Opinion
DOCKET NO. A-1599-12T2
09-02-2014
MING YU HE and JINFANG HE, Plaintiffs-Respondents/ Cross-Appellants, v. ENILMA MILLER, Defendant-Appellant/ Cross-Respondent, and RANDY MILLER, Defendant.
Brian R. Lehrer argued the cause for appellants/cross-respondents (Schenck, Price, Smith & King, LLP, attorneys; Mr. Lehrer, on the brief). August R. Soltis argued the cause for respondents/cross-appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2270-05. Brian R. Lehrer argued the cause for appellants/cross-respondents (Schenck, Price, Smith & King, LLP, attorneys; Mr. Lehrer, on the brief). August R. Soltis argued the cause for respondents/cross-appellants. PER CURIAM
This appeal and cross-appeal mark the third time this matter is before this court. Defendant, Enilma Miller, seeks reversal of the trial court order denying her motion for a new trial, and plaintiffs seek reversal of the trial court order denying their pre-trial motion to limit the retrial of their personal injury action to the issue of damages for pain and suffering and the per quod claim. We affirm.
I.
This matter arises out of a motor vehicle accident from which plaintiff, Ming Yu He, sustained injuries to her back. According to plaintiffs' expert, MRI testing revealed the presence of multiple herniated discs, which plaintiffs' expert causally related to the accident. Judge David H. Ironson presided over the first jury trial, which unanimously awarded plaintiff $1,000,000 in non-economic damages, $110,000 in past lost wages, and $500,000 in future lost wages. The jury additionally awarded plaintiff's spouse $100,000 for his per quod claim. Judge Ironson granted defendant's motion seeking remittitur. He reduced the jury's $1,000,000 award of non-economic damages to $200,000 and the per quod claim to $20,000. We granted plaintiffs leave to appeal the remittitur and reversed. We noted that
Reference to plaintiff throughout this opinion refers to Ming Yu He, as Jingfang He's cause of action is limited to his claim for loss of consortium.
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the sole basis for the [trial] court's decision to remit the pain and suffering and per quod awards is the fact that no doctor recommended that plaintiff undergo surgery, she was still able to care for herself, drive a vehicle, had degenerative disc disease, did not visibly appear to be experiencing pain and suffering during the course of the trial, and was able to sit for long periods during the trial.
[Ming Yu He v. Miller (He I), No. A-5685-07 (App. Div. March 27, 2009)(slip op. at 15).]
In addition, we concluded that even though the jury's award was undoubtedly high, "'the trial court failed to articulate sufficient reasons to justify a remittitur, which we have said is reserved to correct only a 'manifest miscarriage of justice.''" Id. at 18 (quoting Johnson v. Scacetti, 192 N.J. 256, 283 (2007)).
The Supreme Court granted defendant's petition for certification and summarily reversed, remanding the matter to the trial court "for a complete and searching analysis under Johnson, including 'a factual analysis of how the award is different or similar to others to which it is compared.'" Ming Yu He v. Miller, 199 N.J. 538, 569 (2009). The order also directed that we reconsider the judgment in light of the findings made on remand, following the trial judge's required amplification. Ibid. After Judge Ironson issued his statement of reasons in accordance with the Court's order, we reconsidered and found no basis to alter our earlier decision. Ming Yu He v. Miller (He II), 419 N.J. Super. 15, 30 (App. Div. 2009). The Court granted defendant's petition for certification and, in a 3-2 decision, reversed and remanded the matter to the trial court for retrial on the issue of damages. Ming Yu He v. Miller (He III), 207 N.J. 230 (2011).
Prior to re-trial, plaintiffs sought to limit the re-trial to non-economic damages. Judge Donald S. Coburn, who presided over the matter, denied the motion, referencing Judge Ironson's order directing that plaintiffs accept remittitur or have a new trial on all damages.
Upon re-trial, the jury returned a unanimous verdict finding plaintiff sustained permanent injuries as a result of the accident and awarded plaintiff $500,000 for her pain and suffering, $227,000 for past lost wages and $403,000 for future lost wages. The jury awarded plaintiff's spouse $100,000 on his per quod claim.
