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Friedman v. C & S Car Service

Decided: July 8, 1986.

KENNETH J. FRIEDMAN AND RUTH FRIEDMAN, PLAINTIFFS-RESPONDENTS, CROSS-APPELLANTS,
v.
C & S CAR SERVICE, A/K/A CURTIS & SCOTTY CAR SERVICE, RALLYE IMPORTED AUTO PARTS INC., AND COLUMBIA MOTOR CORPORATION, DEFENDANTS-APPELLANTS, CROSS-RESPONDENTS



On appeal from Superior Court, Law Division, Essex County.

King, O'Brien and Simpson. The opinion of the court was delivered by Simpson, J.A.D.

Simpson

[211 NJSuper Page 659] In this products liability, automobile accident personal injury case, defendants appeal from the February 20, 1985 judgment entered upon a jury verdict in favor of plaintiff, Kenneth J. Friedman, in the amount of $875,000 and his wife, Ruth Friedman, in the amount of $10,000 on her per quod claim. The sole viable issue on the appeal is the alleged excessiveness of the $875,000 verdict, because other initially raised issues have become moot as a result of our Supreme Court's decision in Lang v. Baker, 101 N.J. 147 (1985), and the unappealed determination by the trial judge that defendant Columbia Motor Corporation (Columbia) must indemnify the other defendants for their liability to plaintiffs. The February 20, 1985 Order for Judgment and Other Relief included a denial of Columbia's motion for a new trial as to damages or remittitur pursuant to R. 4:49-1. Although not addressed in the original briefs filed in the appeal, possible plain error clearly capable of producing an unjust result was noticed by us at oral argument, R. 2:10-2, and supplemental briefs have been filed and oral arguments heard on an issue that we have determined to require a new trial on damages.

Kenneth J. Friedman was born on July 28, 1943, and was 39 years old when he was injured on July 29, 1981, in an automobile accident. A defectively designed master brake cylinder, installed on his 1966 MGB Roadster by defendant C & S Car Service, failed and caused him to crash into another car and suffer a comminuted fracture of his left wrist. C & S had obtained the master brake cylinder from defendant Rallye Imported Auto Parts, Inc., which had purchased it from defendant Columbia. It is not disputed that Columbia is ultimately liable for all present damages, interest and costs which total less than the $2 million coverage provided by its liability insurance policy.

Kenneth J. Friedman has a Ph.D. in biological sciences and prior to the accident was an Assistant Professor at the University of Medicine and Dentistry of the State of New Jersey (UMDNJ). Although he can no longer perform "highly sophisticated microsurgical research experiments," he has been promoted since the accident to Associate Professor and there was no claim for past, present or future lost wages or any other economic loss. There was no claim for any medical expenses either, and presumably there was full coverage under the New Jersey Automobile Reparation Reform Act, N.J.S.A. 39:6A-1. et seq. The request for money damages was, accordingly, for pain, suffering, disability and impairment and in his brief plaintiff has summarized the proven elements and suggested justifiable values as follows:

1. Initial injury, cast and four days hospitalization $30,000.

2. Three months cast, nine months physical ther-

apy, disability 40,000.

3. Darrach procedure, three days hospitalization,

therapy 30,000.

4. Future surgical decompression of median nerve

to correct carpal tunnel syndrome, surgery to

fuse dominant wrist 40,000.

5. Years of study and work perfecting microsurgi-

cal techniques 90,000.

6. 26 year work life estimate from date of accident

(age 39) to age 65 at $15,000 for deprivation of

professional skill (microsurgery ability) 390,000.

7. Pain, suffering, disability and impairment at $40

per day for approximately 11,800 days*fn1 472,000.

Total $1,092,000. [211 NJSuper Page 661] Although plaintiff notes that the per diem figures could be "moved up or down somewhat" the total*fn2 is asserted to underscore the reasonableness of the $875,000 verdict for Dr. Friedman. We disagree because we believe that items six and seven are overstated in failing to reflect the time value of money in the calculation of the present value of future losses. Since the jury was advised of the Table of Life Expectancy contained in Appendix I to the Rules of Practice, they should also have been advised of the present value of $1.00 per annum contained in the same appendix. As to item seven, the present value of $1.00 per annum for the life of a 41 year old male, using the 5 1/2% interest table in Appendix I to the Rules of Practice is 13.6281. Applying that factor to the $14,600 yearly figure ($40 x 365) for future noneconomic loss results in a total of $198,970.26 or $273,029.74 less than the $472,000 projected by plaintiff. Although the table cannot be used directly in calculating the item six loss, the present value of the $15,000 per year for the future work life estimate, again using a 5 1/2% interest rate as used in the table in Appendix I to the Rules of Practice, is

$204,937.50.*fn3 This is $185,062.50 less than the $390,000 projected by plaintiff. The total of the required reductions from plaintiff's figures is $458,092.24.*fn4 in order to reflect the time value of money in calculating the present value*fn5 of future losses. Plaintiff's $1,092,000 total becomes $633,907.76 which, on this basis, disproves the reasonableness of the $875,000 jury verdict for Dr. Friedman. Item four also involves future losses that in our view require jury instructions as to present value in the event they utilize the time-unit basis of calculating unliquidated damages, as plaintiff suggested in this case pursuant to R. 1:7-1.(b).

I

PLAINTIFF'S SUMMATION INCLUDING TIME-UNIT ARGUMENT

During the charge conference, immediately before summations, plaintiff's counsel advised the judge he would be making a "time unit summation" as permitted by R. 1:7-1(b):

(b) Closing Statement. . . . In civil cases any party may suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum. In the event such comments are made to a jury, the judge shall instruct the jury that they are argumentative only and do not constitute evidence.

Defendants' summations made no reference to an anticipated time-unit summation by plaintiff. As to damages, counsel for plaintiff summed up in relevant part as follows:

These are the special damages. Now, we get into the general damages. We're all familiar with a working wage, usually for an eight hour day. You're going to have to figure out what the wages of pain are. Unlike your working wage, the hours of ...


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