Before Judges King, Kestin and Cuff.
The opinion of the court was delivered by: King, P.j.a.d.
 Argued: April 22, 1998
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County.
This case involves claims for wrongful death and survival action damages. Plaintiff obtained a modest compensatory award of $40,178 (plus the net funeral and burial expenses of $3,939) under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6 and a punitive damage award of $1.25 million under the Survivor's Act, N.J.S.A. 2A:15-3. Defendant Coastal Oil of New York, Inc. (Coastal) challenges the punitive damage verdict on a number of grounds. We find no error and affirm.
On January 4, 1990 Helen V. Robbins (Mrs. Robbins), a widow, age 60, was driving her 1979 Lincoln Town Car north on County Route 649 in Commercial Township, Cumberland County. On the same day, Alan L. Whitaker, Jr. (Whitaker), an employee of Coastal, was driving a 36,000-pound Coastal oil truck south on County Route 633. The southbound lane of County Route 633 was governed by two yield signs where it intersects County Route 649. Due to maladjusted rear brakes, Whitaker was unable to stop the truck, even though he was "standing" on the brakes. The truck crossed the intersection, struck Mrs. Robbins' automobile, and overtopped it. Mrs. Robbins died in the accident.
Harold E. Smith, the nominal plaintiff, executor of Mrs. Robbins' estate, filed an action under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and under the Survivor's Act, N.J.S.A. 2A:15-3, against Whitaker and Coastal (collectively defendants). Smith died in 1995 and Grant Keller was appointed to replace him as plaintiff.
On its appeal, Coastal raises many issues, but primarily contends that, as a matter of law, plaintiff should not recover punitive damages. We disagree.
On June 8, 1990 the plaintiff executor filed this action under the Wrongful Death Act and Survivor's Act against defendants. Among other things, plaintiff claimed that the Coastal oil truck driven by Whitaker on January 4, 1990 had been "improperly serviced and maintained, in that the brake systems, air hoses and braking mechanisms were faulty, defective and not in proper working order." Plaintiff also alleged that "defendants . . . either knew or should have known that the braking systems and braking mechanisms on the vehicle being operated by . . . Whitaker . . . were faulty, defective and not in proper working order, but . . . defendants negligently, recklessly and with callous disregard for the safety of others, failed to take such proper steps as were necessary to adequately service, maintain and ensure that the braking mechanisms on said vehicle were in proper working order." Finally, plaintiff alleged that the "carelessness and recklessness" of defendants was "willful, wanton, and with knowledge of a high degree of probable harm to others such that the deliberate and wanton failure of the defendants . . . should be assessed with punitive and exemplary damages."
On May 9, 1995 the first jury trial began. After all sides rested on May 11, 1995 they agreed to the Judge's suggestion to select a second, different jury to decide the "punitive damage issue."
On May 12, 1995 the first jury was asked to answer this question:
"What amount of money, if any, would fully and fairly compensate Lois Buttner as the survivor of Helen V. Robbins for the actual pecuniary or financial loss suffered by Lois Buttner due to the death?" The jurors (6-0) answered "$40,178" to this question. Following this, the Judge molded the verdict by adding the net "funeral bill and expense" of $3,939, for a total judgment of $44,117. On May 30, 1995 the Judge entered a judgment against defendants reflecting that the jury had "rendered a verdict in the amount of $40,178 pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1, et seq.," and that the Judge had "molded the verdict as to funeral and burial expenses pursuant to the Survivor's Act, N.J.S.A. 2A:15-3 to include the sum of $3,939.00."
On May 15, 1995 Coastal filed a motion to dismiss plaintiff's punitive damage claim. In response, plaintiff filed a cross-motion for a new trial on the wrongful death damages claim. The Judge denied Coastal's motion, holding that plaintiff's claim for "punitive damages" against defendants "could be properly presented under the survivorship statute." The Judge also denied plaintiff's cross-motion for a new trial on the "compensatory damages." Finally, the Judge ruled that the "funeral bill" of $3,939 "would properly be included in the wrongful death aspect of the case."
On July 15, 1996 the punitive damage trial began before a new jury. With the consent of plaintiff and Coastal, plaintiff's punitive damage action against Whitaker was dismissed. On July 25, 1996 the jury was asked to answer two questions. The first question was: "Do you find that the conduct of the Defendant, Coastal Oil Company, gave rise to a claim for punitive damages?" The jurors (6-0) answered "yes" to that question. The second question was: "What is the proper amount of punitive damages to be awarded in this case against Coastal Oil Company of New York?" The jurors (6-0) answered "one million, two hundred fifty thousand" to that question.
On August 5, 1996 Coastal filed a motion for a new trial or remittitur. On September 5, 1996 the Judge entered an order denying Coastal's new trial motion. In this order, the Judge at Coastal's request amended the judgment entered on May 30, 1995 to reflect that the "molded verdict including funeral and burial expenses were recovered pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq." Both parties then appealed.
Coastal raises nine points on its appeal:
1. DID THE JUDGE ERR IN HOLDING THAT PUNITIVE DAMAGES ARE RECOVERABLE UNDER THE WRONGFUL DEATH ACT?
2. DID THE JUDGE ERR IN NOT DISMISSING PLAINTIFF'S PUNITIVE DAMAGE CLAIM AS A MATTER OF LAW, BECAUSE NO COMPENSATORY DAMAGES WERE RECOVERED BY PLAINTIFF UNDER THE SURVIVORSHIP ACTION?
3. MUST THE PUNITIVE DAMAGE AWARD BE REVERSED, BECAUSE THE FACTS OF THIS CASE DO NOT MEET THE THRESHOLD FOR EGREGIOUS CONDUCT NECESSARY FOR THE IMPOSITION OF PUNITIVE DAMAGES?
4. DID THE JUDGE ERR IN DENYING COASTAL'S MOTION TO BAR PLAINTIFF'S EXPERTS AND IN REJECTING ITS OBJECTION TO ONE EXPERT RENDERING AN OPINION AS TO CAUSATION?
5. DID THE JUDGE ERR IN DENYING COASTAL'S MOTION TO STRIKE THE PUNITIVE DAMAGE AWARD OR, IN THE ALTERNATIVE, FOR REMITTITUR, BECAUSE THE $1.25 MILLION AWARD WAS CLEARLY EXCESSIVE, AND NOT IN ACCORDANCE WITH THE PUNITIVE DAMAGES ACT?
6. DID THE JUDGE ERR IN DENYING COASTAL'S MID-TRIAL MOTION TO RECUSE HIMSELF?
7. WAS THE JURY'S PUNITIVE DAMAGES VERDICT THE PRODUCT OF PASSION OR PREJUDICE, BECAUSE THE JURY APPARENTLY DID NOT UNDERSTAND THE ISSUE OF PROXIMATE CAUSE OR THE STANDARDS BY WHICH TO MEASURE CONDUCT IN DETERMINING WHETHER PUNITIVE DAMAGES WERE APPROPRIATE?
8. DID THE JUDGE ERR IN PERMITTING IMPROPER FINANCIAL INFORMATION TO BE PLACED BEFORE THE JURY TO CONSIDER IN DETERMINING A PUNITIVE DAMAGE AWARD?
9. DID THE JUDGE ERR IN ADMITTING INTO EVIDENCE COASTAL'S FEDERAL HIGHWAY ADMINISTRATION CARRIER PROFILE FOR THE PERIOD JULY 22, 1994 TO JULY 22, 1996?
Plaintiff's sole point on the cross-appeal states:
DID THE JUDGE MAKE SEVERAL TRIAL ERRORS WHICH MUST BE ADDRESSED IN THE EVENT THIS MATTER IS REVERSED AND A RETRIAL IS ORDERED?
Coastal first contends that the Judge "erred in holding that punitive damages are recoverable under [the] New Jersey Wrongful Death Act." The Judge made no such ruling, and would have erred if he had. The judge said that: "In a wrongful death action, perhaps punitive damages would not be appropriate." With regard to the "punitive damage issue," he ruled that this issue "could be properly presented under the survivorship statute."
When the death of a person is caused by the "wrongful act, neglect or default" of another, an "action for damages" arises. N.J.S.A. 2A:31-1. In "every action" brought under N.J.S.A. 2A:31-1, the jury can only award damages "with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased" to the "persons entitled to any intestate personal property of the decedent." N.J.S.A. 2A:31-5. In this case, the sole surviving adult child, Lois Buttner, was the only eligible beneficiary under the Wrongful Death Act. See N.J.S.A. 2A:31-4.
This aspect of the Wrongful Death Act was explained in Turon v. J. & L. Constr. Co., 8 N.J. 543 (1952):
The evident policy of the statute is the recovery of damages for the pecuniary injury sustained by the designated beneficiaries. The act is essentially remedial rather than penal. Damages are assessed to compensate for the injuries sustained by the persons to whom they are payable.
The design of section 5 [N.J.S.A. 2A:31-5], from the very beginning, was the limitation of the measure of damages to the "pecuniary injuries" sustained by the statutory beneficiaries as the result of the death. The statutory policy was remedial and not punitive.
See Carey v. Lovett, 132 N.J. 44, 67 (1993) ("Damages for the wrongful death of an infant, like wrongful-death damages generally, are limited to economic matters."); Graf v. Taggert, 43 N.J. 303, 311 (1964) ("Our [Wrongful] Death Act was not intended to grant damages against a tortfeasor merely to punish him."); Goss v. American Cyanamid, Co., 278 N.J. Super. 227, 241 (App. Div. 1994) ("An award of damages in a wrongful death action is not intended to punish the tortfeasor, but only to replace that which the decedent likely would have provided."); DeFelice v. Beall, 274 N.J. Super. 592, 599 (App. Div.) ("The purpose of New Jersey's Wrongful Death Act is to provide compensation for pecuniary losses suffered by survivors of those killed by wrongful acts."), certif. denied, 138 N.J. 268 (1994). In Meehan v. Central R.R. Co. of New Jersey, 181 F. Supp. 594 (S.D.N.Y. 1960), the decedent's administrator sought to recover "punitive damages" under the "New Jersey Wrongful Death Statute, N.J.S.A. 2A:31-1 to 2A:31-6." Id. at 598. "In accordance with the compensatory nature of the New Jersey Wrongful Death Statute," the plaintiff's "punitive damage action on the wrongful death was dismissed." Ibid.
In Kern v. Kogan, 93 N.J. Super. 459, 462 (Law Div. 1967), the administrators of the minor decedent filed a medical malpractice action against the defendant doctor who had treated the minor from March 9, 1964 to her death on March 18, 1964. Based primarily on Graf, 43 N.J. 303, and Meehan, 181 F. Supp. 594, the Law Division Judge in Kern granted defendant's motion to dismiss plaintiffs' action to recover "punitive damages" from Kogan "under the Wrongful Death Act." Id. at 468-69. The Judge explained:
A reading of the cases discloses that the status of the law in New Jersey bearing upon wrongful death actions would seem to restrict all such claims to compensatory damages, and therefore, the demands for punitive damages based upon the allegations that defendant Dr. Kogan was fraudulent, deceitful and negligent, which actions resulted in the death of decedent, will not lie and thus defendant's motion with respect to these counts will be granted.
New Jersey case law has not changed on this point since the Kern decision in 1967. See Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 213 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996) (observing that a "punitive damages award is not to be considered compensatory," we noted that "punitive damages are not awarded for a wrongful death"). Punitive damages are not recoverable under most wrongful death statutes in this country. Ghiardi & Kircher, Punitive Damages § 5.19 n.4 (1992 Cum. Supp. Callaghan); Schlueter & Redden, Punitive Damages (3d 1996) § 9.9(A) at 589.
We agree with Coastal that punitive damages are not available under our Wrongful Death Act. We also conclude that the jury made no such award.
Since no traditional compensatory damages were recovered under the dismissed survivorship action, Coastal claims that plaintiff's demand for punitive damages should have been dismissed as a matter of law, citing O'Connor v. Harms, 111 N.J. Super. 22, 29-30 (App. Div.), certif. denied, 57 N.J. 137 (1970); Cooper Distributing Co. Inc. v. Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir. 1995); and Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d Cir. 1993). We disagree with Coastal's conclusory contention that because there were no traditional compensatory damages for pain and suffering under the survival action, "a punitive damages verdict cannot stand . . . as a matter of law." Indeed, Mrs. Robbins sustained the ultimate injury or damage; her life was extinguished. Of interest, the jury was not asked to consider "nominal damages." In an action for malicious conversion of property and punitive damages, we have stated: "Assuming that compensatory damages cannot be proved beyond a nominal sum, the better view appears to be that exemplary damages may nevertheless be awarded in this type of action." Winkler v. Hartford Accident & Indemnity Co., 66 N.J. Super. 22, 29 (App. Div.), certif. denied, 34 N.J. 581 (1961).
This is the procedural context pertinent to Coastal's contention. Before the jury was brought into the courtroom to begin the first trial, Coastal's attorney stated there was "no question" that Mrs. Robbins "died as a result of the injuries sustained in the accident." However, he also stated that it "has candidly been admitted by [plaintiff's] counsel" that "there is not one single item of proof that exists or could be placed before this jury indicating that Mrs. Robbins suffered any conscious pain or endured any suffering at all," because, during discovery, no post-accident witness "has indicated any consciousness at all by Mrs. Robbins."
Over plaintiff's objection, the Judge dismissed plaintiff's damage claim "with respect to the pain and suffering," because there "needs to be conscious pain and suffering to be part of the . . . damages that goes to the jury." According to the Judge, "there is nothing in the medical reports or in the observations of doctors, nurses, emergency personnel, or any of those people that would suggest that there was conscious pain and suffering." For the same reason, the Judge, over plaintiff's objection, dismissed plaintiff's damage claim "with respect to the hedonic damages," because "hedonic damages would have to be based on the victim's own loss of enjoyment and all those are simply not available." See Eyoma v. Falco, 247 N.J. Super. 435, 445 (App. Div. 1991).
As noted, at the end of the first trial, the Judge had entered a total judgment of $44,117 against Whitaker and Coastal. The Judge also stated in the final judgment of September 5, 1996, after the second trial, that "all compensatory damages, including funeral and burial expenses, recovered by plaintiff in [the first] trial" were "recovered pursuant to the Wrongful Death Act, N.J.S.A. 2A:31-1 et seq." This was a reallocation of the initial judgment of May 30, 1995, after the first trial, when the Judge had "molded the verdict as to funeral and burial expenses pursuant to the Survivor's Act, N.J.S.A. 2A:15-3 to include the sum of $3,939." Since 1969, funeral and burial expenses are recoverable and properly may be allocated to either the survival action, N.J.S.A. 2A:15-3 *fn1 , or the wrongful death action, N.J.S.A. 2A:31-5 *fn2 .
At the motion hearing following the first trial, Coastal's attorney again observed that, at the beginning of the first trial, plaintiff's attorney had "candidly admitted before this court that he did not have one, single solitary witness who would come in here and say that Mrs. Robbins even for one second survived the accident," or "had any apprehension or fear or fright . . . of an impending death with a crash." Coastal asserted that there had been a "candid representation" by plaintiff that "there was not any evidence that he could present on a survivorship claim." Coastal argued that the "punitive damages aspect of the case must be dismissed as a matter of law," because "there are no punitive damages available under the Wrongful Death Act," and because "there has not been one dime, not one single dime recovered under the survivorship action."
In response, plaintiff argued that he had "never relied upon the Wrongful Death Act to establish a claim for punitive damages," but instead had "always relied upon the Survivor's Act," because "punitive damages would be compensable under the Survivor's Act." Plaintiff's counsel asserted that Coastal misunderstood plaintiff's concession at the first trial. Plaintiff's counsel asserted:
I never said that the survivor's cause of action was not being pursued. In fact, it was pleaded in every count.
Your Honor, I never conceded at any time that there wasn't a survivor's claim. What I conceded was that I couldn't produce evidence of conscious pain and suffering of the decedent. I never said that there was no claim under 2A:15-3. In fact, legally it stands alone. I disagree with counsel's assessment that you can't have punitive damages where no compensatory damages have been awarded [under the Survivor's Act]. I disagree with that as a matter of law. They can be in this State.
In denying Coastal's motion to dismiss plaintiff's punitive damage claim, the Judge said there was "no question that in this case, at least insofar as the proofs are concerned, the decedent died instantly and there was no proof to the contrary"; that is, "there simply was no proof of cognition that she was alive after the impact for any period of time." He explained that he had also dismissed plaintiff's "pain and suffering claim," because there was "no proof" of "conscious pain and suffering," because Mrs. Robbins "died instantly . . . without any period of suffering." He ...