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Lovenguth v. D''Angelo

Decided: June 18, 1992.

TERRANCE LOVENGUTH AND JEANETTE LOVENGUTH, HIS WIFE, PLAINTIFFS-RESPONDENTS,
v.
RUTH C. D'ANGELO AND FRANK D'ANGELO, DEFENDANTS-APPELLANTS



On appeal from the Superior Court, Law Division, Morris County.

Petrella, R.s. Cohen and Kestin. The opinion of the court was delivered by Cohen, R.s., J.A.D. Petrella, P.J.A.D., Dissenting.

Cohen

The opinion of the court was delivered by

COHEN, R.S., J.A.D.

This is an auto negligence case. Plaintiff Terrance Lovenguth's auto was struck in the rear by defendant Ruth D'Angelo. Her negligence in causing the accident was conceded. Plaintiff's already bad back became very painful after the accident. Herniated discs were ultimately diagnosed. Surgery was performed, but did not resolve plaintiff's back problems. He has not worked since the accident. A fact finder accepting

the testimony of plaintiff, his medical experts, his employment expert, and his economist could conclude that plaintiff was permanently disabled and unable to work. He had a work expectancy of 13.5 years, and an annual wage loss of some $40,000. Defendants' witnesses' testimony tended to show that plaintiff's injury was less severe and less disabling than plaintiff said.

The jury awarded plaintiff some $951,000 and his wife $100,000 on her per quod claim. Plaintiff's award was broken down by the jury in answer to special interrogatories:

for medical expenses $43,507

for pain and suffering 500,000

for past lost income 80,886

for future lost income 326,766

On appeal, defendants do not directly attack the amount of the verdicts as excessive. Instead, they seek a new trial on the basis of five alleged trial errors. Our consideration of defendants' arguments convinces us that there is no justification for a new trial. We therefore affirm.

Defendants' first point is that plaintiff's summation violated the rule of Tenore v. Nu Car Carriers, Inc., 67 N.J. 466, 341 A.2d 613 (1975). Dr. Richard Ruth had testified that plaintiff had a life expectancy of 24 years and a work expectancy of 13.5 years. He said plaintiff's current annual wages were $40,280 and the annual value of his household services was $4650. He explained discounting to present value, and the effect of predictable wage increases and inflationary trends. He recommended they all be ignored in the jury's deliberations because they offset one another, and that a "simple multiplication" of current wages or value of services by a number of years would be accurate. Dr. Ruth did not make the ultimate calculations of wage losses or determine the value of services lost.

In his summation, plaintiff's attorney summarized Dr. Ruth's testimony and multiplied 13.5 (years of work expectancy) by $40,280 (current wages), and came up with a total discounted future wage loss of $543,780. He also apparently wrote that

figure on a writing board. He did a similar calculation for the value of lost services performed by plaintiff.

After plaintiff's summation, defendants' counsel objected to the "bottom line" figures and sought a mistrial. The Judge denied the application but immediately instructed the jury that attorneys' arguments were not evidence. During the formal charge, the Judge pointed out that Dr. Ruth did not testify as to plaintiff's total future income loss and that counsel's figure was just argument. The jury awarded $326,766 for future lost income. It made no separate award for the value of lost services.

Tenore stands for the proposition that evidence "purporting to show an injured plaintiff's aggregate damages" is improper for two reasons. 67 N.J. at 482, 341 A.2d 613. The first is that the evidence assumes fact findings not within the expertise of the economic expert, such as whether, absent the litigated injury, there would have been a change in a plaintiff's earning capacity for other reasons. There is also the uncertainty of the level of wage increases, the uncertainty of economic conditions, and the effects of inflation. Id. at 482-83, 341 A.2d 613. The second impropriety is that "the projection of a gross figure . . . by an expert tends to exert an undue psychological impact leading to the danger of its uncritical acceptance by the jury in the place of its own function in evaluating the proofs." Id.

Tenore remains the law. See Curtis v. Finneran, 83 N.J. 563, 417 A.2d 15 (1980). It bars "bottom line" evidence of future wage losses in wrongful death cases, like Tenore, and also in non-fatal personal injury cases, because in them, also, future income loss is as uncertain and incapable of ...


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