Defendant filed a motion for a new trial, arguing the award was excessive in light of the medical testimony. Judge Coburn denied the motion, concluding the evidence supported a finding that plaintiff's injuries were not due to degenerative disc disease when "there was no evidence that she had ever even had a day off for a sore back, or that she ever suffered a sore back, or that she ever had any physical problem at all." He noted that defendant's expert's testimony "was highly suspect" and "plaintiff[s'] experts were reasonably credible." The judge stated further:
A point is made in the defense brief . . . that there was no surgery, but the plaintiff's doctors addressed that problem, and addressed something that I could almost take judicial notice of, which is that back surgery on herniated discs is very complex and often results in further restrictions because of joining of discs, or is often without any positive result at all. So the idea that you have to have surgery because you have serious herniated discs that are giving you a problem I don't find persuasive.The present appeal followed.
I wasn't the least bit shocked by the verdict, not in the least. This story to me was a story of a relatively young, middle-aged couple whose life was turned from very happy, and very positive, and almost a classic immigrant story of living the American dream, into a disaster where she felt useful (sic), she could no longer work, husband was -- and she was deprived of the ability to have sex. He had to take over many of the duties that she used to perform with respect to taking care of the house.
On appeal, defendant argues the trial judge erred in failing to grant a new trial because the jury verdict was clearly excessive in light of the evidence introduced at trial. Defendant also argues the facts in this case do not warrant a $1.23 million verdict because plaintiff suffered nothing more than "soft tissue injuries," which did not require surgery. Lastly, defendant argues plaintiff's employability expert was not credible because the tests she administered to plaintiff required subjective answers. We reject each of these contentions.
Pursuant to Rule 4:49-1, a trial court 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." Thus, "[a] trial court should set aside excessive verdicts only in 'clear cases.'" Caldwell v. Haynes, 136 N.J. 422, 431-32 (1994) (quoting Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 (1970)). A trial court must consider the evidence in the light most favorable to the prevailing party in the verdict, when assessing "whether the quantum of damages assessed by the jury is excessive." Ibid. (citing Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). Consequently, a trial court should not interfere with a jury verdict unless the verdict is clearly against the weight of the evidence. Horn v. Village Supermarkets, Inc., 260 N.J. Super. 165, 178 (App. Div.1992), certif. denied, 133 N.J. 435 (1993). The verdict must shock the judicial conscience. Carey v. Lovett, 132 N.J. 44, 66 (1993).
A trial court's decision on such a motion will not be reversed unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. To decide if there has been a miscarriage of justice, we defer to the trial court with respect to intangibles not transmitted by the record (e.g., credibility, demeanor, and "feel of the case") but we will otherwise make an independent determination of whether a miscarriage of justice has occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969). However, "a trial court's determination is 'not entitled to any special deference where it rests upon a determination as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record with respect to which he is no more peculiarly situated to decide than the appellate court.'" Caldwell, supra, 136 N.J. at 432. Measured under these standards, we discern no basis to disturb Judge Coburn's ruling.
In denying defendant's motion, Judge Coburn did not find the jury's verdict shocked the judicial conscience. The judge found plaintiffs' experts were credible in demonstrating that plaintiff's injuries were causally related to the accident. In fact, the judge noted defendant's expert's opinion went against the weight of the evidence because the record did not support a finding that Ming's injuries were slowly developed. Rather, the evidence showed she never "even had a day off for a sore back, or that she ever had any physical problem at all." Further, Judge Coburn pointed out that "even the defense expert on employability admitted that she could no longer . . . work as a maid, that that work was too hard." Thus, in affording all inferences in favor of upholding the verdict, defendant does not demonstrate the verdict is against the weight of the evidence.
Finally, in reversing our decision in He II, reinstating the jury verdict, the Court found it "particularly noteworthy to us, that plaintiff provided no verdicts of any kind for comparison." He III, supra, 207 N.J. at 258. With this second verdict, and by virtue of the first verdict, plaintiffs now have verdicts for comparison. Both verdicts were returned by jurors who were charged that
[t]he law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, impairment, loss of enjoyment of life may be
measured in terms of money. The amount is left to your sound discretion. You are to use your discretion to attempt to make the plaintiff whole, so far as money can do so, based upon reason and sound judgment, without any passion, prejudice, bias or sympathy. You each know from your common experience the nature of pain and suffering, disability, impairment and loss of enjoyment of life and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience.
