaintiff's remaining pecuniary damage claims. In Green v. Bittner, 85 N.J. 1 (1980), our Supreme Court "expanded the category of pecuniary damages to include not only the loss of future financial contributions but also the lost 'value' of services such as companionship and care . . . and the loss of advice, guidance and counsel[.]" Johnson, supra, 187 N.J. at 609 (citing Green, supra, 85 N.J. at 4). Moreover, the Court in Green noted:
In the case of a parent's death, in addition to the usual losses clearly having a monetary value, the law allows damages to be awarded to the surviving children for the loss of guidance and counsel which they might otherwise have received from the parent. The cases do not suggest that the calculation of such damages must cease after the child reaches majority. They are based on an ongoing relationship which exists in fact, regardless of any lack of legal duty on the part of the parent to render such guidance and despite the difficulty of placing a dollar value on it. Such damages are regularly allowed despite the total lack of proof of such dollar value and of the probability that such guidance and counsel would in fact have been rendered.
[Green, supra, 85 N.J. at 7-8.]
In his July 10, 2015 oral opinion dismissing plaintiff's claims for the loss of decedent's services, advice and companionship, the judge explained:
I think that the intent of the wrongful death charge is to somehow quantify the loss. That hasn't been done based on the evidence in this case. Admittedly, there is no expert. What we do have is the testimony of Ms. Lerakis and the daughter saying about what their dad
meant and what the spouse meant and what he did for them.
But it's not quantified in an actual hard number. Something that again sets a parameter for the jury and that's the difficulty I have with this case.
. . . .
And I'm of the opinion that there has got to be some measuring guidelines for a jury as to what that is and it's not just here's my pay stubs. This is what I was earning. I think you do have to have some form of expert to at least put it into a box, you know, for a jury to understand.
As I said, the individual relationships that someone has with their family, priceless. No question, priceless. And can't necessarily be quantified. But to the extent that the law allows for recovery of that, then there has got to be some measuring stick for a jury. And the economist can quantify that.
See Model Jury Charge (Civil), 8.43, ("Wrongful Death"). --------
Plaintiff argues that the trial court incorrectly ruled that expert testimony was required to sustain her claims for the loss of decedent's services, advice and companionship. We agree. "Expert testimony is not necessary to place a value on prospective services, but it is helpful to avoid leaving the jury to conjecture on those values." Brown v. Kennedy Mem'l Hosp., 312 N.J. Super. 579, 593-94 (App. Div.), certif. denied, 156 N.J. 426 (1998) (citing Green, supra, 85 N.J. at 15-17).
In Brown, the plaintiff pursued an economic claim under the Wrongful Death Act but failed to present evidence of the value of the services the decedent provided, nor the value of decedent's living expenses, which are deductible from the total award. Id. at 594. The panel determined that, without such information, the claim could not be sustained because the jury was "futilely without guidance" as to the present economic value that the decedent would have provided if alive, which would inevitably lead to jury speculation in the calculation of the award. Ibid.
We recognize that the panel's holding in Brown appears inconsistent with Green's essential premise that the loss of decedent's services can be established by the surviving next of kin. Nonetheless, we deem ourselves bound by Green, and hence constrained to reverse the dismissal of the claims for the loss of decedent's services, advice, and companionship. Here, both plaintiff and her daughter testified to their close relationship with decedent, which included speaking on a daily basis and the giving of advice. Plaintiff also testified that decedent performed various household chores, including assisting in paying bills, cleaning, vacuuming, cooking, and taking out the garbage. While the value of these services may not be large, Green allows such claims to proceed even in the absence of expert testimony quantifying their value.
D.
Summarizing, we affirm the companion February 20, 2015 orders that: dismissed the complaint against Shade on summary judgment; dismissed the Survivor's Act claim for decedent's conscious pain and suffering; and dismissed the Wrongful Death Act claim for the loss of decedent's future earnings. We also affirm the April 24, 2015 order denying reconsideration. However, we reverse the July 10, 2015 order that dismissed the remaining pecuniary claims against Aluotto for the loss of decedent's services, advice, and companionship, and we remand those claims for trial.
Affirmed in part and reversed in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION