On certification to the Superior Court, Appellate Division.
Handler, Clifford, Pollock, O'Hern, Garibaldi, Stein
The opinion of the Court was delivered by HANDLER, J.
Plaintiff was injured while seated in a disabled car on the Pulaski Skyway when the car was struck in the rear by defendants' car. Plaintiff suffered back injuries, for which he sued the Kehlers and Deloris Haynes, the owner of the disabled car. He also brought a separate action, which was later consolidated, against the personal injury protection ("PIP") insurance carrier.
The jury found Todd Kehler 100% liable and awarded damages based on lost past wages, lost future income, and pain and suffering. However, the trial court, finding the damages award to be excessive, granted Kehler's motion for a new trial on damages only. The Appellate Division, in an unreported opinion, agreed with the trial court that the past-lost-income award was excessive
but upheld the jury verdicts for future lost income as well as pain and suffering.
We granted Todd Kehler's petition for certification, 134 N.J. 559 (1993), which challenged the Appellate Division's refusal to set aside the damages award in its entirety.
On May 21, 1987, Todd Kehler (hereinafter defendant), who was operating a car owned by Alice Kehler, struck the rear end of a disabled vehicle at or near the shoulder of the Pulaski Skyway. The disabled car had stalled in the right lane of the roadway and its owner, co-defendant Deloris Haynes, had left the car to seek help. Plaintiff, Paul Caldwell, who remained in the disabled vehicle, was injured by the impact. He sued the Kehlers, Haynes, and, in a separate action that was later consolidated, State Farm Insurance Company, the PIP carrier.
Caldwell, who was thirty-five-years-old at the time of the accident, was examined and treated over the years by various doctors and hospitals. For almost a year after the May 1987 accident, Caldwell continued treatment with Dr. Sherman, a board-certified internist, who initially treated Caldwell for a spasm, tenderness, and a reduced range of motion in his back. Despite Caldwell's treatment, he remained in pain. Eventually, Dr. Sherman suspected the "possibility of tuberculosis of the spine." Dr. Sherman testified that in his opinion "the accident unmasked or reactivated latent tuberculosis" because he could find no other provoking factors, and medical literature indicated that "significant auto trauma can be a provoking factor."
Later, Caldwell began treatment with Dr. Lee, an orthopedic surgeon. In late 1990, Dr. Lee admitted Caldwell to the hospital because Caldwell was still experiencing back pain and his "right leg was still getting numb every now and then." Caldwell testified that Dr. Lee told him he had tuberculosis of the spine. Dr. Lee's discharge summary indicated the final diagnosis as post-tranmatic lumbosacral sprain with spasms, psoas abscess with multiple lumbar
abscesses, suspected tuberculosis, and osteomyelitis with destruction of certain vertebrae. Apparently, Dr. Lee's antibiotic treatment of Caldwell ended the progress of the disease. No evidence suggested that further destruction of spinal bone or other increase in disability had occurred or would occur in the future.
However, according to defendant's expert, Dr. William Burke, the automobile impact was not severe enough to cause the tuberculosis to spread; and because the appearance of tuberculosis in the spine had been diagnosed so much later, it was improbable that the tuberculosis was related to the accident, if that was indeed a correct diagnosis of plaintiff's condition.
Caldwell testified that his back pain was "sharp," he was "in constant pain every day," and "everything became a problem," including tying his shoes, walking, and driving. Caldwell denied ever having had any back pain before the accident.
Before the accident, plaintiff had been employed for two to three years as a general laborer by a construction company that repaired bridges and tunnels. At the time of the accident, Caldwell earned $25.65 per hour and worked forty or forty-five hours per week, although his hours varied, seemingly due to the seasonal nature of the work. After the accident Caldwell missed three months of work.
Caldwell testified that at the construction company he earned an average gross weekly income of about $1,000. His testimony suggested that his pre-accident annual salary before taxes had been about $44,000. Caldwell stated that in 1987, the year of the accident in which he missed three months of work, he had earned $33,000. However, Caldwell estimated that his gross wages for the previous year in his work for the same company were only "twenty something" thousand.
After the accident and the three-month absence, Caldwell continued working for the company, with lighter work assignments but at the same salary, until July 1990, more than three years
after the accident. In July 1990, the company discharged Caldwell. Caldwell testified that he had been fired because he could no longer "do the strenuous work that it would take to do . . . the lifting, and other things like that." Caldwell also stated that "being terminated with a construction company means you can be fired one day and back at work the next day just because, you know . . . there's quite a few they would fire one week, hire back the next week. So I was just one of them." That was the first time the company fired Caldwell. He did not seek to be rehired.
Caldwell remained unemployed for a period of eighteen or nineteen months. In February or March 1992, he found work driving a senior citizens' van twenty hours a week at $5.50 per hour. At the time of trial, Caldwell was earning a little over $6,000 per year. He said he was capable of driving a full week, but the job offered only twenty hours. Thus, in addition to the initial three-month absence from work, Caldwell missed eighteen or nineteen months between the construction and the driving job. Then, he worked part-time during a five- or six-month period during which he had the twenty-hour-per-week driving job.
As noted, the court consolidated the PIP and personal-injury claims for trial. On the personal-injury claim, the trial court instructed the jury to calculate Caldwell's lost income based on his net income after taxes. With respect to future lost income, the trial court did not instruct the jury about present value or work-life expectancy.
Ultimately, the jury found defendant Todd Kehler 100% liable and awarded Caldwell a total of $1,950,000: $200,000 for past lost wages, $1.5 million for future lost wages, and $250,000 for pain and suffering. The owner of the car in which plaintiff had been sitting, co-defendant Haynes, and the owner of the car in which Todd Kehler had been driving, co-defendant Alice Kehler, were cleared of responsibility.
Defendant Todd Kehler moved for a new trial on both liability and damages. The trial court affirmed the liability finding, but ordered a new trial on damages. It stated: "I don't know what
was going on in this jury's mind at all but it certainly was not anything approaching a coherent evaluation of the case before it." The court had "never seen a case that's clearer than this of excessive damages; totally irrational on its face and it obviously shocks the conscience of the Court."
Specifically, the trial court found the jury's award of $200,000 for past lost wages improper because "plaintiff's counsel had properly admitted that at most the plaintiff was out of work for two years, three months and three weeks plus or minus." Therefore, the trial court found that if Caldwell's net income was $720 (based on Caldwell's testimony that he earned $1,000 gross weekly income), $200,000 for five years "would require that the plaintiff not have worked a day for those five years . . . [, which was] obviously inconsistent with the testimony.
The trial court determined the future-lost-wages award similarly flawed. It noted that the jury would have to have used gross income and to have concluded that plaintiff would work steadily without a break until reaching eighty-years of age.
The trial court also stated that the pain-and-suffering award of $250,000 "shocked the conscience of the court in relation to the testimony." The trial court rejected the option of separating and sustaining the damages for pain and suffering because with "the other damage awards . . . so alien to the evidence," it had "no confidence in ...