You are to exercise sound judgment as to what is fair, just and reasonable under all the circumstances. You should, of course, consider the testimony of [plaintiff] on the subject of his/her discomforts. You should scrutinize all the other evidence presented by both parties on this subject, including, of course, the testimony of the doctors who appeared. After considering the evidence, you shall award a lump sum of money that will fairly and reasonably compensate [plaintiff] for his/her pain, suffering, disability, impairment, and loss of enjoyment of life.
[Model Jury Charge (Civil), 8.11E, "Disability Impairment and Life, Pain and Suffering (December 1996)]
We presume the jurors, as did the jurors in the first trial, followed these instructions. Bardis v. First Trenton Ins. Co., 199 N.J. 263, 284 (noting that the presumption the jury follows the trial court's instructions is "[o]ne of the foundations of our jury system" (quoting State v. Burns, 192 N.J. 312, 335 (2007))). They reached a verdict, which they believed reflected their sound judgment as to what is fair, just and reasonable to compensate plaintiffs for their non-economic injuries. We discern no reason to disturb this jury's verdict.
II.
In their cross-appeal, plaintiffs argue Judge Coburn erred in re-trying plaintiff's past lost wage claims. Specifically, plaintiffs argue by the time of re-trial, plaintiff was receiving social security disability benefits. As such, she is now required to deduct those benefits from the jury award pursuant to the collateral source rule. Further, plaintiffs urge that since defendant's initial appeal never challenged the jury's verdict on her past lost wage claims, it was error for the court to order a retrial on all issues. We disagree.
In the first trial, the jury awarded plaintiff $110,000 in lost wages. In the second trial, the jury awarded plaintiff $227,000 in lost wages. We agree, it does not necessarily follow that because the court has granted a partial remittitur as to one aspect of damages, that re-trial is necessary on all damages. See McConkey v. AON Corp., 354 N.J. Super. 25, 56 (App. Div. 2002) (holding that "[n]ot every reduction in compensatory damages by remittitur must result in a decrease, proportionate or otherwise, in the punitive damages"), certif. denied, 175 N.J. 429 (2003). Nonetheless, once defendant petitioned the Court for reinstatement of the remittitur following our reversal of the order under review and reinstatement of the jury award, He II, supra, 411 N.J. Super. at 35, plaintiffs did not file a cross-petition for certification on the trial court's order directing a new trial on all issues in the event plaintiffs rejected the remittitur. As Judge Coburn observed, the Court was aware of Judge Ironson's order directing a new trial in the event plaintiffs rejected the remittitur. Therefore, we find no error in Judge Coburn denying plaintiffs' motion to limit re-trial to the non-economic damages.
Turning to application of the collateral source rule, N.J.S.A. 2A:15-97, a plaintiff in a civil action who is receiving a benefit at the time an award is recovered "shall" have that benefit "deducted from any award recovered by the plaintiff." The Legislature's overriding intent in adopting N.J.S.A. 2A:15-97 is to prevent a claimant from receiving benefits beyond the damages awarded under a judgment entered and to relieve defendants and insurance companies from having to compensate plaintiffs for damages in excess of the total amounts of their losses. Kiss v. Jacob, 268 N.J. Super. 235, 247 (App. Div. 1993), rev'd on other grounds, 138 N.J. 278 (1994). In other words, the objective is to make a plaintiff whole, not to provide a plaintiff with a windfall.
Social Security is a benefit subject to the collateral source rule. Parker v. Esposito, 291 N.J. Super. 560, 565-66, (App. Div.), certif. denied, 146 N.J. 566 (1996); Thomas v. Toys "R" Us, Inc., 282 N.J. Super. 569, 588 (App. Div.), certif. denied, 142 N.J. 574 (1995). See also Kiss, supra, 138 N.J. 278, 282 (1994) (noting, among others, social legislation such as social security as a benefit contemplated by the common law collateral source rule). Consequently, the court did not err in denying plaintiffs' motion to limit the re-trial to non-economic damages.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION