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Dehanes v. Rothman

April 19, 1999

MARY BETH DEHANES, ADMINISTRATRIX AND ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF JOSEPH F. DEHANES AND MARY BETH DEHANES, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,
v.
MICHAEL ROTHMAN, M.D., DEFENDANT-APPELLANT, AND DR. LORKIN, MADHO SHARMA, M.D., MEENA SINHA, M.D., RARITAN BAY MEDICAL CENTER, STEPHEN GERMOND, M.D., A. ABELOWITZ, R.N., M. MURRAY, R.N., R. VORA, R.N., S. SCHMIDT, R.N., JOHN DOE, M.D. (A FICTITIOUS NAME), PAUL SOE, M.D., (A FICTITIOUS NAME), RICHARD HOE, M.D. (A FICTITIOUS NAME), SUE SOE, R.N. (A FICTITIOUS NAME), MARY ROE, R.N. (A FICTITIOUS NAME), JAMES BROWN, R.N. (A FICTITIOUS NAME), R.N. (A FICTITIOUS NAME), SALLY BROWN (A FICTITIOUS NAME), MARY TOE (A FICTITIOUS NAME) AND PETER POE (A FICTITIOUS NAME), DEFENDANTS.



The opinion of the court was delivered by: O'hern, J.

Argued October 27, 1998

On certification to the Superior Court, Appellate Division.

This appeal concerns the right of an attorney during summation to suggest to a jury an aggregate sum or "bottom-line" figure to award for a claim of unliquidated economic damages. Specifically, the question is whether it was proper in this wrongful death action for the attorney for a decedent's surviving spouse and children to argue to the jury that the family had suffered a loss of approximately $2 million, of which $1.5 million represented income anticipated to be earned over the remaining years of the interrupted life of their husband and father. We hold that it was not improper for the attorney to sum up for the jury the total of the year-by-year economic losses established by competent expert testimony. This Conclusion and other intervening circumstances occasioned us to reconsider the doctrine of Tenore v. Nu Car Carriers, Inc., 67 N.J. 466 (1975). That decision sanctioned the use of expert opinion evidence to establish the effect of inflation on future wage losses in a wrongful death action, but prohibited the expert from testifying about the aggregate damages for two reasons. Id. at 482. First, the Court found that the expert's tables reflecting aggregate damages assumed findings of fact outside of the expert's scope of expertise. Ibid. Second, the Court found that the "[expert's] projection of a gross figure . . . 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. at 482-83. Following oral argument, we requested that the parties brief the issue of whether Tenore should be revisited.

Given the current rules governing the admission into evidence of expert testimony, the increased role of jurors in marshaling evidence prior to deliberations, see Rule 1:8-8(b) (allowing jurors to take notes during trial with Judge's discretion), and the greater sophistication of current jurors, we are satisfied that it is appropriate to permit properly qualified experts to testify to the aggregate sums of their calculations. Courts should preface that testimony with cautionary instructions. A court should tell the jury that it is about to hear expert opinion testimony concerning the economic losses claimed in the case and that any aggregate figures offered by the expert are necessarily based on the reliability of the assumptions that the expert may have made as to future economic trends. Subject to a better formulation by our Model Civil Jury Charge Committee, the following reflects a possible jury instruction:

Members of the jury:

"In this phase of the case you are about to hear expert opinion testimony on certain of the economic claims made. You will be the ultimate Judges of the reliability of the witness' projections of future economic losses. Any net figures offered by the expert are necessarily based on the reliability of each of the assumptions that the expert has made concerning the future trends that the expert regards as probable."

"In evaluating the reliability of the projections, you will be aided by the cross-examination of the attorneys and by any evidence presented by the opposing parties. At this stage of the case, you should keep an open mind regarding the reliability of these figures and not give uncritical acceptance to any aggregate sums that you will hear. I repeat, it will be your responsibility and your responsibility alone to determine at the close of the case the amount of economic losses suffered by the claimant."

I.

For purposes of this appeal, we generally accept the version of the case set forth in defendant's brief. Plaintiff's late husband, Joseph F. DeHanes, was treated in 1992 by defendant, Dr. Michael Rothman, in the emergency room of the Raritan Bay Medical Center. The jury found that Dr. Rothman failed to diagnose a potentially fatal heart condition that was caused by a tear in the inside lining of the aorta, the main artery to the heart. While DeHanes was in the emergency room, the tear caused the lining of DeHanes' aorta to rupture and bleed into the area around the heart. The physician's failure to diagnose and treat the heart condition resulted in DeHanes' death. Plaintiff's expert medical witness testified that had DeHanes been properly diagnosed and treated, he had at least an eighty percent chance of surviving the tear. The jury later found this chance to have been seventy percent.

At the time of his death, DeHanes was an experienced, thirty-eight-year-old machine operator at Westinghouse Corporation earning more than $55,000 per year. Assuming that he were to retire at age sixty-five, his remaining work expectancy was twenty-seven years. He had a wife and two children, ages eleven and six. His wife brought a survival action for his pain and suffering and a wrongful death action on behalf of herself and the children.

In support of the lost wage claim, plaintiff called an expert witness in labor economics. The witness projected the wages lost during DeHanes' anticipated work expectancy. Although the expert prepared trial exhibits documenting his annual calculations, in keeping with Tenore, the expert did not offer a bottom-line or aggregate figure representing plaintiff's total economic loss, and his exhibits were not entered into evidence. He simply provided the jury with a basis for estimating such damages if, after considering all other pertinent proofs, the jury deemed such an award appropriate. In explaining the calculations that should be used for determining DeHanes' anticipated salary though the age of sixty-five, the witness suggested methodologies for calculating the value of fringe benefits, deducting likely income taxes and personal consumption amounts, and reducing the future net losses to reflect the discount to current value. The witness also calculated the value of the family's lost household services, such as maintenance, repairs and household chores. Defense counsel cross-examined the expert, but the expert's calculations were not otherwise disputed by an expert on defendant's behalf.

Before summations, plaintiff's counsel informed the court that he intended to present to the jury an aggregate sum representing the lost wage claim based on the testimony of plaintiff's expert. The trial court cautioned counsel against making such an argument. Counsel expressed his belief that such a summation would be proper under a recent Appellate Division decision, Lovenguth v. D'Angelo, 258 N.J. Super. 6 (App. Div. 1992), appeal dismissed, 133 N.J. 417 (1993). In closing, plaintiff's counsel stated in part:

"And you heard [the expert] testify. Again, no one produced an economist to say what he was saying was not true. When you weigh the evidence his testimony is undisputed. He gave you a formula how to figure out into the future taking into account inflation and present value of the dollar. The dollar is worth more now than it would be in the future. . . . He gave you figures about how much the lost earnings . . . would be to the family from 1992 to now and from 1992 to age sixty-five, not even past that, just to age sixty-five. The total amount of all that income, lost benefits, lost earnings is two million forty-two thousand two hundred forty-six dollars. That's how much earnings, lost benefits after taxes this family has lost. For his loss, again that's undisputed." [Emphasis added.]

The trial court instructed the jury in part:

"Like the openings the closings are not evidence. . . . So that to the extent that they make a statement as to what the evidence is or shows, to the extent that that's inconsistent with what you believe the evidence to have shown or the inferences that you choose to ...


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